



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



Thompson v. Canada (Attorney
  General)









2010 BCCA 60




Date: 20100106

Docket: CA036169

Between:

Lisa Darlene Thompson

Appellant

(
Plaintiff
)

And

Attorney General of Canada,
Attorney General of British Columbia,
Mike Pfeifer, Fred Bott, Fraser Health Authority,
Lois Felkar and Estate of Bryan Bruce Heron, Deceased

Respondents

(
Defendants
)




Before:



The Honourable Madam Justice Prowse





(In Chambers)




On
appeal from Supreme Court of British Columbia, May 8, 2008
(
Thompson v. Attorney General (Canada)
, 2008 BSCS 582, Van. Reg.
S052565)

Oral Reasons for Judgment




Counsel for the Appellant:



A.C.
  Ward





Counsel for
  the Respondents, Attorney General of Canada, Attorney General of British
  Columbia, M. Pfeifer, F. Bott



H.J. Roberts





Counsel for
  the Respondents, Fraser Health and L. Felkar



W.S. Dick





Counsel for
  the Respondent, Estate of B. Heron, Deceased



T.E. Sprague





Place and Date of Hearing:



Vancouver,
  British Columbia





January 6, 2010





Place and Date of Judgment:



Vancouver
, British Columbia





January
  6, 2010






[1]

PROWSE J.A.
: Ms.
Thompson is seeking directions as to whether she requires leave to appeal from
an order made by a chambers judge on May 8, 2008, following the hearing of a
special case. The order provides:

THIS COURT ORDERS

That Lisa
Thompson cannot maintain an action in negligence against any of the Defendants
to recover compensation for psychiatric injuries suffered as a consequence of
the deaths of Sherry Heron and Anna Adams.

[2]

This appeal was reinstated by order of Madam
Justice Rowles made December 9, 2009. At that time, Madam Justice Rowles
expressed the view that the order was final with respect to the determination
of the issue raised in the special case but, since there seemed to be some
doubt expressed by counsel in that regard at that time, she directed counsel
for Ms. Thompson to file a Notice of Appeal (a Notice of Application for Leave
to Appeal already having been filed) and to seek directions as to whether leave
was required and, if leave was required, to seek leave to appeal.

[3]

As of today, the Notice of Appeal has not been
filed. There was apparently some misunderstanding as to the effect of Madam
Justice Rowles order, but I am advised by counsel for Ms. Thompson that he
will file that Notice of Appeal today. No exception is taken to that by the
respondents.

[4]

It is unnecessary to review the background of
this case which is set out in detail in the reasons of the chambers judge, 2008
BCSC 582, and summarized by Madam Justice Rowles in her recent chambers
decision, 2009 BCCA 614. In my view, there is no doubt that the order of the
chambers judge disposing of the issue raised on the special case is a final
order which does not require leave to appeal. None of the respondents has
argued otherwise. During the course of the hearing of this application there
was a discussion as to whether, and to what extent, counsel for Ms. Thompson
was seeking to raise issues related to the orders of Master Tokarek which were
dealt with briefly by the chambers judge in this matter by way of dismissing an
application for leave to extend the time to appeal the decisions of Master
Tokarek. I am advised by counsel for Ms. Thompson on this application that the
only order he proposes to pursue on this appeal is, in fact, the order as
framed as stated of May 8, 2008.

[5]

On that basis, my conclusion is, as I have
stated, leave to appeal is not required and the appeal should proceed on the
basis of the Notice of Appeal, which will be filed today.

[6]

The only question I have is whether directions are
required with respect to the appeal proceeding from this point onward? The
Notice of Appeal was to take effect as of the date the notice of application
for leave to appeal was filed. I do not know to what extent Madam Justice
Rowles dealt with that question, but arguably, extensions of time are required
for all of the filings thereafter. That is why I want to make sure we do not
run into stumbling blocks. It seems to me that some kind of filing schedule
should be agreed upon by counsel. If I can assist in that regard, I will, but
if you think you can do it on your own then, I urge you to do so. In other
words, I do not want the situation to occur where counsel attempt to file
documents at the Registry and they are told they are out of time. It may be that
you wish to agree that all filings shall be in accordance with the Rules and
shall flow from this date forward so that today is the starting date for all
further applications. If so, I am happy to make that order.

(counsel
agree)

[7]

PROWSE J.A.
: I
will make that part of my order in terms of directions. I would direct that all
further filings following the filing of the Notice of Appeal today will take
place with today as the running date from which all further filings follow and
that the parties will hereafter adhere to the time limits set out in the
Court
of Appeal Rules
. That filing schedule will be subject to the consent of
counsel if for some reason they wish to make adjustments.

(submissions
on costs)

[8]

PROWSE J.A.
: In
my view, the appropriate order with respect to this application is that each
party will bear his or her own costs.

The Honourable Madam Justice Prowse


