



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Singh v. Workers Compensation Board of British
  Columbia,









2018 BCCA 49




Date: 20180201

Docket: CA44252

Between:

Manoj Singh aka
Mike Singh, Seattle Environmental
Consulting Ltd., Shawn Singh, ESS Environmental Ltd.

Appellants

(Plaintiffs)

And

Workers'
Compensation Board of British Columbia
doing business as WorkSafe BC, Nick Bower, Ben Parkin,
John Beckett, Lynn Bueckert, Margaret McNeil,
Tazeem Nathoo, Brooks Patterson, Lillian White,
Alan Cooke and Diana Miles, Ian Shaw

Respondents

(Defendants)




Before:



The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Savage

The Honourable Mr. Justice Hunter




On appeal from: An order
of the Supreme Court of British Columbia, dated
January 30, 2017 (
Singh v. Workers Compensation Board of British Columbia
,
2017 BCSC 138)

Oral Reasons for Judgment




Acting on behalf of himself and

Seattle Environmental Consulting Ltd.:



M. Singh





Acting on behalf of himself and

ESS Environmental Ltd.



S. Singh





Counsel for the Respondent:



G.B. Gomery, Q.C.

G. Hoekstra





Place and Date of Hearing:



Vancouver, British
  Columbia

February 1, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

February 1, 2018




Summary:

Appeal from an order
striking a notice of civil claim on the basis the: (a) an action does not lie
against the lawyers who acted against the appellants in other litigation
involving the appellants; (b) the claims were statute barred; (c) the action was
an abuse of process; and (d) the allegations are scandalous and without merit.
The appellants contend their pleadings should not have been struck. They also
contend the chambers judge was biased, in particular, because he refused to
grant a right of audience to a former lawyer who had recently become a director
the corporate appellants. They say the judge was improperly briefed before
the hearing because he was aware of previous decisions in which the former
lawyer had been denied a right of audience. Held:  Appeal dismissed. The
chambers judge was correct in striking the notice of civil claim. The
allegation of bias is without merit. It is not improper for judges to inform
themselves of relevant, or potentially relevant, authorities in preparation for
a hearing.

[1]

FRANKEL J.A.
: This appeal is brought from the order of Justice
Kent of the Supreme Court of British Columbia dismissing an action. That order
was made on an application to strike the notice of civil claim brought by the
respondents pursuant to Rule 9-5(1) of the
Supreme Court Civil Rules
. The
chambers judges reasons are indexed as 2017 BCSC 138.

[2]

At the outset of his reasons the chambers judge reviewed the history of the
litigation between the parties. There is no need to repeat it now in any
detail.

[3]

The appellants are in the business of asbestos inspection and abatement.
For several years, the Workers Compensation Board has taken steps to require
the appellants to comply with the applicable health and safety regulations. The
appellants are of the view the Board has targeted them because of the ethnicity
of Manoj Singh and Shawn Singh who are, respectively, the principals of Seattle
Environmental Consulting Ltd. and ESS Environmental Ltd.

[4]

At para. 45 of his reasons, the chambers judge summarized his reasons
for striking the notice of civil claim:

·

As a matter of law there cannot exist any cause of action against
the lawyers for the matters alleged;

·

Section 113(4) of the [
Workers Compensation Act
, R.S.B.C.
1996, c. 492] is also a complete defence to the claim for all defendants;

·

The plaintiffs are attempting to re-litigate claims that have
previously been struck out/dismissed by the Court, a classic example of abuse
of process;

·

The conduct of the plaintiffs and the present claim display all
of the hallmarks commonly seen with vexatious litigants, including numerous
technical deficiencies, causes of action unknown at law, and repeated improper
and scandalous allegations that plainly have no merit.

[5]

The appellants contend that the chambers judge erred in striking their
pleadings, provided inadequate reasons for doing so, and displayed clear bias
and a lack of impartiality. They list eight grounds of appeal in their factum. They
go so far as to allege the judge was improperly briefed prior to the hearing.

[6]

In my view, all of the appellants arguments are devoid of merit. With
respect to the decision to strike the pleadings, I am in substantial agreement
with the chambers judges reasons and, therefore, need say no more in that
regard.

[7]

Alleging actual bias is a serious accusation. Regrettably, this is not
the first time the appellants have made that allegation against a judge: see
Workers
Compensation Board of British Columbia v. Seattle Environmental Consulting Ltd.
,
2017 BCCA 19 at paras. 112
−
116,
407 D.L.R. (4th) 484 (
Seattle No. 1
); and
Seattle Environmental
Consulting Ltd. v. Workers Compensation Board of British Columbia
, 2017
BCCA 386 at paras. 21
−
22.
In addition, in
Singh v. British Columbia (Workers Compensation Board)
(January
29, 2016), Vancouver Registry No. S150011 at paras. 25
−
39 (B.C.S.C.), the
appellants alleged bias against the British Columbia Human Rights Tribunal and
the Tribunal member who summarily dismissed their racial discrimination
complaint against the Board and two of its employees.

[8]

Nothing in the transcript of the hearing before the chambers judge is
capable of supporting a finding of either actual bias or a reasonable
apprehension of bias. In particular, the allegation that the judge was
briefed before the hearing is baseless. Given the extremely serious nature of
that allegation, I will address it more fully.

[9]

The allegation that the chambers judge was briefed is set out as a ground
of appeal in the appellants factum in the following terms:

A travesty of justice occurred
in that Mr. Justice Kent received a briefing prior to the commencement of the
hearing, about the audacity of Mr. Pyper requesting leave to speak for the
corporate Appellants [in the] court below.

The word audacity does not appear in the transcript of the
hearing.

[10]

The circumstances relating to Gerhard Pypers request to speak and the
denial of that request are as follows.

[11]

On
November 8, 2016, the respondents filed a notice of application seeking an
order striking the notice of civil claim and dismissing the action. That
application was returnable on January 23, 2017. On January 16, 2017, the
appellants filed their response to that application. The Singhs signed that
response on behalf of themselves and their respective companies.

[12]

At
one time, Mr. Pyper had been licenced to practice law in British Columbia and
had appeared as counsel for the Singhs and their companies. After Mr. Pyper
ceased to be licenced to practice he was appointed as a director of the
companies and, in that capacity, sought to speak for them in court.

[13]

On
December 15, 2016, this Court heard the case referred to above as
Seattle
No. 1
. A single factum had been filed by counsel acting on behalf of the
Singhs and Seattle Environmental Consulting; ESS Environmental was not a party
to that appeal. Prior to the hearing, Seattle Environmental Consulting filed a
notice of intention to act in person.

[14]

When the case was called, counsel who had signed the factum appeared for
the Singhs. Mr. Pyper appeared and sought leave to address the Court on behalf
of Seattle Environmental Consulting. The Court declined to grant Mr. Pyper a
right of audience. In explaining why that decision was taken, Justice Savage stated,
in part (at para. 16):

Mr. Pypers appointment as a
director is designed to circumvent the fact that he is not currently licenced
to practice law in this province. There is no suggestion that there is any
other reason for his appointment. It would not be proper to hear from Mr. Pyper.

[15]

Returning
to the case at bar, on January 17, 2017, respondents counsel sent a letter to
the appellants advising them that should Mr. Pyper seek leave to speak to
the motion to strike, counsel would draw
Seattle No. 1
to the presiding judges
attention.

[16]

On
January 19, 2017, the companies filed a notice of application returnable on
January 23, 2017, seeking an order that Mr. Pyper be permitted to speak to the
motion to strike on their behalf. In that notice, the companies stated that if
their application was opposed, then they would seek costs against the
respondents.

[17]

When court convened on January 23, 2017, Mr. Pyper introduced himself
and stated he appeared for the two companies. In response, the chambers judge
stated:

Well, Mr. Pyper, I have had occasion
this morning to read the Court of Appeal decision [in
Seattle No. 1
],
which would seem to suggest that you dont get to first base on your ability to
represent the company [
sic
].

[18]

Mr.
Pyper then made submissions as to why he should be allowed to speak on behalf
of the companies. During those submissions, the judge referred to the fact that
in another matter, Justice Verhoeven had expressed concerns with respect to Mr.
Pyper having appeared on behalf of Seattle Environmental Consulting and, because
of those concerns, had directed a copy of his reasons be sent to the Law
Society: see
Singh v. Nielsen
, 2016 BCSC 2331 at paras. 36
−
42, referred to in
Seattle
No. 1
. Although the respondents counsel took no position with respect to
Mr. Pypers participation, he did advise the chambers judge that Justice
Leask had refused to grant Mr. Pyper a right of audience the previous week.

[19]

The
chambers judge refused to allow Mr. Pyper to speak on behalf of the companies. After
doing so, the judge stated Mr. Pyper was entitled to remain in the courtroom
and was not precluded from discussing the companies affairs with the Singhs.

[20]

The
appellants contend the chambers judges knowledge of
Seattle No. 1
,
evinces that he inappropriately received information concerning Mr. Pyper in advance
of the hearing. That contention is not supported by any evidence. The pejorative
inference the appellants ask this Court to draw amounts to gross speculation. All
that can be said is that the judge, knowing he would be hearing an application
to grant Mr. Pyper a right of audience, made himself aware of recent relevant
authority.

[21]

In
ICBC v. Patko
, 2008 BCCA 65 at para. 37, 290 D.L.R. (4th) 687, Chief
Justice Finch stated that, in deciding a matter, it is not improper for judges
to consult, refer to or rely on authorities not referred to or relied on by
the parties. It is similarly not improper for judges to inform themselves of
relevant, or potentially relevant, authorities in preparation for a hearing.

[22]

I
would dismiss this appeal.

[23]

SAVAGE
J.A.
: I agree.

[24]

HUNTER
J.A.
: I agree.

[25]

FRANKEL J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Frankel


