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


2008 BCCA 53

Date: 20080201

Docket: CA035331


William Joseph Richard








Her Majesty the Queen in Right

of the Province of British Columbia




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 LLP’s standing to the panel.  They also bring an application to quash the appeal on the ground that it is an abuse of the Court’s 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. (4th) 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 LLP’s 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 court’s 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 court’s 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 court’s 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”