Klippenstein v. Manitoba Ombudsman, 2015 MBCA 15

• Judge: Mainella, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 22, 2014
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 15;(2015), 315 Man.R.(2d) 149 (CA)

Klippenstein v. Ombudsman (2015), 315 Man.R.(2d) 149 (CA);

      630 W.A.C. 149

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.024

Larry Peter Klippenstein (plaintiff/appellant) v. Manitoba Ombudsman (defendant/respondent)

(AI 13-30-08075; AI 13-30-08084; AI 14-30-08112; 2015 MBCA 15)

Indexed As: Klippenstein v. Manitoba Ombudsman

Manitoba Court of Appeal

Mainella, J.A.

February 4, 2015.

Summary:

Klippenstein's action against the Manitoba Ombudsman (the defendant) alleged bad faith and a failure to investigate criminal conduct against Klippenstein. Klippenstein moved for orders declaring his competency to handle his own affairs and removing his father as his "health care proxy" and enduring power of attorney. He requested that the motion be adjourned pending the outcome of his appeals in other proceedings. The defendant moved to stay the action, asserting that steps taken by Klippenstein in this action as well as in other actions before this court and the Court of Appeal raised serious concerns as to whether Klippenstein was competent to manage and conduct proceedings on his own behalf.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 302 Man.R.(2d) 198, adjourned Klippenstein's motion sine die. The court granted the defendant's motion, staying the action until Klippenstein provided a medical opinion from a duly qualified health care physician regarding his capacity to manage his affairs with specific reference to his mental ability to understand and manage this litigation. Klippenstein appealed from the motion staying his action. Previously, he had filed two other appeals related to the action. The three appeals were consolidated. Klippenstein moved for the appointment of a litigation guardian to continue his three appeals. The parties agreed on the appointment of a psychiatrist to prepare a report as to Klippenstein's competency. Following the delivery of the report, the defendant moved to stay the appeals. At the hearing of the two motions, Klippenstein brought a recusal motion.

The Manitoba Court of Appeal, per Mainella, J.A., denied Klippenstein's two motions and granted the defendant's motion. The appeals were stayed until further order of the court.

Courts - Topic 680

Judges - Disqualification - Conflict of interest - [See Courts - Topic 691 ].

Courts - Topic 687

Judges - Disqualification - Bias - By appeal court judge (incl. Supreme Court of Canada justice) - [See Courts - Topic 691 ].

Courts - Topic 689

Judges - Disqualification - Bias - Arising out of participation in prior proceedings - [See Courts - Topic 691 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - Klippenstein's action against the Manitoba Ombudsman (the defendant) was stayed due to concerns as to whether Klippenstein was competent to manage and conduct proceedings on his own behalf - Klippenstein appealed and moved for the appointment of a litigation guardian to continue his three appeals (this one and two others related to this action) - The parties agreed on the appointment of a psychiatrist to prepare a report as to Klippenstein's competency to be paid for by the defendant - Following the delivery of the report, the defendant moved to stay the appeals - Klippenstein brought a contempt motion regarding alleged non-payment by the defendant for the psychiatrist's report - Mainella, J.A., denied the motion as frivolous and devoid of merit - Klippenstein laid an information under s. 504 of the Criminal Code against Mainella, J.A., personally due to the denial - Following the delivery of the psychiatrist's report, the defendant moved to stay the appeals - At the hearing of the two motions, Klippenstein brought a motion demanding that Mainella, J.A., recuse himself - The Manitoba Court of Appeal, per Mainella, J.A., denied the recusal motion - The strong presumption of judicial impartiality was not displaced merely because of a previous, unfavourable decision - Further, the mere fact that a judge was attacked personally by a litigant was not a reason per se for the judge's disqualification - A reasonable person would fully appreciate that Mainella, J.A., had no personal stake in Klippenstein's legal proceedings - See paragraphs 22 to 30.

Courts - Topic 2110

Jurisdiction - Appellate jurisdiction - Single appellate judge - The Manitoba Court of Appeal, per Mainella, J.A., held that a chambers judge had jurisdiction to stay an appeal on an interim basis where there was a credible concern that a self-represented litigant was incompetent to understand and manage an appeal, but was not disabled within the meaning of the Queen's Bench Rules and it was unjust for the appeal to continue - See paragraphs 33 to 38.

Courts - Topic 7761

Provincial courts - Manitoba - Court of Appeal - Jurisdiction - General - [See Courts - Topic 2110 ].

Persons of Unsound Mind - Topic 1287

Legal proceedings - Representation of incompetents - Guardian ad litem - Klippenstein's action against the Manitoba Ombudsman (the defendant) was stayed due to concerns as to whether Klippenstein was competent to manage and conduct proceedings on his own behalf - Klippenstein appealed and moved for the appointment of a litigation guardian to continue his three appeals (this one and two others related to this action) - The parties agreed on the appointment of a psychiatrist to prepare a report as to Klippenstein's competency - Following the delivery of the report, the defendant moved to stay the appeals - The Manitoba Court of Appeal, per Mainella, J.A., granted the defendant's motion - The presumption of competency could only be rebutted by clear evidence that a person lacked capacity to make decisions for himself or herself - Here, there were credible concerns about Klippenstein's competency regarding this litigation, but it was situational only - He was not disabled within the meaning of the Queen's Bench Rules - The balance of convenience favoured granting an interim stay - To do so would not cause irreparable harm to Klippenstein's interests - It was inappropriate to allow a delusional litigant to continue to perpetuate his delusions - Appointing a litigation guardian was not appropriate because Klippenstein was not disabled - Further, appointing a litigation guardian would likely mean that the appeals, which were filed due to a mental illness, would be discontinued - See paragraphs 39 to 51.

Practice - Topic 9402

Appeals - Stay of appeal - When available - [See Courts - Topic 2110 and Persons of Unsound Mind - Topic 1287 ].

Cases Noticed:

Klippenstein v. Human Rights Commission (Man.), [2013] Man.R.(2d) Uned. 1; 2013 MBCA 1, leave to appeal denied (2014), 470 N.R. 399 (S.C.C.), refd to. [para. 3].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 26].

CAE Aircraft Ltd. v. Canadian Commercial Corp. (1994), 95 Man.R.(2d) 101; 70 W.A.C. 101 (C.A.), refd to. [para. 26].

Métis Child, Family and Community Services v. A.J.M. et al. (2008), 225 Man.R.(2d) 261; 419 W.A.C. 261; 2008 MBCA 30, refd to. [para. 26].

Klippenstein v. Canada, [2014] F.T.R. Uned. 67; 2014 FC 174, affd. (2014), 466 N.R. 60; 2014 FCA 216, refd to. [para. 27].

Sanofi-Aventis Canada Inc. et al. v. Apotex Inc., [2008] N.R. Uned. 157; 2008 FCA 394, refd to. [para. 28].

HKS Management Inc. v. Kapelus (1995), 107 Man.R.(2d) 239; 109 W.A.C. 239 (C.A.), refd to. [para. 28].

McElheran v. Canada et al., [2006] A.R. Uned. 869; 2006 ABCA 161, refd to. [para. 29].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 32].

Canada (Attorney General) v. Courchene et al., [2010] Man.R.(2d) Uned. 1; 85 C.P.C.(6th) 97; 2010 MBCA 4, refd to. [para. 34].

British Aviation Insurance Group v. Coseco Insurance Co. (2010), 251 Man.R.(2d) 318; 478 W.A.C. 318; 2010 MBCA 56, refd to. [para. 34].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, refd to. [para. 36].

Khan v. St. Thomas Psychiatric Hospital et al. (1992), 52 O.A.C. 166; 7 O.R.(3d) 303 (C.A.), leave to appeal denied (1992), 144 N.R. 399 (S.C.C.), refd to. [para. 36].

McElroy, Re (1979), 22 O.R.(2d) 381 (D.C.), refd to. [para. 36].

Montreal Trust Co. v. McKay (1957), 21 W.W.R. 611 (Alta. S.C.), refd to. [para. 36].

R. v. Hill (1851), 5 Cox C.C. 259 (C.C.R.), refd to. [para. 36].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 39].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 39].

Salamon et al. v. Alberta (Minister of Education) et al. (1991), 120 A.R. 298; 8 W.A.C. 298 (C.A.), leave to appeal denied (1993), 150 N.R. 306; 141 A.R. 318; 46 W.A.C. 318 (S.C.C.), dist. [para. 50].

Dugas v. Duguay (1986), 71 N.B.R.(2d) 93; 182 A.P.R. 93 (C.A.), dist. [para. 50].

Authors and Works Noticed:

Law Society of Manitoba, Code of Professional Conduct (2010), ch. 5.6 [para. 29].

Counsel:

L.P. Klippenstein, on his own behalf;

R.H. Kravetsky, for the respondent;

J. Taylor, on a watching brief for the Public Guardian and Trustee of Manitoba.

These motions were heard in Chambers on December 22, 2014, by Mainella, J.A., of the Manitoba Court of Appeal, who pronounced the following decision on February 4, 2015.