Dow v. Briggs, (1994) 51 B.C.A.C. 130 (CA)

• Judge: Taylor, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 03, 1994
• Jurisdiction: British Columbia
• Citations: (1994), 51 B.C.A.C. 130 (CA)

Dow v. Briggs (1994), 51 B.C.A.C. 130 (CA);

    84 W.A.C. 130

MLB headnote and full text

Hazel Dow (petitioner/respondent) v. Gary Edmund Briggs (respondent/appellant)

(CA018715)

Indexed As: Dow v. Briggs

British Columbia Court of Appeal

Taylor, J.A.

October 21, 1994.

Summary:

The petitioner applied under the Partition of Property Act and the Property Law Act for a declaration that she was entitled to a two-thirds interest in real property, and for orders that it be sold, the proceeds divided, accounts be taken, etc. The petitioner sought an order that the property be sold, inter alia, and that there be a reference to the Registrar for an accounting. A Chambers judge directed a sale of the property, a reference to the Registrar and declared an alleged option by the respondent null and void. The re­spondent appealed. The petitioner applied to dismiss the appeal on the ground that the order appealed from was interlocutory and therefore leave to appeal was required.

The British Columbia Court of Appeal, per Taylor, J.A., allowed the application in part.

Practice - Topic 5729

Judgments and orders - Final judgments and orders - What constitute - A Cham­bers judge's order finally disposed of only some of the issues raised, leaving others for later final disposition - The British Columbia Court of Appeal, per Taylor, J.A., held that where substantial rights were dealt with finally by an order which will irrevocably extinguish those rights unless appeal was successfully brought against it, the order should to that extent be regarded as final (and requiring no leave to appeal) - The question whether or not the hearing of the appeal should be delayed until the remaining issues in the action have been finally determined could then be dealt with on application in Chambers in the normal way - See para­graph 14.

Practice - Topic 8854

Appeals - Bar or loss of right of appeal - By abandonment of appeal - The British Columbia Court of Appeal, per Taylor, J.A., stated that where notice of appeal has been filed against an order which is inter­locutory only, and leave to appeal is not then obtained, it can fairly be said that the appeal of which notice has been given has been abandoned by failure to bring the necessary application for leave - See para­graph 2.

Practice - Topic 8875

Appeals - Leave to appeal - From allow­ance or dismissal of interlocutory applica­tion - [See Practice - Topic 5729 ].

Cases Noticed:

British Columbia Government Employees' Union v. Royal Cana­dian Legion, Hastings East Branch No. 185 (1989), 36 B.C.L.R.(2d) 308 (C.A.), not appld. [para. 11].

Hockin v. Bank of British Columbia (1989), 37 B.C.L.R.(2d) 139 (C.A.), not appld. [para. 11].

Evans v. Campbell Mitchell (1991), 11 B.C.A.C. 1; 22 W.A.C. 1; 3 C.P.C. 235 (C.A.), not appld. [para. 11].

Sudmant v. Campbell (1991), 5 B.C.A.C. 310; 11 W.A.C. 310 (C.A.), not appld. [para. 11].

Statutes Noticed:

Court of Appeal Act, S.B.C. 1982, c. 7, sect. 6.1 [para. 2]; sect. 6.1(2) [paras. 9, 12]; sect. 10(e) [para. 2]; sect. 29(a) [para. 2].

Rules of Court (B.C.), Court of Appeal Rules, rule 26(1) [para. 2].

Counsel:

James O. Anderson, for the petitioner/ respondent.

William J. Hamilton, for the respondent/ appellant;

This appeal was heard on October 3, 1994, at Vancouver, British Columbia, in Cham­bers before Taylor, J.A., of the British Columbia Court of Appeal, who delivered the following judgment on October 21, 1994.