Avtar (G.) Plaster & Stucco Ltd. et al. v. J.M.J. Developments Ltd. et al., 2011 BCCA 456

• Judge: Ryan, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 22, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 456;(2011), 312 B.C.A.C. 265 (CA)

Avtar Plaster & Stucco v. JMJ Dev. (2011), 312 B.C.A.C. 265 (CA);

    531 W.A.C. 265

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. NO.027

G. Avtar Plaster & Stucco Ltd. and Hayer Bros Plaster & Stucco Ltd. (appellants/plaintiffs) v. J.M.J. Developments Ltd. and Vankit Construction Inc. (respondents/defendants)

(CA038528; 2011 BCCA 456)

Indexed As: Avtar (G.) Plaster & Stucco Ltd. et al. v. J.M.J. Developments Ltd. et al.

British Columbia Court of Appeal

Ryan, J.A.

November 10, 2011.

Summary:

The defendants were developing two family homes. The defendants contracted with the plaintiffs to stucco the exterior of the homes. At the conclusion of the work, the defendants expressed dissatisfaction with the quality of the finish on both homes. They paid the plaintiffs a sum somewhat less than had been agreed upon. The plaintiffs brought actions on the contracts for the price of the contracts. The defendants counterclaimed for the deficiencies. After a summary trial, the trial judge awarded partial judgment to the plaintiffs and awarded costs to the defendants where an offer to settle had surpassed the amount of the award. The plaintiffs appealed. The plaintiffs applied for an order under s. 10(2)(d) of the Court of Appeal Civil Rules that they be granted an extension of time to file and serve their factum in the appeal.

The British Columbia Court of Appeal, per Ryan, J.A., dismissed the application.

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - The defendants were developing two family homes - The defendants contracted with the plaintiffs to stucco the exterior of the homes - At the conclusion of the work, the defendants expressed dissatisfaction with the quality of the finish on both homes - They paid the plaintiffs a sum somewhat less than had been agreed upon - The plaintiffs sued - After a summary trial, the trial judge awarded partial judgment to the plaintiffs and awarded costs to the defendants where an offer to settle had surpassed the amount of the award - The plaintiffs appealed, asserting that the trial judge erred (1) in dealing with the action by way of summary trial; and (2) in awarding costs against them for the whole of the litigation - The plaintiffs applied under s. 10(2)(d) of the Court of Appeal Civil Rules for an extension of time to file and serve their factum in the appeal - The British Columbia Court of Appeal, per Ryan, J.A., found that the first ground of appeal lacked merit - Given that finding, at issue was whether the plaintiffs required leave to appeal the question of costs if that was the only ground available to them to argue (Court of Appeal Act, s. 7(2)(b)) - Both the test for leave and that for an extension of time required an examination of the likelihood of the success of the appeal - The second ground of appeal raised by the plaintiffs could be determined on the basis of its likelihood of success - It was unnecessary to determine whether the plaintiffs required leave to appeal the matter of costs - See paragraphs 30 to 35.

Practice - Topic 9454.1

Appeals - Factum, case on appeal or appeal book - Extension of time for filing (incl. costs) - The defendants were developing two family homes - The defendants contracted with the plaintiffs to stucco the exterior of the homes - At the conclusion of the work, the defendants expressed dissatisfaction with the quality of the finish on both homes - They paid the plaintiffs a sum somewhat less than had been agreed upon - The plaintiffs sued - After a summary trial, the trial judge awarded partial judgment to the plaintiffs and awarded costs to the defendants where an offer to settle had surpassed the amount of the award - The plaintiffs appealed, asserting that the trial judge erred (1) in dealing with the action by way of summary trial; and (2) in awarding costs against them for the whole of the litigation - The plaintiffs applied under s. 10(2)(d) of the Court of Appeal Civil Rules for an extension of time to file and serve their factum in the appeal - The British Columbia Court of Appeal, per Ryan, J.A., dismissed the application - The criteria in an application to extend time to appeal were set out in Davies v. Canadian Imperial Bank of Commerce (BCCA 1987) - The only question of significance here was whether there was any merit in the appeal - There was no merit in the ground of appeal alleging that the trial judge was wrong to deal with the matter by way of summary trial - A trial judge was not required to send a summary trial to trial list only on the basis there were competing affidavits - With respect to the second ground of appeal, the plaintiffs failed to file a complete record - The plaintiffs failed to establish that there was any merit to that ground of appeal.

Cases Noticed:

Davies et al. v. Canadian Imperial Bank of Commerce et al. (1987), 15 B.C.L.R.(2d) 256 (C.A.), appld. [para. 22].

Sekhon et al. v. Armstrong et al. (2003), 183 B.C.A.C. 137; 301 W.A.C. 137; 2003 BCCA 318, refd to. [para. 23].

Hydro Fuels Inc. et al. v. Moran et al. (1993), 25 B.C.A.C. 139; 43 W.A.C. 139 (C.A.), refd to. [para. 23].

Harrison v. British Columbia et al. (2010), 286 B.C.A.C. 240; 484 W.A.C. 240; 2010 BCCA 220, refd to. [para. 27].

374787 B.C. Ltd. v. Great West Management Corp., [2007] B.C.A.C. Uned. 152; 73 B.C.L.R.(4th) 230; 2007 BCCA 516, refd to. [para. 28].

Heppner v. Schmand (1997), 90 B.C.A.C. 73; 147 W.A.C. 73; 29 B.C.L.R.(3d) 128 (C.A.), refd to. [para. 32].

Telus Communications Inc. et al. v. Telecommunications Workers Union et al., [2007] B.C.A.C. Uned. 41; 2007 BCCA 196, refd to. [para. 33].

Neufeld v. Foster, [2000] B.C.A.C. Uned. 147; 5 M.V.R.(4th) 276; 2000 BCCA 485, refd to. [para. 34].

Counsel:

D.T. Hill, for the appellant;

B.S. Sumel appeared on his own behalf.

This application was heard in Chambers, on March 22, 2011, at Vancouver, British Columbia, by Ryan, J.A., of the British Columbia Court of Appeal, who delivered the following reasons for judgment on November 10, 2011.