Allart v. Alec's Automotive Machine Shop (2003) Ltd. et al., 2014 BCCA 242

• Judge: Willcock, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 06, 2014
• Jurisdiction: British Columbia
• Citations: 2014 BCCA 242;(2014), 357 B.C.A.C. 150 (CA)

Allart v. Alec's Auto. (2014), 357 B.C.A.C. 150 (CA);

    611 W.A.C. 150

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. JN.039

L. Caroline Allart (appellant/plaintiff) v. Alec's Automotive Machine Shop (2003) Ltd. and Hemrich Bros. Garage Ltd. (respondents/defendants) and Attorney General of British Columbia (respondent/defendant)

(CA041817; 2014 BCCA 242)

Indexed As: Allart v. Alec's Automotive Machine Shop (2003) Ltd. et al.

British Columbia Court of Appeal

Willcock, J.A.

June 23, 2014.

Summary:

Allart appealed from the dismissal of her small claims action and was granted impoverished status in the Supreme Court. Allart deposed that she could not proceed with her appeal in the Supreme Court because she was unable to afford the cost of ordering a transcript of the proceedings in Provincial Court, as was required by rule 18-3 of the Supreme Court Civil Rules. Allart sought to establish before the judge that the law requiring her to pay for a certified copy of the transcript hindered access to justice and was thus unconstitutional.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 476, held that the evidentiary foundation for Allart's application was deficient. The application was dismissed. Allart applied for an an extension of time to appeal the judge's decision. She also applied for an order that she be declared indigent in this matter with respect to the payment of fees set out in Schedule 1 of Appendix C of the Court of Appeal Rules.

The British Columbia Court of Appeal, per Willcock, J.A., dismissed the applications. Allart's appeal was bound to fail. Not only did Allart have the obstacle of showing that her case could be distinguished from Pavlis v. HSBC Bank Canada (2009 BCCA) but also, and more significantly, she had the insurmountable burden of proving that the trial judge was wrong to find that there was an inadequate evidentiary basis upon which to address the constitutional question posed. There was no reasonable prospect that Allart would be able to satisfy a division of the Court of Appeal that the judge erred in that regard.

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - See paragraphs 8 to 24.

Courts - Topic 1403

Administration - General - Access to courts (incl. access to justice issues) - See paragraphs 8 to 24.

Practice - Topic 5295.1

Trials - General - Transcripts - General - See paragraphs 8 to 24.

Practice - Topic 9055

Appeals - Record on appeal - Record of trial evidence or original proceedings - See paragraphs 8 to 24.

Cases Noticed:

Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R.(2d) 256 (C.A.), refd to. [para. 2].

Lee v. Lee (2014), 354 B.C.A.C. 128; 605 W.A.C. 128; 2014 BCCA 155, refd to. [para. 6].

Clock Holdings Ltd. v. Braich Estate (2009), 271 B.C.A.C. 267; 458 W.A.C. 267; 2009 BCCA 269, refd to. [para. 6].

Polewsky v. Home Hardware Stores Ltd. et al. (2003), 174 O.A.C. 358; 66 O.R.(3d) 600; 229 D.L.R.(4th) 308 (Div. Ct.), refd to. [para. 10].

Vilardell v. Dunham (2013), 334 B.C.A.C. 71; 572 W.A.C. 71; 2013 BCCA 65, refd to. [para. 10].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 11].

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 11].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1; 63 C.R.(3d) 113 (C.A.), refd to. [para. 16].

Christie v. British Columbia (Attorney General) et al., [2007] 1 S.C.R. 873; 361 N.R. 322; 240 B.C.A.C. 1; 398 W.A.C. 1; 2007 SCC 21, refd to. [para. 17].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 17].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 17].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 17].

Minister of National Revenue v. Tessmer (Stanley J.) Law Corp. (2013), 455 N.R. 366; 2013 FCA 290, refd to. [para. 21].

Carten (John) Personal Law Corp. et al. v. British Columbia (Attorney General) et al. (1997), 98 B.C.A.C. 1; 161 W.A.C. 1; 40 B.C.L.R.(3d) 181 (C.A.), refd to. [para. 22].

Pavlis v. HSBC Bank Canada et al. (2009), 277 B.C.A.C. 105; 469 W.A.C. 105; 2009 BCCA 450, refd to. [para. 23].

Authors and Works Noticed:

Morgan, Proof of Facts in Charter Litigation, in Robert J. Sharpe, ed., Charter Litigation (1987), p. 162 [para. 19].

Sharpe, Robert J., Charter Litigation (1987), p. 162 [para. 19].

Counsel:

T. Kruger, for the appellant;

B. Mackey, for the respondent, Attorney General of British Columbia.

These applications were heard in chambers on June 6, 2014, at Vancouver, B.C., before Willcock, J.A., of the British Columbia Court of Appeal, who delivered the following judgment on June 23, 2014.