Klippenstein v. Manitoba Date:, 2012 MBCA 77

Citation: Klippenstein v. Manitoba Date: 20120827 (Attorney General) et al., 2012 MBCA 77 Docket: AI 11-30-07651 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Mr. Justice Alan D. MacInnes BETWEEN : LARRY PETER KLIPPENSTEIN ) L. P. Klippenstein ) on his own behalf (Applicant) Appellant ) ) S. D. Boyd - and - ) for the Respondent ) ATTORNEY GENERAL OF MANITOBA ) ) (Respondent) Respondent ) Appeal heard: ) May 31, 2012 - and - ) ) Judgment delivered: ATTORNEY GENERAL OF CANADA ) August 27, 2012 ) (Respondent) ) HAMILTON J.A. 1 Mr.

Klippenstein appeals the dismissal of his motion to have counsel appointed to represent him on four applications that he has filed in the Court of Queen’s Bench. He made his motion pursuant to s. 5 of The Constitutional Questions Act , C.C.S.M., c.

C180 (the Act ): Appointment of counsel to argue case 5 Where any interest affected is not represented by counsel, the Court of Appeal or the Court of Queen’s Bench, may, in its discretion, request some counsel to argue the case with respect to that interest and the reasonable expenses thereof shall be paid by the Minister of Finance. 2 The presiding judge adjourned the four applications before him pending his decision on the motion to appoint counsel.

In written reasons, the judge dismissed the motion on the basis that s. 5 of the Act only pertains to proceedings before the court by way of reference pursuant to s. 1 of the Act: Reference to court authorized 1 The Lieutenant Governor in Council may refer any matter to the Court of Appeal or to the Court of Queen’s Bench for hearing or consideration and the Court of Appeal or the Court of Queen’s Bench shall hear or consider the matter.

3 Mr. Klippenstein feels very aggrieved by certain decisions of the Residential Tenancies Branch (the Branch) and the Residential Tenancies Commission (the Commission) and subsequent court decisions related to them. For example, in one decision, the Commission upheld the termination of Mr. Klippenstein’s lease by a former landlord. Leave to appeal that decision to this court was denied by a judge of this court sitting in chambers. Mr. Klippenstein’s subsequent application for leave to appeal to the Supreme Court of Canada was dismissed. See Edison Rental Agency v.

Klippenstein , 2011 MBCA 3 , leave to appeal to S.C.C. denied, [2011] S.C.C.A. No. 69 (QL). 4 His dissatisfaction with the decisions of the Branch and the Commission appears to be the underlying common factor for his numerous court filings, as well as his pursuit of assistance through other avenues, such as Legal Aid Manitoba and the Manitoba Ombudsman. None of his considerable efforts have had the results that he desires. 5 Mr.

Klippenstein now alleges, among many other things, in the applications that were before the judge, that his rights under at least s. 7 and s. 15 of the Canadian Charter of Rights and Freedoms (the Charter ) have been denied by various persons and government agencies, such as Legal Aid Manitoba and the Manitoba Ombudsman. 6 Given his Charter claims, he served both the Attorney General of Manitoba and the Attorney General of Canada under s. 7 of the Act .

At the hearing, counsel for the Attorney General of Canada advised that Canada had no interest in participating in the proceedings and was excused by the judge. 7 Counsel for the Attorney General of Manitoba argued before the judge, as he did before us, that s. 5 of the Act only permits the court to ask counsel to represent, at the expense of the Minister of Finance, an interest affected by a reference under s. 1 of the Act. 8 The judge agreed, after applying, as he was required to do, the modern approach to statutory

interpretation that has been endorsed innumerable times by the Supreme Court of Canada: … ... [T]he words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. …. [Ruth Sullivan, Sullivan on the Construction of Statutes , 5th ed. (Markham: LexisNexis Canada Inc., 2008) at 1] See, for example, Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 , [2002] 2 S.C.R. 559, and Reference re Broome v.

Prince Edward Island , 2010 SCC 11 , [2010] 1 S.C.R. 360. 9 The judge wrote (at paras. 14-20): In my view, the context and scheme of the Act are such that two types of proceedings are contemplated by the legislation. First, the Act contemplates a reference of any matter by the Lieutenant Governor-in-Council to the Manitoba Court of Appeal or to this court and second, the Act contemplates either a challenge to the constitutional validity or applicability of any law or an application for a remedy pursuant to the Charter .

If one were to read s. 5 of the Act in isolation, it would be reasonable to conclude that where, as here, a Charter remedy is sought, a request could be made by the court to counsel to represent the individual seeking the remedy with the reasonable expenses of that counsel to be paid by the Minister of Finance. However, in light of the decision of the Supreme Court of Canada in Broome , supra, it is not sufficient to read a

section of legislation in isolation. Rather, as Cromwell, J., pointed out at ¶38, “... it must be read in its entire context, in its grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act and the intention of the Legislature.” My reading of s. 5 of the Act in the manner suggested by Cromwell, J., leads me to conclude that it is only applicable to those cases where the Lieutenant Governor-in-Council has referred a matter to the Manitoba Court of Appeal or to this court pursuant to s. 1 of the Act . In my view, the very fact that there is a reference in s. 5 to the Manitoba Court of Appeal makes it clear that the applicability of the

section is restricted to cases where a reference is made. It does not apply to cases where someone seeks a remedy pursuant to the Charter . The part of the Act that deals with cases where someone applies for relief pursuant to the Charter commences with ¶7 of the Act . That

section sets forth the requirements that must be met. Those requirements are somewhat different than the requirements that must be met in matters where a reference has been made to a court pursuant to s. 1 of the Act . I have little difficulty in concluding that the legislative scheme contemplates two distinct types of proceedings. First, the scheme contemplates references to the Manitoba Court of Appeal or to this court by the Lieutenant Governor-in-Council and second, it

contemplates applications where the constitutional validity or applicability of a law is challenged or where Charter relief is sought. As stated in ¶16 of these reasons, s. 5 of the Act restricts the ability of a court to request counsel to represent an interest at the cost of theMinister of Finance to those matters where there has been referral to a court pursuant to s. 1 of the Act.

Section 5 of the Act does not permit the court to request counsel to assist individuals such as Mr. Klippenstein who seek Charter reliefpursuant to s. 7 of the Act. 10 Mr. Klippenstein’s appeal raises a question of statutory

interpretation, which is a question of law, for which the standard ofreview is correctness. In my view, the judge was correct to conclude that s. 5 of the Act is limited to proceedings before the court by wayof reference under s. 1 of the Act. 11 The legislative history of the Act, which was brought into force in 1986, as well as similar legislation in other jurisdictions,underscore this conclusion. 12 The Act amalgamated two historical sets of statutory provisions:

An Act for Expediting the Decision of Constitutional andother Provincial Questions (the former Constitutional Questions Act) and ss. 62 and 73 of The Court of Queen’s Bench Act, C.C.S.M., c.C280 (which are now ss. 7 and 8 of the Act). The former Constitutional Questions Act only applied to references. Its wording, whichwas not substantially amended, became ss. 1 to 6 of the Act. 13 Although the wording can vary, the appointment of counsel provisions in similar legislation apply to constitutional referencesonly. See, for example, s. 26(5) of the Judicature Act, R.S.A. 2000, c.

J-2; s. 8(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43; s.7(6) of the Judicature Act, R.S.P.E.I. 1988, c. J-2.1; s. 18 of the Judicature Act, R.S.N.L. 1990, c. J-4; and s. 53(7) of the Supreme CourtAct. , 14 Saskatchewan’s legislation is quite similar to Manitoba’s. See s. 6 of The Constitutional Questions Act, R.S.S. 1978, c. C-29. This provision, as in Manitoba, follows several provisions pertaining to reference cases and precedes a

section relating to notice tothe Attorney General when the constitutional validity of an enactment is challenged. In Saskatchewan Wheat Pool v. Kieling (1993), (SK KB), 117 Sask.R. 218 (Q.B.), aff’d (1994), (SK CA), 120 Sask.R. 239 (C.A.), leave to appealto S.C.C. denied, [1994] S.C.C.A. No. 355 (QL), Armstrong J. stated in regard to ss. 5 and 6 of that Act that “[t]hese sections relate tomatters referred directly to the Court of Appeal by the Lieutenant Governor-in-Council” (at para. 38). 15 For these reasons and those expressed by the judge, I would dismiss the appeal. The Attorney General of Manitoba does notseek costs. J.A. I agree: J.A. I agree: J.A