



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Murphy 
          v. Wynne,







2008 
          BCCA 26



Date: 20080122

Docket: CA034348

Between:

John 
    Murphy

Appellant

(
Plaintiff
)

And

John 
    Wynne, William Holmes, William Kinlock, James Dougan, Barry Clark, Richard 
    OBrien, Russell St. Eloi, Tom Millar, Tom Tomko, Anne St. Eloi, Alexander 
    McDonald, James Brady, Al Phillips, Ray Callard, Local 170 of the United Association 
    of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of 
    the United States and Canada, and Nelson, Barkman & Tanaka, Chartered 
    Accountants

Respondents

(
Defendants
)




Before:


The 
          Honourable Chief Justice Finch




(In 
          Chambers)








J. 
          Murphy


Appearing on his own behalf




A. 
          Howarth


Counsel for the Workers Compensation Board






Place 
          and Date of Hearing:


Vancouver, British Columbia







24 October 2007






Written 
          Submissions Received:


15 November 2007









Place 
          and Date of Judgment:


Vancouver, British Columbia




22 January 2008



Reasons 
    for Judgment of the Honourable Chief Justice Finch:

I.  INTRODUCTION:

[1]

Mr. Murphy applies for various remedies including orders that this 
    appeal be removed from the inactive list, that an earlier order requiring 
    him to post security for the costs of appeal be set aside, that a five judge 
    panel be appointed to hear his appeal, and that he be granted indigent status.  
    No parties appeared in opposition to these applications.  Mr. Howarth appeared 
    for the Workers Compensation Board as a matter of courtesy to the Court.  
    The Workers Compensation Board is not a party to this appeal.

[2]

At the conclusion of the oral hearing on 24 October 2007 I asked Mr. 
    Murphy to make submissions in writing setting out the basis of the applications 
    before me, with such supporting material as he thought necessary.  Mr. Murphy 
    complied with that request on 15 November 2007.

[3]

This appeal, brought by Mr. Murphy under Court of Appeal file number 
    CA034348 is in respect of proceedings commenced in the Supreme Court of British 
    Columbia under file numbers C946213 and S011288.  In particular, the appeal 
    is from the order of Mr. Justice Groberman of 14 July 2006 striking out Mr. 
    Murphys statement of claim and dismissing his actions against all defendants.

[4]

Mr. Murphy has a second proceeding in this Court, brought under Court 
    of Appeal file number CA034995.  That appeal also concerns proceedings in 
    the Supreme Court of British Columbia under file numbers C946213 and S011288.  
    However, appeal number CA034995 relates in particular to the counterclaim 
    advanced by the defendants against Mr. Murphy.  In his oral reasons for judgment 
    of 14 July 2006 Mr. Justice Groberman suggested that the issues surrounding 
    the counterclaim might be addressed by an application for leave to discontinue 
    the counterclaim.

[5]

The defendants brought an application to have the counterclaim dismissed 
    without costs.  An order to that effect was granted by Mr. Justice Groberman 
    on 13 April 2007.

[6]

Mr. Murphy applied for leave to appeal that order.  On 31 August 2007 
    Mr. Justice Chiasson granted Mr. Murphy leave to appeal the order of 13 April 
    2007, granted Mr. Murphy indigent status in those proceedings, and refused 
    Mr. Murphys request for a stay of proceedings:
Murphy v. Wynne
, 
    2007 BCCA 434.

[7]

These reasons for judgment address only the applications brought by 
    Mr. Murphy in appeal number CA034348.  They do not address appeal number CA034995, 
    Mr. Justice Grobermans order of 13 April 2007, or Mr. Justice Chiassons 
    order of 31 August 2007.

II. HISTORY OF THE PROCEEDINGS:

[8]

Mr. Murphy, a plumber, was at one time a member of the Building Trades 
    Division Local 170 (Local 170) of the United Association of Journeymen and 
    Apprentices of the Plumbing and Pipefitting Industry in the United States 
    and Canada (the Union).  In 1991, elections were held to fill positions 
    as officers of the union.  Mr. Murphy took issue with the elections, and the 
    subsequent interference with his rights which he says have flowed through 
    to other elections since then.  In 1994, Mr. Murphy commenced action number 
    C946213 seeking an injunction.

[9]

1n 1996, Mr. Murphy was charged by his union with circulating letters 
    of falsehood contrary to s. 199 of the union constitution.  The union claimed 
    that Mr. Murphy had forged signatures of other union members on motions that 
    he wished to bring before the union.  In 1996, Mr. Murphy was fined and expelled 
    from the union following a hearing which he did not attend because union officials 
    told him he could not be represented by a lawyer.  This fine and expulsion 
    was later confirmed by the parent union (The International Union).

[10]

On 6 March 2001 Mr. Murphy commenced action number S011288 against 
    the union and various members of the union seeking redress for his alleged 
    wrongful expulsion.  Mr. Murphy also sought redress for a number of other 
    alleged wrongs, including irregularities in managing certain trust funds and 
    failure to represent him before the Workers Compensation Board.  He has also 
    taken issue with the qualifications of various members of the union executive 
    to hold office, and with their refusal to prove their qualifications to him.

[11]

Several judges dealt with these applications up until 2003.  Significant 
    rulings were made by Williamson J. (
Murphy v. Wynne
, C946213, 
    Vancouver Registry, 22 February 2002), Edwards J. (
Murphy v. Wynne
, 
    2002 BCSC 1835), and Humphries J. (
Murphy v. Shortt
, 2003 BCSC 
    507).  In 2003, Mr. Justice Groberman was appointed case management judge 
    over Mr. Murphys litigation.  In 2004, Mr. Justice Groberman heard the petition 
    in
Murphy v. Shortt
, 2004 BCSC 1362.

[12]

In his judgment of 14 July 2006 in
Murphy v. Wynne
, Mr. 
    Justice Groberman held that the four rulings referred to above disposed of 
    the bulk of Mr. Murphys claims.  Mr. Justice Groberman hoped that the guidance 
    he gave in his 2004 judgment would allow Mr. Murphy to proceed in an expeditious 
    and orderly manner with what was left of his claims.  At three case management 
    conferences in 2004 and again in 2005, Mr. Justice Groberman urged and directed 
    Mr. Murphy to provide the court with a brief plan of how he was going to bring 
    the litigation to trial so that it could be dealt with without further delay.  
    Mr. Murphy first insisted that the proceedings be delayed while he unsuccessfully 
    pursued certain claims before the Labour Board, and then let the matter lie 
    dormant for a considerable length of time.

[13]

In January 2006, Mr. Murphy filed a 44 page document entitled, Amended 
    Statement of Claim.  Mr. Justice Groberman described this document as a:

hodgepodge 
    consisting of allegations, copies of documents, lists of alleged facts, references 
    to affidavits, and disjointed discussion replete with legal jargon.  Allegations 
    and claims are made against non-parties, and many of the named defendants 
    have no specific allegations or claims made against them.  (
Murphy v. 
    Wynne
, S011288, Vancouver Registry, 14 July 2006 at para. 7)

[14]

Mr. Justice Groberman said the document consists, in the main, of allegations 
    and claims that had already been dismissed in the earlier proceedings, and 
    is not an orderly or proper document on which Mr. Murphy can base a claim.  
    As a result, Mr. Justice Groberman struck the statement of claim and dismissed 
    the action.

[15]

On 10 August 2006 Mr. Murphy filed his notice of appeal.  He applied 
    for indigent status.  On 31 October 2006 I dismissed Mr. Murphys application 
    for indigent status.  At the same time, I granted the defendants applications 
    for security for costs of the appeal, security for costs in the court below, 
    and ordered a stay of the appeal until security is posted:
Murphy v. 
    Wynne
, 2006 BCCA 588.

[16]

Mr. Murphy applied to review that order.  That application was dismissed 
    by a division of this Court:
Murphy v. Wynne
, 2007 BCCA 156.

[17]

On 24 September 2007 the registry sent a letter to Mr. Murphy advising 
    him that, pursuant to s. 25(1) of the
Court of Appeal Act
, this 
    matter had been placed on the inactive appeal list.

[18]

That is the background leading to Mr. Murphys application now before 
    me.  As mentioned, in the application of 24 October 2007, as now amplified 
    by Mr. Murphys written submission, he applied to remove appeal number CA034348 
    from the inactive list.  He also applied to consolidate evidence and appeal 
    costs.  He sought the hearing of his appeal by a five judge division of the 
    Court.  He sought to set aside the order for security for costs.  He also 
    sought interim orders that the union reinstate his membership in health and 
    welfare plan coverage.  He sought indigent status, leave to appeal, and joinder 
    of this appeal with those proceedings numbered CA034995.  He also asked for 
    an extension of time within which to file his factum.  Mr. Murphy filed a 
    written submission on 15 November 2007, together with voluminous supporting 
    materials.

III. REMOVAL FROM THE INACTIVE LIST:

[19]

Section 25 of the
Court of Appeal Act
governs inactive 
    appeals.  There is no rigid test on an application to reinstate.  The overriding 
    issue has been said to be whether it is in the interests of justice to grant 
    the application:
Kar Recovery Ltd. v. KDA
, 2004 BCCA 503.  Factors 
    which have been considered by the Court in removing a case from the inactive 
    list are the extent of the delay, any explanation for the delay, the existence 
    of prejudice arising from the delay, and the likelihood of success on appeal.

[20]

The applicant bears the onus of establishing a good reason for reactivating 
    the appeal under s. 25(2): see
Galiano Conservancy Association v. British 
    Columbia (Ministry of Transportation and Highways)
(1997), 40 B.C.L.R. 
    (3d) 171 (C.A.) at 176.

[21]

Where a litigant appears in person, the Court will not be overly strict 
    about form: see
Berg v. Berg
, 2000 BCCA 574.

[22]

In my opinion, it would not be in the interests of justice to remove 
    this appeal from the inactive list.  Mr. Murphy seeks to attack the order 
    of Mr. Justice Groberman made on 14 July 2006 striking out his statement of 
    claim and dismissing the action against all defendants.  In making that order 
    Mr. Justice Groberman said:

I 
    have no hesitation in finding it (the amended statement of claim) to be an 
    abuse of process because it consists largely of claims that have already been 
    dismissed, irrelevant allegations against non-parties, pleadings of evidence, 
    cross references to affidavits, and disjointed pleadings of law unsupported 
    by pleadings of material facts.

Quite 
    apart from these improprieties, the document is almost unintelligible.  It 
    can in no way serve as the basis for an orderly legal process.

[23]

It is evident that there is no prospect of success in an appeal of 
    that order.  Continuing these proceedings would be a further abuse of the 
    Courts processes.

[24]

I dismiss the application to remove the appeal from the inactive list.

IV. THE OTHER APPLICATIONS:

[25]

In light of this disposition, Mr. Murphys other applications, to set 
    aside the order that he post security for costs, the request for a five judge 
    panel, and the request for indigent status, are all moot.  They are therefore 
    dismissed as well.

V. CONCLUSION:

[26]

All applications in file number CA034348 are dismissed.  Mr. Murphy 
    appeared in person.  He has shown reluctance in the past to draw orders, or 
    to approve orders that are adverse to his interest.  No one appeared in opposition 
    to his various applications.  I therefore direct that the registry staff draw 
    and enter the order giving effect to these reasons.  A copy of the order is 
    to be delivered to Mr. Murphy.

The Honourable Chief Justice Finch


