Moulton Contracting Ltd. v. British Columbia et al., 2010 BCCA 350

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Frankel, J.A.
• Citation: 2010 BCCA 350,(2010), 296 B.C.A.C. 103 (CA)
• Date: 18 June 2010

Moulton Contracting Ltd. v. B.C. (2010), 296 B.C.A.C. 103 (CA);

    503 W.A.C. 103

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JL.022

Moulton Contracting Ltd. (respondent/plaintiff) v. Sally Behn, Susan Behn, Richard Behn, Greg Behn, Rupert Behn, Lovey Behn, Mary Behn, and George Behn (appellants/defendants) and Her Majesty the Queen in Right of the Province of British Columbia (respondent/defendant/third party) and Chief Liz Logan, on behalf of herself and all other Members of the Fort Nelson First Nation and the said Fort Nelson First Nation (respondents/defendants)

(CA038107; 2010 BCCA 350)

Indexed As: Moulton Contracting Ltd. v. British Columbia et al.

British Columbia Court of Appeal

Frankel, J.A.

June 18, 2010.

Summary:

The plaintiff held a provincial permit to conduct logging operations on aboriginal land. That land included Behn family territory. The plaintiff sued the Behns for damages for allegedly blockading access to the logging lands. The Behns filed a statement of defence challenging the validity of the plaintiff's permit. The plaintiff moved to strike the statement of defence.

The British Columbia Supreme Court, in a decision reported [2010] B.C.T.C. Uned. 506, allowed the motion. The Behns wanted to appeal. They applied for directions as to whether they needed leave to appeal.

The British Columbia Court of Appeal, per Frankel, J.A., ruled that leave was not needed where the order at first instance was a final order.

Practice - Topic 5729

Judgments and orders - Final judgments and orders - What constitute - [See Practice -Topic 8871.2 ].

Practice - Topic 8871.2

Appeals - Leave to appeal - Whether required (incl. extension of time for determining) - The plaintiff held a provincial permit to conduct logging operations on aboriginal land - That land included Behn family territory - The plaintiff sued the Behns for damages for allegedly blockading access to the logging lands - The Behns filed a statement of defence challenging the validity of the plaintiff's permit - A motion judge struck a number of paragraphs in the statement of defence, with the consequence that the Behns were precluded from challenging the authority under which the plaintiff said it acted - The Behns wanted to appeal - At issue was whether they needed leave - The British Columbia Court of Appeal, per Frankel, J.A., ruled that leave was not required - Striking out a defence could not be characterized as procedural or interlocutory - Striking a defence determined a substantive issue in litigation just as much as striking a cause of action - See paragraphs 1 to 19.

Cases Noticed:

Forest Glen Wood Products Ltd. v. British Columbia (Minister of Forests) (2008), 262 B.C.A.C. 183; 441 W.A.C. 183; 85 B.C.L.R.(4th) 330; 2008 BCCA 480, consd. [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. 11].

Te Kiapilanoq v. British Columbia et al. (2008), 256 B.C.A.C. 304; 431 W.A.C. 304; 2008 BCCA 244, dist. [para. 13].

Holland v. Marshall et al. (2008), 261 B.C.A.C. 102; 440 W.A.C. 102; 2008 BCCA 456, consd. [para. 15].

Counsel:

R.J.M. Janes and K.M. Brooks, for the appellants;

C.F. Willms and K.A.J. Grist, for the respondent, Moulton Contracting Ltd.;

K.J. Phillips, for the respondent, Her Majesty the Queen;

A.T. Rana, for the respondents, Chief Liz Logan and others.

This application was heard in Chambers at Vancouver, B.C., on June 18, 2010, by Frankel, J.A., of the British Columbia Court of Appeal, who delivered the following decision orally on June 18, 2010, with written reasons filed on July 12, 2010.