Te Kiapilanoq v. British Columbia et al., 2008 BCCA 244

• Judge: Chiasson, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 29, 2008
• Jurisdiction: British Columbia
• Citations: 2008 BCCA 244;(2008), 256 B.C.A.C. 304 (CA)

Te Kiapilanoq v. B.C. (2008), 256 B.C.A.C. 304 (CA);

    431 W.A.C. 304

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. JN.035

Te Kiapilanoq (Capilano) also known as Gerald Johnston, suing on his own behalf as a Squamish Indian Hereditary Chief and person and on behalf of all Squamish Indian People (appellants/plaintiffs) v. Her Majesty the Queen in Right of the Province of British Columbia and the Attorney General of Canada, and Chiefs and Council of the Squamish Nation and Squamish Indian Band and Chief Gilbert Jacob, on his own behalf and on behalf of all members of the Squamish Nation and the Squamish Indian Band (respondents/defendants)

(CA035801; 2008 BCCA 244)

Indexed As: Te Kiapilanoq v. British Columbia et al.

British Columbia Court of Appeal

Chiasson, J.A.

June 11, 2008.

Summary:

Te Kiapilanoq brought an action on his own behalf and on behalf of all Squamish Indian people. A similar action was commenced by the Council on behalf of the Squamish Indian Band. Squamish Nation parties applied to be added as defendants and for an order that the action be struck.

The British Columbia Supreme Court, in a judgment reported at [2008] B.C.T.C. Uned. A03, ordered that the Squamish Nation parties be added as defendants and that the representative action of Te Kiapilanoq be struck out. Subsequently, three other persons were purportedly added as plaintiffs. The plaintiffs filed a Notice of Appeal. The Squamish Nation asserted that leave to appeal was required, submitting that the order did not finally dispose of the rights of the parties, and the order adding defendants was a ruling on a matter of practice and procedure. The plaintiffs asserted that the judge's order striking out the representative claim resulted in the de facto defeat of the communal claim, that adding the defendants was inextricably linked to striking out the representative claim, and that the order was therefore final. The application sought direction whether leave to appeal was required.

The British Columbia Court of Appeal, per Chiasson, J.A., held that the trial judge's orders were interlocutory and therefore leave to appeal was required .

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders or judgments - What constitutes - The British Columbia Court of Appeal, per Chiasson, J.A., adopted the approach taken by the court in Hayes Forest Services Limited v. Weyerhaeuser Company Limited (2008), in determining whether an order was interlocutory and required leave to appeal, noting that "The Court returned to the 'order' as opposed to the 'application' approach as the general rule" - The court further noted that the issue of "split trials" did not arise in this case - See paragraphs 10 to 12.

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - Te Kiapilanoq brought an action on his own behalf and on behalf of all Squamish Indian people - A similar action was commenced by the Council on behalf of the Squamish Indian Band - Squamish Nation parties applied to be added as defendants and for an order that the action be struck - The trial judge ordered that the Squamish Nation parties be added as defendants and that the representative action of Te Kiapilanoq be struck out - Subsequently, three other persons were purportedly added as plaintiffs - The plaintiffs filed a Notice of Appeal - The Squamish Nation asserted that leave to appeal was required, submitting that the order did not finally dispose of the rights of the parties, and the order adding defendants was a ruling on a matter of practice and procedure - The plaintiffs asserted that the order adding defendants was linked to the order striking the representative action and was final - The application sought direction whether leave to appeal was required - The British Columbia Court of Appeal, per Chiasson, J.A., held that the order adding defendants was interlocutory, requiring leave to appeal - The court noted that the plaintiffs' argument was similar to the argument that was rejected by Prowse, J.A., in Birrell v. Providence Health Care Society (2007) - As also noted in Birrell, an order adding defendants was procedural and came within s. 7(1)(b) of the Court of Appeal Act - See paragraphs 13 to 14.

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - Te Kiapilanoq brought an action on his own behalf and on behalf of all Squamish Indian people - A similar action was commenced by the Council on behalf of the Squamish Indian Band - Squamish Nation parties applied to be added as defendants and for an order that the action be struck - The trial judge ordered that the Squamish Nation parties be added as defendants and that the representative action of Te Kiapilanoq be struck out - Subsequently, three other persons were purportedly added as plaintiffs - The plaintiffs filed a Notice of Appeal - The Squamish Nation asserted that leave to appeal was required - The plaintiffs asserted that the judge's order striking out the representative action was final - The British Columbia Court of Appeal, per Chiasson, J.A., held that the order striking the representative action was interlocutory, requiring leave to appeal - The court noted several cases dealing with class proceedings that held an order staying a proposed class action was interlocutory and found them, "by analogy", to be instructive - The trial judge "specifically left open" Te Kiapilanoq's ability to pursue claims as an individual, and did not finally dispose of any community held rights - See paragraphs 16 to 18.

Practice - Topic 8871.2

Appeals - Leave to appeal - Whether required (incl. extension of time for determining) - [See both Practice - Topic 5782 ].

Cases Noticed:

Hayes Forest Services Ltd. v. Weyerhaeuser Co. (2008), 253 B.C.A.C. 238; 425 W.A.C. 238; 51 C.P.C.(6th) 221; 2008 BCCA 120, refd to. [para. 10].

Radke v. M.S. et al. (2005), 220 B.C.A.C. 91; 362 W.A.C. 91; 49 B.C.L.R.(4th) 82; 2006 BCCA 12, refd to. [para. 10].

Yaremy v. Insurance Corp. of British Columbia (2008), 256 B.C.A.C. 155; 431 W.A.C. 155; 2008 BCCA 235, refd to. [para. 12].

Kwon v. Jung Developments Inc. et al. (2008), 255 B.C.A.C. 86; 430 W.A.C. 86; 2008 BCCA 183, refd to. [para. 12].

Birrell v. Providence Health Care Society et al. (2007), 248 B.C.A.C. 21; 412 W.A.C. 21; 72 B.C.L.R.(4th) 326; 2007 BCCA 573, appld. [para. 13].

Richard v. British Columbia (2003), 192 B.C.A.C. 161; 315 W.A.C. 161; 17 B.C.L.R.(4th) 263; 2003 BCCA 448, refd to. [para. 16].

Samos Investments Inc. v. Pattison et al. (2004), 197 B.C.A.C. 153; 323 W.A.C. 153; 28 B.C.L.R.(4th) 285; 2004 BCCA 278, refd to. [para. 16].

Statutes Noticed:

Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 7(1)(b) [para. 13].

Counsel:

G.A. Kapelus, for the appellants;

J. Oliphant, for the respondent, Province of British Columbia;

I. Jackson, for the respondent, Attorney General of Canada;

M. Kirchner, for the respondent, Chiefs and Council of the Squamish Nation and Squamish Indian Band, and members.

This application for directions was heard in Chambers at Vancouver, British Columbia, on February 29, 2008, by Chiasson, J.A., of the British Columbia Court of Appeal, who delivered written reasons for judgment on June 11, 2008.