



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



Payne v. Montague,









2009 BCCA 351




Date: 20090120

Docket: CA036564

Between:

David Payne

Appellant

(
Plaintiff
)

And

Atoya Montague and
Orellana Gustavo Ernesto Amador
also known as Gustavo Amador Orellana

Respondents

(
Defendants
)




Before:



The Honourable Mr. Justice Donald





(In Chambers)




On appeal from: Supreme Court of British Columbia, October 10, 2008

(
Payne v. Montague
, New Westminster RegistryM100928)

Oral Reasons for Judgment




Counsel for the Appellant:



O.L.
  Wilson





Counsel for the Respondent:



M.
  von Antal





Place and Date of Hearing:



Vancouver,
  British Columbia





January 20, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January
  20, 2009






[1]

DONALD J.A.:
This
is an application for leave to appeal a costs order in a personal injury action.
The action was settled shortly before trial. As the trial date drew near, the
respondent obtained an independent medical examination order on short leave
from a master. The master granted the respondent costs in any event of the
cause.

[2]

The applicant applied to set aside the order. That
application was refused by Mr. Justice Slade who awarded costs of that
proceeding. It is from Mr. Justice Slades order that the proposed appeal is
taken. There are two grounds: first, there was no urgency supporting short
leave; and second, the process was defective because the short leave order was
not served within the time limited. The order required service by the afternoon
of the day of the application for short leave, but in fact, it was not served
until about 7:00 on the morning of the hearing of the application itself.

[3]

Mr. Justice Slade found no error in the masters
discretionary decision. There was a basis for urgency and the late delivery was
inconsequential as he held that applicants counsel had adequate notice and did
not appear.

[4]

Leave to appeal will rarely be granted for
discretionary orders:
Silver Standard Resources Inc. v. Joint Stock Co.
Geolog
, [1998] B.C.J. No. 2298 (QL) (C.A.), per Madam Justice Rowles in
chambers:

[12]      The usual rule followed by
appellate courts in relation to discretionary orders was succinctly stated by
Madam Justice McLachlin in
British Columbia Teachers' Federation v. British
Columbia (Attorney General)
(1986), 4 B.C.L.R. (2d) 8 (C.A.) at 11:

Generally speaking, barring error in the
decision below, a justice will be reluctant to grant leave where the decision
constitutes the exercise of a discretion conferred on the chambers judge. The
party seeking leave to appeal bears the onus of establishing that the
conditions for leave have been met.

[5]

Leave to appeal a discretionary order will only
be granted where the order is clearly wrong or serious injustice will occur or
where a discretion was not exercised judiciously or was exercised on the wrong
principle:
Strata Plan LMS 2019 v. Green
(2001), 152 B.C.A.C. 174, 2001
BCCA 286, per Madam Justice Proudfoot in chambers:

[6]        Before
I assess the merits of these arguments, I point out that an order under R.
52(11)(d) [for which leave to appeal is sought] is a discretionary order. This
court is slow to grant leave from a discretionary order unless the order is
clearly wrong or a serious injustice will occur:
Watson v. Imperial
Financial Services Ltd.
, (1992), 65 B.C.L.R. (2d) 281 (C.A.).

[6]

In my view, the applicant is unable to establish
any of the prerequisites for leave. The order is discretionary. The points
taken on appeal are not of significance to the practice and since the action is
settled, they are not of significance to the action itself. I can see no merit
in the proposed appeal. The applicant cannot show an error in principle or a
manifestly unjust result.

[7]

For these reasons I dismiss the application and
refuse leave to appeal.

(discussion
with counsel)

[8]

DONALD, J.A.
: The
costs are yours as a matter of course.

The
Honourable Mr. Justice Donald


