Vancouver, Galleria II: Court decides leave to appeal not required by defendants; orders appeal books prepared

                                                 Date: 19990416
Docket: CA025700
Registry: Vancouver


COURT OF APPEAL FOR BRITISH COLUMBIA




ORAL REASONS FOR JUDGMENT:


BEFORE THE HONOURABLE April 16, 1999

MR. JUSTICE HALL

IN CHAMBERS Vancouver, B.C.



BETWEEN:


THE OWNERS (STRATA PLAN VR 1720)

PLAINTIFF
(RESPONDENTS)

AND:

BART DEVELOPMENTS LTD., GALLERIA II DEVELOPMENTS LTD.
PARTNERSHIP, MOLNAR CONSTRUCTION LTD., SPACEWORKS
ARCHITECTS, PETER REESE, THADDEUS YOUNG, GORDON
SPRATT & ASSOCIATES LTD., TAMM/TACY AND ASSOCIATES
LTD., SCOTT CALVERT, SPECTRUM INDUSTRIES LTD.
(FORMERLY WESTERN WATERPROOFING & MEMBRANES LTD.),
CSA BUILDING SCIENCES LTD., CSA BUILDING SCIENCES
WESTERN LTD., RALPH JECK, MURRAY FRANK AND
CHRISTIAN SKENE


DEFENDANTS

AND:

RALPH JECK, MURRAY FRANK AND CHRISTIAN SKENE

APPELLANTS

C. Ferris appearing for the Appellants
I. Schildt appearing for the Respondents


(Application for Directions)


[1] HALL, J.A.: This is an application wherein essentially
two disparate heads of relief are sought. Firstly, the
proposed appellants, Ralph Jeck, Murray Frank and Christian
Skene, apply for a determination that leave to appeal is not
required, or alternatively if it is, that leave ought to be
granted to appeal from the Order of Mr. Justice E.R.A. Edwards
pronounced February 22, 1999 dismissing an application brought
on behalf of the named Defendants for the dismissal of an
action brought against them in negligence. As well there are
in the action possible contractual claims against a related
company.

[2] The case, without going into matters in any great detail,
engages cases such as the well known Hedley Byrne case and a
case in this court of recent vintage, Boss Developments Ltd. v.
Quality Air Maintenance Ltd. (1995), 5 B.C.L.R. (3d) 209
(C.A.). Reference should also be made to Edgeworth
Construction Ltd. v. N.D. Lea & Associates Ltd. (1993) 83
B.C.L.R. (2d) 145 (S.C.C.).

[3] Mr. Justice Edwards held that in light of the Boss case,
the argument of the defendants was not well founded, and
accordingly, he dismissed their application seeking exemption
from liability.

[4] It is not entirely easy, as I have observed to counsel in
the course of argument this morning, to draw a clear line as to
the circumstances when leave will or will not be required in
these cases. Perhaps it may be justly observed that the advent
of Rule 18A has made these questions even more difficult
because of the nature of these proceedings themselves which in
some cases do not purport to dispose of all issues. As Mr.
Schildt in his argument mentioned there are also situations
where orders have a dual quality in which it may transpire that
in certain circumstances one side will have an absolute right
of appeal depending on the disposition, and the other side may
be forced to seek leave. I make that observation in no
critical sense but simply as an observation that Rule 18A,
which is a very useful Rule, can create some uncertainty in
this class of proceeding that we are dealing with this morning.

[5] The relevant authorities that I have now had a chance to
review again in light of Mr. Schildt's argument are Stony Creek
Indian Band v. Alcan Aluminum Limited, a judgment of this court
of March 3, 1999 under Docket No. CA025273 and two other
decisions, being the case of Dow v. Briggs (1994), 98 B.C.L.R.
(2d) 372 (C.A.), and British Columbia (Minister of Forests) v.
Bugbusters Pest Management Inc. (1997), 86 B.C.A.C. 84. In the
instant case, the result of the motion was that the action
remains on foot and there remain negligence issues to be still
litigated as the case presently stands. However, had the
application been successful before Mr. Justice Edwards, the
action would then have been concluded against the individual
defendants and thus the order sought would finally have
disposed of matters as against them.

[6] Justice Taylor in Dow v. Briggs at page 377 after
reviewing some of the earlier cases said this:

The words which I have italicized make it plain that
what was sought to be achieved was not so much a
determination under s. 6.1(2) of the Court of Appeal
Act whether appeal would be permitted at all against
a finally-determinative decision contained in a dual-
character order - although that, of course, was the
result - but rather to make it possible for the court
to decide whether the appeal against those portions
of the order which were in the nature of final
determination of issue should be heard before, rather
than after, final resolution in the trial court of
all of the remaining issues raised in the action.

I do not pretend that this explanation resolves
the matter because those cases say that a notice of
appeal from a dual-character order, where no leave is
obtained, will be a nullity, and I do not understand
how any appeal against such an order could thereafter
be brought except with benefit of an order extending
time for appeal. That, too, would have the result of
depriving the unsuccessful litigant appeal as of
right with respect to the final resolution of some of
the issues in the action. I think we must lean
against anything having that result.

[7] It seems to me that in that passage, his Lordship was
saying that in this class of case the court should not be
overly quick to deny persons a right to appeal in an unfettered
way matters that can be finally dispositive of an action.
Those remarks of course must read in light of the comments of
Madam Justice Rowles in Alcan Aluminum Limited which comments
are found at paragraph 30, page 15:

[30] Under Bugbusters, if a litigant wishes to appeal
an order made on a summary trial which finally
determines an issue but that issue does not dispose
of the action as a whole the litigant must seek leave
to appeal. As I am inclined to the same view of the
matter as Mr. Justice Esson, for the reasons he
stated in Bugbusters, I hold that leave to appeal is
required.

and at paragraph 21, page 11:

In Bugbusters, the judgment the defendant sought
leave to appeal is described by Esson J.A. as
follows, at 84:

The defendant applies for leave, if leave
is required, to appeal against a decision of a
chambers judge under Rule 18A finding against
the defendant on an issue of issue estoppel.

The action is one for damages arising out
of a very large forest fire which is alleged to
have been started by the negligence of the
defendant and to have been allowed to continue
by its negligence in carrying out its fire
fighting duties. The issue estoppel applies
only to the question whether the defendant's
negligence caused the fire. So even if there
were to be an appeal and the defendant were to
succeed on it, the action would still go to
trial on the issue whether it was negligent in
allowing the fire to continue.
[Emphasis added.]

In the present case, the issues determined by Lysyk
J., if reversed on appeal, would not dispose of the
whole of the action because the limitation defences
do not apply to the entire period for which damages
for trespass are claimed.

[8] As I analyze both Bugbusters and Alcan, it seems to me
that there remained in these cases issues that would have been
unresolved whichever way the hearing went, the result of which
was sought to be appealed from. To that extent, I think they
are distinguishable from the case at bar.

[9] Mr. Schildt has referred to certain earlier related
proceedings in the case of The Owners (Strata Plan VR 1720) v.
Bart Developments Ltd. et al, CA025700, concerning what
happened when the case went on for hearing on another matter on
March 4, 1999, the day after Alcan had been handed down. At
that time the court, of its motion, suggested that leave was
required, and in fact, leave as it happened was granted by me
subsequently. Presumably now that matter will come on for
hearing.

[10] As I read the decision of Madam Justice Humphries that was
sought to be appealed from those in that proceeding, there
remained in the case issues that had to be decided at the trial
level. To that extent it may be that what was at issue in that
case is distinguishable from what I see as the pattern or
factual setting of this case. In this case it seems to me that
the order which was sought was finally dispositive in the event
the order had been granted. But on the other side of the coin,
the order has also a finality to it in the sense that there is
a res judicata aspect to it, and I revert back to what Mr.
Justice Taylor referred to generally in his analysis in the
case of Dow v. Briggs.

[11] It seems to me in this case that it would be appropriate
for me to determine that this is a case in which the proposed
appellants have an appeal as of right, and accordingly, it is
not a case in which leave to appeal is required. That being
so, I am not therefore required to pass on to the question of
whether leave ought or ought not to be granted, and I simply
make the finding that this is a case in which leave is not
required.

[12] I direct that appeal books shall be filed by April 30,
1999.

"The Honourable Mr. Justice Hall"