



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Madadi v. Nichols,









2021 BCCA 10




Date: 20210112

Docket: CA46891

Between:

Behroz Madadi

Respondent

(Plaintiff)

And

Norman Nichols,
Roderick McDonald and Patricia Kelley

Appellants

(Application
Respondents/
Proposed Defendants)

And

Her Majesty the
Queen in Right of the Province of British Columbia

Respondent

(Defendant)




Before:



The Honourable Madam Justice Dickson

The Honourable Madam Justice Fisher

The Honourable Mr. Justice Voith




On appeal from:  An
order of the Supreme Court of British Columbia, dated
May 20, 2020 (
Madadi v. British Columbia
, 2020 BCSC 765,
Vancouver Docket S157192).




Counsel for the Appellants

(via videoconference):



C.E. Hunter,
  Q.C.

E.V. Madhur





Counsel for the Respondent, Behroz Madadi

(via videoconference):



B. Zargarian





Counsel for the Respondent, Her Majesty
the Queen in Right of the Province of
British Columbia

(via videoconference):



M.N. Weintraub





Place and Date of Hearing:



Vancouver, British
  Columbia

December 4, 2020





Place and Date of Judgment:



Vancouver, British
  Columbia

January 12, 2021









Written Reasons by:





The Honourable Madam Justice Fisher





Concurred in by:





The Honourable Madam
  Justice Dickson

The Honourable Mr. Justice
  Voith








Summary:

The appellants appeal from
an order adding them as defendants to the respondents claim of misfeasance in
public office. The appellants were members of the former College of Teachers of
British Columbia who had presided over a disciplinary hearing into the
respondents conduct. The respondents claim against the appellants was
statute-barred. Relying in part on a previous judgment that allowed the
respondent to amend his pleading in misfeasance, the chambers judge held there
was a sufficient connection between the proposed new defendants and the
respondents claim, and given the balance of prejudice, it was just and
convenient to add them as parties. The appellants submit that the chambers
judge erred by failing to consider the merits of the respondents claim when assessing
the relative prejudice to the parties, and misapprehending the evidence in that
assessment. Held: Appeal dismissed. The chambers judge was correct to reject
the appellants argument that there should be some assessment of the merits of
an otherwise statute-barred claim when balancing prejudice. Although the
chambers judge did not properly apply the initial threshold that requires a
plaintiff to establish first a real, non-frivolous issue between the claim and
the proposed defendants, the pleadings allege sufficient material facts to support
the elements of misfeasance in public office against the appellants. There is
also no basis to otherwise interfere with the judges assessment of the balance
of prejudice.

Reasons for Judgment of the Honourable
Madam Justice Fisher:

[1]

This is an appeal from an order adding the appellants as defendants to a
claim of misfeasance in public office that was, but for the order,
statute-barred. The primary issue concerns the threshold requirement to
establish an issue between a plaintiff and a proposed defendant that is
connected with the relief, remedy, or subject matter of the proceeding, and the
extent to which this may be considered when assessing whether it is just and
convenient to add a defendant to a statute-barred claim.

[2]

The appellants are retired teachers who, as members of the former College
of Teachers of British Columbia (the College), presided over a disciplinary
hearing into the respondents conduct as a teacher, found him guilty of some allegations
of misconduct, and imposed a penalty. There had been considerable delay from
the time of the allegations (2001), the investigation (2003), and the
disciplinary hearing (20092011). After those proceedings concluded, the
respondent made a human rights complaint, which was dismissed in 2012, and
pursued a statutory appeal, which was dismissed by consent in 2014 after the
College agreed to set aside the decisions of the disciplinary panel.

[3]

The respondent commenced the proceedings at issue in this appeal in
2015. He raised various causes of action against the Province of British
Columbia, including misfeasance in public office. In 2018, the Province successfully
applied to strike most of the claims but the court granted the respondent leave
to amend two of his claims, including misfeasance in public office. In January
2019, the respondent filed a Further Amended Notice of Civil Claim, and in
September 2019, sought to add the three appellants as defendants pursuant to
Rule 6-2(7) of the
Supreme Court Civil Rules
. That application was heard
in February 2020 and in reasons for judgment issued May 20, 2020, indexed as
2020 BCSC 765, Matthews J. granted the order sought.

[4]

The appellants contend that the chambers judge erred by refusing to
consider the merits of the respondents proposed claims as set out in the
pleadings before her and by misapprehending the evidence relevant to her
assessment of the issues of prejudice and delay.

[5]

Despite an error by the chambers judge in assessing the relevant
threshold for joinder under Rule 6-2(7)(c), it is my view that the respondent
has established a real and non-frivolous issue in his claim against the
proposed defendants. It is also my view that the judge did not misapprehend the
evidence in her assessment of the relative prejudice to the parties. For the
reasons that follow, I would dismiss the appeal.

Background facts

[6]

The background facts were succinctly set out by the chambers judge:

[10]      The disciplinary proceedings arose out of
complaints made against Mr. Madadi in 2001 when he was a teacher-on-call
in the New Westminster School District. Mr. Madadi deposed that as a
result of his status as a teacher-on-call and the complaints, his ability to
work as a teacher while the investigation proceeded was very limited. In 2005,
due to inadvertence on the part of Mr. Madadi, he did not pay his
professional fees on time and his certificate was cancelled. He applied to have
it reinstated, but the Colleges Qualifications Committee refused to reinstate
him, in part citing the ongoing investigation. At that time, it had been four
years since the complaints were made.

[11]      In 2010, the
disciplinary panel found Mr. Madadi guilty of some of the allegations and
not guilty of others. In 2011, the disciplinary panel imposed a penalty
prohibiting the College from issuing a certificate of qualification to Mr. Madadi
for 12 months.

[7]

In November 2011, the respondent appealed both decisions to the
B.C. Supreme Court, seeking relief that included damages. In 2012, while the
appeal was pending, he also filed a complaint with the Human Rights Tribunal,
raising similar allegations of misconduct by the College. In October 2012, the
Tribunal dismissed the respondents complaint on the basis that it was more
appropriately addressed in the context of his appeal.

[8]

In the appeal, the College agreed
to
an order setting aside the decisions of the hearing panel, but there was no
agreement on costs, so the matter went before Gropper J. in March 2014. In
addition to the agreed-upon order to set aside the decisions, the respondent
sought various other orders, including compensation for injury to his dignity
and damages. However, Gropper J. held that she had no jurisdiction to
grant a remedy for breach of the
Human Rights Code
, R.S.B.C. 1996,
c. 20, and she refused to award damages in the context of an appeal that
was in the nature of a judicial review.

[9]

On
September 1, 2015, t
he respondent
commenced the current action,
first naming the Teacher Regulation Branch as the defendant and then naming
only the Province of British Columbia. He sought relief that included compensatory
and punitive damages for misfeasance in public office, defamation, breach
of contract, negligence, and
Charter
damages.

[10]

The Provinces application to strike the respondents claims or to
dismiss them summarily was heard in September 2018. In reasons issued November 1,
2018, indexed as 2018 BCSC 1891, Milman J. issued reasons for judgment
striking or dismissing some of the claims and granting leave to amend the
claims in misfeasance against the College officials and breach of contract
against the Province. The pleading he considered, which was not filed, made three
claims in relation to misfeasance in public office. The first was directed
generally at the College arising from delay, the second at the hearing panel,
and the third at the successor Teacher Regulation Branch (TRB) for failing to
remove archived material from its website.

[11]

The first allegation was pleaded as follows:

The cumulative effect and context
of the Colleges actions opens the inference that the College was aware,
reckless or wilfully blind as to the legality of its conduct and its harmful
effects on Mr. Madadi.

[12]

The court held that
this pleading was not sufficient to make out the
necessary elements of the tort:

[65]       Mr. Madadi does
not plead specifically that the various officials at the College and the TRB
who dealt with his case acted deliberately and unlawfully and that they knew
that their conduct was unlawful and likely to harm him, causing him legally
recoverable damages. Rather, the claim improperly takes the form of an argument.
It invites an inference as to the state of mind of the College as a whole
(but not the TRB), based on the cumulative effect and context of the facts
asserted.

[13]

The second allegation was that the hearing panel members
discriminated against the respondent
based on his place of origin or otherwise displayed a bias against him. The
court
held that this pleading 
could
suffice to make out the first element of deliberate and unlawful conduct as
against them, at least, but added:

[67]       There
is, however, no express allegation that they were aware, constructively or
otherwise, of the fact that their conduct was unlawful and likely to cause
harm, although this appears to be implied. There is also no description of the
legally recoverable damages that are alleged to flow from their misfeasance,
which is problematic because the Decisions themselves have already been set
aside.

[68]
The intended allegation against the hearing panel
members appears to be that, animated by an improper bias reflected in their
reasons, they deliberately and unlawfully imposed a penalty on Mr. Madadi
that was unduly harsh and that in doing so they added an unwarranted extra year
to the delay in reinstating him as a teacher.

[14]

The court then described the remaining
problems with the pleading:

[
69
]

The other facts
supporting the misfeasance claim (i.e., the inordinate delays in the Colleges
investigation and accreditation processes and the TRBs later failure to remove
the archived TC magazine from the website in a timely manner) are alleged
elsewhere to have caused recoverable damages, but they appear to have involved
the acts or omissions of different officials. The claim is silent about their
state of mind. There is, in particular, no allegation, express or implied, that
their conduct was deliberate and unlawful or that they knew, constructively or
otherwise, that their conduct was unlawful and likely to cause harm to Mr. Madadi.

[
70
]

The
claim is also deficient for its failure to name the responsible officials
individually. I appreciate that Mr. Madadi may not know all of their
identities prior to obtaining discovery, but he clearly knows who some of them
are (e.g., the hearing panel members) and could identify others by reference to
what they are alleged to have done or failed to do.

[15]

Despite these deficiencies in the misfeasance claim, Milman J.
granted leave to amend the pleading to allege the missing elements properly
as he considered that the respondent had pleaded particulars that could amount
to misfeasance if bolstered by the missing allegations. This was, however,
subject to his ruling under the summary judgment Rule 9-6(5) (at paras. 7172).

[16]

Justice Milman went on to consider the
misfeasance claim against the Province under Rule 9-6(5), describing the
evidence supporting it as follows:

[121]    In his affidavit, Mr. Madadi
recounts the history of the proceedings until his reinstatement and the effect
of the delays on his career. There is very little evidence in Mr. Madadis
affidavit to support the misfeasance claim.
The only real evidence of
deliberate, unlawful conduct on the part of the responsible College and TRB
officials, apart from the bare fact of the delay itself, is drawn from the
reasons of the hearing panel finding Mr. Madadi guilty of professional
misconduct
.

[122
]

Mr. Madadi
characterizes those reasons as discriminatory, prejudicial and biased (see
the unfiled Further Amended Notice of Civil Claim, Part 3, at para. 6(c)).
The claim alleges (at para. 14 of Part 1) that the hearing panels reasons
fit that description because they contained the following statements:

(a)

Mr. Madadi did
not appear to have the same sense of personal space as people in the North
American culture;

(b)

Mr. Madadi has
been a resident of Canada long enough to know [that the phrase] I pray for
you in this context could be construed as threatening;

(c)

As a long time
resident of Canada, Mr. Madadi ought to have known that the use of the
phrase I pray for you in this context would be construed as threatening; and

(d)

Mr. Madadi was
not considered credible because, among other things, he had a stake in the
outcome of the prosecution against him.

[Emphasis added.]

[17]

Justice Milman found, however, that only
the statements referred to in (b) and (c) were made by the panel. In this
regard, he said this:

[126]     I accept that the panels unnecessary reference to
the length of time that Mr. Madadi had been in Canada, and what he ought
to have known as a result of it, could be argued to evidence a discriminatory
bias against him based on his place of origin, as alleged in the claim.

[18]

He noted, however, that this evidence
related only
to the conduct of the hearing panel itself, and the
remainder of the misfeasance claim relied on the cumulative effect of this
alleged bias coupled with the delays in the investigation and accreditation
processes, the later failure by the TRB to remove the archived edition of TC
magazine, and the inconsistent reasons offered to explain it (at para. 127).
He was not persuaded that these things could realistically be said to
accumulate in that manner for that purpose:

[
128
]

Rather, as the Province
argues, the TRB inherited the liabilities of the College but not necessarily
its motives.
Moreover, the mere fact that the hearing panel may have been
biased against Mr. Madadi based on his place of origin does not
necessarily mean that the same bias permeated the investigation and
accreditation processes within the College, which presumably involved many
other officials
.

[
129
]

The Province has adduced no
evidence to explain the delays. That is unfortunate because they appear to have
been long enough [to] call out for an explanation, particularly given their
foreseeable impact on Mr. Madadis career. Although both sides were
required to put their best foot forward on this application, Mr. Madadi
was not in a position to know, prior to obtaining discovery, what reasons lay
behind the delays. Only the Province could have adduced evidence going to that
issue.

[
130
]

I am not permitted to weigh
the evidence on this application. I can only determine if the evidence adduced
by the parties demonstrates that Mr. Madadis claim has no chance of
success. I find that I am unable to reach that conclusion with respect to the
claim in misfeasance
as it pertains to the conduct of the responsible
officials of the College in respect of the delays
.

[Emphasis
added.]

The claim against the appellants

[19]

In accordance with the leave granted by Milman J., the respondent
filed a Further Amended Notice of Civil Claim on January 11, 2019 (the
Claim). He asserts misfeasance in public office against the Province for the
conduct of several sub-committees of the former College and the three
appellants as members of the disciplinary panel who adjudicated the complaints
against him. The respondents claim against the appellants is based on alleged
unlawful acts relating to the panels reasoning for finding him guilty of
misconduct, the penalty it imposed, and maintaining the proceedings after a
10-year delay:

55.       On November 12, 2010, the Panel found Mr. Madadi
guilty on eight of the twelve instances of alleged misconduct (the Decision).
In finding him guilty, the Panel relied, in part, on the following reasoning:

a.   Mr. Madadi
has been a resident of Canada long enough to know  I pray for you, in
this context, could be construed as threatening; and

b.   As a long
time resident of Canada, Mr. Madadi ought to have known that the use of
the phrase I pray for you in this context would be construed as threatening.

56.       The Panels reference to Mr. Madadis place of
origin or other similar reference was irrelevant to deciding the issue before
it.

57.       The Panels reasoning was abusive, biased,
discriminatory, oppressive, unfair, unreasonable and unlawful.

58.       The Panel knew, was wilfully blind, or was reckless
as to the

a.   illegality
of its reasoning; and

b.   likelihood
of harm to Mr. Madadi, including his inability to work, loss of income,
and psychological distress.

59.       The Panels reasoning was for the purpose of
injuring Mr. Madadi or a similarly improper purpose.

60.       The Panels reasoning was in bad faith.

61.       On June 22, 2011, the Panel imposed on Mr. Madadi
a penalty of 12 months suspension from teaching to commence that day (the
Penalty).

62.       The Panel was aware that Mr. Madadis teaching
certificate had been cancelled since 2005 due to his inadvertent non-payment of
fees.

63.       The Panel had the authority to impose a sentence of
time served on Mr. Madadi, such that he would not serve any further
period of suspension.

64.       The Penalty was abusive, biased, discriminatory,
oppressive, unfair, unreasonable, unduly harsh and unlawful.

65.       The Panel knew, was wilfully blind, or reckless as
to the

a.   illegality
of the Penalty; and

b.   likelihood
of harm to Mr. Madadi, including his inability to work, loss of income,
and psychological distress.

66.       The Panel imposed the Penalty for the purpose of
injuring Mr. Madadi or a similarly improper purpose.

67.       The Panel imposed the Penalty in bad faith.

68.       The ten years that passed from when the last of the
Allegations arose in June 2001 and the disciplinary proceedings finished on
June 22, 2011 was an abuse of power, biased, discriminatory, oppressive,
unfair, unreasonable, and unlawful.

69.       The Panel knew was wilfully blind, or was reckless
as to the

a.   illegality
of maintaining the proceedings in light of the delay; and

b.   likelihood
of harm to Mr. Madadi, including his inability to work, loss of income,
and psychological distress.

70.       The Panel maintained the proceedings for the
purpose of injuring Mr. Madadi or a similarly improper purpose.

71.       The Panel maintained
the proceedings in bad faith.

Adding parties: Rule 6-2(7)

[20]

Rule 6-2(7) provides:

(7)
At any stage of a
proceeding, the court, on application by any person, may, subject to subrules
(9) and (10),

(a)
order that a person cease to be party if that person
is not, or has ceased to be, a proper or necessary party,

(b)
order that a person be added or substituted as a party
if

(i)
that person ought to have been joined as a party, or

(ii)
that person's participation in the proceeding is
necessary to ensure that all matters in the proceeding may be effectually
adjudicated on, and

(c)
order that a person be added as a party if there may
exist, between the person and any party to the proceeding, a question or issue
relating to or connected with

(i)
any relief claimed in the proceeding, or

(ii)
the subject matter of the proceeding

that, in the opinion of the court, it would be just and
convenient to determine as between the person and that party.

[21]

Rule 6-2(7)(b) has been interpreted narrowly, as being concerned with
remedying defects in the proceedings. A plaintiff applicant must establish
either that the proposed defendant ought to have been joined as a party or
that their participation in the proceeding is necessary:
Letvad v. Fenwick
, 2000
BCCA 630 at paras. 1617;
Alexis v. Duncan
, 2015 BCCA 135 at para. 15;
and
Byrd v. Cariboo (Regional District)
, 2016 BCCA 69 at para. 36.

[22]

Rule 6-2(7)(c) is broader and therefore more commonly relied upon. A
plaintiff applicant must establish that there is a question or issue between
the plaintiff and the proposed defendant that relates to or is connected with the
relief, remedy, or subject matter of the proceeding. This threshold is low. It
is generally expressed as establishing a real issue between the parties that is
not frivolous, or that the plaintiff has a possible cause of action against the
proposed defendant:
The Owners, Strata Plan No. VIS3578 v. John A.
Neilson Architects Inc.
, 2010 BCCA 329 at para. 45 [
Neilson
Architects
];
Strata Plan LMS 1816 v. Acastina Investments Ltd.,
2004
BCCA 578 [
Acastina
]; and
MacMillan Bloedel Ltd. v. Binstead et
al.
(1981), 58 B.C.L.R. 173 (C.A.) [
Binstead
]. I would define a
frivolous issue as an issue that does not go to establishing the cause of
action, does not advance a claim known to law, or
serves no useful purpose and would be a waste of the courts
time and public resources. This is similar to the considerations for
determining whether a claim should be struck as unnecessary, scandalous,
frivolous or vexatious under Rule 9-5(1)(b): see, for example,
Nevsun
Resources Ltd. v. Araya
, 2020 SCC 5 at paras. 65, citing in
Willow
v. Chong
, 2013 BCSC 1083 at para. 20.

[23]

This threshold requirement is usually met solely on the basis of the
proposed pleadings, but the parties may provide affidavit evidence addressing
it. If evidence is provided, the court is limited to examining it only to the
extent necessary to determine if the required issue between the parties exists;
it is not to weigh the evidence and assess whether the plaintiff could prove
the allegations:
Neilson Architects
at para. 45, citing
Acastina
and
Binstead
. Whether or not evidence is provided, it is necessary for
the court to examine the pleadings in order to determine whether the plaintiff
has a possible cause of action against the proposed defendants. The pleadings
must set out material facts sufficient to establish a real and not frivolous
issue between the plaintiff and the proposed defendants:
Neilson Architects
at paras. 60, 62, and 75.

[24]

If this requirement is met, the court must next determine whether it
would be just and convenient to decide the issue between the parties in the
proceeding. It is in relation to this issue that evidence is more commonly
provided. This is a discretionary decision, which discretion must be exercised
judicially, and in accordance with the evidence adduced and the guidelines
established in the authorities. In
Letvad
, this court adopted a list of
factors to be considered from
Teal Cedar Products (1977) Ltd. v. Dale
Intermediaries Ltd.
(1996)
,
19 B.C.L.R. (3d) 282 (C.A), a
decision that addressed the amendment of pleadings after the expiry of a
limitation period. These factors include the extent of the delay, the reasons
and any explanation for the delay, the expiry of a limitation period, the
degree of prejudice caused by the delay, and the extent of the connection, if
any, between the existing claims and the proposed new cause of action:
Teal
Cedar
at para. 67;
Letvad
at para. 29; see also
Chouinard
v. OConnor
, 2011 BCCA 161 at para. 21. In the context of adding
parties, the last
Letvad
factor may be more accurately described as the extent
of the connection, if any, between the existing claim and the parties to be
added.

[25]

The existence of a limitation defence is an important factor, as such a
defence is extinguished if the proposed defendant is added:
Limitation Act
,
R.S.B.C. 1996, c. 266, s. 4(1)(d), repealed and replaced with
Limitation
Act
, S.B.C. 2012, c. 13, s. 22(1)(d); and
Anonson v. North
Vancouver (City)
, 2017 BCCA 205 at para. 13
. However, this is not
determinative. In
Neilson Architects
, this court adopted the following approach
to considering a limitation defence (at para. 47):

If it is clear there is an
accrued limitation defence, the question is whether it will nevertheless be
just and convenient to add the party, notwithstanding it will lose that
defence. The answer to that question will emerge from consideration of the
factors set out in
Letvad
.

[26]

These principles were recently reiterated in
Smithe Residences Ltd.
v. 4 Corners Properties Ltd.
, 2020 BCCA 227 at paras. 4951.

The decision below

[27]

The application before the chambers judge was argued on the basis that
the limitation period in respect of the respondents claims had expired in June
2017.

[28]

After setting out the background facts, the chambers judge briefly discussed
the decision of Milman J. granting leave to amend the claims in
misfeasance of public office against the College officials and breach of
contract against the Province:

[15]      In doing so, Mr. Justice
Milman held that Mr. Madadis misfeasance in public office claim against
the College officials, including the allegations pertaining to the disciplinary
panel, was deficiently pleaded but could be amended to properly plead the
missing elements, including naming those whose identity he knows and by identifying
others in reference to what they are alleged to have done or failed to do. Mr. Justice
Milman addressed British Columbias argument that the misfeasance in public
office claim against the College officials, including the allegations
pertaining to the disciplinary panel, had no chance of success but he did not
accede to that argument.

[29]

The judge then described the courts discretion to add parties under
Rule 6‑2(7) as one that should be exercised generously to allow the
effective determination of the issues, without delay, inconvenience or separate
trials unless the allegations are frivolous (at para. 19, quoting
Ipsos
S.A. et al v. Angus Reid et al
, 2005 BCSC 1114 at para. 107). She held
that the necessary overarching assessment, whether under Rule 6-2(7)(b) or (c),
is whether adding the party would be just and convenient, which, in this case,
required a balancing of the prejudice between the party seeking to add the
party and the party who will lose its limitation defence. In such
circumstances, she recognized that the analysis must consider whether the
plaintiff had reasonably explained his delay (at para. 2325).

[30]

The chambers judge rejected the submission of the appellants that the
court could consider the strength of a plaintiffs claim when balancing the
prejudice between the parties. The judge considered this proposition to be
inconsistent with authorities such as
Binstead,

Acastina
,
Wong
v. Spittal,
2018 BCSC 1795, and
Meade v. Armstrong (City),
2011 BCSC
1591. She held that there is no analysis of the merits of the claim to be made
against the proposed defendants so long as the plaintiff can establish the
connection (at para. 30).

[31]

The judge concluded that the circumstances of the case satisfied the
requirements of Rule 6-2(7)(b)(ii) and (c). She found that it was necessary to
add the proposed defendants in order to fully and properly adjudicate the claim
of misfeasance in public office (at para. 33). She also found that the
connection preliminary threshold under Rule 6-2(7)(c) was satisfied (at para. 42).

[32]

In assessing this, she considered there to be a low threshold question
of whether there is a real issue between the plaintiff and the proposed
defendants that is not frivolous, or whether the plaintiff has a possible
cause of action against the proposed party, citing
Neilson Architects.
She recognized that where affidavit evidence was provided to address this
requirement, its role was limited to assisting the court to determine whether a
real issue exists between the parties, and the court is not to weigh the
evidence (at paras. 3536).

[33]

The judge rejected the appellants submission that the claim against
them lacked supporting material facts and therefore did not warrant joinder.
She held that Milman J., in refusing to dismiss the misfeasance claim on
summary judgment, had already determined that if the pleading were amended to
address the deficiencies he identified, it could not be said that there was no
chance of success (at para. 38). She also rejected their argument that the
allegation of discrimination against them cannot amount to unlawful conduct in
the misfeasance claim, as she considered Milman J.s conclusion to remain
applicable:

[39]       Mr. Justice
Milman addressed the allegation of discrimination and held that if other
deficiencies he described in the pleadings were corrected, the allegation of
discrimination could suffice to make out the first element of deliberate and
unlawful conduct as against them, at least (at para. 67 of 2018 BCSC
1891). Mr. Madadi does not plead discrimination as a cause of action
giving rise to a remedy, he pleads discrimination as the unlawfulness
underlying the first and second elements of the tort of misfeasance in public
office. Although the proposed defendants were not before Milman J. and the
filed amended notice of civil claim may be different than the draft amendments
before Milman J., the conclusion Milman J. drew is applicable and I will not
entertain a re-argument of it.

[34]

The chambers judge declined to take into account whether the alleged
discriminatory comments would be satisfactory proof that discriminatory
viewpoints infused the reasoning or the decisions of the proposed defendants
(at para. 40). She also considered that Milman J. determined that
this claim was adequately particularized by pleading that the penalty was
imposed for an improper purpose, namely discrimination.

[35]

Finally, the chambers judge assessed whether it was just and convenient
to add the proposed defendants given that the limitation periods had lapsed.
She was guided by the factors set out in
Letvad
,
describing these at para. 43 of her reasons:

a)

the extent
of the delay in seeking to add the parties;

b)

the
reasons for the delay;

c)

any
explanation to account for the delay;

d)

the degree
of prejudice caused by the delay; and

e)

the extent of the connection, if any, between the existing claims and
the proposed parties or claims.

[36]

In addressing delay, the judge summarized the principles arising from
the jurisprudence as follows (at para. 47):

a)

explanations
should be specific and not contradicted by other evidence in order to amount to
reasonable explanation;

b)

where a
party is represented, delay that is attributable to counsel or based on the
failure to give any or adequate advice is not held against the plaintiff to the
same degree as it would be if the plaintiff was personally responsible for it;

c)

where a
party is self-represented, the court should give consideration to that status;

d)

whether
the delay was tactical is relevant; and

e)

in order for delay to give rise to prejudice, the prejudice must be
associated with the delay.

[37]

She then reviewed the chronology of the proceedings and the respondents
explanation for the delay. She accepted his explanation for the delay up to
June 2014 but found that most of the delay after that was not entirely
explained and so not entirely reasonable (at para. 61). She gave the
respondent some leeway as a self-represented litigant during that period of
time and found that the delay was not tactical. She held that lacking a
reasonable explanation was not an absolute bar to adding a party:

[62]      Lacking a reasonable
explanation is not an absolute bar to adding a party under R. 6-2(7):
Letvad
at paras. 26-28. Demonstrating a reasonable explanation merely creates an
onus related to prejudice. The party opposing the addition can no longer rely
on the presumed prejudice as a result of not being able to mount a limitation
defence; the party has to show actual prejudice:
Neilson
at para. 94.
In any case, both the presumed and actual prejudice must be weighed and
considered as to what is just and convenient, they are not determinative.

[38]

The judge recognized that the loss of the limitation defence presumed
serious prejudice to the appellants. She also considered that the loss of the
chance to argue misfeasance in public office was a serious prejudice to the
respondent. Despite the fact that not all of the respondents delay was
adequately explained, she noted that if added, the appellants would be
defending a case involving a 13-year delay in the College disciplinary process,
none of which was explained, including that in which the proposed defendants
were involved (at para. 65). She discounted the prejudice asserted by the
appellants arising from their lack of recollection of the details of the
proceedings and their inability to rely on their notes, in light of the fact
that the notes had been destroyed long ago in any event, and the respondent had
procured transcripts of the hearings. She did not consider other aspects of actual
prejudice to the appellants to be greatly significant: the death of a College
witness was not central to the allegations of misfeasance, i.e., the intentions
of the proposed defendants, and the illness of one of the proposed defendants could
be accommodated in the trial process. The judge therefore concluded that the
presumed prejudice to the respondent was greater.

[39]

The chambers judge found the strength of the connection between the
parties to be strong, perhaps absolute, in that the claim pertaining to
misfeasance in the hearing portion of the disciplinary process, which is where
the allegation of discrimination is focussed, cannot proceed unless the
proposed defendants are added. She declined to consider the likelihood of
success (at paras. 7273).

[40]

The judge therefore concluded that the balance of prejudice favoured
adding the proposed defendants and that it was just and convenient to do so,
summarizing as follows:

[75]      Mr. Madadis delay is marked but not extensive
when his explanations for much of it are taken into account and considered
against other cases. While it is not completely adequately explained other than
his evidence of health issues and financial constraints, those explanations go
some way and certainly there is no suggestion of tactical or knowing delay.
When viewed in the totality of the timeline from the beginning of the College
proceedings, his delay takes on less significance.

[76]      There is presumed
prejudice to both. I consider the proposed defendants losses of limitation
defences to be less detrimental than the loss of the claim Mr. Madadi has
been trying to pursue over many years despite significant disadvantages.

The standard of review

[41]

A decision whether to add a party to a proceeding is a discretionary one
that is entitled to deference on appeal. This court may interfere only where
the chambers judge misdirected herself, erred in law or principle, failed to
give weight, or sufficient weight, to relevant considerations, or if the result
is so plainly wrong on the facts as to result in an injustice:
Neilson
Architects
at para. 41;
Byrd v. Cariboo (Regional District)
at para. 33;
and
Smithe Residences
at para. 54.

On appeal

[42]

The appellants contend that the chambers judge:

1.

erred in
law in refusing to consider the merits of the plaintiffs proposed claims
against the panel members on the basis that it was impermissible for her to do
so;

2.

erred in
law in holding that the viability of the plaintiffs discrimination claim was
res
judicata
as against the panel members following Milman J.s decision
on the provinces application to strike and dismiss the claim; and

3.

committed
palpable and overriding error in misapprehending the evidence with respect to
both the prejudice to the proposed defendants of the passage of time and the
plaintiffs explanation for his delay.

[43]

I see the first two grounds of appeal as linked to the issue of what the
appellants characterize as the appropriate merits threshold, and its
application. I would characterize the issues on appeal as follows:

1.

What is
the appropriate merits threshold in an application to add parties in
circumstances where a limitation period has expired?

2.

How is the
threshold to be applied to an examination of the pleadings and any evidence
provided?

3.

Did the
chambers judge misdirect herself or make an error in principle in her just and
convenient analysis?

Analysis

1.       The appropriate merits threshold

[44]

The appellants submit that there is a threshold, albeit a low one, for
assessing the merits of a claim in an application to add parties. They also submit
that the merits should take on an increased significance where a limitation
period has expired given that defendants joined to a statute-barred claim lose
their limitation defence. They say the chambers judge erred in concluding that
she was not entitled to consider the merits of the claim against the proposed
defendants.

[45]

I will begin by stating that I consider the appellants reference to a merits
threshold to create some confusion as to what is required in an application to add
parties under Rule 6-2(7)(c). As discussed above, the threshold question is as
described in
Neilson Architects
at para. 45: the plaintiff must
establish that there is a real issue between the parties that is not frivolous,
or a possible cause of action against the proposed defendants. This does not
involve any assessment of the merits of the claim, other than to ensure that
the pleading raises a legal issue in relation to the proposed defendant that is
supported by sufficient material facts.

[46]

Although the appellants accept this definition of the threshold, their
submission in this appeal advocates for some broader assessment of the merits
in cases where a limitation period has expired. They suggest that a plaintiff
in such circumstances should be required to establish that the claim against
the proposed defendants has sufficient merit that depriving them of their
limitations defence is just and convenient. In their factum, they describe a merits
threshold that would require a plaintiff to establish a
prima facie
case, or an air or reality to the pleadings, and that this should inform the
balancing of prejudice in the just and convenient analysis.

[47]

While the appellants submission has some compelling aspects, it does
not accord with the long-standing jurisprudence that does not distinguish
between cases where a limitation period has expired and those where it has not.
The threshold has been described simply as a pre-requisite to the court going
on to consider whether it is just and convenient to add the proposed parties. I
would not be inclined to complicate the analysis by requiring some assessment
of the merits of a claim against proposed defendants as suggested by the
appellants. The law in this province permits a defendant to be added to an
otherwise statute-barred claim where a court determines that it would be just
and convenient to do so. That determination takes into account the prejudice to
a proposed defendant who loses a limitations defence and balances that with the
prejudice to the other party. Such an analysis will be unnecessary where a
plaintiff is unable to establish a real, non-frivolous issue with a proposed
defendant.

[48]

The application in the court below was complicated in some ways due to
the way in which the case was argued. The focus of the parties submissions was
on the just and convenient assessment rather than the specific requirements for
joinder under each of Rule 6-2(7)(b) and (c). The appellants argued, as they
did in this court, that the judge could consider the strength of the
plaintiffs claim when balancing prejudice between the parties. The chambers
judge considered their approach to be inconsistent with the test described in
Binstead
and other cases. She set out the test as follows:

[30]      So long as the plaintiff can establish the
connection, there is no analysis of the merits of the claim to be made against
the proposed defendants. In
Meade
Mr. Justice Dley held that:

[16]

3) In exercising the discretion to add a party, the court
should not concern itself as to whether the action will be successful other
than to be satisfied that there may exist an issue or question between the
applicant and the party being joined.

[49]

The judge was correct to reject the argument that she could assess the strength
of the claim or its chances of success. While this description of the threshold
in
Meade
does not necessarily reflect the jurisprudence requiring a
real, non-frivolous issue, it is apparent in the judges reasons overall that
she recognized the correct description of the threshold as set out in
Neilson
Architects
. She rejected the appellants argument that the pleadings before
her lacked supporting material facts sufficient to warrant joinder, and
concluded that the connection preliminary threshold in Rule 6-2(7)(c) was
satisfied. I will return to her reasons for this conclusion in the next
section.

[50]

The judge also concluded that the circumstances of the application satisfied
Rule 6-2(7)(b). She went on to consider the just and convenient analysis,
holding that exercising discretion under either Rule 6-2(7)(b) or (c) is guided
by a just and convenient analysis and the factors set out in
Letvad
.

[51]

Although the discretion in Rule 6-2(7)(b) is narrower than that in
Rule 6‑2(7)(c), I would agree with the chambers judge that a just
and convenient analysis may be appropriate where a plaintiff has satisfied
either rule. However, where a plaintiff does not satisfy the initial threshold
under Rule 6-2(7)(c), joinder would not likely be justified under
Rule 6-2(7)(b); in those circumstances it would therefore be unnecessary
to balance the prejudice by conducting a just and convenient analysis.

[52]

In any event, it was in the context of the chambers judges assessment
of the
Letvad
factors that she refused to consider the merits of the
claim against the proposed defendants. I see no error in that conclusion. The
only
Letvad
factor that is at all related to the merits is the extent of
the connection between the claim and the proposed new defendants. However, this
only encompasses an examination of the legal and factual connection, not an assessment
of the merits of the claim itself.

[53]

The reasons of the chambers judge demonstrate that she considered the
relevant jurisprudence regarding the threshold required under Rule 6-2(7)(c).
The question is whether she properly examined the respondents claim as set out
in the pleadings before her to assess whether that threshold was met.

2.       Application of the threshold

[54]

As discussed above, the application of the threshold requires an
examination of the pleadings for the purpose of determining whether the claim
sets out material facts sufficient to establish a real and not frivolous issue
between the plaintiff and the proposed defendants. This standard is similar to
that applied to strike a pleading as frivolous, but it is focused on a possible
cause of action against the proposed defendants, and the onus is on the
plaintiff to establish the required connection.

[55]

As I read the chambers judges reasons, she based her conclusion that the
respondent had satisfied the connection preliminary threshold in Rule 6-2(7)(c)
on the following:

·

the appellants did not argue that the pleadings and affidavit evidence
failed to disclose an issue between them and the respondent that relates to the
proceeding (at para. 37);

·

Justice Milman had already determined that if the pleading were
amended to address the deficiencies he identified, it could not be said that
there was no chance of success (at para. 38);

·

the respondent pleaded discrimination as the unlawfulness
underlying the first and second elements of the tort of misfeasance in public
office, and Milman J. had already determined that this allegation could suffice
to make out the first element of the tort, deliberate and unlawful conduct as
against the proposed defendants, at least (at para. 39);

·

she did not consider it appropriate to take into account whether
the alleged discriminatory comments would be satisfactory proof that
discriminatory viewpoints infused the reasoning or the decisions of the
proposed defendants (at para. 40); and

·

Justice Milman determined that the pleading relating to penalty
as misfeasance was adequately particularized as alleging the penalty was
imposed for an improper purpose, namely discrimination (at para. 41).

[56]

The appellants make a forceful submission that the respondents claim
against them fails to meet the non-frivolous standard when the pleadings are
examined, as informed by the evidence. That evidence consists of the reasons of
the panel in respect of the complaints against the respondent and the penalty
they imposed. They say the chambers judge failed to assess either the pleadings
or the evidence and instead considered that Milman J.s conclusions about the
merits of the misfeasance claim were
res judicata
.

[57]

The respondent submits that the appellants argument would require a
weighing of the evidence, and the pleadings as amended allege sufficient
material facts to establish a cause of action in misfeasance. He also submits
that the chambers judge simply agreed with Milman J. in respect of the element
of unlawful conduct, and not the merits more generally.

[58]

I do not agree with the appellants that the chambers judge treated the
conclusions of Milman J. about the merits of the misfeasance claim as
res
judicata
, as she recognized that the parties and pleadings before her were
not the same. She simply found Milman J.s conclusion that the allegation
of discrimination by the panel members could suffice to establish deliberate
and unlawful conduct continued to be applicable.

[59]

However, it is my view that the chambers judge relied too heavily on
Milman J.s conclusions and failed to examine the pleadings before her
with the view of determining whether the claim set out material facts
sufficient to establish a real and not frivolous issue between the respondent
and the appellants. She also failed to examine the evidence before her for the
purpose of determining if the required issue between the parties existed. The
pleadings that were before Milman J. were not before the chambers judge,
and it was necessary for her to examine the Claim before her to assess not only
whether the deficiencies he had identified had been addressed, but also whether
they satisfied the threshold in relation to the proposed defendants. This was
an assessment of the legal and factual basis for the claim against them as
pleaded, and this needed to be done before considering the balance of
prejudice, in accordance with
Neilson Architects
.

[60]

In light of this error, it is necessary for this court to examine the
pleadings, as informed by the evidence, to determine whether the respondent has
established a real, non-frivolous issue between him and the appellants. To do
so, I will first set out the essential elements of the tort of misfeasance in
public office, and then examine the pleadings in relation to those elements, as
informed by the evidence.

Misfeasance in public office

[61]

The tort of misfeasance in a public
office is an intentional tort with two distinguishing elements: (i) deliberate
unlawful conduct in the exercise of a public function; and (ii) awareness
that the conduct is unlawful and likely to injure the plaintiff. In addition to
proving these elements, a plaintiff must prove that the tortious conduct was
the legal cause of his injuries, and that those injuries are compensable in
tort law:
Odhavji
Estate v. Woodhouse
, 2003 SCC 69 at para. 32.

[62]

As I read the Claim, the respondent purports to plead the essential
elements of Category B misfeasance in public office
. As Iacobucci J. explained in
Odhavji
Estate
at paras. 2223,
the tort of misfeasance in a public
office can arise in one of two ways, which he referred to as Category A and
Category B:

Category A involves conduct that is specifically intended to
injure a person or class of persons. Category B involves a public officer who
acts with knowledge both that she or he has no power to do the act complained
of and that the act is likely to injure the plaintiff [T]he two categories merely
represent two different ways in which a public officer can commit the tort
;
in each instance, the
plaintiff must prove each of the torts constituent elements

In
Category B, the plaintiff must prove the two ingredients of the tort
independently of one another. In Category A, the fact that the public officer
has acted for the express purpose of harming the plaintiff is sufficient to
satisfy each ingredient of the tort, owing to the fact that a public officer
does not have the authority to exercise his or her powers for an improper
purpose, such as deliberately harming a member of the public. In each instance,
the tort involves deliberate disregard of official duty coupled with knowledge
that the misconduct is likely to injure the plaintiff.

[63]

This tort has a narrow ambit that requires
an element of bad faith or dishonesty.
The essential question to be
determined is whether the alleged misconduct is unlawful and deliberate. T
he
public officer must deliberately
engage in conduct knowing it to be inconsistent with the obligations of the
office (unlawful) and knowing it
would harm the
plaintiff (deliberate
).
The knowledge element requires a
subjective awareness that harm to the plaintiff is a likely consequence of the
alleged misconduct; at the very least, the defendant must have been
subjectively reckless or wilfully blind to this possibility:
Odhavji
Estate
at para. 38.

[64]

As the court summed up in
Odhavji
Estate
at para. 29:

Liability does not attach to
each officer who blatantly disregards his or her official duty, but only to a
public officer who, in addition, demonstrates a conscious disregard for the
interests of those who will be affected by the misconduct in question.

[65]

The seriousness of a claim for misfeasance of public office was
reiterated by this court in
Rain Coast Water Corp. v. British Columbia
,
2019 BCCA 201:

[3]        
Primarily fact-driven, it serves to remind all concerned that claims for
damages for the misuse of public power by dissatisfied citizens must be
advanced, scrutinized and resolved with caution and restraint. As Justice
Newbury explained in
Powder Mountain Resorts Ltd. v. British Columbia
,
2001 BCCA 619
, the tort of misfeasance in public
office provides redress for egregious intentional misconduct, not for what may
be, at worst, maladministration, official incompetence or bad judgment in the
execution of public duties. For this reason, when addressing claims of
misfeasance in public office, the courts strike a careful balance between
curbing unlawful behaviour by governmental officials, on the one hand, and, on
the other, protecting those charged with making decisions for the public good
from unmeritorious claims by those adversely affected by their decisions.

The respondents claim

[66]

The Claim alleges bad faith against two sub-committees of the former
College and the appellants as panel members in the disciplinary hearing. In
respect of the tort of misfeasance, the claim alleges that the same parties

·

acted unlawfully by breaching statute, natural justice, and
procedural fairness;

·

did so with knowledge, wilful blindness, or recklessness as to
their conducts illegality and the likelihood of harm to the respondent; and

·

acted for an improper purpose,

all of which are stated to be particularized in Part 1.
The claim also alleges that the respondent suffered financial and
psychological losses as a result.

[67]

The particulars of the allegations against the sub-committees relate
primarily to their respective roles in the Colleges delay in maintaining and
prosecuting the allegations of professional misconduct against him. The
particulars in respect of the appellants, reproduced above at para. 19, stem
from the following remarks in the panels reasons for finding him guilty of eight
of the allegations:

a.         Mr. Madadi has been a resident of Canada
long enough to know  I pray for you, in this context, could be
construed as threatening; and

b.         As a long time resident
of Canada, Mr. Madadi ought to have known that the use of the phrase I
pray for you in this context would be construed as threatening.

[68]

As I read the pleading, the essence of the claim against the panel
members is that they deliberately and unlawfully imposed a penalty on the
respondent that was oppressive, unfair, unreasonable and unduly harsh, arising
from biased and discriminatory reasoning in the decision above. The Claim also
alleges that the panels reasoning, the penalty, and maintaining the
proceedings were in bad faith and for the purpose of injuring the respondent.

[69]

The chambers judge rejected the appellants submission that the
allegation of discrimination could not amount to unlawful conduct for Category
B misfeasance and accepted Milman J.s opinion that an allegation that the
panel members discriminated or were otherwise biased against the respondent
could suffice to make out the first element of deliberate and unlawful
conduct. While I agree that such an allegation could suffice, the question
here is whether the material facts pleaded are sufficient to establish all of
the elements of the tort.

[70]

The respondents primary complaint in the Claim stems from the
inordinate delays by officials of the former College in investigating,
prosecuting and determining allegations that arose in 2001. The appellants
role in that delay was to maintain the proceedings and impose a penalty that
extended the respondents suspension from teaching for a further year. There is
no question, as Milman J. observed, that the delays in this case were long
enough to call out for an explanation. However, delay in itself does not equate
to abuse of process or otherwise unlawful conduct; it must be shown to be
unacceptable to the point of oppression that taints the proceedings:
Blencoe
v. British Columbia (Human Rights Commission)
, 2000 SCC 44. This is largely
a factual determination that is not based on the length of the delay alone but
on contextual factors such as the nature and complexity of the proceedings and
whether the respondent caused or waived any of it.

[71]

The tort of misfeasance in public office requires more than a bald
pleading that a public official acted with the intention of harming the
plaintiff. There must be material facts about specific officials and their
specific unlawful purpose in acting as they did. The material facts may lack
detail in the early stages of a proceeding, but it is generally sufficient to
establish a narrow window of opportunity to make out the claim:
Trillium
Power Wind Corporation v. Ontario (Ministry of Natural Resources)
, 2013
ONCA 683 at paras. 5961.

[72]

The Claim sets out the elements of the tort of misfeasance in public
office. The material facts that relate to the appellants include the alleged
discriminatory reasoning described above, maintaining the proceedings in the
context of the overall delay, and imposing a penalty of an additional year of
suspension knowing that the respondents teaching certificate had been
suspended since 2005 for non-payment of fees. In my opinion, these pleaded
facts, taken together with the pleas of knowledge that the conduct was
unlawful, subjective awareness of the consequential harm to the respondent, and
improper purpose, sufficiently plead the tort of misfeasance in public office. With
respect to the harm element, the reasons for penalty indicate that the panel
members considered evidence that the respondent had been working, but it is
clear that he was not working as a teacher. Other than that, the evidence does
not call into question the existence of the pleaded facts.

[73]

While the
respondent may well have further challenges in pursuing this claim, it is my
view that he has established a possible cause of action against the appellants
sufficient to meet the initial threshold under Rule 6-2(7)(c).

3.       The just and convenient analysis

[74]

The appellants primary challenge to the chambers judges just and
convenient analysis is on the basis that her failure to consider the lack of
merit in the claim against them undermined her assessment of the prejudice to
the parties. I have already addressed this aspect of the appellants
submission. I find no error in the judges refusal to consider the likelihood
of success of the claim in her assessment of relative prejudice, and the
appellants do not challenge this. However, they question the judges
determination that there was a strong, perhaps absolute connection between
the claim and the proposed defendants.

[75]

On this point, the judge considered only the legal basis for the claim. While
she ought to have also considered its factual basis, the legal connection is
significant in light of the requirement to name individual public officials
alleged to have committed misfeasance. The purpose for this requirement is to
give those individuals an opportunity to defend themselves against these
serious allegations. As this court stated in
J.P. v. British Columbia
(Children and Family Development)
, 2017 BCCA 308:

[350]    The
tort of misfeasance in public office is an extremely serious claim. Finding
someone liable for such egregious conduct requires, at the very least, that the
individual be a named party in the Notice of Civil Claim so that they may
defend the claim against them. Procedural fairness in our justice system
mandates that an alleged tortfeasor have notice of, and the opportunity to
defend, such a claim, with all of the attendant procedural safeguards to which
a party to a proceeding is entitled.

[76]

Those procedural safeguards include the ability to seek summary
dismissal of a claim that has little likelihood of success.

[77]

The appellants also challenge the chambers judges assessment of
prejudice on the basis that she misapprehended the evidence related to the loss
of the panel members notes of the proceedings and the respondents explanation
for the delay.

[78]

The judge rejected an argument by the appellants that the loss of their
notes was prejudicial given their inability to recall their deliberations in
the course of the hearing. She found that there was no actual prejudice from
the loss of the notes that was due to the delay because the College had
destroyed them long ago and despite the appeal brought by the respondent
alleging the same discriminatory conduct by the appellants. She also found that
transcripts of the proceedings obtained by the respondent would address the
loss of recollection of what occurred during the public portion of the
hearings.

[79]

The appellants submit that this conclusion misapprehends the import of
the combined effect of the delay and the destruction of the notes. First, had
the respondent brought his claim sooner, the appellants say they might not have
needed to refresh their memories. Second, they say that the Colleges practice
of destroying their notes cannot negate the prejudice in losing access to the
best evidence, i.e., the records of their deliberations, which will not
be ameliorated by a review of the transcripts.

[80]

In my view, the judge may have given short shrift to the consequence of
the loss of the notes in the context of the length of the delay, but she did
not misapprehend the evidence.

[81]

The evidence of the appellants regarding the notes they took is
imprecise. They each depose only that they took notes during the hearing. Mr. Nichols
stated that he could not recall specific details about the hearing, or about
delays and the scheduling of the hearing, without referring to notes and
records of the proceeding. More particularly, he deposed that he did not feel
able to completely respond to the allegations against the panel members without
access to his own notes from the hearing. Ms. Kelley also deposed that she
could not recall details of the hearing without her notes and other records of
the proceedings. Mr. McDonald believed he would have taken notes during
the hearing, and would not be able to reconstruct his memories without access
to comprehensive records, including his own notes. None of them knew what the
College did with their notes. Ms. Kelley found some of her notes during a
move in 2011 and destroyed them for privacy reasons.

[82]

Whether or not the notes were destroyed long ago, the evidence
demonstrates that there is some actual prejudice from the loss of the notes.
None of the appellants destroyed notes with any knowledge of litigation against
them personally. That said, the evidence also supports the judges conclusion that
the transcripts would assist to refresh memories of the hearing itself. It is
unknown whether the notes themselves contained any information about the
panels deliberations, but in any event, the fact that transcripts will be
available is a significant factor that reduces the actual prejudice to the
appellants.

[83]

With respect to the delay, the appellants submit that the chambers judge
misapprehended the evidence in finding that the respondent explained his failure
to file this claim until 2015 by his status as a self-represented litigant.
They take particular issue with these passages from the reasons for judgment:

[57]       However, I accept that given his inability to
work during most of the period, and the many years he was under investigation
and disciplinary proceedings, he had experienced loss of income and stress that
interfered with his ability to retain counsel in these proceedings and proceed
without delay.



[60]      In this case, the delay
was not tactical and so how it is viewed should take into account Mr. Madadis
self-representation due to financial constraints and issues with his health.
However, his explanation did not provide specifics of how those issues
prevented him from advancing his case.

[84]

The appellants contend that these findings disregard the fact that the
respondent was represented by counsel when he filed his appeal of the panel
members decisions in 2011 and when he commenced his human rights complaint
against the College in 2012. They say the respondents delay in filing the
civil claim until 2015, whether or not this was tactical, cannot be justified
on the basis that he was not able to retain counsel until 2018, as he was
represented by counsel for a significant part of the limitation period, and
through counsel made other procedural choices. They also say it was an error
for the judge to hold that only the delay from June 2014 had to be explained
because he had been pursuing other remedies until then, and there was no basis
for the judge to conclude that the respondent had significant disadvantages
in trying to pursue the civil claim.

[85]

I appreciate that the respondent made different choices when he was
represented by counsel. However, his attempts to obtain compensation or damages
were unsuccessful. The Human Rights Tribunal summarily dismissed his complaint
because it considered the matter more appropriately dealt with in his statutory
appeal. In the appeal, Gropper J. refused to award compensation or damages
given the nature of the proceeding before her. His civil claim is another
attempt to obtain some kind of monetary compensation. I see no basis to
interfere with the judges consideration of the respondent being
self-represented from 2014 to 2018. Nor do I see a basis to interfere with her
conclusion that the respondent had been trying to pursue this claim over many
years despite significant disadvantages. She accepted the evidence that he
had been unable to work for a period of time (without attributing the cause)
and had experienced loss of income and stress that interfered with his ability
to retain counsel.

[86]

Most importantly in my view, the judge recognized that the respondent
did little to advance his claim between 2015 and 2018, when he finally retained
counsel, and the entire delay was not entirely explained and therefore not
entirely reasonable (at para. 61). She also recognized that lacking a
reasonable explanation is not an absolute bar to joinder, as demonstrating a
reasonable explanation simply results in the opposing party being required to
show actual prejudice, and in any event both presumed and actual prejudice must
be weighed (at para. 62). Finally, the judge accepted that the loss of the
limitation defence in this case was serious, presumed prejudice. In balancing
the prejudice between the parties, she made no error in principle that would
call into question her exercise of discretion.

[87]

Therefore, I see no basis to interfere with the chambers judges assessment
that it was just and convenient to add the proposed defendants to the claim.

[88]

For all of these reasons, I would dismiss the appeal.

The Honourable Madam Justice Fisher

I AGREE:

The Honourable Madam Justice
Dickson

I AGREE:

The Honourable Mr. Justice
Voith

Appendix  Further amended Notice of
Civil Claim

Material facts pleaded in
relation to the appellants
:

55.       On November 12, 2010, the Panel found Mr. Madadi
guilty on eight of the twelve instances of alleged misconduct (the Decision).
In finding him guilty, the Panel relied, in part, on the following reasoning:

a.         Mr. Madadi has
been a resident of Canada long enough to know  I pray for you, in this
context, could be construed as threatening; and

b.         As a long time resident
of Canada, Mr. Madadi ought to have known that the use of the phrase I
pray for you in this context would be construed as threatening.

56.       The Panels reference to Mr. Madadis place of
origin or other similar reference was irrelevant to deciding the issue before
it.

57.       The Panels reasoning was abusive, biased,
discriminatory, oppressive, unfair, unreasonable and unlawful.

58.       The Panel knew, was wilfully blind, or was reckless
as to the

a.         illegality of its
reasoning; and

b.         likelihood of harm to Mr. Madadi,
including his inability to work, loss of income, and psychological distress.

59.       The Panels reasoning was for the purpose of
injuring Mr. Madadi or a similarly improper purpose.

60.       The Panels reasoning was in bad faith.

61.       On June 22, 2011, the Panel imposed on Mr. Madadi
a penalty of 12 months suspension from teaching to commence that day (the
Penalty).

62.       The Panel was aware that Mr. Madadis teaching
certificate had been cancelled since 2005 due to his inadvertent non-payment of
fees.

63.       The Panel had the authority to impose a sentence of
time served on Mr. Madadi, such that he would not serve any further
period of suspension.

64.       The Penalty was abusive, biased, discriminatory,
oppressive, unfair, unreasonable, unduly harsh and unlawful.

65.       The Panel knew, was wilfully blind, or reckless as
to the

a.         illegality of the
Penalty; and

b.         likelihood of harm to Mr. Madadi,
including his inability to work, loss of income, and psychological distress.

66.       The Panel imposed the Penalty for the purpose of
injuring Mr. Madadi or a similarly improper purpose.

67.       The Panel imposed the Penalty in bad faith.

68.       The ten years that passed from when the last of the
Allegations arose in June 2001 and the disciplinary proceedings finished on
June 22, 2011 was an abuse of power, biased, discriminatory, oppressive,
unfair, unreasonable, and unlawful.

69.       The Panel knew was wilfully blind, or was reckless
as to the

a.         illegality of
maintaining the proceedings in light of the delay; and

b.         likelihood of harm to Mr. Madadi,
including his inability to work, loss of income, and psychological distress.

70.       The Panel maintained the proceedings for the
purpose of injuring Mr. Madadi or a similarly improper purpose.

71.       The Panel maintained
the proceedings in bad faith.

Legal basis pleaded in
relation to the appellants
:

1. Statutory Immunity and Bad Faith

1. Pursuant to section 87 of the
TPA
, the Province is
liable for the wrongful actions of the College, its employees, agents and
committees.

2. Section 42(1) of the
Teaching Profession Act
immunizes the College, its employees, agents, committees, and the Province from
claims for damages while acting in good faith. Proving bad faith is a threshold
requirement a plaintiff must meet before proceedings to the merits of a cause
of action.

3. Bad faith includes dishonesty, fraud, bias, conflict of
interest, discrimination, abuse of power, corruption, oppression, unfairness
and unreasonable conduct (
MacMillan v Galiano. [1995] BCJ No 1763 at paras
153-4
)).

4. Undue delay may amount to oppression or abuse of process (
Blencoe
v British Columbia. 2000 SCC 44, paras 102, 105-6, 113, 115, 121 and 122
[Blencoe]
).

5. PlSC, FISC, and the Panel acted in bad faith in their
dealings with Mr. Madadi as particularized in Part 1 of this Notice of
Civil Claim.

2. Misfeasance in Public Office

6. Misfeasance in public office may occur under Category A or
Category B of the tort. Category A occurs when a public officer 1) engages in
deliberate and unlawful conduct, and 2) is aware the conduct was unlawful and
likely to harm the plaintiff. Category B occurs when a public officer acts for
an improper purpose.

7. Subjective recklessness or wilful blindness will satisfy
the subjective mental elements of the tort (
Odhavji Estate v Woodhouse. 2003
SCC 69 at paras 23  24, and 38
).

8. Unlawful conduct includes breaching statute, natural
justice rights, and procedural fairness.

9. PlSC, FISC, and the Panel were administrative bodies that
owed duties of natural justice and procedural fairness to Mr. Madadi.
Those duties included duties of fair, timely, and lawful treatment of Mr. Madadi.

10. PlSC, FISC, and the Panel were under statutory duties,
including pursuant to the
TPA
, Bylaws, and
Human Rights Code
, [RSBC
1996] c. 210, to treat Mr. Madadi in a fair, timely, and lawful
manner.

11. PlSC, FISC, and the Panel acted unlawfully by breaching
statute, natural justice, and procedural fairness as particularized in Part 1
of this Notice of Civil Claim.

12. PlSC, FISC, and the Panel knowingly, willfully blindly,
or recklessly engaged in unlawful conduct with knowledge, wilful blindness, or
recklessness as to of their conducts illegality and the likelihood of harm to Mr. Madadi,
as particularized in Part 1 of this Notice of Civil Claim.

13. PlSC, FISC, and the Panel acted for an improper purpose
toward Mr. Madadi, as particularized in Part 1 of this Notice of Civil
Claim.

14. Mr. Madadi has suffered
financial and psychological losses as a result.


