Samos Investments Inc. v. Pattison et al.,

• Jurisdiction: British Columbia
• Judge: Finch
• Neutral Citation: 2004 BCCA 278
• Subject Matter: PRACTICE
• Citation: (2004), 197 B.C.A.C. 153 (CA),2004 BCCA 278,197 BCAC 153,(2004), 197 BCAC 153 (CA),197 B.C.A.C. 153
• Date: 11 May 2004
• Court: Court of Appeal (British Columbia)

Samos Inv. Inc. v. Pattison (2004), 197 B.C.A.C. 153 (CA);

    323 W.A.C. 153

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. MY.053

Samos Investments Inc. (plaintiff/appellant) v. James A. Pattison, P. Nicholas Geer, Donald C. Selman, Jim Pattison Ltd., Jim Pattison Industries Ltd., 461847 British Columbia Ltd., Great Pacific Industries Inc., Great Pacific Capital Corp., Westar Group Ltd., Canadian Imperial Bank of Commerce (defendants/respondents)

(CA31871; 2004 BCCA 278)

Indexed As: Samos Investments Inc. v. Pattison et al.

British Columbia Court of Appeal

Finch, C.J.B.C.

May 18, 2004.

Summary:

The plaintiff was attempting, without success, to have an action certified under the Class Proceedings Act (CPA). The plaintiff applied for leave to amend its already amended statement of claim and for leave to apply for certification under s. 2(3)(b) of the CPA, and if those leaves were granted, to certify a newly pleaded action with a newly defined class.

The British Columbia Supreme Court, in a decision reported [2004] B.C.T.C. 484, allowed the amendment to the statement of claim, but dismissed the plaintiff's ap­plication for leave to certify the proceeding in respect of the new class. The plaintiff wanted to appeal the dismissal of its ap­plication for leave to certify the proceeding in respect of the new class and sought direc­tions as to whether leave to appeal was required. At issue was whether the order was interlocutory requiring leave to appeal or a final order in which case leave was unneces­sary.

The British Columbia Court of Appeal, per Finch, C.J.B.C., held that leave to appeal was required.

Practice - Topic 209.9

Persons who can sue and be sued - In­dividuals and corporations - Status or standing - Class actions - Appeals - The plaintiff was attempting, without success, to have an action certified under the Class Proceedings Act (CPA) - The plaintiff sought leave to amend its already amended statement of claim, and leave to apply for certification under s. 2(3)(b) of the CPA, and if those leaves were granted, to certify a newly pleaded action with a newly de­fined class - The motions judge allowed the amendment, but refused leave respect­ing certification with a newly defined class - The plaintiff sought directions as to whether the order refusing leave to certify a newly pleaded action with a newly de­fined class was an interlocutory order re­quiring leave to appeal or a final order in which case leave was unnecessary - The British Columbia Court of Appeal, per Finch, C.J.B.C., held that leave to appeal was required - The court stated that the plaintiff's application for leave under s. 2(3)(b) to certify the proceeding in re­spect of the new class did not fall within any of subsecs. (a) to (d) of s. 36(1) of the CPA, nor was it a final order.

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders or judgments - What consti­tutes - [See Practice - Topic 209.9 ].

Cases Noticed:

Harrington v. Dow Corning Corp. et al. (2001), 157 B.C.A.C. 230; 256 W.A.C. 230; 92 B.C.L.R.(3d) 224; 2001 BCCA 534, refd to. [para. 16].

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. 18].

Stoney Creek Indian Band v. British Columbia et al. (1999), 120 B.C.A.C. 54; 196 W.A.C. 54; 67 B.C.L.R.(3d) 47; 172 D.L.R.(4th) 679 (C.A.), refd to. [para. 18].

Richard v. British Columbia (2003), 192 B.C.A.C. 161; 315 W.A.C. 161; 17 B.C.L.R.(4th) 263; 2003 BCCA 448, leave to appeal refused (2003), 20 B.C.L.R.(4th) 37; [2003] B.C.A.C. Uned. 205; 2003 BCCA 589, refd to. [para. 20].

Statutes Noticed:

Class Proceedings Act, R.S.B.C. 1996, c. 50, sect. 2(3)(b) [para. 7]; sect. 9 [para. 9]; sect. 36(1) [para. 15]

Counsel:

D.W. Roberts, Q.C., and W.A. Baker, for the plaintiff;

I.G. Nathanson, Q.C., for the respondents, James A. Pattison, P. Nicolas Geer, Jim Pattison Ltd., Jim Pattison Industries Ltd., Great Pacific Industries Inc., Great Pacific Capital Corp.;

J. Wood, Q.C., for the respondent, C.I.B.C.;

A.D. Borrell, for the respondent, 461847 B.C. Ltd.;

W.M. Everett, Q.C., for the respondent, Westar Group Ltd.;

R.W. Sieg, for the respondent, Donald C. Selman.

This matter was heard in Chambers, at Vancouver, British Columbia, on May 11, 2004, before Finch, C.J.B.C., of the British Columbia Court of Appeal, who delivered the following judgment on May 18, 2004.