



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Ross v. British Columbia (Public Safety),









2010 BCCA 24




Date: 20100119

Docket: CA037601

Between:

David Jonathan
Ross

Appellant

(Plaintiff)

And

Minister of Public
Safety and Solicitor General of British Columbia and Attorney General of Canada

Respondents

(Defendants)




Before:



The Honourable Mr. Justice Hall





(In Chambers)




On
appeal from the Supreme Court of British Columbia, September 28, 2009

(
Ross
v. British Columbia (Public Safety)
, S117620)




Appearing on His Own Behalf by Telephone:



D.J. Ross





Counsel for the Respondent:



M.F. Volk





Place and Date of Hearing:



Vancouver, British
  Columbia

November 30, 2009





Place and Date of Judgment:



Vancouver, British
  Columbia

January 19, 2010








Reasons for Judgment of the
Honourable

Mr. Justice Hall:

[1]

The applicant respondents, the Minister of Public Safety and Solicitor
General of British Columbia and Attorney General of Canada, apply for dismissal
of this appeal as abandoned on the basis that they were not properly served in
time with the necessary documents.  What is sought to be appealed is an order
of Schultes J. pronounced September 28, 2009 striking out the Statement of
Claim as filed and amended by the appellant.  In an unsuccessful application
for summary judgment heard before Williams J. in 2008, Williams J.
characterized the allegations in the Statement of Claim as outlandish and
unlikely.  It is not entirely easy to decipher the pleading of the appellant
but that observation of Williams J. seems not out of place.

[2]

Schultes J. said this at para. 38 of his Reasons:

[38]      The statements of claim
will be struck out on the basis that they disclose no reasonable claim and that
they will embarrass and delay any trial based on them.  The absent material
facts, if they exist, are solely within the knowledge of the plaintiff and
there is no way for this court to amend the statements of claim to address
their deficiencies.

[3]

In this case, the failure of the appellant to serve the material on the
respondents in a timely way could be cured by an extension of time to make the
necessary service.  There was no great delay here.  In such circumstances, I
would usually consider it appropriate for any necessary extension of time to be
ordered.  If this was ordered, the application of the respondents to the appeal
for an order that the appeal be dismissed as abandoned could not succeed.

[4]

After hearing from the parties, I adjourned this application so that I
could comprehensively review all the material and the proceedings in the trial
court.  Having now had an opportunity to do this, I have reached the firm
conclusion that the proposed appeal has no possibility of success.  The
pleadings are so deficient that no relief could be granted by a court based on
the pleadings.  In the circumstances, it would be pointless to have the case
considered by a division of this Court.

[5]

In the particular and rather unusual circumstances extant in this case,
I consider that the application of the respondents is one that ought to be granted. 
I consider this comment of Esson J.A. in
K & M Crane and Equipment
Rental Ltd. v. Deer Trail Development Ltd.
, 1999 BCCA 696, at para. 7, is
apposite in the circumstances of this case:

I concluded, in all the
circumstances, that the application to dismiss should be allowed now without
putting the parties to any further expenditure of time and money.  The appeal
is one which has no chance of success.

[6]

The appeal ought to be dismissed as abandoned.

The
Honourable Mr. Justice Hall


