Pavlis v. HSBC Bank Canada et al., (2009) 277 B.C.A.C. 105 (CA)

• Judge: Newbury, D. Smith and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 25, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 277 B.C.A.C. 105 (CA);2009 BCCA 450

Pavlis v. HSBC Bk. (2009), 277 B.C.A.C. 105 (CA);

    469 W.A.C. 105

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. OC.023

Marcia Hattie Pavlis (appellant/plaintiff) v. HSBC Bank Canada and HSBC Securities (Canada) Inc. (respondents/defendants)

(CA037070; 2009 BCCA 450)

Indexed As: Pavlis v. HSBC Bank Canada et al.

British Columbia Court of Appeal

Newbury, D. Smith and Bennett, JJ.A.

October 21, 2009.

Summary:

Pavlis sued the defendants for constructive dismissal and negligence.

The British Columbia Supreme Court dismissed the action (2009 BCSC 498). Pavlis sought to appeal the dismissal of her action and was granted indigent status. Pavlis applied for an order that the Supreme Court order transcripts of the trial for purposes of the appeal.

The British Columbia Court of Appeal, per Kirkpatrick, J.A., in a decision reported at [2009] B.C.A.C. Uned. 48, ruled that the court did not have jurisdiction to order that it, or the Crown, pay for transcripts on behalf of an appellant. The court cited, inter alia, rule 20(1) of the Court of Appeal Rules. Pavlis applied to vary this part of the chambers judge's order. Pavlis argued that the chambers judge erred in refusing the order sought and that her rights under ss. 7 and 15(1) of the Charter had thereby been infringed.

The British Columbia Court of Appeal dismissed the application.

Civil Rights - Topic 783

Liberty - Particular rights - Economic or property rights - Pavlis sought to appeal from the dismissal of her action for constructive dismissal and negligence and she was granted indigent status - Pavlis applied for an order that the Supreme Court order transcripts of the trial for purposes of the appeal - Kirkpatrick, J.A. (the chambers judge), ruled that the court did not have jurisdiction to order that it, or the Crown, pay for transcripts on behalf of an appellant, citing, inter alia, rule 20(1) of the Court of Appeal Rules - Pavlis applied to vary this part of the chambers judge's order, arguing that her s. 7 Charter rights had been infringed - The British Columbia Court of Appeal held that the s. 7 Charter argument failed - Neither the life, liberty or security of the person of Pavlis was jeopardized by the requirement that she provide transcripts to the court in order to pursue her civil appeal - Section 7 was generally not intended to protect economic rights or property interests - Any connection between Pavlis' life, liberty or security of the person and the necessity of supplying her own transcripts in order to pursue a civil claim for damages was at best tenuous - Section 7 could not have been intended to extend to obligations of this kind - See paragraphs 9 to 13.

Civil Rights - Topic 1205

Security of the person - General - Security of the person defined - [See Civil Rights - Topic 783 ].

Civil Rights - Topic 5502

Equality and protection of the law - General principles and definitions - Whether right to equality abridged - [See Civil Rights - Topic 5511 ].

Civil Rights - Topic 5511

Equality and protection of the law - General principles and definitions - Equal benefit of the law - Pavlis sought to appeal from the dismissal of her action for constructive dismissal and negligence and she was granted indigent status - Pavlis applied for an order that the Supreme Court order transcripts of the trial for purposes of the appeal - Kirkpatrick, J.A. (the chambers judge), ruled that the court did not have jurisdiction to order that it, or the Crown, pay for transcripts on behalf of an appellant - Pavlis applied to vary this part of the chambers judge's order - Pavlis argued that the requirement that she provide the court with transcripts in accordance with rule 20(1) of the Court of Appeal Rules infringed her right to equality before the law because as a disabled and indigent person, she did not have the same opportunity to exercise her right of appeal as did an able-bodied person of means - Effectively, she argued that she was denied the "benefit of the law" by the requirement for transcripts and the court should declare rule 20(1) of no force and effect - The British Columbia Court of Appeal rejected Pavlis' argument that rule 20(1) engaged her right to the equal protection and equal benefit of the law - No one was entitled to require that transcripts be prepared free of charge as a matter of right; that was not a "benefit" given by law - Conversely, the rule did not impose any stereotypical distinction, or attribute stereotypical characteristics to any person or group - Nor was it discriminatory in its effect on any of the grounds referred to in s. 15 or analogous thereto - See paragraphs 7 to 8.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - [See Civil Rights - Topic 783 ].

Practice - Topic 5295.1

Trials - General - Transcripts - General - [See Civil Rights - Topic 783 , Civil Rights - Topic 5511 and second Practice - Topic 9055 ].

Practice - Topic 9055

Appeals - Record on appeal - Record of trial evidence or original proceedings - [See Civil Rights - Topic 783 and Civil Rights - Topic 5511 ].

Practice - Topic 9055

Appeals - Record on appeal - Record of trial evidence or original proceedings - Pavlis sought to appeal from the dismissal of her action for constructive dismissal and negligence and she was granted indigent status - Pavlis applied for an order that the Supreme Court order transcripts of the trial for purposes of the appeal - Kirkpatrick, J.A. (the chambers judge), ruled that the court did not have jurisdiction to order that it, or the Crown, pay for transcripts on behalf of an appellant, citing, inter alia, rule 20(1) of the Court of Appeal Rules - Pavlis applied to vary this part of the chambers judge's order, arguing that her ss. 7 and 15(1) Charter rights had been infringed - She also argued that s. 30 of the Court of Appeal Act could be invoked to give effect to the Charter rights she asserted - Section 30 provided that in the absence of a special provision in the Act or Rules, the Court of Appeal could regulate matters of procedure by analogy to the Supreme Court Act and Rules - Rule 40(5) of the Supreme Court Rules allowed the court to order the preparation of transcripts in certain circumstances and to order that where doing so would impose hardship on a party, the cost be borne by the Crown - The British Columbia Court of Appeal stated that "It does not appear that Ms. Pavlis made this argument to the chambers judge, but in any event, I would not think it appropriate to consider invoking s. 30 of the Act or Supreme Court Rule 40(5) unless there was merit to her underlying claim. As the Attorney General notes, a court of law does not have a general power to expropriate public funds in the absence of a specific authorization" - See paragraph 5.

Cases Noticed:

Jong v. Jong et al., [2002] B.C.A.C. Uned. 57; 2002 BCCA 322, refd to. [para. 1].

Barbeau-Lafacci v. Holmgren (2002), 173 B.C.A.C. 280; 283 W.A.C. 280; 2002 BCCA 553, refd to. [para. 1].

R. v. Ho (G.D.) (2003), 190 B.C.A.C. 187; 311 W.A.C. 187; 21 B.C.L.R.(4th) 83; 2003 BCCA 663, refd to. [para. 5].

Christie v. British Columbia (Attorney General) et al., [2007] 1 S.C.R. 873; 361 N.R. 322; 240 B.C.A.C. 1; 398 W.A.C. 1; 2007 SCC 21, refd to. [para. 8].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 8].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 8].

R. v. L'Espinay (E.C.) (2008), 250 B.C.A.C. 211; 416 W.A.C. 211; 228 C.C.C.(3d) 129; 2008 BCCA 20, refd to. [para. 8].

Versluce Estate v. Knol (2008), 251 B.C.A.C. 231; 420 W.A.C. 231; 2008 YKCA 3, refd to. [para. 8].

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 9].

Ford v. Quebec (Attorney General) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).

Gosselin v. Québec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 9].

Whitbread v. Walley (1988), 51 D.L.R.(4th) 509; 26 B.C.L.R.(2d) 203 (C.A.), affd. [1990] 3 S.C.R. 1273; 120 N.R. 109, consd. [para. 10].

Canada (Attorney General) v. Stuart, J., and Savard (1996), 74 B.C.A.C. 81; 121 W.A.C. 81; 106 C.C.C.(3d) 130 (Yuk. C.A.), refd to. [para. 11].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 11].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 12].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 15(1) [para. 4].

Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 30 [para. 5].

Rules of Court (B.C.), Court of Appeal Rules, rule 20(1) [para. 1].

Rules of Court (B.C.), Supreme Court Rules, rule 40(5) [para. 5].

Counsel:

M. Pavlis, acted on her own behalf;

G. Johnson, for the respondents, HSBC Bank Canada and HSBC Securities (Canada) Inc.;

B. Mackey, for the respondent, Attorney General of British Columbia.

This application was heard on September 25, 2009, at Victoria, B.C., before Newbury, D. Smith and Bennett, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered at Vancouver, B.C., by Newbury, J.A., on October 21, 2009.