Non parties may have standing to bring applications to strike and to have a party declared a vexatious litigant

The Court of Appeal struck an award for special costs since the appellant was not provided the opportunity to make submissions in chambers; Non parties may have standing to bring applications to strike and to have a party declared a vexatious litigant.

Administrative law – Decisions reviewed – Human Rights Commission – Judicial review – Bias – Procedural requirements and fairness – Costs – Appeals

Harun-ar-Rashid v. British Columbia (Teacher Regulation Commissioner), [2024] B.C.J. No. 2271, British Columbia Court of Appeal, December 9, 2024, L.A. Fenlon, J. DeWitt-Van Oosten and N. Iyer JJ.A.

Facts

The appellant sought judicial review of a decision denying him a teaching certificate. The appellant was a teacher who had applied for a teaching certificate from the respondent. The Teacher Regulation Branch (the “TRB”) had required him to provide proof of English proficiency and ultimately denied him a teaching certificate in 2021. The appellant filed a complaint to the BC Human Rights Tribunal, which was dismissed.  The appellant also initiated an internal review of the proficiency requirement with the TRB. The appellant’s appeal of that decision to the commissioner was unsuccessful. The appellant then appealed to the BC Supreme Court (the “underlying decision”).

In the underlying decision, the appellant served two of the respondents, Langley and Ms. Kolotyluk, with his petition as persons whose interests may be affected by the orders he was seeking. Ms. Kolotyluk was the Managing Director Human Resources at the Edmonton School Board. She had been contacted by the TRB at some point as the appellant had previously worked there. The appellant had briefly worked in Langley as a teacher on call conditional upon him receiving a teaching certificate.

The respondents then filed petition responses and applied to strike portions of the appellant’s petition, declare the appellant a vexatious litigant, and clarify they had no role in the proceedings. The Commissioner did not participate in the proceedings. The chambers judge had granted these orders and had ordered special costs against the appellant. The appellant argued on appeal that the respondents had no standing to bring the application and challenged the orders made. No one appeared for the respondents on appeal.

Issues

1. Should special costs be ordered against the appellant?

2. Do Langley and Ms. Kolotyluk have standing to bring the applications?

3. Was there a reasonable apprehension of bias or procedural unfairness, particularly with respect to the vexatious litigant order and the special costs award; and

4. Should the applications to strike have been granted?

Analysis

Even though Langley and Ms. Kolotyluk were not parties it was found that they did not need to be pursuant to the Supreme Court Civil Rules to bring an application to strike under section 9-5(1) or an application under section 18 of the Supreme Court Act, to have the appellant declared a vexatious litigant. The language of these sections does not require them to be parties to bring the applications.

The appellant asserted that the chambers judge displayed bias based on race without further explanation. He also made many assertions of procedural fairness; however, did not provide the Court with a transcript of the proceedings, depriving the Court of the best evidence of the conduct of the hearing. It was found that the appellant was provided the opportunity to make submissions with respect to the vexatious litigant application. The Court was not prepared to make the finding based on the appellant’s subjective evidence that he was not provided with the opportunity to make submissions. The vexatious litigant order was upheld.

With respect to special costs, neither Langley nor Ms. Kolotyluk sought special costs. The appellant was not provided with notice that a special costs award might have been made against him. As such, it was found that the chambers judge breached procedural fairness in awarding special costs. This order was set aside.

Regarding whether the applications ought to be granted, the Court modified the order. The chambers judge had struck all references to Langley and Ms. Kolotyluk in the proceedings. It was found that doing this would delete unobjectionable factual references. An order that all legal claims against them were dropped was substituted and several paragraphs were struck from the petition.

This case was digested by Deanna C. Froese of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact her directly at [email protected].