Richard v. British Columbia, (2004) 201 B.C.A.C. 147 (CA)

• Judge: Prowse, Oppal and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 14, 2004
• Jurisdiction: British Columbia
• Citations: (2004), 201 B.C.A.C. 147 (CA);2004 BCCA 337

Richard v. B.C. (2004), 201 B.C.A.C. 147 (CA);

    328 W.A.C. 147

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. JN.057

William Joseph Richard (respondent/plaintiff) v. Her Majesty the Queen in Right of the Province of British Columbia (respondent/defendant)

(CA031040)

A.W. by her Litigation Guardian, The Public Guardian and Trustee of British Columbia and D.W. by his Litigation Guardian, The Public Guardian and Trustee of British Columbia (appellants/plaintiffs) v. Her Majesty the Queen in Right of the Province of British Columbia (respondent/defendant)

(CA031038)

(2004 BCCA 337)

Indexed As: Richard v. British Columbia

British Columbia Court of Appeal

Prowse, Oppal and Lowry, JJ.A.

June 15, 2004.

Summary:

In August 2002, an action was commenced on behalf of the victims of sexual abuse at the Woodlands School, an institution for the mentally challenged, operated by the Prov­ince of British Columbia. Richard was named as the representative plaintiff. In December 2002, a second action was com­menced which named two representative plaintiffs, by their litigation guardian, the public guardian and trustee. The plaintiffs in each action intended to have their action certified as a class action. The plaintiffs in each action applied for an order that their solicitors be granted carriage of the proposed class proceedings and action.

The British Columbia Supreme Court, in a decision reported at [2003] B.C.T.C. 976, stayed the public guardian's action and granted the lawyers in the Richard action carriage of the proceedings. The public guardian appealed.

The British Columbia Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 801

Duty to court - Counsel at witness - Gen­eral - Competing class actions were com­menced - A Chambers judge granted car­riage of the proceedings to the law firm acting for the plaintiff in the first action and stayed the second action - In reaching that conclusion, the Chambers judge con­sidered, inter alia, the comparative experi­ence and the resources of the respective solicitors - The plaintiffs in the second action appealed - The British Columbia Court of Appeal stated that it was unfortu­nate that the solicitors in the first action appeared as counsel before the Chambers judge and on appeal where they had to adduce evidence to defend their personal experience and abilities - They relied on affidavit evidence where one had informed the other to avoid, at least technically, having to speak to what they had sworn - That in itself was generally to be discour­aged - Because the solicitors were engaged at a personal level, it would have been better if other counsel had been retained - See paragraph 6.

Practice - Topic 210.2

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Class actions - Procedure - Multiple or competing actions (incl. appointment of lead counsel) - Competing proposed class actions were commenced - The plaintiffs in each action applied for an order that their solicitors be granted carriage of the pro­posed class proceedings and action - The British Columbia Court of Appeal stated that the following factors set out in Vita­pharm Canada Ltd. et al. v. Hoffmann-La Roche (F.) Ltd. et al. (Ont. S.C.), were useful considerations in determining which counsel should be given carriage: "1) the nature and scope of the causes of action advanced; 2) the theories advanced by counsel as being supportive of the claims advanced; 3) the state of each class action, including preparation; 4) the number, size and extent of involvement of the proposed representative plaintiffs; 5) the relative priority of commencing the class actions; 6) and the resources and experience of counsel." - See paragraphs 14 and 21.

Practice - Topic 210.2

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Class actions - Procedure - Multiple or competing actions (incl. appointment of lead counsel) - A proposed class action was commenced on behalf of abuse victims at an institution for mentally challenged persons, operated by British Columbia - Richard was the representative plaintiff - A second proposed class action was com­menced naming two representative plain­tiffs, by their litigation guardian, the public guardian - The public guardian challenged Richard's ability to represent the class - The Richard plaintiffs asserted that there were actual or potential conflicts of interest in the public guardian acting as litigation guardian - A Chambers judge accepted the latter assertion, stayed the second action and granted carriage to the solicitors in the Richard proceedings - The British Colum­bia Court of Appeal, although questioning the existence of any actual or potential conflicts, dismissed an appeal - The public guardian could have addressed his concerns by applying under s. 15 of the Class Pro­ceedings Act to participate in the Richard action - The only factor that favoured continuing the second action was the ad­vantage gained by the plaintiffs through the public guardian's participation - Hav­ing regard to s. 15, that factor did not justify continuing the second action.

Cases Noticed:

Vitapharm Canada Ltd. et al. v. Hoffmann-La Roche Ltd., [2000] O.T.C. 877; 4 C.P.C.(5th) 169 (Sup. Ct.), appld. [para. 12].

Private Securities Litigation Reform Act of 1995, Re (1995), Pub. L. No. 104B67; 109 Stat. 737, refd to. [para. 16].

Armour v. Network Associates Inc. (2001), 171 F. Supp.(2d) 1044, refd to. [para. 16].

Kamerman v. Steinberg (1986), 113 F.R.D. 511 (S.D.N.Y.), refd to. [para. 16].

Counsel:

J.J. Arvay, Q.C., and C.H. Jones, for the appellants, A.W. and D.W. by their litigation guardian, Public Guardian and Trustee of B.C.;

J.M. Poyner and K.J. Baxter, for the re­spondent, William Joseph Richard;

W.K. Branch and D. Baumgard, for the respondent, British Columbia.

This appeal was heard at Vancouver, British Columbia, on May 14, 2004 by Prowse, Oppal and Lowry, JJ.A., of the British Columbia Court of Appeal. Lowry, J.A., delivered the following reasons for judgment of the court on June 15, 2004.