



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Hayes
                Forest Services Ltd. v. Krawczyk,









2005 BCCA
            17




Date: 20050113




Docket: CA031235

Between:

Hayes Forest
      Services Limited

Respondent

(P
laintiff
)

And

Betty Krawczyk

Appellant

(
Defendant
)

And

The Attorney General of British Columbia

Intervenor









Before:



The Honourable
            Madam Justice Rowles





The Honourable
            Mr. Justice Low





The Honourable
            Madam Justice Levine









A.C. Ward
            and L.J. Tessaro



Counsel for the Appellant





P.U.W. Ewert,
            Q.C.



Counsel for the Respondent





Written
            submissions received











Place and
            Date of Hearing:



Vancouver, British Columbia





25 November 2004





Place and
            Date of Judgment:



Vancouver, British Columbia





13 January 2005









Written
              Reasons by
:





The Honourable
            Mr. Justice Low





Concurred
              in by:





The Honourable
            Madam Justice Rowles

The Honourable
            Madam Justice Levine





Reasons for Judgment of the Honourable Mr. Justice Low:

[1]

At
      the commencement of the hearing of this appeal from an order convicting
      the appellant of criminal contempt of court in civil proceedings, counsel
      for the Crown raised a preliminary objection to the court hearing the appeal
      because it was commenced as a civil appeal and ought to have been commenced
      as a criminal appeal.  Without becoming seized of the appeal, we adjourned
      the hearing to receive written submissions on the objection.  Those submissions
      are now in hand.

[2]

The
      filing and serving of a notice of appeal, or a notice of application for
      leave to appeal where required, is the procedural method by which litigants
      bring civil appeals to this court: see s. 14 of the
Court of Appeal
      Act
,
R.S.B.C. 1996, c. 77.  The rules of this court provide in
      R. 11 for the bringing of a civil appeal by filing and serving a notice
      of appeal in Form 7 found in Appendix A to the rules.  It is that form
      the appellant filed and served to initiate this appeal.  The appellant
      later filed an amended notice of appeal using the same form but I will
      refer to them collectively as the notice of appeal.

[3]

The
      position of the Crown is that the notice of appeal filed by the appellant
      is a nullity.  The Crown says that she must start all over again with the
      proper notice of appeal in a fresh appeal.  The Crown says it will consent
      to the necessary extension of time.

[4]

It
      is clear to me that the appellant employed the wrong notice of appeal.  She
      ought to have filed and served a Notice of Appeal or Application for Leave
      to Appeal in Form 1 of the criminal appeal rules of this court as prescribed
      by R. 3(1) and R. 5(1) therein.  That is the form to be used in bringing
      a conviction or sentence appeal following conviction for an indictable
      offence.  Although criminal contempt of court is not an indictable offence,
      under certain sections of the
Criminal Code of Canada
, R.S.C.
      1985, c. C-46, such conviction is subject to the appeal provisions for
      indictable offences found in the
Code
.

[5]

Section
      9 of the
Code
abolishes common law criminal offences but
      adds the following proviso: "... but nothing in this section affects
      the power, jurisdiction or authority that a court ... had ... to impose
      punishment for contempt".  Section 10 authorizes an appeal from a
      conviction for contempt of court and makes Part XXI of the
Code
applicable "with
      such modifications as the circumstances require".

[6]

Part
      XXI of the
Code
, commencing at s. 673, governs appeals of
      indictable offences.  Section 674 provides:

674.  No
      proceedings other than those authorized by this Part and Part XXVI shall
      be taken by way of appeal in proceedings in respect of indictable offences.

(Part XXVI is concerned with extraordinary remedies
      and has no application to the present discussion.)  It follows that the
      only type of appeal authorized by law from a conviction for criminal contempt
      is by way of an indictable offence appeal under the
Code
.  McLachlin
      J. (as she then was) made a similar observation in
United Nurses
      of Alberta v. Attorney-General for Alberta et al
. (1992), 71 C.C.C.
      (3d) 225, when she said at p. 260: "I note that s. 686 clearly applies
      to the case at bar since appeals from conviction of criminal contempt are
      provided by s. 10(3) of the Criminal Code ...".  Section 686 is in
      Part XXI of the
Code
and is concerned with the powers of
      a court of appeal upon the hearing of appeals from convictions for indictable
      offences.

[7]

Section
      678 of the
Code
requires an appeal or application for leave
      to appeal to be given "in such manner and within such period as may
      be directed by rules of court" with the proviso that the appeal period
      may be extended by the appeal court or a judge thereof.

[8]

In
      this court, the applicable rules are the
British Columbia Court of
      Appeal Criminal Appeal Rules, 1986
.  As already noted, they prescribe
      the forms to be used for the commencement of criminal appeals.  Rule 2
      is of importance to the present issue.  It reads:

2(1)  The Court of
      Appeal Rules (Civil), B.C. Reg. 303/82, as amended from time to time, apply
      to appeals on matters that are not expressly provided for in these rules.

(2)   The court may
      issue practice directives on any matter respecting appeals.

(3)   On an appeal,
      the court or a justice may give all directions respecting the conduct of
      the appeal that it or he considers necessary.

(4)   The court and a justice have, in relation to an appeal, all of
      the powers that they have under the
Court of Appeal Act
, R.S.B.C.
      1996, c. 77, and the rules made under that Act, with any necessary changes
      as may be applicable.

[9]

The
      appellant does not concede that there is anything wrong with the notice
      of appeal her counsel filed but contends that if it is defective the defect
      is no more than a curable irregularity.  She refers to s. 19 of the
Court
      of Appeal Act
(incorporated into the
Criminal Appeal Rules
by
      R. 2(4) set out above):

19(1)An appeal is not defeated
      by an irregularity or preliminary procedural objection.

(2)   If
      an irregularity or procedural error has occurred, the court may order that
      the appeal be heard and may impose conditions, including the granting of
      an adjournment and the payment of costs, that the court considers appropriate.

[10]

In
      her factum, the appellant raises only one ground of appeal stated very
      broadly as follows: "... [t]he learned trial judge erred in finding
      that the procedure by which the Appellant was arrested, "charged",
      detained in custody and tried did not violate her fundamental rights and
      freedoms as guaranteed by the
Canadian Charter of Rights and Freedoms
"
.
I
      understand part of her argument to be that this is a civil action and the
      contempt proceeding was conducted by the Attorney General of British Columbia
      who was not a party to it.  In the factum, her counsel concedes that, as
      guardian of the public interest, the Attorney General "has traditionally
      been permitted to intervene and take carriage of contempt proceedings".  But
      the appellant complains that there was no formal charging document and
      that the presentation of evidence by affidavit with a right of cross-examination
      of the affiants somehow breached her rights under the
Charter
.
I
      fail to see in this argument or in the written submission made on behalf
      of the appellant in response to the Crown's preliminary objection any basis
      for concluding that the trial of the contempt proceeding was civil in nature
      rather than criminal.  As I state above, this is a criminal appeal under
      Part XXI of the
Code
and the appellant filed the wrong notice
      of appeal.

[11]

The
      Crown cited no authority that discusses the difference between the two
      procedural extremes of nullity and curable irregularity.  In
Hewgill
      v. Chadwick et al.
, (1899) 18 P.R. 359, Ferguson J. made the following
      useful statement:

25    An irregularity has been said to consist either in omitting to
      do something that is necessary to the due and orderly conducting of a suit,
      or doing it in an unreasonable time or improper manner; a defect, it is
      true, but one that does not take away the foundation or authority for the
      proceeding, or apply to its whole operation.  This distinguishes an irregularity
      from a nullity, which is the highest degree of an irregularity, in the
      most extensive sense of that term, and is such a defect as renders the
      proceeding in which it occurs totally null and void and of no avail whatever,
      and incapable of being made so.  Again, where the proceeding adopted is
      that prescribed by the practice of the Court, and the error is merely in
      the manner of taking it, such an error is an irregularity.  But where the
      proceeding itself is altogether unwarranted and different from that which,
      if any, ought to have been taken, then the proceeding is a nullity.

[12]

I
      think the conclusion that proceedings are a nullity should be reached sparingly.  In
      the present case, the appellant had a genuine intention to appeal and she
      appealed to the right court within the time limited for appeals which is
      the same for both criminal and civil appeals.  The document by which the
      appellant initiated her appeal was not the correct document but in all
      other respects she properly commenced her appeal, including timely service
      upon the Crown.  In my opinion, it is more correct to say that the error
      made by the appellant was at the low end of the continuum and does not
      remove the foundation or the authority for the appeal so as to render the
      notice of appeal a nullity.  I conclude that the concept of nullity is
      more applicable to court documents such as a writ or notice of appeal issued
      or filed in the wrong court.  An example would be the bringing of an appeal
      from a conviction in Provincial Court of a summary offence directly to
      this court instead of to the Supreme Court of British Columbia as required
      by law.  In that situation, this court would be without jurisdiction and
      the notice of appeal would be a nullity.

[13]

I
      prefer to think of the use of the wrong notice of appeal form in the circumstances
      of this case as an irregularity that can be cured.  The error that occurred
      was merely a matter of form, not a matter of substance.  It does not go
      to the court's jurisdiction.  A declaration that the notice of appeal is
      a nullity is, for me, too rigid an application of the procedural rules.  It
      would be what Dickson J. (as he then was) described as the "punctilio
      of an earlier age" in a slightly different context in
R. v.
      Sault Ste. Marie (City)
, [1978] 2 S.C.R. 1299 at p. 1307.

[14]

Under
      s. 19(1) of the
Court of Appeal Act
the irregularity does
      not defeat the appeal.  Under s. 19(2) we may order that the appeal be
      heard upon conditions we consider appropriate.  I would order that the
      appeal be heard after the appellant has filed in this appeal the proper
      notice of appeal on a
nunc pro tunc

basis.

The Honourable
Mr. Justice Low

I Agree:

The Honourable
Madam Justice Rowles

I Agree:

The Honourable
Madam Justice Levine


