ITA ROBBINS, FRANA MATICH v. GLEN P. ROBBINS, 2011 BCPC 364

Citation: Robbins, Matich et al. v. BMO Bank of Montreal Date: 20111130 2011 BCPC 0364 File No: C12033 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ITA ROBBINS, FRANA MATICH and GLEN P. ROBBINS CLAIMANTS AND: MINISTRY OF THE ATTORNEY GENERAL (B.C.) - LEGAL SERVICES BRANCH, BMO BANK OF MONTREAL, THE LAW SOCIETY OF BRITISH COLUMBIA and ELLIS ROADBURG DEFENDANTS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Appearing for the Claimants: G. Robbins Counsel for the Defendant BMO and Ellis Roadburg: R.J.

Ellis Counsel for the Defendant Ministry of the Attorney General (B.C.) - Legal Services Branch : C. Johnston Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: October 19, 2011 & November 30, 2011 Date of Judgment: November 30, 2011 [ 1 ] THE COURT: The defendants, Bank of Montreal, and the Ministry of the Attorney General B.C. Legal Services Branch apply, under Rule 7(14) and Rule 16(6)(

o) to have the claimants' Notice of Claim against them struck out on the basis that it discloses no reasonable claim, is unnecessary, scandalous, frivolous, vexations, duplicitous and barred by the principle of res judicata and amounts to an abuse of the process of the court.

So reads in part at least, the application of the defendant, Bank of Montreal, filed September 23rd, 2011 at paragraph 4. [ 2 ] A similar application was filed earlier in time on August 24th, 2011 by the law firm, Ellis Roadburg, which is the law firm which at all material times acted for the Bank of Montreal, at least with respect to the matters that might be said to have given rise to the litigation between the claimants and defendants, namely a mortgage foreclosure and a debt action wherein two of the three claimants in the case at bar, save Mr.

Robbins, were parties. [ 3 ] Her Majesty The Queen in right of the Province of British Columbia has also applied on October the 11th, 2011 to have this action struck out on the basis that the defendant has been improperly joined. However, at the hearing on October 19th before me, Mr. Johnston, counsel for this defendant also relied on the grounds referred to above, and by adopting Mr.

Ellis' submissions, really advanced same on behalf of his client. [ 4 ] The court file discloses an affidavit of service sworn October 7th, 2011, prepared by one Michael Yamamoto which states that the Bank of Montreal application filed September 23rd, 2011 and supporting affidavit of Rachel Manicom, was served on all three claimants in the case at bar by September 27th, 2011. I assume a copy was provided to Mr. Johnston. As to his application, I have no affidavit of service on file, but assume it was properly served on the claimants. At the hearing on October 19th before me, Mr.

Robbins did not assert otherwise. [ 5 ] The Bank of Montreal application makes reference in its statement of facts to an affidavit of one Ildiko Grizer. This affidavit is

lengthy and was sworn in the case at bar on August 24th, 2011. It is referred to in the earlier application filed by Ellis Roadburg on August 24th, 2011, at paragraph 5. Reference was made to it at the hearing before me, and without objection from Mr. Robbins, and again, I assume a copy of the same was earlier provided to the claimants in the case at bar. [ 6 ] No affidavit material has been filed by any of the claimants in the case at bar disputing any of the facts or documents set out in the Manicom or Grizer affidavits.

In the result, these facts, for purposes of these applications before me, appear not to be in dispute. [ 7 ] The jurisdiction of this court to make the order sought following an application in court is confirmed in the case of Watch Lake, North Green Lake Volunteer Fire Department Society v. Peter Haskins et al , [2010] BCPC 114, a judgment of Bayliff P.C.J., of this court in paragraph 9 wherein she states, as follows: [9] In my view the court does have "the power to make" an order of dismissal in certain cases and I look to Rule 7(14)(

i) for guidance about when such an order can be made. That Rule provides that a judge at a Settlement Conference may dismiss a claim if a case is "(

i) without reasonable grounds, (ii) discloses no triable issue, or (iii) is frivolous or an abuse of the court's process". In my view the same test should be applied when the court is proceeding under Rule 16(6)(o). [ 8 ] This is the only case provided to me by anyone at the hearing on October 19th, 2011. Other cases decided under our Rule 7(14) (

i) support the following legal principles that the court is to use in deciding applications as here made under the Rule in question. 1. The court does have jurisdiction to dismiss an action for abuse of process which can be commencing a second similar action following the dismissal of a first action. See, for example, Bank of Montreal v. Smith , June 28th, 1993, Vancouver action number C92- 11939, a judgment of Burdett, P.C.J. 2. The concept of no reasonable claim, while not expressly referred to in Rule 7(1)(

i) is clearly encompassed, I find, within a claim "without reasonable grounds". The former phrase means a claim in which a trial judge could not make a finding of liability in favour of the claimant even if admissible evidence presented was found by the trial judge to be true. See, for example, Nicholson v. Lum , [1996] BCJ 860 , Martinson, P.C.J., as she then was. 3. Where a claim has already been adjudicated upon by the court in a previous action, it can be dismissed. See Harvey v. Matacheskie [2003] BCPC 8, Rodgers, P.C.J. 4.

Dismissing a claim at a settlement conference is a remedy to be used sparingly and only in clear cases or plain and obvious cases or where the claim is bound to fail. See Eco-Tourism 2010 Society v. Vancouver 2010 Bid Corporation , [2005] BCPC 23, Skilnick, P.C.J. and 0763486 B.C. Ltd. v.

Landmark Realty Corp. , [2009] BCSC 810, Fisher J. [ 9 ] I observe as distinct from a settlement conference where sometimes a party does not learn, until in the conference itself, that his or her claim is sought to be dismissed, here all three claimants had notice of the applicant's intentions well in advance of the hearing on October 19th and two elected not to appear thereat including by counsel. Only Mr. Robbins appeared and none chose to file any affidavit material, as I have said. 5.

There is authority that where the court is concerned about the lack of a valid cause of action, it should accept the facts pled as proven in assessing same. The jurisdiction given under Rule 7(14)(

i) should not be exercised where the facts are in dispute or are poorly articulated. See Pugsley v. Harrison [2007] BCPC 370, Skilnick, P.C.J., and the aforementioned Landmark decision. [ 10 ] In Howard et al v. Madill [2009] BCPC 355, Skilnick, P.C.J., said that it was clearly an abuse of process to commence a court proceeding to relitigate something that had already been decided in another court or tribunal having jurisdiction to rule on the matter. In the Harvey case referred to above, the parties were not the same in the two cases Judge Rodgers was considering, as in the case at bar. In dismissing Mr.

Harvey's claim against his former solicitor, Ms. Matacheskie, in the second action, Judge Rodgers said this in paragraph 16 of his reasons, and I quote: A possible distinction arises from the fact that the parties in the first action ( Harvey v. Commissionaires ) are not the same parties in the within action ( Harvey v. Matacheskie ). However, all of the issues in the second action were determined by the Court in the first action. Therefore, I find that the second action is merely an attempt by Mr. Harvey to re-litigate an issue which has already been determined by the Court. [ 11 ] Mr.

Harvey attempted to bring another action in 2008 against Ms. Matacheskie's law office: John Harvey v. Hastings Labour Law Office , [2008] BCPC 381. Judge Yee of this court at paragraph 20 of his reasons incorporated a quote from Chief Justice McEachern in the case of Saskatoon Credit Union Ltd. v. Central Park Enterprises Ltd. , [1988] 22 BCLR (3d) 89 at page 242 of his reasons in dismissing Mr.

Harvey's third claim under Rule 16(6)(0) as follows: "I ventured to suggest this principle: if there has been an issue raised and decided against a party in circumstances in which he has had a full and fair opportunity of dealing with the whole case, then that issue must be taken as being finally and conclusively decided against him. He is not at liberty to reopen it unless circumstances are such as to make it fair and just that it should be reopened.

It is my conclusion that subject to the exception I shall mention in a moment, no one can relitigate a cause of action or an issue that has previously been decided against him in the same court or in any equivalent court having jurisdiction in the matter where he has or could have participated in the previous proceeding, unless some overriding question of fairness requires a hearing.” (My own emphasis added.) [ 12 ] The case of Graystone v.

Sun Alliance , [1995] BCJ 1914 has been discussed in litigation brought historically in this court where a dismissal, as in the case at bar, is sought under Rule 16(6)(o), one example being Ezekiel v. Macauley ,[2009] BCPC 372, and a second case being Smith v. Collett , [2009] BCPC 344. Judge Bayliff said this, in part, beginning at paragraph 22 of her reasons in Smith with

respect to the Graystone decision. The case concerned the sinking of a 25 foot pleasure boat, the "Fidelis", owned by Graystone. Acting on the advice of an engineer, Sturges, Sun Alliance refused to pay Graystone. Graystone sued Sun Alliance (the "first lawsuit") and was successful. During that first lawsuit Graystone was advised by the Settlement Conference judge to include Sturges as a defendant. Graystone neglected to do so until just before the trial was due to start. The trial judge, Judge Martinson, as she then was, dismissed his application to add Sturges at that late date.

The first lawsuit proceeded and, as indicated, Graystone was successful and the insurance company was ordered to pay up to the limit of the policy for the loss of the vessel. About 5 months after the result in the first lawsuit Graystone sued the engineer Sturges (the "second lawsuit") on the basis that Sturges had given incorrect advice to the insurance company thereby costing Graystone money in various ways. At the Settlement Conference Sturges raised res judicata and abuse of process.

After a hearing Judge Martinson dismissed Graystone's second lawsuit on those grounds. [ 13 ] She further stated in paragraph 24 of her reason that Judge Martinson had dismissed Mr. Graystone’s second lawsuit holding that the doctrine of res judicata applied, and if it did not, it would be an abuse of process of the court to allow the second lawsuit to proceed saying this: "The new claim arises out of the same event as the first, the sinking of the "Fidelis". All of the matters raised in the new claim were known to Mr. Graystone from the beginning.

At the Settlement Conference he was alerted to the fact that there may be further steps that he could take and that he could seek legal advice...There are several reasons why the filing of a new claim is a problem. Two days of trial time have already been spent considering the sinking of the vessel...The other Defendants reasonably thought that the matter was concluded. Now nearly a year has gone by and it is harder to defend the case and to arrange for witnesses to come to court.

The most important factor is that it is in the interests of the administration of justice to have all matters known to a claimant and arising out of the same incident heard at the same time." [ 14 ] In the result, it is apparent that if one of the parties could have been sued in a previous action, the plaintiff may be barred from launching a subsequent action against them.

In my view, the same principle applies equally with respect to a similar action with a new plaintiff who might have participated in earlier litigation on the same issues, and yet declined to do so especially, as here, where the new plaintiff is closely related to the existing plaintiffs in the historical litigation, and it is not suggested that all matters in the new action sought to be dismissed were unknown to him at the time the previous litigation was commenced and was ongoing. [ 15 ] Replies have been filed in the action in this court by The Law Society of British Columbia on June 14th, 2011, by Ellis Roadburg on June 20th, 2011, and by the Bank of Montreal and Ellis Roadburg on June 22nd, 2011.

All convey a common theme that the Notice of Claim filed in this action on June 7th, 2011 by Ita and Glen P. Robbins, husband and wife, and his mother-in-law, Frana Matich, disclose no reasonable cause of action and is an abuse of the court's process. [ 16 ] The last reply does not expressly state that the Notice of Claim discloses no reasonable cause of action, but that, on a reasonable construction, I think, is the essence of it. [ 17 ] On October the 11th, 2011, the defendants, Ita Robbins and Frana Matich, formally withdrew their claims against the defendant Law Society and the Bank of Montreal.

On the same date, Glen Robbins, Ita Robbins and Frana Matich, withdrew their claims against the firm of Ellis Roadburg. [ 18 ] In the result, Glen Robbins is now, as I understand it pursuing claims in this action against The Law Society, Bank of Montreal and Ministry of the Attorney General - B.C. Legal Services Branch. As well, Ita Robbins and Frana Matich are still pursuing their claims, however, only against the Ministry of the Attorney-General, B.C.

Legal Services Branch. [ 19 ] No application was filed in this court by The Law Society to strike out any of the claims advanced in the litigation in this court. [ 20 ] The Notice of Claim filed herein on June 7th, 2011, claims that the Bank of Montreal (BMO) initiated a foreclosure action against the plaintiff's property without notice, and they claim for contract conversion. It is alleged BMO directed the defendant Ellis Roadburg to obtain a court order in the Supreme Court of British Columbia by fraud.

Insofar as this might suggest this law firm allegedly acted in a fraudulent way, that claim is now withdrawn by all named claimants. For the same reason, I will not describe any other claims advanced in the Notice of Claim against this law firm. [ 21 ] The Notice of Claim further alleges that the Ministry granted an order to BMO in the Vancouver Provincial Small Claims court without following due process and its own rules. It asserts the Ministry directed a B.C. Supreme Court judge to ignore evidence and due process to the plaintiffs causing them, among other things, financial hardship.

Lastly, it alleges the Ministry acted in bad faith in dealing with Ita Robbins and Ms. Matich in a matter before the B.C. Supreme Court relating to the Vancouver Provincial Small Claims Court action. [ 22 ] It also alleged that the defendant Law Society of British Columbia encouraged and promoted each of the defendants and their legal counsel to commit fraud and to suborn perjury in obtaining orders from both Provincial and British Columbia courts.

No particulars are given. [ 23 ] Total money damages of $22,500 are sought against the three remaining defendants facing claims, namely $14,000 against the Bank of Montreal, $5,500 against the Ministry and $3,000 against The Law Society of British Columbia. I will return to these allegations later in these reasons. [ 24 ] The BMO reply filed June 22nd, 2011, asserts, in part, the claims in this action are barred as res judicata as the Supreme Court of British Columbia previously dealt with and adjudicated on the same issues in two Vancouver actions, namely numbers S106413 and H090024. Litigation History

[ 25 ] I will attempt to summarize the past history of litigation involving various of the parties before me. This history did not include Glen Robbins as a named party likely because he was not a registered owner of the foreclosed property located at 1355 Honeysuckle Lane, Coquitlam, British Columbia. Only his spouse and mother-in-law were on title. It is clear from the submissions made before me and the material filed that he was, at all times, very involved in the historical litigation commenced by his wife and mother-in-law or wherein they were defendants or respondents. Mr.

Robbins cannot be seen as a person who is inexperienced with court processes in my view. [ 26 ] Certain of the historical litigation is discussed by Grauer J. in reasons given October 3rd, 2011 in an action commenced by The Law Society in the Supreme Court of British Columbia, number S111171, against Mr. Robbins which deals with an application for orders sought by our Law Society to, among other things, enjoin permanently Mr.

Robbins from commencing, prosecuting or defending a proceeding in any court in his own name or the name of another person, save as permitted by s. 15(1) of the Legal Professions Act , S.B.C. 1998 Ch. 9 . [ 27 ] The Bank of Montreal commenced legal proceedings being a foreclosure against Ms. Ita Robbins and her mother, Ms. Matich, in January 2009, which I have referred to, with respect to a mortgage on the Honeysuckle Lane property which Grauer J. accepted was Mr. Robbins' residence too. See paragraph 2 of his reasons. [ 28 ] An order nisi foreclosure was obtained and a certificate of costs.

Grauer J. found the amount owing was some $198,449.33. He then stated, in paragraph 10 to 19, various other facts that I have considered in making my decision in this case. To save time, I will not read them into the record. [ 29 ] Mr. Robbins did not suggest in his submissions before me on October 19th, 2011, that any of these paragraphs 10-19 contained erroneous information or facts. [ 30 ] For purposes of these reasons, I accept as accurate only the findings of fact made by Grauer J. in these reasons with one exception.

It is not necessary that I adopt or associate myself with any comments he either made relating, for example, to the state of the pleadings in the action he referred to. The single exception is Grauer J.'s cryptic statement, "Honeysuckle Lane was his residence too," which I have just referred to. Insofar as the statement might be argued to be a finding by a Supreme Court judge, that Mr. Robbins had some kind of legal or other interest in the Honeysuckle Lane property, I do not construe this learned judge's statement in this way. He is merely accepting that Mr. Robbins resided at the property in question.

This is different from stating that Mr. Robbins, for example, had a lawful right to mortgage it or sell it. On the evidence before me, he did not. [ 31 ] Insofar as there is a reference in the Bank of Montreal application to a dismissal of an action Mr. Robbins commenced on behalf of his wife and mother-in-law (Supreme Court of British Columbia number S-106413, Vancouver Registry) on September 24th, 2010, and signed at page 27 by Mr.

Robbins as “lawyer for plaintiffs” (when clearly he was not) and the reasons of Adair J. granting this application in favour of the Bank of Montreal and its board chairman, David Galloway, I have reviewed these reasons appended as Exhibit D to the Grizer affidavit. [ 32 ] Insofar as Grauer J. found in his reasons at paragraph 21 that Mr. Robbins, a non-lawyer, was acting for free as a representative of litigants to whom he is related, in matters in which he had an interest, I observe that this is clearly my impression of his role in the case at bar, save he of course now appears as a named claimant.

He did appear, as I understood it, on October 19th, 2011, before me in effect representing all claimants' interests. As I have said, neither his wife or mother-in-law attended court. But he did also clearly state he was a “s. 15(1) litigant” or words to this effect at the outset of the hearing. [ 33 ] To conclude my references to his reasons, Grauer J. found in paragraph 40 that Mr. Robbins, in commencing Supreme Court of British Columbia action number S106413 in his wife's and mother-in-law's name, had breached s. 15(5) of the Legal Professions Act .

He also said in paragraph 47 as follows, and I quote: I should also note that if a person in the position of Mr. Robbins considers that he has a personal interest at stake in the litigation, it is always open to him to apply under Rule 6-2(7) of the Supreme Court Civil Rules to be added as a party. He can then advance his position on his own behalf without transgressing section 15(5) of the Act .

This is because he would fall within the exception permitted by section 15(1)(a). [ 34 ] This appears to be what he has earlier done in the case at bar filed June 7th, 2011, before the hearing in front of Grauer J. occurred. The exception permitted by s. 15(1)(

a) of the Legal Professions Act is stated as follows: 15.1 No person other than a practising lawyer is permitted to engage in the practice of law except (

a) A person who is an individual party to a proceeding acting without counsel solely on his or her own benefit. [ 35 ] No suggestion or submission was made before me by either counsel or Mr. Robbins at the hearing October 19th, 2011 in this court was doing anything in breach of s. 15(1) of the Legal Professions Act or the injunction obtained in The Law Society action at paragraph 48 of the reasons of Grauer J. [ 36 ] I turn now to a

summary review of the claims in action number S106413. On September 24th, 2010, Ms. Robbins and her mother, Ms. Matich, filed a 28-page Notice of Civil Claim against the Bank of Montreal, its chairman of the board, David Galloway, Ellis Roadburg, Her Majesty The Queen in right of B.C., and a long list of other defendants. The Law Society of B.C. was not named as a defendant, nor was the Ministry of the Attorney General for British Columbia. [ 37 ] The Notice of Civil Claim clearly prepared by Mr.

Robbins, who signed it, makes allegations of wrongdoing against the Bank of Montreal and its chairman; for example, that they did not provide timely disclosure relating to monies loaned as required by the Federal Bank Act and, as a further example, that a bank agent, a branch manager, told the two plaintiff homeowners that no independent legal advice was needed relating to the $190,000 mortgage applied for apparently in August 2007 to be charged against the Honeysuckle Lane property.

[ 38 ] I do not intend to set out all of the allegations made against the bank. These are but early examples set out in the pleading. [ 39 ] Insofar as allegations are made against Ellis Roadburg in this Supreme Court of British Columbia action, they are not relevant to the application before me because the claimants have all withdrawn their claims against this law firm in the case at bar.

These earlier allegations therefore cannot now be relevant to the case at bar, and the application made by the Bank of Montreal and Ministry of the Attorney General under consideration. [ 40 ] Supreme Court action number S106413 commenced September 24th, 2010, was started after the commencement on January 8th, 2009, of the Bank of Montreal foreclosure proceeding, action number H090024, and after the order nisi referred to by Grauer J. issued on February 24th,2009. [ 41 ] This Supreme Court action number 106413 in paragraph 25 refers to yet another action commenced by the Bank of Montreal against Mr.

Robbins' wife and mother-in-law in the Provincial Court in Vancouver as follows, and I quote: [25] The plaintiffs assert as a fact that in April 8th of 2010, the defendants, BMO and Ellis Roadburg, filed a Small Claims B.C.

Provincial Court action against them in the amount of $10,480.45 for debt collection for which no notice was provided and allege that this action was not properly served upon the plaintiff, Ita Robbins, and not served at all on the plaintiff, Frana Matich, pursuant to the rules of the Small Claims Court. [ 42 ] This action, number 1030114 was commenced on April 8th, 2010, before Supreme Court of British Columbia action number 106413, and the main allegation would seem to be that the defendants, Ms.

Robbins and her mother, were not properly served. [ 43 ] Paragraph 30 of the Notice of Civil Claim in Supreme Court action number S106413 asserts that the Bank of Montreal obtained an ex parte default order for $10,480.45, no reply having been earlier filed by the named defendants. Paragraph 30 further alleges, in part, and I quote: The plaintiffs further allege that the defendant, Ellis Roadburg, on behalf of the defendant Bank of Montreal and in full cooperation with Her Majesty B.C. obtained a fraudulent default order by way of nefarious arrangement between the defendants.

Defendant BMO, Ellis Roadburg and B.C. Court Services, Her Majesty B.C., or in the alternative, the plaintiffs allege negligence on the part of the defendants, defendant BMO, Ellis Roadburg, and B.C. Court Services, Her Majesty - B.C. or, in the alternative, gross incompetence on the part of the defendants, defendant BMO, Ellis Roadburg and B.C.

Court Services, Her Majesty - B.C., including but not limited to knowingly circumventing due process and proper court procedure by permitting the defendants, defendant BMO, Ellis Roadburg, to merely tick a box within the area of Form 5 SCL 005 which states the plaintiffs had (sic) not filed a reply and the claimant has proved the defendant has been served with a Notice of Claim which the plaintiffs assert each of the defendants, Ellis Roadburg, defendant BMO and Her Majesty B.C. knew either was not true or, in the alternative, had serious mitigating factors attached to it which ought to have been provided to the Provincial Court judge's office for a fair hearing for both the plaintiffs and the defendant BMO. [ 44 ] The two named plaintiffs in the Small Claims action number 1030114 learned, if they did not already know, apparently in a letter from the legal officer of this court, one Gene Jamieson, that they could apply to set aside the above default order.

See paragraph 33. [ 45 ] They apparently did so, but their application may not have been accompanied with an affidavit. (See paragraph 34). [ 46 ] Mr. Robbins, in his submission before me, suggested that it was intended that this application, which is now outstanding, will proceed in the Vancouver Provincial Court. I did not understand that on October 19th, 2011, a firm future date convenient to all involved parties had yet been set or agreed upon, owing in substantial part due to Ms. Matich's alleged ill health. [ 47 ] In the event it is heard, I would have thought the defendants, Ms.

Robbins and her mother, would have an opportunity to place before the court in a sworn affidavit all relevant facts they assert that should lead to the above default order being set aside. Mr.

Robbins, not being a party to this Vancouver Provincial Court action, and I assume not a debtor of the Bank of Montreal with respect to the monies initially claimed, would seem to have no connection to this litigation and the facts in issue beyond perhaps being a witness, and would likewise seem to have no legal right or cause of action to assert in action number 1030114 or elsewhere on his own behalf with respect to this debt, the subject of the default order.

Certainly nothing is suggested. [ 48 ] I will finish my reference to the Notice of Civil Claim in action number S106413 by noting that the relief the two plaintiffs sought included an order from the Supreme Court of British Columbia that the Bank of Montreal mortgage be declared null and void and, as well, various damages against the Bank of Montreal for breach of contract relating to the above $10,000 debt, subject to the default order. [ 49 ] Many of the claims for relief are difficult to understand because they are vague and lack particulars.

I give as but one example paragraph 6 found at page 22 as follows: [6] The plaintiffs, Ita Robbins and Frana Matich seek an order from this honourable court against Her Majesty in right of British Columbia for contributory negligence as this relates to the provision of another order obtained by the defendants, BMO Bank of Montreal and Ellis Roadburg from the plaintiffs, Ita Robbins and Frana Matich, in the amount of $15,500. [ 50 ] The Bank of Montreal applied to have this action dismissed and the matter was initially heard by Madam Justice Adair on January 19th and eventually on February 24th, 2011.

It appears in support of its application, the Bank of Montreal relied on an affidavit sworn by one Shelly Johal, a legal assistant, on December 14th, 2010, placed before me, (Exhibit C of the Grizer affidavit) and which I have reviewed. No suggestion is made by Mr. Robbins that any facts therein are inaccurate. [ 51 ] The hearing before Adair J. was initially adjourned because neither Ms. Robbins nor Ms. Matich were present in court, and Adair J. refused to allow Mr. Robbins to speak as their advocate. The matters were put over in order for the claimants to either appear in person

or obtain counsel. Apparently there were four applications initially before Madam Justice Adair on January 19th. Mr. Johnston, who appeared before me, for Her Majesty The Queen in right of the Province of British Columbia, was then present on behalf of the same party, also an applicant. [ 52 ] On February 24th, neither of the claimants in action number S106413 appeared in person or by counsel in front of Adair J. Only Mr. Robbins did. At this point it seems only the Bank of Montreal application to strike out the Notice of Civil Claim pursuant to Supreme Court Rules 9-5 and 9-7 was advanced before her.

Settlements had been reached earlier, as I understand it, between the claimants and certain of the other named defendants. For example, on February 21st, 2011, a release of all claims was entered into between the two claimants and Ellis Roadburg and their legal assistant, Ms. Johal. [ 53 ] Later on April 5th, 2011, a consent dismissal order was also entered in this action with respect to these same claims. [ 54 ] On February 24th, Madam Justice Adair did not allow Mr. Robbins to address the court as an advocate for the two claimants, his wife and mother-in-law.

She eventually dismissed all their claims against the Bank of Montreal and Mr. Galloway, the chairman of the Board of Directors of the Bank of Montreal. I have reviewed her oral reasons given February 24th, 2011, or at least a transcript thereof. She did so on the basis that the majority of the claims were res judicata and that to allow them to proceed further in the Supreme Court action after the order nisi, a foreclosure and default judgment, would be an abuse of the court's process. [ 55 ] It appears that at the time of the hearing on February 24th, 2011, a settlement with Mr.

Johnston's client was in the works, but it had not yet been finalized. This party did not apparently advance any application before Adair J. on February 24th. There are references in the transcripts of the proceedings before Adair J. to the defendants in the Vancouver Provincial Court action, 1030114 (the debt action commenced by the Bank of Montreal against Ms. Robbins and Ms. Matich) as part of the settlement process, needing time to make an application to the judge of the Provincial Court.

No particulars are given, but I assume the application would be to seek to set aside the earlier default order therein entered, May 27th, 2010, which I have referred to above. [ 56 ] The order made dismissing the claimants' action against the Bank of Montreal and Mr. Galloway was entered in the Supreme Court of British Columbia on February 24th, 2011, and is found at Exhibit B of the affidavit of Ms. Manicom that is before this court. [ 57 ] In the result, the Notice of Claim before this court was filed initially some three-and-a-half months after: 1.

Madam Justice Adair and the Supreme Court of British Columbia dismissed all claims advanced in the Supreme Court action number 106413 by Mr. Robbins, wife and mother-in-law, either relating to their home foreclosure or an earlier debt. 2. After the foreclosure order February 24th, 2009, and 3. After the Provincial Court default order made May 27th, 2010. [ 58 ] I observe that the appearance of the Supreme Court action number S106413 was to attempt to deal with matters earlier litigated in other actions a second time. The submission made by both Mr. Ellis and Mr.

Johnston before me, in their applications, is to the same effect. All matters referred to in the case at bar were earlier before the Supreme Court and dismissed. This action is then, to be blunt, a second kick at the can - my term, not the claimant's - and amounts to an abuse of process based on the above legal principles. [ 59 ] Our court file discloses the withdrawals I have above referred to being filed on October the 11th, 2011, some eight days after Mr. Justice Grauer's reasons were filed. [ 60 ] On October 12th, 2011, Mr. Robbins amended the original Notice of Claim pursuant to Rule 8(1)(

a) of the Rules of this court. I do not see an affidavit of service of same on our court file, but understand that both counsel for the applicants before me, Mr. Ellis for the bank and Mr. Johnston for the Legal Services Branch of the Ministry of the Attorney General, had seen it on October 19th, the date of the hearing. Mr. Johnston said his client had not been properly served with it by October 19th, 2011. I do not see that his client has yet filed a reply thereto, perhaps because it asserts it has been improperly named therein. [ 61 ] I have reviewed these amendments.

Notwithstanding the way page 1 of this document is presented, there appear to be no new matters included thereon. Page 1 contains the content of the original Notice of Claim I have referred to above. At page 2, there appears the opening statement "To: Legal Services Branch, Ministry of Attorney General, B.C." is amended to, "Her Majesty in right of British Columbia." [ 62 ] There are further references to this entity below on page 2 which sets out all newly amended material and this party is also referred to as HMR BC. [ 63 ] Mr.

Johnston states at page 3 of his application before this court that the originally named defendant, Legal Services Branch, Ministry of Attorney General, is not a legal entity and that pursuant to s. 7 of the Crown Proceedings Act , R.S.B.C., 1996, Ch. 89, s. 7 , that in proceedings against our Provincial government, the correct designation is "Her Majesty The Queen in right of the Province of British Columbia." I accept both these statements as accurate. [ 64 ] In the result, both in the initial Notice of Claim and as later amended, the claimants have commenced an action against an improperly named party.

Their action against this unknown entity cannot continue on this basis alone, and it is therefore dismissed. [ 65 ] In dealing with these two applications brought by the Bank of Montreal and Her Majesty The Queen in right of the Province of British Columbia, I am as well asked to exercise a jurisdiction given in Rule 7(14)(

i) that permits a judge of this court to dismiss a claim if, after a discussion with the parties and reviewing the filed documents, he or she determines it is without reasonable grounds, discloses no triable issue or is frivolous or an abuse of the court's process. Ms. Robbins did not appear at the hearing before me on October 19th, nor did Ms. Matich, nor did they send counsel. By reason of the orders made by Grauer J. on October 3rd, 2011, Mr. Robbins could not appear on their behalf.

[ 66 ] I have been unable, therefore, to have any discussion with them as per the language of Rule 7(14)(i) (sic). I emphasize none of the three claimants in the case at bar filed any material or documents for me to consider on the two applications before me including sworn affidavits setting out facts that I am asked to consider. [ 67 ] In this light, I consider whether I should exercise, as requested, the jurisdiction given to me under Rule 7(14)(

i) with respect to the recent amendments before reverting to consider the unchanged allegations at page 1 of the claimants' Notice of Claim. [ 68 ] This is the filed document which deserves my careful attention under Rule 7(14)(

i) referred to above. Paragraph 1 of the amendment states as follows, opposite the heading, "What Happened": 1. The defendant BMO, Bank of Montreal, initiated a foreclosure of the plaintiff property, Glen P. Robbins, who is deemed to have an interest in the property pursuant to the decision of B.C. Supreme Court Justice J. Grauer dated October 3rd, 2011 under B.C.S.C. action number S-111171 cited as Law Society of B.C. v. Glen P. Robbins . [ 69 ] As I have said, I do not read the decision of Mr. Justice Grauer anywhere, including in paragraph 2, as making a finding of fact that Mr.

Robbins is deemed to have a legal or other enforceable interest in the residence on Honeysuckle Lane in Coquitlam. All evidence points to it at all material times having been owned only by his wife and mother-in-law. Mr. Justice Grauer dealt only with a very narrow point, the manner in which Mr. Robbins could appear in court, he not being a lawyer. Nothing more. [ 70 ] This pleading is therefore wrong and frivolous in my view. Alone or with other paragraphs in this pleading, it discloses, in my view, no triable action. It is therefore struck out.

It makes no sense. [ 71 ] Paragraph 2 of the amended Notice of Claim states: 2. The defendant, Her Majesty in right of British Columbia granted a default order in Vancouver S claim to the defendant, BMO Bank of Montreal without proper proof of service which resulted in a court order being issued against the plaintiffs, Frana Matich and Ita Robbins, subsequently registered at Land Titles Office in New Westminster. [ 72 ] This, in my view, also discloses no triable issue.

If the claimants in the Vancouver Small Claims debt action, number 1030114, take the view that the court's granting of a default order was wrong for some valid reason they, as any defendant litigants in this court, can, if they feel aggrieved, make an application to the court which granted the order and support it by proper sworn affidavit material to seek to set it aside. I understand Mr. Robbins now understands this. I must assume he has told the named defendants, his wife and mother-in-law, that they may do this.

He said they intended to do it. [ 73 ] The application is filed but not yet set for hearing, as I have said. They can obtain a copy of our court rules and identify the precise rule in play as part of this process, and I encourage them to do so in advance of any future hearing in this court on point.

It is simply wrong, in my view, to assert that Her Majesty The Queen in the right of the Province of British Columbia had any role to play in this event which should now be litigated in the case at bar. [ 74 ] To allow this claim, if it can even be called that, to proceed alone or with the other allegations in the amended Notice of Claim would, in my view, be an abuse of this court's process. This claim is frivolous.

This court lacks jurisdiction to hear it in the context of this action as distinct from Provincial Court action number 1030114 referred to above, and in the manner I have suggested. [ 75 ] If the claimants in the Small Claims debt action can show, on proper sworn evidence, that the default order which they complain ought not to have been made, it will of course be set aside. That is the way of things. This surely is the remedy they seek, and I have indicated the proper forum in which they should seek it, as have others earlier in time. This claim is therefore struck out. [ 76 ] Paragraph 3 states as follows: 3.

The defendant, Her Majesty in right of British Columbia, HMR BC, agreed with the plaintiffs' under consent order relating to B.C.S.C. action number S106413 to permit the plaintiffs to make an application to a judge at Small Claims Registry to reverse the order against them.

The plaintiffs claim that the defendant, HMR BC accepted the application with affidavit, but purposefully permitted the defendant, BMO, to set the hearing date when they were aware it was not BMO's date to set, and when they had a requisition which evidenced the plaintiff, Frana Matich's cancer surgery and recovery would delay a hearing date as the affidavit provided in the application to a judge was Frana Matich's. [ 77 ] This paragraph is erroneous. Mr.

Robbins was not a party to either the Provincial Court debt action or the Supreme Court of British Columbia action number S106413 and was not named on any order made in this action at any time. Therefore no one agreed with him to do anything. No affidavit is filed herein by Ms. Robbins or her mother supporting any agreement with them. [ 78 ] This aside, this matter was reasonably fully canvassed before me on October 19th at the hearing.

At the heart of this pleading was the setting of dates, as I understand it, for a hearing to set aside the Provincial Court default order or the adjourning of same, arguably without appropriate timely notice being given to each party involved. [ 79 ] I understand this application is now back on the rails in the sense that it is outstanding and Mr. Robbins intends to set it, I would assume, on a date known at the outset to be available and convenient to all parties and their counsel. I have no doubt he will communicate with Mr.

Ellis, counsel for the bank, on this point before setting any future hearing date. [ 80 ] Paragraph 3 seen in this light also discloses no triable issue. It too is frivolous and gives rise to no cause of action. It is dismissed. [ 81 ] Paragraph 4 states:

4. The plaintiff claims against the defendant, The Law Society of British Columbia, for use of his copyright material of the plaintiff, Glen P.

Robbins, "GPR", which material was used by the defendant "LSBC", without the consent of the plaintiff "GPR", which use was for material gain and would not constitute the jurisdiction of fair use. [ 82 ] Absent any affidavit material that sets out facts that might help me understand what this means and, for example, particularizes any claim that might be found therein - I do not say there is one - I am left trying to make sense of this plea in light of the other claims advanced against The Law Society at page 1 of the Notice of Claim as originally filed on June 7th, 2011.

In addition, I have reviewed my notes of Mr. Robbins' submissions before me. They do not help me either. [ 83 ] I note that I do not have an application before me brought by The Law Society with respect to this pleading similar to those filed and served by Mr. Ellis for the bank and Mr. Johnston for the Queen in right of the Province of British Columbia. Nor has any settlement conference been set yet in this matter. [ 84 ] The jurisdiction given to a judge of this court found in Rule 7(14)(

i) is clearly exercisable by him or her at a settlement conference as well as in court as has occurred in the case at bar. Parties to actions are taken to know this. Even though I have doubts that the claims advanced against The Law Society in the Notice of Claim and amendments thereto have any merit, I make no decision whatsoever on this point at this time because I am not invited to do so by The Law Society, nor on October 19th did I preside at a settlement conference.

On October 19th, I heard applications that I assume had been regularly brought before this court with proper advance service and notice on the appropriate parties. [ 85 ] In the result, for now, the claims made only by the claimant, Mr. Robbins, against The Law Society will remain outstanding. I repeat, his wife and mother-in-law on October the 11th, 2011, withdrew their claims against The Law Society. [ 86 ] I direct that a copy of these reasons be provided to The Law Society of British Columbia to a representative of its Legal Department.

In the event The Law Society intends, in future, to apply to this court or assert with Mr. Robbins, at a future settlement conference in this case, that the court should make an order under Rule 7(14)(

i) relating to any claims herein which he has brought against it, I will be seized only of any future application it might make in court. I will not preside at a future settlement conference in this matter should that be the route the parties choose. [ 87 ] Regardless of the future progress of these outstanding claims brought by Mr. Robbins against The Law Society, the court is entitled to know and understand what is the basis for the allegations which are being made by him against this defendant. As well, if the court should be invited in future to deal with these claims under Rule 7(14)(

i) by The Law Society, the court can order an affidavit be prepared by Mr. Robbins essentially particularizing the same. Under Rule 7(14) of the rules of this court, a judge has jurisdiction when making an order under the rules of our court, to impose any condition or give any direction he or she thinks is fair. [ 88 ] I therefore direct that by December 31st, 2011, Mr.

Robbins will file with this court a typewritten double-spaced affidavit sworn by him that fully particularizes in chronological order, and using numbered paragraphs, all facts which he relies on in advancing the claims he has asserted against The Law Society in his amended Notice of Claim anywhere, including the last allegation that I have referred to above at paragraph 4, I believe, of page 2. [ 89 ] He will as well, forthwith upon filing same, and not later than seven days thereafter, forward by registered mail a filed copy of these particulars to The Law Society of British Columbia to the attention of its legal department. [ 90 ] I turn now to the other claims at page 1 of the Notice of Claim.

They are unnumbered, but three now remain for my consideration. On page 1, the third in line states as follows: The defendant, Ellis Roadburg's averted due process and law and committed fraud in obtaining an order from both the Vancouver Provincial Small Claims and B.C. Supreme Court. [ 91 ] Because all parties in the case at bar have withdrawn against the law firm of Ellis Roadburg on October the 11th, 2011, these claims are now, in my view, academic and cannot and will not be litigated now or in future in this court. Accordingly, in my view, I need not make any findings under Rule 7(14)(

i) with respect to the same and I do not. [ 92 ] The first claim at page 1 of the pleadings states, and I quote: The defendant Bank of Montreal initiated a foreclosure of the plaintiff's property without any notice and the plaintiff's claim for contract conversion. The defendant BMO directed the defendant, Ellis Roadburg, to obtain a court order in the British Columbia Supreme Court by fraud. [ 93 ] This claim must be construed as if it is brought only by Mr. Robbins in my view. Had proper claimants - and I do not include Mr.

Robbins in this group as he was not a registered owner of the Honeysuckle Lane residence at any material time - wished to assert a lack of proper notice in the foreclosure proceeding, they might have done so or possibly they might have launched an appeal to a court having jurisdiction in such matters if they had been of the view that the foreclosure order made on February 24th, 2009, by Master McCallum was wrongly made. I do not understand that they did so. [ 94 ] There is no suggestion before me that Mr.

Robbins was entitled to any notice in the foreclosure action, he not being a registered owner of the subject property. The two claimants named in the case at bar, Ms. Robbins and Ms. Matich, did, in Supreme Court action number S106413, take issue with both the irregularity of the foreclosure action and the overall conduct of the Bank of Montreal therein. All these claims were dismissed by Madam Justice Adair as I have stated.

In my view, her reasons for doing so apply with equal vigour, force and effect in the case at bar and with respect to the applications I am now considering relating to the above allegation. [ 95 ] The jurisdiction she exercised is essentially the same as I am asked to exercise, notwithstanding differences in the language of Rule 9-5 and 9-7 as compared to Rule 7(14)(

i) in this court. Both Ms. Robbins and Ms. Matich have sensibly, in my view, following the decision of Adair J., withdrawn their claims against both the Bank of Montreal and the firm of Ellis Roadburg.

[ 96 ] Mr. Robbins has withdrawn only against Ellis Roadburg. This, I think, must be construed, for purposes of this application only, as a form of admission that this firm did not act improperly for anyone at any time. [ 97 ] Mr. Ellis asserts in his submissions before me in support of his application that in the Supreme Court action S106413, Mr. Robbins there set out all allegations he had against the Bank of Montreal or, if not, he could have set them all out therein if he had wanted against the Bank of Montreal.

In essence, he argued there was nothing new in the action before this court as against the Bank of Montreal. [ 98 ] I agree with this submission subject to the following observations: It is true Mr. Robbins was not a party to the Supreme Court action S106413, dismissed by Adair J.

Nonetheless, it is also true that he did not own the home on Honeysuckle Lane nor is there any evidence he was legally liable to the Bank of Montreal as a debtor including with respect to the mortgage foreclosed on or the loan subject to the Provincial Court default order. [ 99 ] It is difficult to see how he has standing or a potentially valid cause of action against the bank on this basis alone in the case at bar. Because he was married to the claimant, Ita Robbins, and the son-in-law of Ms. Matich, he clearly has been closely involved on their behalf in the various actions outlined above.

Really, until Grauer J. very recently limited his involvement, it is difficult to contemplate that any wrong he felt had been done to them or him historically by the bank was not or could not have been earlier placed before the court, including seeking to have himself added as a party to any existing action as he felt necessary. [ 100 ] I do not find that his decision to join in the case at bar as a claimant, frankly late in the day, having regard to his close connection to the two former claimants in the various historical actions, should in any way change my assessment of this case as far as the applications before me are concerned.

Nor am I of the view, on the very unique circumstances of this case, that it matters in any material way for purposes of the applications before me that Mr. Robbins was not a party to the multitude of prior legal proceedings, but is now a party to the case at bar. [ 101 ] This is so for the above reasons and, in addition, I observe that Mr.

Robbins has had ample time to place relevant facts before me to consider that might support his existing or new pleading in his Notice of Claim and he has failed to do so. [ 102 ] In my view, the action in this court clearly arises out of the same facts as referred to in Supreme Court action number S106413, dismissed by Adair J. All of the facts and matters referred to in the said action were earlier known to Mr. Robbins and the other two claimants. Mr. Robbins could have sought to participate in action number S106413 as a party had he wished to do so.

He has given me no reason as to why he did not. [ 103 ] The Bank of Montreal at no time initiated a foreclosure of any property Mr. Robbins owned. The above first claim at paragraph 1 is factually in error on this basic point at the outset. I doubt that he was entitled to notice of a foreclosure on property he did not own. As I have said, no facts were provided either in Mr.

Robbins' submission before me or in an affidavit to support the plea of contract conversion. [ 104 ] Likewise, no facts are provided supportive of the BMO directing Ellis Roadburg to obtain a court order in the British Columbia Supreme Court by fraud. Courts take allegations of fraud very seriously. Such allegations should not be made in any pleading without some reasonably firm foundation being given. [ 105 ] The former Rule 19(11) in the Supreme Court Rules makes it mandatory, for example, that in the Supreme Court at least, a party pleading, relying on fraud, must provide full particulars in his pleading.

There is no such rule in this court. That does not mean that this commonsense principle can or should be overlooked in an appropriate case in this court, and I do not. [ 106 ] I have considered whether before deciding this case ordering Mr. Robbins to file an affidavit setting out further information in respect to this pleading. In my view, I ought not to do so. Mr.

Robbins is not a novitiate when it comes to court actions as the above litigation history and, very importantly, his involvement in it, shows. [ 107 ] He was served with the Bank of Montreal application herein on September 27th, 23 days before the hearing took place before me. This, in my view, is ample time within which to assemble and file facts or particulars of the alleged fraud. This is not a case wherein at a settlement conference, for example, the presiding judge or an opponent party requests an order under Rule 7(14)(

i) and the respondent has really no notice of this position until he hears it therein. [ 108 ] The Bank of Montreal reply, filed far earlier on June 22nd, 2011, asserts this action has no reasonable basis for success. [ 109 ] As far as the above first paragraph of the Notice of Claim at page 1 is concerned, and insofar as it now relates to the claimant, Glen P. Robbins, only, I find on the undisputed facts before me that it is also without reasonable grounds and discloses no triable issue. This claim is therefore dismissed.

If it were allowed to proceed, in my view it would be an abuse of process. [ 110 ] Finally, I come to the second claim or allegation found at page 1 of the Notice of Claim which states: The defendant, the Ministry of the Attorney General of B.C. granted an order to the defendant, Bank of Montreal, in Vancouver Provincial Small Claims Court without following due process in the Civil Rules of Court. The defendant, the Ministry of the Attorney General B.C. directed a B.C. Supreme Court justice to ignore evidence and due process to the plaintiffs causing financial hardship, embarrassment and humiliation.

The Ministry of Attorney General acted in bad faith in dealing with the plaintiffs, Ita Robbins and Frana Matich in a matter before the B.C. Supreme Court relating to the Vancouver Provincial Small Claims Court. [ 111 ] Again, particularly the second sentence herein, really alleges, if true, fraudulent activity on the part of a Ministry, and without any evidence, facts or particulars to support it. It is vague in the extreme. The allegation in the first sentence is to be fully dealt with in the outstanding application before the Provincial Court in Vancouver which I have already referred to.

This court lacks jurisdiction to deal with it. People who receive unwanted or unjustified default orders cannot commence a new lawsuit in the same or a different court to complain about it.

[ 112 ] The third sentence and last allegation again is vague, lacking in particulars and devoid of any facts in support. While not per se an allegation of fraud, it is close enough. Mr. Robbins had no involvement in the various actions where he alleges wrongdoing occurred. He cannot surely have standing in this court to challenge such matters, especially in the face of the decision of Adair J. [ 113 ] No reasonable grounds support these allegations and there is therefore no triable issue.

These claims are therefore dismissed. [ 114 ] All then that remains of the Notice of Claim as amended, following these reasons, are the outstanding claims of Mr. Robbins only against The Law Society, which I have dealt with above. Costs [ 115 ] The Ministry in its application filed October 11th, 2011, did not seek costs. The Bank of Montreal in its application filed September 23rd, 2011, did seek costs and a penalty pursuant to Rule 20 (5) to (7) of the Rules of this court.

The Rules of this court dealing with costs provide that unsuccessful parties must pay successful parties, unless a judge or a registrar otherwise orders, filing fees, reasonable service fees and any other reasonable charges and expenses the judge or registrar considers directly relate to the conduct of the proceeding.

This is not a full statement of our Rules on costs and expenses, but only a partial one. [ 116 ] Both the Bank of Montreal and Her Majesty the Queen in right of the Province of British Columbia were successful with the applications dealt with in these reasons and, in addition, were successful in their earlier applications dealt with by me orally on October 19th, and having two summonses set aside. [ 117 ] In my view, Rule 20(7) has no application to the case at bar. Rule 20(5) and (6) may apply. Time did not permit me, on October 19th, to hear from either Mr. Ellis or Mr.

Johnston on the issue of costs, and in the case of Mr. Ellis, whether and how I should exercise my discretion under Rule 20(5) and (6) in this case, and if to be exercised, as to what amounts of expenses alleged in Rule 20(6). [ 118 ] In Mr. Johnston's case, failing settlement of costs, I would want to hear submissions on behalf of his client whether or not I can award any costs or other amounts to his client where his application does not request same expressly. [ 119 ] Very importantly, I want to hear from Mr. Robbins on the issue of costs under Rule 20(2), (5) and (6) once I have heard from Mr. Ellis and Mr.

Johnston.

Under all the circumstances, I direct that all these submissions be in writing, typewritten and double-spaced and not to exceed five pages in total. [ 120 ] Counsel for the applicants, Bank of Montreal, and Her Majesty The Queen in right of the Province of British Columbia will file with the court, and directing in the covering correspondence that the same be provided to me, their written submissions on costs by December 31st, 2011. [ 121 ] In the event that these parties do not seek costs against the plaintiffs, likewise they shall so advise the court registry and the claimants in writing by December 31, 2011. [ 122 ] The defendants, in the event they do seek costs, will forward copies of their filed written submissions provided to the court, to each of the claimants herein, by January 7th, 2012. [ 123 ] The claimants will, for their part, file their written responses thereto with this court by January 31st, 2012 and will, as well, by February 7th, 2012, forward a copy of same to the two defendants who have made applications for relief in this court.

I would suggest all correspondence between the parties will be by registered mail. [ 124 ] There is one last thing I wish to raise very briefly. On October 25th, 2011 at 1:41 p.m. I received a letter in an envelope addressed to me from Mr. Robbins. I opened it. The letter I recall was addressed to the office of the Chief Judge of this court. I read none of it beyond the address and immediately sealed it in a white envelope which I now return to Mr. Robbins. Madam Clerk, may I ask you to do that, please? [ 125 ] Because Mr.

Robbins is unrepresented, I have a few comments I wish to make to him and in the presence of a representative for the Bank of Montreal, Mr. Ellis. It is a very rare thing indeed that a litigant should forward anything to a judge who is presiding over a matter in which the litigant is involved without the judge first requesting it beforehand.

Where items are forwarded to a judge, it should always be care of the court registry and a copy of the correspondence to be provided to all opponent parties in the litigation. [ 126 ] If a litigant wishes to take issue with the conduct of either a judge or counsel in a legal proceeding that is ongoing in court, correspondence can be directed to the appropriate persons or bodies and these persons or bodies in the normal course, as appropriate, will provide copies or notice of same to the court or counsel. [ 127 ] Judges, and especially those who have reserved on a matter, cannot receive anything independently from any litigant without a request for same being first made in the presence of all parties who would typically be given a chance to respond as well. [ 128 ] I hope Mr.

Robbins will accept these few general remarks in the spirit in which they are offered and refrain in future from providing anything to a judge, certainly in this court, dealing with a matter in which he is a party that was not first requested by the judge. (ORAL REASONS FOR JUDGMENT CONCLUDED)