Perren v. Lalari, (2009) 280 B.C.A.C. 197 (CA)

• Judge: Prowse, Newbury and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 09, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 280 B.C.A.C. 197 (CA);2009 BCCA 564

Perren v. Lalari (2009), 280 B.C.A.C. 197 (CA);

    474 W.A.C. 197

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. DE.046

Michelle Lee Perren (respondent/plaintiff) v. Kashmir Singh Lalari (appellant/defendant)

(CA036410; 2009 BCCA 564)

Indexed As: Perren v. Lalari

British Columbia Court of Appeal

Prowse, Newbury and Lowry, JJ.A.

December 9, 2009.

Summary:

The plaintiff was awarded damages arising out of a motor vehicle accident (see [2008] B.C.T.C. Uned. 741; 2008 BCSC 1117). The defendant was represented by counsel retained by his insurer, the Insurance Corporation of B.C. (I.C.B.C.), who filed a notice of appeal on August 29, 2008. The issue raised on the appeal concerned the award for lost earning capacity. The defendant failed to file and serve the material necessary to perfect the appeal in accordance with the time limits in the Court of Appeal Rules. The transcripts and defendant's record were required to be filed and served no later than October 28, 2008, and factum and appeal book, by November 27, 2008. On June 10, 2009, the defendant moved to extend the times.

The British Columbia Court of Appeal, per Frankel, J.A., in a decision reported at (2009), 275 B.C.A.C. 130; 465 W.A.C. 130; 2009 BCCA 373, dismissed the motion. It was not in the interests of justice to grant the relief, given the reasons for the delay. Both I.C.B.C. and its counsel chose to ignore the court's Rules for an inordinate period of time. The court exercised its authority under ss. 10(2)(e) and 28(a) of the Court of Appeal Act, and dismissed the appeal as abandoned. The defendant appealed.

The British Columbia Court of Appeal, Lowry, J.A., dissenting, allowed the appeal. The "interests of justice" was not a factor which was to be applied independently of the other factors set out by the court in Davies v. Canadian Imperial Bank of Commerce (1987). The court extended the time to file the appeal record, transcripts, appeal books, transcript extracts and factum to within a week from the date of the release of these reasons for judgment.

Barristers and Solicitors - Topic 659

Duty to court - Duty to make timely applications - [See Practice - Topic 9454.1 ].

Barristers and Solicitors - Topic 661

Duty to court - General principles - Duty to comply with Rules of Court - [See Practice - Topic 9454.1 ].

Practice - Topic 8864

Appeals - Quashing or dismissal of appeals - Delay - [See Practice - Topic 9454.1 ].

Practice - Topic 9311

Appeals - Perfecting appeals - Time for - Extension of - [See Practice - Topic 9454.1 ].

Practice - Topic 9340

Appeals - Perfecting appeals - Failure to perfect appeal - Powers of court - [See Practice - Topic 9454.1 ].

Practice - Topic 9454.1

Appeals - Factum, case on appeal or appeal book - Extension of time for filing (incl. costs) - The plaintiff was awarded damages arising out of a motor vehicle accident - The defendant was represented by counsel retained by his insurer, the Insurance Corporation of B.C. (I.C.B.C.), who filed a notice of appeal on August 29, 2008 - The issue raised on the appeal concerned an award for lost earning capacity - The defendant failed to file and serve the material necessary to perfect the appeal in accordance with the time limits in the Court of Appeal Rules - The transcripts and defendant's record were required to be filed and served no later than October 28, 2008, and factum and appeal book, by November 27, 2008 - On June 10, 2009, the defendant moved to extend the times - The chambers judge dismissed the motion because to do otherwise would be contrary to the interests of justice - The British Columbia Court of Appeal allowed the appeal - The chambers judge failed to accord any significance to his findings that the defendant at all times had a bona fide intention to appeal, that the plaintiff was informed of that intention in a timely manner, that there was no prejudice to the plaintiff in granting an extension, and that there was merit to the appeal - It was also relevant that the issue raised on the appeal was of significance to the practice - It was difficult to characterize the actions/inaction of counsel or of I.C.B.C. as deliberate - The "interests of justice" was not a factor which was to be applied independently of the other factors set out by the court in Davies v. Canadian Imperial Bank of Commerce (1987) - See paragraphs 28 to 38.

Cases Noticed:

Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R.(2d) 256 (C.A.), appld. [para. 8].

Redpath v. Redpath et al. (2008), 260 B.C.A.C. 248; 439 W.A.C. 248; 84 B.C.L.R.(4th) 77; 2008 BCCA 400, affd. [2009] B.C.A.C. Uned. 29; 2009 BCCA 168, refd to. [para. 8].

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. 9].

Redpath v. Redpath, [2009] B.C.A.C. Uned. 29; 2009 BCCA 168, refd to. [para. 10].

Hannigan v. Hannigan (2005), 215 B.C.A.C. 219; 355 W.A.C. 219; 43 B.C.L.R.(4th) 259; 2005 BCCA 408, affd. (2006), 226 B.C.A.C. 100; 373 W.A.C. 100; 33 C.P.C.(6th) 205; 2006 BCCA 167, refd to. [para. 14].

S.K.C. v. G.Y.F. (2003), 182 B.C.A.C. 184; 300 W.A.C. 184; 2003 BCCA 345, refd to. [para. 15].

Clock Holdings Ltd. v. Braich Estate et al. (2009), 271 B.C.A.C. 267; 458 W.A.C. 267; 70 C.P.C.(6th) 203; 2009 BCCA 269, refd to. [para. 15].

Hansen (Trustee of) v. Hansen (1988), 71 C.B.R.(N.S.) 79 (B.C.C.A.), refd to. [para. 15].

Hydro Fuels Inc. et al. v. Moran et al. (1993), 25 B.C.A.C. 139; 43 W.A.C. 139 (C.A.), refd to. [para. 15].

Holmes v. Matkovich (2008), 251 B.C.A.C. 149; 420 W.A.C. 149; 2008 YKCA 2, refd to. [para. 15].

Statutes Noticed:

Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 10(2) [para. 9].

Counsel:

D.C. Quinlan and V.G. Critchley, for the appellant;

K. Duncan, for the respondent.

This appeal was heard at Vancouver, British Columbia, on November 19, 2009, by Prowse, Newbury and Lowry, JJ.A., of the British Columbia Court of Appeal.

On December 9, 2009, the following judgment and reasons for judgment of the Court was delivered, and the following opinions were filed:

Lowry, J.A., dissenting - see paragraphs 1 to 27;

Prowse, J.A. (Newbury, J.A., concurring) - see paragraphs 28 to 39.