COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	Murphy v. Wynne,
	2008 BCCA 26

Date: 20080122

Docket: CA034348

Between:

John Murphy

Appellant

(Plaintiff)

And

John Wynne, William Holmes, William Kinlock, James Dougan, Barry Clark, Richard O’Brien, Russell St. Eloi, Tom Millar, Tom Tomko, Anne St. Eloi, Alexander McDonald, James Brady, Al Phillips, Ray Callard, Local 170 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and Nelson, Barkman & Tanaka, Chartered Accountants

Respondents

(Defendants)

Before:	The Honourable Chief Justice Finch
	(In Chambers)

 

J. Murphy	Appearing on his own behalf
A. Howarth	Counsel for the Workers’ Compensation Board
Place and Date of Hearing:	Vancouver, British Columbia
	24 October 2007
Written Submissions Received:	15 November 2007
Place and Date of Judgment:	Vancouver, British Columbia
22 January 2008

Reasons for Judgment of the Honourable Chief Justice Finch:

I.  INTRODUCTION:

[1]                Mr. Murphy applies for various remedies including orders that this appeal be removed from the inactive list, that an earlier order requiring him to post security for the costs of appeal be set aside, that a five judge panel be appointed to hear his appeal, and that he be granted indigent status.  No parties appeared in opposition to these applications.  Mr. Howarth appeared for the Workers’ Compensation Board as a matter of courtesy to the Court.  The Workers’ Compensation Board is not a party to this appeal.

[2]                At the conclusion of the oral hearing on 24 October 2007 I asked Mr. Murphy to make submissions in writing setting out the basis of the applications before me, with such supporting material as he thought necessary.  Mr. Murphy complied with that request on 15 November 2007. 

[3]                This appeal, brought by Mr. Murphy under Court of Appeal file number CA034348 is in respect of proceedings commenced in the Supreme Court of British Columbia under file numbers C946213 and S011288.  In particular, the appeal is from the order of Mr. Justice Groberman of 14 July 2006 striking out Mr. Murphy’s statement of claim and dismissing his actions against all defendants.

[4]                Mr. Murphy has a second proceeding in this Court, brought under Court of Appeal file number CA034995.  That appeal also concerns proceedings in the Supreme Court of British Columbia under file numbers C946213 and S011288.  However, appeal number CA034995 relates in particular to the counterclaim advanced by the defendants against Mr. Murphy.  In his oral reasons for judgment of 14 July 2006 Mr. Justice Groberman suggested that the issues surrounding the counterclaim might be addressed by an application for leave to discontinue the counterclaim.

[5]                The defendants brought an application to have the counterclaim dismissed without costs.  An order to that effect was granted by Mr. Justice Groberman on 13 April 2007.

[6]                Mr. Murphy applied for leave to appeal that order.  On 31 August 2007 Mr. Justice Chiasson granted Mr. Murphy leave to appeal the order of 13 April 2007, granted Mr. Murphy indigent status in those proceedings, and refused Mr. Murphy’s request for a stay of proceedings: Murphy v. Wynne, 2007 BCCA 434.

[7]                These reasons for judgment address only the applications brought by Mr. Murphy in appeal number CA034348.  They do not address appeal number CA034995, Mr. Justice Groberman’s order of 13 April 2007, or Mr. Justice Chiasson’s order of 31 August 2007. 

II. HISTORY OF THE PROCEEDINGS:

[8]                Mr. Murphy, a plumber, was at one time a member of the Building Trades Division Local 170 (“Local 170”) of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry in the United States and Canada (the “Union”).  In 1991, elections were held to fill positions as officers of the union.  Mr. Murphy took issue with the elections, and the subsequent interference with his rights which he says have flowed through to other elections since then.  In 1994, Mr. Murphy commenced action number C946213 seeking an injunction. 

[9]                1n 1996, Mr. Murphy was charged by his union with “circulating letters of falsehood” contrary to s. 199 of the union constitution.  The union claimed that Mr. Murphy had forged signatures of other union members on motions that he wished to bring before the union.  In 1996, Mr. Murphy was fined and expelled from the union following a hearing which he did not attend because union officials told him he could not be represented by a lawyer.  This fine and expulsion was later confirmed by the parent union (The International Union). 

[10]            On 6 March 2001 Mr. Murphy commenced action number S011288 against the union and various members of the union seeking redress for his alleged wrongful expulsion.  Mr. Murphy also sought redress for a number of other alleged wrongs, including irregularities in managing certain trust funds and failure to represent him before the Workers’ Compensation Board.  He has also taken issue with the qualifications of various members of the union executive to hold office, and with their refusal to prove their qualifications to him.

[11]            Several judges dealt with these applications up until 2003.  Significant rulings were made by Williamson J. (Murphy v. Wynne, C946213, Vancouver Registry, 22 February 2002), Edwards J. (Murphy v. Wynne, 2002 BCSC 1835), and Humphries J. (Murphy v. Shortt, 2003 BCSC 507).  In 2003, Mr. Justice Groberman was appointed case management judge over Mr. Murphy’s litigation.  In 2004, Mr. Justice Groberman heard the petition in Murphy v. Shortt, 2004 BCSC 1362.

[12]            In his judgment of 14 July 2006 in Murphy v. Wynne, Mr. Justice Groberman held that the four rulings referred to above disposed of the bulk of Mr. Murphy’s claims.  Mr. Justice Groberman hoped that the guidance he gave in his 2004 judgment would allow Mr. Murphy to proceed in an expeditious and orderly manner with what was left of his claims.  At three case management conferences in 2004 and again in 2005, Mr. Justice Groberman urged and directed Mr. Murphy to provide the court with a brief plan of how he was going to bring the litigation to trial so that it could be dealt with without further delay.  Mr. Murphy first insisted that the proceedings be delayed while he unsuccessfully pursued certain claims before the Labour Board, and then let the matter lie dormant for a considerable length of time.

[13]            In January 2006, Mr. Murphy filed a 44 page document entitled, “Amended Statement of Claim”.  Mr. Justice Groberman described this document as a:

…hodgepodge consisting of allegations, copies of documents, lists of alleged facts, references to affidavits, and disjointed discussion replete with legal jargon.  Allegations and claims are made against non-parties, and many of the named defendants have no specific allegations or claims made against them.  (Murphy v. Wynne, S011288, Vancouver Registry, 14 July 2006 at para. 7)

[14]            Mr. Justice Groberman said the document consists, in the main, of allegations and claims that had already been dismissed in the earlier proceedings, and is not an orderly or proper document on which Mr. Murphy can base a claim.  As a result, Mr. Justice Groberman struck the statement of claim and dismissed the action.

[15]            On 10 August 2006 Mr. Murphy filed his notice of appeal.  He applied for indigent status.  On 31 October 2006 I dismissed Mr. Murphy’s application for indigent status.  At the same time, I granted the defendants’ applications for security for costs of the appeal, security for costs in the court below, and ordered a stay of the appeal until security is posted: Murphy v. Wynne, 2006 BCCA 588.

[16]            Mr. Murphy applied to review that order.  That application was dismissed by a division of this Court: Murphy v. Wynne, 2007 BCCA 156.

[17]            On 24 September 2007 the registry sent a letter to Mr. Murphy advising him that, pursuant to s. 25(1) of the Court of Appeal Act, this matter had been placed on the inactive appeal list.

[18]            That is the background leading to Mr. Murphy’s application now before me.  As mentioned, in the application of 24 October 2007, as now amplified by Mr. Murphy’s written submission, he applied to remove appeal number CA034348 from the inactive list.  He also applied to “consolidate evidence and appeal costs”.  He sought the hearing of his appeal by a five judge division of the Court.  He sought to set aside the order for security for costs.  He also sought interim orders that the union reinstate his membership in health and welfare plan coverage.  He sought indigent status, leave to appeal, and “joinder” of this appeal with those proceedings numbered CA034995.  He also asked for an extension of time within which to file his factum.  Mr. Murphy filed a written submission on 15 November 2007, together with voluminous supporting materials. 

III. REMOVAL FROM THE INACTIVE LIST:

[19]            Section 25 of the Court of Appeal Act governs inactive appeals.  There is no rigid test on an application to reinstate.  The overriding issue has been said to be whether it is in the interests of justice to grant the application: Kar Recovery Ltd. v. KDA, 2004 BCCA 503.  Factors which have been considered by the Court in removing a case from the inactive list are the extent of the delay, any explanation for the delay, the existence of prejudice arising from the delay, and the likelihood of success on appeal. 

[20]            The applicant bears the onus of establishing a good reason for reactivating the appeal under s. 25(2): see Galiano Conservancy Association v. British Columbia (Ministry of Transportation and Highways) (1997), 40 B.C.L.R. (3d) 171 (C.A.) at 176.

[21]            Where a litigant appears in person, the Court will not be overly strict about form: see Berg v. Berg, 2000 BCCA 574.

[22]            In my opinion, it would not be in the interests of justice to remove this appeal from the inactive list.  Mr. Murphy seeks to attack the order of Mr. Justice Groberman made on 14 July 2006 striking out his statement of claim and dismissing the action against all defendants.  In making that order Mr. Justice Groberman said:

I have no hesitation in finding it (the amended statement of claim) to be an abuse of process because it consists largely of claims that have already been dismissed, irrelevant allegations against non-parties, pleadings of evidence, cross references to affidavits, and disjointed pleadings of law unsupported by pleadings of material facts.

Quite apart from these improprieties, the document is almost unintelligible.  It can in no way serve as the basis for an orderly legal process.

[23]            It is evident that there is no prospect of success in an appeal of that order.  Continuing these proceedings would be a further abuse of the Court’s processes.

[24]            I dismiss the application to remove the appeal from the inactive list.

IV. THE OTHER APPLICATIONS:

[25]            In light of this disposition, Mr. Murphy’s other applications, to set aside the order that he post security for costs, the request for a five judge panel, and the request for indigent status, are all moot.  They are therefore dismissed as well.

V. CONCLUSION:

[26]            All applications in file number CA034348 are dismissed.  Mr. Murphy appeared in person.  He has shown reluctance in the past to draw orders, or to approve orders that are adverse to his interest.  No one appeared in opposition to his various applications.  I therefore direct that the registry staff draw and enter the order giving effect to these reasons.  A copy of the order is to be delivered to Mr. Murphy.

“The Honourable Chief Justice Finch”