



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Gichuru v. Law Society of BC,









2012 BCCA 159




Date: 20120127

Docket: CA039613

Between:

Mokua Gichuru

Appellant

(Petitioner)

And

Law Society of
British Columbia and

The BC Human
Rights Tribunal

Respondents

(Respondents)




Before:



The Honourable Madam Justice Bennett





(In Chambers)




On appeal from: Supreme
Court of British Columbia, December 12, 2011
(
Gichuru v. Law Society of British Columbia
, Vancouver Registry S116065)

Oral Reasons for Judgment




Appellant appearing In Person






Counsel for the Respondent, Law Society of British
  Columbia:



G.B. Gomery, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

January 27, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 27, 2012






[1]

BENNETT J.A.
: The applicant, Mr. Gichuru, seeks leave to appeal
the order of a case planning conference judge, although Mr. Gichuru does not
characterize the judge in this way for reasons I will explain in a moment. The
order under appeal, pronounced by Mr. Justice Harris on December 12, 2011:

1.

reduced the time set aside for the
hearing from eight days to five days,

2.

established a schedule for the
delivery of the parties written materials in advance of the hearing, and

3.

provided that another case planning conference will be
held following the exchange of the materials to re-evaluate the estimate of
five days required for hearing

[2]

The Law Society of British Columbia (the Law Society) opposes the
application for leave to appeal. The BC Human Rights Tribunal (the Tribunal)
did not appear and takes no position on the application.

BACKGROUND FACTS AND PROCEEDINGS BELOW

[3]

Relatively little of the extensive factual and procedural background of
the underlying action is material to this application. Mr. Gichuru has succinctly
set out the relevant procedural history in his leave application materials.

[4]

In 2004, Mr. Gichuru filed a complaint alleging that the Law Society
discriminated against him on the basis of mental disability or perceived mental
disability, contrary to s. 14 of the
Human Rights Code
, R.S.B.C. 1996,
c. 210. The Tribunal determined that Mr. Gichurus claim was well-founded,
releasing separate reasons for liability and remedy on October 30, 2009 and
July 15, 2011. Mr. Gichuru has petitioned for judicial review of the remedy
decision. His amended petition discloses 18 grounds of review.

[5]

On September 19, 2011, Mr. Gichuru scheduled eight days for hearing of
the petition between April 16 and April 25, 2012. On September 22, 2011, the
Law Society filed an application to, among other things, reduce the length of
hearing to three days. Mr. Justice Abrioux adjourned that aspect of the
application to a case planning conference which was subsequently scheduled for
December 12, 2011 at 11:30 a.m. No judge was available until 12:00 p.m., at
which time Mr. Justice Harris heard the application. After hearing submissions
first from the Law Society and then from Mr. Gichuru, the case planning
conference judge made the order under appeal, fixing the length of hearing at
five days, subject to re-evaluation closer to the hearing dates.

[6]

Mr. Gichuru points out that Mr. Justice Harris had only received the
material just before the application, and he advised counsel and Mr. Gichuru
that he had not had an opportunity to read the material. Therefore, Mr. Gichuru
submits, Mr. Justice Harris was not a case planning conference judge in the
true sense of the word as he had just become acquainted with the material.

[7]

Between December 14, 2011 and December 15, 2011, Mr. Gichuru and counsel
for the Law Society exchanged emails in which Mr. Gichuru expressed his desire
to adjourn the April hearing dates generally on account of his health problems.
The Law Society consented to an adjournment to a fixed date in October 2012,
and Mr. Gichuru booked dates in October 2012. Mr. Gichuru mentioned the
possibility that continued health problems might necessitate the need for
further adjournment past October 2012; counsel for the Law Society responded
that his client would be opposed to further adjournments.

ERRORS ALLEGED

[8]

Mr. Gichuru argues that the case planning conference judge did not have
jurisdiction to decide the application before him as it was supported by
affidavit evidence. He relies on Rule 5-3(2)(a) of the
Supreme Court Civil
Rules
, BC Reg 168/2009 [the
Rules
] for this proposition.

[9]

Mr. Gichuru further argues that the case planning conference judge erred
in considering neither affidavit material he submitted nor his written response
to the Law Societys application. He had filed his materials for the conference
with Abrioux J., and he discovered partway through the conference with Harris J.
that the Law Society had not re-filed his materials.

[10]

Mr. Gichuru also submits that a breach of the principles of natural
justice ensued from the abbreviation of time he was given to make oral
submissions. He says that, prior to the conference, he confirmed with counsel
for the Law Society their joint time estimate was one hour for the application.
At the beginning of the Law Societys submissions, Harris J. asked whether the
application might be heard in 30 minutes, and counsel for the Law Society
agreed that it could. When Mr. Gichuru began his submissions, he was instructed
to condense them and focus on the essential points. As a result of this and of
interjections from the case planning conference judge, Mr. Gichuru says his
submissions were disjointed and scattered.

[11]

He also submits that the applicable legal test and upon whom the burden
rests to satisfy that test, in the context of an application to reduce time for
the hearing of a petition, are important questions requiring consideration of
this Court.

[12]

Mr. Gichuru argues that the term of Harris J.s order providing for
reassessment of the five-day time estimate unfairly places the onus on him to
prove that five days will be insufficient to hear the petition. Furthermore,
because the reassessment case planning conference is to take place less than
four weeks before the scheduled hearing dates, the parties will incur delay in
booking any additional hearing days that might be ordered because the court
requires months of advance notice to book lengthy hearing dates. This delay
will be prejudicial to Mr. Gichurus health problems, which take the form of
insomnia, fatigue, and concentration issues. These are exacerbated by his
belief that the respondents are trying to avoid a hearing of his petition for
judicial review on its merits.

[13]

Mr. Gichuru also states there was an inadequate evidentiary foundation
for the order under appeal in the absence of the record of proceedings before
the Tribunal and the latest amendments to the pleadings.

LEGAL TEST  LEAVE TO APPEAL

[14]

Rule 5-3(1)(q) gives a case planning conference judge discretion to make
the order under appeal. Section 7(1)(b) of the
Court of Appeal Act
,
R.S.B.C. 1996, c. 77 (the 
Act
) renders this order interlocutory, and
leave to appeal is required by s. 7(2)(a) of the
Act
.

[15]

In
Barker v. Hayes
, 2007 BCCA 51 (Chambers), Mr. Justice Smith
stated at para. 14 that the purpose of requiring leave to appeal is to weed
out cases that do not warrant the time and attention of the Court (see also
Johal
v. Virdi
, 2011 BCCA 412 (Chambers) at para. 5).

[16]

The onus is on the applicant to satisfy the following four criteria:

1. the point on appeal is of
significance to the practice;

2. the point on appeal is of
significance to the action itself;

3. the appeal is
prima
facie
meritorious and not frivolous; and

4.
the appeal will not unduly hinder the progress of the action.

(See
Power Consolidated
(China) Pulp Inc. v. B.C. Resources Investment Corp.
(1988), 19 C.P.C. (3d)
396 (C.A. Chambers);
Goldman, Sachs & Co. v. Sessions
, 2000 BCCA 326
(Chambers);
Smith v. Global Plastics
, 2001 BCCA 152 (Chambers);
Hanlon
v. Nanaimo (Regional District)
, 2007 BCCA 538 (Chambers);
Vancouver
(City) v. Zhang
, 2007 BCCA 280 (Chambers);
Right Business Ltd. v.
Affluent Public Ltd.
, 2011 BCCA 496 (Chambers),
Johal v. Virdi
, 2011
BCCA 412 (Chambers).`)

[17]

In
V.F. v. E.B.
, 2011 BCCA 238 (Chambers), the chambers judge
noted that leave to appeal is much less readily granted from discretionary
orders:

[22]      Leave to appeal will rarely be granted from discretionary
orders:
Silver Standard Resources Inc. v. Joint Stock Co. Geolog
, [1998]
B.C.J. No. 2298 (C.A.), per Rowles J.A. (in chambers), quoting McLachlin J.A.
(as she then was) in
British Columbia Teachers Federation v. British
Columbia (Attorney General)
(1986), 4 B.C.L.R. (2d) 8 (C.A.) at 11:

Generally speaking, barring error in the decision below, a
justice will be reluctant to grant leave where the decision constitutes the
exercise of a discretion conferred on the chambers judge. The party seeking leave
to appeal bears the onus of establishing that the conditions for leave have
been met.

[23]      Leave to appeal a discretionary order will only be
granted where the order is clearly wrong or serious injustice will occur, or
where discretion was not exercised judiciously or was exercised on a wrong
principle:
Strata Plan LMS 2019 v. Green
, 2001 BCCA 286, 152 B.C.A.C.
174, per Proudfoot J.A. (in chambers):

[6] ... This court is slow to grant leave from a
discretionary order unless the order is clearly wrong or a serious injustice
will occur:
Watson v. Imperial Financial Services Ltd.
(1992), 65
B.C.L.R. (2d) 281 (C.A. [in chambers]).

[18]

The onus on a leave applicant is even heavier when the judgment he or
she seeks to appeal arises from case management (
Robak Industries Ltd. v.
Gardner
, 2006 BCCA 395 (Chambers) at paras. 11-12;
Bronson v. Hewitt
,
2008 BCCA 46 (Chambers) at para. 8;
Luu v. Wang
, 2009 BCCA 414
(Chambers) at para. 17).

[19]

However, there are, of course, cases where leave to appeal has been
granted from case management orders. Although this Court is less likely to
grant leave, this does not mean leave is never granted.

i         Significance
to the practice

[20]

This element requires consideration of whether the practice could use
clarification or instruction on the point on appeal or whether, by contrast, it
is well-settled. Orders that are very specific to the action will not generally
suffice. (
Re Canadian Petcetera Limited Partnership
, 2009 BCCA 255
(Chambers);
Lougheed v. Wilson
, 2009 BCCA 399 (Chambers);
Gulamani v.
Chandra
, 2009 BCCA 206 (Chambers).)

ii         Importance
of the appeal to the parties

[21]

While the significance of the appeal to the proposed parties is a
consideration (see
West Bay SonShip Yachts Ltd. (Re)
, 2007 BCCA 419
(Chambers) at para. 12), a point significant to a party but not of significance
in the action might not satisfy this criterion (
Columbia National
Investments Ltd. v. Abbotsford (City)
, 2007 BCCA 368 (Chambers) at para.
24).

iii        Merits
of the proposed appeal

[22]

An arguable case with some prospect of success will satisfy this branch.
A vexatious, frivolous, or unnecessary case or one with no reasonable chance of
success will not meet the requisite threshold under this branch (
Teck
Cominco Metals Ltd. v. British Columbia
, 2009 BCCA 3 (Chambers) at paras.
19-20).

iv        Undue
hindrance of the action

[23]

Under this branch, a chambers judge might consider whether an appeal
could interfere with upcoming trial dates, settlement negotiations, or
time-sensitive aspects of the litigation (
Smith v. Global Plastics Ltd.
,
2001 BCCA 152 (Chambers)).

PROPOSED DISPOSITION

[24]

In my opinion, the application fails on every branch of the test for
leave to appeal. None of the errors Mr. Gichuru propounds raises a point of
significance to the practice. All of these issues are well-settled. As I stated
earlier, Rule 5- 3(1)(q) gives the case planning conference judge jurisdiction
to make the order he did, and it is trite to say that justices of the Supreme
Court have a broad discretion to regulate practice and procedure in their own
court.

[25]

I accept that the grounds of complaint Mr. Gichuru raises are of
significance to him, but they are of significance neither to the other parties
nor to the action itself. If leave were granted, little would turn on whether
the appeal is allowed or dismissed.

[26]

The proposed appeal is bound to fail. The jurisprudence of this Court
clearly indicates that Mr. Gichuru faces a very heavy burden in showing that
the decision under appeal perpetuates injustice, or is clearly wrong or based
upon an error in principle. Given that Rule 5-3(1)(q) specifically confers
jurisdiction on the case planning conference judge to make the impugned order,
no division of this Court would find that he exceeded his jurisdiction in doing
so. Mr. Gichurus argument that Harris J. erred in failing to consider his
affidavit material is belied by his other submission that Rule 5-3(2)(a)
prohibits a case planning conference judge from determining an application
supported by affidavit evidence. Mr. Gichurus contention that Harris J.
offended natural justice in limiting the submissions on the application to 30
minutes instead of one hour is without merit. It is commonplace for a judge
hearing submissions to limit the time parties have to make them; in these
particular circumstances, Rule 5-3(1)(n) conferred jurisdiction upon Harris J.
to determine the appropriate amount of time for submissions on the application.
Mr. Gichuru submits that this Court should formulate a test for applications to
reduce the length of time set for trial, but to do so would be inimical to the
discretion underlying these kinds of decisions. As long as the case planning
conference judge exercises his or her discretion judiciously and not
arbitrarily, and no clear wrong or serious injustice results, this Court should
not and will not interfere.

[27]

As mentioned above, Mr. Gichuru contends that any further adjournment
past October 2012 necessary to schedule additional hearing dates the parties
might obtain would have adverse consequences for his health. This is the converse
position Mr. Gichuru takes in his December 2011 emails advising the Law Society
that his ill health might necessitate adjournments past October 2012. I do not
give weight to this aspect of Mr. Gichurus argument. I do not think a division
of this Court would see the matter differently.

[28]

In short, Mr. Gichuru cannot establish any reasonable possibility that a
division of this Court will accede to any of his arguments.

[29]

In addition, Harris J.s order requires the parties to hold another case
planning conference to reassess the five-day time estimate after exchanging
written materials. If Mr. Gichurus present concerns are still material at that
time, he can raise them then. Any relief the proposed appeal could offer Mr.
Gichuru is already available to him in the trial court. Accordingly, the
proposed appeal would unduly delay the progress of the underlying petition for
judicial review. The respondents seem eager to get on with the underlying
petition. The prospect that Mr. Gichurus health could worsen also favours a
speedy resolution.

[30]

The application is dismissed.

[31]

The costs will be in the cause.

The
Honourable Madam Justice Bennett


