Klippenstein v. Winpark Dorchester Date:, 2014 MBCA 96

Citation: Klippenstein v. Winpark Dorchester Date: 20141021 Properties, 2014 MBCA 96 Docket: AI 14-30-08212 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) L. P. Klippenstein LARRY PETER KLIPPENSTEIN ) on his own behalf ) ) D. E. Silver (Plaintiff) Applicant ) for the Respondent ) ) D. G. Guénette - and - ) for the proposed Respondent ) T. D. Gisser ) WINPARK DORCHESTER PROPERTIES ) Chambers motion heard: ) October 2, 2014 ) (Defendant) Respondent ) Decision pronounced: ) October 21, 2014 BEARD J.A. I. THE ISSUE [ 1 ] Mr. Klippenstein has applied to this court to add a party to these proceedings.

He states that he is making the motion under s. 36(1) of The Court of Appeal Act , C.C.S.M., c. C240, and Queen’s Bench Rules, Man. Reg. 553/88, Rule 5.02(2) . [ 2 ] Those provisions state as follows: Queen’s Bench practice to apply where procedure not provided 36(1) In all matters not expressly provided for in this Act or the rules, the practice and procedure of the Court of Queen’s Bench, in so far as applicable, may be adopted and applied. Multiple defendants or respondents 5.02(2) Two or more persons may be joined as defendants or respondents where, (

a) there are asserted against them, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences; (

b) a common question of law or fact may arise in the proceeding; (

c) there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief;

(

d) damage or loss is alleged to have been caused to the same plaintiff or applicant by more than one person, whether or not there is any factual connection between the several claims apart from the involvement of the plaintiff or applicant, and there is doubt as to the person or persons from whom the plaintiff or applicant may be entitled to relief or the respective amounts for which each may be liable; or (

e) it appears that their being joined in the same proceeding may promote the convenient administration of justice. II. THE FACTS [ 3 ] The following are facts that assist in understanding the context of this motion, but are not directly relevant to it. The applicant filed a statement of claim in the Court of Queen’s Bench against Winpark Dorchester Properties (Winpark), which was noted by the court staff to be an expedited action under Rule 20A. When Winpark did not file its statement of defence within the time set out in the rules, the applicant noted it in default.

Winpark became aware that default had been noted and contacted the applicant to ask for his consent to set aside the default and file a statement of defence. He refused and, shortly thereafter, filed a motion for

summary judgment setting his damages and also his anticipatory response to a motion to set aside the default. [ 4 ] Winpark obtained a case conference date under Rule 20A, but, before that date, the applicant’s motion appeared on the uncontested motions list and was adjourned to the case conference. At that conference (the first case conference), Winpark advised the case conference judge of its intention to file a motion to set aside the default and for other relief, so the case conference judge set a fixed date for the filing of the material and the hearing of that motion.

The judge became unavailable on the date that he had set, so the matter had to be adjourned. The applicant then filed a second motion, this one asking that the matter be removed as an expedited action and proceed as a regular claim, and for other relief. [ 5 ] The parties then appeared for a second case conference. With the consent of Winpark, the applicant’s motion to remove his action as a 20A action was granted. The case conference judge then set the matter over to the uncontested motions list to set a date for Winpark’s motion to set aside default.

The motions court judge who set the date for the contested hearing ordered that Winpark’s motion proceed and that the applicant’s motion for

summary judgment and other relief be adjourned to that date but not proceed at that time. As I understand it, Winpark’s motion and another motion related to the appointment of a litigation guardian were scheduled to be heard on October 8, 2014. [ 6 ] The following facts are relevant to the motion now before me. At the same time as the applicant filed his statement of claim, he obtained two subpoenas, one for a representative of Winpark and one for a member of the Residential Tenancies Commission (the member). These were issued and served on the witnesses without stating a specific appearance date.

Counsel for Winpark stated that Mr. Gisser appeared at the first appearance of the applicant’s motion for

summary judgment on the uncontested motions list but did not make any representations. [ 7 ] Mr. Gisser also appeared at the second case conference. When the case conference judge asked why he was there, Mr. Gisser advised that he was there for the Residential Tenancies Commission, in response to the subpoena served on its member. He said that they were not sure where the matter was going, so he was there in a protective capacity to monitor the matter.

He indicated that they had some issues related to the subpoena that they might want to address at an appropriate time in the future, depending on the outcome of the various motions. In his memorandum, the case conference judge noted him being present on a watching brief. [ 8 ] At that second case conference, the case conference judge made an order quashing the two subpoenas, noting as follows in his memorandum: I advised Mr. Klippenstein that the Residential Tenancies Commission had no standing at this motion/case conference and that the subpoenas could only be issued for the trial of an action.

To date, no trial date has been set. I therefore ordered that the subpoenas be quashed. [ 9 ] An order to that effect was subsequently entered and has been appealed by the applicant. Subsequent to filing the notice of appeal, the applicant filed the motion in this court to have Mr. Gisser added as a party to the proceedings and argues that the matter should be dealt with by this court in the first instance. III. THE PARTIES’ POSITIONS [ 10 ] At the hearing of the motion, the applicant stated and repeated that the grounds for his application are that Mr.

Gisser interfered in the proceeding without filing a formal motion and that, by doing so, he made himself a party to the proceeding and can be added as a party under Rule 5. The interference relates to his appearance at the second case conference, at which the case conference judge quashed the subpoena against the member, who is related to Mr. Gisser’s client, the Residential Tenancies Commission. The applicant alleges that he was affected by Mr Gisser’s interference because his actions eliminated all of his evidence to oppose the motion to set aside the default. [ 11 ] Mr.

Gisser takes the position that the motion is devoid of any basis to support it and is vexatious. He states that it is scandalous, being intended to intimidate and harass a public legal officer. He argues that the allegations in the applicant’s affidavit are irrelevant and are misguided beliefs rather than facts. He asks that the motion be dismissed with costs payable to the Minister of Finance.

IV. ANALYSIS AND DECISION [ 12 ] Karen Busby, Manitoba Queen’s Bench Rules Annotated , loose-leaf (consulted on August 2014), (Toronto: Thomson Reuters Canada Limited, 2014) vol. 1, explains the purpose of Rule 5 (at p. 2-17): Rule 5 attempts to avoid multiplicity of actions through broad provisions for joinder of multiple claims and multiple parties. A plaintiff should join in one action all claims against a defendant “so far as that can fairly be done” .... . . . . .

Multiple Plaintiffs: Plaintiffs can be joined where the claims to relief arise out of the same transaction or occurrence or where a common question of law or fact arose in the action or whenever it “may promote the convenient administration of justice.” Multiple Defendants: In addition to the same three independent grounds permitting joinder of plaintiffs, joinder of defendants may also take place if there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief (R. 5.02(2) (c)) or where damage or loss is alleged to have been caused by more than one person regardless of whether there is any factual connection between the claims (R. 5.02(2)(d)). .... [ 13 ] A review of the statement of claim shows that the applicant’s claim is against Winpark only, being a claim for damages for perjury, slander and defamation of character for statements made by its agents at public hearings before the Residential Tenancies Branch and the Residential Tenancies Commission.

Mr. Gisser is not named in the pleading. There is no allegation that Mr. Gisser was involved in or even present at those hearings, or that he has any information relevant to them. Thus, there is no basis upon which to find that he meets any of the criteria for being joined as a party. [ 14 ] Further, there is no basis for the applicant’s allegation that Mr. Gisser’s “interference” at the second case conference led to the elimination of the applicant’s evidence for the motion to set aside the default. While the motion for

summary judgment has been adjourned to be heard after the determination of the motion to set aside the default, any affidavit material that the applicant filed with that motion that is relevant to the default motion will still be heard as part of that motion.

This is clear from the first case conference memorandum, in which the case conference judge notes that “[t]he [applicant] has already filed an affidavit resisting [Winpark]’s application to set aside the default judgment.” He directs Winpark to file its material for the default motion by a fixed date and then says that “[i]f the [applicant] wishes to file any additional documents in response to [Winpark]’s motion, he is to do so [by a fixed date].” [ 15 ] Further, while the case conference judge quashed the two subpoenas, he did so on the basis that no trial date had been set.

He did not order that the applicant could not obtain further subpoenas, so it is open to him to reissue the subpoenas, presumably when he has a fixed hearing date. Thus, that evidence, if otherwise appropriate, relevant and admissible (which may be contested), is still available to him. [ 16 ] Because it is not necessary for the resolution of this matter, I am not deciding whether it was appropriate, in this matter, to have this motion determined in the first instance by this court. I do, however, have concerns in that regard.

Notwithstanding s. 36(1) of The Court of Appeal Act , this is a court of appeal, not a court of first instance. Its function is not to make initial orders, but to review the decisions of courts of first instance for error. Before a litigant makes an application to this court for an order of first instance, it should address the issue of why the application was not made to a court of first instance. That was not done in this case. [ 17 ] For all of these reasons, I would dismiss this motion. V. COSTS [ 18 ] Mr.

Gisser has asked for an order for costs payable to the Minister of Finance on the basis that there was no basis for this motion. I agree, so I am ordering that the applicant pay costs of $200, which will be payable to the Minister of Finance. J.A.