



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Rainbow Country Estates Ltd. v. Whistler (Resort
  Municipality of),









2011 BCCA 38




Date: 20110113

Docket: CA038022

Between:

Rainbow Country
Estates Ltd.

Respondent

(Plaintiff)

And

Resort
Municipality of Whistler

Appellant

(Defendant)




Before:



The Honourable Mr. Justice K. Smith





(In Chambers)




On appeal from: Supreme
Court of British Columbia, March 10, 2010
(
Rainbow Country Estates Ltd. v. Whistler (Resort Municipality of)
2010 BCSC 300, Vancouver Registry

Oral Reasons for Judgment




Counsel for the Appellant:



S. Manhas





Counsel for the Respondent:



G.K. Macintosh, Q.C.
J. Leong





Place and Date of Hearing:



Vancouver, British
  Columbia

January 13, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 13, 2011






[1]

K. SMITH J.A.
: This is an application by the respondent to
dismiss the appeal as abandoned for the failure of the appellant to file a
factum within the time limited by the
Rules
.

[2]

The appeal arises out of a valuation determined at a hearing in the
Supreme Court before Madam Justice Adair of some property on Alta Lake in
Whistler, which was expropriated from the respondent in 1987. The trial judges
decision was handed down on April 3, 2010 and she assessed the market value of
the property at $1.3 million. There was an advance of $367,000 paid into court in
1991 and it appears that some portion of that was paid out to the respondent in
early 2003, although the evidence does not disclose how much.

[3]

The appellant filed notice of appeal on April 9, 2010, and filed an
appeal record on June 8, 2010. Following the judgment there were negotiations
about the possibility of some sort of a settlement, but the respondent made it
clear that the negotiations should not affect the progress of the appeal and
that the appellant would be expected to get on with it. As it turned out, the
negotiations did not bear fruit.

[4]

In the result, the appellant's factum was due by July 8, 2010, as
required by Rule 21(1) of the
Court of Appeal Rules
. The appellant has
not yet filed its factum. It is more than six months out of time, as are the
appeal books and transcripts.

[5]

In early August the respondent wrote to the appellants counsel (not
counsel on this application, Mr. Manhas) inquiring about the factum and when it
would be filed, advised that it would, perhaps, be a waste of the clients
money and counsels time to apply to dismiss, and that the respondent would
like the appeal to get on. Counsel followed up on August 27, 2010 with a phone
call and appellant's counsel promised the factum would be submitted within a
week. On September 17, 2010, counsel for the respondent wrote again reminding counsel
for the appellant that the factum had been promised within a week and had not been
delivered, but no response was received. There were other communications
between counsel about the filing of the factum, both orally and in writing, in
which counsel for the respondent was either assured that the factum would be
delivered soon or received no response at all.

[6]

The appellant did nothing to advance the appeal after filing the record
until after this application to dismiss its appeal was filed. Since then there
has been a flurry of activity and counsel for the appellant filed an affidavit
yesterday and Mr. Manhas has arrived in court this morning with a written
argument, a brief of authorities, and a draft factum.

[7]

The property in question was owned by the respondent, which was
essentially a family corporation for the Saxton family. According to the
evidence it was purchased in the late 1970s at the instance of Mrs. Saxton, the
matriarch of the family. Although Mrs. Saxton has given each of her children an
unregistered lot on the property, she is still the beneficial owner of the
proceeds of the expropriation, as I understand it, and she has been actively
involved in the court proceedings since 1987. Her health has declined during
that period of time. The property had been her main source of income and that
income was lost to her when the property was expropriated. As I said, she may
have received some compensation from the advance payment in 2003 but, if so,
the evidence does not disclose how much. The evidence is that because of her
personal and financial involvement in the property, she has a strong interest
in the outcome and remains continuously updated on the proceedings. She is in
frail health. She suffered multiple strokes during 2003 and 2004. She is unable
to speak. In the last year she has broken both hips and she is now confined to
a wheelchair. She is 82 years old, the state of her health is deteriorating,
and, according to her son's affidavit, her outlook is not optimistic.

[8]

I have listened to counsels submissions for at least an hour and a half
this morning in which they have reviewed the evidence and explained their
positions. I do not intend to deal with the submissions in any detail.

[9]

The test to dismiss an appeal as abandoned is set out in
Davies v.
Canadian Imperial Bank of Commerce
(1987), 15 B.C.L.R. (2d) 256 at 260
(C.A.). The submissions here focus on three of the relevant factors: prejudice,
the merits of the appeal, and the overall interests of justice. This case, I
find, is very similar on its facts to the decision in
Redpath v. Redpath,
2009 BCCA 168, in which Mr. Justice Lowrys decision dismissing an appeal as
abandoned was affirmed on review.

[10]

Mr. Manhas has striven valiantly to convince me that there is an error
of law that should be heard by a division of this Court, but I am not persuaded
that is so. He says the error is that, in arriving at a valuation, the trial
judge relied on the comparable value of a property that had a different highest
and best use than the property being valued. This point turned on the evidence
of Mr. O'Mara, a witness at the trial, who said that the subject property, if
re-zoned RR1 for commercial development, would have been worth $1.925 million.
The trial judge relied on that figure in part in assessing the value of the
subject property. As I understand his submission, Mr. Manhas argues that was an
error because the property was not in fact viable for commercial development as
it turns out, but only for golf course use. He says also that Mr. O'Mara's
evidence on that point was inconsistent.

[11]

However, the trial judge was entitled to accept some or all of Mr.
O'Mara's evidence and it was up to her to weigh any inconsistencies in his
evidence, if any, of which I am not convinced. That is not a ground for
interfering with the judgment. And I am not persuaded that there is any reasonable
prospect that the error of law asserted by counsel would be successful in this
Court.

[12]

When considering the relevant factors, I am most influenced by the last
factor, the overall interests of justice. The matter has gone on, despite the
urgings of counsel for the respondent, for over six months with nothing being
done since the record was filed. Mr. Manhas says the appellant should not
suffer for the failings of its counsel. I appreciate that that is a factor to
consider but, in the circumstances of this case, I do not consider it an
overriding factor.

[13]

Given the inordinate delay and the explanation given by counsel for the
delay, which essentially was that he was too busy on other matters to attend to
this matter, and given the circumstances of Mrs. Saxton and her ill health, I
consider that it is in the interests of justice that this matter be finally
resolved and that she not be put through the further stress and anxiety of a
continuing appeal in which it is apparent that no active interest has been
displayed for such a long time.

[14]

I have concluded that the application must be granted and the appeal
dismissed as abandoned for failure to file the factum within the time specified
in the
Rules of Court
.

The Honourable Mr. Justice K. Smith


