



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Baldwin v. Baldwin,









2013 BCCA 35




Date: 20130121

Docket: CA039361

Between:

Janet Kelly
Baldwin

Appellant
(Petitioner)

And

Wesley Warren
Baldwin

Respondent

(Respondent)




Before:



The Honourable Mr. Justice Tysoe





The Honourable Madam Justice Neilson





The Honourable Madam Justice Bennett




On appeal from: Supreme
Court of British Columbia, September 12, 2011
(
Baldwin v. Baldwin
, Fort St. John Registry No. 20560)

Oral Reasons for Judgment




Appellant appearing In Person
(via video conference)






Counsel for the Respondent:



S.T.G. Cole





Place and Date of Hearing:



Vancouver, British
  Columbia

January 21, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 21, 2013








[1]

TYSOE J.A.
: Ms. Baldwin appeals the dismissal of her
application for judicial review of the decision of a Provincial Court judge
dismissing her small claims action against her brother, Mr. Baldwin.

[2]

The small claims action relates to a property in Fort St. John owned by
Ms. Baldwins parents. I understand Ms. Baldwin claims that she is
entitled to a lease, or otherwise has a right of occupation, in respect of all
or part of the property. The action alleges that Mr. Baldwin had Ms. Baldwin
unlawfully arrested and removed from the property and that he had the hydro
removed from the property.

[3]

Ms. Baldwin had made the same allegations against her sister in two
previous small claims actions that were dismissed at settlement conferences.
There had also been proceedings before a dispute resolution officer under the
Residential
Tenancy Act
, S.B.C. 2002, c. 78, but they related to the tenancy of
Mr. Paul Williams, who I gather is a friend of Ms. Baldwin. Although
it was noted in the reasons of the officer that Ms. Baldwin had not produced
a lease, the officer found that Ms. Baldwin was not a party to the
application.

[4]

The small claims action against Mr. Baldwin went to a settlement
conference on November 17, 2010. The settlement conference judge adjourned
the matter to trial.

[5]

Mr. Baldwin subsequently made an application to have the action
dismissed on the basis that it was frivolous and vexatious. At the conclusion
of the hearing of the application on December 9, 2010, the Provincial Court
judge dismissed the action because she was satisfied that the action was
vexatious and an abuse of process. In dismissing the action, the judge noted
that the issues in the action were the same as the issues addressed at the
hearing under the
Residential Tenancy Act
.

[6]

On March 10, 2011, Ms. Baldwin filed a petition in Supreme Court
for judicial review of the decision of the Provincial Court judge. The petition
came on for hearing by a chambers judge on September 12, 2011.

[7]

The chambers judge dismissed Ms. Baldwins petition. Her reasoning
was as follows:

[15]      Under the
Small Claims Act
, R.S.B.C. 1996,
c. 430, Ms. Baldwin had 40 days within which to file an appeal to this
Court. She did not. Instead, she file a petition to this Court on March 10,
2011 which is out of time. Apart from the fact that it is out of time, it has
no reasonable prospect of success.

[16]      Ms. Baldwin, on the application before me, urges
that she is not seeking an appeal of the Provincial Court order. In her
material, she says it is a judicial review application, but in substance it is
an appeal of the Provincial Court order.

[17]      The order that was made on December 9, 2010 in the
Provincial Court of British Columbia at the settlement conference, is not
properly the subject of a review under the
Judicial Review Procedure Act
,
R.S.B.C. 1996, c. 241.

[18]      The petitioners
petition is dismissed with costs to the respondent, Wesley Baldwin.

[8]

With respect, it is my view that the chambers judge erred in holding
that the December 9, 2010 order was not properly the subject of judicial review
and that Ms. Baldwin was required to have appealed the order within 40
days.

[9]

Sections 5 and 6 of the
Small Claims Act,
R.S.B.C. 1996,
c. 430, reads as follows:

5    (1)  Any
party to a proceeding under this Act may appeal to the Supreme Court an order
to allow or dismiss a claim if that order was made by a Provincial Court judge
after a trial.

(2)  No appeal
lies from any order of the Provincial Court made in a proceeding under this Act
other than an order referred to in subsection (1).

6    An appeal must be started within
40 days, beginning on the day after the order of the Provincial Court is
made.

[10]

In my opinion, it is clear from the wording of s. 5 that an order
dismissing a claim may only be appealed to the Supreme Court if it was made
after a trial. In the present case, there was no trial, and Ms. Baldwin
had no right of appeal in respect of the dismissal order. I do not agree with
the submission on behalf of Mr. Baldwin that Ms. Baldwin was, in
essence, seeking to appeal the December 9, 2010 order  her petition was
properly framed as a request for judicial review.

[11]

Similarly, the jurisprudence of this Court is clear that litigants may
seek judicial review of decisions made by Provincial Court judges in small claims
actions that may not be appealed under s. 5: see, for example,
Shaughnessy
v. Roth
, 2006 BCCA 547, 61 B.C.L.R. (4th) 268, which involved an order
transferring an action from the Provincial Court to the Supreme Court, and
Hubbard
v. Acheson
, 2009 BCCA 251, 93 B.C.L.R. (4th) 315, which involved an order
dismissing an application to set aside a default judgment. Ms. Baldwin has
also referred us to decisions of the Supreme Court which involved judicial
review of orders made at settlement conferences to grant judgment or to dismiss
claims against certain defendants (
0763486 B.C. Ltd. v. Landmark Realty
Corp.
, 2009 BCSC 810, and
Wood and Lauder v. Siwak
, 2000 BCSC 397).

[12]

Although delay is a factor that may be taken into account in judicial
review proceedings, there is no specific deadline for the bringing of such a
proceeding. The 40 day appeal period in s. 6 of the
Small Claims Act
does not apply to judicial review proceedings in relation to orders made by Provincial
Court judges prior to a trial of a small claims action.

[13]

Counsel for Mr. Baldwin requests that, even if the chambers judge
erred, this Court should exercise its discretion to dismiss the appeal because
the judicial review proceeding would have been dismissed in any event. In the
present context, this Court is a court of review in respect of decisions made
by the Supreme Court. While it is open to this Court to make any order that
could have been made by the Supreme Court, I am not persuaded that this is an
appropriate case for this Court to conduct a judicial review at first instance.
In my view, it is preferable for the judicial review to be conducted by the
Supreme Court.

[14]

I would allow the appeal and remit Ms. Baldwins petition to the
Supreme Court. I would grant Ms. Baldwin costs of the appeal.

[15]

NEILSON J.A.
: I agree.

[16]

BENNETT J.A.
: I agree.

[17]

TYSOE J.A.:
The appeal is allowed. The petition is remitted to
Supreme Court and Ms. Baldwin is granted her costs of this appeal.

The Honourable Mr. Justice Tysoe


