IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140619

Docket: S140781

Registry:
Vancouver

Between:

Roberto Orellano
Gonzalez

Plaintiff

And:

Workers’
Compensation Board (New Work Safe) of British Columbia and Her Majesty the
Queen in Right of the Province of British Columbia

Defendants

Before: The Honourable Mr. Justice
Grauer

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: In this application, the defendants, Workers’
Compensation Board of British Columbia and Her Majesty the Queen in Right of
the Province of British Columbia, seek orders that the notice of civil claim be
struck out and the claim dismissed; a declaration that the plaintiff has
habitually, persistently, and without reasonable grounds instituted vexatious
legal proceedings in the Supreme Court against the Workers’ Compensation Board
of British Columbia and must not bring a legal proceeding in the Supreme Court
of British Columbia or the Provincial Court of British Columbia without leave
of the court pursuant to s. 18 of the Supreme Court Act, RSBC 1996,
c 443; an order that the staff of the registries of the Supreme and
Provincial Courts are authorized to discard any documents that the plaintiff
attempts to file in contravention of this order; an order dispensing with
approval of the plaintiff to the form of this order; and costs.

[2]            
Turning to the first issue, whether the notice of civil claim should be
struck, the defendants submit that it covers the same ground and seeks the same
relief as sought in previous proceedings which have been dismissed in this
court and in the Court of Appeal.

[3]            
The entire matter arises out of a work injury suffered by Mr. Gonzalez
on September 18, 1995.  Employed as a roofer, he was seriously injured
after falling off a ladder.  Mr. Gonzalez had worked as a roofer on and
off after emigrating to Canada from El Salvador in 1988.  In El Salvador he had
been employed as a high school teacher, but his credentials were not recognized
in Canada and he was unable to find employment here in that field.

[4]            
After Mr. Gonzales was injured, there followed a long history of
dealings with the Workers’ Compensation Board comprising 24 hearings over 14
years.  These culminated, not without struggle on Mr. Gonzalez’s part, in
an award of a 100% loss of earnings pension payable for life, retroactive to
the date of the accident and adjusted annually for inflation.

[5]            
Mr. Gonzalez was not satisfied with this award.  He believed then
and believes now that he has been denied what he is entitled to in law.  In his
notice of civil claim, he invokes the maxim restitutio in integrum and
seeks to be put in the position he would have been had the injury not
occurred.  To this end, he seeks in his claim against the Workers’ Compensation
Board and Her Majesty the Queen non-pecuniary damages; damages for past and
future loss of income-earning capacity taking into account, among other things,
his teaching experience; past and future care costs; special damages; legal
fees; aggravated and punitive damages; damages for breach of Charter
rights and injury to his dignity, his feelings, and his self-esteem.  I point
out that the merit of any of Mr. Gonzalez’s issues with how the Workers’
Compensation Board assessed his pension and his earnings is not something that
is before me on this application.

[6]            
Mr. Gonzalez’s first attempt to obtain relief in this court was by
way of a petition for judicial review of the decisions of the Workers’
Compensation Board and the Workers’ Compensation Appeal Tribunal.  This
petition was heard by Madam Justice Kloegman in March 2010.  The
respondents were the Workers’ Compensation Board and the Workers’ Compensation
Appeal Tribunal.  In Reasons for Judgment indexed at 2010 BCSC 476,
Kloegman J. noted as follows:

[5]        The petitioner has pursued avenues of appeal
within the Board hierarchy 24 times in 14 years.  In April 2009, he
brought this Petition for judicial review seeking, among other things, to set
aside Workers’ Compensation Appeal Division (the “Appeal Division”) decision
number 99-0294 dated February 17, 1999, and the Appeal Division decision
number 2003-0521 dated April 8, 2003.

[6]        The Petition also
seeks orders for compensation for non-pecuniary damages, past and future income
loss, future care costs, legal fees and costs, aggravated damages, compensation
for injured dignity, punitive damages and special costs.  I explained to Mr. Gonzalez,
who was representing himself, that these latter claims for relief involved
remedies not available to him under the Judicial Review Procedures Act,
R.S.B.C.1996, c. 241, and that I would only consider his Petition to set
aside the February 1999 and April 2003 decisions of the Appeal Division.  If
his arguments were successful with respect to setting aside those two
decisions, they could be remitted by me back to the Board or the Workers’
Compensation Appeal Tribunal (“WCAT”) with directions that might assist in the
manner in which the matter is reviewed

[7]            
Regrettably, Mr. Gonzalez seemed to interpret that last paragraph
as an invitation to commence other proceedings rather than as a description of
the limitation on the sort of proceedings that were open to him.  In any event,
Kloegman J. dismissed the petition, stating at paragraph 31:

[31]      Both the subject decisions of the Appeal Division
appear to have been the product of due consideration and the logic of their
reasoning appears justifiable, transparent and intelligible.  It was open to
these Appeal Division panels to reach the conclusions that they did, and I
cannot find grounds to interfere with their decision making process.

[32]      Thus Mr. Gonzalez’s
Petition is dismissed in its entirety for the reasons set out above.

[8]            
Thereafter, Mr. Gonzalez commenced an action against the Workers’
Compensation Board of British Columbia and the Workers’ Compensation Appeal
Tribunal.  In Reasons for Judgment indexed at 2011 BCSC 977, Mr. Justice
Myers dismissed the action.  He noted in paragraph 5:

[5]        This lawsuit was
commenced on May 28, 2010.  It is difficult to construe precisely what
causes of action are alleged, but it claims damages as a result of the various
determinations of the WCB and WCAT.  It also claims damages resulting from
discrimination and Charter breaches.  It is apparent from the [statement]
of claim and Mr. [Gonzalez’s] lengthy written and oral submissions that
his main complaint is that his disability pension should have been based on a
teacher’s salary rather than his earnings as a roofer.  He is also generally
dissatisfied with and disaffected by the workers’ compensation system as a
whole.

[9]            
Mr. Justice Myers noted that the law prohibited any claims for
damages against the Workers’ Compensation Board and the Workers’ Compensation
Appeal Tribunal.  Noting in this regard s. 96 of the Workers’
Compensation Act, RSBC 1996, c 492, and s. 56 of the Administrative
Tribunals Act, SBC 2004, c 45, Myers J. concluded as follows:

[9]        Insofar as any allegations of bad faith,
discrimination and Charter breaches are concerned, whether against the WCAT or
the WCB, these are bald assertions without any factual basis being plead.

[10]      Any issues of lack of jurisdiction were the subject
of the judicial review application dismissed by Kloegman J.

[11]      I therefore conclude that it is plain and obvious
that the statement of claim does not disclose a cause of action.  Further, any
issues that were or could have been dealt with in the judicial review
application are res judicata.  The duplication of them in the current
action is an abuse of process.

[12]      It follows that the
action is dismissed with costs to the defendants.

[10]        
This judgment was appealed.  Mr. Gonzalez applied for indigent
status.  Mr. Justice Low dismissed that application on the ground that
there was no merit to the appeal.

[11]        
Mr. Gonzalez later sought an extension of time for the filing and
serving of his factum and appeal book.  That application was dismissed by Madam
Justice Huddart on the same ground.

[12]        
Mr. Gonzalez sought review of that decision by a full division of
the court whose Reasons upholding Madam Justice Huddart are indexed at 2012
BCCA 97.  In that decision, Madam Justice Neilson for the court said this:

[13]      … My review of the merits of his claim leads
inevitably to the same conclusion as that reached by Huddart J.A., Low J.A.,
and Myers J.  Mr. Gonzalez has no possibility of succeeding in a claim to
recover common law damages for injuries suffered in the course of employment
that clearly fall within the scope of the Workers Compensation Act.

[14]      Mr. Gonzalez’s
present litigation appears to stem from a fundamental misunderstanding of the
history, role, and purpose of the benefits available under the Workers Compensation
Act.

[13]        
Her Ladyship then proceeded to set out that history, role, and purpose. 
She went on to say this, after reviewing s. 96 of the Workers’
Compensation Act.

[16]      That provision, or one similar to it, has been in
place throughout Mr. Gonzalez’s dealings with the respondents.  Thus, Mr. Gonzalez
cannot bring an action against the respondents.

[17]      As Mr. Justice Myers stated, judicial review
was the only recourse open to Mr. Gonzalez if he wished to review
decisions made by the respondents and their predecessors.  Mr. Gonzalez
did petition for judicial review, his petition was dismissed, and he did not
pursue his appeal of that decision.

[18]      Mr. Justice Myers
properly found that an action against the respondents cannot succeed.  There is
no basis in law or fact on which this Court would be justified in overturning
that decision.  Thus, there is no point in permitting Mr. Gonzalez to
pursue his appeal.

[14]        
Thereafter, Mr. Gonzalez applied to the Supreme Court of Canada for
leave to appeal from that decision and his application was dismissed.

[15]        
The question I have to consider now is whether Mr. Gonzalez’s
latest notice of civil claim brings anything new to this table.  In argument
before me, Mr. Gonzalez submitted that this claim is different because he
has added Her Majesty the Queen in Right of British Columbia as a defendant
representing the Government of British Columbia and claims against the Government
under the Crown Proceeding Act, RSBC 1996, c 89.

[16]        
Mr. Gonzalez acknowledged that his claims against the Workers’
Compensation Board and Workers’ Compensation Appeal Tribunal have been dealt
with, maintaining that he named the Workers’ Compensation Board as a defendant
in this action only to identify those employees of the government whose
wrongful conduct underpins his claim against the Crown.  Thus, it is the same
allegedly wrongful conduct by the Workers’ Compensation Board that is at issue
here as was the focus of the earlier proceedings, in relation to the same alleged
losses from the same injury.  All that has changed is the defendant alleged to
be responsible.  With due respect to Mr. Gonzalez, that does not help him.

[17]        
The Crown Proceedings Act is specifically stated to be subject to
the Workers’ Compensation Act so that an action remains prohibited
against the Crown as employer, and nothing in the Crown Proceedings Act
allows Mr. Gonzalez to circumvent the prohibitive clause set out in
s. 96 of the Workers’ Compensation Act which both Myers J. and
Neilson J.A. indicated was dispositive.  The courts have already made it clear
to Mr. Gonzalez that he is not entitled in law to the remedies he seeks.

[18]        
Cases Mr. Gonzalez relied on such as Pasiechnky v Saskatchewan,
[1997] 2 SCR 890, do not, in fact, support his position, but rather
support the position of the defendants.  What Mr. Gonzalez achieved, for
better or for worse, is the best he can do under the system of workers’
compensation that has long the law of this country.

[19]        
It follows that the action constitutes an abuse of process and is
accordingly dismissed.

[20]        
Turning to the question of whether I should declare Mr. Gonzalez a
vexatious litigant under s. 18 of the Supreme Court Act, I have
considered the factors set out in the Law Society of British Columbia v.
Robbins, 2014 BCSC 619.  In my view, such a declaration is warranted. 
Not only has Mr. Gonzalez brought repeated actions seeking the same
relief, but he has descended to making allegations that go far beyond the issue
of whether the Workers’ Compensation Board properly dealt with and assessed his
claim.  These include unsupported allegations — when I say that, I mean
unsupported by any evidence — of blatant racial discrimination, bribery, and
judicial corruption.

[21]        
In these circumstances, I order pursuant to s. 18 of the Supreme
Court Act that Mr. Gonzalez is enjoined from instituting any legal
proceeding on his own behalf or on behalf of others in the Provincial Court of
British Columbia or the Supreme Court of British Columbia in any way relating
to his claim under the Workers’ Compensation Act or otherwise arising
from the injuries he suffered in September of 1995 without obtaining leave of
the relevant court.

[22]        
I also order that the staff of the registries of the Supreme Court and
Provincial Courts are authorized to discard any document that is attempted to
be filed in contravention of this order.

[23]        
Finally, I order that Mr. Gonzalez’s approval of the form of the
order resulting from these Reasons for Judgment is not required.  The
defendants may have their costs, although I understand that they do not propose
to pursue them.

“GRAUER, J.”