



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:



Booty v. Hutton,









2009 BCCA 29




Date: 20090130





Docket: CA036259; CA036260

Docket: CA036259

Between:

Charlein Booty

Respondent

(
Petitioner
)

And

Gordon Stanford Hutton
(Allen Hutton, Agent)

Appellant

(
Respondent
)

 and 

Docket: CA036260

Between:

Gordon Stanford Hutton
and Allen Hutton

Appellants

(
Plaintiffs
)

And

Charlein Booty

Respondent

(
Defendant
)




Before:



The Honourable Mr. Justice
  Donald





(In Chambers)









A. Hutton



Appearing in person





D. H. Unterman



Counsel for the Respondent







Place and Date of Hearing:



Vancouver
, British Columbia





January 19, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January 30, 2009




Reasons for Judgment
of the Honourable Mr. Justice Donald:

[1]

Allen Hutton, as agent for Gordon
Stanford Hutton, applies for an extension of time to apply for a review of the
order of 14 October 2008 of Mr. Justice Frankel, in chambers, dismissing his
application for leave to appeal.

[2]

Charlein Booty applies for a
declaration that Allen Hutton is a vexatious litigant and for an order quashing
the proceedings as vexatious.  In the alternative, she applies for security for
costs in the Supreme Court and in this Court.

[3]

Allen Hutton, son of Gordon
Stanford Hutton, deceased, conducts this litigation as agent of his fathers
estate.  Whether he is the estates legal representative has not yet been
determined.  For clarity, I refer to father and son as Gordon and Allen and
I intend no disrespect in using their given names.

[4]

Charlein Booty is the sister of
Gordon.  Gordon was the executor of their fathers estate.  Ms. Booty
successfully claimed in a contempt proceeding that Gordon did not administer
the estate properly and, on 20 November 1996, she received a judgment for
$40,000 plus costs from Madam Justice Boyd.

[5]

Gordon brought an appeal,
CA022525, but did not pursue it.  It was dismissed as abandoned on 21 May 1998
pursuant to s. 25(5) of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77.

[6]

Gordon died in 2004.

[7]

Allen is convinced that Madam Justice
Boyds judgment is a miscarriage of justice.  In that belief, he brought an
application in September 2004 to set aside her order.  That was dismissed by
Mr. Justice Shabbits in oral reasons (22 September 2004), Vancouver A932373
(B.C.S.C. Chambers), on the holding that he lacked jurisdiction to overturn
another Supreme Court judges decision.

[8]

Allen also applied at the same
time for production of documents relating to two estates in the Hutton family,
which documents he asserted would show the wrongness of Madam Justice Boyds
order.  Mr. Justice Shabbits held that production of documents bearing on the
validity of the order was a matter for the Court of Appeal.

[9]

On 12 January 2005, Mr. Justice
Holmes adjourned Allens applications to review and set aside or stay the
orders of Mr. Justice Shabbits so that the application could be brought before
Shabbits J.

[10]

On 5 June 2008, Shabbits J.
dismissed the applications to review and stay his earlier orders:  (5 June
2008), Vancouver A932373/S016658 (B.C.S.C. Chambers).  He ruled that the formal
orders as settled reflected the relief that he pronounced in his reasons for
judgment.  It is from this decision that the appeal is taken.

[11]

Allen applied for an order
dispensing with the requirement to serve the notices of appeal on Ms. Booty. 
This was refused by Madam Justice Rowles, in chambers, on 14 August 2008.  In
the course of her reasons, she remarked:

[7] 
I would add that it appears to me that Mr. Huttons applications have no merit
and it may be time for an order to be made preventing him from bringing any
further appeal proceedings without leave from a justice of this Court.

[12]

Leave to appeal was dismissed by
Mr. Justice Frankel, in chambers, on 14 October 2008.

[13]

The time limit for applying to
vary an order of a single justice is seven days.  Allen filed his application
on 17 November 2008, about three weeks late.  His explanation is that he was
unaware of the short time requirement and proceeded as quickly as he could.

[14]

It seems obvious that the review
of Frankel J.A.s order refusing leave is bound to fail on the ground that
Allen has appealed the wrong order of Shabbits J., i.e., instead of
appealing the substantive order, he appealed the refusal to vary that order. 
The only issue that can arise in respect of the latter is whether the order
conformed with the reasons, and there is no apparent disparity.

[15]

Allen hopes that the appeal will
open up the whole miscarriage issue as he sees it.  He is certain to be
disappointed in that expectation.

[16]

My view of the merits, which is in
accord with Rowles J.A.s assessment mentioned earlier, is not by itself a
sufficient ground for refusing to extend time; nor, for that matter, is it
enough for a vexatious litigant order.

[17]

The delay of three weeks in
bringing the variance application is not inordinate.  A single judge should not
refuse an extension on account of lack of merit alone:
Dadashzadeh v. British Columbia (Motor Carrier Commission)
, 2003 BCCA 463, 35 C.P.C. (5th) 276
(Chambers), Rowles J.A.

[18]

I cannot say that the application
for an extension of time or other processes taken so far in the Court of Appeal
rises to the level of vexatious conduct.  While a pattern of persistent
vexatious behaviour is beginning to emerge, it is inchoate at this point:
Koch
v. Mitchell
, 1999 BCCA 16, 118 B.C.A.C. 176.

[19]

If the review application goes
before a division of this Court and is dismissed, Allen must accept that the
order of Boyd J. can no longer be challenged.  Any further litigation in that
regard will likely result in a vexatious litigant order.

[20]

Turning to the application for
security for costs, Ms. Booty asks for security in the amount of $3,921.99
unpaid costs in the Supreme Court and $2,500 in this Court.

[21]

The authority to order security
for trial costs can be found in s. 10(2)(b) of the
Court of Appeal Act
. 
In
Aikenhead v. Jenkins
, 2002 BCCA 234, 166 B.C.A.C. 293 at para. 30,
Madam Justice Ryan, in chambers, stated the three principles to be considered
in the exercise of discretion in ordering security for trial costs:

1.         The
onus is on the applicant to show that it is in the interest of justice to order
posting for security of a trial judgment and/or of trial costs.

2.         The
applicant must show prejudice if the order is not made.

3.         In
determining the interests of justice the chambers judge should consider the
merits of the appeal and the effect of such an order on the ability of the
appellant to continue the appeal.

[22]

In my opinion, an order for
security for trial costs is appropriate.  The appeal has no merit.  Allen has
not paid outstanding costs from 2004, 2005 and June 2008, despite having the
ability to pay.  He owns a home in Vancouver and a farm in Saskatchewan. 
Posting security will not impede his opportunity to pursue the appeal.

[23]

Although Allen has real property,
he denies having any income.  Recovery of appeal costs is likely to be
difficult.  Given the absence of merit in the appeal and the demonstrated
refusal to pay other court costs, I consider it in the interest of justice to
order security for appeal costs.

[24]

The estimate of $2,500 for
proceedings to date plus the hearing of the variance application is not
unreasonable.

[25]

In the result, I extend the time
to file the application to vary to the date of filing.  I direct that the
variance hearing be set down on the date that security for costs is posted, and
that the hearing itself be no later than one month from that date.  I order
security for costs in the amounts stated and stay the proceedings until
security is posted.

The Honourable Mr. Justice Donald


