Rabanes v. Pureza, (2015) 365 B.C.A.C. 315 (CA)

• Judge: Newbury, D. Smith and Stromberg-Stein, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 14, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 365 B.C.A.C. 315 (CA);2015 BCCA 27

Rabanes v. Pureza (2015), 365 B.C.A.C. 315 (CA);

    627 W.A.C. 315

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JA.063

Medardo Rabanes and Myra-Flor Rabanes (appellants/plaintiffs) v. Guillermo Laylo Atienza Pureza (respondent/defendant)

(CA041466; 2015 BCCA 27)

Indexed As: Rabanes v. Pureza

British Columbia Court of Appeal

Newbury, D. Smith and Stromberg-Stein, JJ.A.

January 14, 2015.

Summary:

On November 1, 2012, a jury fixed the plaintiffs' damages for injuries sustained in a motor vehicle accident. On December 23, 2013, the plaintiffs purported to file their notice of appeal. They then obtained an extension of time for the filing. They were also granted a declaration of indigent status. The plaintiffs filed a transcript which limited the evidentiary portion to the cross-examination and re-examination of three medical experts whom they called as witnesses. The defendant would not agree to such a limited record. The plaintiffs applied to the registrar under rule 26.1 of the Court of Appeal Rules to settle the contents of the transcript. The registrar ordered the plaintiffs to file a transcript which included their testimony and that of 20 other witnesses. In addition, the registrar held that she lacked jurisdiction to make an advance interim costs order in favour of the plaintiffs to cover the cost of the additional transcript, that is she dismissed the plaintiffs' application for an order requiring the defendant to pay for that transcript. The plaintiffs applied under s. 10(3) of the Court of Appeal Act to review the registrar's order.

The British Columbia Court of Appeal, per Low, J.A., in a decision not reported in this series of reports, dismissed the application to vary the order of the registrar. The plaintiffs applied for a review of the chambers judge's order under s. 9(6) of the Court of Appeal Act. The plaintiffs also applied to have the hearing adjourned to permit them to file a constitutional challenge to the validity of rule 20 of the Court of Appeal Rules.

The British Columbia Court of Appeal, in a decision reported at 362 B.C.A.C. 17; 622 W.A.C. 17, dismissed the application. The plaintiffs had not shown that the judge made any error of fact, principle, or law in declining to vary or cancel the registrar's order. The court dismissed the application to adjourn. By late October 2014, the plaintiffs were advised that if they did not pay a $10,000 deposit, the company they had retained to prepare the transcripts would not proceed. The appeal was admitted to the inactive list on December 23, 2014. The defendant applied to dismiss the appeal as abandoned. Meanwhile, the Supreme Court of Canada released its decision in Vilardell v. Dunham. The plaintiffs filed an amended motion to adjourn the defendant's application for dismissal of the appeal and for an order that rule 20 be declared unconstitutional on the basis of Vilardell. When the matter came on for hearing on January 14, 2015, the plaintiffs advised the court that as of 8:00 a.m. that day, they had obtained the necessary financing to make the $10,000 deposit but the funds had not been received from the (unnamed) lender. The plaintiffs advised that they were abandoning their constitutional challenge to rule 20 but sought an extension of 30 days in which to secure the transcripts in accordance with the registrar's order. The defendant indicated that it wished to proceed with the application to have the appeal dismissed, asserting that the delay had been inordinate; the plaintiffs had provided no explanation as why the funds were suddenly "available" after such a long period of alleged indigency; and he had been prejudiced by the long delay.

The British Columbia Court of Appeal dismissed the plaintiffs' application for an adjournment and the application to consider whether the constitutionality of rule 20 should be set down for determination by a division of the court. The court allowed the defendant's application and dismissed the appeal. In light of the inordinate delay, the plaintiffs' failure to explain the sudden location of financing at the last possible minute, and the dubious merits of the underlying appeal, it would not be in the interest of justice to subject the defendant to further delay and litigation in the matter.

Practice - Topic 8854

Appeals - Bar or loss of right of appeal - By abandonment of appeal - See paragraphs 1 to 14.

Cases Noticed:

Vilardell v. Dunham (2014), 463 N.R. 336; 361 B.C.A.C. 1; 619 W.A.C. 1; 2014 SCC 59, refd to. [para. 8].

Trial Lawyers Association of British Columbia et al. v. British Columbia (Attorney General) - see Vilardell v. Dunham.

Redpath v. Redpath et al. (2008), 260 B.C.A.C. 248; 439 W.A.C. 248; 2008 BCCA 400, refd to. [para. 11].

Counsel:

A.C.K. Oh, for the appellants;

M.G. Siren, for the respondent;

L. Greathead, for the Attorney General of British Columbia.

This appeal was heard and decided orally at Vancouver, British Columbia, on January 14, 2015, by Newbury, D. Smith and Stromberg-Stein, JJ.A., of the British Columbia Court of Appeal. Newbury, J.A., delivered the following written reasons for judgment for the court on January 22, 2015.