Moore v. Moore, 2012 BCCA 266

• Judge: Bennett, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 24, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 266;(2012), 324 B.C.A.C. 79 (CA)

Moore v. Moore (2012), 324 B.C.A.C. 79 (CA);

    551 W.A.C. 79

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JL.040

Julie Moore (respondent/plaintiff) v. Timothy Sean Moore (appellant/defendant)

(CA039865; 2012 BCCA 266)

Indexed As: Moore v. Moore

British Columbia Court of Appeal

Bennett, J.A.

May 25, 2012.

Summary:

Dorgan, J., pronounced Blakemore's Will in solemn form and cancelled Moore's caveat filed in the action. Moore appealed and applied for indigent status. The respondent applied for an order compelling Moore to post $5,000 security for costs within seven days of the order. She also sought $1,500 costs of the application, payable forthwith. Moore had filed his notice of appeal two weeks late. The Court of Appeal permitted him to apply for an extension of time to file his notice of appeal and supporting affidavit at the same time as the first application, and also heard the second application as the issues were essentially the same as those already before the court.

The British Columbia Court of Appeal, per Bennett, J.A., dismissed the application for an extension of time for leave to appeal, holding that the appeal was without merit and it was not in the interests of justice to make such an order. The court stated that, if it had granted an extension, it would not have granted indigent status, also because the appeal was without merit and it was not in the interests of justice; further, it would have ordered security for costs on the basis that the appeal was without merit and there was very little, if any, likelihood that the opposing party would otherwise be able to recover costs, given that Moore had over $16,000 in unpaid costs orders against him. The court ordered Moore to pay $1,500 costs of the application, forthwith.

Practice - Topic 7372

Costs - Costs of interlocutory proceedings - Payment forthwith - [See Practice - Topic 8206.2 ].

Practice - Topic 8872

Appeals - Leave to appeal - Extension of time for application for - The British Columbia Court of Appeal, per Bennett, J.A., set out the legal test for an extension of time to appeal or seek leave to appeal - See paragraphs 18 to 20.

Practice - Topic 8872

Appeals - Leave to appeal - Extension of time for application for - [See Practice - Topic 8206.2 ].

Practice - Topic 8206.2

Costs - Security for costs - Security for costs of an appeal - Application - Considerations - Dorgan, J., pronounced 2003 Blakemore's Will in solemn form and cancelled Moore's caveat filed in the action - Moore's mother and the respondent executor were both 50% beneficiaries under the Will - Under a 2001 Will, Moore, his mother and the respondent had each stood to inherit one-third of the estate - Blackmore's solicitor deposed that Blackmore had disinherited Moore (her grandson) after discovering that he had sold some of her possessions without accounting to her for the proceeds - Moore appealed and applied for indigent status - The respondent applied for an order compelling Moore to post $5,000 security for costs - She also sought $1,500 costs of the application, payable forthwith - Moore had filed his notice of appeal two weeks late - He applied for an extension of time to file his notice of appeal and supporting affidavit - The British Columbia Court of Appeal, per Bennett, J.A., dismissed the application for an extension of time for leave to appeal - As Dorgan, J., found, there was ample evidence of testamentary capacity and no evidence to the contrary - Moore's appeal was bound to fail - The new evidence that he proposed to file could, with due diligence, have been obtained and presented to Dorgan, J. - Moore had also launched two actions against his mother - The first had been dismissed - Costs orders against him had not been paid - While Moore had mistakenly relied on wrong advice from the court registry regarding the time for filing, it was not in the interests of justice to grant an extension and thereby prolong this meritless litigation - If the court had granted an extension, it would not have granted indigent status on the same basis (i.e., the appeal was without merit and it was not in the interests of justice to make such an order); further, the court would have ordered security for costs on the basis that the appeal was without merit and there was very little, if any, likelihood that the opposing party would otherwise be able to recover costs, given that Moore had over $16,000 in unpaid costs orders against him - The court ordered Moore to pay $1,500 costs of the application, forthwith.

Practice - Topic 8208

Costs - Security for costs - Security for costs of an appeal - Grounds for - General - The British Columbia Court of Appeal, per Bennett, J.A., stated that "A chambers justice may order an appellant to advance security for costs pursuant to s. 24 of the Court of Appeal Act, R.S.B.C. 1996, c. 77. ... The onus is on the appellant to establish that the interests of justice require that security not be ordered ..." - See paragraphs 24 and 27.

Practice - Topic 8894

Appeals - Parties - Indigent status - The British Columbia Court of Appeal, per Bennett, J.A., stated that "The criteria to be satisfied upon an application for indigent status are derived from Rule 56 of the Court of Appeal Rules, BC Reg 297/2001. Rule 56 serves to prevent arguably meritorious appeals from being heard merely because the moving litigants are impecunious. ... A litigant is indigent when possessed of some means, but such scanty means that he or she is needy or poor. The question to be answered is whether the litigant's 'financial situation is such that requiring him to pay the fees would deprive him of the necessaries of life or effectively deny him access to the courts'. Significant assets may defeat an application for indigent status irrespective of income. Where a litigant's appeal has no chance of success or is bound to fail, or even if it has no reasonable basis or prospect of success, indigent status will not be granted ..." - See paragraphs 21 to 23.

Practice - Topic 8894

Appeals - Parties - Indigent status - [See Practice - Topic 8206.2 ].

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - [See first Practice - Topic 8872 ].

Cases Noticed:

Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R.(2d) 256 (C.A.), refd to. [para. 18].

Haldorson et al. v. Coquitlam (City) (2000), 149 B.C.A.C. 197; 244 W.A.C. 197; 2000 BCCA 672, consd. [para. 19].

Perren v. Lalari (2009), 280 B.C.A.C. 197; 474 W.A.C. 197; 2009 BCCA 564, consd. [para. 19].

Trautmann v. Baker, [1997] B.C.A.C. Uned. 44 (C.A.), refd to. [para. 21].

Duszynska v. Duszynski (2001), 149 B.C.A.C. 153; 244 W.A.C. 153; 2001 BCCA 155, refd to. [para. 21].

Terrapin Mortgage Investment Corp. v. Spetifore et al. (2011), 298 B.C.A.C. 160; 505 W.A.C. 160; 2011 BCCA 4, refd to. [para. 21].

Kawana v. Sung et al., [2010] B.C.A.C. Uned. 78; 2010 BCCA 414, refd to. [para. 21].

Rapton v. Superintendent of Motor Vehicles (B.C.) (2011), 299 B.C.A.C. 278; 508 W.A.C. 278; 2011 BCCA 71, refd to. [para. 21].

Creative Salmon Co. v. Staniford (2007), 242 B.C.A.C. 299; 400 W.A.C. 299; 2007 BCCA 285, refd to. [para. 25].

Lu v. Mao, [2006] B.C.A.C. Uned. 142; 2006 BCCA 560, refd to. [para. 26].

Southeast Toyota Distributors Inc. v. Branch et al. (1997), 99 B.C.A.C. 12; 162 W.A.C. 12; 45 B.C.L.R.(3d) 163 (C.A.), refd to. [para. 27].

Aikenhead et al. v. Jenkins (2002), 166 B.C.A.C. 293; 271 W.A.C. 293; 2002 BCCA 234, refd to. [para. 27].

Recchia v. McIntosh et al. (2002), 175 B.C.A.C. 16; 289 W.A.C. 16; 2002 BCCA 445, refd to. [para. 27].

Daymax Management Inc. v. WHA 820 Holdings Ltd. - see WHA 820 Holdings Ltd. et al. v. Daymax Management Inc. et al.

WHA 820 Holdings Ltd. et al. v. Daymax Management Inc. et al. (2004), 202 B.C.A.C. 191; 331 W.A.C. 191; 2004 BCCA 414, refd to. [para. 27].

Counsel:

Appellant appeared on his own behalf;

M.R. Mark, for the respondent.

These applications were heard in Chambers at Vancouver, B.C., on May 24, 2012, by Bennett, J.A., of the British Columbia Court of Appeal, who delivered the following oral reasons for judgment on May 25, 2012.