Daniel v. I.C.B.C. et al, 2003 BCSC 475

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Daniel v. I.C.B.C. et al, 2003 BCSC 475 Date: 20030328 Docket: S075396 Registry: New Westminster Between: Eva Daniel Plaintiff And Insurance Corporation of British Columbia, Fraser City Motor Ltd. and Bartholemew Chudrick Defendants Before: The Honourable Madam Justice MacKenzie Reasons for Judgment Appearing on her own behalf: E. Daniel Counsel for the defendants: P.K. Hamilton Dates and Place of Hearing: February 19 and March 27, 2003 New Westminster, B.C. [ 1 ] I underscore at the outset of these reasons that the self-represented plaintiff, Ms.

Daniel, clearly stated that she had no difficulty with my hearing the defendants' application. I canvassed the issue with the plaintiff before embarking upon this hearing. I stated my concern that because on September 24, 2002, I had dismissed what amounted to the plaintiff's appeal of the dismissal by Taylor J. of an action concerning the 1983 motor vehicle accident that she might want me to recuse myself from the current application.

The plaintiff assured me she had no objection to my hearing the defendants' application. [ 2 ] The plaintiff sought to adjourn this hearing but not because the application was before me. [ 3 ] I denied the plaintiff's application for an adjournment because there was no reasonable basis for it. Nothing Ms. Daniel advanced as a reason to adjourn was relevant to the two applications now before the court. I turn to them now. [ 4 ] The defendants, the Insurance Corporation of British Columbia ("I.C.B.C."), Fraser City Motor Ltd. and Bartholemew Chudrick seek: 1. to have the plaintiff's claim in this action (No.

S075396) dismissed as against them; and 2. to have the plaintiff and her husband, Ervin Daniel, declared frivolous and vexatious litigants and an order (pursuant to s. 18 of the Supreme Court Act ) precluding them from instituting any legal proceeding in this court without leave of the court. 1. The claim to have this action (No. S075396 New Westminster Registry) dismissed as against I.C.B.C., Fraser City Motor Ltd.

and Bartholemew Chudrick [ 5 ] This is the third time the plaintiff has started an action with respect to a motor vehicle accident of May 18, 1993. On December 1, 1993, the plaintiff and her husband commenced an action against Fraser City Motor Ltd. and Bartholemew Chudrick. They claimed damages for injuries arising from the same motor vehicle accident. The action was settled.

Final Releases were executed and Consent Dismissal Orders were entered. [ 6 ] On June 1, 2001, the plaintiff commenced a second action against I.C.B.C., Fraser City Motor Ltd., and Bartholemew Chudrick, in which she claimed damages for injuries on her own behalf and on behalf of her husband, Ervin Daniel, arising out of the same motor vehicle accident. Pitfield J. dismissed the action on June 26, 2002, because it had already been resolved by way of settlement and release. [ 7 ] The plaintiff sought to appeal the decision of Pitfield J. and sought indigent status to pursue the appeal.

Prowse J.A. on August 7, 2002, dismissed her application for indigent status and said: ... I am not persuaded that there is any merit to this proposed appeal. It is on that basis that I dismiss Ms. Daniel's application for indigent status. In my view, there would be no benefit to Ms.

Daniel, or to anyone else, if her application were granted since, as I say, I can see no prospect whatsoever of her succeeding on any appeal. [ 8 ] The plaintiff appealed Prowse J.A.'s dismissal of her application for indigent status. [ 9 ] On December 17, 2002, Hall J.A., for a panel of three justices, dismissed the plaintiff's appeal of Prowse J.A.'s decision. Hall J.A. also said the proposed appeal (of Pitfield J.'s decision dismissing the action before him regarding the May, 1993 accident) was without merit. [ 10 ] The plaintiff started this third action (No.

S075396) with respect to the May, 1993 accident on August 16, 2002. The defendants ask me to dismiss it because it simply repeats the same action which has been resoundingly concluded. A panel of three justices of the Court of Appeal has already determined that an appeal of Pitfield J.'s decision had no prospect of success. I dismiss the within action regarding the May 18, 1993 accident. 2.

The application for an order that the plaintiff and her husband, Ervin Daniel, must not institute a legal proceeding in this court without leave of the court. [ 11 ] On the totality of the material before me, and on application of the principles in Re Lang Michener et al and Fabian et al, 1987 CanLII 172 (ON SC) , [1987] O.J. No. 355 (Ont. H.C.J.), I find the defendants have clearly met the requirements of showing the plaintiff must not, without leave of the court, institute any legal proceeding in this court.

I allow the defendants' application under s. 18 of the Supreme Court Act. [ 12 ] The affidavit of Sharen Wesnoski, sworn November 4, 2002, sets out the numerous actions commenced by Attila Daniel (born February 22, 1978) and his mother, the plaintiff Eva Daniel.

Throughout the litigation, which is summarized below, there have been numerous withdrawals and changes of solicitors. [ 13 ] With respect to the two motor vehicle accidents that occurred on August 26, 1995 and June 18, 1996, Attila Daniel executed a release in respect of his claims arising from the June 18, 1996 accident and accepted $12,168.82 in satisfaction of any injuries, damages and loss with respect to that accident. The claim arising from the August, 1995, accident was also settled. [ 14 ] Attila Daniel commenced the second Supreme Court action June 11, 1998, claiming damages against the defendant for

Part 7 benefits pursuant to the Insurance (Motor Vehicle) Act arising out of three motor vehicles accidents that occurred on August 26, 1995, June 18, 1996 and December 19, 1997. [ 15 ] Mrs. Daniel commenced an action on May 17, 2001 in which she claimed damages on behalf of her son, Attila, arising from the 1983 accident. On July 13, 2001, at a hearing before Taylor J., the action regarding the 1983 accident was dismissed as it was out of time and there was no prospect of success. Immediately following the dismissal of this application, Mrs. Daniel filed a Notice of Appeal with respect to Taylor J.’s decision.

At the same time, she applied in the Court of Appeal for indigent status. [ 16 ] On October 3, 2001, Rowles J.A. denied her application for indigent status because, in her opinion, there was “no prospect of success in an appeal of the order dismissing the application brought in the court below.” ( Daniel v. Insurance Corporation of British Columbia , 2001 BCCA 595 ). [ 17 ] Mrs. Daniel applied to the Court of Appeal to vary Rowles J.A.’s order. She later applied for an extension of time to file motion books relating to her application. Southin J.A. denied the application for an extension of time. In Daniel v.

Insurance Corporation of British Columbia , June 11 2002, CA028729, Southin J.A. held: As I see the present situation, Mrs. Daniel has no status whatever in this court on her own to sue on behalf of her son even if the Style of Cause here were to be amended accordingly. Since, obviously, the Daniels are not able to afford solicitors to act for them, this action cannot be brought in Mrs. Daniel’s name. To put

it another way, as this action was intended to be on behalf of Attila, either he must bring the action or his guardian ad litem must bring the action, but a guardian ad litem must act through a solicitor and not in person. [ 18 ] Mrs. Daniel next applied for an order granting her an extension of time to file an application to vary the order of Southin J.A. Donald J.A. denied this application, describing it as “frivolous”. In Daniel v.

Insurance Corporation of British Columbia , August 27, 2002, CA029953, he wrote: I deny it because Madam Justice Southin’s decision was that there was no basis to extend the time for an application to vary Madam Justice Rowles’ decision that [Mrs. Daniel] should not have indigent status because there is no merit to [her] case. [ 19 ] Mrs. Daniel subsequently made an application to vary this order as well. [ 20 ] At the same time, Mrs. Daniel continued to seek damages for ongoing injuries that she said she had received in the 1993 accident.

This action was dismissed by Pitfield J. on June 26, 2002 because it was a matter that had been concluded in earlier proceedings. Mrs. Daniel sought to appeal this decision and applied for indigent status to do so. [ 21 ] On August 7, 2002, Prowse J.A. dismissed the application for indigent status because she was persuaded that there was no merit to the proposed appeal. Mrs. Daniel appealed Prowse J.A.’s dismissal of her application. [ 22 ] On September 24, 2002, the plaintiff was before me again seeking relief for the 1983 accident.

I held that her application amounted to an appeal of the decision of Taylor J. and I could not hear such an appeal. I said she should await the decision of the Court of Appeal regarding her appeal of the dismissal of indigent status. [ 23 ] Mrs. Daniel then sought indigent status on an appeal from my order. On October 3, 2002, Donald J.A. denied her application for indigent status, saying: There have been a series of proceedings over indigent status and in each instance the Court has one way or another determined that Ms.

Daniel and her son, Attila, have no reasonable chance of success in that appeal and, therefore, indigent status should be denied... I regard this application for indigent status as frivolous and vexatious, and I dismiss it. [ 24 ] Mrs. Daniel applied to vary this order too. [ 25 ] These numerous applications seeking variation of orders made by judges in chambers were considered by the Court of Appeal in reasons delivered on December 17, 2002. The court reviewed the decisions of all the courts.

In each case, Hall J.A. found that “the proposed appeal had no prospect of success” and the chambers judge was “clearly right in refusing indigent status.” [ 26 ] On August 16, 2002, prior to the hearing in the Court of Appeal, Mrs. Daniel commenced the action claiming damages on behalf of herself and her husband arising from the 1993 accident. I dismissed that action earlier in these reasons. [ 27 ] The plaintiff's concern is her son, Attila, who is now 25 years old.

The plaintiff argues the 1995 motor vehicle accident ties into the 1983 and 1993 accidents and says her son has multiple brain damage and was involved in multiple car accidents. She alleges that a particular doctor, who I understand performed an independent medical examination, acted fraudulently and is biased towards I.C.B.C.

She further named another doctor whom she alleges refused to treat her son in 1995 because he said he was not sick. [ 28 ] In response to today’s application for dismissal of the action started in the New Westminster Registry in August, 2002, and the defendant’s application under s. 18 of the Supreme Court Act , the plaintiff has filed an affidavit. In her affidavit, Mrs. Daniel deposes that she has now reviewed with independent counsel the circumstances surrounding the 1983, 1995, 1996 and 1997 motor vehicle accidents, their effects on Attila Daniel, and the surrounding litigation.

Based on the advice of counsel, she understands that “the pleadings in the Lawsuits are in large measure obscure, confused and, in some respects ill-conceived” and that “certain of my pleadings in the Lawsuits run afoul of limitation periods, and the doctrine of res judicata.” [ 29 ] Having sought legal assistance for the limited purpose of attempting to create a Statement of Claim which sets out her own complaints and those of her son in “a more coherent format”, Mrs. Daniel intends to file a fresh writ of summons and Statement of Claim and consent to act as litigation guardian.

The proposed law suit names many persons as defendants, including a number of lawyers, the College of Physicians and Surgeons and I.C.B.C. The draft Statement of Claim, which was submitted with the plaintiff’s affidavit, is a matter of concern since it demonstrates Mrs. Daniel’s intention to continue to pursue damages for the previously settled accidents, including the 1983 accident. [ 30 ] I would not receive the new Statement of Claim signed by the plaintiff February 14, 2003. Such an action has no prospect of success.

It would constitute an abuse of the court's process for the court to hear an action or any applications by the plaintiff on that Statement of Claim.

SECTION 18: Supreme Court Act: DISCUSSION [ 31 ]

Section 18 of the Supreme Court Act provides: Vexatious proceedings If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court. [ 32 ] The history of the plaintiff's litigation provides the appropriate context in which to apply the principles in Re Lang Michener et al and Fabian et al 1987 CanLII 172 (ON SC) , [1987] O.J.

No. 355; (1987), 59 O.R. (2d) 353; 37 D.L.R. (4 th ) 685 (Ont. H.C.), in which Henry J. set out the following principles: (

a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding; (

b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious; (

c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; (

d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings; (

e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action; (

f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; (

g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings. [ 33 ] I do not think that the plaintiff falls within (

c) above; I do not think she intended to bring her actions for an improper purpose, or to harass or oppress other parties for purposes other than the assertion of legitimate rights. However, all of the other principles apply to this plaintiff as follows: (

a) The plaintiff has brought, "one or more actions to determine an issue which has already been determined by a court of competent jurisdiction". (

b) It is obvious that the action filed in the New Westminster Registry concerning the 1993 action cannot succeed nor can her proposed action on her fresh intended Statement of Claim exhibited to her February 14, 2003 affidavit. (

d) The issues raised tend to be rolled forward into subsequent actions and repeated and supplemented and with actions brought against the lawyers who have acted for or against her in earlier proceedings. (

e) The whole history of the matter is considered. (

f) The plaintiff has consistently failed to pay the costs of unsuccessful proceedings; and (

g) the plaintiff has persistently taken unsuccessful appeals from judicial decisions. [ 34 ] I recognize, as did Bauman J. in Koyama v. Leigh, 2001 BCSC 164 , that an order under s. 18 is a power to be exercised with great caution. However, it is clearly time to make an order restraining the plaintiff, her husband, or the plaintiff acting as litigation guardian for her son, from instituting, without leave of the court, any further legal proceedings in this court against the defendants I.C.B.C., Fraser City Motor Ltd., or Bartholemew Chudrick.

I include the plaintiff's husband, Ervin Daniel, in this order because he was present at the proceedings before me and is supportive of his wife's litigation. Were he not included in this order, I find it likely that future actions would be commenced in his name.

[ 35 ] It is appropriate to grant the application for costs against the plaintiff in this matter. The defendants will have their costs at Scale 3 despite there being little chance of success in obtaining those costs. “A.W. MacKenzie, J.” The Honourable Madam Justice A.W. MacKenzie