B.P.B. v. M.M.B., (2008) 253 B.C.A.C. 88 (CA)

• Judge: Frankel, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 19, 2007
• Jurisdiction: British Columbia
• Citations: (2008), 253 B.C.A.C. 88 (CA);2008 BCCA 52

B.P.B. v. M.M.B. (2008), 253 B.C.A.C. 88 (CA);

    425 W.A.C. 88

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. FE.020

B.B. (respondent/plaintiff) v. M.B. (appellant/defendant)

(CA034317; 2008 BCCA 52)

Indexed As: B.P.B. v. M.M.B.

British Columbia Court of Appeal

Frankel, J.A.

February 8, 2008.

Summary:

The plaintiff sued her father for damages for breach of fiduciary duty and for physical and emotional abuse. A default judgment on liability was entered. A damages trial was held.

The British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. Uned. 698 (S.C.), and supplementary reasons reported at [2006] B.C.T.C. 1027, awarded the plaintiff $396,343.70 plus management fees of $18,000. The defendant appealed against the award. The plaintiff cross-appealed. There was delay. The appeal and the cross-appeal were placed on the inactive list. The defendant moved for removal of his appeal from the inactive list.

The British Columbia Court of Appeal, per Frankel, J.A., in chambers, allowed the motion. The court ordered that both the appeal and the cross-appeal be removed from the inactive list. Costs to the plaintiff.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - The defendant appealed against a damage award of $396,343.70 plus management fees of $18,000 - The plaintiff cross-appealed - There was a 16-month delay due partly to "a lack of alacrity and diligence" on the part of both the defendant and his counsel - The appeal and the cross-appeal were placed on the inactive list - In the meantime, the plaintiff was paid $400,000 as a result of execution proceedings - The British Columbia Court of Appeal, per Frankel, J.A., in chambers, upon the defendant's motion to reactivate, reactivated both the appeal and the cross-appeal - The court awarded the costs of the motion to the plaintiff where she had legitimate arguments to oppose the defendant's motion - See paragraph 41.

Practice - Topic 8907

Appeals - Procedure - Restoring appeal to general list - The defendant appealed against a damage award of $396,343.70 plus management fees of $18,000 - The formal order had been entered on November 2, 2006 - The plaintiff cross-appealed - There was a 16-month delay due partly to "a lack of alacrity and diligence" on the part of both the defendant and his counsel - The appeal and the cross-appeal were placed on the inactive list - In the meantime, the plaintiff was paid $400,000 as a result of execution proceedings - The British Columbia Court of Appeal, per Frankel, J.A., in chambers, reactivated both the appeal and the cross-appeal - As for the appeal, while the delay was 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 - The defendant was serious about pursuing his appeal - There was no behaviour designed to frustrate the plaintiff's interests - As for the cross-appeal, if the defendant was permitted to challenge the damage award as too high, then it was only fair that the plaintiff should be able to challenge it as being too low - See paragraphs 24 to 40.

Cases Noticed:

Derby Reach Restaurant Ltd. v. Odyssey Holdings Ltd. et al. (1994), 50 B.C.A.C. 58; 82 W.A.C. 58 (C.A.), refd to. [para. 21].

Murphy v. Wynne et al. (2008), 250 B.C.A.C. 249; 416 W.A.C. 249; 2008 BCCA 26, consd. [para. 24].

Olenga v. Insurance Corp. of British Columbia et al. (2007), 235 B.C.A.C. 315; 388 W.A.C. 315; 2007 BCCA 87, affd. (2007), 239 B.C.A.C. 320; 396 W.A.C. 320; 2007 BCCA 256, leave to appeal refused (2007), 379 N.R. 396 (S.C.C.), refd to. [para. 25].

Rossmo v. Vancouver Police Board et al., [2003] B.C.A.C. Uned. 52; 2003 BCCA 234, consd. [para. 29].

Hannigan v. Hannigan (2006), 226 B.C.A.C. 100; 373 W.A.C. 100; 2006 BCCA 167, refd to. [para. 32].

Ravnyshyn et al. v. Drys (2007), 245 B.C.A.C. 127; 405 W.A.C. 127; 2007 BCCA 400, leave to appeal refused (2008), 384 N.R. 393 (S.C.C.), consd. [para. 34].

Boaler v. Brar et al. (1997), 88 B.C.A.C. 243; 144 W.A.C. 243 (C.A.), refd to. [para. 36].

Jacobsen v. Lumberland Building Materials Ltd. et al. (1998), 115 B.C.A.C. 72; 189 W.A.C. 72 (C.A.), refd to. [para. 41].

Cimolai v. Hall et al., [2006] B.C.A.C. Uned. 60; 2006 BCCA 274, refd to. [para. 41].

Counsel:

J.O. Richardson, for the appellant;

J.H. Oland, for the respondent.

This motion was heard at Vancouver, B.C., on December 19, 2007, by Frankel, J.A., in chambers, of the British Columbia Court of Appeal, who delivered the following decision at Vancouver, B.C., on February 8, 2008.