



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Richard 
          v. H.M.T.Q. (British Columbia),







2008 
          BCCA 53



Date: 20080201

Docket: CA035331

Between:

William 
    Joseph Richard

Appellant

(
Plaintiff
)

And

W.H.M.

Respondent

(
Plaintiff
)

And

Her 
    Majesty the Queen in Right

of 
    the Province of British Columbia

Respondent

(
Defendant
)




Before:


The 
          Honourable Madam Justice Levine




The 
          Honourable Madam Justice Kirkpatrick




The 
          Honourable Mr. Justice Tysoe



Oral Reasons for Judgment




S. 
          Tucker

D. 
          Klein


Counsel for the Appellants




D.C. 
          Prowse, Q.C.

W. 
          Branch

K. 
          Horsman


Counsel for the Respondent Province of British Columbia




A. 
          Murray


Counsel for the Public Guardian and Trustee




R.N. 
          McFee, Q.C.

V. 
          Allard


Counsel for Poyner Baxter




Place 
          and Date:


Vancouver, British Columbia




1 February 2008



[1]

LEVINE, J.A.
: On November 9, 2007, Rowles J.A. granted leave to appeal 
    the order of Butler J. made July 23, 2007, removing Poyner Baxter LLP as counsel 
    for the class in this class proceeding.  She deferred the question of the 
    standing of Poyner Baxter LLP to bring the appeal to the panel that hears 
    the appeal.

[2]

The representative plaintiffs, W.H.M. and William Joseph Richard, apply 
    pursuant to s. 9(6) of the
Court of Appeal Act
, R.S.B.C. 1996, 
    c. 77, to vary the order of Rowles J.A. deferring the question of Poyner Baxter 
    LLPs standing to the panel.  They also bring an application to quash the 
    appeal on the ground that it is an abuse of the Courts process as there is 
    no appellant with standing to bring the appeal.

[3]

The background of this proceeding is outlined in detail in the reasons 
    for judgment of Butler J. (2007 BCSC 1170), and of Rowles J.A. on the leave 
    application.

[4]

In brief compass, the action was commenced by Poyner Baxter LLP in 
    the name of Mr. Richard, as plaintiff, on behalf of himself and all those 
    living persons who were sexually, physically, emotionally, and psychologically 
    abused while resident at the Woodlands School, a facility operated by the 
    Province for the care and control of mentally handicapped persons and persons 
    in need of psychiatric care.  Woodlands School operated from 1878 to 1996.  
    The action was certified as a class proceeding in March 2005, and W.H.M. was 
    appointed representative plaintiff.  Poyner Baxter LLP was appointed as counsel 
    for the class, and entered into settlement negotiations.

[5]

In 2005, this Court decided in
Arishenkoff v. British Columbia
, 
    2005 BCCA 481, 47 B.C.L.R. (4
th
) 1, that the Crown could not be 
    held liable for torts alleged to have been committed by a servant or agent 
    of the Crown before August 1, 1974, the date the
Crown Proceedings Act
, 
    S.B.C. 1974, c. 24, came into force.

[6]

Arishenkoff
put in question the right of action by former residents 
    of Woodlands School who were resident and whose claims of abuse predate August 
    1, 1974.  W.H.M. is in that class.  Mr. Richard was resident and claims he 
    was abused after August 1, 1974.

[7]

Settlement negotiations continued, and the Province made an offer that 
    would compensate only those persons who were abused after August 1, 1974.

[8]

W.H.M. sought advice from Klein Lyons.  He concluded that the settlement 
    should be rejected.  Mr. Richard wished to pursue the settlement.

[9]

Poyner Baxter LLP brought an application to create two sub-classes 
    of plaintiffs:  those who alleged abuse before August 1, 1974, and those who 
    alleged abuse after that date.  That application was refused, and Mr. Richard 
    was added as a second representative plaintiff.  The result was that Poyner 
    Baxter LLP was now receiving conflicting instructions from the two representative 
    plaintiffs.

[10]

In February 2007, Klein Lyons, acting on behalf of W.H.M., filed an 
    application for an order removing Poyner Baxter LLP as class counsel, on the 
    ground that they acted improperly in attempting to deal with the representative 
    plaintiffs conflicting instructions.

[11]

Poyner Baxter LLP opposed the application, and brought an application 
    for orders amending the class definition to include only those persons who 
    alleged abuse after August 1, 1974, removing W.H.M. as representative plaintiff, 
    scheduling a court hearing to consider the proposed settlement, and in the 
    alternative, that renewed consideration be given to creating two subclasses:  
    a pre Arishenkoff and a post Arishenkoff class.

[12]

Mr. Justice Butler granted the motion removing Poyner Baxter LLP as 
    class counsel, dismissed their application to amend the class definition and 
    remove W.H.M. as representative plaintiff, and adjourned generally the applications 
    to schedule a hearing to consider the proposed settlement or alternatively 
    to create two subclasses.

[13]

Poyner Baxter LLP applied for leave to appeal from the order of Butler 
    J. removing them as class counsel and dismissing the applications to amend 
    the class definition and remove W.H.M. as representative plaintiff.  They 
    also applied to be substituted as the appellant for W.H.M. and Mr. Richard.

[14]

In an affidavit filed on the application for leave to appeal, Gregory 
    Daniel Schiller deposes that after the decision of Butler J., Mr. Richard 
    retained Klein Lyons, and instructed them to move forward with the class proceeding.

[15]

Before the application for leave to appeal was heard, Klein Lyons filed 
    a Notice of Change of Solicitor in the class proceeding, and informed Poyner 
    Baxter LLP that they had been instructed by W.H.M. and Mr. Richard to proceed 
    with the litigation.

[16]

Madam Justice Rowles granted leave to appeal.  She found that the question 
    of the role of counsel in a class proceeding was of significance to this proceeding 
    and to the practice and should be given consideration by this Court.  She 
    did not decide Poyner Baxter LLPs application to be substituted as the appellant, 
    but deferred the question of standing to the panel that hears the appeal.  
    The appeal is scheduled for hearing on February 11, 2008.

[17]

Section 9(6) of the
Court of Appeal Act
provides:

The 
    court may discharge or vary any order made by a justice other than an order 
    granting leave to appeal under section 7.

[18]

The test applied by the court on such an application was set out by 
    Lambert J.A. in
Haldorson v. Coquitlam (City)
(2000), 149 B.C.A.C. 
    at paras. 6-7, 2000 BCCA 672:

It comes to this: that the review hearing is not a hearing 
    of the original application as if it were a new application brought to a division 
    of the court rather than to a chambers judge, but is instead a review of what 
    the chambers judge did against the test encompassed by asking:  was the chambers 
    judge wrong in law, or wrong in principle, or did the chambers judge misconceive 
    the facts.  If the chambers judge did not commit any of those errors, then 
    the division of the court in review should not change the order of the chambers 
    judge.

[19]

W.H.M. argues that Rowles J.A. erred in principle in deferring the 
    issue of standing to the panel that hears the appeal.  He says that the appeal 
    cannot go forward without an appellant, and W.H.M. and Mr. Richard have instructed 
    their counsel, Klein Lyons, to abandon the appeal.  Their application to quash 
    the appeal as an abuse of process is based on the same submissions; essentially, 
    that an appeal where the named appellant does not wish to proceed, and no 
    other person has been granted standing, is an abuse of process.

[20]

It is manifest from the entire background of this issue, from the reasons 
    of Rowles J.A. on the application for leave to appeal, and from submissions 
    of counsel for W.H.M. and Mr. Richard, that the substantive issues on the 
    appeal are intertwined with and inseparable from the question of the standing 
    of Poyner Baxter LLP to bring the appeal.

[21]

The appeal concerns the obligations and responsibilities of class counsel 
    to the representative plaintiffs and to the class as a whole.   Those issues 
    include such questions as the obligations surrounding the receipt of instructions, 
    decisions concerning the course of the litigation, and how counsel is to proceed 
    in the face of conflicting instructions and loyalties.

[22]

The applicants arguments opposing Rowles J.A.s order deferring the 
    issue of standing, and that it is an abuse of this courts process to continue 
    an appeal when the standing issue has not been decided, directly confront 
    the issues to be addressed on the appeal.  In that case, it is not an error 
    of principle to defer the decision on standing to the panel, where it can 
    be dealt with in the full factual and legal context.  There is ample precedent 
    in the practice and procedure of this court, and in the authorities, for a 
    single justice deferring a question arising in chambers to a panel where the 
    question is intertwined with substantive questions that will arise on the 
    appeal:  see for example,
Re Rewers; Guardian Insurance Company of Canada 
    v. Auer et al.
(1989), 38 B.C.L.R. (2d) 34 at 38 (C.A.), and
R. 
    v. Lewis
, 2007 BCCA 539 (chambers).  Madam Justice Rowles followed 
    this established practice in ruling as she did; indeed, in the circumstances 
    it is difficult to see how she could have done otherwise.

[23]

If it is not an error to defer the question of standing to the panel 
    hearing the appeal, it cannot be an abuse of the courts process to continue 
    the appeal on the ground that Poyner Baxter LLP does not have standing to 
    bring it.  All of the arguments concerning the standing of Poyner Baxter LLP, 
    and whether it is an abuse of process for an appeal to proceed in these circumstances, 
    are open to the applicants on the hearing of the appeal.

[24]

Much has been written by learned judges and scholars on the complexity 
    of class proceedings.  This proceeding has raised some unusual and difficult 
    legal issues as it has unfolded, and seeking the assistance of the court, 
    including the appeal process, is entirely consistent with the jurisprudence, 
    not only in the United States, which has been cited by both parties, but of 
    the Supreme Court of Canada in
Western Canadian Shopping Centres v. 
    Dutton
, [2001] 2 S.C.R. 534 at para. 51, 2001 SCC 46, where McLachlin 
    C.J. wrote, with reference to Rule 42 of the Alberta Rules of Court which 
    governed class actions:

The diversity of class actions makes it difficult to 
    anticipate all of the procedural complexities that may arise.  In the absence 
    of comprehensive class-action legislation, courts must address procedural 
    complexities on a case-by-case basis.  Courts should approach these issues 
    as they do the question of whether a class action should be allowed:  in a 
    flexible and liberal manner, seeking a balance between efficiency and fairness.

[25]

In my opinion, where the class action legislation does not address 
    the particular procedural complexity that has arisen, the courts have the 
    same role  to address the issue on a case-by-case basis.  The corollary of 
    that is that those involved in the litigation are entitled to seek the courts 
    direction.  It cannot be an abuse of process to do so, or for the court to 
    decide to hear all of the relevant submissions before deciding an important 
    issue on an appeal.

[26]

I would dismiss both the application to vary the order of Rowles J.A., 
    and the application to quash the appeal as an abuse of process.

[27]

KIRKPATRICK, J.A.
: I agree.

[28]

TYSOE, J.A.
: I agree.

[29]

LEVINE, J.A.
: The applications are dismissed.

The Honourable Madam Justice Levine


