Majormaki Holdings LLP v. Wong et al., (2008) 261 B.C.A.C. 212 (CA)

• Judge: Frankel, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 14, 2008
• Jurisdiction: British Columbia
• Citations: (2008), 261 B.C.A.C. 212 (CA);2008 BCCA 422

Majormaki Holdings LLP v. Wong (2008), 261 B.C.A.C. 212 (CA);

    440 W.A.C. 212

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. NO.003

Majormaki Holdings LLP (respondent/plaintiff) v. William James Wong (appellant/defendant)

(CA035947; 2008 BCCA 422)

Indexed As: Majormaki Holdings LLP v. Wong et al.

British Columbia Court of Appeal

Frankel, J.A.

October 28, 2008.

Summary:

In 2006, in a civil action against Wong and others, Majormaki Holdings obtained an ex parte order that included a Mareva injunction. On December 15, 2006, a further order was directed at Wong.

On December 3, 2007, the British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. G46, found Wong in contempt of the December 15, 2006, order. Wong filed an appeal.

On April 1, 2008, the British Columbia Supreme Court sentenced Wong to serve 21 days in custody. Wong filed an appeal and obtained an interim stay of the sentence. He applied for directions as to whether leave to appeal the sentence was required, an order granting leave, if necessary, a stay of the sentence and an extension of time for filing the appeal record and transcript.

The British Columbia Court of Appeal, per Levine, J.A., in a decision reported at [2008] B.C.A.C. Uned. 70, held that leave was not required, granted the stay of sentence and refused an extension of time to file the appeal record and transcript. Wong had to file his appeal record and transcript by June 2, 2008, and his factum and appeal book by July 2, 2008. He failed to do so. Majormaki applied to have the stay dissolved and the appeal dismissed as abandoned. On October 3, 2008, Wong moved for an extension of time up to and including November 17, 2008.

The British Columbia Court of Appeal, per Frankel, J.A., granted Wong's motion. Majormaki was entitled to its costs of both applications.

Courts - Topic 2110

Jurisdiction - Appellate jurisdiction - Single appellate judge - In 2006, in a civil action against Wong and others, Majormaki Holdings obtained an ex parte order that included a Mareva injunction - On December 15, 2006, a further order was directed at Wong - On December 3, 2007, Wong was found in contempt of that order - Wong filed an appeal from the contempt finding - On April 1, 2008, Wong was sentenced to serve 21 days in custody - Wong filed an appeal - On April 18, 2008, Levine, J.A., granted Wong's application for a stay of the sentence, but refused his pro-active application for an extension of time to file the appeal record and transcript - Levine, J.A., ordered Wong to file his "appeal record, appeal books and transcripts in accordance with the Rules" - Wong had to file his appeal record and transcript by June 2, 2008, and his factum and appeal book by July 2, 2008 - He failed to do so - On October 3, 2008, Wong moved for an extension of time - Majormaki asserted that a single judge in chambers lacked jurisdiction to grant Wong an extension because Levine, J.A., had already ordered him to comply with the filing requirements and it was evident that her decision was final - The British Columbia Court of Appeal, per Frankel, J.A., held that it had jurisdiction to entertain Wong's application - The issue turned on the interpretation of s. 10(2)(d) of the Court of Appeal Act - While it was possible to read the section in the restrictive manner suggested by Majormaki, this was incompatible with the legislative purpose - Section 10(2)(d) was enacted to confer prehearing case-management jurisdiction on a chambers judge regarding the time for filing necessary materials or other matters - This supervisory function was more efficiently and economically handled by a single judge - Even where a chambers judge's order left a litigant in the position of having to comply with the time requirements, a single judge continued to have jurisdiction to extend or shorten that time - See paragraphs 16 to 23.

Criminal Law - Topic 6208

Sentencing - Appeals - Variation of sentence - Extension of time to appeal (incl. service) - In 2006, in a civil action against Wong and others, Majormaki Holdings obtained an ex parte order that included a Mareva injunction - On December 15, 2006, a further order was directed at Wong - On December 3, 2007, Wong was found in contempt of that order - Wong filed an appeal from the contempt finding - On April 1, 2008, Wong was sentenced to serve 21 days in custody - Wong filed an appeal - On April 18, 2008, Levine, J.A., granted Wong's application for a stay of the sentence, but refused his pro-active application for an extension of time to file the appeal record and transcript - Levine, J.A., ordered Wong to file his "appeal record, appeal books and transcripts in accordance with the Rules" - Wong had to file his appeal record and transcript by June 2, 2008, and his factum and appeal book by July 2, 2008 - He failed to do so - On October 3, 2008, Wong moved for an extension of time up to and including November 17, 2008 - Majormaki opposed the motion, but conceded that it would suffer no prejudice, provided that the appeal proceeded on an expedited basis - The British Columbia Court of Appeal, per Frankel, J.A., granted the motion - While Wong appeared to have made a conscious decision to "drag his feet", given that this was comparable to a criminal sentence appeal and that a previous judge had viewed the appeal as arguable, he should be allowed to proceed, provided that his appeal from his contempt finding did not prevent the sentence appeal from being heard on an expedited basis - The extension was granted with the condition that Wong abandon his finding of contempt appeal before he was to be permitted to file his material on the sentence appeal - See paragraphs 24 to 26.

Practice - Topic 7029.3

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Delay or prolonging proceedings - In 2006, in a civil action against Wong and others, Majormaki Holdings obtained an ex parte order that included a Mareva injunction - On December 15, 2006, a further order was directed at Wong - On December 3, 2007, Wong was found in contempt of that order - Wong filed an appeal from the contempt finding - On April 1, 2008, Wong was sentenced to serve 21 days in custody - Wong filed an appeal - On April 18, 2008, Levine, J.A., granted Wong's application for a stay of the sentence, but refused his pro-active application for an extension of time to file the appeal record and transcript - Levine, J.A., ordered Wong to file his "appeal record, appeal books and transcripts in accordance with the Rules" - Wong had to file his appeal record and transcript by June 2, 2008, and his factum and appeal book by July 2, 2008 - He failed to do so - Majormaki applied to have the stay dissolved and the appeal dismissed as abandoned - On October 3, 2008, Wong moved for an extension of time up to and including November 17, 2008 - The British Columbia Court of Appeal, per Frankel, J.A., granted Wong's motion - Both applications were before the court due to Wong's inaction - He did nothing to perfect his appeal in the six months following Levine, J.A.'s order - Majormaki acted appropriately in making its application - In those circumstances, Majormaki was entitled to its costs of both applications - See paragraph 37.

Practice - Topic 7040

Costs - Party and party costs - Entitlement to party and party costs - Unsuccessful party - [See Practice - Topic 7029.3 ].

Practice - Topic 9311

Appeals - Perfecting appeals - Time for - Extension of - [See Criminal Law - Topic 6208 ].

Practice - Topic 9454.1

Appeals - Factum, case on appeal or appeal book - Extension of time for filing (incl. costs) - [See Criminal Law - Topic 6208 and Practice - Topic 7029.3 ].

Cases Noticed:

Farmers Insurance Co. of Oregon v. Brown (2005), 218 B.C.A.C. 285; 359 W.A.C. 285; 2005 BCCA 577, dist. [para. 17].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 19].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 21].

Heinz (H.J.) Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441; 347 N.R. 1; 2006 SCC 13, refd to. [para. 21].

Tejani v. Institute of Chartered Accountants of British Columbia, [2000] B.C.A.C. Uned. 55; 2000 BCCA 123, dist. [para. 25].

Haldorson et al. v. Coquitlam (City) (2000), 149 B.C.A.C. 197; 244 W.A.C. 197; 3 C.P.C.(5th) 225; 2000 BCCA 672, refd to. [para. 27].

Redpath v. Redpath et al. (2008), 260 B.C.A.C. 248; 439 W.A.C. 248; 2008 BCCA 400, refd to. [para. 32].

R. v. Reed (R.R.) (1998), 102 B.C.A.C. 157; 166 W.A.C. 157 (C.A.), refd to. [para. 35].

Statutes Noticed:

Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 10(2)(d) [para. 13].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 21].

Counsel:

H.A. Mickelson, Q.C., and J.A. Manson, for the appellant;

B.B. Olthuis and J.D. Hughes, for the respondent.

These applications were heard in Chambers, at Vancouver, British Columbia, on October 14, 2008, by Frankel, J.A., of the British Columbia Court of Appeal, who delivered the following judgment on October 28, 2008.