



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Shebib v. Victoria (City),









2012 BCCA 42




Date: 20120127

Docket: CA038771

Between:

David Michael
Shebib

Appellant

(Appellant)

And

The Corporation of
the City of Victoria

Respondent

(Respondent)

Corrected
Judgment: The text of the judgment was corrected at paragraphs 14 and 15 where
changes were made on May 14, 2012




Before:



The Honourable Mr. Justice Chiasson





(In Chambers)




On appeal from:  Supreme
Court of British Columbia, November 30, 2010
(
Johnston v. Victoria (City)
,
2010 BCSC 1707, Victoria Docket 145835-1)




Appellant:



In person





Counsel for the Respondent:



K. Morley





Place and Date of Hearing:



Victoria, British
  Columbia

January 9, 2012





Place and Date of Judgment:



Vancouver, British Columbia

January 27, 2012








Reasons for
Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1]

This case illustrates the tension that often develops among the
aspirations of self-represented parties, the interests of parties who are
represented and the responsibilities of the court in overseeing the orderly
administration of litigation.

Background

[2]

Mr. Shebib and Mr. Johnston were convicted in
Provincial Court of violating a by-law of the respondent City of Victoria by
erecting temporary daytime shelters on municipal property (
R. v. Johnston
and Shebib
(12 February 2009), Victoria 145835-1).  They appealed to the
Supreme Court.  Their appeal was dismissed on November 30, 2010 (
Johnston v. Victoria (City)
, 2010 BCSC 1707).

[3]

Messrs. Johnston and Shebib separately applied
for leave to appeal to this Court and, because their applications were out of
time, each applied to extend the time.

[4]

Mr. Johnstons appeal progressed and was
dismissed by this Court on October 18, 2011 (
Johnston v. Victoria (City)
,
2011 BCCA 400).

[5]

Mr. Shebibs appeal did not progress.  On September 12, 2011, he appeared before Mr. Justice Frankel pursuant to notice given by the
Registrar of this Court, in accordance with
Rule 13(3) of the
Criminal
Appeal Rules, 1986
, B.C. Reg. 145/86,
advising Mr. Shebib
that his appeal might be referred to a division of this Court for possible
dismissal.  At that time Mr. Shebib expressed his concern with the proceedings
in the Supreme Court.  In particular, he was and remains concerned with the
absence of a trial
de novo
in that Court.

[6]

Justice Frankel explained that Mr. Shebib first
had to deal with the requirement that he obtain an extension of time and then
had to address his application for leave to appeal because his proposed appeal
was from the dismissal of an appeal from a Provincial Court summary conviction proceeding.  Nothing had been filed by way of evidence or argument to support
either of Mr. Shebibs applications.  On September 12, 2011, the decision of this Court on the
Johnston
appeal was pending.

[7]

Justice Frankel ordered that Mr. Shebibs
application for an extension of time be heard on January 9, 2012, and that he
apply for leave to appeal on that date if this Court were to allow Mr.
Johnstons appeal before then.

[8]

Mr. Shebib filed no material in advance of January 9, 2012.  At the chambers hearing he gave me a written submission that essentially
set out his concerns with the proceedings in the Supreme Court, that is, the
same information provided to Frankel J.A., which he had identified as not
helpful at this stage of the proceedings.  Mr. Shebib also gave me copies of
three orders made by the Supreme Court.  This meant that I had nothing other
than this material and his applications for leave to appeal and to extend the
time to do so.

[9]

Counsel for the respondent proposed that Mr.
Shebibs applications should be dismissed.

[10]

Subsequent to the hearing, Mr. Shebib filed two
transcripts of hearings before the Supreme Court.  I directed the Registry to
advise and make copies available to the respondent.

Discussion

[11]

Court rules, procedures and provisions governing
appeals are designed to achieve an effective appellate process.  Their
objective is to facilitate, not obstruct, the achievement of a correct legal
result.  Appellate procedural rules protect and promote the interests of
parties, including Mr. Shebib.  When rules and procedures are not followed, it
is difficult for this Court to administer appeals effectively.  Parties who do
not follow the appropriate rules and procedures often obscure their legitimate
positions, making it hard for this Court to address their concerns.  Failure to
comply with the appropriate rules and procedures also may unfairly compound the
difficulties of the opposing partys task of presenting its position and resisting
the position of the defaulting party.

[12]

At the hearing on January 9, 2012, I had three choices for the disposition of Mr. Shebibs applications: dismiss them because
he had not filed material, contrary to the order of Frankel J.A.; adjourn the
matter; deal with the applications based on the material I had.  I discussed
his position with Mr. Shebib.  In my view, the interests of justice are best
served by addressing Mr. Shebibs applications on the available material.

[13]

An appeal lies to this Court, with leave, from a
decision of a Supreme Court judge on appeal from a decision of the Provincial
Court, but only on a point of law (
Criminal Code,
R.S.C., 1985, c. C-46,
s. 839).  The application for leave to appeal must be filed within 30 days of
the pronouncement of the Supreme Court decision, as required by s. 14(1) of the
Court of Appeal Act
,

R.S.B.C. 1996, c. 77.  Mr. Shebib filed his
application for leave to appeal and his application to extend time on January 31, 2011.  The appeal decision of Mr. Justice Bracken was pronounced on November 30, 2010.  Mr. Shebib requires an order extending the time for applying for leave
to appeal.

[14]

The test for granting an extension of time was stated
in
R. v. Smith
(1990), 11 W.C.B (2d) 445 (C.A.) at paras. 4 and 5,
by Mr. Justice Macfarlane, for the Court:

[4]        The appellant in order to obtain
an extension of time must satisfy certain rules. The governing principle on
which this Court acts on applications to extend time for doing an act is that
the applicant must establish special circumstances.

[5]        In considering whether there are
special circumstances this Court has always taken into account such factors as
whether: (1) the applicant had a bona fide intention to appeal before the
expiration date of the appeal date; (2) informed the respondent either
expressly or impliedly of his intention; (3) the respondent would not be unduly
prejudiced by an extension of time; (4) there is merit in the appeal in the
sense that there is a reasonably arguable ground; (5) it is in the interest of
justice, that is the interest of the parties, that an extension be granted. How
much weight will be given to any of these factors in determining whether there
are special circumstances will depend on the circumstances of each case.

[15]

In this case, the first three factors are of less significance
than the fourth, the merits of the proposed appeal, which, of course, is key to
whether leave to appeal should be granted.  Considering all of the
circumstances of the proposed appeal, I conclude that it is not in the
interests of justice that an extension be granted.

[16]

The test for leave was stated succinctly in
R. v.
Winfield,
2009 YKCA 9, 273 B.C.A.C. 152 at para. 13:

To
obtain leave to appeal from the decision of a summary conviction appeal court,
the applicant must establish that (a) the ground of appeal involves a question
of law alone, (b) the issue is one of importance, and (c) there is sufficient
merit in the proposed appeal that it has a reasonable possibility of success. 
The overriding consideration in the exercise of the discretion to grant or
refuse leave is the interests of justice:
R. v. Cai
, 2008 BCCA
332, 258 B.C.A.C. 235 at para. 26 (Chambers);
R. v. Gill
, 2008 BCCA
259 at para. 3 (Chambers).

Leave is to be granted sparingly (
R. v. Gaudaur
, 2010 BCCA 157, 286 B.C.A.C. 41 at para. 3).

[17]

I question whether Mr. Shebibs ground of appeal
involves a question of law alone.  He may be attacking the exercise of
discretion of the appeal judge or he may be claiming a denial of natural
justice.  Depending on the characterization of the ground of appeal, it could
be a question of importance.  I need not resolve these issues on the view I have
of this case.

[18]

I have reviewed the three-page submission that
Mr. Shebib presented on January 9, 2012.  It is apparent that his principal
concern is that he was not afforded a trial
de novo
.  The court is
empowered to order such a proceeding under s. 822(4) of the
Criminal Code
,
which states:

Despite subsections (1) to (3),
if an appeal is taken under section 813 and because of the condition of the
record of the trial in the summary conviction court or for any other reason,
the appeal court, on application of the defendant, the informant, the Attorney
General or the Attorney Generals agent, is of the opinion that the interests
of justice would be better served by hearing and determining the appeal by
holding a trial
de novo
, the appeal court may order that the appeal
shall be heard by way of trial
de novo
in accordance with any rules that
may be made under section 482 or 482.1, and for that purpose the provisions of
sections 793 to 809 apply, with any modifications that the circumstances
require.

[19]

A trial
de novo
may consist of repeating
the oral evidence adduced at trial or of a consideration of the evidentiary
record in the Provincial Court as supplemented by additional evidence (s.
822(5)).

[20]

Mr. Shebib points to three orders of the Supreme
Court:

1.       May
27, 2009  Madam Justice Gerow granted an application for a trial de novo  as
evidence relating to the availability of daytime shelters may be relevant to
this proceeding;

2.       November
25, 2009  Mr. Justice Punnett ordered that [t]he action can proceed by way of
an appeal of the decision of the Honourable Judge Blake and evidence related to
the availability of daytime shelter in the City of Vicotria can proceed by way
of Affidavits;

3.       July
7, 2010  Mr. Justice Metzger adjourned Mr. Shebibs application for a trial de
novo to the presiding Judge at the appeal hearing which then was scheduled
for July 19, 2010.

[21]

In all, there appear to have been eight
interlocutory proceedings before the Supreme Court appeal was heard.  Mr.
Shebib refers to transcripts of proceedings on October 14, 2009, which
adjourned the hearing of the appeal and to the transcript of the November 25,
2009 proceedings before Punnett J.  I have reviewed these transcripts.  They
suggest the source of some possible confusion by Mr. Shebib because counsel for
the respondent appears to have suggested that there was no issue concerning the
availability of daytime shelter in Victoria and because there was an apparent
change to the mode of proceeding on the appeal.  That said, I see no
substantive difference between the orders of Gerow and Punnett JJ.

[22]

Although there was some discussion before
Punnett J. about not proceeding with a trial
de novo
, the substantive
effect of his order did not dispense with that mode of trial.  It merely
specified how evidence of daytime shelter would be adduced, which was the basis
on which Gerow J. had ordered a trial
de novo
.

[23]

Regardless of the comments of counsel, it always was clear that
the factual issue
which was to be addressed was the
availability of daytime shelter.  I read the order of Metzger J. as leaving to
the appeal judge the task of clarifying any misunderstanding Mr. Shebib may
have had about the nature of the proceeding.

[24]

Evidence as to the availability of daytime shelter
in Victoria was what courts characterize as fresh evidence, that is, evidence
that existed at the time the original proceeding took place, but which was not
placed before the tribunal.  There are special rules governing the
admissibility of such evidence, which is not received readily.  As noted, s.
822 of the
Criminal Code
permits the court to order a trial
de novo
. 
Pursuant to s. 822(5), the evidence adduced at the trial may be read at the
trial
de novo
.  That is, the trial
de novo
may consist of the
record of the original trial proceedings supplemented by fresh evidence.  This
possibility has caused some courts to conclude that trials
de novo
should
be ordered sparingly.

[25]

Judicial caution in ordering trials
de novo
derives
from two considerations: one, the fact that prior to the enactment of s. 822(4)
in 1976, appeals from summary conviction matters to a superior court was always
by way of trial
de novo
, which indicates that trials
de novo
now
are the exception rather than the rule; two, fresh evidence may be admitted on
a trial
de novo
without the need to meet the usual criteria for such
admission.  In
R. v. Faulkner
(1977), 37 C.C.C. (2d) 26
(N.S.Co.Ct.);
R. v. Leung,
[1998] 2 W.W.R. 178, 54 Alta. L.R. (3d) 1; and
Toralta Construction (1988) Ltd. v. Hankewich Homes Ltd.
(1992), 130
A.R. 156 (Q.B.) the courts have taken a quite restrictive approach.

[26]

These concerns appear not to have held sway in
this Province.
This Court in
R. v. Winters
, [1981] 4 W.W.R. 128,
27 B.C.L.R. 385 held that a reviewing court has a broad discretion whether to
order a trial
de novo
.

[27]

In this case, it does not appear that the
evidence concerning daytime shelter in Victoria was considered as fresh
evidence.  The absence of such evidence at trial was the basis on which a trial
de novo
was ordered and on which it was ordered that the evidence could
be adduced by affidavit.  No appeal was taken from either of these orders, but it
is not clear on what basis it was considered appropriate to proceed by way of
trial
de novo
in this case, that is, to allow the parties to adduce
evidence on the appeal that could have been, but which was not, adduced at the
Provincial Court trial.

[28]

It may be that Mr. Shebib was confused by the
orders of Gerow and Punnett JJ., but legally and practically these orders gave
him what he wanted: the opportunity to adduce evidence concerning the
availability of daytime shelter in Victoria.  The respondent adduced evidence
on this issue.  Mr. Shebib decided not to do so.

[29]

In effect, a trial
de novo
took place. 
In the
Johnston
appeal, this Court confirmed that the Supreme Court
appeal was a trial
de novo
.  The respondent adduced evidence of the
availability of daytime shelter in Victoria.  Messrs. Shebib and Johnston
appear not to have done so, although in para. 26, Bracken J. refers to a
Mayors Task Force Report and states that [a] copy of that report is attached
to Mr. Johnstons affidavit in this matter.  No such affidavit is found
in the Supreme Court appeal file or the record filed in this Court on the
Johnston

appeal.  In any event, it is common ground that Mr. Shebib did
not adduce evidence on the appeal.

[30]

Mr. Shebib advised me that he decided to rely on
the evidence adduced in
Victoria (City) v. Adams,
2008 BCSC 1363, 299
D.L.R. (4th) 193, affd 2009 BCCA 563, 313 D.L.R. (4th) 29, in which the
respondents by-law was struck insofar as it prohibited temporary nighttime
shelters.  An examination of the reasons of Bracken J. confirms that
Messrs. Shebib and Johnston took this approach and, as noted, also relied on
the Mayors Task Force Report, which was relied on in
Adams
, to
establish the absence of sufficient daytime shelter in Victoria and to
discredit the evidence adduced by the respondent (paras. 13, 14, 26, 31 and
32).  Mr. Shebib now questions the evidence and submissions of the respondent
and wants to introduce his own evidence concerning the availability of daytime
shelter in Victoria.

[31]

Mr. Shebibs appeal seeks to overturn the
decision of the Supreme Court to obtain what he was given: a trial
de novo
. 
His objective is to adduce evidence that he could have adduced before the
Supreme Court and before the Provincial Court.

[32]

This Court is a court of error.  That is, it
reviews decision of other tribunals to determine whether they have erred.  If
they have not, this Court does not interfere.  It particularly does not do so
where the alleged error involves a matter of discretion, such as determining
the mode of conducting a proceeding, unless
the decision
is clearly wrong or serious injustice will occur
or
where
discretion was not exercised judiciously or was exercised on a
wrong principle:

Strata Plan LMS 2019
v. Green
,
2001 BCCA 286
, 152 B.C.A.C. 174, per Proudfoot J.A. (in Chambers) and
Stone
v. Ellerman,
2009 BCCA 294, 92 B.C.L.R. (4th) 203, leave to appeal refd
[2009] S.C.C.A. No. 364, at para. 94).
No such error has been
shown in this case.

[33]

In addition to concerns about allowing parties
to prolong litigation by waiting for a proceedings outcome to determine the
extent to which they want to participate in it, to allow this matter to
continue, to effectively start afresh, would be manifestly unfair to the
respondent.  It may be that Mr. Shebib disagrees with the approach the
respondent takes to people in his circumstances, but, in this Court, the clash
is between the parties legal rights.  These rights must be determined in
accordance with the law.  It is as important to Mr. Shebib as it is to the
respondent that this be so.  Equally important is the ability of each
protagonist to pursue his or its position in accordance with the rules and
procedures of this and other courts.  Causing chaos in the processes of the
court and leaving the court unclear as to positions being advanced does not
serve the best interests of any litigant.

[34]

In my view, there is little likelihood that a
division of this Court would overturn the decision of the Supreme Court appeal
judge to allow Mr. Shebib to now introduce evidence he could have, but chose
not to, adduce at the hearing of his appeal.

[35]

An additional difficulty faced by Mr. Shebib
emerges from this Courts decision in the
Johnston
appeal.  In part, he
argues that Bracken J. misapplied the test for justification under s. 1 of the
Charter
of Rights and Freedoms, Constitution Act, 1982
as articulated in
R. v.
Oakes,
[1986] 1 S.C.R. 103.  In
Johnston
, this Court made it clear
that justification was not engaged because a breach of s. 7 of the
Charter
had
not been established.  It was not established because the evidence did not
establish a need for the erection of temporary daytime shelters on municipal
land, that is, that there was an insufficiency of daytime shelter in Victoria.  The burden of doing so was on Mr. Shebib.

[36]

Mr. Shebibs application to extend the time to
bring an application for leave to appeal is dismissed.  It follows that the
application for leave to appeal cannot proceed, which in any event, in my view,
would have no prospect of success.

The Honourable Mr. Justice Chiasson


