



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Simon v. British Columbia (Attorney General),









2016 BCCA 52




Date: 20160121

Docket: CA42664

Between:

Zoltan Andrew
Simon and Zuanhao Zhong

Appellants

(Plaintiffs)

And

The Attorney
General of British Columbia
The Attorney General of Canada

Respondents

(Defendants)




Before:



The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Fitch




On appeal from: an
order of the Supreme Court of British Columbia, dated
February 27, 2015 (
Simon v. Canada (Attorney General
), 2015 BCSC 924,
Golden Registry No. 4756)

Oral Reasons for Judgment




Appellant appearing In Person:









Counsel for the Respondent, Attorney General of British
  Columbia:



M.N. Weintraub





Counsel for the Respondent, Attorney General of Canada



A.F. Brown and B.
  Sokhansanj





Place and Date of Hearing:



Vancouver, British
  Columbia

January 21, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 21, 2016








Summary:

The
appellant appeals an order made under Rule 9-15 (1) of the Supreme Court Civil
Rules striking their claim without leave to amend and dismissing their action.
Held: appeal dismissed. No grounds had been shown to interfere with the
conclusion of the chambers judge that the action failed to disclose a
reasonable cause of action, was scandalous, frivolous and vexation and constituted
an abuse of process of the court.

[1]

FITCH J.A.
: This is an appeal from an order made on February 27,
2015 under Rule 9-5(1) of the
Supreme Court Civil Rules
striking the
whole of the appellants claim without leave to amend and dismissing the
action.

[2]

The detailed and well-considered reasons of the chambers judge are
indexed at 2015 BCSC 924.

[3]

The chambers judge concluded the appellants pleadings failed to
disclose a reasonable cause of action, were scandalous, frivolous and
vexatious, and otherwise constituted an abuse of the process of the court.

[4]

The appellants assert that the chambers judge erred in articulating and
applying the test governing applications to strike pleadings. In addition, the
appellants assert that a reasonable apprehension of bias arises out of the
manner in which the chambers judge dealt with the application. In conjunction
with the appeal, the appellants have filed in this Court material that was not
before the chambers judge. The additional material is summarized at para. 15 of
the factum filed on behalf of the Attorney General of Canada. No application
has been made to admit this additional material as fresh evidence on the
appeal.

[5]

In my view, no grounds have been shown to interfere with the orders made
by the chambers judge. Her articulation and application of the governing law is
unassailable.

[6]

The reasonable apprehension of bias argument is unsupported by any
factual foundation or principled argument and is wholly without merit.

[7]

Finally, I take no account of, nor would I admit, the additional
material the appellants have filed in support of this appeal. This material is
not properly before us and could not possibly meet the test under
Palmer v.
The Queen
, [1980] 1 S.C.R. 759 for the admission of fresh evidence on
appeal.

[8]

For these reasons, I would dismiss the appeal with costs against the
appellant, Zoltan Andrew Simon.

[9]

LOWRY J.A.
: I agree.

[10]

FRANKEL J.A.
: I agree.

[11]

LOWRY J.A.
: The appeal is dismissed and ordered accordingly.

The Honourable Mr. Justice Fitch


