



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



M.D. v. R.,









2016 BCCA 56




Date: 20160127

Docket: CA42656

Between:

M.D.

Appellant

And

R.

Respondent




Before:



The Honourable Madam Justice Newbury

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Savage




On appeal from: an
order of the Supreme Court of British Columbia, dated
February 23, 2015 (
M.D. v. R.,
2015 BCCA 399, Duncan Registry No.
S16061)

Oral Reasons for Judgment




Appellant appearing In Person:






Counsel for the Respondent:



W. Bernt





Place and Date of Hearing:



Victoria, British
  Columbia

January 27, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 27, 2016








Summary:

The applicant applied
pursuant to s.9(6) of the Court of Appeal Act

to vary an order denying
leave to appeal. The application was denied as the applicant failed to show
that the chambers judge erred in law, erred in principle or misconceived the
facts.

[1]

SAVAGE J.A.
: On September 24, 2015 Justice Garson dismissed M.D.s
application for leave to appeal to this Court from two related orders made by Mr. Justice
MacKenzie on February 23, 2015:
M.D. v. Regina,
2015 BCCA 399. M.D.
applies pursuant to s. 9(6) of the
Court of Appeal Act
, R.S.B.C. 1996,
c. 77, to have this division vary her order. For the reasons that follow I
would dismiss the application.

[2]

Madam Judge Garson detailed the procedural history of this case at
paras. 3 to 6 of her reasons for judgment. In summary, M.D.s child, G., was
removed from his custody at birth, on July 22, 2013. In 2013 and 2014 various
provincial court orders granted custody of G. to the Director of Child, Family
and Community Service (the Director). By way of multiple applications M.D.
appealed the orders in the Supreme Court pursuant to s. 81 of the
Child,
Family and Community Service Act,
R.S.B.C. 1996, c. 46 [
CFCSA
].

[3]

The Director applied to have M.D.s appeal struck. On January 8, 2015
Master McCallum held that M.D.s appeal was scandalous, frivolous and vexatious;
however, rather than striking the appeal he granted M.D. an extension of time
to file his appeal in the appropriate form and state the grounds for appeal in
a succinct way:
M.D. v. Regina
,

2015 BCSC 18.

[4]

On February 23, 2015 the matter came back before Mr. Justice MacKenzie
who struck M.D.s appeal for not disclosing a valid or meritorious ground:
M.D.
v. British Columbia (Child, Family and Community Services)
, 2015 BCSC 730.

[5]

Section 82 of the
CFCSA
allows an appeal to this Court, with
leave, only on a question of law. Pursuant to s. 82 of the
CFCSA
, M.D.
applied for leave to appeal to this Court from Mr. Justice MacKenzies order.

[6]

The matter was first heard in chambers on June 15, 2015 by Mr. Justice
Frankel. Mr. Justice Frankel was unable to ascertain the basis of M.D.s
appeal. He ordered that M.D. file a proper motion book and granted an
adjournment until September 8, 2015.

[7]

Madam Justice Garson heard the application on September 8, 2015 and
released her reasons for judgment on September 24, 2015. She held that despite
being given the opportunity described M.D. did not provide any material to
enable her to identify any question of law which might form the basis of his
appeal.

[8]

Madam Justice Garson found that M.D. did not meet any of the
well-established criteria necessary for leave to appeal to be granted and
dismissed his application saying:

[10]      M.D. has been given several opportunities to comply
with the rules of court both in this Court and the Supreme Court. I refer to
the hearing before Master McCallum in which rather than striking the appeal, he
permitted M.D. to amend his Notice of Appeal. On June 15, 2015, this Court
adjourned M.D.s application with directions to file an appropriate motion
book. As already noted, those new materials, filed on August 25, 2015, are
voluminous. However, they do not enable me to identify any question of law.

[11]      The test for granting leave to appeal in this Court
is well known. The criteria are set out in
Goldman, Sachs & Co. v.
Sessions
, 2000 BCCA 326 at para. 10, where Saunders J.A. (in Chambers)
stated:

The criteria for leave to appeal
are well known. As stated in
Power Consolidated (China) Pulp Inc. v. B.C.
Resources Investment Corp. (1988)
, 19 C.P.C. (3d) 396 (C.A.) they include:

1)

whether the
point on appeal is of significance to the practice;

2)

whether the
point raised is of significance to the action itself;

3)

whether the
appeal is prima facie meritorious or, on the other hand, whether it is
frivolous; and

4)

whether the
appeal will unduly hinder the progress of the action.

[12]      This same test has been held to apply to
applications for leave under s. 82 of the Child, Family and Community Service
Act:
British Columbia (Director, Child, Family and Community Services) v.
DMG
, 2007 BCCA 415.

[13]      M.D. has not demonstrated that his appeal has
merit. He has not met any of the criteria necessary to be granted leave to
appeal.

[14]      His application for
leave to appeal the orders made by Justice MacKenzie is dismissed.

[9]

An application to vary or discharge an order of a chambers judge is not
a re-hearing of the initial application. This Court may not interfere with an
order of a chambers judge unless it can be demonstrated that the chambers judge
erred in law, erred in principle or misconceived the facts:
Pacifica
Mortgage Investment Corp. v. Laus Holdings Ltd
, 2011 BCCA 459 at para. 23.

[10]

M.D. lists his grounds of appeal as:

1)

Gross &
Hideous Miscarriage of Justice.

2)

Imperial
Colonial Judicial Nepotism Between Victoria BC Justice McKenzie & Victoria
BC MCFD Lawyer Michael Scherr.

3)

There is NO Time
Bar in the Canadian Charter of Rights & Constitution of Canada.

4)

BC Supreme Court
is Crown Blackmailing Me to Sign off on MY fight for G using Trickery &
Triple Speak & MCFD Criminal Legislation.

5)

RCMP A Internal Affairs Division in Ottawa has been Notified & Criminal
Investigations are being investigated!!

[11]

After reviewing M.D.s written materials and hearing his arguments,
Madam Justice Garson was unable to identify any question of law. In his
affidavit dated October 1, 2015 filed in support of this review application, M.D.
describes the basis of his application thus:

*I
asked Judge Garson to recuse herself; she refused

1.

Appealing Judge Garsons Judgment

2.

Asking for 3 Judge Panel Review

3.

No Single Judge has Authority to
Judge on Constitutional and Charter challenge

4.

Review Justice Garson; Wendy Bernt

5.

Conduct for Heckling me

[12]

M.D. has been given several opportunities in this Court to frame his
arguments in a manner which addresses the legal requirements for obtaining
leave to appeal but he has failed to do so. In arguing that Madam Justice Garson
erred in denying leave M.D. referenced in general terms the Metis Constitution,
The Metis National Relationship Accord, the Provincial Courts and the
Charter
of Rights
. At the hearing of this appeal we took an early adjournment to
give M.D. further time to distill his argument.

[13]

Although M.D. says his argument concerns the breach of his
Charter
Rights
, the only provisions of the
Charter
he referenced were the
mobility provisions and unlawful search and seizure. I am unable to appreciate
how the apprehension of a child in need can be a breach of either mobility
rights or rights against unlawful search and seizure. Provincial legislation
providing for the apprehension of children in need in my view cannot be a
violation of any such rights, whatever the background of the children might be.

[14]

I agree with Madam Justice Garson that neither the grounds given nor the
submissions received identify a question of law. M.D. has not identified any
error in law, error in principle or misconception of the facts in the reasons
of the Chambers judge. As M.D. has failed to show that Madam Justice Garson
erred in law, erred in principle or misconceived the facts, I would dismiss the
application to vary the order of Justice Garson.

[15]

NEWBURY J.A.
: I agree.

[16]

NEILSON J.A.
: I agree.

[17]

NEWBURY J.A.
: The application is dismissed.

The Honourable Mr. Justice Savage


