Synex Pharmaceutical Inc. et al. v. Lee et al., 2009 BCCA 473

• Judge: K. Smith, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 22, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 473;(2009), 277 B.C.A.C. 252 (CA)

Synex Pharmaceutical Inc. v. Lee (2009), 277 B.C.A.C. 252 (CA);

    469 W.A.C. 252

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. NO.011

Synex Pharmaceutical Inc. and Roy Rasmusen (respondents/plaintiffs) v. Roberta Lee, Brent Lee, Shirley Lee, Sidney Joss and Laurie George (appellants/defendants)

(CA037234; 2009 BCCA 473)

Indexed As: Synex Pharmaceutical Inc. et al. v. Lee et al.

British Columbia Court of Appeal

K. Smith, J.A.

November 2, 2009.

Summary:

The respondents, who were the plaintiffs in the underlying action, sought a declaration that the appellants' notice of appeal was a nullity or, alternatively, an order that the appeal be dismissed on the basis that leave to appeal was required and had neither been sought nor granted.

The British Columbia Court of Appeal, per K. Smith, J.A., granted a declaration that the notice of appeal was a nullity.

Courts - Topic 2110

Jurisdiction - Appellate jurisdiction - Single appellate judge - [See Practice - Topic 9202 ].

Practice - Topic 9202

Appeals - Abandonment of appeal - What constitutes an abandonment - The respondents, who were the plaintiffs in the underlying action, sought a declaration that the appellants' notice of appeal was a nullity or, alternatively, an order that the appeal be dismissed on the basis that leave to appeal was required and had neither been sought nor granted - The appellants conceded that the order under appeal was interlocutory and leave to appeal was required - They did not oppose the respondents' application for a declaration that the notice of appeal was a nullity - The British Columbia Court of Appeal, per K. Smith, J.A., granted a declaration that the notice of appeal was a nullity - The court reiterated that a single justice of the court had no power to quash or dismiss an appeal on the merits - The court did not find that the appellants had abandoned the appeal simply by filing a notice of appeal when they should have sought leave to appeal - Certainly, the steps they had taken since filing the appeal belied any suggestion that they intended to abandon the appeal - Therefore, the court would not invoke s. 10(2)(a) or s. 28(a) of the Court of Appeal Act to dismiss the appeal as abandoned for failure to comply with any provision of the Act or rules.

Cases Noticed:

Bryfogle v. Smit et al., [2005] B.C.A.C. Uned. 146; 2005 BCCA 547, consd. [para. 8].

Dow v. Briggs (1994), 51 B.C.A.C. 130; 84 W.A.C. 130; 98 B.C.L.R.(2d) 372 (C.A.), consd. [para. 11].

Garnons-Williams v. Latimer et al. (1993), 39 B.C.A.C. 29; 64 W.A.C. 29; 87 B.C.L.R.(2d) 31 (C.A.), refd to. [para. 12].

Barta v. Canaccord Capital Corp. et al. (1997), 90 B.C.A.C. 282; 147 W.A.C. 282; 36 B.C.L.R.(3d) 81 (C.A.), refd to. [para. 12].

Kaiser (Bankrupt), Re (2007), 240 B.C.A.C. 297; 398 W.A.C. 297; 2007 BCCA 253, refd to. [para. 12].

Kapelus v. University of British Columbia et al. (2002), 174 B.C.A.C. 93; 286 W.A.C. 93; 2002 BCCA 566, refd to. [para. 12].

Adoption Act, Re (1995), 54 B.C.A.C. 58; 88 W.A.C. 58 (C.A.), refd to. [para. 12].

British Columbia Birth Registration 94-13403, Re - see Adoption Act, Re.

Phoenix Transportation Consultants Ltd. v. Pacific Freightways Ltd. (1989), 38 C.P.C.(2d) 267 (B.C.C.A.), refd to. [para. 12].

Counsel:

B.W. Nelson, for the appellants;

J.H. Frank, for the respondents.

This motion was heard in Chambers at Vancouver, B.C., on October 22, 2009, by K. Smith, J.A., of the British Columbia Court of Appeal, who delivered the following decision on November 2, 2009.