



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Angus v. Themis Program Management and Consulting Ltd.,









2011 BCCA 37




Date: 20110107

Docket:
CA038461; CA038469

Docket: CA038461

Between:

Robert Michael
Angus

Respondent

(Plaintiff)

And

Themis Program Management
and Consulting Ltd.

Appellant

(Defendant)

And

Her Majesty the
Queen in Right of the Province of British Columbia
as represented by the Ministry of Attorney General

Defendant

Docket
CA038469

Between:

Robert
Michael Angus

Respondent

(Plaintiff)

And

Her
Majesty the Queen in Right of the Province of British Columbia
as represented by the Ministry of Attorney General

Appellant

(Defendant)

And

Themis
Program Management and Consulting Ltd.

Defendant




Before:



The Honourable Mr. Justice Groberman





(In Chambers)




On appeal from: Supreme
Court of British Columbia, August 30, 2010
(
Angus v. Themis Program Management and Consulting Ltd.
,
Vancouver Registry S064911)

Oral Reasons for Judgment




Counsel for the Appellant/Defendant, Themis Program
  Management and Consulting Ltd.



A.S. Dosanjh





Counsel for the Appellant/Defendant, Ministry of the
  Attorney General



B.A. Mackey





Counsel for the Respondent:



D.J. O'Donnell





Place and Date of Hearing:



Vancouver, British
  Columbia

January 7, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 7, 2011






[1]

GROBERMAN J.A.
: These are two applications for leave to appeal a
judgment of a Supreme Court judge dismissing a summary trial application.

[2]

The plaintiffs claims arise from actions taken by the Family
Maintenance enforcement program against him. He alleges that the defendants
transmitted his social insurance number to certain companies without a legal
right to do so, and so committed a statutory tort under the
Privacy Act
,
R.S.B.C. 1996, c. 373. He also alleges that the programs actions in
having the government of Canada refuse to issue a passport to him violated his
constitutional rights.

[3]

The summary trial application in the Supreme Court was brought on by the
defendants, and concerned only the
Privacy Act
claim. The summary trial
judge found that claim unsuitable for summary determination. Her finding was
based on her view that as the
Privacy Act
claim should not be dealt with
separately from the other claim.

[4]

Although I have heard from counsel for Mr. Angus at some length, it is
not apparent to me that there are inter-connections between the two claims that
would make summary disposition of the
Privacy Act
claim inappropriate.
The judgment from which the defendants seek leave to appeal also fails to refer
to any specific inter-connections.

[5]

The tests that I must consider on leave to appeal, however, are not
concerned primarily with the merits of the decision below. I must, as a
threshold matter, consider whether the appeal has some merit, that is, whether
it has a possibility of success, but that is merely one issue before me.

[6]

Having heard the arguments of the parties, I am left in no doubt that
the proposed appeal has at least some merit and, indeed, has considerable
strength. An argument can be made that the claim under the
Privacy Act
was wholly distinct from the claim with respect to the denial of a passport. It
is arguable that it should have been dealt with by summary disposition. In
short, I am satisfied that there is a case of sufficient merit to warrant an
appeal.

[7]

The other questions on an application for leave to appeal deal with
whether an appeal is an appropriate manner in which to deal with an
interlocutory ruling. In particular, the practice of this Court requires that I
consider whether the matter is one of importance to practice generally, whether
it is of important to the litigation, whether it will in some way hinder or
delay the disposition of the matter in the trial court; and, finally, whether
it is in generally the interests of justice that an appeal go forward.

[8]

Counsel for the proposed appellants have suggested two manners in which
this matter is important to practice generally. First, they say that, as a
matter of principle, the summary trial judge ought to have considered the fact
that two different causes of action were present here rather than simply two
different issues. Counsel say that this Court has not fully considered the
question of whether the general concerns about litigating in slices ought to
apply where there are two distinct causes of action.

[9]

While it is correct that the Court has not specifically addressed that
issue, the Court has discussed the importance of inter-connectedness of issues
in determining suitability of summary trial. I am not convinced that there is,
as a matter of principle, a distinct principle that applies when there is more
than one cause of action. It seems apparent to me that the question of whether
an issue can be hived off from the balance of a claim will turn on the question
of whether the issue is inter‑connected factually or legally with the
balance of the claim. I am not persuaded that the question of whether, from the
standpoint of pigeon-holing the claim into causes of action, two separate
causes of action can be stated has any bearing on the suitability of a summary
trial. In any event, I am not satisfied that, as a matter of practice, it is
important for this Court to address that issue.

[10]

The other issue that is said to be of importance to practice is the recent
amendments to the Supreme Courts
Rules of Court
. The rules now enshrine
a principle that procedures should be proportional to the matters in issue.
This is one of the first cases in which the rule governing proportionality of
procedures is in play.

[11]

Counsel says that this case would be an opportunity for the Court to
address the place of the proportionality principle in the test for summary
trial. While I agree that that principle could tangentially be brought into
play within this appeal, it does not appear to me to be an issue that is front
and centre in the proposed appeal. I do not see this case as a particularly
suitable one for this Court to embark upon the interpretation of the
proportionality principle, particularly since the principle is a new one and
particularly since it was not addressed by the chambers judge in this matter.

[12]

There will be other more suitable times for this Court to address that
principle, and the possibility that it could be addressed in this case does
not, standing alone, convince me that the issues in this case are of importance
generally to practice.

[13]

The fact that the proposed appeal is not of general importance to
practice. Is not conclusive of this application. I must take into account other
considerations, as well.

[14]

The question of whether the case is of importance to parties is the next
issue. I understand that in this case discoveries have been completed and the
matter was ready to go for trial in October, but it was not heard at that time
due to some confusion as to the necessity of a pre-trial conference. The case is,
therefore ready for trial. It does not appear that any great amount of time or
effort in pre-trial preparations will be saved by having the appeal proceed.

[15]

The trial is set for nine days in October 2011. As I remarked during the
course of the hearing of this application, that seems to be very lengthy period
for a case that does not, on the face of it, appear to be factually or legally
complex. I acknowledge, however, that I do not have the full appreciation for
the complexities of the case.

[16]

It does not appear to me that a great deal of time at trial will be devoted
to the
Privacy Act
issue, which, on the face of it, is factually
uncomplicated. Indeed, the very facts and arguments that the applicants put
forward in favour of having this matter dealt with on a summary trial suggest
to me that not a great deal of time will be expended at trial in dealing with
this matter as opposed to the passport matter.

[17]

In the circumstances, I am unable to conclude that there will be great
prejudice to the applicants in this matter proceeding to trial or any great
saving in the litigation if the matter goes to this Court on an interlocutory
appeal.

[18]

In terms of delay of the trial proceedings in this matter, I am
convinced by the submissions of Mr. Dosanjh that the appeal could be completed
in advance of trial and that the appeal proceedings would not be disruptive to
the trial process.

[19]

The final issue is whether there are considerations of justice generally
that impinged on the granting of leave. None of the parties has referred to any
particular injustice that would be a result of either granting or withholding
leave, and I do not see that there would be any such injustice in this case.

[20]

To summarize, there is a strongly arguable case on appeal, but it does
not appear to me that there is an issue of general principle involved or a
matter of importance to practice or, indeed, to the parties. There is no real
detriment to the trial process that would result from granting leave, nor is
there any great saving to the parties or to the justice system that would
result from granting leave.

[21]

I am not convinced in the circumstances that there is any great value in
an appeal going forward and it is for that reason that I am denying leave to
appeal on both of these applications.

(discussion with
counsel re. costs)

[22]

GROBERMAN J.A.
: On the issue of costs, Mr. Dosanjh and Mr. Mackey
suggest that the appropriate order is that each party bear its own costs. Ms.
O'Donnell is seeking costs and suggesting that they might be fixed summarily.

[23]

There is some merit in the arguments of Mr. Dosanjh and Mr. Mackey that
certain aspects of the application were accepted, that a great deal of time on
this application was spent on issues of whether it was meritorious, which I
have determined in favour of the defendants. That said, I am not convinced that
I should depart from the ordinary rule that costs follow the event. Mr. Angus
will have his costs of these leave applications. I am going, however, to provide
that because the applications were heard together and a single response was
made, there will be only one set of costs and not two. Those will be divided
between the respondents. Hopefully, the respondents are able to agree on a
manner of dividing it between them; if not, that can be dealt with.

[24]

With respect to the suggestion that the costs be set summarily, if you
want to pursue that, I will consider it, otherwise the costs should be agreed
between the parties or assessed by the Registrar.

(discussion
with counsel re. costs)

[25]

GROBERMAN J.A.
: As I indicated, my order is that leave to appeal
on both matters is dismissed with one set of costs. I am making a further
order, and this is by consent, that those costs be assessed in the amount
$1,752.80, including HST.

(discussion re. when
costs should be paid)

[26]

GROBERMAN J.A.
: The costs will be payable forthwith.

The
Honourable Mr. Justice Groberman


