



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:



Wong v. Antunes,









2009 BCCA 60




Date: 20090203

Docket: CA036720

Between:

Frank Low Fat Wong on
his own behalf and as

personal
representative of the Estate of Stanley Wong,

and on behalf of Sau
Ying Wong and Lorna Wong

Respondent

(
Plaintiff
)

And

Paul George Antunes,
Transportaction Lease Systems Inc.,

and Ju Ling Catherine
Yen

Respondents

(
Defendants
)

And

The Attorney General
of British Columbia

Appellant

(
Respondent
)




Before:



The Honourable Madam
  Justice Saunders





(In Chambers)




Oral Reasons for Judgment




A.K. Fraser



Counsel for the Appellant





W.T. Morley



Counsel for the Respondent, Frank Low Fat Wong





R.F. Hungerford



Counsel for the Respondent, Transporaction





Place and Date of Hearing:



Vancouver
, British Columbia










30 January 2009





Place and Date of Judgment:



Vancouver
, British Columbia









3 February 2009




[1]

SAUNDERS J.A.
: The Attorney General of British Columbia seeks leave
to appeal an order made December 19, 2008, by Mr. Justice Pitfield for
production to the plaintiff of materials disclosed to Crown counsel by members
of the Vancouver Police Department in connection with charges against the
defendant Paul Antunes.  Those Reasons for Judgment are indexed at 2008 BCSC
1739.  The Attorney General also seeks a stay of that order pending the
appeal.

[2]

The action is brought under the
Family
Compensation Act
, R.S.B.C. 1996, c. 126, by the executor of Stanley Wong, who
is the father of Mr. Wong.  Stanley Wong was struck and killed by a motor
vehicle.  The unidentified driver of that vehicle fled the scene.

[3]

The defendant Paul George Antunes
is charged with criminal negligence causing Mr. Wongs death.  Those charges
have not come to trial yet and are scheduled for a time in October 2009.

[4]

The order of Mr. Justice Pitfield
was made under Rule 26(11) of the
Rules of Court
.  That order provides
for production of documents held by persons who are not a party to the action.

[5]

The Attorney General is not
opposed to producing all of the material encompassed by the order, but says
production of some of it, being at least in part those portions of a police
file that have statements of witnesses, is subject to a claim for legal professional
privilege, or public interest immunity, and that the issue of production should
be deferred until completion of the criminal proceeding in order not to
jeopardize the prosecution of the criminal charge.

[6]

The respondent does not oppose the
leave application, or a stay, provided the plaintiff is not prejudiced in the
preparation for the trial, which is scheduled to take place before the criminal
trial, that is, he says the documents need to be produced by early summer, and
thus an appeal must be expedited.  He seeks as well, as a term of an order,
that the Attorney General pay his costs in any event of the appeal on a
solicitor and client basis.

[7]

There is no dispute that the
proposed appeal raises an issue of importance to the practice.  The application
of Rule 26(11) to a case involving criminal charges on the very subject matter
of the civil action, and the treatment of police investigation results in civil
proceedings while criminal charges are outstanding, is a matter of importance
to the practice generally, and clearly to this action.  Further, the case has
that degree of merit that is required to obtain leave to appeal, and I will say
nothing more about the merits.

[8]

Likewise, if leave is granted the
stay should issue, as the disclosure could not be undone in the event the
appeal is successful.  There are two issues, time and costs.

[9]

As to costs, there is precedent
for the order sought.  In
Scotia
Mortgage Corp. v. Dhillon
, 2007
BCCA 485 (in chambers), an order of a similar nature was obtained.  There Madam
Justice Ryan reviewed the authorities and said:

[15]
In my view it is open to a justice considering leave to determine the terms
upon which the appellant should be permitted to appeal.  The order made in this
case follows the practice of this Court to grant leave, when appropriate, on
the condition that the appellant undertake the costs of the respondent in any
event.  Such an order is appropriate to save the respondent taking on the
burden of the expense of an appeal when the appeal is a test case.  A case may
be said to be such when the appellant is not particularly concerned about the
outcome of the case as between it and the respondent, but rather is concerned
about its impact on future litigation.

[10]

In my view, it is appropriate in
this case to order as a condition of obtaining leave and the stay that there be
no costs in favour of the Attorney General in any event of the appeal as
against the respondent, and that costs in favour of the respondent shall be
given on a solicitor and client basis in the event the respondent prevails.

[11]

On the question of timing of the
appeal, I am advised by the Registry that hearing dates are available in late
March and April.  It seems to me that the motion book, tabs 1  12, can stand
for the Appeal Book and Appeal Record, and I would so direct.  That means then
that the appellants factum could be filed promptly, and with filing the
respondents factum promptly some advantage could be taken of those dates,
thereby to provide the answer in a timely way in the event the order of Mr.
Justice Pitfield remains unchanged by this Court.

[12]

I look then to see what dates
might be proposed.

(discussion with counsel)

[13]

SAUNDERS J.A.
: The appellants factum shall be filed by February
27, 2009, and the respondents factum is to be filed within three weeks of that
time.  If any adjustment needs to be made to those timeframes, of course,
counsel can apply in chambers.

The Honourable Madam Justice Saunders


