Date: 20110502

Docket: S080713

Registry: Vancouver

Between:

Antonios Nabil Riad Sahyoun, by his committee and father, Dr. Nabil Riad Sahyoun, and Mariam Nabil Riad Sahyoun, and Bishoy Nabil Riad Sahyoun, an infant, by his guardian ad litem and father, Dr. Nabil Riad Sahyoun, and Mrs. Sanaa Riad Sahyoun, and Dr. Nabil Riad Sahyoun

Plaintiffs

And

Dr. Helena Ho, and Dr. Anton Miller, and Speech and Language Pathologist Elizabeth Payne, and Provincial Health Care Services Authority (doing business as Sunny Hill Health Centre for Children, formerly Sunny Hill Hospital for Children, and doing business as BC Children’s Hospital) and The University of British Columbia, and Speech and Language Pathologist, Martha Hilliard, and Vancouver Coastal Health Authority, formerly Vancouver Health Department, and Her Majesty the Queen in Right of the Province of British Columbia, as represented by the BC Ministry of Health, and Audiologist Margaret Hardwick, and Dr. Kevin Farrell, and Dr. Jean Hlady, and Dr. Fred Kozak, and Dr. Keith Riding, and Dr. Neil Longridge, and Vancouver Coastal Health Authority (doing business as Vancouver General Hospital), and Laura Wang, and Dr. Brian Westerberg, and Providence Health Care (doing business as St. Paul’s Hospital), and Dr. Jason Chew, and Dr. Douglas Graeb, and Beverley Underhill, and Dr. Jean Moore, and Karen Till, and Robert Pearmain, and Allan McLeod, and Donald Goodridge, and Carol McRae, deceased, and Kenneth Ronald Bradley McRae, as Representative and Administrator of the Estate of the Deceased Carol McRae, and Vancouver Board of Education, formally Vancouver School Board, and Her Majesty the Queen in Right of the Province of British Columbia, as represented by the BC Ministry of Education, and David Duncan, and BC Legal Services Society, and Harinder Mahil, and Judith Williamson, and Her Majesty the Queen in Right of the Province of British Columbia, as represented by the Attorney General of BC for the former BC Council of Human Rights, and Ross Dawson, and Cheryl Carteri, and Haris Zakouras, and Her Majesty the Queen in Right of the Province of British Columbia, as represented by the BC Ministry of Children and Family Development, formerly BC Ministry for Children and Families, and Lorill Johl, and Gateway Society: Services For Persons With Autism, and Detective Constable Ennis, and Constable Schaaf, and Acting Sergeant Schilling, and Constable Lemcke, and Sergeant Pike, and Constable Green, and Vancouver Police Department, City Of Vancouver, and Her Majesty the Queen in Right of the Province of British Columbia

Defendants

Before: The Honourable Mr. Justice Voith

Reasons for Judgment

[1] These reasons address a series of cross-applications brought by certain defendants and the plaintiffs respectively. Specifically, the defendants, Dr. Douglas Graeb, Dr. Brian Westerberg, Dr. Jason Chew, Dr. Fred Kozak and Dr. Keith Riding (the “Defendant Physicians”), seek the following relief:

1.      The applicants seek the court’s direction with respect to whether Dr. Nabil Riad Sahyoun (“Dr. Sahyoun”) may continue to represent the plaintiff, Antonios Nabil Riad Sahyoun, in the absence of a lawyer or the Public Guardian and Trustee contrary to Rule 20-2(4) of the Supreme Court Civil Rules.

2.      In the event that Dr. Sahyoun is unable to continue to act for Antonios Sahyoun, the applicants seek an order with respect to the status of Antonios Sahyoun’s claim if Dr. Sahvoun does not retain counsel or the Public Guardian and Trustee does not become involved.

[2] Several of the remaining defendants support the application of the Defendant Physicians. Others take no position with respect to that application.

[3] The plaintiffs, in turn, seek the following specific relief:

1.      That Her Majesty the Queen in Right of the Province of British Columbia provide state-funded counsel in this action to enable Dr. Nabil Riad Sahyoun, who is the litigation guardian for his two children Antonios and Bishoy, to abide with the requirements of Rule 20-2(4) of the British Columbia Supreme Court Rules; or

2.      That the physician defendants provide funding for Dr. Nabil Riad Sahyoun, who is the litigation guardian for his two children Antonios and Bishoy, to enable Dr. Sahyoun to abide with the requirements of Rule 20-2(4) of the British Columbia Supreme Court Rules; or

3.      That Dr. Nabil Riad Sahyoun continue to proceed with this action as the litigation guardian for his two children Antonios and Bishoy, regardless of the non-compliance of Dr. Sahyour to the requirements of Rule 20-2(4) of the British Columbia Supreme Court Rules for the best interests of Antonios and Bishoy; and that the Public Guardian and Trustee of British Columbia do not substitute Dr. Sahyoun in this action.

[4] Though it is not quite clear from the plaintiffs’ Notice of Application, it appears that they are also challenging the constitutional validity of Rule 20-2(4). On January 28, 2010, they filed a notice under the Constitutional Question Act, R.S.B.C. 1996, 68. The structure and content of that notice largely mirrors their Notice of Application.

Background

[5] Dr. Sahyoun and Mrs. Sahyoun are the parents of Antonios, Miriam and Bishoy Sahyoun.

[6] On December 18, 2007, Mr. Justice Bracken declared that Antonios was, by virtue of various impairments, incapable of managing himself or his affairs. In that same Order, Dr. Sahyoun was appointed committee of the person and the estate of Antonios. Antonios was born on February 9, 1987.

[7] Bishoy is presently an infant.

[8] On January 31, 2008, this action was brought in the name of Antonios by his committee, Dr. Sahyoun, and in the name of Bishoy by his guardian ad litem Dr. Sahyoun, and others.

[9] On January 31, 2008, Master Tokarek declared that the plaintiffs in this action were indigent. Earlier this year, Dr. Sahyoun was again declared indigent by Master Scarth in Sahyoun v. Employment and Assistance Appeal Tribunal of B.C. (25 January 2011), Vancouver S-110472 (S.C.).

[10] The plaintiffs filed an amended Statement of Claim in this action on April 14, 2009. The style of cause in this matter provides some sense of the breadth and number of issues that are raised in the claim. Portions of the claim are rooted in events that occurred more than two decades ago. The claim advances, inter alia, the following notional causes of action against the various defendants:

a.      “Professional malpractice” against audiologists and speech and language pathologists;

b.      “Medical malpractice” against physicians;

c.      Perjury against one physician;

d.      “Professional malpractice” against various former employees and trustees of the Vancouver Board of Education, formerly known as the Vancouver School Board;

e.      Failure to provide the plaintiffs with legal assistance against the BC Legal Services Society;

f.       “Miscarriage of justice” against the BC Council of Human Rights and some of its employees;

g.      “Exercise of undue and unreasonable force” by the Vancouver Police Department and several of its officers;

h.      Wrongfully placing Antonios into a life skills program at Gateway Society Services for Persons with Autism against the Ministry for Children and Families and several of its employees; and

i.       Wrongfully accepting Antonios into a life skills program against Gateway Society Services for Persons with Autism and a former employee.

[11] Apart from interest and costs, the plaintiffs seek general, special and punitive or aggravated damages. No issue was raised before me and I make no comment on the causes of action raised in this action.

[12] To date, Dr. Sahyoun has been representing Antonios in the absence of a lawyer or the Public Guardian and Trustee. The trial of this matter is currently set to proceed on November 14, 2012 for 30 days. I am the case management judge for the matter.

The Rule 20-2 Issue

[13] Rule 20-2 of the Rules of Court deals with persons who labour under a legal disability. The relevant portions of the Rule provide:

Start of proceedings by person under disability

(2) A proceeding brought by or against a person under legal disability must be started or defended by his or her litigation guardian.

...

Lawyer must be involved

(4) A litigation guardian must act by a lawyer unless the litigation guardian is the Public Guardian and Trustee.

...

Committee as litigation guardian

(6) If a person is appointed committee, that person must be the litigation guardian of the patient in any proceeding unless the court otherwise orders.

[14] Rule 20-2(4) is very similar to R. 6(4) of the former Rules of Court. Arguably, the wording is now stronger. Formerly, R. 6(4) stated that the litigation guardian “shall act by a solicitor...” R. 20-2(4) now states that the litigation guardian “must act by a lawyer...”. Both “shall” and “must” are, however, defined in s. 29 of the Interpretation Act, R.S.B.C. 1996, c. 238 as “imperative”.

[15] Rule 22-7(2) sets out the powers of this court when there has been non-compliance with the Rules:

Powers of court

(2) Subject to subrules (3) and (4), if there has been a failure to comply with these Supreme Court Civil Rules, the court may

(a) set aside a proceeding, either wholly or in part,

(b) set aside any step taken in the proceeding, or a document or order made in the proceeding,

(c) allow an amendment to be made under Rule 6-1,

(d) dismiss the proceeding or strike out the response to civil claim and pronounce judgment, or

(e) make any other order it considers will further the object of these Supreme Court Civil Rules.

[16] This court has interpreted the requirement that a litigation guardian “act by a lawyer” as set out in R. 20-2(4), and formerly under R. 6(4), very strictly. In Daniel v. ICBC, 2002 BCCA 715,  the plaintiff had sustained a brain injury in a car accident as child. When he was 23 years of age his mother sought to act on his behalf as his committee under the Patients Property Act, R.S.B.C. 1996, c. 349.

[17] She was not able to afford to retain a lawyer. Southin J.A. (in Chambers) did not permit her to proceed and stated:

[3] As I see the present situation, Mrs. Daniel has no status whatever in this Court on her own to sue on behalf of her son even if the Style of Cause here were to be amended accordingly.

[4] Since, obviously, the Daniels are not able to afford solicitors to act for them, this action cannot be brought in Mrs. Daniel’s name. To put it another way, as this action was intended to be on behalf of Attila, either he must bring the action or his guardian ad litem must bring the action, but a guardian ad litem must act through a solicitor and not in person. Those are the rules. The only other suggestion I can give is that Mrs. Daniel see the Public Trustees Office and see whether anything can be done....

[18] A similar issue also arose before the Federal Court, in Moffat v. Canada (1988), 23 F.T.R. 83. The rules of that court required, because the action was brought by an infant, that the action be conducted in accordance with the Rules of Court of the Supreme Court of British Columbia. The 17 year old plaintiff and his mother, as guardian ad litem, brought an action for damages for unlawful arrest and detention and assault. They were represented by a person who was not a solicitor. The defendant sought to strike the claim arguing that an action by an infant plaintiff had to be conducted by a solicitor. Collier J. allowed the application, in part, and stayed the action until the plaintiffs could hire a lawyer.

[19] Specifically, Collier J. said:

[12] ... But subrule 4 is very explicit: a guardian ad litem shall act by a solicitor.

[13] In this case, Mr. Wren filed a certificate of fitness (see subrule 8). He could not and cannot do so. That subrule requires the certificate be filed by “the solicitor for a person under disability.” Mr. Wren concedes he is not a solicitor. The present certificate is, in my view, a nullity.

[14] I have sympathy for the plaintiffs. But I cannot get around the Rules of this court and their inclusion of the Rules of the Supreme Court of British Columbia.

[15] This particular action must be brought and conducted by a solicitor.

[16] I shall not strike out the statement of claim. I shall stay the action until the plaintiffs engage or obtain a solicitor. When that is done, an application can be made pursuant to rule 1700(2).

[20] Dr. Sahyoun and his wife are adamant that they are not willing to have the Public Guardian and Trustee act as litigation guardian. They say that it is only they, or more specifically, Dr. Sahyoun, who properly understands the history of this matter and who can properly advance the interests of Antonios. Counsel for the Public Guardian and Trustee appeared at the hearing before me and confirmed that in the present circumstances the Public Guardian was unable to act.

[21] Dr. Sahyoun made various submissions in response to the application of the Defendant Physicians, none of which properly address Rule 20-2(4).

[22] Dr. Sahyoun urged that I allow the action to proceed notwithstanding Rule 20-2(4) and that the Rules acted as the servant, rather than the master, of this court. This submission is often made by parties who entreat the court to exercise its inherent jurisdiction. The inherent jurisdiction of the court has been expressed as the jurisdiction to do all that is “necessary to do justice between the parties”: Glover v. Glover (No. 1) (1980), 113 D.L.R. (3d) 161, 29 O.R. (2d) 392 (C.A.). That jurisdiction does not, however, extend to ignoring the express and mandatory language of a statutory provision or of the Rules.

[23] In Borkovic v. Laurentian Bank of Canada, 2001 BCSC 337 at para. 9, Smith J., as he then was, quoted and applied the following extract from Halsbury’s Laws of England, 3rd ed., vol. 9 at 344:

[The court] has an inherent power to regulate its own procedure, save in so far as its procedure has been laid down by the enacted law and it cannot adopt a practice or procedure inconsistent with rules laid down by statute or adopted by ancient usage.

[24] Each of Daniel and Moffat establish that R. 20-2(4) is mandatory in nature. There is simply no basis for me to ignore its terms or to circumvent its application.

[25] Dr. Sahyoun further urged that I allow one component of the present action, for example the perjury claim that is advanced, to proceed. If the plaintiffs were successful on that claim, they would then have the funds necessary to retain counsel. Rule 20-2(4) pertains to the whole of the claim being advanced by Dr. Sahyoun in his capacity as litigation guardian for Antonios. There is no principled basis to exempt a portion of the claim from the ambit of the Rule.

[26] Dr. Sahyoun also advised me that there was an American lawyer who was prepared to act for the plaintiffs. The word “lawyer” is defined in s. 29 of the Interpretation Act, R.S.B.C. 1996, c. 238 as “a practicing lawyer as defined in section 1(1) of the Legal Profession Act”. Section 1(1) of the Legal Profession Act, S.B.C. 1998, c. 9, in turn, confirms that a “practicing lawyer” is “a member [of the Law Society of British Columbia] in good standing who holds or is entitled to hold a practicing certificate”. The American lawyer Dr. Sahyoun referred to would not satisfy these criteria.

[27] Finally, the plaintiff’s Notice of Application asserts that the plaintiffs have a “vested right” in having Dr. Sahyoun represent them. This assertion or submission was not developed before me. It is, however, inconsistent with the relevant authorities: R. v. Dick, 2002 BCCA 27.

[28] I have decided to stay the action. I do not believe it would be appropriate, at this stage, to strike the plaintiffs’ claim. It may be that the plaintiffs will be able to find a lawyer to assist them. In saying this, I am mindful that the continued existence of the action, notwithstanding the fact that it has been stayed, is a source of some difficulty for the Defendant Physicians.

The Application for Advance Costs

[29] Dr. Sahyoun has argued that if R. 20-2(4) does limit his ongoing ability to represent Antonios then the plaintiffs ought to be granted an order for interim or advance costs. He relies on British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 in support of his application.

[30] In Okanagan, LeBel J., writing for the majority, said:

[32] The discretionary power to award interim costs in appropriate cases has also been recognized in Canada. An extensive discussion of this power is found in Organ v. Barnett (1992), 11 O.R. (3d) 210 (Gen. Div.). Macdonald J. reviewed the authorities, including Jones, supra, and concluded that “the court does have a general jurisdiction to award interim costs in a proceeding” (p. 215 (emphasis in original)). She also found that that jurisdiction was “limited to very exceptional cases and ought to be narrowly applied, especially when the court is being asked to essentially pre-determine an issue” (p. 215).

[31] LeBel J. continued and described the necessary pre-requisites for an order for interim costs:

[36] There are several conditions that the case law identifies as relevant to the exercise of this power, all of which must be present for an interim costs order to be granted. The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case. The claimant must establish a prima facie case of sufficient merit to warrant pursuit. And there must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate. ...

[32] It is important to recognize that each of the foregoing conditions must be satisfied by an applicant. If all three conditions are satisfied, then “courts have a narrow jurisdiction to order that the impecunious party’s costs be paid prospectively”: Okanagan at para. 41. Here Dr. Sahyoun has been declared indigent. He spent most of his time before me seeking to establish that the plaintiffs’ case had merit. By virtue of the fact that I do not believe the plaintiffs have satisfied the third requirement, that of special circumstances, I do not have to deal further with the merits of the action.

[33] In Okanagan, the majority of the court was satisfied that “special circumstances” were present. LeBel J., at para. 46, said:

... The issues sought to be raised at trial are of profound importance to the people of British Columbia, both aboriginal and non-aboriginal, and their determination would be a major step towards settling the many unresolved problems in the Crown-aboriginal relationship in that province. In short, the circumstances of this case are indeed special, even extreme.

[34] In Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38, Bastarache and LeBel J.J., for the majority, further developed the content of the “special circumstances” requirement. Absent certain finite exceptions, to which I will return, the court confirmed that:

i)       Okanagan did not establish the “access to justice” rationale as the paramount consideration in awarding costs (para. 35);

ii)      “public interest” advance cost orders are to “remain special and, as a result, exceptional” (para. 36);

iii)      the litigant must persuade the court that “the issues raised transcend the individual interests of the particular litigant, are of public importance and have not been resolved in previous cases” (para. 37);

iv)     “the injustice that would arise if the application is not granted must relate both to the individual applicant and to the public at large” (para. 39); and

v)      “[w]here only one of the possible results on the merits could render the case publicly important, the court should not conclude that the public importance requirement is met” (para. 66).

[35] The foregoing description of the categories of legal issue which might support an order of advance costs do not support the relief which the plaintiffs seek. The present action advances various causes of action against the defendants and seeks, as relief, an award of damages. While the issues raised are of great importance to the plaintiffs, they are not issues which transcend the interests of the parties. Furthermore, they are legal issues where the principles involved are well established. The public interest is not engaged in any meaningful way, if at all.

[36] I have said that there are certain finite categories of litigation, apart from litigation that engages the public interest, where defendants have been ordered to make some payment of interim costs to an imperious plaintiff. Each of Okanagan and Little Sisters recognized that such awards have been made in certain trust, bankruptcy, corporate and family cases. The rationale that underlies an interim cost award in such cases was addressed by Major J., in dissent, in Okanagan at paras. 69-75. That rationale was succinctly summarized at para. 69:

The interim costs case law suggests narrow guidelines. Interim costs have been awarded in two circumstances: (i) in marital cases where some liability is presumed and the indemnificatory purpose of the costs power is fulfilled; and (ii) in corporate and trust cases where the court grants advanced costs to be paid by the corporation or trust for whose benefit the action is brought. In those cases it is still necessary that the party seeking advanced costs show that they would otherwise be unable to proceed with litigation.

[37] The considerations that can support an interim cost award in certain limited classes of litigation are absent from this action. There is then no basis for the order which the plaintiffs seek. This is so regardless of which of the various defendants the plaintiffs’ application for advance or interim costs was directed against.

The Constitutional Issues

[38] The plaintiffs’ Notice of Application as well as their Notice of Constitutional Question appeared to raise several questions although only one was addressed before me. The plaintiffs argued that they ought to be provided with state-funded counsel under s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 and relied, in particular, on New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, in support of this assertion. They also challenge the constitutional validity of R. 20-2(4) and rely on s. 15 of the Charter to that end.

i) State Funded Counsel and Section 7 of the Charter

[39] Section 7 of the Charter states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[40] The foundational decision on a right to state-funded counsel arising under the Charter is R. v. Rowbotham (1988), 41 C.C.C. (3d) 1, 63 C.R. (3d) 113 (Ont. C.A.). That case established that an accused is entitled to a remedy under s. 24(1) of the Charter where there is a substantial risk that without legal representation, his or her right to a fair trial under ss. 7 and 11(d) will be infringed. The requirements that an accused must satisfy are twofold: (a) financial eligibility in the sense that the accused has been refused legal aid and otherwise lacks the means to retain counsel; and (b) that counsel for the accused will be essential to ensure a constitutionally fair trial, given the seriousness and complexity of the proceeding, and the capacity of the accused to conduct his or her own defence: Rowbotham at 69 [cited to C.C.C.]. The remedy the court grants if these conditions or pre-requisites are established is a conditional stay of proceedings pending the government’s provision of funding for counsel.

[41] The expansion effected by the decision in G.(J.), some ten years later, was to recognize that the state’s removal of children from their parents’ custody may cause the parents psychological stress to a degree which affects their “security of the person”. Section 7 of the Charter is therefore engaged within that proceeding, as it is in criminal proceedings with reference to “liberty”, and thus requires that the process by which the removal occurs must be “in accordance with the principles of fundamental justice”. This, in turn, requires that the parents be represented by counsel at the custody hearing if such representation is necessary to ensure procedural fairness. The need for counsel is established on the same basis as under Rowbotham; it is determined with reference to the seriousness and complexity of the proceeding, and the capacity of the parents: (G.J.) at para. 86.

[42] The remedy under G.(J.) is different from a Rowbotham Order. It is an order which directly requires the government to fund counsel, rather than a conditional stay, as a stay would return the children to the potentially unsafe environment of their parents’ custody: G.(J.) at para. 101.

[43] In order to be relevant to these proceedings, s. 7 would necessarily have to protect a citizen’s constitutional right to pursue civil litigation through the courts. It does not. In addition, s. 7 does not generally protect economic rights or property interests.

[44] In British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 S.C.R. 873, in a constitutional challenge to the Social Service Tax Amendment Act (No. 2), 1993, S.B.C. 1993, c. 24 based upon unwritten constitutional principles such as the rule of law and “access to justice”, the Court said:

25. Section 10(b) does not exclude a finding of a constitutional right to legal assistance in other situations, Section 7 of the Charter, for example, has been held to imply a right to counsel as an aspect of procedural fairness where life, liberty and security of the person are affected: see Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1077; New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46. But this does not support a general right to legal assistance whenever a matter of rights and obligations is before a court or tribunal. Thus in New Brunswick, the Court was at pains to state that the right to counsel outside of the s. 10(b) context is a case-specific multi-factored enquiry (see para. 86).

[45] Dr. Sahyoun expressed the view that the case of Holland v. Marshall (4 November 2008 and 11 February 2009), Penticton 26039 (S.C.), aff’d 2010 BCCA 164 assisted the plaintiffs. In Holland, Mrs. Holland commenced a medical malpractice action on behalf of her son, Jonathon. It was alleged that he suffered psychological disorders as a result of a brain injury that was attributable to the negligence of the defendant physicians when he was born and to the treatment he received in the ensuing years. Jonathon, who was 22 at the time of the appeal, sought either to be represented by his mother and step-father or to be provided with state-funded counsel.

[46] Dr. Sahyoun emphasizes that in Holland it was much less clear either that Jonathon was disabled or that he and his parents were indigent. In this case Dr. Sahyoun argues, these issues have already been determined by virtue of the orders that I referred to earlier.

[47] What Dr. Sahyoun does not appear to appreciate is that the legal principle that arises from Holland, as it relates to s. 7 of the Charter and state-funded counsel, does not assist the plaintiffs. Specifically, the legal principles expressed by the unanimous Court of Appeal in Holland do not rely on the factual or evidential distinctions that Dr. Sahyoun seeks to draw:

[16] The plaintiff’s contention in the further alternative that the court should require counsel to be appointed for him at public expense is predicated on his being disabled and unable to afford counsel. He maintains his s. 7 Charter right to life, liberty, and security of person requires the appointment of counsel for the preservation of what is said to be his right to “psychological integrity”. He relies on New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124, where it was determined that state-funded legal representation may be ordered when by virtue of the action of the state an individual’s s. 7 rights may be compromised. But there is no state involvement in this case. The litigation is between private parties. There is nothing about it which engages the Charter. In Pavlis v. HSBC Bank Canada, 2009 BCCA 450, [2010] 1 W.W.R. 208, on the question of state-funded legal representation being considered by this Court in the context of a lawsuit between private interests, the following was said:

[11] ... Although it has been said that the right to security of the person extends to both the “physical and psychological integrity of the individual,” recent authorities have made it clear that there must be state interference having a profound effect on a person’s “psychological integrity”, such as occurred in New Brunswick (Min. of Health and Community Services) v. G.(J.) [1999] 3 S.C.R. 46, before such a deprivation may be found. (See especially paras. 58-60.) None of these exists here.

[48] The fact that the presence of state conduct is a necessary pre-requisite to any s.7 remedy was emphasized by Lamer C.J. in G.(J.):

[65] ... In other words, the subject matter of s. 7 is the state’s conduct in the course of enforcing and securing compliance with the law, where the state’s conduct deprives an individual of his or her right to life, liberty, or security of the person. I hastened to add, however, that s. 7 is not limited solely to purely criminal or penal matters. There are other ways in which the government in the course of the administration of justice, can deprive a person of their s. 7 rights to liberty and security of the person, i.e., civil committal to a mental institution: see B. (R.), supra, at para. 22.

[66] A child custody application is an example of state action which directly engages the justice system and its administration. The Family Services Act provides that a judicial hearing must be held in order to determine whether a parent should be relieved of custody of his or her child.

[49] In P.D. v. British Columbia, 2010 BCSC 290, I addressed the breadth of s. 7 as it relates to a right to state-funded counsel and said:

[148] Furthermore, there are a significant number of decisions, from numerous courts, which confirm that a private dispute cannot support a s. 7 claim. The following cases establish the following propositions:

a) There is no constitutional right to provincially-funded legal fees and the courts do not have jurisdiction to order such funding. In addition, there is no authority for the proposition that the “principle of access to justice means more than a duty on the government to make courts of law and judges available to all persons or that it includes an obligation to fund a private litigant who is unable to pay for legal representation in a civil suit...”: Okanagan Indian Band at para. 28.

b) The Charter does not apply to civil disputes and, therefore, cannot require the state to fund legal counsel in civil disputes: Lawrence v. British Columbia (Attorney General), 2003 BCCA 379, 184 B.C.A.C. 26. Significantly, the Court of Appeal in Lawrence decided the question in the context of an application for leave to appeal where the applicant, as in an injunction application, needed only to meet the relatively low threshold of a reasonably arguable case.

c) Section 7 does not apply to cases where there is no state action, including an application for state-funded counsel in a private family law dispute: DeFehr v. DeFehr, 2002 BCCA 139, 167 B.C.A.C. 235; J.L.G. v. D.W.M, 2002 BCSC 1727; G.(J.); Miltenberger v. Braaten, 2000 SKQB 443, [2000] S.J. No. 599; S.A.K. v. A.C., 2001 ABCA 205, 19 R.F.L. (5th) 1; Ryan v. Ryan, 2000 NSCA 10, 181 N.S.R. (2d) 255. See also: Blencoe at para. 57.

[149] In addition, P.D. seeks in both this application and in her underlying claim, to argue an entitlement to state-funded counsel that would deal with issues such as spousal and child support as well as with property division. The courts have been clear that various economic interests are not protected by s. 7: Lacey v. British Columbia, [1999] B.C.J. No. 3168 (S.C.) at para. 6; Walker v. Prince Edward Island (1993), 107 D.L.R. (4th) 69 (C.A.), aff’d [1995] 2 S.C.R. 407; Whitbread v. Walley (1988), 26 B.C.L.R. (2d) 203, 51 D.L.R. (4th) 509 (C.A.), aff’d [1990] 3 S.C.R. 1273.

[50] The present action does not involve any state action or involvement. The fact that some of the defendants are bodies or individuals that represent various levels of government does not change this. Section 7 is not engaged and provides no support for the plaintiffs’ application for state-funded counsel.

ii) Rule 20-2(4) and Section 15 of the Charter

[51] I have said that the materials filed by the plaintiffs indicate that they challenge the validity of R. 20-2(4) and that they rely on s. 15 of the Charter to achieve that object. This particular application was not, however, developed any further either in the plaintiffs’ application materials or in their oral submissions.

[52] The only explanation or basis for the challenge is the following statement found in the Notice of Constitutional Challenge which the plaintiffs filed:

13. The right of the father, Dr. Nabil Riad Sahyoun, to act as a litigation guardian for his two children Antonios Nabil Riad Sahyoun and Bishoy Nabil Riad Sahyoun in this action is a vested right for Antonios, Bishoy and Dr. Nabil Riad Sahyoun. Accordingly, the Plaintiffs strongly believe that Rule 6 contravenes section 15 of the Canadian Charter of Rights and Freedoms, PART I of the Constitution Act, 1982 as the poverty is not a lawful excuse to remove the litigation guardian.

[53] Rule 6, which is referred to above, was the predecessor to the present R. 20-2(4). I have already concluded that Dr. Sahyoun’s assertion that his son Antonios has a “vested right” to have him act on his behalf is not correct.

[54] Furthermore, to the extent Dr. Sahyoun argues that s. 15 of the Charter applies as a result of his indigence or “poverty”, that submission is without foundation.

[55] Section 15(1) of the Charter provides:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[56] Poverty is not one of the enumerated grounds listed in s. 15. In Boulter v. Nova Scotia Power Incorporation, 2009 NSCA 17, Fichaud J.A., for the court, at paras. 32-44, determined that poverty is not an analogous ground under s. 15(1).

[57] Accordingly, there is no legal basis for the s. 15 submission that Dr. Sahyoun seeks to advance.

Summary

[58] I make the following specific orders:

i)        the present action is stayed;

ii)        the plaintiffs’ application for state-funded counsel is dismissed;

iii)       the plaintiffs’ application for advance or interim costs is dismissed; and

iv)       the plaintiffs’ challenge to the validity of Rule 20-2(4) is dismissed.

“Voith J.”