



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Gill 
          v. Highland Pacific Mortgage Corporation,







2006 
          BCCA 15



Date: 20060106





Docket: CA032660

Between:

Charan 
    Kaur Gill

Appellant

(
Plaintiff
)

And

Highland 
    Pacific Mortgage Corporation

Respondent

(
Defendant
)












Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Madam Justice Saunders




The 
          Honourable Mr. Justice Smith



Oral Reasons for Judgment




K.E. 
          Ducey


Counsel for the Appellant




M.C. 
          Baron


Counsel for the Respondent




Place 
          and Date:


Vancouver, British Columbia




6 January 2006





[1]

SMITH, J.A.
:  This application is brought pursuant to 
    s. 9(6) of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77 
    (the "
Act
"), to review a decision made by Mr. Justice 
    Lowry in Chambers, in which he refused the appellant an extension of time 
    to file the appeal record, transcripts, and appeal books.

[2]

This review is not 
    a re-hearing of the original application.  We may not interfere unless we 
    are satisfied that the Chambers judge made an error in principle.  The standard 
    of review on this application was set out in the decision of this Court in
Frew v. Roberts
(1990), 29 B.C.L.R. (3d) 34, where, at p. 36, 
    in the majority judgment, Chief Justice McEachern said the following:

In my view, the determination whether an appeal should 
    be dismissed in such circumstances is not truly a matter of discretion.  It 
    was a matter of judgment to be applied to the circumstance of the case.  The 
    learned Chambers Judge who heard the matter, in his judgment, thought that 
    the appeal should be dismissed and that is the order he made.

It is my view that we should not interfere with that 
    decision unless we are satisfied that the Chambers Judge was wrong in the 
    legal sense and not merely that he exercised a discretion incorrectly.  I 
    am not persuaded that he erred in his disposition of the matter. ...

That standard of review has been adopted and elaborated 
    in many decisions of this Court, including:
Haldorson v. Coquitlam 
    (City)
, 2000 BCCA 672, at paras. 6 and 7; and
East Broadway Residents Association v. Vancouver 
    (City)
, 2000 BCCA 
    657, at para. 11.

[3]

The appellants action against the respondent was tried in the Supreme 
    Court before Mr. Justice Cohen over a period of four days.  On January 12, 
    2005, he dismissed the action, delivering lengthy and comprehensive reasons 
    for judgment: they are indexed at 2005 BCSC 40.

[4]

The appellant filed a notice of appeal on February 9, 2005, within 
    the 30 days required by s. 14(1)(a) of the
Act
.  However, 
    she failed to do anything further to move her appeal along until she brought 
    her application before Mr. Justice Lowry on October 14, 2005, for 
    an extension of time of six months to file the appeal record and the transcripts 
    of evidence, and a further extension to file the appeal books.  The appeal 
    record and transcripts were required to be filed within 60 days of the 
    notice of appeal (Rules 19 and 20), that is, by April 9, 2005, and 
    the appeal books were to be filed within a further 30 days (Rule 21), 
    that is, by May 9, 2005.

[5]

The Chambers judge referred to the relevant factors to be considered 
    on such an application as they are set out in
Davies v. Canadian Imperial 
    Bank of Commerce
(1987), 15 B.C.L.R. (2d) 256:

[2]        It is common ground and well settled that the considerations 
    on an application of this kind are five:  1)  Was there a
bona 
    fide
intention to proceed with an appeal during the 60 day period 
    provided by the Rules for filing the Appeal Record and the transcripts?  2)  When 
    was that intention made known to the respondent?  3)  Would the 
    respondent be unduly prejudiced by an extension?  4)  Is there merit 
    in the appeal?  5)  Is it in the interests of justice that the extension 
    sought be granted?  See
Davies v. Canadian Imperial Bank of Commerce
(1987), 15 B.C.L.R. (2d) 256 at 259-260 (C.A.).

[6]

He noted that an extension of time would not cause undue prejudice 
    to the respondent.  However, he observed that the appellant took no steps 
    to order the preparation of the appeal records and transcripts until about 
    May 12, more than a month after the time for filing them had expired.  
    He remarked that the appellants solicitors advised the respondents solicitors 
    by letter of May 12 that they intended to file the transcripts and appeal 
    books as soon as possible and that the respondents solicitors replied that 
    the appellant would have to apply for an order extending time.  He found that 
    the appeal record and transcripts were prepared and were delivered to the 
    appellants solicitors on June 29.  He noted that on July 7, although 
    they had been advised they would have to apply for an extension, the appellants 
    solicitors sent a form of consent order for the extension of time to the solicitors 
    for the respondent.  The appellants solicitors received no reply and did 
    nothing until they initiated this application near the end of August 2005.

[7]

In the view of the Chambers judge, the application turned on whether 
    the appellant had an intention to appeal during the 60 days that elapsed 
    after she filed the notice of appeal to the date the appeal record and transcripts 
    were due.  The evidence before him consisted of her solicitors affidavit 
    in which she deposed that, until April 18, 2005, she had delayed ordering 
    the transcripts and appeal books because the appellant was considering her 
    options as she was concerned about the costs of proceeding with the appeal.  
    The significance of April 18, 2005, was that it was on that day that 
    the respondents solicitors delivered a bill of costs for the action in the 
    Supreme Court to the appellants solicitors.

[8]

The Chambers judge concluded that the books were not ordered until 
    mid-May because the appellant was considering whether to proceed with the 
    appeal and was awaiting her solicitors advice.  He continued,

[9]        In
Poirier v. Poirier Estate
(1991), 60 B.C.L.R. (2d) 
    332, a panel of this Court reviewed a decision of a justice in a somewhat 
    similar application where the same relief was sought.  The relief was ultimately 
    granted in what the Court considered to be the unusual and extremely rare 
    circumstances of the case which are unlike the circumstances here.  However, 
    the following observations that were made by the Court there are germane to 
    this case:

[29]      
    In all the material before us, there is no evidence from the appellant herself 
    as to why she had not given instructions for the transcript to be ordered 
    at any earlier time.  She has nowhere pledged her oath that she has always 
    had a settled and genuine intention to proceed with this appeal.

* * *

[31]      
    By obeying the Rule, an appellant evinces a serious and settled intention 
    to proceed with the appeal.  By not obeying, an appellant casts grave doubt 
    upon the purpose for which she gave the notice of appeal.

* * *

[33]      
    It is important to note that in this case we are not dealing with a delay 
    in filing the transcript and appeal book caused by delays on the part of the 
    court reporters nor with a failure to file proof nor with any solicitors 
    inadvertence.  We are dealing with the failure to order.  To my mind, such 
    a failure is almost as grave an omission on the part of an appellant as failing 
    to file a notice of appeal within time.

[9]

As a result, he concluded that the appellant had not established an 
    intention to proceed with the appeal prior to April 9, when she was required 
    to file the books.  He found that she did not decide to proceed until a month 
    or more later.

[10]

He said he did not find it necessary to comment on the merits of the 
    appeal, although he stated that it was far from clear to him that the trial 
    judge had erred, and he found that there was no basis to say that the interests 
    of justice warranted granting the application.  Accordingly, he dismissed 
    it.

[11]

On this review, counsel for the appellant submits that the Chambers 
    judge erred in failing to conclude that the interests of justice required 
    that the application be granted.  More specifically, she contends that his 
    error was in giving too much weight to the failure to order the books in a 
    timely way.  She submits that, by filing the notice of appeal, the appellant 
    demonstrated a clear intention to appeal.  She contends that there is merit 
    in the appeal, that the delay was not inordinate, that there would be no prejudice 
    to the respondent in granting the extension, and that the delay is attributable 
    to the appellants solicitors delay in providing the appellant with timely 
    advice.

[12]

In support of her submissions, she refers to
Barta v. Canaccord 
    Capital Corp.
(1997), 36 B.C.L.R. (3d) 81 (C.A.) and to
Bridger 
    v. Bridger Estate
(2005), 19 E.T.R. (3d) 74; 2005 BCCA 412 (Chambers), 
    Donald J.A.  She contends that these cases emphasize the overriding importance 
    of the interests of justice and stand for the proposition that an extension 
    ought to be granted where the delay is short and there is no prejudice to 
    the respondent.

[13]

Barta
was a review of a decision of a Chambers 
    judge dismissing an application to extend time for filing appeal books and 
    transcripts on the basis that there was no merit in the appeal.  The appellant 
    had ordered the books promptly, but was advised that the court reporter could 
    not prepare them in time.  The appellant applied immediately for an extension.  
    The Court allowed the review on the ground that the Chambers judge had erred 
    in principle in dismissing the application solely on his view of the merits 
    of the appeal, without considering the other
Davies
factors.  
    Since the other relevant conditions had been satisfied and the delay was primarily 
    the fault of the court reporter, the extension was granted.

[14]

In
Bridger
, the appellants did not file notice of appeal 
    because of erroneous advice received from their solicitor that time to appeal 
    did not start to run until the order memorializing the trial judgment was 
    settled.  They applied to extend the time for appeal.  They could not satisfy 
    the first two
Davies
criteria, that is, that they had a
bona 
    fide
intention to appeal before the appeal period expired and that they 
    communicated that intention to the respondents.  Nevertheless, Mr. Justice 
    Donald found it was in the interests of justice to grant the extension since 
    the appellants missed the limitation because they relied on their solicitors 
    erroneous advice, they acted promptly after the trial judgment was settled, 
    there was merit in their appeal, the delay was short, and the matter was a 
    family dispute that would not come to an end unless an extension of time to 
    appeal should be granted.

[15]

In my view, these cases do not assist the appellant.  The Chambers 
    judge here considered all of the relevant factors and did not make the error 
    in principle made in
Barta
of relying on one to the exclusion 
    of others.  Further, the facts that impelled Mr. Justice Donald to conclude 
    that the interests of justice required an extension in the
Bridger
case are very different than the facts of this case.  Whether the interests 
    of justice require an extension of time will, of course, depend upon the particular 
    facts in each case.

[16]

As I have noted, the appellant says that the error of the Chambers 
    judge was in placing too much weight on the failure to order the books.  In 
    this regard, the Chambers judge said this:

[6]        It is said that Ms. Gill had an intention to appeal throughout 
    and, in particular, during the 60 day period following the filing of 
    the notice of appeal on February 9.  But there is no evidence to that 
    effect.  Ms. Gill has sworn no affidavit in support of this application.  
    Reliance is placed only on her solicitors affidavit that says nothing about 
    her ever having given instructions to order the Appeal Record and the transcripts.

[7]        All Ms. Gills solicitor says that is relied upon in this 
    regard is as follows:

Up 
    to this point [i.e., April], we had delayed ordering the transcripts and appeal 
    books as our client was considering her options as she was concerned about 
    the costs of proceeding with the appeal.  This delay was also due in part 
    to my own delay in providing our client with a detailed opinion as to her 
    various options and the costs associated with each of the options.

[8]        Thus, it would appear that the Appeal Record and the transcripts 
    were not ordered before mid-May because Ms. Gill was considering whether 
    to proceed with the appeal and was awaiting advice from her solicitor in that 
    regard.  It was evidently the application for costs in May that prompted Ms. Gill 
    to decide to proceed with the appeal, as indicated by her solicitors in what 
    they wrote to the solicitors opposite on May 12.  I do not consider it 
    could, on this evidence, be said that Ms. Gill had formed the intention 
    to pursue an appeal before then, and by then she had no real prospect of being 
    able to file the Appeal Record and transcripts before the end of June, almost 
    three months out of time.  Even when the mortgagees solicitors made it clear 
    that an application to extend time would be required, Ms. Gills solicitors 
    took no steps to make such an application until at least the end of August.

[17]

The appellant has placed before us an affidavit she swore after the 
    decision of the Chambers judge was handed down.  Counsel advises that it was 
    prepared in response to the observation of the Chambers judge that the appellant 
    had not sworn an affidavit in support of the application and had chosen to 
    rely on her solicitors affidavit.  No explanation was offered for why the 
    appellant's evidence contained in this affidavit was not placed before the 
    Chambers judge.  The affidavit does not meet the due-diligence criterion for 
    the admission of fresh evidence.  However, as Southin J.A. remarked in
Bradbury v. I.C.B.C.
(1989), 42 B.C.L.R. (2d) 397 at 399, justice 
    requires that the law should be applied to the true facts of the case.  The 
    same principle is alluded to in
Dagneault v. Hatton
(1994), 
    99 B.C.L.R. (2d) 109 (C.A.) at para. 14.

[18]

With that in mind, I have examined the fresh affidavit to determine 
    if it contains anything that falsifies the facts found by the Chambers judge 
    so that it could be said that if it had been before him it could reasonably 
    be expected to have affected the result.  In my view, it does not.  In this 
    regard, the appellant deposed:

3.         On February 8, 2005, I instructed Ms. Ducey to file 
    a Notice of Appeal on my behalf as it was my intention to pursue an appeal 
    of Mr. Justice Cohen's Order if it was financially viable for me to do 
    so.  At the time I was awaiting advice from Ms. Ducey on the costs of 
    pursuing the appeal as well as what my costs incurred to date were.  In conjunction 
    with this, I was concerned about whether the Respondent would be pursuing 
    costs of the action as I felt that I needed this information in order to fully 
    evaluate my position.

. . .

6.         On May 11, 1005, after learning that the Respondent was 
    applying for an order for costs of the action, I confirmed my instructions 
    to Ms. Ducey to proceed with the Appeal.  Until them I had not been advised 
    that the Respondent was actually pursuing costs against me.

[19]

Thus, the affidavit supports the conclusion of the Chambers judge that 
    the appellant did not have a genuine intention to proceed with the appeal 
    until after the time for filing the appeal record and transcripts expired.  
    According to her affidavit, she did not decide to proceed until she learned 
    that the respondent was seeking costs of the action in the Supreme Court.

[20]

As I have already said, the Chambers judge considered all of the relevant 
    factors enumerated in
Davies
, including the interests of justice.  
    In my view, counsel for the appellant is asking us to re-consider them, to 
    weigh them differently than the Chambers judge did, and to come to a different 
    conclusion.  In effect, she is asking us to re-hear the application.  We are 
    not permitted to do that.

[21]

In my view, it has not been demonstrated that the Chambers judge made 
    any error that would warrant our interfering with his order.  I would refuse 
    the application for review.

[22]

FINCH, C.J.B.C.
:  I agree.

[23]

SAUNDERS, J.A.
:  I agree and I would add few comments.

[24]

As I understand the phrase the "interests of justice", it 
    encompasses but is larger than the four specific factors referred to by Mr. Justice 
    Smith and set out in
Davies v. Canadian Imperial Bank of Commerce
.  
    In particular, where the length of delay is not great, I consider the merits 
    of the case of significance in determining whether the interests of justice 
    warrant an extension of time.  Here, the Chambers judge put the merits low, 
    but did so in a phrase that was rather polite in saying that the prospect 
    of success "appears to me to be far from clear".

[25]

For clarity, I should 
    say that on my understanding of the issue sought to be advanced on appeal 
    and given the limited ability of this Court to interfere with findings of 
    fact of a trial judge as set out by the Supreme Court of Canada in cases such 
    as
Housen v. Nikolaisen
, [2002] 2 S.C.R. 235; 2002 SCC 33 and 
    predecessor cases, the task that would be faced by the appellant here on appeal 
    would be an uphill one indeed.  If the merits of the case appeared stronger, 
    it is possible that one would take a different view of the interests of justice.  
    But I do not see the merits of the case as being sufficiently strong to weigh 
    counter to the failure to form the intention to appeal that has been the substance 
    of Mr. Justice Smith's comments today.

[26]

FINCH, C.J.B.C.
:  The application to review the order of 
    Mr. Justice Lowry is dismissed.

(discussion with counsel)

[27]

Well, I would think that you could get the costs of the review application 
    and I suppose that does bring the appeal to an end, so I cannot see why you 
    would not.  I think that is right.  Thank you.

The 
    Honourable Chief Justice Finch

The 
    Honourable Madam Justice Saunders

The 
    Honourable Mr. Justice Smith


