COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

B.B. v. M.B.,

 

2008 BCCA 52

Date: 20080208

Docket: CA034317

Between:

B.B.

Respondent

(Plaintiff)

And

M.B.

Appellant

(Defendant)

Before:

The Honourable Mr. Justice Frankel

(In Chambers)

 

J.O. Richardson

Counsel for the Appellant

J.H. Oland

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

19 December 2007

Place and Date of Judgment:

Vancouver, British Columbia

8 February 2008

Reasons for Judgment of the Honourable Mr. Justice Frankel:

Overview

[1]                M.B. seeks an order pursuant to s. 25(2) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, removing his appeal from the inactive list.  He also seeks an order pursuant to s. 10(2)(d) of the Act, extending the time for filing and service of his factum.

[2]                For the reasons that follow, both applications are granted.  Further, although B.B. did not file an application to reactivate her cross-appeal, it too will be removed from the inactive list.

Background

[3]                B.B. is M.B.’s daughter.  On September 18, 1998, B.B. commenced an action against her father in the Supreme Court of British Columbia, for damages for breach of fiduciary duty and for physical and emotional abuse sustained over many years.  Default judgment on liability was entered on September 29, 1999.  It was not until June of 2006 that a damages trial was held before Madam Justice Garson.  The trial lasted 15 days.  B.B. was represented by counsel.  M.B. appeared on his own behalf.

[4]                The trial judge released her reasons for judgment on July 4, 2006:  2006 BCSC 1027.  She released supplementary reasons on August 30, 2006:  2006 BCSC 1335.  The formal order was entered on November 2, 2006.  The judgment awarded B.B. damages in the amount of $396,343.70 and costs.  She was also found to be entitled to management fees of $18,000.00.

[5]                A notice of appeal personally signed by M.B. was filed on August 2, 2006.  In it, M.B. seeks to have the judgment against him set aside.  An amended notice of appeal was filed on August 9, 2006.  On August 14, 2006, counsel acting for B.B. filed a notice of cross-appeal, seeking to have the amount of damages increased.

[6]                Pursuant to a consent order, M.B.’s appeal record and the transcripts were filed on October 27, 2006.  His appeal book was filed on November 27, 2006.

[7]                B.B. took steps to collect the monies owing on the judgment.  As a result of execution proceedings against M.B.’s business assets, approximately $670,000.00 was realized and paid in trust to B.B.’s solicitors.  Of this, approximately $170,000.00 was owed to the Canada Revenue Agency.

[8]                On May 4, 2007, B.B. filed an application in the Supreme Court of British Columbia for an order that all monies held in trust be disbursed on her behalf.  On May 7, 2007, M.B. filed an application seeking a stay of execution of the judgment pending the hearing of his appeal or, in the alternative, a stay of sufficient duration to permit him time to seek a stay pending appeal from the Court of Appeal.  M.B. also sought to have $40,000.00 of the monies held in trust paid out to him so that he could retain counsel and pay for disbursements on the appeal.  At this time he owed over $6,000.00 of the approximately $10,000.00 bill for the preparation of the transcripts.  M.B. had received some assistance from the lawyer he proposed to retain for the appeal.

[9]                Mr. Justice Silverman heard these applications on May 11, 2007.  He dismissed the application for a stay and ordered $40,000.00 paid to counsel to be retained by M.B., for legal fees and disbursements in connection with the appeal.  M.B. was directed to “pursue his appeal diligently.”  The judge also ordered the sum of $400,000.00 be paid to B.B.  In making these orders, Silverman J. opined that on the limited material provided to him he could not say that M.B.’s appeal was frivolous.

[10]            On May 23, 2007, M.B. retained John O. Richardson to act on the appeal.  Mr. Richardson was not the lawyer who had been assisting M.B. previously.  On May 31, 2007, B.B.’s counsel, Garth E. Edwards, sent a trust cheque in the amount of $40,000.00 to Mr. Richardson.

[11]            In a letter to Mr. Richardson dated June 12, 2007, Mr. Edwards indicated that he would, as a courtesy, consent to an order extending the time for the filing of M.B.’s appellant’s factum up to and including June 22, 2007.  Mr. Edwards and Mr. Richardson spoke by telephone late in the afternoon of June 12, 2007.  The following day, Mr. Edwards wrote to Mr. Richardson to “confirm” their conversation.  In that letter, Mr. Edwards indicated that he would not consent to the late filing of the appellant’s factum.  I take this to mean that he would not consent beyond June 22, 2007.  Mr. Richardson did not reply to either of these letters.

[12]            On September 24, 2007, the Deputy Registrar of this Court wrote to Mr. Richardson, with a copy to Mr. Edwards, advising that “this matter has been placed on the inactive appeal list.”  The letter stated that if no steps were taken, then M.B.’s appeal would stand dismissed as abandoned on February 2, 2008, and that B.B.’s cross-appeal would stand dismissed as abandoned on February 15, 2008.

[13]            On October 10, 2007, Mr. Richardson wrote to Mr. Edwards asking him to consent to the appeal being removed from the inactive list.  Mr. Richardson indicated that he had prepared a draft factum and expected to be in a position to file it in late October or early November.  Based on a conversation he had had with Mr. Edwards in July, Mr. Richardson said it was his understanding that Mr. Edwards “would consent” to an extension of time for filing the factum.  On October 24, 2007, Mr. Richardson again wrote to Mr. Edwards.  He indicated that he was still working on the factum, and asked Mr. Edwards to advise as to his position on extending the time to file it, and removal of the appeal from the inactive list.

[14]            In a telephone conversation on October 29, 2007, Mr. Richardson advised Mr. Edwards that the appellant’s factum would be completed by November 15, 2007.  Mr. Richardson provided Mr. Edwards with a draft of the factum on November 13, 2007.  In this letter, Mr. Richardson, referring to his July 13, 2007, conversation with Mr. Edwards, indicated that Mr. Edwards had said that he “would probably consent” to an extension of time.  The final version of the factum was sent to Mr. Edwards on November 15, 2007.

[15]            On November 20, 2007, Mr. Edwards wrote to Mr. Richardson indicating that he would not consent to an extension of time to file the factum.  Referring to Mr. Richardson’s letter of October 10, 2007, Mr. Edwards took “umbrage” with the statement to the effect that he “would consent” to an extension.  In writing back on November 22, 2007, Mr. Richardson pointed out that in his letter of November 13, 2007, he had said that Mr. Edwards “would probably consent.”

[16]            On November 23, 2007, Mr. Edwards wrote to Mr. Richardson.  Mr. Edwards referred to his June 13, 2007 letter, in which he had indicated that he would not consent to the late filing of the appellant’s factum.

[17]            On December 4, 2007, Mr. Richardson filed a notice of motion for an order reactivating this appeal, and extending the time to file his client’s factum.

[18]            At the hearing before me, Mr. Richardson stated that he was unable to work on the factum during July and August of this year, as he was otherwise occupied with “family commitments.”  He further stated, and this is mentioned in the correspondence exhibited to the affidavits, that beginning in September, 2007, he was engaged in a number of matters, including a multiple murder case in the Supreme Court of British Columbia and a two-week out-of-province drug trial.  This is why it took him until mid-November to review the trial record and complete the factum.

[19]            In opposing the application, Mr. Oland drew my attention to numerous steps which appear to have been taken by M.B. to delay the damages trial.  He also referred to the considerable stress his client has been under as a result of this litigation.

Analysis

M.B.’s Supporting Affidavit

[20]            Before turning to the merits of this matter, I wish to address B.B.’s objection to the affidavit filed by M.B. in support of this motion.  This affidavit was sworn by Mr. Richardson’s secretary, and has appended to it numerous documents as exhibits, including correspondence between Mr. Richardson and Mr. Edwards.  However, it also recites information provided by Mr. Richardson regarding his involvement in this matter, including his conversations with Mr. Edwards.

[21]            Relying on the judgment of Madam Justice Proudfoot in Derby Reach Restaurant Ltd. v. Odyssey Holdings Ltd. (1995), 50 B.C.A.C. 58 (in Chambers) (at paras. 17, 18), B.B. says that Mr. Richardson’s secretary’s affidavit is improper because it contains hearsay and double hearsay, and is factually inaccurate in many respects.  More particularly, she submits that it has been drafted so as to permit Mr. Richardson to circumvent the rule of practice that counsel may not speak to their own affidavits in contentious matters.

[22]            There is some merit to this objection.  As evinced by a number of the exhibits appended to the affidavit of Mr. Edwards’ secretary, some of the facts deposed to by Mr. Richardson’s secretary are incorrect.  However, I do not find that this is due to any intention to mislead.  Rather, I think it likely that the errors are the result of inattention to detail, something which is to be discouraged.  Without question, more care should have been taken in preparing the affidavit.

[23]            There is also some merit to the submission that Mr. Richardson has, at least in part, sought to rely on his own evidence.  As well, it can be said that some concerns arise with respect to the affidavit of Mr. Edwards’ secretary, given that a number of the exhibits attached to it are letters written by Mr. Edwards, in which he describes conversations he had with Mr. Richardson.  However, it is not necessary for me to engage in the process of redacting the affidavits.  Based on the non-contentious historical information contained in the affidavits, and what I consider to be additional non-contentious information provided to me by both counsel during their respective submissions, I believe that what I have set out above is an accurate picture of the path this appeal has taken to get to this point.

Should this Appeal Be Reactivated?

[24]            Chief Justice Finch recently discussed the approach to be taken on an application to remove an appeal from the inactive list in Murphy v. Wynne, 2008 BCCA 26:

[19]      Section 25 of the Court of Appeal Act governs inactive appeals.  There is no rigid test on an application to reinstate.  The overriding issue has been said to be whether it is in the interests of justice to grant the application:  Kar Recovery Ltd. v. KDA, 2004 BCCA 503.  Factors which have been considered by the Court in removing a case from the inactive list are the extent of the delay, any explanation for the delay, the existence of prejudice arising from the delay, and the likelihood of success on appeal.

[20]      The applicant bears the onus of establishing a good reason for reactivating the appeal under s. 25(2): see Galiano Conservancy Association v. British Columbia (Ministry of Transportation and Highways) (1997), 40 B.C.L.R. (3d) 171 (C.A.) at 176.

[25]            In considering these factors it is important to keep in mind that the burden on an application to “reactive” an appeal under s. 25(2) is less onerous than on an application under s. 25(6) to “reinstate” one that has been dismissed as abandoned:  Olenga v. Insurance Corporation of British Columbia, 2007 BCCA 87, 235 B.C.A.C. 315 (in Chambers) at para. 23, appeal dismissed, 2007 BCCA 256, 239 B.C.A.C. 320, leave refused, [2007] S.C.C.A. No. 332 (QL).

[26]            I consider the delay here to be 16 months, being the time from when the notice of appeal was filed (August 2, 2006) to the time M.B. filed the motion to reactivate (December 4, 2007).  Had M.B. done nothing at all to move the appeal forward during this time I would consider this delay to be inordinately long, and likely fatal to an application to reactivate.  However, while the delay is certainly unwarranted, regard must be had to the fact that the appeal record, transcripts, and appeal book were filed by the end of November 2006.  This demonstrates that M.B. was serious about pursuing his appeal.

[27]            The delay after M.B. retained Mr. Richardson is problematic.  Certainly, Mr. Edwards made Mr. Richardson aware of the fact that B.B. wanted the appeal to proceed with some dispatch.  However, it would appear that there was some misunderstanding on the part of Mr. Richardson with regard to the firmness of Mr. Edwards’ position concerning the late filing of the factum.  Mr. Richardson clearly hoped that he would be able to persuade Mr. Edwards to consent to the factum being filed in the fall of 2007.

[28]            I should mention that I do not consider the time it took to complete this matter in the Supreme Court to be directly relevant.  On an application to reactivate an appeal, the focus is on what has occurred, or has not occurred, since the notice of appeal was filed.  While earlier conduct by an appellant may support a finding that inaction in prosecuting an appeal is part of a deliberate pattern of behaviour designed to frustrate the interests of the other party, I do not find that to be the case here.

[29]            The seizure and sale of M.B.’s assets created problems for him in regard to his ability to fund the appeal.  While the matter of obtaining the release of monies sufficient to advance the appeal should have been dealt more expeditiously, it is clear that M.B. did take steps to move the matter forward and that by mid-July of 2007 he had placed the matter in the hands of Mr. Richardson, who was fully retained to see the matter through to its conclusion.  It seems that, thereafter, Mr. Richardson was unable to give this file the priority and attention it required.  While I appreciate that counsel often have personal and professional commitments that make considerable demands on their time, they should not agree to take on a new matter they know they will not be able to deal with in a timely way.  To echo the words of Finch C.J.B.C. in Rossmo v. Vancouver (City) Police Board, 2003 BCCA 234, if M.B. is to be faulted for what occurred after mid-July “it is perhaps for not pressing his legal advisors to pursue the matter with greater vigour”:  para. 13.

[30]            B.B. argues that she will be prejudiced by an order permitting the appeal to proceed.  She points to the fact that there are insufficient funds presently available to pay the outstanding balance on the judgment.  She also says that the stress of this litigation and the delay in execution of the judgment have taken a toll on her.  Included in B.B.’s material is a letter dated May 2, 2007, from her family physician to Mr. Edwards, which speaks not only to her depression and anxiety as a result of being abused, but also her need for closure with respect to this aspect of her past.

[31]            While I appreciate B.B.’s need for finality, she must accept that the appellate process takes time.  Her need for closure cannot, without more, prevail over M.B.’s right to challenge the correctness of the order made against him.  As well, it is to be remembered that $400,000.00 has already been paid to her on account of the judgment.

[32]            As to the likelihood of success of the appeal, the parties take diametrically opposite positions.  M.B. points to the fact that Silverman J. opined that the appeal is not frivolous.  He says, with reference to Hannigan v. Hannigan, 2006 BCCA 167, 226 B.C.A.C. 100, that his case is “arguable” and has “some chance of success.”  B.B., on the other hand, takes the position that the appeal is devoid of merit and is bound to fail.  In her written submissions, she responds to the various points advanced in the draft factum.

[33]            Based on the available material, including the draft factum, I cannot say the appeal is bound to fail.  However, it does appear to me that some of the arguments are not particularly strong.

[34]            This case is very close to the line.  In the end, having regard to all of the factors and balancing the interests of both parties, I have come to the conclusion that it is in the interests of justice to permit this appeal to proceed.  As noted in Ravnyshyn v. Drys, 2007 BCCA 400, 245 B.C.A.C. 127 at para. 18, leave refused, [2007] S.C.C.A. No. 485 (QL):

[This] Court is loathe to foreclose an appeal where the appellants have filed the transcripts and appeal books [except] where the prospects of success on appeal are so remote that it would be manifestly unfair to the respondents to compel them to proceed to a hearing.

[35]            In the result, I would remove this appeal from the inactive list.  M.B. will have until February 22, 2008, to file and serve his factum.

The Cross-Appeal

[36]            As indicated above, B.B.’s cross-appeal is also presently on the inactive list and stands to be dismissed as abandoned on February 15, 2008.  Although she has made no application to reactive the cross-appeal, I would remove it from the inactive list as well, having regard to what was done in Boaler v. Brar (1997), 88 B.C.A.C. 243.

[37]            In Boaler v. Brar, Mr. Brar filed an appeal on November 23, 1995, seeking to reduce the damages he was ordered to pay to Mr. Boaler as a result of a motor vehicle accident.  On November 28, 1995, Mr. Boaler filed a cross-appeal seeking to have the damage award increased.  On November 26, 1996, the Deputy Registrar of this Court wrote to counsel for the respective parties indicating that “this matter has been placed on the inactive appeal list.”

[38]            In early January of 1997, Mr. Brar filed a motion seeking to have “the proceedings herein” removed from the inactive list.  Mr. Boaler responded with a motion seeking to have Mr. Brar’s appeal dismissed as abandoned.  A chambers judge dismissed the motion to reactivate and ordered that Mr. Brar’s appeal be dismissed as abandoned on the condition that Mr. Boaler file a notice of abandonment of his cross-appeal.  Mr. Boaler did so.  Mr. Brar then brought an application before a division of this Court to vary the chambers judge’s decision.  Mr. Boaler opposed the application.

[39]            The application to vary was granted, and the chambers judge’s order was set aside.  In permitting both the appeal and cross-appeal to proceed, Macfarlane J.A. stated:

[10]      Accordingly, it is my view that, having regard to the factors set forth in Davies, the interests of justice would best be served by allowing both the appeal and cross-appeal to proceed.

[11]      I would set aside the order of the Chambers judge and give the applicants leave to proceed with the appeal.  Also the respondent is free to proceed with its cross-appeal.

[40]            This reasoning applies in the case at bar.  If M.B. is permitted to challenge the damage award on the basis that it is excessive, then it is only fair and just that B.B. be permitted to challenge it on the basis that it is inadequate.  There is no need for B.B. to bring a separate application to reactive the cross-appeal.

Costs

[41]            The delay in moving this matter forward has been, in part, due to a lack of alacrity and diligence on the part of both M.B. and Mr. Richardson.  I do not accept M.B.’s submission that B.B. acted unreasonably in not consenting to this motion.  She clearly had legitimate arguments to make in opposing it.  In my view, B.B. is entitled to the costs of this motion in any event of the appeal:  Jacobsen v. Lumberland Building Materials Ltd., [1998] B.C.J. No. 2784 (C.A.) (in Chambers) (QL) at para. 6; Cimolai v. Hall, 2006 BCCA 274 (in Chambers) at para. 20.

Conclusion

[42]            Both the appeal and the cross-appeal are removed from the inactive list.  The time for filing M.B.’s factum is extended up to and including February 22, 2008.

[43]            B.B. is entitled to costs of this motion in any event of the appeal.

“The Honourable Mr. Justice Frankel”