



Court of Appeal for
British 
    Columbia




Citation:


Deline
v. Whittle
,







2003 
          BCCA 40



Date: 
    20030121





Docket: CA030110

Between:

Toni 
    E.
Deline

Appellant

(
Plaintiff
)

And

Vernon 
    Norman Whittle

Respondent

(
Defendant
)












Before:


The 
          Honourable Madam Justice Prowse




(In 
          Chambers)








Appellant 
          appearing on his own behalf




M.P.S. 
          Spearing


Counsel 
          for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




January 16, 2003




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 
          21, 2003






Reasons for Judgment of the Honourable Madam Justice 
    Prowse:



[1]


Mr.
Deline
is seeking leave to appeal the decision of Madam Justice Gill, made August 
    13, 2002, affirming the order of Master Patterson, made June 14, 2002, dismissing 
    Mr.
Deline's
application to compel the defendant 
    to produce a list of documents pursuant to Rule 26(1) of the
Rules 
    of Court.



[2]


Counsel for Mr. Whittle submits that 
    the application should be dismissed on the basis that it is without merit.

He submits that, even if Mr.
Deline
could show that Master Patterson or Madam Justice Gill 
    erred in his or her interpretation of Rule 26(1), Mr.
Deline
could not succeed on appeal since he failed to file an amended statement of 
    claim in accordance with an earlier order of Mr. Justice Blair.

Thus, there was no valid statement of claim 
    outstanding at the time of the order under appeal, and no basis upon which 
    Mr.
Deline
could demand production of documents.


[3]


In my view, counsel for Mr. Whittle 
    is correct.

In the absence of an amended 
    statement of claim, there is no factual foundation upon which Mr.
Deline
could succeed on the issue he has raised on appeal 
    as to the proper interpretation of Rule 26(1).


This was clearly the view of Master Patterson 
    and of Madam Justice Gill.


[4]


Mr.
Deline
advised the Court that he had filed an application for leave to appeal the 
    order of Mr. Justice Blair.

That application 
    was dismissed by Madam Justice Saunders, and her decision was upheld on review 
    by a panel of this Court.

While Mr.
Deline
stated that he was preparing materials seeking 
    leave to appeal that decision to the Supreme Court of Canada, that does not 
    detract from the fact that the foundation for his legal argument on this application 
    for leave to appeal does not exist.


[5]


In the result, I do not find it necessary 
    to refer to the other matters discussed by the parties on this application.

While I granted Mr.
Deline's
earlier application for an extension of time in order 
    to bring this application, I conclude on the materials now before me that 
    Mr.
Deline's
application for leave to appeal must 
    be dismissed on the basis that it has no reasonable prospect of success.


[6]


I would grant Mr. Whittle the costs 
    of this application, and the costs of the previous application before me.







The Honourable Madam Justice Prowse






