Price (J.W.) Construction Ltd. v. Elan Construction Ltd., (2002) 167 B.C.A.C. 201 (CA)

• Judge: Rowles, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 11, 2002
• Jurisdiction: British Columbia
• Citations: (2002), 167 B.C.A.C. 201 (CA);2002 BCCA 32

Price Constr. Ltd. v. Elan Constr. (2002), 167 B.C.A.C. 201 (CA);

    274 W.A.C. 201

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. JA.041

J.W. Price Construction Ltd. (plaintiff/appellant) v. Elan Construction Limited (defendant/respondent)

(CA029291; 2002 BCCA 32)

Indexed As: Price (J.W.) Construction Ltd. v. Elan Construction Ltd.

British Columbia Court of Appeal

Rowles, J.A.

January 17, 2002.

Summary:

The British Columbia Supreme Court, in a decision reported at [2001] B.C.T.C. 1125, awarded the plaintiff judgment against the defendant, plus interest and "costs at scale 3". The formal order was entered. The plaintiff subsequently applied for increased costs.

The British Columbia Supreme Court, in a decision reported at [2001] B.C.T.C. 1826, ruled that it was without jurisdiction to consider the motion (functus). The plaintiff sought to appeal the dismissal of its motion. Directions were sought as to whether leave to appeal was required.

The British Columbia Court of Appeal, per Rowles, J.A., ruled that leave to appeal was required. Rowles, J.A., granted leave to appeal.

Editor's Note: for a prior related case, see [2000] B.C.T.C. Uned. 413.

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders or judgments - What con­stitutes - A trial judgment awarded the plaintiff costs "at scale 3" - The formal order was entered - The plaintiff subse­quently sought increased costs - The trial judge ruled she was without jurisdic­tion (functus) - At trial the issue of increased costs was not raised - The Brit­ish Colum­bia Court of Appeal, per Rowles, J.A., held that the order constituted a final deter­mination of an issue, i.e., whether in­creased costs might be sought under s. 7 of Appendix B after an order which stipu­lated the scale was entered - Rowles, J.A., held that the order should be treated as inter­locutory, even though it was made after the trial judgment was pronounced and entered - Thus leave to appeal was required.

Practice - Topic 8875

Appeals - Leave to appeal - From allow­ance or dismissal of interlocutory applica­tion - [See Practice - Topic 5779 ].

Cases Noticed:

Canadian Imperial Bank of Commerce v. Sovereign Life Insurance Co. et al. (1998), 105 B.C.A.C. 89; 171 W.A.C. 89 (C.A.), refd to. [para. 8].

Burlington Northern Railroad Co. v. Cana­dian National Railway Co. (1994), 45 B.C.A.C. 287; 72 W.A.C. 287; 10 B.C.L.R.(3d) 302 (C.A.), refd to. [para. 12].

Evans v. Campbell Mitchell (1991), 11 B.C.A.C. 1; 22 W.A.C. 1; 3 C.P.C.(3d) 235 (C.A.), refd to. [para. 12].

Dow v. Briggs (1994), 51 B.C.A.C. 130; 84 W.A.C. 130; 98 B.C.L.R.(2d) 372 (C.A.), refd to. [para. 12].

Bozson v. Altrincham Urban District Council, [1903] 1 K.B. 547 (C.A.), refd to. [para. 14].

British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1997), 86 B.C.A.C. 84; 142 W.A.C. 84 (C.A.), refd to. [para. 16].

Statutes Noticed:

Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 6, sect. 7 [para. 10].

Counsel:

Brian G. McLean and Christopher R. Armstrong, for the appellant;

Vincent E. Pigeon and Vahan A. Ish­kanian, for the respondent.

This matter was heard in Chambers, before Rowles, J.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on January 11, 2002. The decision of Rowles, J.A., was delivered on January 17, 2002.