Walter L.M. Speckling Appellant (Plaintiff) v. Local 76 of the Communications, Energy and Paperworkers’ Union of Canada,, 2024 BCCA 43

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Speckling v. Local 76 of the Communications, Energy and Paperworkers’ Union of Canada, 2024 BCCA 43 Date: 20240201 Docket: CA49341 Between: Walter L.M. Speckling Appellant (Plaintiff) And Local 76 of the Communications, Energy and Paperworkers’ Union of Canada, Communications, Energy and Paperworkers’ Union of Canada, and others yet unknown Respondents (Defendants) Before: The Honourable Mr. Justice Hunter (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated August 18, 2023 ( Speckling v.

Local 76 of the Communications, Energy and Paperworkers’ Union of Canada , 2023 BCSC 1446 , Vancouver Docket S022782) Oral Reasons for Judgment Appearing as representative on behalf of the Appellant: B. Speckling Counsel for the Respondent, Local 76 of the Communications, Energy and Paperworkers’ Union of Canada: J.D. Rogers, K.C. R.H.H. Dutton Counsel for the Respondent, Communications, Energy and Paperworkers’ Union of Canada: E.R. Janzen Place and Date of Hearing: Vancouver, British Columbia February 1, 2024 Place and Date of Judgment: Vancouver, British Columbia February 1, 2024

Summary: The respondents apply for an extension of time to file their respondents’ factums. The principal basis for the application is the difficulty in ascertaining the grounds of appeal from the appellant’s factum. Held: Application granted. The appellant has been directed to file an amended factum containing a

Part 2 that complies with the completion instructions. The respondents’ factums will be due 30 days after the filing of the amended factum. The appellant’s brother, who has been acting as his agent in this litigation, was granted limited right of audience for purpose of this application, but the appellant was directed to attend at any future applications. [ 1 ] HUNTER J.A. : The respondents in this appeal apply for an extension of time to file and serve their response factums to March 1, 2024, pursuant to s. 32(2) of the Court of Appeal Act, S.B.C. 2021, c. 6 [ Act ]. The appellant opposes the extension.

Background [ 2 ] The respondents are the Communications, Energy and Paperworkers’ Union of Canada (the “National Union”) and Local 76 of the National Union (“Local 76”). The appellant is Mr. Walter Speckling. Mr. Walter Speckling’s brother, Mr. Bernardus Speckling , has appeared on his behalf. I will use first names when referring to Mr. Bernardus Speckling and Mr. Walter Speckling to avoid confusion. [ 3 ] The underlying appeal is from the decision of Justice Iyer, indexed at 2023 BCSC 1446 (“RFJ”), which is the most recent in a long history of litigation between the parties.

The procedural history was reviewed in detail by Justice Iyer in her reasons for judgment. It was also recently summarized by Justice Fenlon in her oral reasons for judgment concerning the respondents’ applications for security

for costs: Speckling v. Local 76 of the Communications, Energy and Paperworkers’ Union of Canada (11 December 2023), Vancouver Docket CA49341 (B.C.C.A. Chambers) (the “Security for Costs Judgment”). The following is a brief

summary for the purposes of the present applications. [ 4 ] The dispute between the parties began in the late 1990s when Walter and Bernardus were working at a pulp and paper mill. They were members of Local 76 and the National Union. [ 5 ] During a labour dispute, Local 76 imposed a ban on working overtime. The brothers disagreed with the ban and refused to comply. Local 76 laid charges against Bernardus under the National Union’s constitution (the “Constitution”) for violating the ban. Bernardus was found guilty and was fined.

He refused to pay the fine and ultimately lost his union standing and his employment. [ 6 ] In September 1999, Walter laid multiple charges under the Constitution against members of Local 76’s executive alleging misappropriation of Local 76’s funds to prosecute a grievance arbitration relating to Bernardus. The executive responded by laying charges against Walter under the provisions of the Constitution that prohibit the laying of frivolous and vexatious charges. A disciplinary hearing was held and Walter was fined $1,000.

He also did not pay his fine and subsequently lost his union standing and employment. [ 7 ] Following the termination of their employment, the brothers embarked on a “campaign of protracted litigation against the respondents through parallel claims before the Labour Relations Board (the “LRB”) and before the court”: 2009 BCCA 258 at para. 13 . [ 8 ] Both brothers filed complaints against Local 76 under s. 12 of the Labour Relations Code, R.S.B.C. 1996, c. 244 , which were dismissed by the LRB in October 2003.

The British Columbia Supreme Court denied Walter’s application for judicial review ( 2006 BCSC 285 ) and this Court dismissed his appeal from that decision ( 2007 BCCA 153 ). Leave to appeal to the Supreme Court of Canada was denied: 32023 (30 August 2007) (RFJ at para. 10). [ 9 ] Walter’s civil claim, filed in 2003 and later amended in 2006, is the genesis of the underlying appeal. The claim sought, inter alia, damages for various torts and for breach of contract by Local 76 and the National Union. In reasons indexed at 2007 BCSC 1016 , a chambers judge dismissed Walter’s claim as an abuse of process.

Walter appealed that decision. Justice Iyer summarized the outcome of the appeal in her reasons: [15] The Court of Appeal upheld the lower court’s decision to strike out those parts of the plaintiff’s claims that overlapped with the claims he had chosen to pursue under s. 12 of the Labour Relations Code .

However, it decided that his contract claim, alleging that the defendants had breached the Constitution, fell outside the LRB’s jurisdiction and remitted the matter to this court to that extent: 2009 BCCA 258 (“2009 BCCA Decision”). [ 10 ] Following the appeal and remittance to the Supreme Court, the claim was case managed for a number of years. Numerous applications were heard, including: 2018 BCSC 1531 ; 2019 BCSC 960 ; 2021 BCSC 2421 ; and 2023 BCSC 26 . In February 2023, Walter and the National Union applied for a

summary trial.

Summary Trial Judgment [ 11 ] The central issue was the scope of the claim for breach of contract. Justice Iyer made the following findings, among others: • Walter’s third application requesting Justice Iyer to recuse herself on the ground of bias was dismissed (RFJ at paras. 43–53). • Local 76 and the Union did not breach the Constitution or act in a procedurally unfair way (RFJ at paras. 81–119, 120–145). • Walter’s claims against Local 76 and the Union were without merit (RFJ at para. 146). [ 12 ] In the result, Justice Iyer dismissed Walter’s claim in its entirety with costs and issued the following orders (at para. 151):

a) The National Union’s actions in addressing the plaintiff’s disciplinary issues in 1999 were within the scope of the National Union’s obligations and responsibilities set out in the Constitution;

b) The National Union did not breach any contractual obligation owed to the plaintiff as a result of the terms of the Constitution;

c) The plaintiff’s claim (being BCSC Action No. S022782) is dismissed in its entirety against each defendant;

d) The plaintiff shall pay each of the defendants $2,500 forthwith. ... Appeal [ 13 ] The appellant filed his notice of appeal on September 11, 2023. Local 76 filed and served its notice of appearance on September 13, 2023, and the National Union filed and served its notice of appearance on September 18, 2023. The appeal record was filed on November 10, 2023, and the appeal books on November 27, 2023. I am advised that the appeal books contain 1,528 pages including 17 affidavits filed over the course of the 20-year litigation. The appellant filed his factum on December 8, 2023.

On December 11, 2023, Justice Fenlon ordered the appellant to post security for costs of the appeal, which was done the next day. [ 14 ] On December 12, 2023, counsel for Local 76 contacted Bernardus seeking an extension of time to file Local 76’s response factum. On December 13 2023, a similar request was sent to Bernardus by counsel for the National Union. The appellant, through the medium of his brother, declined to consent to the extension.

The respondents now apply for an extension of time to file their factums. [ 15 ] The principal reason the respondents seek an extension of time is that the appellant’s factum does not clearly delineate the grounds of appeal of Justice Iyer’s order. The respondents have attempted to clarify the issues in a fashion that comports with the

requirements for a factum in this Court, but have been unable to do so. [16] In partial response to this problem, the respondents sought, and the Registrar directed, case management under Rule 48 of theCourt of Appeal Rules to attempt to simplify or isolate the issues on this appeal. I conducted a case management conference today, anddirected that the appellant file an amended factum containing a

Part 2 that conforms with the completion instructions required of afactum in this Court. I will extend the time for filing respondents’ factums for 30 days after the filing of the amended appellant’s factum. [17] The legal framework that applies to an application for an extension of time in this Court is set out in the well-known decision inDavies v. C.I.B.C. (1987), (BC CA), 15 B.C.L.R. (2d) 256 at 259–260 (C.A.), but that framework must be adapted tothe time requirements for filing documents once an appeal has been filed.

For example, extending the time for filing an appellant’sfactum is subject to the somewhat strict Davies rules, but the primary consideration in extending the time to file a notice of cross-appealonce an appeal has been filed is whether the appellant will be prejudiced by the delay: Douglas Lake Cattle Company v. Nicola ValleyFish and Game Club, 2019 BCCA 439 (Chambers) at paras. 45–46. [18] There is no prejudice to the appellant arising from the delay. Bernardus submitted that the delay impacted the determination oftrial costs in some way, but there is no merit in that submission.

Even without the necessity of an amended factum I would have extendedthe time for filing the respondents’ factum. [19] At the outset of the hearing, I questioned the status of Bernardus in this proceeding. He is not a party to this litigation nor is he amember of the bar of this province or any other bar in Canada. [20] The Court has the discretion to grant a right of audience to someone who is neither a party nor a member of the bar, but thatdiscretion “should be exercised rarely and with caution”: Venrose Holdings Ltd. v.

Pacific Press Ltd. (1978), (BC CA),7 B.C.L.R. 298 (C.A.). [21] It is relatively commonplace in this Court for judges to permit self-represented litigants who are not fluent in English or for someother reason require assistance on a discrete matter to have the assistance of a disinterested friend or family member in makingsubmissions to the Court, but that is a different circumstance than permitting someone who is neither a party nor a member of the bar toact consistently in the role of counsel prosecuting a proceeding, a role which on its face appears contrary to s. 15 of the Legal ProfessionAct, S.B.C. 1998, c. 9. [22] Bernardus is not in any respect disinterested in this appeal.

In the chronology in the factum that Walter has filed, events directlyconcerning Bernardus are expressly referred to no fewer than ten times. He is not simply an agent for his brother; he is an activeparticipant in the matters the appellant has put at issue in this appeal. [23] In her Security for Costs Judgment, Justice Fenlon flagged the issue of right of audience in the following terms: Bernardus has acted as his brother’s agent throughout the course of this litigation (RFJ at para. 12).

As I noted at the outset of thehearing, there is no right of audience for a non-party and Walter should, at a minimum, attend applications in this Court hereafter byvideoconference which can be arranged through the Registry: Security for Costs Judgment, para. 15. [24] Contrary to Justice Fenlon’s direction, Walter did not attend this application, nor did he attend the case management conference,contrary to Rule 47(3) of the Court of Appeal Rules.

I reiterate Justice Fenlon’s direction that the appellant is to attend futureapplications, either in person or by videoconference. [25] My concern about granting Bernardus right of audience is heightened by the position he has taken on behalf of his brother on thisapplication, which I consider to be unreasonable.

In the absence of prejudice to the appellant arising from the relatively short delay infiling, this is an application that should have been consented to, and would I believe have been consented to by any competent lawyerpractising in this province. [26] Had this been an application by the appellant, I would have declined to hear Bernardus. However, doing so on the respondents’application would likely have led to an adjournment and additional unnecessary cost to deal with a straightforward matter, so I permittedhim to address the Court on this application.

My doing so should not be regarded as a precedent for future matters in this Court. [27] The application of the respondents for an extension of time to file their factums is extended to 30 days after the filing of theappellant’s amended factum I have directed be filed, without prejudice to the ability of the respondents to apply for further time if theydeem it necessary. The respondents are entitled to their costs of what should have been an unnecessary application. “The Honourable Mr. Justice Hunter”