Gichuru v. Pallai et al., (2015) 367 B.C.A.C. 280 (CA)

• Judge: Stromberg-Stein, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 23, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 367 B.C.A.C. 280 (CA);2015 BCCA 81

Gichuru v. Pallai (2015), 367 B.C.A.C. 280 (CA);

    631 W.A.C. 280

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. MR.005

Mokua Gichuru (appellant/petitioner) v. Mark Pallai and The BC Human Rights Tribunal (respondents/respondents)

(CA042348; 2015 BCCA 81)

Indexed As: Gichuru v. Pallai et al.

British Columbia Court of Appeal

Stromberg-Stein, J.A.

February 23, 2015.

Summary:

Gichuru brought a petition challenging a decision of the BC Human Rights Tribunal (see 2012 BCHRT 327). The main issue on this application was whether Gichuru's failure to pay previous costs orders (in related proceedings) because he was impecunious justified an order for security for costs being made against him.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 2330, held that Gichuru's failure to pay costs owed to the respondent Pallai and others constituted special circumstances justifying a departure from the general rule that security for costs were not to be ordered against an individual. The court ordered that Gichuru post $7,000 security for costs of the petition in a form satisfactory to the registrar by November 7, 2014. Gichuru sought an extension of time to file and serve his motion for leave to appeal to January 15, 2015. He also applied for leave to appeal the order.

The British Columbia Court of Appeal, per Stromberg-Stein, J.A., allowed the extension, which was unopposed, but denied leave to appeal. The court would only interfere with a judge's discretionary order if that order was clearly wrong, a serious injustice would occur, or the judge's discretion was not exercised judicially or was exercised on a wrong principle. Nothing justified granting leave to appeal the discretionary order here.

Editor's Note: Other related proceedings between the parties can be found at Gichuru v. York, [2011] B.C.T.C. Uned. 34; 2011 BCSC 342, affd. (2013), 337 B.C.A.C. 232; 576 W.A.C. 232; 2013 BCCA 203, Gichuru v. Pallai (No. 2), 2010 BCHRT 125, Gichuru v. Palmar Properties Inc. et al., [2011] B.C.T.C. Uned. 827; 2011 BCSC 827, Gichuru v. Pallai et al., [2012] B.C.T.C. Uned. 693; 2012 BCSC 693, affd. (2013), 332 B.C.A.C. 272; 569 W.A.C. 272; 2013 BCCA 60, and Gichuru v. Pallai et al., [2012] B.C.T.C. Uned. 1316; 2012 BCSC 1316, affd. (2013), 332 B.C.A.C. 272; 569 W.A.C. 272; 2013 BCCA 60.

Practice - Topic 8111

Costs - Security for costs - General principles - Where plaintiff has failed to satisfy prior judgment or order - See paragraphs 1 to 36.

Practice - Topic 8112

Costs - Security for costs - General principles - Where plaintiff insolvent or impecunious - See paragraphs 1 to 36.

Cases Noticed:

Meade v. Armstrong (City) (2011), 301 B.C.A.C. 167; 510 W.A.C. 167; 2011 BCCA 63, refd to. [para. 9].

Han et al. v. Cho et al., [2008] B.C.T.C. Uned. 856; 2008 BCSC 1229, refd to. [para. 11].

Pomerleau v. Thorpe, [2009] B.C.T.C. Uned. 483; 2009 BCSC 483, refd to. [para. 14].

Goldman, Sachs & Co. v. Sessions et al., [2000] B.C.A.C. Uned. 78; 2000 BCCA 326, refd to. [para. 17].

Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment Corp. (1988), 19 C.P.C.(3d) 396 (C.A.), refd to. [para. 17].

Hanlon v. Nanaimo (Regional District) et al., [2007] B.C.A.C. Uned. 154; 2007 BCCA 538, refd to. [para. 18].

Procon Mining & Tunnelling Ltd. et al. v. McNeil et al., [2009] B.C.A.C. Uned. 26; 2009 BCCA 162, refd to. [para. 19].

Gichuru v. Law Society of British Columbia et al. (2012), 319 B.C.A.C. 11; 542 W.A.C. 11; 2012 BCCA 159, refd to. [para. 19].

Guinea Golden Mines G.G.M.- S.A.R.L. v. Cassidy Gold Corp. et al. (2006), 225 B.C.A.C. 99; 371 W.A.C. 99; 2006 BCCA 200, refd to. [para. 20].

Shiell v. Coach House Hotel Ltd. (1982), 37 B.C.L.R. 254 (C.A.), refd to. [para. 26].

Counsel:

Mokua Gichuru, appellant, appeared on his own behalf;

Z.J. Ansley, for the respondent, Mark Pallai.

This motion and application were heard on February 23, 2015, by Stromberg-Stein, J.A., in chambers, of the British Columbia Court of Appeal, who delivered the following decision on the same date.