



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Shieh 
          v. Certified General Accountants Association,







2008 
          BCCA 24



Date: 20080122

Docket: CA034881

Between:

Michael 
    Shieh

Appellant

And

Certified 
    General Accountants Association of British Columbia

Respondent




Before:


The 
          Honourable Mr. Justice Chiasson




(In 
          Chambers)








In 
          person by telephone


Appellant




R. 
          Hungerford and S. Haywood-Farmer


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




4 December 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




22 January 2008



Reasons 
    for Judgment of the Honourable Mr. Justice Chiasson:

[1]

On December 4, 2007, several applications potentially were before me 
    in this matter.  They included an application for indigent status filed by 
    Mr. Shieh on March 14, 2007 and a number of applications filed by him on October 
    22, 2007 seeking orders relieving him from complying with a number of court 
    rules.  In addition, the respondent applied for an order dismissing the appeal 
    on the basis Mr. Shieh had failed to comply with the
Court of Appeal 
    Act
, R.S.B.C. 1996, c. 77, the
Court of Appeal Rules
, 
    B.C. Reg. 297/2001, as amended and an order of Madam Justice Prowse.

[2]

On October 30, 2007, Prowse J.A. dismissed Mr. Shiehs application 
    to dispense with the requirement of Rule 39(3), which requires parties to 
    provide an address for service in British Columbia.  She adjourned the other 
    applications to December 4, 2007 and directed Mr. Shieh to provide an address 
    in the Province in the interim.

[3]

Mr. Shieh has failed to comply with several of the various rules relating 
    to preparation, filing and service of notice of appeal, appeal book, appeal 
    record and appellants factum, putting him in violation of Rules 11, 19, 21 
    and 26, in addition to Rule 39(3) mentioned above.

[4]

Mr. Shieh sought the following relief from his violations of the Rules:

1.         
    permit him to file a brief and reply brief longer than 30 pages because 
    the volume of information and documents generated by the CGA Tribunal and 
    Supreme Court hearings cannot be summarized in 30 pages;

2.         
    accept his Appeal Record as filed;

3.         
    permit him to file an Appeal Book larger than 300 pages in a single binder;

4.         
    accept his USA address as the mail service address because he resides in the 
    USA and does not have a Canadian address to serve as an address for service 
    of documents;

5.         
    allow both sides an additional 15 days in addition to the normal filing time 
    because:

a.         
    as Mr. Shieh lives in the USA, mailings and endorsements are taking longer 
    to reach their destination than the normal time, and

b.         
    Mr. Shieh filed his appeal record on May 4 within the required time period 
    but it was not in the proper form; he filed a revised version shortly after 
    the time period expired and was told by the registry that it was in proper 
    form and was filed timely; he did not know it was not accepted by the registry 
    until July.

[5]

As noted, the relief sought in para. 4 was denied by Prowse J.A.  At 
    the hearing before me Mr. Shieh adduced evidence to support the difficulty 
    he has providing an address for service in British Columbia.  It is not open 
    to me to revisit the direction of Prowse J.A., which was unequivocal:

THE 
    COURT: Mr. Shieh, you have to provide an address in British Columbia for service.  
    You have to.  Youre obliged to.  It is not good enough to say I live in California.

[.]

No.  
    The answer is no, Mr. Shieh.  You are going to have to provide an address 
    in British Columbia.  Period.  There must be somebody you know 

[.]

If 
    youre proceeding  if you want to proceed with an appeal in British Columbia, 
    you have to make yourself available through an address for service in British 
    Columbia.

[.]

That 
    is what you are obliged to do.  I will not make an order that you do not have 
    to provide an address in British Columbia for service.  You are going to have 
    to do that.  That is your choice.  If you do not then youre not going to 
    be able to proceed because you wont be receiving anything thats relevant 
    because you havent provided the address.

[.]

MR. 
    SHIEH: Well, I like to comply with the rules and regulations, Your Honour. 
     It is not my idea to violate rules, so that I dont have the opportunity 
    to present my case to the court.

THE 
    COURT: Thats your choice, Mr. Shieh.

MR. 
    SHIEH: But I dont have the address, thats why I made the motion to ask the 
    court to grant me that - -

[.]

THE 
    COURT: The answer is no, Mr. Shieh.  I will not grant you that application. 
     That application is dismissed, and Im making a direction that on or before, 
    lets make it, November the 7
th
, you will provide to the registry 
    with a copy to the respondent an address for service for you in British Columbia.

[.]

[I]f 
    you dont get assistance, I fear that whats going to happen is your appeal 
    is going to be dismissed and to the extent you may have valid grounds of appeal, 
    I think thats unfortunate.  I cant assess whether you have a valid ground 
    of appeal there or not because you buried  youve buried it under so much 
    paper.  Youve buried any ground  any legitimate grounds of appeal under 
    so much paper that its really hard to dig them out, so thats why you need 
    assistance.  [.] So what Im going to do is, Ive given the direction that 
    you provide an address for service.  In the meantime, Im going to ask for 
    one further indulgence from the respondent and that is that they provide the 
    memorandum of argument in this case to you at your California address, Mr. 
    Shieh.  So youll get that memorandum of argument and youll have everything 
    up to date, but after that, you have to have an effective [] address for 
    service, and then what Im going to do is Im going to adjourn your application 
     your various applications [].

[.]

Right. 
     Im going to direct you, Mr. Shieh, to provide  Im going to give you a 
    further week to provide an address  address for service.  Im going to give 
    you until, lets make it the 16
th
of November to provide an address 
    for service.  That gives you some additional time to consult  hopefully to 
    consult this pro bono group.  Perhaps they will put you [in] touch with a 
    lawyer, and that lawyer may be able to assist with the question of getting 
    an address for service.

So 
    Im going to say until November the 16
th
, and thats to provide, 
    again, the registry and also the respondents with an address for service in 
    British Columbia and Im hoping youll be able to get some assistance with 
    that.

[6]

I am satisfied that consideration of the balance of Mr. Shiehs applications 
    was conditional on him complying with Madam Justice Prowses direction by 
    providing an address for service in the Province.  In my view, the only application 
    before me is the respondents application to dismiss the appeal as abandoned 
    because Mr. Shieh has not complied with the condition precedent of a hearing 
    of his applications for relief from the Rules and it is apparent he has no 
    intention to do so.

[7]

The respondents application is based on ss. 10(2)(e) and 28(a) of 
    the
Court of Appeal Act
.  Both authorize a Justice of the Court 
    to dismiss an appeal as abandoned for non-compliance with the
Act
or 
    the Rules.  That jurisdiction can be exercised when a party has failed to 
    comply with an order of the Court:
Stromotich v. Stromotich
, 
    2005 BCCA 82, [2005] B.C.J. No. 251 (Chambers);
Farmers Insurance Co. 
    of Oregon v. Brown
, 2005 BCCA 577, 218 B.C.A.C. 285;
International 
    Hi-Tech Industries Inc. v. FANUC Robotics Canada Ltd.
, 2007 BCCA 639 
    (Chambers).

[8]

Because he has failed to comply with the order of Prowse J.A., Mr. 
    Shiehs non-compliance with the Rules stands unredressed.  The failure to 
    provide an address for service within the Province is itself a serious violation 
    of the Rules, as was made clear by Prowse J.A.  In the absence of such an 
    address, the administration of the appeal is unworkable.  Mr. Shieh has given 
    no indication that he intends to provide the required address and he remains 
    in violation of an order of this Court.  In my view, this appeal should end.

[9]

This appeal is dismissed as abandoned.

[10]

I direct that the order resulting from this application need not be 
    signed by Mr. Shieh and the respondent shall deliver to Mr. Shieh a copy of 
    these reasons and of the order to his address in the United States.

The Honourable Mr. Justice Chiasson


