



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



Jensen v. Jackman,









2010 BCCA 6




Date: 2010017

Docket:
CA037592

Between:

Tanja Jensen

Appellant

(
Plaintiff
)

And

Clifford James Jackman, Theresa May
Jackson, Paolo and Audrey Benvin, Mary Hominiuk Lakusta, Josip-Pino Sugar, Jana
Pivonkova, Ruth Lea Taylor, Verna Spencer, Donald Moore Cunliffe, Leonard E.
Krog, Lloyd H. Sproule, John W. Horn, C. Vaughan Allin, Christopher G. Green,
Sheila M. Anderson, Glenda Marie Harling, D. Peter Ramsay, Q.C., Richard Franklin
Johnston, Nanaimo Realty cob Royal Lepage Nanaimo Realty, Ash Pabbies,
Sean M. Hogan, Brett R. Vining and Brian J. Senini

Respondents

(
Defendants
)






Before:



The Honourable Madam Justice Garson





(In Chambers)




On
appeal from the Supreme Court of British Columbia, September 25, 2009 (
Jensen
v. Jackman
, S095638)




Appellant:



Appearing
  in person





Counsel for the Respondent lawyers:



M.
  Armstrong





Place and Date of Hearing:



Vancouver,
  British Columbia





November 27, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January
  7, 2010






Reasons for
Judgment of the Honourable Madam Justice Garson:

[1]

Tanja Jensen seeks leave to appeal an order of a
judge of the Supreme Court of British Columbia pronounced on September 25, 2009,
that dismissed her application for leave to file a writ of summons and
statement of claim against the respondents.  Ms. Jensen also applies for
indigent status in this court, pursuant to Rule 56 of the
Court of Appeal
Rules
, B.C. Reg. 297/2001.

[2]


Ms. Jensen was
required to seek leave to commence an action in Supreme Court because on July
22, 1988, Owen-Flood J., made an order under s. 67 of the
Supreme Court Act,
R.S.B.C., 1996, c. 443, that no legal proceedings shall, without leave of the
Court, be instituted by Tanja Jensen in any Court.  Section 67 of the
Supreme
Court Act
in force at that time is now, in identical language, s. 18 of the
Supreme Court Act
.

[3]

Section 18, known as the vexatious proceedings
rule, provides as follows:

If, on
application by any person, the court is satisfied that a person has habitually,
persistently and without reasonable grounds, instituted vexatious legal
proceedings in the Supreme Court or in the Provincial Court against the same or
different persons, the court may, after hearing that person or giving him or
her an opportunity to be heard, order that a legal proceeding must not, without
leave of the court, be instituted by that person in any court.

[4]

Neither written reasons for judgment nor a
transcript of the chambers judges oral reasons for judgment is available, but Ms.
Jensen and counsel for the respondents agree that  the chambers judge, in dismissing
Ms. Jensens application, gave the following reasons:

·

The appellant had not demonstrated that her
proposed action had any merit and, in the alternative:

·

The proposed action amounted to a collateral
attack on previous decisions of the Court below and of this Court;

·

The proposed claims were clearly out of time;
and

·

The proposed claims were scandalous and vexatious.

[5]

Ms. Jensens claims are related to the estate of
her father, who died in 1987.  She says in the materials before this Court that
it has taken her 22 years to gather the documents to file the proposed
statement of claim.  She says in her affidavit that was filed in the proposed Supreme
Court action, I verily believe my father and his three daughters were the victims
of professional, white collar crime between 1983  2009, that involved abuse of
process.

[6]

She attaches to her affidavit in the proposed
Supreme Court action two proposed statements of claim, one is 742 paragraphs,
and 70 pages in length.  The second proposed action is 1578 paragraphs and 200
pages in length.  In this Court Ms. Jensen has filed a memorandum of argument,
also itself prolix, described as a Summary of the Statement of Claim and
Statement of Fact and Law dated September 25, 2009 and the Hearing before the
Honourable Mr. Justice Sewell on September 25, 2009.  It is not possible to ascertain
from these three sets of materials the nature of the claim or causes of action Ms.
Jensen proposes to advance, other than in a most imprecise way.  The proposed
pleadings are unintelligible.  They do not comply with Rule 19(1), which states:
 A pleading shall be as brief as the nature of the case will permit and must
contain a statement in summary form of the material facts on which the party
relies, but not the evidence by which the facts are to be proved.

[7]

The first question for my determination is
whether Ms. Jensen requires leave to appeal the order of Sewell J., or whether
she may appeal from it as of right.  If the order may be characterized as a
final order and not an interlocutory one then Ms. Jensen may appeal as of
right.

[8]

A final order is one that disposes of the rights
of the parties.  An issue that can be the subject of a final order is defined
as a proposition of law or fact defined by the pleadings as a point on which
parties want a decision by the court (
Weyerhaeuser Co. v. Hayes Forest
Services Ltd.
(2008), 291 D.L.R. (4th) 49).  Furthermore, orders made under
the
Supreme Court Act
, s. 18 are not matters of practice or procedure (
Colet
v. The Queen et al.
(1979), 11 C.P.C. 111 (F.C.T.D.) at para. 16).

[9]

Although the question of the necessity for leave
was not mentioned in
Nelson v. Canada
, 2006 BCCA 442, 152 A.C.W.S. (3d)
564, it appears that in that case an appeal from a chambers judges order
denying leave to a vexatious litigant proceeded without leave.

[10]

As refusing a vexatious litigant leave to
commence an action finally decides whether that litigant may file a writ and
statement of claim in a particular matter, an order refusing leave under this
section must, in my view, be a final order.

[11]

I therefore conclude that Ms. Jensen does not
require leave to appeal the order of Mr. Justice Sewell denying her leave to
commence the contemplated Supreme Court action.

Indigent Status Application

[12]

Ms. Jensens second application is for indigent
status pursuant to Rule 56, which provides as follows:

Despite anything in these rules, no fee is
payable to the government by a person to commence, defend or continue an appeal
or application if a justice, on application before or after the commencement of
the appeal or application, finds that the person is indigent, unless the
justice considers that the position being argued by that person

(a)        lacks merit,

(b)        is scandalous, frivolous or
vexatious, or

(c)        is
otherwise an abuse of the process of the court.

[13]

The purpose of granting indigent status was discussed in
Trautmann v. Baker
,
[1997] B.C.J. No. 452 at para. 4 (Hall, J.A. in Chambers):

[4]         As
I see it, the underlying rationale for the granting of indigent status is to
ensure that no litigant will be denied access to the courts by reason of
impecuniosity.  [T]he concern of the court must be that no arguably
meritorious case should be prevented from getting a hearing merely because a
person is without the financial resources to carry on with the litigation. ...

[14]

There are two criteria the chambers judge must examine in determining
whether indigent status should be granted: the likelihood of success of the
appeal, and the financial position of the appellant (
Duszynski v. Duszynski
,
2001 BCCA 155 at para. 3, 149 B.C.A.C. 153 (Ryan, J.A. in Chambers)).

[15]

A person will be indigent if, although he or she may have some means,
they are so scanty that he or she is needy or poor (
Griffith v. House
,
2000 BCCA 371 at paras. 3-4 (Hall J.A. in Chambers)).

[16]

I conclude from the material provided that Ms.
Jensen satisfies one criteria to be granted indigent status, that is, she does
not have the financial means to pay court filing fees.

[17]

I turn now to the second aspect of the test for
indigent status.

[18]

Indigent status will not be granted in appeals that are
(on the merits) bound to fail or where there is no reasonable basis for an
appeal (
Kohlmaier v. Campbell
,
2003 BCCA 61 at para. 5 (Rowles J.A. in Chambers)).

[19]

In
Weber v. British Columbia
(Ministry of Social Services)
(1997), 86 B.C.A.C. 70 at para. 5,
Newbury J.A. (in Chambers) found:

[5]         [I]f
one extrapolates from Appendix C of Schedule 1 to the Supreme Court Rules,
which states that indigent status may be granted unless the court considers
that the claim or defence discloses no reasonable claim or defence as the case
may be, the application should be dismissed if no reasonable basis for an appeal
exists. (To this extent, it is necessary for me to make some judgment about the
merits of the appeal, although generally such a result should obviously be
avoided.)

[20]

Applying these tests to this case, means that Ms.
Jensen must establish that her appeal is not without merit.  Her appeal will
only succeed if she can prove that her proposed claim against the defendants
is reasonably founded or arguable:
Nelson v. Canada
at para. 8.

[21]

A claim for indigent status may be declined if the litigants proposed
action is scandalous, frivolous, or vexatious or if it is otherwise an abuse of
the process of the court.  See
British Columbia
Mental Health Society (c.o.b. Riverview Hospital) v. Louis
,
[1998] B.C.J. No. 1286 at paras. 26-27 (Braidwood J.A. in Chambers):

[26]      Considering all of the
circumstances surrounding this case and the complex history of proceedings
between these parties at both levels of court, I am convinced that Mr. Louis is
abusing the court process.  To grant him indigent status on this application
would, in my view, only encourage him to bring more applications with
continuing disregard for the jurisdictional limits of the courts and the
procedural requirements of our civil litigation system.

[27]      It is
clear to me that Mr. Louis continues to refuse to participate in our court
process on anyones terms but his own.  In such circumstances, although an
appeal as of right lies from the decision of Preston, J. regarding the
counterclaim, Mr. Louis must fund the endeavour himself.  Indigent status is
denied.

[22]

The original order of Mr. Justice Owen-Flood
made on July 22, 1988, provided that the Caveat filed by Ms. Jensen on April
22, 1988, be cancelled, that all documents by Ms. Jensen in the matter of the
estate of Walther (Walter) Behrens Jensen be struck out, and that pursuant to
s. 67 (now s. 18) of the
Supreme Court Act
, R.S.B.C. 1979 (then in
force), no legal proceedings shall, without leave of the Court, be instituted
by Ms. Jensen in any Court.

[23]

This vexatious litigant order concerning Ms.
Jensen was considered by Gibbs J.A. (in Chambers) in
Jensen v. Jensen Estate
,
10 B.C.A.C. 1, 37 A.C.W.S. (3d) 795, on December 20, 1991.  Mr. Justice Gibbs
dismissed Ms. Jensens applications to extend time to file a notice to appeal
several orders made against her from 1987 to 1990.  In doing so, he outlined
some of the background of this matter (at para. 5):

[5]        All
of the orders [previously made against Ms. Jensen] were made in connection with
the probate and administration of the estate of Walter Behrens Jensen,
deceased, or in connection with consistent and persistent attempts by the
applicant to interfere in the due administration of the estate.  The
interference reached such a vexatious level that as long ago as July 22, 1988
Owen-Flood, J., made an order under s. 67 of the
Supreme Court Act
that
no legal proceedings shall, without leave of the Court, be instituted by Tanja
Jensen in any Court, and that all documents filed by her in the matter of the
estate be struck out.

[24]

The matter underlying the appeal now before the Court
appears to have as its origin the same subject matter that Mr. Justice Gibbs
discussed in the above cited passage, and also to be related to the subject
matter of the original Owen-Flood J. vexatious litigant order.  I recognize
that the claims have been expanded considerably in the proposed statements of
claim.

[25]

The proposed claims appear to be claims against
the lawyer defendants for professional misconduct and conspiracy.  Ms. Jensen appears
to claim that the lawyer defendants were involved in depriving her, or
defrauding her, of the estate of her late father Walter Behrens Jensen over the
last twenty years.

[26]

The precise nature of the claims Ms. Jensen
advances is unclear.  Her proposed statements of claim are, as I have already
said, prolix.  It is not for the Court to articulate for a litigant, from such
materials, a comprehensible and legally cognizable cause of action.  Pleadings
must enable the court, within a reasonable time in review of the pleading, to
find in those pleadings the cause of action, and the material facts upon which
the cause of action is based.  Ms. Jensens proposed pleadings are an abuse of
the courts process because they do not meet these minimum requirements of
pleadings.  In saying this, I recognize that Ms. Jensen is self-represented and
may be entitled to some latitude in meeting the requirements of pleadings, but
where, as here, the pleadings do not satisfy the function of pleadings at all,
they are an abuse of the process of the court.

[27]

Further, it appears to me that Ms. Jensens application
for leave to bring an action, is essentially an extension of the legal
proceedings that led to the vexatious litigant order to begin with. However, having
concluded that the proposed action is an abuse of process, it is unnecessary
for me to comment further on the merits of the proposed action.

[28]

Although an appeal as of right lies from the
decision of Sewell J., the proposed action does not meet the requirements of
Rule 56, indigent status is denied.

The Honourable
Madam Justice Garson


