Romfo et al. v. 1216393 Ontario Inc. et al., (2008) 253 B.C.A.C. 174 (CA)

• Judge: Donald, Saunders and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 04, 2008
• Jurisdiction: British Columbia
• Citations: (2008), 253 B.C.A.C. 174 (CA);2008 BCCA 106

Romfo v. 1216393 Ont. (2008), 253 B.C.A.C. 174 (CA);

    425 W.A.C. 174

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. AP.003

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 106)

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

British Columbia Court of Appeal

Donald, Saunders and Frankel, JJ.A.

March 4, 2008.

Summary:

The plaintiffs sued the two corporate defendants for specific performance of contracts to sell them property. The plaintiffs also brought an alternative claim against Kretschmer, the principal of one corporate defendant and agent for the other, for damages for negligent misrepresentation.

The British Columbia Supreme Court, in a decision reported [2007] B.C.T.C. Uned. F10, allowed the action against the corporate defendants and dismissed the action against Kretschmer. The corporate defendants appealed. The plaintiffs filed notices of appeal naming Kretschmer and the corporate defendants. The plaintiffs also applied for an extension of time within which to appeal, if such extension were necessary. All defendants moved to strike the plaintiffs' appeal as being out of time. The corporate defendants also argued that the plaintiffs' appeal failed to claim relief against them.

The British Columbia Court of Appeal, per Rowles, J.A., in a decision reported 250 B.C.A.C. 195; 416 W.A.C. 195, struck the plaintiffs' appeal as against the corporate defendants because it did not seek relief against them. The court held that the plaintiffs' appeal from the order dismissing the claim against Kretschmer was filed within the time limited from the pronouncement of that order and no extension of time was necessary. Kretschmer applied for an order setting aside Rowles, J.A.'s order and striking out or quashing the plaintiffs' appeal.

The British Columbia Court of Appeal dismissed the application.

Practice - Topic 8862

Appeals - Quashing or dismissal of appeals - Grounds for - [See Practice - Topic 9422 ].

Practice - Topic 9000

Appeals - Notice of appeal - Time for filing and service of notice of appeal or reply - The plaintiffs sued the two corporate defendants and also brought an alternative claim against Kretschmer, the principal of one corporate defendant and agent for the other - The trial judge delivered reasons for judgment on September 14, 2007 - He allowed the action against the corporate defendants and, absent argument, dismissed the claim against Kretschmer - The formal order, entered on October 22, 2007, showed the date of judgment as October 17, 2007, after the parties twice appeared before the trial judge to make submissions respecting the final order - On October 22, 2007, the plaintiffs filed notices of appeal which included both the corporate defendants and Kretschmer as parties - The British Columbia Court of Appeal held that the plaintiffs' appeal was filed on time, pursuant to s. 14(1)(a) of the Court of Appeal Act (B.C.), as having been filed within 30 days of the pronouncement of the order appealed from, which was October 17, 2007 - See paragraphs 22 to 26.

Practice - Topic 9422

Appeals - Grounds of appeal - Error of law - The plaintiffs sued the two corporate defendants and also brought an alternative claim against Kretschmer, the principal of one corporate defendant and agent for the other - The trial judge allowed the action against the corporate defendants and, absent argument, dismissed the claim against Kretschmer - The corporate defendants appealed - The plaintiffs filed notices of appeal which included both the corporate defendants and Kretschmer as parties - Kretschmer sought to strike the plaintiffs' appeal against him, arguing that the plaintiffs could not allege an error by the trial judge because the basis for the trial judge's dismissal of the claim against him was the plaintiffs' considered decision not to advance it - The British Columbia Court of Appeal dismissed the motion - The appeal against Kretschmer depended on whether the court, in the corporate defendants' appeal, found an error which had the effect of removing the assumption on which the judgment respecting Kretschmer was based - See paragraphs 27 and 28.

Cases Noticed:

Haldorson et al. v. Coquitlam (City) (2000), 149 B.C.A.C. 197; 244 W.A.C. 197; 3 C.P.C.(5th) 225; 2000 BCCA 672, consd. [para. 2].

Burlington Northern Railroad Co. et al. v. Baseline Industries Ltd. (1992), 15 B.C.A.C. 172; 27 W.A.C. 172; 20 C.P.C.(3d) 90 (C.A.), consd. [para. 23].

Statutes Noticed:

Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 14(1)(a) [para. 22].

Counsel:

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

J.B. Rotstein, for the respondent, Dennis Kretschmer.

This application was heard at Vancouver, B.C., on March 4, 2008, by Donald, Saunders and Frankel, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered orally at Vancouver, B.C., on March 4, 2008, and the following reasons were provided:

Donald, J.A. - see paragraphs 1 to 29, 32;

Saunders, J.A. - see paragraph 30;

Frankel, J.A. - see paragraph 31.