Hollander et al. v. Mooney et al., (2013) 334 B.C.A.C. 149 (CA)

• Judge: D. Smith, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 14, 2013
• Jurisdiction: British Columbia
• Citations: (2013), 334 B.C.A.C. 149 (CA);2013 BCCA 83

Hollander v. Mooney (2013), 334 B.C.A.C. 149 (CA);

    572 W.A.C. 149

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. MR.006

Gina Marie Hollander and Joy Evelyn Mooney, Executor of the Will of Mark Anthony Mooney, Deceased (appellants/plaintiffs) v. Eldon Bernard Mooney, also known as Elden Bernard Mooney, Deceased (defendant) and Gail Anita Nelson and Sasha-Marie Shannon Wise (respondents/defendants) and Public Guardian and Trustee of British Columbia (respondent)

(CA040586; 2013 BCCA 83)

Indexed As: Hollander et al. v. Mooney et al.

British Columbia Court of Appeal

D. Smith, J.A.

February 26, 2013.

Summary:

The appellant plaintiffs and the respondent defendants filed cross-applications in regard to an order made in proceedings under the Patients Property Act. Those proceedings related to issues about the person and property of Mooney, who had suffered a head injury and was disabled. After the action was ostensibly settled, but before the settlement was implemented, Mooney died. The defendants successfully applied for an order that the settlement was binding and enforceable. The plaintiffs appealed the order. The defendants applied for a stay of the appeal pending a final order. The plaintiffs cross-applied for an order effectively dismissing the defendants' application.

The British Columbia Court of Appeal, per D. Smith, J.A., granted the defendants' application for a stay and dismissed the cross-application.

Courts - Topic 2110

Jurisdiction - Appellate jurisdiction - Single appellate judge - [See Practice - Topic 9402 ].

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - [See Practice - Topic 9402 ].

Practice - Topic 9402

Appeals - Stay of appeal - When available - The appellant plaintiffs and the respondent defendants filed cross-applications in regard to an order made in proceedings under the Patients Property Act (the December 28, 2012 order) - The British Columbia Court of Appeal, per D. Smith, J.A., granted the defendants' application for a stay of the appeal pending a final order - The order sought might be granted by a single justice under the Court of Appeal Act, ss. 10(2)(a) and (b) - The issue on appeal (namely whether the parties had reached a binding settlement), if resolved in favour of the plaintiffs, would not end the litigation - "[A]n appeal from the December 28, 2012 order would amount to 'litigation in slices' and would not be an effective management and use of judicial resources for what could develop into multiple appeals in a single action. ... The December 28, 2012 order is an interlocutory order in the sense that an appeal from that order, even if successful, would not resolve the action which would still have to proceed to trial. The appeal would simply delay the completion of the action and the granting of a final order." - See paragraphs 18 to 28.

Cases Noticed:

Taga Ku Development Corp. et al. v. Yukon Territory et al. (1995), 55 B.C.A.C. 266; 90 W.A.C. 266 (Yuk. C.A.), refd to. [para. 18].

Hockin v. Bank of British Columbia (1989), 37 B.C.L.R.(2d) 139; 35 C.P.C.(2d) 250 (B.C.C.A.), refd to. [para. 19].

Digital.Doc Services (Canada) Inc. et al. v. Future Shop Ltd. et al., [1997] B.C.T.C. Uned. A68; 49 B.C.L.R.(3d) 78 (S.C.), refd to. [para. 25].

Bacchus Agents (1981) Ltd. v. Dandurand (Philippe) Wines Ltd. et al. (2002), 164 B.C.A.C. 300; 268 W.A.C. 300; 2002 BCCA 138, refd to. [para. 25].

Bacchus Agents (1981) Ltd. v. Philippe Dandurand Wines Limited - see Bacchus Agents (1981) Ltd. v. Dandurand (Philippe) Wines Ltd. et al.

Statutes Noticed:

Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 10(2)(a), sect. 10(2)(b) [para. 20].

Counsel:

H. Low, for the appellants;

R. DeFilippi, for the respondents, G. Nelson and S. Wise;

R. Lee, for the respondent, Public Guardian and Trustee.

This application for a stay of the appeal and the cross-application were heard at Vancouver, British Columbia, on February 14, 2013, before D. Smith, J.A., in Chambers, of the British Columbia Court of Appeal, who delivered the following reasons for judgment, dated February 26, 2013.