



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



The Owners, Strata Plan VR29 v. Kranz,









2021 BCCA 32




Date: 20210118

Docket: CA47027

Between:

The Owners, Strata
Plan VR29

Respondent

(Petitioner)

And

Fred Kranz

Appellant

(Respondent)




Before:



The Honourable Chief Justice Bauman

The Honourable Mr. Justice Fitch

The Honourable Madam Justice Griffin




On appeal from: An
order of the Supreme Court of British Columbia, dated
September 17, 2020 (
The Owners, Strata Plan VR29 v. Kranz and others
,
Vancouver Docket S197870).

Oral Reasons for Judgment




Counsel for the Appellant (via videoconference):



J.D. Shields





Counsel for the Respondent (via videoconference):



J.M. Chatten





Place and Date of Hearing:



Vancouver, British
  Columbia

January 18, 2021





Place and Date of Judgment:



Vancouver, British
  Columbia

January 18, 2021








Summary:

Appeal brought from a
judges Chambers decision to adjourn a petition hearing to permit the filing
of additional evidence by the petitioner. Held: appeal quashed. The substance
of the order was an adjournment, which is a limited appeal order for which
leave to appeal is required pursuant to Court of Appeal Rule 2.1(e).

GRIFFIN J.A.
:

Introduction

[1]

This proceeding is an appeal from a decision made in a petition
proceeding involving a dispute between the respondent Strata Corporation and
one of the owners of a residential condominium unit in the Strata complex, the
appellant Mr. Kranz.

[2]

The matter before us today is a preliminary matter, having to do with
whether or not the order sought to be appealed is appealable, and if it is,
whether the appeal ought to be stayed.

Background

[3]

The Strata filed a petition on July 15, 2019 seeking a number of orders
against Mr. Kranz, including judgment for just over $78,000 allegedly owed
for strata fees and special levies; legal fees; and for an order to sell
the strata lot owned by Mr. Kranz.

[4]

The Strata filed one affidavit, the Affidavit #1 of Geoffrey Langford
(the Langford Affidavit), in support of its petition. Mr. Langford was
identified as a co‑president of the Strata council and an owner of a unit
in the same building. The Langford Affidavit referred to a number of historical
facts regarding the management of the Strata, its fees and levies, and its
several disputes with Mr. Kranz. A great part of the history preceded Mr. Langfords
ownership of a unit in the building. The affidavit attached, as supportive
evidence, various Strata records, correspondence from the Stratas management
company and lawyers, a Land Title search to prove Mr. Kranzs ownership of
his unit and liens filed against the title, and reasons for judgment dealing
with past disputes between the Strata and Mr. Kranz, among other things.

[5]

Mr. Kranz opposed the petition. The response to petition did not
seek to rely on any evidence that would contradict the facts relied upon in the
petition, and Mr. Kranz did not file any evidence. Rather, the response
simply stated: [t]here is no admissible evidence to prove the Petition, or
meet the high onus on the Petitioner, and the Petition must be dismissed and
[t]he Langford Affidavit is all but inadmissible. The response to
petition then listed 
inter alia
, 37 cases without any indication
of what point in the cases was relevant.

[6]

At the hearing of the petition on September 8, 2020, Mr. Kranz
advanced objections to the admissibility of the Langford Affidavit, taking the
position that most of it was inadmissible hearsay.

[7]

The Strata relied on a number of exceptions to hearsay.

[8]

The Strata also argued that if the judge was to rule that parts of the
Langford Affidavit were inadmissible, the petition should be adjourned and
leave granted for it to file additional affidavit evidence, and for Mr. Kranz
to file responsive affidavits.

[9]

Mr. Kranz argued that the judge should not grant leave to the
Strata to file additional evidence, it being the duty of the petitioner to put
its full case forward. He also argued that allowing additional affidavits would
split the petitioners case.

[10]

Only one day was set aside for the hearing, and it was taken up with
hearing the evidentiary objections.

[11]

In reasons for judgment issued September 17, 2020, the judge noted that
because a final order was being sought, hearsay evidence was presumptively
inadmissible, citing

0690860 Manitoba Ltd. v.
Country West Construction Ltd.
, 2009 BCCA 535 at para. 33. While
some of the evidence objected to was simply background and normally would not
be controversial, the judge held that Mr. Kranz was entitled to put the
petitioner to strict proof of the facts. Some but not all of the documents may
have qualified as subject to recognized exceptions to hearsay evidence
,
such as the business records exception and public documents exception, but not
all of the formal steps had been taken by the petitioner to certify the latter.
The judge found that the principled exception to hearsay evidence was not made
out. The judge accepted the submissions of Mr. Kranz that much of the
Langford Affidavit was inadmissible.

[12]

The judge noted that Mr. Kranzs materials were also defective. The
judge observed that Mr. Kranzs response to petition took broad positions
as to the inadmissibility of evidence and listed 37 cases, without explanation
as to the basis for his objections or the particular point being relied upon in
the cases.

[13]

The judge considered Mr. Kranzs objection to her granting
leave to file additional evidence, but ruled she did have that broad discretion
and should exercise it, citing
The Owners,
Strata Plan VR 390 v. Harvey
,
2014 BCSC 2580 and
Sharp v. Royal Mutual Funds Inc.
, 2019 BCSC 2357.

[14]

The judge held:

[59]      I must balance the need for strict compliance with
the substantive rules of evidence against the public interest in ensuring that
cases are heard on their merits.

[60]      The court has discretion to craft its own
processes, including discretion to allow the petitioner to correct its
shortcomings in the evidence. In
Hayes Forest Services Limited v. Krawcyzk,
2006
BCCA 156, a criminal contempt case, the Court of Appeal agreed with Justice
Harvey that the court has discretion on how to proceed, subject to the
principles of fairness: para. 55. This is consistent with the
courts truth
seeking function.

[61]
Since I allowed the respondent to proceed with
his objection to the affidavit despite the deficiencies in his pleading, in the
interest of fairness I should also allow the petitioner to overcome the
deficiencies in the affidavit
.

[62]      I am bolstered by the fact that I see no prejudice
in allowing the petitioner to file additional affidavits. I do not accept that
granting leave to allow the petitioner to file additional affidavits is
splitting its case in this situation. The petitioner is not filling in

evidentiary gaps

as referred to in the cases relied upon by the respondent:
British
Columbia (Director of Civil Forfeiture) v. Vu,
2020 BCSC 106;
The
Owners, Strata Plan KAS 2971 v. American Bankers Insurance Company of
Florida
, 2016 BCSC 581. The petitioner is not being permitted to

patch up

its case under the guise of reply:
Slaughter
at para. 56.
The
respondent has not provided the petitioner with his argument on the merits of
the case, so the petitioner has no greater indication about what needs

patching

up than it did prior to filing Mr.
Langfords
affidavit. It will simply be
correcting the form of the same evidence already provided to the court through
admissible affidavits
.

[63]
The hearing of the petition on its merits has
not commenced
. The respondent will be in a position to provide responsive
affidavits and to amend his response to petition if he believes this is
required.

[64]
Rule
1‑3 is overarching. The
stated objective is to find a just, speedy, and inexpensive way to determine
every proceeding on its merits.
It is not in the interests of justice that I
not hear the petition on its merits based on these admissibility issues with
the affidavit
.

[Emphasis added.]

[15]

In the result, the judge neither granted nor dismissed the petition. She
adjourned the hearing of the petition and granted leave to the Strata to file
new or revised affidavits to correct the deficiencies. She also granted leave
to Mr. Kranz to file responsive affidavits and an amended response to
petition. The judge made clear that the Strata was not to bolster its evidence
in the process, in the sense that the new evidence should be supporting what
was said in the Langford Affidavit, not going into new areas.

[16]

Mr. Kranz drafted an order, but the Strata resisted approving it on
the grounds that the judge simply made an evidentiary ruling and not an order.

[17]

After a hearing to determine whether the formal order should be entered,
the judge issued her ruling regarding the form of order on October 27, 2020.
She declined to wade into the parties dispute about whether or not her ruling
was merely a mid‑proceeding evidentiary ruling or an order, quite
correctly leaving it for this Court to characterize the nature of her decision.
She observed that signing the order was not determining the question.

[18]

In her ruling regarding the form of order, the judge noted at para. 3
Mr. Kranzs position that this was a decision with respect to practice
issues:
the order that the matter be adjourned
and the order that new
affidavits may be filed prior to the hearing of the petition (emphasis added).
At para. 10 of her ruling, she observed that the decision deals not only
with an evidentiary ruling on the validity of evidence in affidavits, but also
allows the filing of new affidavits and
adjourns
the hearing of the
petition so this can occur (emphasis added). She endorsed the form of order
from which Mr. Kranz has brought his appeal.

[19]

The terms of the entered order read that:

THE HEARING OF the Petition coming on for hearing :

1.        THIS
COURT ORDERS that the Petitioner has leave to refile the Affidavit of Jeffrey Langford
and/or file other affidavits to support the Petition.

2.        THIS
COURT FURTHER ORDERS that the Respondent Fred Kranz may file response
affidavits and an Amended Response to Petition.

3.        THIS COURT FURTHER ORDERS that
costs of this hearing are to be determined at a later date.

[20]

As mentioned, Mr. Kranz has filed this appeal from the entered
order. The relief he seeks on appeal is dismissal of the petition.

[21]

The Strata brought an application to dismiss the appeal for want of
jurisdiction, or in the alternative for a stay of the appeal. This matter came
before a single justice, who referred it to a division of this Court to
determine whether the entered order is appealable, and, if so, whether a stay
ought to be granted.

[22]

This division is therefore not considering the question of whether or
not the judge below made any error in her decision.

The Parties Positions

[23]

In support of its position that the order below is not appealable, the
Strata relies on
Cambie Surgeries Corporation v. British Columbia (Attorney
General)
, 2017 BCCA 287. In that case, this Court held that mid‑trial
evidentiary rulings are not orders that can be appealed while the trial is
ongoing, and instead are rulings that should be appealed as a ground of appeal
upon conclusion of the trial. The Strata argues that the same logic applies to
mid‑petition evidentiary rulings decided on chambers applications.

[24]

Further, the Strata argues that the substance of the order was an
adjournment, for which leave to appeal is required.

[25]

In the alternative, the Strata submits that the appeal should be stayed
pending a final decision on the merits of the petition. The Strata relies on
s. 10 of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77 (
CA
Act
),

and
Hollander v. Nelson
, 2013 BCCA 83.

[26]

Mr. Kranz relies on
Eastside Pharmacy Ltd. v. British Columbia
(Minister of Health)
, 2019 BCCA 60. That case distinguished
Cambie
Surgeries
as dealing with a trial of an action, not a petition proceeding.
This Court in
Eastside Pharmacy
allowed an appeal from a ruling made during
a petition proceeding. The ruling had allowed an application pursuant to
R. 22‑1(4)(a) of the
Supreme Court Civil Rules,
B.C. Reg. 168/2009 (
SC Rules
and individually SC Rule)

for
cross‑examination of an affiant.

[27]

Mr. Kranz submits that the issue on his appeal from the judges
order will be a jurisdictional issue. He submits that the judge did not have
jurisdiction to permit the Strata to file additional evidence.

Analysis

[28]

In order to solve this procedural puzzle, it is necessary to:

a)

review the basis
for this Courts jurisdiction on appeals; and

b)

consider the
authority for and substance of the decision or order of the judge.

Court of Appeal Jurisdiction on Appeals

[29]

In
Cambie Surgeries
, this Court referred to two unassailable
propositions. One is that this Court is a creature of statute. This means that
the authority to appeal must be found in either the
CA Act
or another
statute conferring jurisdiction. The other is that appeals are brought from the
formal order entered in the court appealed from, not from the reasons for
judgment that gave rise to the order.

[30]

This Courts jurisdiction to entertain appeals from decisions of the
Supreme Court is established by s. 6(1) of the
CA Act
, dealing
with appeals as of right; and s. 7, dealing with limited appeal orders,
for which leave to appeal is required. The latter are prescribed under R. 2.1
of the
Court of Appeal Rules
, B.C. Reg. 297/2001 (
CA Rules

and individually CA Rule).

[31]

Section 6(1)(a) of the
CA Act
provides:

6(1)      An appeal lies to the court

(a)

from an order of the Supreme Court or an order of a judge of that court,

[32]

An order is defined in s. 1 of the
CA Act
:

1

order includes

(a)     a judgment,

(b)     a decree, and

(c)     an opinion, advice, direction,
determination, decision or declaration that is specifically authorized or
required under an enactment to be given or made;

[33]

Not every decision or pronouncement of a judge is an order for
purposes of appeal. Even if the decision was documented in the record of the
Supreme Court as an order, that does not necessarily mean the decision gave
rise to an appealable order within the meaning of the
CA Act
. What
governs is the substance, not the form:
Cambie Surgeries
at paras. 30,
39, citing
First Majestic Silver Corp. (Re)
,
2015 BCCA 452
at paras. 3435
.

[34]

This Court may look behind the wording of an order, which might not
properly reflect its true substance:
Tri‑City Capital Corp. v. 0942317
B.C. Ltd.
, 2016 BCCA 407 at paras. 2224 (Smith J.A. in
Chambers).

[35]

Section 7 of the
CA Act
provides:

7 (1)     In
this section, limited appeal order means an order prescribed under the rules
as a limited appeal order.

(2)     Despite section 6(1) of this
Act, an appeal does not lie to the court from a limited appeal order without
leave being granted by a justice.

[36]

Limited appeal orders, from which leave to appeal is required, are
prescribed by R. 2.1 of the
CA Rules
:

2.1    The following orders are prescribed as limited appeal orders for
the purposes of section 7 of the Act:

(a)     an order granting or refusing relief for which
provision is made under any of the following Parts or rules of the Supreme
Court Civil Rules:

(i)       Part 5
[Case Planning]
;

(ii)      Part 7
[Procedures for Ascertaining Facts]
, other than Rule 7‑7 (6)
[application
for order on admissions]
;

(iii)      Rule 9‑7 (11),
(12), (17) or (18)
[adjournment or dismissal, preliminary orders, orders and
right to vary or set aside order]
;

(iv)     Part 10
[Property and Injunctions]
;

(v)      Part 11
[Experts]
;

(vi)     Rule 12‑2
[trial management conference]
;

(vi.1)  Rule 18‑1
[inquiries, assessments and accounts]
;

(vii)     Rule 21‑7
[foreclosure and cancellation]
;

(b)     an order granting or refusing relief for which
provision is made under any of the following Parts or rules of the Supreme
Court Family Rules:

(i)       Part 5
[Financial Disclosure]
, other than Rule 5‑1 (28) (b) and
(c)
[relief]
;

(ii)      Rule 7‑1
[judicial case conference]
;

(iii)      Part 9
[Procedures for Obtaining Information and Documents]
, other than Rule 9‑6 (6)
[application for order on admissions]
;

(iv)     Rule 11‑3
(11), (12), (17) or (18)
[adjournment or dismissal, preliminary orders,
orders and right to vary or set aside order]
;

(v)      Part 12
[Property and Injunctions]
;

(vi)     Part 13
[Court Ordered Reports and Expert Witnesses]
;

(vii)     Rule 14‑3
[trial management conference]
;

(viii)    Rule 18‑1
[inquiries, assessments and accounts]
;

(c)     an order granting or refusing interim relief under the
Family
Law Act
;

(d)     an order, granting or refusing an investigation into a
family matter, made under section 211 of the
Family Law Act
;

(e)
an order granting or refusing an adjournment
or
an extension or a shortening of time;

(f)      an order granting or refusing costs, or granting or
refusing security for costs, if the only matter being appealed is that grant or
refusal;

(g)     an order of a Supreme Court judge granting or
refusing an appeal from any order referred to in paragraphs (a) to (f) of this
rule.

[Emphasis by underlining added.]

[37]

The predecessor
CA Act
and
CA Rules
attempted to
distinguish between interlocutory and final orders as the basis for deciding
when leave to appeal should or should not be required. This attempt at
categorization turned out to be a fruitful source of litigation.

[38]

It can be seen in the present
CA Act
and
CA Rules
that the
overall policy goal of distinguishing between decisions that finally determine
a partys rights and those that do not remains the same. Thus, the
CA Act
and
CA Rules
recognize that it is in the interests of justice that there
be an automatic right of appeal from orders which finally determine a claim or
defence. The drafting of CA Rule 2.1 also recognizes that it could clog
the justice system and increase the expense and time of litigation to have
automatic appeals from orders that are largely procedural and discretionary and
that relate to the conduct of a claim or defence. It therefore makes good sense
to require leave to appeal from some orders.

[39]

The present
CA Act
and
CA Rules
were designed to provide
more certainty and clarity and less room for debate about whether a particular
order requires leave to appeal or not:
Clifford v. Lord
, 2013 BCCA 302
at para. 29 (Garson J.A. in Chambers);
Tri‑City Capital Corp.
at
para. 22.

[40]

As can be seen by the express language of CA Rule 2.1(a) and (b),
in many cases what now governs the question of whether leave to appeal is
required is the basis of the authority under which the order was granted:
Clifford
at

para. 29;
Tri‑City Capital Corp.
at paras. 2223.

[41]

In other words, to determine whether leave to appeal is required in a
civil proceeding, the question must first be asked: pursuant to which rule of
the
SC Rules
was the order made?

[42]

Because of the approach of creating an express list of those types of
orders requiring leave to appeal in CA Rule 2.1, it is perhaps inevitable
that some anomalies result.

[43]

Specifically, SC Rule 22‑1(4) creates somewhat of an anomaly.
It provides the judge with the discretion in a chambers application to make a
number of orders regarding evidence that are of an interlocutory nature, yet it
is not identified in CA Rule 2.1 as a category of limited appeal
orders.

[44]

SC Rule 22‑1(4) provides:

(4)
On a chambers proceeding, evidence
must be given by affidavit, but the court may

(a)
order the attendance for
cross‑examination of the person who swore or affirmed the affidavit,
either before the court or before another person as the court directs,

(b)
order the examination of a
party or witness, either before the court or before another person as the court
directs,

(c)
give directions required for
the discovery, inspection or production of a document or copy of that document,

(d)
order an inquiry, assessment
or accounting under Rule 18‑1, and

(e)
receive other forms of evidence.

[45]

It can be seen that orders of the nature outlined in SC Rule 22‑1(4)
are not final orders determining the merits of a proceeding. Rather, they are
very much of a procedural nature and are similar to orders for discovery in
actions, orders that are limited appeal orders requiring leave to appeal.
Nevertheless, because SC Rule 22‑1(4) orders are not one of the
categories of listed orders in CA Rule 2.1, these types of orders give
rise to an automatic right of appeal. In this regard, see for example,
Galloway
v. A.B.
, 2019 BCCA 385 (Griffin J.A. in Chambers), dealing with
an order for production of documents in a petition proceeding; and
Eastside
Pharmacy Ltd.,
dealing with an order for cross‑examination of a
witness who swore an affidavit in a petition proceeding.

[46]

It is important to note that the question of under what SC Rule an order
was made determines many but not all categories of limited appeal orders
pursuant to CA Rule 2.1.

[47]

As examples, CA Rules 2.1(e) and (f) are not based on the authority
by which an order is made, but are based on the subject‑matter of the
order. CA Rule 2.1(e) requires leave to appeal from orders dealing with
adjournments and extending or shortening time. CA Rule 2.1(f) requires
leave to appeal from orders dealing solely with costs or security for costs.

[48]

Lastly, there remains another undefined category of judicial decisions,
a category that does not involve a final order and does not involve a limited
appeal order. From this category of decisions, there is neither an automatic
right of appeal nor an ability to seek leave to appeal. Rather, a decision in
this grey area might simply form one part of a ground of appeal, if later in
the proceeding an appealable order is made. An example is the evidentiary
ruling made mid‑trial in
Cambie Surgeries
.

[49]

This grey area includes a wide number of discretionary decisions by
judges in the trial court, as they manage the caseload and individual cases
before them.

[50]

As explained in the concurring judgment of Justice Saunders in
Cambie Surgeries
:

[70]      The juridical nature of the Supreme Court's tools
for managing its caseload has taken on added importance with the enactment of
current s. 7 of the
Court of Appeal Act
referred to by my
colleague. That section changed the criterion for leave to appeal from interlocutory
order to a limited appeal order enumerated in Rule 2.1.
There are a great
number of events that occur in the trial court under a rule that provides the
court may order, that are interlocutory, that would never have attracted leave
to appeal under the former s. 7, and that are not under a rule enumerated
in Rule 2.1. There are also judicial instructions given that are not
expressly provided for by a rule but are recorded by the Supreme Court of
British Columbia and filed in documents entitled order
. If such matters
are within s. 6 of the
Court of Appeal Act
, they are appealable as
of right. An example of this effect is demonstrated in
British Columbia
(Director of Civil Forfeiture) v. Lloydsmith
,
2014
BCCA 72
, a case concerning a document entitled order that addressed
the timing of a cross‑examination. This Court held the matter was not
appealable because it concerned no more than a ruling made in the management of
litigation.

[71]      Two approaches are possible. One is to give a
literal reading to the
Supreme Court Civil Rules
and all documents
entered by the Supreme Court of British Columbia entitled order, so as to
engage this Courts process whenever a litigant chooses to challenge such an order.
The other is to enquire into the substance of the event that occurred in the
Supreme Court of British Columbia, to determine whether an order, as intended
by s. 6 of the
Court of Appeal

Act
, has been made that
allows an appeal.

[Emphasis added.]

[51]

As is clear from
Cambie Surgeries
, this Court has decided on the
second approach articulated by Justice Saunders. The Court does not take a
literal approach to the question of whether a document is an order to
determine if it gives rise to a right of appeal or to the right to seek leave
to appeal. Rather, the substance of the matter is considered.

The Authority for and Substance of the Judges Decision

[52]

We must consider whether the judges order is an appealable order within
the meaning of the
CA Act
; fits within one of the categories of limited
appeal orders listed in CA Rule 2.1; or is neither.

[53]

That requires consideration of the authority for and substance of the
judges decision that is the subject of Mr. Kranzs appeal.

[54]

No specific reference to the
SC Rules
or other authority is set
out in the order. The hearing of the petition was before the judge and no other
application was brought. The judge did not dismiss the petition, nor did she
grant it.

[55]

Having considered the content of the order, I am not persuaded that the
form of order fully captures the substance of the judges decision.

[56]

The judge granted the relief sought by the Strata, which she earlier
identified at para. 26 of her reasons:

If I am inclined to rule that parts of the affidavit are
inadmissible,
the [Strata] argues the petition should be adjourned
and
leave granted for it to file additional affidavit evidence. Counsel concedes
that if I do so, I should also grant leave for [Mr. Kranz] to file
responsive affidavits and/or an amended response to petition.

[Emphasis added.]

[57]

In my view, the substance of the judges decision was to adjourn the
hearing of the petition on terms that allowed the Strata the opportunity to
file supplemental evidence and provided Mr. Kranz with the opportunity to
respond to the same. The judge did not rule on the admissibility of any
supplemental evidence or other materials.

[58]

The authority for the judges order was not SC Rule 22‑1(4).
The judge was not being asked to determine any application under that sub‑rule.
She did not order cross‑examination, discovery, or the receipt of
evidence in a form other than by affidavit.
Eastside Pharmacy
is
distinguishable because it was dealing with an application and order expressly
authorized under SC Rule 22‑1(4), as noted at paras. 29 and 33.

[59]

In my view, the judges authority to adjourn the petition can be found
within the powers granted to a judge in chambers by SC Rule 22‑1(7)(b),
which provides:

(7)
Without limiting subrule (4), on the
hearing of a chambers proceeding, the court may

(a)
grant or refuse the relief
claimed in whole or in part, or dispose of any question arising on the chambers
proceeding,

(b)

adjourn the chambers
proceeding
from time to time, either to a particular date or generally, and
when the chambers proceeding is adjourned generally a party of record may set
it down on 3 days' notice for further hearing,

(c)
obtain the assistance of one
or more experts, in which case Rule 11‑5 applies, and

(d)
order a trial of
the chambers proceeding, either generally or on an issue, and order pleadings
to be filed and, in that event, give directions for the conduct of the trial
and of pre‑trial proceedings and for the disposition of the chambers
proceeding.

[Emphasis added.]

[60]

Had the judge not adjourned the petition, but proceeded to grant or
dismiss it, there is no question that there would be an automatic right of
appeal. But, in my view, because the substance of the judges order is an
adjournment of the hearing of the petition, on terms, it requires leave to
appeal pursuant to CA Rule 2.1(e).

[61]

I pause to acknowledge that in her October 27, 2020 ruling at para. 8,
the judge stated that both parties agreed that the case was not a limited
appeal order. Mr. Kranz suggests it would be unfair for the Strata to
resile from that position now. There is no transcript of that chambers
application and counsel for the Strata does not recall whether he took that
position.

[62]

I do note that it is possible both parties agreed with the proposition
in
Eastside Pharmacy
, a case they cited to the judge, that an order
under SC Rule 22‑1(4) is not a limited appeal order. However, the
judges order was not made pursuant to SC Rule 22‑1(4).

[63]

Regardless of the position taken by the parties, as the judge noted at para. 11
of her October 27, 2020 ruling, it is for this Court to decide the character of
the ruling for the purposes of appeal. We are not bound by the position taken
by either party on the hearing before the judge as to the nature of her order.

[64]

I recognize that wrapped up in the adjournment was the judges
evidentiary ruling that parts of the Langford Affidavit were inadmissible. Mr. Kranz,
of course, is not seeking to appeal that aspect of the judges decision. Had
the Strata sought to appeal that aspect of the judges decision, in my view the
reasoning in
Cambie Surgeries
would apply. A ruling determining the
admissibility of evidence midway through a petition hearing (and not the
subject of a distinct application authorized by the
SC Rules
) should not
be considered an appealable order. The significance of the judges evidentiary
ruling on the merits of the petition is not yet known and will not be known
until the outcome of the continued petition hearing itself. It may be that in
the future the evidentiary decision will be a ground of appeal for the Strata,
should the petition be dismissed, but that remains to be determined.

[65]

The aspect of the judges decision that Mr. Kranz complains about
is the judges granting of leave to the Strata to file supplementary
affidavits. Mr. Kranz takes the position before us that the judge did not
have jurisdiction to grant such an order. I do not find any support for the
proposition that this was a matter of the judges jurisdiction, as opposed to
simply being the exercise of her discretion. Leaving aside a judges inherent
jurisdiction to control the process, it is clear that a judge hearing a
petition in chambers has the power, under the
SC Rules
, to make a wide
variety of orders relating to procedure and evidence: see for example, SC Rules 16‑1(7);
16‑1(18); 22‑1(4); 22‑1(7). SC Rule 16‑1(7) expressly
gives the court the power to permit a party to serve additional affidavits.
Indeed, Mr. Kranz conceded in oral argument before us that there could be
circumstances where a judge would be permitted to exercise discretion to allow
for additional evidence to be filed on a petition; he just takes the position
the judge ought not to have done so here.

[66]

In my view, the judges exercise of her discretion to permit the Strata
to attempt to provide supplemental evidence was part of the reasoning for the
judges decision to adjourn the petition hearing and was not a separate
decision giving rise to a right of appeal. Even if one was to say it was a
separate decision, in my view it would fall into the grey area that Justice
Saunders discussed in
Cambie Surgeries
as simply being a decision
relating to the management of the ongoing hearing of the petition. It would not
be appealable as of right, but could potentially form a ground of appeal
depending on the final outcome of the petition hearing.

Conclusion

[67]

Having determined that the substance of the judges order was to adjourn
the hearing of the petition, on terms, and having concluded that this means Mr. Kranz
will require leave to appeal, there is no need to deal with the Stratas application
for a stay. The concerns raised by the Strata regarding the bringing of an
appeal mid‑way through the petition hearing could properly be raised in
response to any leave to appeal application and application for an extension of
time.

[68]

For these reasons, I would quash the appeal. I would give the Strata
costs of the appeal. The scale and quantum of costs can be addressed by written
submissions, including the applicability or inapplicability of the case of
Strata
Plan KAS 2428 v. Baettig
, 2017 BCCA 377.

[69]

BAUMAN C.J.B.C.
: I agree.

[70]

FITCH J.A.
: I agree.

[71]

BAUMAN C.J.B.C.
: The appeal is quashed. The Strata will have its
costs determined in the manner indicated in Justice Griffins reasons following
submissions of the parties in accordance with a schedule that they hopefully
can agree to.

The
Honourable Madam Justice Griffin


