Romfo et al. v. 1216393 Ontario Inc. et al., (2008) 250 B.C.A.C. 195 (CA)

• Judge: Rowles, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 20, 2007
• Jurisdiction: British Columbia
• Citations: (2008), 250 B.C.A.C. 195 (CA);2008 BCCA 45

Romfo v. 1216393 Ont. (2008), 250 B.C.A.C. 195 (CA);

    416 W.A.C. 195

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. FE.013

John Allan Romfo, Mary Dianne Romfo, Murray Fairweather, Doreen Fairweather, Robert A. Cunningham, Josephine M.J. Cunningham, Bruce Adams, Roxana Adams and David Perrella (appellants/plaintiffs) v. 1216393 Ontario Inc., Tylon Steepe Development Corporation and Dennis Kretschmer (respondents/defendants)

(CA035508; 2008 BCCA 45)

Indexed As: Romfo et al. v. 1216393 Ontario Inc. et al.

British Columbia Court of Appeal

Rowles, J.A.

January 18, 2008.

Summary:

The plaintiffs brought an action against the corporate defendants claiming specific performance of agreements for the sale of certain strata lots. The plaintiffs pleaded in the alternative a claim against the individual defendant for negligent misrepresentation.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. F10, ordered specific performance of the agreements for the sale of property as against the corporate defendants. The alternative claim against the individual defendant was dismissed. The plaintiffs appealed from the dismissal of the alternative claim against the individual defendant. The defendants moved to strike the plaintiffs' appeal. The corporate defendants sought to have the plaintiffs' appeal as against them struck on the ground that no relief was or could be sought against them on the appeal. The defendants further contended that the plaintiffs' appeal was brought out of time. The plaintiffs brought a cross-motion, seeking an extension of time within which to appeal that part of the judge's order which dismissed their alternative claim against the individual defendant, should such an extension be needed.

The British Columbia Court of Appeal, per Rowles, J.A., struck the plaintiffs' appeal as against the corporate defendants. The court held that the plaintiffs' appeal from the order dismissing the claim against the individual defendant was filed within the time limited from the pronouncement of that order and no extension of time was necessary.

Practice - Topic 8891

Appeals - Parties - General - The plaintiffs brought an action against the corporate defendants claiming specific performance of agreements for the sale of certain strata lots - The plaintiffs pleaded in the alternative a claim against the individual defendant for negligent misrepresentation - The trial judge ordered specific performance of the agreements for the sale of property as against the corporate defendants and dismissed the alternative claim against the individual defendant - The plaintiffs appealed from the dismissal of the alternative claim against the individual defendant - The British Columbia Court of Appeal, per Rowles, J.A., struck the plaintiffs' appeal as against the corporate defendants - The plaintiffs should not have joined the corporate defendants as parties to their appeal from the order dismissing the claim against the individual defendant as no relief was sought on the appeal against the corporate defendants - See paragraphs 17 to 21.

Practice - Topic 9000

Appeals - Notice of appeal - Time for filing and service of notice of appeal or reply - The plaintiffs claimed against the corporate defendants seeking specific performance of agreements for the sale of certain strata lots - The plaintiffs pleaded an alternative claim against the individual defendant for negligent misrepresentation - In reasons dated September 14, 2007, the trial judge ordered specific performance as against the corporate defendants - The trial judge did not determine the issue of the individual defendant's liability, leaving it to counsel to arrange to argue that claim if they wished to do so - If not, the claim would be dismissed - On October 17, 2007, the parties appeared before the trial judge to make submissions respecting the trial order - The defendants argued that the date of the order should be September 14, 2007 - The trial judge did not agree - The formal order showed the date of judgment as October 17, 2007 - It provided for specific performance of the agreements for sale and dismissed the claim against the individual defendant - On October 22, 2007, the plaintiffs filed an appeal from the dismissal of the alternative claim against the individual defendant - The defendants argued that the appeal was brought out of time - The plaintiffs sought an extension of time to file the appeal in the event that time ran from the September judgment rather than the October order - The British Columbia Court of Appeal, per Rowles, J.A., held that the plaintiffs' appeal from the order dismissing the claim against the individual defendant was filed within the time limited from the pronouncement of that order and no extension was necessary - See paragraph 22.

Cases Noticed:

Safarik v. Ocean Fisheries Ltd. (1993), 21 C.P.C.(3d) 395 (B.C.C.A.), consd. [para. 18].

Morrison v. Coulter et al. (1991), 3 B.C.A.C. 24; 7 W.A.C. 24; 82 D.L.R.(4th) 568 (C.A.), refd to. [para. 19].

Counsel:

F.G. Potts and C. Martin, for the appellants;

J.B. Rotstein, for the respondents.

These motions were heard in Chambers on December 20, 2007, at Vancouver, British Columbia, before Rowles, J.A., of the British Columbia Court of Appeal, who delivered the following decision on January 18, 2008.