



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Reischer 
          v. Love,







2006 
          BCCA 22



Date: 20060116





Docket: CA032914

Between:

Susan 
    Frances Reischer

Respondent

(
Plaintiff
)

And

Joshua 
    Robert Love and Gladys Helen Love

Appellants

(
Defendants
)








Before:


The 
          Honourable Madam Justice Southin




The 
          Honourable Mr. Justice Donald




The 
          Honourable Madam Justice Huddart



Oral Reasons for Judgment




S.M. 
          Katalinic


Counsel for the Appellants




D.R. 
          McLeod


Counsel for the Respondent




Place 
          and Date:


Vancouver, British Columbia




16 January 2006





[1]

SOUTHIN, J.A.
: This is an application for the review of 
    an order of our brother Mackenzie.  Two problems arise on it that were not 
    really thought through, I think, by counsel.  One is a term which expresses 
    the learned judges opinion that this case did not require a five judge panel, 
    but it is couched in such a way in the order that it could be looked upon 
    as a decision by the learned chambers judge binding on the court that there 
    should be no such thing.  I am sure he did not mean it.  The question of whether 
    there should be a five judge panel is a matter to be dealt with in the usual 
    course of this Court by an application by a party to an appeal to the Chief 
    Justice, who will address the point in the fullness of time.  Therefore the 
    order is to be varied by deleting the term.

[2]

The other is a paragraph of the order which says:

IT 
    IS FURTHER ORDERED THAT the written submissions of the parties filed on this 
    application are sufficient and factums are not required.

There is not any rule of this Court that uses that language 
    exactly.  We do have a rule, 21(4), on the application of a party or on a 
    justices own motion, a justice may order that the filing of factums by any 
    or all parties be dispensed with.  We also have Rules 19 and 20, especially 
    19 about appeal records.  We have a general power under s. 9 of the
Act
, 
    which we can do anything we like in the management of appeals, more or less.

[3]

This really should have been an order that the filing of an appeal 
    record be dispensed with and that the motion book and the reply book in the 
    court below stand in lieu of the record.  Secondly, maybe, that factums be 
    dispensed with.  However, the solution is that counsel for the appellant says 
    to us that the factum may be useful for the court.

[4]

For reasons which I need not go into, it has now occurred to counsel 
    for the respondent that it might be useful to him, too.  We vary this order 
    by deleting the clause in question and substituting an order, it is further 
    ordered that the motion book and reply books in the court below stand in place 
    of the appeal record and appeal book.  I suppose there was affidavit evidence.  
    That would ordinarily be the appeal book.  What was done below will do for 
    the appeal record and the appeal book, and the factums will be filed in the 
    usual way.

[5]

Now, about time.  This matter has been delayed.

(discussion with counsel)

[6]

The usual rule, of course, is 30 days after filing the record.  The 
    time limit will start to run from this day.

The Honourable Madam Justice Southin


