2016 MBCA 53, 2016 MBCA 53

Citation: Klippenstein v Winpark Dorchester Properties, Date: 20160530 2016 MBCA 53 Dockets: AI14-30-08212; AI14-30-08240; AI14-30-08257; AI14-30-08269 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : LARRY PETER KLIPPENSTEIN ) L. P. Klippenstein ) on his own behalf ) (Plaintiff) Appellant ) L. A. Labine ) for the Respondent - and - ) ) Chambers motion heard: WINPARK DORCHESTER PROPERTIES ) December 10, 2015 ) ) Decision pronounced: (Defendant) Respondent ) May 30, 2016 BEARD JA I.

THE ISSUE [ 1 ] The genesis of the matters before me is a motion by the defendant, Winpark Dorchester Properties (Winpark), pursuant to sections 7(1) and 31.3 of The Court of Appeal Act , CCSM c C240 (the Act ), for an order that the four appeals then outstanding (AI14- 30-08212, AI14-30-08240, AI14-30-08257 and AI14-30-08269) (the four appeals) be stayed until the plaintiff, Larry Peter Klippenstein, has filed the opinion of a duly qualified medical practitioner that he is capable of managing his own affairs, and, specifically, that he is capable of understanding and managing this litigation.

Winpark has raised alternative issues that, for reasons that will become clear, I need not address. [ 2 ] Mr. Klippenstein has filed two motions in reply, and his position, as far as I can determine, is that Winpark’s motion for a stay of proceedings should be dismissed because:

(1) Winpark has delayed in filing its materials in the four appeals; (2) this Court lacks jurisdiction to decide a constitutional claim, which can only be decided by a panel of the Court;

(3) Winpark failed to follow the proper procedure for injunctive relief in a constitutional claim; and (4) the only basis for the stay is findings in earlier decisions in other litigation regarding Mr. Klippenstein’s mental capacity, which decisions are without a basis in law. [ 3 ] In addition, Mr. Klippenstein argues that I, sitting as a chambers judge, have no jurisdiction under section 7(1) of the Act to issue a stay on the basis of mental disability and, further, that I should recuse myself due to a reasonable apprehension of bias. [ 4 ] Mr.

Klippenstein argues, in the alternative, that, if I grant Winpark’s motion for a stay, I should order, pursuant to r 33.09 of the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88, that it pay the cost of the medical report regarding his capacity to manage this litigation and that I make certain specific ancillary orders related to obtaining that report. [ 5 ] Finally, he has applied for an order relieving him from paying any court-related costs due to his financial inability to do so. II. THE FACTS [ 6 ] It is uncontested that Mr.

Klippenstein has been diagnosed as having schizophrenia and, in a 2014 medical report, as having a distorted and paranoid view of reality regarding that particular, unrelated claim. Despite this diagnosis, it is clear that Mr. Klippenstein is not incapable of managing all aspects of his affairs, as he lives independently in the community and, in 2010, his psychiatrist provided an opinion that he was competent to manage an earlier claim that he brought before the Residential Tenancies Branch (the Branch).

[ 7 ] Mr. Klippenstein has signed both a health care directive and an enduring power of attorney in favour of his parents, although these documents are not necessarily indicative of a mental disability and are often used by people of sound mind to plan their affairs in the event that problems arise at a future time. It is my understanding that his father refused to represent him or to act as his litigation guardian in this matter. The Underlying Proceedings [ 8 ] Mr. Klippenstein was a tenant in an apartment building when Winpark took over as the property manager and lessor in 2011.

Disputes arose between them which led to Mr. Klippenstein making a claim against Winpark that was denied by the Branch but allowed, in part, on appeal to the Residential Tenancies Commission (the Commission). On December 13, 2013, the Commission ordered Winpark to pay Mr. Klippenstein the sum of $474.10. That decision has not been appealed by either party. [ 9 ] On December 17, 2013, Mr. Klippenstein filed a statement of claim against Winpark, claiming damages for perjury, slander and defamation for statements made by its agents at the hearing before the Branch and the Commission.

He also requisitioned two subpoenas for an employee of Winpark and a member of the Commission to testify, although no hearing date had been scheduled. Mr. Klippenstein attended personally at the Winpark office to serve the documents. According to the affidavit filed on behalf of Winpark, the staff misunderstood the nature of the document and filed it away, believing that further directions and notice of a hearing date would be provided at a later date. Thus, no further action was taken. [ 10 ] Upon the expiry of the time to file a statement of defence, Mr. Klippenstein noted default.

Winpark was advised of the default only days later and had its counsel request that he consent to set aside the default. Mr. Klippenstein’s response was to file a motion for

summary judgment. The matter was referred for a case conference, following which Winpark filed a motion to set aside the default judgment and/or strike out the statement of claim or, alternatively, for leave to file a statement of defence. Shortly after, Mr. Klippenstein filed a motion to have a litigation guardian appointed to represent him in these proceedings. [ 11 ] Chartier J scheduled a hearing for Winpark’s motion to set aside the default and Mr. Klippenstein’s motion for the appointment of a litigation guardian, and he adjourned Mr. Klippenstein’s motion for

summary judgment to the hearing date with the direction that it would not be heard at that time. Chartier J heard the first two motions and gave his decision on October 8, 2014, wherein he set aside the noting of default, dismissed the motion to appoint a litigation guardian and stayed the proceeding pending a determination of Mr. Klippenstein’s capacity to understand and manage the litigation. [ 12 ] Mr. Klippenstein had filed four appeals in this matter at the time that Winpark filed the present motion: (1) an appeal of the order of the case conference judge, Abra J, quashing the two subpoenas on the basis that they were premature; (2) an appeal of Chartier J’s order that the motion for

summary judgment not be heard on October 8, 2014; (3) an appeal of Chartier J’s order on October 8, 2014, dismissing Mr. Klippenstein’s motion for legal representation, granting Winpark’s motion to set aside the noting of default, awarding costs to Winpark and staying the proceedings under

section 38 of The Court of Queen’s Bench Act , CCSM c C280; and (4) an appeal of an order that I granted dismissing his motion to add the lawyer for the Commission, Mr. Gisser, as a party. At the time of the present motion, neither party had filed appeal books or facta on the fourth appeal. [ 13 ] As part of his appeal of Chartier J’s order staying the proceedings, Mr.

Klippenstein raised the issue of whether that order breached his equality rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the Charter ) on the basis of mental disability. [ 14 ] At the commencement of the hearing of the present motion, Mr. Klippenstein argued that I was in a conflict because my order would affect the appeal of my decision not to add Mr. Gisser as a party and, as a result, I should recuse myself. [ 15 ] Following the hearing of this motion, Mr.

Klippenstein filed a further motion in this Court that includes a request that Winpark’s counsel be removed and indicating that he is bringing criminal charges against both the court transcriber for falsifying a transcript of court proceedings and Winpark’s legal counsel and her law firm. The chambers judge adjourned that proceeding pending the outcome of this matter, and Mr. Klippenstein has filed an appeal of that decision. Mr. Klippenstein’s Prior Proceedings [ 16 ] Mr.

Klippenstein has been involved in a number of legal proceedings over the past several years, some arising out of other tenancy issues, and the question of his mental capacity to conduct those proceedings has been addressed on several occasions. [ 17 ] The first matter is that of Klippenstein v Manitoba (Human Rights Commission) , 2012 MBQB 262 , in which Mr. Klippenstein raised the issue of his competence and whether counsel should be appointed for him under r 15.01(1) of the Queen’s Bench Rules . After reviewing some of the evidence regarding Mr.

Klippenstein’s mental health history, the motion judge, Dewar J, found that the evidence was inconclusive as to whether he had the capacity to manage the court process. As a result, on September 27, 2012, he ordered a stay of the proceedings until Mr. Klippenstein provided an affidavit from a qualified health care physician stating that he has the capacity to manage his affairs with specific reference to his mental ability to understand and manage the litigation. [ 18 ] Mr.

Klippenstein had filed a number of appeals in that matter, so the Manitoba Human Rights Commission applied to this Court for a stay of the appeals until further order of the Court. The chambers judge, Scott CJM, agreed that, while the evidence that Mr. Klippenstein was not competent to represent himself was inconclusive, he had serious reservations regarding his competence. As a result, on January 14, 2013, he granted a stay of proceedings until further order of the Court (see Klippenstein v The Manitoba Human Rights Commission , 2013 MBCA 1 ).

Leave to appeal to the SCC was denied on January 23, 2014, [2013] SCCA No 418 (QL). Mr. Klippenstein persisted in filing further documents with that Court, and, on April 1, 2014, he was declared a vexatious litigant and prohibited from filing any further documents in that proceeding. [ 19 ] The next matter is that of Klippenstein v Manitoba Ombudsman , 2014 MBQB 25 , 302 ManR (2d) 198, in which the Ombudsman filed a motion for a stay of the action in the Court of Queen’s Bench pursuant to

section 38 of The Court of Queen’s Bench Act . Mr. Klippenstein filed a motion for a declaration of his competency to handle his own affairs and for an order removing his father

as his health care proxy and terminating the enduring power of attorney, saying that his father would not proceed with that action on his behalf. After reviewing the earlier proceedings and the history of the proceedings before him, the motion judge, Edmond J, concluded that he had similar reservations about Mr. Klippenstein’s capacity to represent himself. On that basis, he granted a stay of the proceedings on the same terms as the earlier stay granted on September 27, 2012. [ 20 ] Mr.

Klippenstein had filed a number of appeals in that matter, leading the Ombudsman to file a motion for a stay of all appeals on the basis that it was not in the best interest of justice to permit him to continue. Mr. Klippenstein moved to have the Public Guardian and Trustee of Manitoba (the Public Trustee) or the Children’s Advocate appointed as his litigation guardian, although he was of the view that any litigation guardian would be required to follow his instructions regarding the conduct of the litigation.

The Ombudsman and the Public Trustee both opposed that motion, while the Children’s Advocate did not appear. [ 21 ] The Ombudsman agreed to pay for a psychiatric report and Mr. Klippenstein cooperated in the preparation of a report by a psychiatrist, Dr. Eleff, by whom he had been treated in the past. Dr. Eleff had provided an opinion in 2010 that Mr. Klippenstein was competent to argue an earlier case that he had commenced before the Branch; however, his opinion in 2014 was that Mr.

Klippenstein was suffering from a distorted or paranoid view of reality regarding the facts of his claim against the Ombudsman. [ 22 ] The chambers judge, Mainella JA, found that an interim stay of the appeals should be ordered (see Klippenstein v Manitoba Ombudsman , 2015 MBCA 15 at para 40 , 315 ManR (2d) 149) and that it would not be appropriate to appoint a litigation guardian (at para 48): . . . Mr. Klippenstein does not meet the definition of “disabled” in the Queen’s Bench Rules . Mr.

Klippenstein’s submissions to me indicate that what he really wants is not a litigation guardian as that role is properly understood. He wants state-funded counsel, who would ignore the ethical boundaries placed on advocates and who would pursue these appeals based on Mr. Klippenstein’s delusion. [ 23 ] Mainella JA went one step further and ordered that the court registry not accept any further documents from Mr. Klippenstein in the appeals under consideration except on satisfactory proof that he was represented by a member in good standing of the Law Society of Manitoba.

Leave to appeal this decision to the SCC was denied, [2015] SCCA No 135 (QL). III. ANALYSIS Recusal Motion [ 24 ] As noted above, Mr. Klippenstein has argued that I should recuse myself from hearing this matter because one of the appeals is from an order that I made, raising a reasonable apprehension of bias. The principles related to apprehension of bias and the removal of a judge were set out by Dewar J at paras 5-9 and Mainella JA at paras 26-30, and I adopt those principles. [ 25 ] The decision upon which Mr.

Klippenstein bases his argument deals with a very peripheral matter that does not affect the essence of his proceeding against Winpark or his appeals related to that core proceeding. Mr. Gisser had no involvement in the case beyond appearing at a case conference on a watching brief. I am satisfied that a reasonable person would fully appreciate that I have no personal stake in these legal proceedings and, as a result, I see no reason why I am unable to fairly adjudicate this case based on the law and the evidence before me.

Jurisdiction [ 26 ] The question of a chambers judge’s jurisdiction under section 7(1) of the Act to grant an interim stay of proceedings where there is a credible concern that a self-represented litigant is incompetent to understand and manage his or her appeal was confirmed by Mainella JA (see paras 33-38). I adopt those reasons and, on that basis, find that I have jurisdiction to hear and decide this motion.

Winpark’s Motion for a Stay of the Appeals [ 27 ] The legal principles regarding a motion for a stay of proceedings were set out by Scott CJM at para 1 and Mainella JA at para 39, and I adopt those principles. The three-part test for granting a stay of proceedings is that of a serious issue to be tried regarding the substantive action; irreparable harm if a stay is not granted; and the balance of convenience. The three are interrelated and are to be considered cumulatively.

The strength of one of the factors may compensate for weakness in the others. [ 28 ] The test to determine whether there is a substantive issue to be tried regarding Mr. Klippenstein’s underlying action is a low one. Given that the issues have not been fully framed because a statement of defence has yet to be filed, I am prepared to assume, without deciding, that the low threshold has been met and there is a substantive issue to be tried. [ 29 ] The second and third tests are the more important factors in this case. Mr.

Klippenstein’s mental health history has been reviewed in prior decisions (see Dewar J’s decision at paras 34-35; and Mainella JA’s decision at paras 6-12, 20-21). While it is not determinative, it is very significant that several courts have granted interim, reviewable stays of Mr. Klippenstein’s other proceedings due to concerns about his mental capacity to prosecute those claims. [ 30 ] A review of the proceedings in this matter raises the same concerns as in those earlier matters. That review strongly suggests that, while Mr.

Klippenstein is, in a general way, familiar with court rules and court processes, his written material and his oral presentations are rambling, repetitive and difficult to understand. He appears unable to grasp the need for proportionality, restraint and rationality in determining what matters should be pursued. I note, for example, the numerous interlocutory appeals that have been filed, significantly increasing costs for all parties, including himself, and preventing the determination of his substantive claim.

He has made numerous claims of fraud against people involved in the justice system, including judges, a court transcriber and the legal firm representing Winpark. Further, notwithstanding his past efforts to have judges removed from hearing his matters, he does not appear to

understand the underlying principles but, rather, continues to make those applications. [ 31 ] As has been found in previous decisions, there is no clear evidence that Mr. Klippenstein is not capable of understanding and managing this litigation, but the evidence is sufficiently strong to raise serious concerns in that regard. [ 32 ] After considering Mr.

Klippenstein’s conduct of this matter in the context of his previous litigation, I am of the view that Winpark has satisfied its onus of proving that the balance of convenience favours granting a conditional stay of these proceedings and that to do so would not cause irreparable harm to Mr. Klippenstein’s interests. It would, in my view, bring the administration of justice into disrepute to allow him to continue to pursue this litigation without some assurance that he has the capacity to understand and properly manage the litigation. [ 33 ] Mr.

Klippenstein has asked, in the alternative, that I order the appointment of a litigation guardian, although he has not put forward any candidate willing to so act. Mainella JA dealt with a similar motion, which he rejected (see paras 48-51). I would reject this motion in this case for essentially the same reasons. If Mr. Klippenstein establishes that he is disabled within the Queen’s Bench Rules and feels that this matter could be prosecuted for him by a litigation guardian, he should propose a suitable candidate for the Court’s consideration. Payment for the Medical Report [ 34 ] Mr.

Klippenstein argues that Winpark’s motion for a stay is akin to a motion under

section 63 of The Court of Queen’s Bench Act for an order that he undergo a mental examination, making r 33 applicable. In particular, he is relying on r 33.09 which states that the party obtaining an order for a mental examination of a party shall be liable initially for the expense of the examination, which would become part of the costs to be determined at the end of the proceeding. [ 35 ] Winpark argues, among other things, that its application is not under

section 63 but, rather, is for a stay of proceedings on the basis that stays have been granted in prior proceedings because of concerns regarding Mr. Klippenstein’s mental capacity to represent himself. It also argues that it was he, and not Winpark, who first raised this issue in these proceedings by applying for the appointment of a litigation guardian. [ 36 ] As pointed out by Winpark, it was Mr. Klippenstein who first raised the issue of his mental capacity in this matter, not Winpark.

That issue remains unresolved, as Chartier J’s order staying the underlying proceeding pending a determination of the accused’s mental capacity remains outstanding, albeit it is the subject of one of the current appeals. Likewise, Mr. Klippenstein does not appear to have taken any steps to respond, in a substantive way, to any of the earlier stays. [ 37 ] I do not agree that Winpark’s motion for a stay of proceedings is governed by either

section 63 or r 33.09, as the issue of his mental capacity does not form part of the underlying claim. Winpark’s motion is for a stay of proceedings until the issue of Mr. Klippenstein’s mental capacity to understand and conduct this litigation has been determined, and it has pointed to sufficient evidence from the materials and conduct of this case and from findings in Mr. Klippenstein’s other litigation, without the need for a medical report, to support such an order. It is up to Mr.

Klippenstein to apply to set aside that order, either by providing evidence that he is mentally capable of understanding and conducting this litigation or that he is not, in which event he should put forward a suitable litigation guardian to act on his behalf. [ 38 ] Thus, his application for an order that Winpark pay the initial cost of the mental examination is dismissed. IV. DECISION [ 39 ] For the reasons set out herein, Mr. Klippenstein’s motion that I recuse myself is dismissed. [ 40 ] Winpark’s motion for a stay of these four appeals is granted until such time that Mr.

Klippenstein provides an opinion from a duly qualified medical practitioner certifying that he has the capacity to understand and manage this litigation. Alternatively, if Mr. Klippenstein obtains an opinion from a duly qualified medical practitioner that he does not have the capacity to understand and manage this litigation, it is open to a suitable litigation guardian to apply on his behalf to set aside the stay. [ 41 ] The Court of Appeal registry is directed not to accept any document of any sort from Mr. Klippenstein in relation to these four appeals, except on satisfactory, written proof that Mr.

Klippenstein is represented by a member in good standing of the Law Society of Manitoba. If necessary, the registry is authorized to return to him any further document relating to these four appeals by regular mail to his last known address. [ 42 ] Finally, Mr. Klippenstein’s motion for the appointment of a litigation guardian is dismissed, as is his motion for an order that Winpark pay the cost of the mental examination. [ 43 ] The motions by each party for other relief not dealt with herein are adjourned sine die pending the determination of Mr.

Klippenstein’s mental capacity and, if necessary, the appointment of a suitable litigation guardian. [ 44 ] Mr. Klippenstein has asked that he be exempted from any order for costs due to his impecuniosity. Given the extreme number of proceedings that he has instituted and the significant cost that Winpark faces in responding, I am not prepared to exercise my discretion and grant that application. [ 45 ] There will be an order of costs of this motion to Winpark. JA