



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Leonard v. The Manufacturers Life Insurance
Company,









2020 BCCA 5




Date: 20200106

Dockets:
CA43565; CA46063; CA46065

Dockets: CA43565; CA46065

Between:

Francoise Leonard
and Leanne Ranniger

Appellants

(Plaintiffs)

And

The Manufacturers
Life Insurance Company,
Manulife Financial Corporation,
Benesure Canada Inc., Broker Support Centre Inc.,
Credit Security Insurance Agency, Tacamor Holdings Inc.,
Davis + Henderson Limited Partnership and John F. Lorriman

Respondents

(Defendants)

- and -

Docket: CA46063

Between:

Francoise Leonard
and Leanne Ranniger

Respondents

(Plaintiffs)

And

The Manufacturers
Life Insurance Company,
Manulife Financial Corporation,
Benesure Canada Inc., Broker Support Centre Inc.,
Credit Security Insurance Agency,

Appellants

(Defendants)

Tacamor
Holdings Inc.,
Davis + Henderson Limited Partnership and John F. Lorriman

Respondents

(Defendants)

SEALED
IN PART




Before:



The Honourable Madam Justice Saunders

The Honourable Mr. Justice Harris

The Honourable Madam Justice Dickson




Re:  An
application to vary an order of the Court of Appeal for British Columbia,
dated October 19, 2019 (
Leonard v. The Manufacturers Life
Insurance Company
,
2019 BCCA 375).




Counsel for the Appellants:



R.W. Cooper, Q.C.
B.W. Lemer





Counsel for the Respondents, The Manufacturers Life
  Insurance Company, Manulife Financial Corporation, Benesure Canada Inc.,
  Broker Support Centre Inc., and Credit Security Insurance Agency:



D.G. Cowper, Q.C.
T.A. Posyniak
S. Irving





Counsel for the Respondent, Davis + Henderson
  Limited Partnership:



A.L. Crimeni





Counsel for the Respondent, John F. Lorriman:



G.D. Henry





Counsel for the Intervenors, in the Ehouzou Action
  and the Benmouffok Action:



C. Lévesque





Counsel for the Proposed Intervenor, Tim Stringer:



E.F.A. Merchant
I.S. Brar





Place and date of Hearing in Chambers:



Vancouver, British
  Columbia

October 16, 2019





Place and date of Judgment in Chambers:



Vancouver, British
  Columbia

October 18, 2019





Notice of Motion Received from Counsel for the Proposed
  Intervenor, Tim Stringer:



November 6, 2019





Written Submissions Received from Counsel for the Proposed
  Intervenor, Tim Stringer:



November 21, 2019
November 28, 2019
November 29, 2019
December 5, 2019
December 16, 2019





Written Submissions Received from Counsel for the
  Intervenors, in the Ehouzou Action and the Benmouffok Action:



November 26, 2019





Written Submissions Received from Counsel for the
  Respondents, The Manufacturers Life Insurance Company, Manulife Financial
  Corporation, Benesure Canada Inc., Broker Support Centre Inc., and
  Credit Security Insurance Agency:



November 27, 2019
December 2, 2019
December 11, 2019





Place and Date of Decision:



Vancouver, British
  Columbia
January 6, 2020











Written Reasons by:





The Honourable Mr. Justice Harris





Concurred in by:





The Honourable Madam Justice Saunders

The Honourable Madam Justice Dickson








Summary:

This was an application to
extend the time to apply to vary the order of a single justice of the Court of
Appeal. Held: Application dismissed.

Reasons for Judgment of the Honourable
Mr. Justice Harris:

[1]

Mr. Stringer applies to review and vary an order of Justice Abrioux
insofar as it relates to costs. As this matter arose at about the time this
Court was dealing with the substantive appeals in these proceedings, we
instructed the parties that we would deal with it on the basis of written
submissions.

[2]

In order to apply to vary the order, Mr. Stringer first needs an
order extending the time to make his application. The application to extend
time was filed November 6, 2019. Justice Abriouxs order was
pronounced on October 18, 2019. Justice Abrioux delivered Oral
Reasons for Judgment, including an order for costs, after hearing submissions
of counsel. The deadline for applying to vary Justice Abriouxs order was
October 25, 2019. The oral reasons were posted on the Court of Appeal
website on October 28, 2019. The application to vary Justice
Abriouxs order was filed some 12 days late.

[3]

The application before Justice Abrioux was filed on
October 7, 2019. Mr. Stringer sought the following orders:

a)       that the time limit for
applying for intervenor status is extended;

b)       that he is granted leave to
intervene, file a factum of up to 20 pages, and make oral submissions at
the hearing of the appeals;

c)        that he is permitted to
adduce additional evidence on appeal; and

d)       that no costs be made in
favour of, or against him, in respect of this application or the appeal itself.

[4]

It will be apparent that the application before us is the second
application within a short period of time seeking to extend the time to make an
application.

[5]

Mr. Stringers application to intervene in the appeals should have
been filed by August 14, 2019. As noted, it was filed October 7, 2019.
Justice Abrioux dismissed the application to extend time. I set out the
operative part of his judgment:

[37]      I do not accept Mr. Stringers submission that
the parties failed to give him notice of the proceedings before Grauer J., as
required by ss. 2(2)(b) and 3.1 of the
Class Proceedings Act
. This
was the same argument rejected by Grauer J. in relation to the
Ehouzou
and
Benmouffok
plaintiffs on February 15, 2019, based on his
prior order approving the method of disseminating notice through nation-wide
advertisement in the
National Post: Leonard v. The Manufacturers Life
Insurance Co.
(February 15, 2019) Vancouver Docket S131263
at paras. 6‑7. In my view, Mr. Stringer received the same
notice as the
Ehouzou
and
Benmouffok
plaintiffs.

[38]      Based on the following, I also find that Mr. Stringer
was notified of the proceedings before this court. I am mindful of the evidence
adduced by the Manulife Defendants and Mr. Lévesque, on behalf of the
Ehouzou
and
Benmouffok
plaintiffs, regarding the alleged lack of notice now
being advanced on Mr. Stringers behalf by his counsel. This includes:

(a) in an email dated March 14, 2019, Mr. Merchant,
on behalf of Mr. Stringer, requested a fee‑sharing arrangement with Mr. Lévesque
to work together as
intervenors
in these appeals;

(b) in an email dated May 15, 2019, an email was
sent to Mr. Merchant by counsel for the Manulife Defendants, which
informed him that the decision of Grauer J. had been appealed to this
court and provided copies of the filed notices of appeal;

(c) in another email, dated June 18, 2019, Mr. Merchant
informs Mr. Lévesque that he cannot be in Vancouver on July 8. That
date is in reference to Mr. Lévesques application for intervenor status
in these appeals before Savage J.A. on July 8, 2019;

(d) Mr. Merchant sent a further email on July 16, 2019
to counsel for the Manulife Defendants stating: I have not heard what the
outcome was on July 8. If he (i.e. Mr. Lévesque)
got
intervener status

he thinks it is important to him
and he will feel
strengthened.

[Emphasis added by Justice Abrioux.]

[39]      These communications establish that Mr. Stringer,
through his counsel, Mr. Merchant, was aware of the appeals well before
the deadline to apply for intervenor status on August 14, 2019.

[40]      During the hearing of this application, counsel for
Mr. Stringer conceded that counsel was aware as of the end of July 2019
that the deadline to apply for intervenor status was August 14, 2019.
Similarly, counsel conceded that while Mr. Stringer did not receive formal
notice of the proceedings before Grauer J. or the proceedings at issue in
this court, informally he was aware and chose not to apply to intervene for
reasons he could not disclose.

[41]      There is an abundance of evidence on the record on
this application to confirm this concession. In fact, in that regard, I accept
the description offered by counsel for the Manulife Defendants that, since at
least the application before Truscott J. in 2015, Mr. Stringer,
through his counsel Mr. Merchant, has been shadowing the proceedings in
British Columbia, including those pertaining to these appeals.

[42]      Based on these circumstances, the application for
an extension of time to apply for intervenor status is denied. A late
application for leave to intervene should be denied if it makes it impossible
for the parties to address the matters sought to be raised by the intervenor:
Saulteau
First Nations v. British Columbia (Oil & Gas Commission)
, 2004 BCCA 240
at para. 8. The timing of the application is a factor to be
considered. In
Saulteau
, as is the case here, the application was
brought shortly before the date fixed for the hearing of the appeal. In
contrast, late applications for intervenor status have been allowed where the
delay was inadvertent and the proposed intervenor always expressed its
intention to intervene:
FortisBC Inc. v. Shaw Cablesystems Ltd.
, 2010 BCCA 606.
Quite the opposite occurred in this case.

[43]      Simply put, there has
been no persuasive rationale advanced by Mr. Stringer to explain the delay
for bringing this application; in particular, the materials filed in support of
the application are, in my view, inadequate to support the relief sought.

[6]

Justice Abrioux went on to explain that he would have dismissed the
other applications in any event of his refusal to extend time. He observed that
the proposed intervention would raise a new issue that could result in the
adjournment of the appeals. In dismissing the application to adduce fresh
evidence, Justice Abrioux commented:

[51]      In my view, contrary to
what is set out in his memorandum of argument, it is clear that Mr. Stringer
was aware of the application before Truscott J., had notice of the application
before Grauer J., was aware of the proceedings in this court, and has
waited until the eve of the hearing of these appeals before seeking leave to
intervene and an order permitting him to adduce fresh evidence on appeal. There
is also no mention of what fresh evidence Mr. Stringer would seek leave to
adduce at the hearing of the appeals. For these reasons, I would also deny
making an order permitting Mr. Stringer to adduce evidence.

[7]

Justice Abrioux engaged in a discussion with counsel about costs before
ruling:

[54]
ABRIOUX J.A.
: Costs may be awarded for or
against intervenors, although courts take a restrained approach with costs in
this regard:
Faculty Association of the University of British Columbia v.
University of British Columbia
, 2009 BCCA 56 at paras. 45.

[55]      In my view, the
respondents who filed materials and/or addressed the Court at the hearing of
the applications, including Mr. Lévesques clients, are entitled to their
costs from Mr. Stringer. I make that order.

[8]

Mr. Stringer intends to argue on his variation application, if time
were extended, that Justice Abrioux erred in principle in awarding costs in the
face of the prohibition in the
Class Proceedings Act
, R.S.B.C. 1996,
c. 50, set out in s. 37:

37

(1)
Subject
to this section,
neither
the Supreme Court nor
the Court of Appeal
may
award costs
to any party
to an application for certification under
section 2 (2) or 3, to any party to a class proceeding or
to
any party to an appeal
arising from a class proceeding
at any stage of
the application
, proceeding or
appeal
.

(2)
A court referred to in subsection (1) may only
award costs to a party in respect of an application for certification or in
respect of all or any part of a class proceeding or an appeal from a class proceeding

(a)
at any time that the court considers that there has
been vexatious, frivolous or abusive conduct on the part of any party,

(b)
at any time that the court considers that an improper
or unnecessary application or other step has been made or taken for the purpose
of delay or increasing costs or for any other improper purpose, or

(c)
at any time that the court considers that there are
exceptional circumstances that make it unjust to deprive the successful party
of costs.

(3)
A court that orders costs under subsection (2) may
order that those costs be assessed in any manner that the court considers
appropriate.

(4)
Class members, other than the person appointed as
representative plaintiff for the class, are not liable for costs except with
respect to the determination of their own individual claims.

[Emphasis added.]

[9]

The test to extend time is well known. The following factors guide the
analysis:

1)       Was there a bona fide
intention to appeal?

2)       When were the respondents
informed of the intention?

3)       Would the respondents be
unduly prejudiced by an extension of time?

4)       Is there merit in the
appeal?

5)       Is it in the interest of
justice that an extension be granted?

[10]

The decisive factor is whether it is in the interests of justice to
grant the extension: see
First Majestic Silver Corp. v. Santos
, 2014 BCCA 214
at para. 57.

[11]

Mr. Stringer contends that when the oral reasons were pronounced,
Justice Abrioux did not specify the particulars or indicate to whom costs were
to be awarded. He says there was a lack of clarity on the costs issue. He
contends that in one sense the order in question was made on October 18.
On the other hand, in the absence of the written reasons, and given the
uncertainty as to the nature of the costs order, Mr. Stringer was not in a
position to know until after October 28 whether there was any need to
apply to vary the same. He then goes on to suggest that the intention to
appeal was crystallized very shortly after receiving the written reasons. Other
parties were advised of the intention to apply to extend time on November 5, 2019
which was, he says, at minimum eight days after the release of the decision,
and at most 18 [sic] days after the oral pronouncement of the decision. He
contends that the delay is
de

minimus
and that the hearing
of this application has had no impact on nor caused any delay of the appeal
proper. Finally, he argues that the issue on the proposed variation application
is meritorious because s. 37 clearly establishes a no‑costs regime
applicable to the application.

[12]

I am unable to accede to the submissions and for the following reasons
would dismiss the application to extend time.

[13]

In the first instance, it is clear that the order is pronounced when it
is made. Time began to run from October 18, 2019. At the conclusion
of the reasons dismissing the applications, counsel made submissions about
costs. It is clear that those submissions referred to the costs regime
established by the
Class Proceedings Act
.

[14]

It seems clear to me that Mr. Stringer was aware from October 18, 2019
that he was subject to a costs award. Moreover, he had submitted that no costs
could be awarded to any party by virtue of s. 37 of the
Class
Proceedings Act
. In the circumstances, I do not think that any adequate
explanation of the delay has been offered. The suggestion that he was in no
position to evaluate his appeal rights is without merit, and ignores the fact
that he did not file his application within the time stipulated even assuming
time began to run when the oral reasons as transcribed were posted on the
website.

[15]

Secondly, I am not persuaded that the proposed application has merit.
The Court does not lightly interfere with a discretionary decision. It is
uncontroversial that the standard of review on an application to discharge or
vary a discretionary decision requires a demonstration that there has been an
error in principle or the justice was wrong in the legal sense or the justice
misconceived the facts or relevant information was not brought to the justices
attention. I am not persuaded that the applicant has any reasonable prospect of
persuading a division that Justice Abrioux erred in the manner described.

[16]

The implications of s. 37 were argued before the justice. That
section contains exceptions to the general prohibition against awarding costs.
Assuming, without deciding, that the section applies to the application before
Justice Abrioux, a number of exceptions to it are set out in ss. 37(2). On
my review of the record and the reasons for judgment, it is apparent that the
order of costs is supportable under those exceptions. The reasons for judgment
comment extensively on counsels conduct in asserting a lack of notice and
expressly reject that assertion.

[17]

Justices are presumed to know the law. Given that the implications of s .37
were argued and a ruling made immediately thereafter, it must be accepted that
the justice did not overlook s. 37. Since an application to vary is an
application, in this case, to discharge or set aside the order it would need to
be demonstrated that it was necessarily an error in principle to make it. This
is the only plausible basis to attack the order. As I have said, I think the
order is supportable as a result of the combined effect of the principle the
justice expressly referred to and the exceptions to s. 37(1).

[18]

In my view, it is not in the interests of justice to extend time to
apply to vary the order. This results from an absence of a satisfactory
explanation for the delay in filing the application and the lack of merit in
the proposed application to vary.

[19]

I would dismiss the application to extend the time to file the
application.

The Honourable Mr. Justice Harris

I agree:

The Honourable Madam Justice Saunders

I agree:

The Honourable Madam Justice Dickson


