John Vabuolas, Paul Sidhu, Grand Forks Congregation of Jehovah’s Witnesses, Coldstream Congregation of Jehovah’s Witnesses, v. Watch Tower Bible and Tract Society of Canada, 2024 BCCA 41

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Vabuolas v. British Columbia (Information and Privacy Commissioner), 2024 BCCA 41 Date: 20240205 Docket: CA49637 Between: John Vabuolas, Paul Sidhu, Grand Forks Congregation of Jehovah’s Witnesses, Coldstream Congregation of Jehovah’s Witnesses, and Watch Tower Bible and Tract Society of Canada Appellants (Petitioners) And Information and Privacy Commissioner for British Columbia, the Attorney General of British Columbia, Gabriel-Liberty Wall, and Gregory Westgarde Respondents (Respondents) Before: Registrar T.R.

Outerbridge On appeal from: An order of the Supreme Court of British Columbia, dated January 8, 2024 ( Vabuolas v. British Columbia (Information and Privacy Commissioner) , 2024 BCSC 27 , Vancouver Docket S226203). Oral Reasons for Decision Counsel for the Appellants (via videoconference): J. MacEwan No one appearing on behalf of the Respondents Place and Date of Hearing: Vancouver, British Columbia February 5, 2024 Place and Date of Decision: Vancouver, British Columbia February 5, 2024

Summary: Urgent application brought before the Registrar for substitutional or alternative service of a notice of appeal under Rule 4(1)(

c) of the Court of Appeal Rules. Held: Urgent application granted, time abridged, and substitutional service order granted. Though no statutory requirements exist to grant a substitutional service order in this Court, alternative methods of service should be employed where it is impractical to serve a notice of appeal through the methods described in Rule 4(1)(a)–(

b) or service is being evaded. [ 1 ] REGISTRAR OUTERBRIDGE : This is an urgent application for the substitutional service of a notice of appeal brought by the appellants. The underlying appeal is taken from a judicial review of an order made by an adjudicator with British Columbia’s Office of the Information and Privacy Commissioner (“OIPC”). [ 2 ] The adjudicator’s order arose out of a request made by two persons, Gabriel-Liberty Wall and Gregory Lyle Westgarde, for access to records held by their former congregations of Jehovah’s Witnesses.

When they were dissatisfied with the responses to their requests, they both filed reviews with the OIPC. The OIPC adjudicator then ordered the disputed records disclosed to her by the congregations. [ 3 ] Two elders, their respective congregations, and others then challenged the adjudicator’s order by petition to the Supreme Court

on the basis it infringed their religious beliefs under the Canadian Charter of Rights and Freedoms. In particular, they argued thatconfidential religious summaries and communications should not be disclosed outside of doctrinal rules. They were unsuccessful. [4] They filed an appeal in this Court on 2 February 2024 and have until 7 February to serve their notice of appeal on all partieswhose interests could be affected by the relief sought: Rule 6(1)(a). [5] While Mr. Wall and Mr.

Westgarde participated in the OIPC process, neither responded or participated in the judicial reviewbelow, despite being named as parties. In fact, Mr. Wall refused to provide an address for personal service, requiring the petitioners toobtain an alternative service order before a Master. [6] First, I will deal with urgency. Urgent applications are governed by Rule 57 of the Court of Appeal Rules.

That rule provides thata party may apply to a justice or the registrar for permission to bring an application on shorter notice than otherwise required. [7] On an urgent application, or what is better described as an application seeking to hear another application urgently, a justice orthe registrar may allow an abridgement of time to hear the main application and make various incidental orders under Rule 57(3).

If anorder is made under Rule 57(3), the party who brought the application must serve notice of that order on each party under Rule 57(4). [8] A leading case on urgent applications, or “short leave” applications as they were once known, is Master Baker’s decision inO’Callaghan v. Hengsbach, 2017 BCSC 2182. The Master observed as follows: [17] Such applications should be restricted to emergent circumstances and should not reward inefficiency, inattention to a particularcase, or a lack of oversight.

To abridge the time limits imposed by [the Rules] is, presumably, to prejudice the other party who is,naturally, entitled to rely on timelines imposed by the Rules and to expect the opposing party to do likewise. [9] The same reasoning applies to urgent applications under Rule 57. Before bringing the application, a party should considerwhether the matter is truly urgent or if an accommodation can be reached to allow the regular timelines to apply.

If it proceeds, it shouldbe served by whatever means possible on the other parties. [10] Where the application is brought without notice, there is a heightened responsibility on the applicant to comprehensively andearnestly represent the facts and other special procedural considerations apply: see Kapoor v. Makkar, 2020 BCCA 223 (Chambers) atpara. 11. [11] Given the timeline for service of the notice of appeal is about to expire, this is an emergent circumstance. Also, all parties exceptfor Mr. Wall and Mr.

Westgarde consent to the order shortening the time, so I would shorten the timeline for the filing and service of theapplication for substitutional service to today’s date. [12] Turning to the main application for substitutional service or “alternative” service as it is also known, Rule 4(1) of the Court ofAppeal Rules provide that a notice of appeal may be served on a respondent either: (

a) personally; (

b) through their lawyer of record inthe court appealed from; or (

c) in any other manner directed by a justice or the registrar. [13] Given methods of service are usually well established in the court below before an appeal is filed, substitutional service orders inthe Court of Appeal are not as frequent. However, in determining whether to make an order under Rule 4(1)(c), it is useful to considerthe authorities and procedure under the comparable Rule 4-4(1) of the Supreme Court Civil Rules: see s. 18(2)(

b) of the Court of AppealAct. [14] The Supreme Court rule sets some preconditions to granting an alternative service order, including that it is impractical to serve aparty personally or that: (

a) they cannot be found after a diligent search; or (

b) they are evading service: see also Luu v. Wang, 2011BCSC 1240. Alternative service is not merely an administrative step, but instead one that occurs after efforts to locate and serve a partyproperly: Lonking (China) Machinery Sales Co. Ltd. v. Zhao, 2024 BCSC 79. [15] No similar statutory preconditions exist in Rule 4(1)(c); however, substitutional service should also be employed in this Courtwhere the notice of appeal cannot be served properly: see, e.g., van Melle v. Mohammed, 2021 BCCA 217 (Chambers) at paras. 27–29.In other words, a substitutional service order may issue where it is similarly impractical to serve through the methods described in Rule4(1)(a)–(

b) or service is being evaded. In an appeal, a party’s decision to participate in the proceedings below can also be a factor toconsider. [16] Where appellants require more time to properly serve respondents, a without notice application to extend time always remains anoption: e.g., R. v. Chow Wai Yam (1936), (BC CA), 50 B.C.R. 347 (C.A.). [17] In the circumstances here, I am satisfied that service under Rule 4(1)(a)–(

b) is not only impractical, but unavailable to theappellants with respect to Mr. Wall. Given his refusal to provide an address for service, non-participation in the petition below, and theexistence of an alternative service order in the Supreme Court, a similar order should be made in this Court. [18] With respect to Mr. Westgarde, only the first factor, non-participation, applies. However, I am told Mr. Westgarde acknowledgedservice by email of this urgent application, so his email address is viable. Given Mr.

Westgarde has shown at least some interest in theseproceedings, I would direct he also be served with the notice of appeal and the entered order arising from this application by leaving saidcopies at his residential address in Calgary on or before 4:00 p.m. PST on 7 February. [19] I would further direct the appellants serve Mr. Wall and Mr. Westgarde no later than 4:00 p.m. PST today with the notice ofappeal and a copy of the entered order arising from this application at the email addresses listed within Ms.

Chappell’s affidavit, filed 2February 2024. [20] Once the above steps are taken, service of the notice of appeal shall then be deemed effective on both parties at 4:00 p.m. PST on7 February 2024.

[ 21 ] Under Rule 7(2), if Mr. Wall and Mr. Westgarde do not file an appearance by 19 February 2024, they are presumed to take no position on the appeal and are not required to be served further, unless the Court or a justice otherwise orders. [ 22 ] The costs of this application will be in the cause of the appeal. “T.R. Outerbridge, Registrar”