Redpath v. Redpath et al., 2008 BCCA 400

• Judge: Lowry, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 12, 2008
• Jurisdiction: British Columbia
• Citations: 2008 BCCA 400;(2008), 260 B.C.A.C. 248 (CA)

Redpath v. Redpath (2008), 260 B.C.A.C. 248 (CA);

    439 W.A.C. 248

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. OC.025

Bruce Hugh Redpath (respondent/plaintiff) v. Tracey Michele Redpath (appellant/defendant) and Redpath Foods Inc. and Granville Island Bakery Ltd. (defendants by counterclaim)

(CA035806; 2008 BCCA 400)

Indexed As: Redpath v. Redpath et al.

British Columbia Court of Appeal

Lowry, J.A.

October 10, 2008.

Summary:

Cross-applications were made that raised a question of whether the appellant should be permitted to further prosecute an appeal when she had failed to file her factum by an agreed date, which was later than the date prescribed by the Court of Appeal Rules.

The British Columbia Court of Appeal, per Lowry, J.A., refused to extend the time for the appellant to file her factum and dismissed her appeal as abandoned.

Editor's Note: Prior cases in this proceeding can be found at [2005] B.C.T.C. Uned. 242, 228 B.C.A.C. 272; 376 W.A.C. 272 and [2008] B.C.T.C. Uned. 31.

Practice - Topic 8854

Appeals - Bar or loss of right of appeal - By abandonment of appeal - [See both Practice - Topic 8862 ].

Practice - Topic 8862

Appeals - Quashing or dismissal of appeals - Grounds for - The British Columbia Court of Appeal, per Lowry, J.A., refused to extend the time for the appellant to file her factum and dismissed her appeal as abandoned - The court stated that "Where the delay giving rise to the kind of applications made here is less than a year, it appears the appropriate considerations are ... those stated in Davies v. Canadian Imperial Bank of Commerce (1987) ... (C.A.), although the delay in that case had been in initiating an appeal as opposed to prosecuting an appeal once the notice of appeal had been filed. ... The considerations are five, of which the last is overriding: 1. whether there was a bona fide intention to appeal, 2. when the respondents were informed of the intention, 3. whether the respondents would be unduly prejudiced by an extension, 4. whether there is merit in the appeal, and 5. whether it is in the interests of justice an extension be granted." - See paragraph 15.

Practice - Topic 8862

Appeals - Quashing or dismissal of appeals - Grounds for - The British Columbia Court of Appeal, per Lowry, J.A., refused to extend the time for the appellant to file her factum and dismissed her appeal as abandoned - While the court did not question that the appellant had maintained a bona fide intention to appeal that was at all times apparent, there was little prospect of her achieving the relief she sought - Further, the delay had resulted in some prejudice to the respondent whose solicitors had advised, in February, that he wished to have the appeal heard and the matter resolved as quickly as the Rules permitted, as he was entitled - Most importantly, it would not be in the interests of justice to permit the appellant to further prosecute her appeal when her solicitors failed to deliver her factum in the time that they agreed it would be filed - It was no answer for the appellant's solicitors to say that the issues were complex, the preparation of the factum had taken longer than anticipated, and they had not had time, particularly when, having agreed to file their factum by June 30, they took no steps to seek further accommodation until after that date had come and gone - See paragraphs 16 to 22.

Practice - Topic 9454.1

Appeals - Factum, case on appeal or appeal book - Extension of time for filing (incl. costs) - [See both Practice - Topic 8862 ].

Cases Noticed:

Pacific Rim Nutrition Ltd. v. Guardian Insurance Co. of Canada (1997), 97 B.C.A.C. 317; 157 W.A.C. 317 (C.A.), revd. (1997), 49 C.C.L.I.(2d) 319 (C.A.), dist. [para. 13].

Frew v. Roberts (1990), 44 C.P.C.(2d) 34 (B.C.C.A.), dist. [para. 13].

Anderson v. Brouwer Claims Canada & Co., [2005] B.C.A.C. Uned. 150; 2005 BCCA 506, refd to. [para. 14].

Emerson v. Insurance Corp. of British Columbia et al., [2001] B.C.A.C. Uned. 153; 2001 BCCA 592, refd to. [para. 14].

Spoor et al. v. Nicholls et al. (2000), 143 B.C.A.C. 121; 235 W.A.C. 121; 2000 BCCA 535, refd to. [para. 14].

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

Wilson et al. v. Newcomb et al. (1998), 111 B.C.A.C. 239; 181 W.A.C. 239; 24 C.P.C.(4th) 28 (C.A.), refd to. [para. 15].

B.C. et al. v. Leyen (2006), 224 B.C.A.C. 285; 370 W.A.C. 285; 2006 BCCA 180, refd to. [para. 15].

Barbeau-Lafacci v. Holmgren, [2003] B.C.A.C. Uned. 159; 2003 BCCA 549, refd to. [para. 15].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40; 172 D.L.R.(4th) 577, refd to. [para. 16].

Casoli v. Hearndon (1984), 57 B.C.L.R. 10 (C.A.), folld. [para. 19].

Counsel:

K.B. Oliver, for the appellant;

K.L. Shirley-Paterson, for the respondent.

This appeal was heard in Chambers at Vancouver, B.C., on September 12, 2008, by Lowry, J.A., of the British Columbia Court of Appeal, who delivered the following decision on October 10, 2008.