



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



D. Bacon Holdings Ltd. v. Naramata Vines Inc.,









2011 BCCA 22




Date: 20110118

Docket: CA038315

Between:

D. Bacon Holdings
Ltd., Dr. Barb Astle, Dr. Bill Astle,
Don Bacon, Dr. Danaze Chambers, Mark Smith,
Douglas J. Vincelli Professional Corporation,
Alpenstock Inc. and Sophia Ventures Ltd.

Respondents

(Plaintiffs)

And

Naramata Vines
Inc., Naramata Bench Vineyards Inc.

with an assumed
name of Naramata Vines Inc.,

0792625 B.C. Ltd.,
Tremblant Developments Inc. and James Angrove

Appellants

(Defendants)




Before:



The Honourable Madam Justice Saunders





The Honourable Mr. Justice Lowry





The Honourable Mr. Justice Frankel




On judicial review:
Court of Appeal for British Columbia, November 5, 2010
(
D. Bacon Holdings Ltd. v. Naramata Vines Inc.
, Docket
No. CA038315)

Oral Reasons for Judgment




Counsel for the Appellant:



J. Angrove





Counsel for the Respondents:



M.B. Morgan and L.E.
  Cook





Place and Date of Hearing:



Vancouver, British
  Columbia

January 18, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 18, 2011








[1]

LOWRY J.A.
: The appellants apply to vary the order of Mr. Justice
Low made 5 November 2010 denying their application to extend the time to post
security for the respondents costs and allowing the respondents application
to dismiss the appeal as abandoned. To succeed, the appellants must establish
the order, which was made in the exercise of a discretion, was based on an
error of law, and error of principle, or a misapprehension of the facts:
Haldorson
v. Coquitlam (City)
, 2000 BCCA 672 at para. 7.

[2]

The respondents allege that the appellants misappropriated funds they
invested in the purchase and development of a vineyard. The action was
commenced in February 2009. Judgment in default of a defence was entered in
April 2009. A notice of motion to set it aside was filed in May but was not
heard. Rather, an assessment of damages proceeded to trial in June 2010. The
appellants chose not to appear. The respondents were granted judgment for
$574,085 and special costs.

[3]

The appellants promptly filed a notice of appeal and the respondents
applied for security for costs both of the trial and the appeal. At the end of
September, Mr. Justice Chiasson ordered the respondents to post security
of $32,000 by 27 October 2010 and stayed the proceedings pending
compliance.

[4]

Mr. Justice Low found there was no reason to extend the time for
compliance with Mr. Justice Chiassons order. The appellants maintained they
were unable to post the required security and the prospects of their being able
to do so in the three or four months they sought were seen to be vague and not
supported by any business documents. Mr. Justice Low discounted the suggestion
the respondents had wrongly impaired the appellants ability to raise the funds
necessary for the security by an Internet publication warning would-be
investors to steer clear of the personal appellant in particular. Finally, he
recognized the respondents were prejudiced by the delay because it prevents
them from registering their judgment in Alberta where they consider they may
have some prospect of undertaking execution proceedings.

[5]

The appellants challenge all aspects of Mr. Justice Lows reasoning but,
in my view, they do not establish any legal error or any misapprehension of the
facts. They simply urge us to take a different view of the evidence. The fact
is they have adduced no evidence of anything more than speculation as to when
they would be able to post the required security and, most importantly, no
evidence of any material change in their circumstances during the 30 days they
were given to post the security. They have established no basis on which we
could interfere with the order they seek to have us vary.

[6]

I would dismiss the application.

[7]

SAUNDERS J.A.
: I agree.

[8]

FRANKEL J.A.
: I agree.

[9]

SAUNDERS J.A.
: The application is dismissed.

The
Honourable Mr. Justice Lowry


