



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Baldwin v. Baldwin,









2012 BCCA 116




Date: 20120127

Docket: CA39361

Between:

Janet Kelly
Baldwin

Appellant

(Petitioner)

And

Wesley Warren
Baldwin

Respondent

(Respondent)




Before:



The Honourable Madam Justice Bennett





(In Chambers)




On appeal from: Supreme
Court of British Columbia, September 12, 2011
(
Baldwin v. Baldwin
, Fort St. John Registry 20560)

Oral Reasons for Judgment




Appellant appearing In Person via teleconference:









No One appearing on behalf of the Respondent:









Place and Date of Hearing:



Vancouver, British
  Columbia

January 27, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 27, 2012






[1]

BENNETT J.A.
: The applicant, Janet Baldwin, applies for an
extension of time to file the appeal record. She anticipates that Wesley
Baldwin, the respondent, does not oppose the application. It appears that
counsel for Mr. Baldwin was served with the application but has not appeared.
The Court of Appeal Registry left a message with his office and the matter was
stood down until 2:30. It is now 2:30 and counsel has not appeared.

[2]

The underlying appeal is from Madam Justice Loos judgment, pronounced
on September 12, 2011, dismissing the applicants petition for judicial review.


BACKGROUND FACTS AND PROCEEDINGS BELOW

[3]

Janet and Wesley Baldwin are siblings. Their parents, Jerry and Doris
Baldwin, own real property with a bus and a trailer on-site. Janet and her
partner, Paul Williams, resided on her parents property as tenants at one
time. Janet and Paul developed an acrimonious relationship with the respondent
Wesley and his family, their sister Lorrie and her family, and Jerry and Doris,
all of whom obtained a restraining order in April 2008 in the Alberta Court of
Queens Bench against Janet and Paul. (I should add I am using first names not
out of any disrespect for the parties or the people involved, but because
everyone with the exception of Mr. Williams is a Baldwin.)

[4]

Jerry Baldwin sought to evict Janet Baldwin and Paul Williams from his
property. On April 15, 2008, a dispute resolution hearing was held under the
Residential
Tenancy Act
, S.B.C. 2002, c. 78. The dispute resolution officer found that
the tenancy was contingent upon an employment contract between Doris and Paul
that had terminated on January 1, 2008. There was no signed tenancy agreement
and no rent was ever paid. Paul Williams agreed to vacate with two months
notice. Accordingly, the officer ordered Mr. Williams to deliver full and
vacant possession of the rental unit on the property to Doris and Jerry Baldwin
no later than 1:00 p.m. on June 30, 2008. The officer also found that Janet
Baldwin was not a party to the application as she was not a signatory to the
employment contract. Her submission that she had signed a greater-than-20-year
lease with her mother was rejected.

[5]

Janet then brought three proceedings in Provincial Court. The first was
initiated on March 18, 2009 and dismissed by the judge. In dismissing the
second proceeding at a settlement conference on March 29, 2010, the judge
identified the subject matter as identical to that of the previous litigation.
In dismissing the third Provincial Court action at a settlement conference on
December 9, 2010, the judge noted that Janet Baldwin was raising issues
addressed in the April 15, 2008 dispute resolution hearing, but now against a
different party. The judge also noted that Janet Baldwin had yet to produce the
lease she claimed to have signed with her mother. Her claim was dismissed as
frivolous and an abuse of process.

[6]

Next, Janet filed a petition for judicial review under the
Judicial
Review Procedure Act
, R.S.BC. 1996, c. 241. Madam Justice Loo dismissed the
petition, noting that it was out of time and, in any event, an appeal in
substance. She noted that Janet Baldwin did not produce any written lease.

[7]

Justice Loo awarded costs of $1,200 to Wesley Baldwin. She discussed s.
18 of the
Supreme Court Act
, R.S.B.C. 1996, c. 443, which authorizes a
Supreme Court judge to make a vexatious litigant order. She was inclined to
make the order but did not do so as no s. 18 application was before her.

[8]

Janet Baldwin is late in filing her appeal record because she did not
receive the Reasons for Judgment from the Supreme Court in a timely way,
although she apparently ordered them promptly. It appears that through no fault
of her own, Ms. Baldwin was unable to file her appeal record.

LEGAL TEST  EXTENSION OF TIME

[9]

The five criteria to be considered in an application for an extension of
time to take a necessary step in the prosecution of an appeal were set out in
Davies
v. C.l.B.C.
(1987), 15 B.C.L.R. (2d) 256 (C.A.) at 259-260:

1) Was there a
bona fide
intention to appeal?

2) When were the respondents informed of the intention?

3) Would the respondents be unduly prejudiced by an extension
of time?

4) Is there merit in the appeal?

5) Is it in the interests of justice that an extension be
granted?

See also
Sekhon v. Armstrong
,
2003 BCCA 318 at para. 17;
Dadashzadeh v. British Columbia (Motor Carrier
Commission)
, 2003 BCCA 463 (Chambers) at para. 7.

[10]

The first four criteria inform and serve as guides for determination of
the fifth and decisive interests of justice factor (
Davies
at 260;
Perren
v. Lalari
, 2009 BCCA 564 at para. 33;
Haldorson v. Coquitlam (City)
,
2000 BCCA 672 at para. 9).

[11]

There is a question as to whether a single justice in chambers has
jurisdiction to deny an extension of time for further prosecutorial steps
solely on the basis of lack of merit.

[12]

In
Barta v. Canaccord Capital Corp
(1997), 36 B.C.L.R. (3d) 81,
90 B.C.A.C. 282 (C.A.) McEachern C.J.B.C. referred to the anomaly in practice
at paras. 6-7 (B.C.L.R.):

[6]        ...There is an obvious anomaly in the practice
since an application to dismiss an appeal on the ground that it is bound to
fail must be heard by the Court whereas an application to extend time may be
refused by a single judge on the ground that the appeal is bound to fail.

[7]        I do not say that a
judge can never determine that an appeal is absolutely bound to fail without an
examination of the transcript which was not available at the time of the
application in this case, but the practice has certainly been not to do so upon
such an application in these circumstances.

[13]

Esson J.A., concurring, held at para. 12:

[12]      ...That anomaly, I
suggest, is more apparent [than] real in that it is one thing to take the lack
of merit into account as one circumstance, it is another to refuse the
extension of time on the sole ground that the case lacked merit. I would hold
that, as a general matter, an extension of time should not be refused simply on
the basis of lack of merit.

[14]

In
Dadashzadeh
, Rowles J.A. stated at para. 10:

[10]      In my opinion, when an
appeal is brought within the time limited for bringing an appeal, a single
justice has no jurisdiction to refuse an extension of time to take a step in
the prosecution of the appeal if the sole ground for refusing the extension is
that the appeal has no merit.

[15]

See also
Sekhon
, in which Rowles J.A., for the majority, stated:

[28]      It is my respectful
view that the refusal to extend the time for filing the Appeal Record, Appeal
Book and factum on the ground that the appeal had no hope of success was wrong
in principle and must be set aside. The effect of the order dismissing the
application to extend the time is, of course, to bring the appeal to an end
without the appeal having been determined by a panel on its merits.

[16]

However, in
Carstensen v. Arbutus Management Ltd.
, 2003 BCCA 88
(Chambers) and
G. Avtar Plaster & Stucco Ltd. v. J.M.J. Developments
Ltd.
, 2011 BCCA 456 (Chambers), single justices dismissed applications to
extend time for taking prosecutorial steps based solely on the absence of
merit, without mentioning the above-noted authorities.

[17]

Single justices sitting in chambers apparently retain discretion to
refuse an extension of time to take prosecutorial steps if the absence of merit
renders the continuation of the appeal contrary to the interests of justice. In
Seiler v. Mutual Fire Insurance Co. of B.C
., 2003 BCCA 696 (Chambers), Chief
Justice Finch held that an extension of time for service was not in the
interests of justice since the appeal was doomed to fail:

[18]      While refusal to extend
the time for service in these circumstances may seem like a harsh result, the
fact is that there is no prospect of the plaintiffs succeeding on their appeal.
Extending the time for service of notice for an appeal that is doomed to fail would
put all parties to unnecessary expense, and clearly would not be in the
interests of justice.

[18]

Similarly, in
Rotzetter v. Rotzetter
, 2003 BCCA 12 (Chambers),
Southin J.A. refused an application for extension of time to file a factum and
transcript extracts, stating:

[7]        But, on all applications to extend time, the
overriding consideration must be the interests of justice. Justice is not a
concept which lends itself to scientific analysis. Among the considerations is
the effect on the parties of litigation. The applicant, an intelligent man, is
enjoying representing himself in this appeal. What the respondent thinks of it
all, I do not know, but it was plain to me that Ms. Hyslop, her counsel,
considers this appeal an exercise in irritating futility.

...

[11]      It is in the interests
of the parties to this appeal and their children that this litigation should
end. In so remarking, I appreciate that the applicant may well consider that
what is in his best interests is for him to say and not for me. It is also, however,
in the best interests of society that a pointless appeal shall not further take
up the time of this Court which has many litigants knocking at its doors with
appeals of merit.


PROPOSED DISPOSITION

[19]

Ms. Baldwin has met the first three
Davies
criteria. The only
outstanding issue is merit. This is not a case where I should weigh in on whether
an application to extend time to file an appeal record can be dismissed solely
for want of merit. In the unusual circumstances of this case, I will grant the
extension of time despite the fact that there is little merit to the appeal. The
interests of justice so require, given that it was through no fault of Ms.
Baldwin that she was unable to comply with the time limit.

[20]

Ms. Baldwin has until February 3, 2012, to file and serve her appeal
record.

(discussion
with appellant)

The
Honourable Madam Justice Bennett


