Richard v. British Columbia, (2003) 192 B.C.A.C. 161 (CA)

• Jurisdiction: British Columbia
• Judge: Smith, J.A.
• Citation: (2003), 192 B.C.A.C. 161 (CA),2003 BCCA 448
• Court: Court of Appeal (British Columbia)
• Date: 12 August 2003

Richard v. B.C. (2003), 192 B.C.A.C. 161 (CA);

    315 W.A.C. 161

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. AU.026

A.W. by her Litigation Guardian, The Public Guardian and Trustee of British Columbia and D.W. by his Litigation Guardian, The Public Guardian and Trustee of British Columbia (appellants/plaintiffs) v. Her Majesty The Queen in Right of the Province of British Columbia (respondent/defendant)

(CA031038)

William Joseph Richard (respondent/plaintiff) v. Her Majesty The Queen in Right of the Province of British Columbia (respondent/defendant)

(CA031040)

(2003 BCCA 448)

Indexed As: Richard v. British Columbia

British Columbia Court of Appeal

Smith, J.A.

August 15, 2003.

Summary:

Two separate actions were commenced for damages for alleged abuse suffered by the plaintiffs while residents of a provincial institution for the mentally handicapped and persons in need of psychiatric care. The plaintiffs in each action intended to have their action certified as a class action under the Class Proceedings Act. The plaintiffs in each action applied for an order that their solicitors be granted carriage of the proposed class action.

The British Columbia Supreme Court, in a decision reported at [2003] B.C.T.C. 976, ordered that the solicitors of the plaintiff in the first action (Richard) be granted carriage of the underlying proposed class action. The second action was "stayed as a proposed class action". The plaintiffs in the latter action (A.W. and D.W.) sought directions as to whether leave to appeal was required.

The British Columbia Court of Appeal, per Smith, J.A., held that the order was inter­locutory and that leave to appeal was required.

A justice in Chambers of the British Col­umbia Court of Appeal subsequently refused leave to appeal.

Editor's Note: see also a related case at [2003] B.C.A.C. Uned. 205.

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders or judgments - What con­stitutes - Two separate actions were com­menced alleging similar causes of action - The plaintiffs in each action intended that each be certified as a class action - It was agreed that all three plaintiffs would be members of either proposed class - The plaintiffs each moved that their respective solicitors be granted carriage of the pro­posed class action - A Chambers judge ordered that the law firm of the plaintiff in the first action be granted carriage of the underlying proposed class action - The second action was "stayed as a proposed class action" - The British Columbia Court of Appeal, per Smith, J.A., held that this order was interlocutory and leave to appeal it was required.

Cases Noticed:

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. 7].

Giza v. Echo Bay Mines Ltd., [1998] B.C.T.C. Uned. G32 (S.C.), refd to. [para. 10].

Counsel:

M. Underhill, for the appellants, A.W. and D.W.;

P. Poyner and K. Baxter, for Richard;

S. Miller, for Her Majesty The Queen.

This application was heard in Chambers, before Smith, J.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on August 12, 2003. The decision of Smith, J.A., was delivered on August 15, 2003.