



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


E. 
          Sands & Associates Ltd. v. Dextras,







2006 
          BCCA 82



Date: 20060125





Docket: CA033646

Between:

E. 
    Sands and Associates Ltd., Trustee of the

Estate 
    of National Shoring Ltd., a Bankrupt

Respondent

(
Plaintiff
)

And

Ken 
    Dextras and Susan Dextras

Appellants

(
Defendants
)












Before:


The 
          Honourable Madam Justice Prowse




(In 
          Chambers)



Oral Reasons for Judgment




M. 
          Sandor


Counsel for the Appellants




B. 
          Konst


Counsel for the Respondent




Place 
          and Date:


Vancouver, British Columbia




25 January 2006





[1]

PROWSE, J.A.
:  This is an application for directions with 
    respect to an order made by Mr. Justice Tysoe on 30 November 2005, dismissing 
    the defendants (applicants) application for relief pursuant to Rules 25, 
    53 and 52(4) of the rules of Court (the Rules) relating to an earlier order 
    of Master Bolton made 15 July 2004 which struck the applicants statement 
    of defence.  Master Boltons order was followed by a further order dated 18 
    October 2004 in which judgment in default of defence was awarded against the 
    applicants, leaving only the issue of damages to be assessed.  The result 
    of Mr. Justice Tysoes order was to leave the default judgment in effect.  
    Thus, the issue of liability has been disposed of, subject only to appeal.

[2]

The issue on this application for directions is whether leave to appeal 
    is required from the order of Mr. Justice Tysoe.

[3]

When this matter first came before me, I referred counsel to a recent 
    decision of this Court,
Radke v. M.S. (Guardian ad litem of)
2006 BCCA 12, which was released 12 January 2006.  That judgment dealt with 
    a situation in which the issue of liability had been severed from the issue 
    of damages, with the issue of liability to be heard first.  The liability 
    issue was determined and the question arose whether the finding with respect 
    to liability was an interlocutory or a final order.  This Court noted that 
    the question of interlocutory or final order had been a matter of ongoing 
    concern to both the profession and the Court over the years, requiring parties 
    who were unsure in that regard to apply to the Court for directions as to 
    whether they should proceed by way of notice of application for leave to appeal 
    or notice of appeal.

[4]

In
Radke
, this Court moved away from the former test 
    set forth in
Bozsdon v. Altrincham Urban District Council
, [1903] 
    1 K.B. 547 for determining whether an order was interlocutory or final.  At 
    pp.548-49. of
Bozsdon
, Lord Alverstone C.J. stated the test 
    as follows:

It 
    seems to me that the real test for determining this question ought to be this:  
    does the judgment or order, as made, finally dispose of the rights of the 
    parties?  If it does, then I think it ought to be treated as a final order; 
    but if it does not, it is then, in my opinion, an interlocutory order.

[5]

This Court noted that the English courts had moved to what has sometimes 
    been called the application approach which does not look to the order as 
    made, but rather to the application that gave rise to the order.  According 
    to this Court, On this approach, a final order is one made on such an application 
    or proceeding that, no matter who succeeds, the order will, if sustained, 
    finally determine the matter in the litigation.  This Court noted that the 
    application approach had been followed by the English Court of Appeal in
White 
    v. Brunton
, [1984] 2 All E.R. 606.  The Court in
Radke
went 
    on to state, at paras. 21-23

[21]      The application approach was again adopted 
    by the English Court of Appeal in
Holmes v. Bangladesh Biman Corporation
[1988] 2 Lloyds Rep. 120.  There, after citing
White
with approval, 
    Lord Justice Bingham (as he then was) said:

Order 33, r. 3 gives the Court a wide discretion to order the separate 
    trial of different issues in appropriate cases and a decision is not to be 
    regarded as interlocutory simply because it will not be finally determinative 
    of the action which ever way it goes. Instead, a broad common sense test should 
    be applied, asking whether (if not tried separately) the issue would have 
    formed a substantive part of the final trial. Judged by that test this judgment 
    was plainly final, even though it did not give the plaintiff a money judgment 
    and would not, even if in the airlines favour, have ended the action.

See 
    also
Dale v. British Coal Corp.
[1992] E.W.J. No. 351 (QL) and
Webb v. Webb
[1996] E.W.J. No. 141 (QL).

[22]      More recently in
Roerig v. Valiant Trawlers 
    Ltd.
[2002] 1 W.L.R. 2304, [2002] 1 All E.R. 961, [2002] 1 Lloyds 
    Rep. 681, after referring to
White v. Brunton
and the broad 
    common sense test expressed by Lord Justice Bingham in
Holmes v. Bangladesh
, 
    Lord Justice Waller said this:

If 
    one poses the question-if no preliminary issue had been ordered would the 
    decision as to the appropriate law have formed a substantive part of the final 
    decision on damages?-the answer would undoubtedly be that it would, and that 
    an appeal would have lain to the Court of Appeal against that final decision. 
    The fact that the issue is sensibly taken separately should not deprive a 
    party of their right to go to the Court of Appeal, and furthermore it would 
    be an active discouragement to parties to support the trial of preliminary 
    issues if the result was to so deprive them. That is the principle that the 
    new rules in my view seek to uphold.

[23]      In my view, the time has now come to restate 
    the principle expressed by this Court in
Boslund v. Abbotsford
(1925), 36 B.C.R. 386 (B.C.C.A.) and to adopt the approach of the English 
    Court of Appeal in
White v. Brunton
and the subsequent English 
    cases referred to above.  If liability had not been tried separately, it would 
    have been tried as part of a single trial.  The parties would have had the 
    right of appeal no matter what the outcome.  If the action had been dismissed 
    on liability, the plaintiff would have had a right of appeal.  It is unfair 
    that the defendant should not have a right of appeal when liability has been 
    found.

[6]

This is the first application for directions in which I have had an 
    opportunity to consider the
Radke
decision and it may well be 
    that there will be further judgments from this Court which discuss the extent 
    to which the test set out in
Radke
applies in any particular 
    case.  I leave that for the further development of the law.

[7]

In this case, however, I am satisfied that, both on the basis of the 
    tests set forth in
Radke
and on the basis of prior decisions 
    of this Court, the order of Mr. Justice Tysoe is a final order.  I am simply 
    unable to see how it could be interpreted as an interlocutory order on any 
    analysis.  Subject to an appeal, it finally determines the liability issue.  
    I come to that conclusion despite a strong submission to the contrary on behalf 
    of counsel for the applicants.  My direction is that this is an appeal as 
    of right for which the proper initiating document is a notice of appeal.

[8]

The notice of appeal which was filed in this matter will be effective 
    as of todays date.  To make it perfectly clear, that means that all of the 
    time limits run as if the notice of appeal had been filed today.

(discussion with appellants counsel)

[9]

The costs should be in the cause.  That means the successful party 
    at the end of the appeal will be entitled to the costs of this application.

The Honourable Madam Justice Prowse


