COURT OF APPEAL FOR BRITISH COLUMBIA
| Citation: | A.B. v. C.D., |
|
| 2019 BCCA 256 |
Date: 20190624
Dockets: CA45940; CA45941
Docket: CA45940
Between:
A.B.
Respondent
(Claimant)
And
C.D.
Appellant
(Respondent)
And
E.F.
Respondent
(Respondent)
- and -
Docket: CA45941
Between:
C.D.
Appellant
(Petitioner)
And
Provincial Health Services Authority (BC Children’s Hospital),
E.F., G.H., I.J.,
British Columbia Ministry of Education,
Delta School District, and A.B.
Respondents
(Respondents)
Restriction on publication: A publication ban has been imposed by orders of this Court restricting the publication, broadcast or transmission of any information that could identify the parties referred to in these proceedings as “A.B.”, “C.D.”, and “E.F.”; and also restricting the publication of the names of the parties and witnesses referred to by their initials or as “G.H.” or “I.J.” in relation to these proceedings and any related proceedings regarding A.B. This publication ban applies indefinitely unless otherwise ordered.
SEALED FILE
| Before: | The Honourable Madam Justice Fisher (In Chambers) |
On appeal from: An order of the Supreme Court of British Columbia, dated
February 27, 2019 (A.B. v. C.D. and E.F., 2019 BCSC 254, Vancouver Docket E190334 and S191565).
Oral Reasons for Judgment
| Counsel for the Appellant, C.D.: | H.J. Dunton |
| Counsel for the Respondent, A.B.: | b. findlay, Q.C. C.E. Hunter, Q.C. |
| Counsel for the Respondent, Provincial Health Services Authority and I.J.: | M.M. Skorah, Q.C. |
| Counsel for the Respondent, E.F.: | J. Wahid |
| Place and Date of Hearing: | Vancouver, British Columbia June 24, 2019 |
| Place and Date of Judgment: | Vancouver, British Columbia June 24, 2019 |
Summary:
Appellant C.D.’s application to extend time to file factum is allowed, but only to June 27, 2019, and his application for permission to file additional pages in his factum is dismissed. The appellant has not provided a sufficient basis to justify exceeding the 30-page limit.
[1] FISHER J.A.: The appellant, C.D., applies for an extension of time to file his factum from today, June 24, to Friday, June 28, and permission to exceed the 30‑page limit for the factum to 60 pages.
[2] C.D. appeals from the order of Bowden J. dated February 27, 2019, in which he made declarations under the Family Law Act, S.B.C. 2011, c. 25, pertaining to the entitlement of C.D.’s 14-year-old child, A.B., to receive medical treatment for gender dysphoria. The primary issue before the court was whether A.B. had the capacity to consent to the treatment and understood the benefits and risks as explained by the health care providers. An additional protection order was made by Marzari J. on April 15, 2019, which restrained C.D. from doing certain things, including publishing or sharing information relating to A.B.’s circumstances, directly or indirectly through an agent or third party. On May 1, 2019, C.D. was given leave to file an amended notice of appeal to include the order of Marzari J.
[3] The criteria to be considered in an application to extend time to begin an appeal or for leave to appeal, which stem from Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 at 259–60 (C.A.), are well-established:
1) Was there a bona fide intention to appeal?
2) When was the respondent informed of the intention?
3) Would the respondent be unduly prejudiced by an extension of time?
4) Is there merit in the appeal?
5) Is it in the interests of justice that an extension be granted?
[4] The interests of justice is an overriding question that encompasses the other four factors: Davies at 260–261; see also Rapton v. British Columbia (Superintendent of Motor Vehicles), 2011 BCCA 71 at para. 19 (in Chambers); First Majestic Silver Corp. v. Santos, 2014 BCCA 214 at para. 57. The applicant has the burden of establishing that the criteria are met: Rapton at para. 19.
[5] This is an application to extend time, not to apply for leave to appeal, but to take the subsequent step of filing the appellant’s factum. In such circumstances, the same Davies criteria apply, but with appropriate modifications. Generally the court will be less stringent in applying the factors where the extension is sought for a procedural step such as service or filing appeal books, depending, of course, on the circumstances: Davies at 259; Hydro Fuels Inc. v. Moran (1993), 25 B.C.A.C. 139 at para. 9 (C.A.).
[6] On behalf of C.D., Mr. Dunton submits that he is seeking only a short extension for two reasons:
(1) There will be a hearing before Marzari J. tomorrow to address an application by C.D. that she recuse herself from further adjudication on this matter on the grounds of a conflict of interest or bias, as well as an application by A.B. that C.D. breached para. 2 of the April 15, 2019 protection order as a result of actions taken by his counsel, Mr. Linde. Mr. Dunton expects that whatever occurs at that hearing may have to be mentioned in his factum in this appeal.
(2) Mr. Dunton needs more time to polish and edit his factum, as it now far exceeds the 30-page limit, at about 80 pages.
[7] The second reason is, of course, related to his second application to exceed the page limit.
[8] On behalf of A.B., Ms. Hunter acknowledges that the extension of time sought by Mr. Dunton meets many of the criteria to be considered by this court but submits that it is not in the interests of justice to grant the extension in circumstances where C.D. is in breach of the order under appeal. This relates to A.B.’s application to be heard tomorrow by Marzari J. She says that the record clearly shows that the protection order was intended to include C.D.’s lawyers as his agents, and that Mr. Linde, in that capacity, posted videos on the internet and gave media interviews in which he identified himself as counsel for C.D. and published information C.D. was prohibited from publishing under the order.
[9] In support of this, Ms. Hunter referred me to the decision in Vancouver v. Weeds Glass & Gifts, 2019 BCCA 190 (in Chambers), in which the justice discussed the consequences of an applicant’s violation of a court order and an application to stay that order. While I agree that I have the discretion to refuse to extend time in such circumstances, the issue of whether C.D. is in violation of the protection order has some facets to it that may not be apparent here, and in any event is to be addressed by the Supreme Court tomorrow.
[10] These submissions are adopted by E.F.
[11] That said, Mr. Dunton has given somewhat vague reasons for requiring an extension. Whatever may be the result of tomorrow’s hearings, I fail to see how that should have a bearing on the content of his factum in this appeal. The real reason is that he needs some additional time to polish and edit the factum.
[12] In this rather specific circumstance and given the short period of time for the extension, I am prepared to grant the extension of time. I will address the date after I deal with the application for additional pages.
[13] As this court held in Ma v. Vansanten, 2017 BCCA 441:
[12] A party seeking to file a factum in excess of the page limit bears the onus of showing why the extra space is necessary: [Chief Mountain v. Canada (A.G.)], 2012 BCCA 69 at para. 11 (in Chambers). Factums should avoid a “mass of detail that is unlikely to be helpful for the Court”: R. v. Port Chevrolet Oldsmobile Ltd, 2008 BCCA 443 at para. 11 (in Chambers). Factums should be focused on the issues and not “wander”, and exceptions to the page limit are rare: Brown v. Lowe, 2000 BCCA 635. While the overwhelming complexity of a case may justify a longer factum, the 30-page limit has already been determined with reasonably complex cases in mind: Sga’nism at para 6.
[14] Again, Mr. Dunton’s submissions regarding the need to file additional pages lack precision. He says that the issues to be raised in the appeal are complex. For example, C.D. had no opportunity to make his case, there was undue reliance on hearsay, the judge made broad factual errors, the best interests of the child is a broad topic, and the judge gave insufficient consideration to whether A.B. gave informed consent.
[15] Ms. Hunter submits that this is not a complex case, as the judgment of Bowden J. primarily addressed the issue of A.B.’s capacity to consent to medical treatment. She referred me to the reasons of Groberman J.A. in Chief Mountain v. Canada (A.G.), 2012 BCCA 69 at paras. 1–12, which were cited by Bauman C.J.B.C. in Ma. I would endorse those reasons and have considered Mr. Dunton’s submissions in light of them.
[16] I am not satisfied that Mr. Dunton has provided a sufficient basis upon which to permit the 30‑page limit to be exceeded. It appears to me that many of the issues he seeks to raise are factual matters that go beyond the issues arising from the orders under appeal and may unduly complicate the matter. He has provided no copy of a draft factum that would give an idea of the real need for additional pages and has sought a broad range of suggested page limits, from 45 to 60.
[17] I agree with the submissions of both Ms. Hunter and Ms. Wahid, on behalf of E.F., that granting additional pages, in addition to extending the time to file the factum, has the potential to derail this appeal.
[18] Therefore, the application to exceed the page limit is dismissed.
[Discussion with counsel re: extension of time to file factum]
[19] FISHER J.A.: I want it to be clear that this is a very unusual and short extension, and I am granting it on that basis to Thursday June 27, 2019.
[Discussion with counsel re: costs]
[20] FISHER J.A.: I am going to make an order that each party bear their own costs of this application.
“The Honourable Madam Justice Fisher”
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