



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Speckling 
          v. Communications, Energy and  Paperworkers' Union of Canada (Local 
          76),







2008 
          BCCA 1



Date: 20080102

Docket: CA035357

Between:

Walter 
    Speckling

Appellant

(
Plaintiff
)

And

Local 
    76 of the Communications, Energy and Paperworkers' Union of Canada, Communications, 
    Energy and Paperworkers' Union of Canada, Michael Verdiel, Clark Banks, John 
    Belrose, Grant Campbell, Marvin Coe, Jerome Desilets, Ron Gordey, Gary Jackson, 
    Doug Long, George Orchiston, Joe Osmond, Harry Raimondo, Bill Spence, Ian 
    Thompson, Mike Vallee, Dave Wainwright, Brad Wilson, Dave Coles, Rolf Nielsen, 
    Brian Payne, Fred Pomeroy, and others yet unknown

Respondents

(
Defendants
)




Before:


The 
          Honourable Madam Justice Kirkpatrick




(In 
          Chambers)








B. 
          Speckling


Counsel for the Appellant




J. 
          Mistry


Counsel for the Respondents,

Local 76 of the Communications, Energy and Paperworkers' 
          Union of Canada, Michael Verdiel, Clark Banks, John Belrose, Grant Campbell, 
          Marvin Coe, Jerome Desilets, Ron Gordey,

Gary Jackson, Doug Long, George Orchiston, Joe Osmond, 
          Harry Raimondo, Bill Spence,

Ian Thompson, Mike Vallee, Dave Wainwright, and Brad 
          Wilson




Place 
          and Date of Hearing:


Vancouver, British Columbia




14 December 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




2 January 2008














Reasons 
    for Judgment of the Honourable Madam Justice Kirkpatrick:

[1]

The respondents (other than Communications, 
    Energy and Paperworkers' Union of Canada, Dave Coles, Brian Payne and Fred 
    Pomeroy) apply pursuant to s. 24 of the
Court of Appeal Act
, 
    R.S.B.C. 1996, c. 77 and Rule 33 of the
Court of Appeal Rules
, 
    B.C. Reg. 297/2001 for an order that the respondents be granted security for 
    costs and for an order that these proceedings be stayed pending the posting 
    of security for costs.

[2]

The underlying appeal is from the order 
    of the Supreme Court that allowed the application of the defendant, Local 
    76 of the Communications, Energy and Paperworkers' Union of Canada (the "Union"), 
    that the plaintiff's action be dismissed as an abuse of process pursuant to 
    Supreme Court Rule 19 (24)(d).  The reasons of the chambers judge may 
    be found at 2007 BCSC 1016.  Those reasons fully set out the protracted 
    and entangled history of these and other proceedings that involve both Mr. 
    Speckling and his brother, Bernardus Speckling.

[3]

The underlying dispute in this appeal 
    arises from charges that Walter Speckling filed against members of the executive 
    of the Union in September 1999.  In response, members of the Union's 
    executive board charged Walter Speckling with laying frivolous and vexatious 
    charges.  A disciplinary hearing was held.  The disciplinary board 
    found that Mr. Speckling's charges against the Union were unfounded.  
    Mr. Speckling was suspended from the Union for six months and fined $1,000.  
    When Mr. Speckling did not pay the fine, he ceased to be a member in good 
    standing of the Union.  The Union demanded that the employer dismiss 
    Mr. Speckling pursuant to a union security clause.  The employer's position 
    was that it would not discharge Mr. Speckling until any appeal by him under 
    the Union's constitution was heard.  The Union filed a grievance against 
    the employer's position.  Prior to arbitration, the employer agreed to 
    discharge Mr. Speckling.  In May 2000, the employer terminated Mr. Speckling's 
    employment because he had not reinstated himself as a member in good standing 
    of the Union.  Mr. Speckling grieved his discharge under s. 12 of the
Labour Relations Code
on the basis that the employer did not 
    have just cause for his termination.

[4]

Mr. Speckling's brother, Bernardus Speckling, 
    also brought a s. 12 complaint against the Union after his employment was 
    terminated.

[5]

Following a 16-day hearing, on 9 October 
    2003, the Labour Relations Board dismissed Mr. Speckling's s. 12 complaint.  
    On the same day, the Board issued two other decisions that dealt with procedural 
    and evidentiary issues raised before the Board during proceedings concerning 
    both Mr. Speckling and his brother, Bernardus Speckling.

[6]

Both Walter Speckling and Berdardus 
    Speckling applied for leave to have their s. 12 complaints reconsidered.  
    The reconsideration panel denied leave for reconsideration.  Walter Speckling 
    applied for a judicial review of the Board's decision.  A judge of the 
    Supreme Court denied that application (2006 BCSC 285).  That decision 
    was upheld on appeal (2007 BCCA 153, 66 B.C.L.R. (4
th
) 287).

[7]

In concurrent proceedings, Bernardus 
    Speckling commenced an action against the Union on the basis of conspiracy, 
    breach of fiduciary duty and intentional interference with contractual relations.  
    Bernardus Speckling brought an application in the Supreme Court for a declaration 
    that he was a member in good standing of the local and national unions and 
    that the Labour Relations Board did not have jurisdiction over the tort claims 
    he was advancing.  The defendants cross-applied for an order striking 
    the plaintiff's statement of claim pursuant to Rule 19(24)(a).  The chambers 
    judge concluded that the essential character of the claim set out in the statement 
    of claim fell within the exclusive jurisdiction of the Labour Relations Board 
    pursuant to the provisions of the
Code
and declined jurisdiction.  
    That decision was appealed to this Court.  At paras. 43-45 of her reasons 
    (2006 BCCA 203, 54 B.C.L.R. (4
th
) 88), Madam Justice Southin held:

Is it an "abuse of process" to bring an action alleging one 
    is a member in good standing of a union, if one has brought and failed in 
    an application under s. 12 of the
Labour Relations Code
, 
    in which the allegations are essentially the same as in the statement of claim?

I have previously set out a number of sections of the
Labour Relations 
    Code
relied upon by the respondent Local 76.  I do not find it 
    necessary to decide whether any or all of those sections would prevent the 
    court from entertaining the appellant's action.  At its highest, his 
    right was to choose a forum:  either the Labour Relations Board or the 
    court.  When a litigant has a choice of forum, by choosing one forum, 
    he elects, in my opinion, to accept the decision of that forum as concluding 
    the issues.

Having compared the assertions or allegations made by the plaintiff in 
    his application under s. 12 and the powers of the Labour Relations Board 
    on such applications with the statement of claim, including the prayer for 
    relief, in this action, I am of the opinion that the central issues are essentially 
    the same in both, and that being so, this action may be dismissed as an abuse 
    of process.

[8]

Leave to appeal that decision to the 
    Supreme Court of Canada was refused ([2006] S.C.C.A. No. 247 (QL)).

[9]

On 21 May 2002, Walter Speckling filed 
    a writ of summons and statement of claim, which was amended on 25 August 2006.  
    The defendants include Union members who were on the executive of the Union, 
    or who held other positions in the Union at the time when Mr. Speckling's 
    grievance first arose.   In that action, Mr. Speckling sought various 
    declarations relating to the decisions taken against him by the Union as well 
    as damages for conspiracy, breach of fiduciary duty, intentional interference 
    with contractual relations and breach of contract.

[10]

On 27 July 2007, the chambers judge 
    in the within litigation concluded that he was bound by the decision of this 
    Court in the case involving Bernardus Speckling, in which Madam Justice Southin 
    found that the central issues in the s. 12 complaint and Bernardus Speckling's 
    statement of claim were essentially the same.  He therefore struck Walter 
    Speckling's statement of claim as an abuse of process under Rule 19(24)(d).

Security for costs

[11]

In an application for security for costs 
    of the appeal, the "ultimate question" is whether the order would 
    be in the interests of justice.  The case law identifies four relevant 
    considerations:

(i)         
    the appellant's financial means;

(ii)        
    the merits of the appeal;

(iii)       
    the timeliness of the application; and

(iv)       
    whether costs will be readily recoverable (see
Lu v. Mau
, 2006 
    BCCA 560 (in Chambers)).

[12]

The onus is on the appellant to show 
    that it is in the interests of justice that security for costs not be ordered.   
    The appellant must demonstrate that he will not be able to prosecute the appeal 
    if ordered to secure the respondents' costs.  Further, there is a presumption 
    in favour of granting security for costs if there is a serious question as 
    to whether recovery may be difficult (see
Edwards (Guardian ad litem 
    of) v. Moran
, 2003 BCCA 443, 186 B.C.A.C. 31 (in Chambers) and
Sangha 
    v. Azevedo
, 2005 BCCA 125 (in Chambers)).

[13]

Walter Speckling filed no affidavit 
    evidence to show that it is in the interests of justice that security for 
    costs not be ordered.  His brother, Bernardus Speckling, appeared on 
    his behalf on the application for security for costs.  The only evidence 
    proffered by Walter Speckling, if it may be called that, were photocopies 
    of e-mail exchanges and correspondence with the Union and certain of the respondents 
    handed to the Court during the hearing.  Bernardus Speckling submitted 
    that this "evidence" belies the Union's allegation that it will 
    have difficulty recovering costs in the event that Mr. Speckling's appeal 
    fails.

[14]

I turn to the four relevant considerations.

[15]

As I have indicated, there is no affidavit 
    evidence before the Court as to Mr. Speckling's financial means.  It 
    appears, and the Union does not say otherwise, that Mr. Speckling has paid 
    the employer $5,000 in respect of the judicial review hearing.

[16]

Attached to the affidavit of the Union's 
    lawyer, was a letter dated 20 July 2006 addressed to Mr. Speckling which enclosed 
    a draft bill of costs.  The total fees and disbursements claimed in the 
    draft bill were approximately $9,230.  In the letter, the Union asked 
    that Mr. Speckling advise them as to any disagreement he had with the bill 
    by 12 August 2006.

[17]

The Union's affidavit did not disclose 
    an offer contained in a letter dated 12 August 2006 from Bernardus Speckling 
    to the Union's lawyer, which stated:

Thank 
    you for your letter dated July 20, 2006.  The Employer agreed to settle 
    for the amount of $5,000.00.  In fact the Petitioner already provided 
    those funds to the Employer.

On 
    that basis the Petitioner agrees to settle with the union for the same amount 
    and would pay that amount forthwith should the offer be accepted.

However, 
    it is clear from the affidavit of the Union's lawyer that the parties were 
    unable to reach a settlement of that bill of costs.

[18]

On 27 July 2007, the chambers judge 
    struck Mr. Speckling's statement of claim.

[19]

On 28 October 2007, Mr. Speckling submitted 
    an offer to settle the appeal as well as the costs arising from the 2006 judicial 
    review and the 2007 Rule 19(24) application in the Supreme Court.

[20]

On 1 November 2007, the Union submitted 
    a counter-offer in which it proposed to settle the outstanding bills of costs 
    for $5,000 subject to an agreement that Mr. Speckling discontinue this appeal 
    and forego any other claims arising out of his employment with the employer 
    or membership in the union.  It appears that the counter-offer was not 
    initially received by Mr. Speckling or Bernardus Speckling.  The letter 
    was sent again on 5 November 2007.  Bernardus Speckling confirmed his 
    receipt of the counter-offer on 6 November 2007.

[21]

On 7 November 2007, the Union sent a 
    letter to Mr. Speckling enclosing a draft bill of costs for the Rule 19(24) 
    application.

[22]

On 21 November 2007, Mr. Speckling filed 
    and served his appeal book and factum.

[23]

Mr. Speckling has not responded to the 
    counter-offer or to the bill of costs forwarded to him on 7 November 2007.  
    The Union submits that Mr. Speckling's failure to respond to the Union's counter-offer 
    and to the draft bills of costs demonstrates that the Union will have difficulty 
    recovering costs.

[24]

In my opinion, the failure of the parties 
    to reach agreement on the proposed bills of costs is, standing alone, insufficient 
    reason to require Mr. Speckling to post security for costs of the appeal.  
    The circumstances would be quite different if the Union had had the bills 
    of costs in the Supreme Court assessed and the amount due under the bills 
    certified.  In that instance, the failure of Mr. Speckling to pay the 
    bills of costs would have provided definitive evidence as to the difficulty 
    of recovery.

[25]

As I have noted, there is no evidence 
    that Mr. Speckling's ability to pursue this appeal will be compromised if 
    an order for security for costs is made.  As the Union points out, Mr. 
    Speckling has filed his appeal documents without any apparent difficulty, 
    a factor cited by this Court in
Lu v. Mao
, 2006 BCCA 560 at 
    para. 15 as supporting an award of security for costs.  Furthermore, 
    this is not an application for costs that is made on the eve of hearing, when 
    to order security might work an injustice to the appellant (see
M. M 
    .v. F. R
. (1997), 43 B.C.L.R. (3
d) 
    98 (in Chambers)).  The appeal has not been set down for hearing and 
    it might well work an injustice not to award costs if, on a consideration 
    of the merits of the appeal, it appears that the appeal is unlikely to succeed.

[26]

As to the 
    merits, I note that Mr. Speckling's amended statement of claim amounts, in 
    essence, to a re-litigation of his s. 12 complaint before the Board.  
    I am unable to discern any substantial difference between the circumstances 
    in the appeal brought by Bernardus Speckling, which was dismissed, and that 
    brought by the appellant in this case.  Bernardus Speckling argued at 
    the hearing of the application for security for costs that this Court misinterpreted 
    the application of
Weber v. Ontario Hydro
, [1995] 2 S.C.R. 929, 
    to his appeal.  He argues that it cannot be an abuse of process to file 
    a writ in circumstances in which the complaint as to duty of fair representation 
    has been dismissed by the Labour Relations Board under s. 12.  In my 
    opinion, that argument cannot carry much weight, having regard to the Supreme 
    Court of Canada's refusal to grant leave to appeal this Court's dismissal 
    of Bernardus Speckling's appeal.

[27]

Thus, on 
    a consideration of the two factors which weigh in favour of the granting of 
    an order for security of costs, namely Mr. Speckling's failure to establish 
    that his ability to pursue the appeal would be stifled and the lack of merits 
    of the appeal, I conclude that it is in the interests of justice to make an 
    award of security for costs.

[28]

As to the 
    quantum of security, the Union contends that the security should be ordered 
    in the amount of approximately $9,340 based on a bill of costs prepared in 
    respect of Bernardus Speckling's appeal.  The parties settled for approximately 
    $6,967.  Mr. Speckling contends that, if security for costs is to be 
    ordered, it should be in the amount of $3,500.

[29]

In my opinion, 
    based on a review of the bill of costs in Bernardus Speckling's appeal, the 
    appropriate amount of security for costs is $7,500.

[30]

I therefore order that Mr. Speckling 
    deposit with the Registrar the sum of $7,500 as security for costs within 
    30 days of the pronouncement of this order.  The appeal is stayed pending 
    the deposit of the security for costs.

The Honourable Madam Justice Kirkpatrick

CORRECTION
 
    2 January 2008

In 
    the first sentence of paragraph 24 on page 8 the word pose should read post.


