M.A.G. v. R.H.G., (2008) 257 B.C.A.C. 138 (CA)

• Judge: Chiasson, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 27, 2008
• Jurisdiction: British Columbia
• Citations: (2008), 257 B.C.A.C. 138 (CA);2008 BCCA 302

M.A.G. v. R.H.G. (2008), 257 B.C.A.C. 138 (CA);

    432 W.A.C. 138

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. JL.040

M.A.G. (respondent/plaintiff) v. R.H.G. (appellant/defendant)

(CA034642; 2008 BCCA 302)

Indexed As: M.A.G. v. R.H.G.

British Columbia Court of Appeal

Chiasson, J.A.

June 27, 2008.

Summary:

The appellant filed a notice of motion seeking short notice and applying to have "[t]his matter removed from the inactive list pursuant to s. 25(2) of the Court of Appeal Act". The parties consented to adjourn the application and the respondent purported to consent to the appeal not being dismissed as abandoned before the hearing. At the hearing, the parties again advised that the application was to be adjourned and provided a consent order stating: "1. The Appellant's appeal and the Respondent's cross-appeal shall not be dismissed pursuant to s. 25(5) of the Court of Appeal Act until the appellant's application is heard on a mutually agreeable date prior to July 31, 2008. 2. The appellant's application is adjourned generally."

The British Columbia Court of Appeal, per Chiasson, J.A., declined to sign the order as presented, but adjourned the application, to be heard on or before 31 July 2008. The court also drew to the parties' attention the fact there was no application before the court concerning the cross-appeal.

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 8854

Appeals - Bar or loss of right of appeal - By abandonment of appeal - [See second Practice - Topic 9205 ].

Practice - Topic 8907

Appeals - Procedure - Restoring appeal to general list - [See first Practice - Topic 9205 ].

Practice - Topic 9205

Appeals - Abandonment of appeal - Reinstatement of abandoned appeal - The appellant filed a notice of motion seeking short notice and applying to have "[t]his matter removed from the inactive list pursuant to s. 25(2) of the Court of Appeal Act" - The parties consented to adjourn the application and the respondent purported to consent to the appeal not being dismissed as abandoned before the hearing - At the hearing, the parties again advised that the application was to be adjourned and provided a consent order stating: "1. The Appellant's appeal and the Respondent's cross-appeal shall not be dismissed pursuant to s. 25(5) of the Court of Appeal Act until the appellant's application is heard on a mutually agreeable date prior to July 31, 2008. 2. The appellant's application is adjourned generally." - The British Columbia Court of Appeal, per Chiasson, J.A., declined to sign the consent order, but adjourned the application, to be heard on or before July 31, 2008 - Neither the parties nor the court could prevent the operation of s. 25(5) - The appeal and cross-appeal stood dismissed as abandoned - It was open to the chambers judge who heard the appellant's application to treat it as an application for reinstatement under s. 25(6); and also to address the cross-appeal in the absence of an application concerning it - However, it would be preferable if an application for reinstatement of the cross-appeal and applicable material in support were filed.

Practice - Topic 9205

Appeals - Abandonment of appeal - Reinstatement of abandoned appeal - Section 10(1) of the Court of Appeal Act authorized a justice to extend or shorten the time for bringing an appeal and s. 10(2)(d) enabled a justice to extend or shorten the time provided in the Act "for the doing of an act or taking of a proceeding" - The British Columbia Court of Appeal, per Chiasson, J.A., stated that these provisions were not applicable to an appeal that had by statute been dismissed (e.g., abandoned) - See paragraph 11.

Cases Noticed:

E.J.R. v. K.D.A. et al. (2004), 204 B.C.A.C. 181; 333 W.A.C. 181; 2004 BCCA 503, refd to. [para. 9].

Murphy v. Wynne et al. (2008), 250 B.C.A.C. 249; 416 W.A.C. 249; 2008 BCCA 26, refd to. [para. 9].

Convoy Supply Ltd. v. Drummond et al. (1996), 78 B.C.A.C. 27; 128 W.A.C. 27; 6 C.P.C.(4th) 5 (C.A.), refd to. [para. 10].

Olenga v. Insurance Corp. of British Columbia et al. (2007), 235 B.C.A.C. 315; 388 W.A.C. 315; 51 C.C.L.I.(4th) 161; 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. 12].

Melnikov v. Insurance Corp. of British Columbia (2008), 252 B.C.A.C. 262; 422 W.A.C. 262; 52 C.P.C.(6th) 410; 59 C.C.L.I.(4th) 11; 2008 BCCA 124, refd to. [para. 13].

Boaler v. Brar et al. (1997), 88 B.C.A.C. 243; 144 W.A.C. 243; 9 C.P.C.(4th) 48 (C.A.), refd to. [para. 14].

B.P.B. v. M.M.B. (2008), 253 B.C.A.C. 88; 425 W.A.C. 88; 2008 BCCA 52, refd to. [para. 14].

Statutes Noticed:

Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 10(1), sect. 10(2)(d) [para. 11]; sect. 25(2), sect. 25(5), sect. 25(6) [para. 8].

Counsel:

T.L. Jackson, for the appellant;

B.E. Bulmer, for the respondent.

This application was heard and decided at Vancouver, B.C., on June 27, 2008, by Chiasson, J.A., in Chambers, of the British Columbia Court of Appeal, who delivered the following written reasons on July 16, 2008.