COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

French v. French,

2021 BCCA 30

Date: 20210115

Docket: CA44140

Between:

Deanna Marie
French

Appellant

(Claimant)

And

Bradley Stewart
French

Respondent

(Respondent)

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hunter

The Honourable Mr. Justice Grauer

On appeal from:  An
order of the Supreme Court of British Columbia, dated November 22, 2016 (
French
v. French
, New Westminster Docket E33521).

Oral Reasons for Judgment

Counsel for the Appellant appearing via videoconference:

A. Sandhu

Counsel for the Respondent appearing via videoconference:

D.R. Thompson

Place and Date of Hearing:

Vancouver, British
  Columbia

January 13, 2021

Place and Date of Judgment:

Vancouver, British Columbia

January 15, 2021

Summary:

The appellant appeals a
variation in a spousal support order which imputed to her income which she had
earned prior to an accident that had left her unable to work for 18 months. The
judge held that the consequences of the accident did not constitute a material
change in circumstances. Held: Appeal allowed. The chambers judge erred in
imputing pre-accident income in these circumstances. Arrears were required to
be paid and the question of spousal support going forward referred to the
Supreme Court for review.

[1]

HUNTER J.A
.: This appeal of a spousal support order reaches this
Court more than four years after the judgment under appeal was pronounced and
nearly ten years after the final order determining support entitlement. The
effect of the order under appeal was to vary an existing support order in
circumstances where both parties had suffered reduced employment income, the
respondent Mr. French because he had been required to change employment
and the appellant Ms. Cindrich (formerly Ms. French) because she had been
unable to work as a result of injuries suffered in a motor vehicle accident.

[2]

The issues raised by this appeal are whether the chambers judge erred in
imputing to Ms. Cindrich her pre-accident income when calculating support
obligations, and whether the judge erred in concluding that Ms. Cindrichs
inability to work was not a material change in circumstances justifying an
adjustment in the support payments.

[3]

The resolution of these issues will not resolve all the questions of
spousal support that may have arisen over the past four years, and the parties
will need to return to the Supreme Court of British Columbia for a review of their
support obligations and entitlements. This Court can, however, assist by determining
whether the order under appeal represents the starting point for that review.

Background

[4]

The parties were married in 1992, separated in 2008 and were divorced on
September 5, 2011 pursuant to the order of Armstrong J., made in the Supreme
Court of British Columbia under the
Divorce Act
, R.S.C. 1985, c. 3
(2nd Supp.), on August 5, 2011. I will refer to this order as the Final Order
as it was intended to be final subject to necessary changes to accommodate
unanticipated future events. The Final Order made provision for the custody and
guardianship of the parties two children and set child support at $1,696 per
month. As well, the Final Order made the following provision for spousal
support, based on Guideline Income of $32,604.55 for Ms. Cindrich and
$120,000 for Mr. French:

14.       Commencing July 1, 2011 and continuing on the 1
st
day of every month thereafter, the Respondent will pay spousal maintenance to
the Claimant for her own support in the amount of $1,625.00 per month pursuant
to the provisions of
Divorce Act (Canada)
and the
Spousal Support
Advisory Guidelines
;

15.       Commencing July 1, 2012 and for so long as the
Respondent is required to pay child and spousal maintenance, the parties will
exchange copies of their income tax returns and supporting documents and their
notices of assessment annually;

16.       The Respondent will be at liberty to review spousal
maintenance in 5 years time or upon the Claimant obtaining new employment or a
promotion as a result of any course or program of study whichever should occur
first;

17.       Either party is at
liberty to review spousal maintenance at any time upon there being a material
change in circumstances;

[5]

Over the next four years, Ms. Cindrich was employed by the City of
Langley as a recreational therapist. However, on May 25, 2015, she was involved
in a motor vehicle collision that prevented her from returning to her
employment. She anticipated that she would in due course be awarded damages for
the motor vehicle accident, which would include lost income, but at the time of
the application under appeal her sole income was temporary total disability
benefits from ICBC of $300 per week. She advised the chambers judge that she expected
to be able to return to work in February 2017, and also that at the time of
accident she was earning about $48,000 a year.

[6]

In March 2016, Mr. French lost his employment. On June 22, 2016, he
brought an application to cancel spousal support and reduce child support until
he could obtain employment. This application was heard in chambers on June 22,
2016. The chambers judge reduced Mr. Frenchs child support obligations,
but required that upon obtaining new employment, Mr. French immediately
adjust his child support payments to the amounts provided under the
Federal
Child Support Guidelines
, SOR/97-175, for two children at that income. The
judge did not cancel spousal support, but did suspend it pending resumption of
employment by Mr. French. His order, which I will refer to as the
Suspension Order, contains the following terms in relation to spousal support:

5.         Pursuant to the provisions of the
Divorce Act
(Canada)
the requirement to pay spousal support in the order of Mr. Justice
Armstrong is suspended pending resumption of employment by the respondent.

6.         If the respondent's new employment income is the
same or greater than under his most recent contract then the spousal support
will resume in the month that his employment begins in the amount required in
the order of Justice Armstrong.

7.         If the respondent's income is less than under his
most recent contract then the amount of spousal support payable by him will be
set pursuant to the review provided in paragraph 16 of the order of Mr. Justice
Armstrong.

8.         Term # 6 is subject to
the outcome of the review provided in paragraph 16 of the order of Mr. Justice
Armstrong.

[7]

Mr. French obtained new employment in late July 2016, earning
$75,000 per year plus commissions. Since this amount was less than he had
earned under his old contract, the amount of spousal support should have been
set at a review, as directed by paragraph 7 of the Suspension Order. As well,
under paragraph 4 of the Suspension Order, Mr. French was required to immediately
adjust his child support payments to the amounts provided under the
Federal
Child Support Guidelines.

[8]

Instead, Mr. French began to pay $1,600 per month as combined child
and spousal support. This amount represented $1,136 in child support and $464
in spousal support. He did not request the review directed by the Suspension
Order. In pleadings filed in response to Ms. Cindrichs application, Mr. French
explained that it was his intention to initiate the review once Ms. Cindrichs
new income level was established.

[9]

Ms. Cindrich was not satisfied with this unilateral decision to pay
combined child and spousal support of $1,600 per month, and on October 26, 2016,
brought an application to set the Guideline amounts of child support and
spousal support payable for the period from August (when Mr. French
resumed employment) to October 2016 and on a go-forward basis. She asked that
the Guideline Income be established at $75,000 for Mr. French and zero for
herself. Ms. Cindrich, who was representing herself, also sought payment
of any arrears from August to October 2016, as well as retroactive spousal
support from July 2012 to April 2016 (when Mr. French lost his
employment). Ms. Cindrich framed the application as seeking a variation of
the Suspension Order.

[10]

Mr. French, who also was self-represented, filed an application
response in which he requested that spousal support be reduced based on changes
in circumstances. He did not accept that Ms. Cindrich should be attributed
an income of zero, but did not ask that her pre-accident income be used as
Guideline Income.

The Chambers Judgment

[11]

Both parties were self-represented at the chambers hearing, which took
place on November 22, 2016. The chambers judge indicated that he would be
making new support orders for the parties. Mr. Frenchs Guideline Income
was not an issue. The judge used his current salary of $75,000 per year,
recognizing that this amount may have to be adjusted once the amount of Mr. Frenchs
commissions were known.

[12]

The question of fixing Ms. Cindrichs Guideline Income was more
complicated. Ms. Cindrich submitted that her income should be set at zero
because she was unable to work for medical reasons. During submissions, she
advised the judge that she was receiving $300 per week from ICBC in temporary
total disability benefits and expressed uncertainty as to whether those
benefits should be taken into account for Guideline Income.

[13]

The position of Mr. French, as expressed to the judge, was that
all her current income should be attributed to the calculation of Guideline
Income.

[14]

The judge considered three scenarios for the determination of Ms. Cindrichs
Guideline Income: zero income (based on the fact that she was currently unable
to work for medical reasons), $14,400 in income (representing an estimate of
the annual value of the temporary total disability benefits), and $48,000 in
income (representing her estimate of her annual income pre-accident).

[15]

During submissions, the judge tentatively proposed using Guideline
Income of zero, with the proviso that when Ms. Cindrich was reimbursed for
wage loss by ICBC, there would be an adjustment and a payment back to Mr. French.
Ms. Cindrich was content with that arrangement, but Mr. French
expressed a concern about the length of time it might take to resolve the ICBC
claim. After submissions concluded, the judge took a break, returned and
delivered an oral judgment setting Ms. Cindrichs Guideline Income at
$48,000, which resulted in spousal support of zero.

[16]

The judge explained his rationale for this decision in this way:

[16]      I do not view the claimants motor vehicle accident
and her consequent inability to work with the City of Langley as a change in
circumstances sufficient to vary Armstrong J.s order.

[17]      Despite the fact that
the claimant has been unable to work as a consequence, she expects to be able
to return to work in February 2017. Liability for the accident is not an issue.
If the accident is not her fault, she will presumably be able to recover her
past wage losses net of taxes once her claim has resolved. If her claim for
past wage loss was ignored for spousal support purposes, the respondent would
be unfairly penalized for something that neither he nor the parties marriage played
any role.

[17]

Child support payments were set at $1,136 per month. That amount is not
at issue on this appeal.

[18]

Finally, the judge adjourned Ms. Cindrichs application for
retroactive adjustment of child support and spousal support going back to 2012,
expressing a concern that the material was inadequate to deal with the
application:

[25]      For reasons I have
explained during the hearing of the claimants application, I have determined
that the claimants application for arrears of child support and spousal
support going back to August 5, 2011, that being the date of Justice
Armstrongs final order, is premature and must be adjourned. The adjournment
will allow the parties to review the Supreme Court of Canada decision in
D.B.S.
v. S.R.G
., 2006 S.C.C., p. 37, regarding the claim for arrears and
then be prepared to make submissions on the point.

The Appeal

[19]

Ms. Cindrich submits that the chambers judge erred in three
respects:

(i)       by
committing a palpable and overriding error of fact in deciding that Ms. Cindrichs
income should be imputed at $48,000 and further deciding that no spousal
support was payable from Mr. French to her;

(ii)      by committing an error of
law in misapplying the legal test for a material change of circumstances
regarding Ms. Cindrichs inability to work; and

(iii)      in ruling that Ms. Cindrichs
application for arrears of child support and spousal support was premature and
must be adjourned.

[20]

The first two grounds are interrelated and I will address them together
under the heading, The Spousal Support Order. The third ground is relatively
straightforward and will be dealt with at the conclusion of my judgment under
the heading Adjournment of Application for Retroactive Payments.

Preliminary Matters

[21]

At the outset of the hearing, Ms. Cindrich raised several
preliminary matters. She sought to introduce additional affidavit material and
exhibits that were before the chambers judge but had been omitted from the
appeal books. She objected to Mr. French filing and relying on the
transcript of proceedings on the basis that it contained submissions of the
parties and not oral evidence as required by Rule 20 of the
Court of Appeal
Rules
, B.C. Reg. 297/2001. She filed a brief supplementary affidavit updating
the financial material that had been before the chambers judge. She also
suggested (without formally applying) that the appeal should be adjourned so
that the factums could be revised to reference the new material and exclude Mr. Frenchs
transcript references.

[22]

Mr. French opposed the filing of the new material, primarily
because it had been raised at the last minute. He took the position that a
review should take place in the Supreme Court of British Columbia to determine
the proper level of support, if any, that should be ordered, but also submitted
that the parties were not in agreement as to the starting place for that review
and would benefit from a decision of this Court as to the correctness or
otherwise of the chambers judgment under appeal.

[23]

We declined to adjourn the appeal, but indicated that we would limit our
decision to a determination of whether the chambers judge erred in the
conclusions he had reached, and what consequences flowed from our decision.

[24]

To deal with the preliminary matters raised by Ms. Cindrich, I
would allow the additional material to be filed as it was material that was
before the chambers judge and should have been in the appeal book, absent
agreement by the parties to the contrary. I do not consider that it was
inappropriate for Mr. French to file the transcript of proceedings. Where
the proceedings are brief, it is often helpful to the Court to have a
transcript of those proceedings so that the judges order can be viewed in
proper context. I would not admit the supplementary affidavit updating Ms. Cindrichs
finances. These are matters for consideration at the review of the
circumstances of both parties to take place in the Supreme Court of British
Columbia.

The Spousal Support Order

[25]

Ms. Cindrich had an existing entitlement to spousal support
pursuant to the Final Order. Spousal support had been set and had been paid for
about five years on the basis of Guideline Income of $32,604.55 for Ms. Cindrich
and $120,000 for Mr. French. Mr. French (but not Ms. Cindrich)
had the express right in the Final Order to seek a review of the spousal
support after five years, namely, after September 2016.

[26]

Two intervening events occurred before the review authorized in the Final Order
could take place. First, Ms. Cindrich was injured in a motor vehicle
accident in May 2015 and was unable to return to work. At the time of the
chambers hearing, Ms. Cindrich had been off work for 18 months. Mr. French
in the meantime had lost his employment in March of 2016 and had obtained an
order that his spousal support obligations set out in the Final Order be
suspended until he could resume employment. If he found employment at an income
level less than he had been making, the Suspension Order provided that his
payment obligation under the Final Order should be determined at the review
contemplated by that order.

[27]

This was the status of the parties at the time of the chambers
application in November 2016. The nature of the application before the chambers
judge is not entirely clear. The Suspension Order had directed that if Mr. French
obtained employment at a reduced salary, the new amount of spousal support
would be set at a review. At a review, it is not necessary to show a material
change of circumstances:
Jordan v. Jordan
, 2011 BCCA 518 at paras. 2833.
However, neither party applied for a review. Ms. Cindrich did not think
she was entitled to apply for a review, given the terms of the Final Order. Mr. French
stated that he intended to apply for a review once Ms. Cindrichs
employment status was known. The judge treated Ms. Cindrichs application
as a variation application, and the parties have approached this appeal on that
footing.

[28]

The two questions that arise on this appeal are whether the chambers
judge erred in concluding that Ms. Cindrichs injuries did not constitute
a material change of circumstances justifying a reduction in the Guideline
Income used in the Final Order, and the related question whether the judge
should base Ms. Cindrichs Guideline Income on imputed income at her
pre-accident level.

[29]

Both of these questions turn on whether Ms. Cindrich could have
returned to work before November 2016. If so, the judge could have been
justified in discounting the length of time she was off work and imputing
income to her that she could have earned, and could earn into the future. It
was open to the judge to come to that conclusion given the thin record of the
impact of Ms. Cindrichs injuries. But the judge did not do so. The judge
expressly accepted the fact that the claimant has been unable to work as a
consequence of her injuries. That being so, I can see no basis for concluding
that the effects of the motor vehicle accident did not constitute a material
change in circumstances, nor can I see any principled basis on which the judge
could attribute her pre-accident income to reduce her entitlement to spousal
support to zero.

[30]

A change of circumstances sufficiently material to justify a variation
of a spousal support order is one that, if known at the time, would likely have
resulted in different terms. The change must have some degree of continuity and
not be merely a temporary set of circumstances:
L.M.P. v. L.S
., 2011 SCC
64 at paras. 32, 35. An injury that results in an inability to work for 18
months has a sufficient degree of continuity to meet this requirement. The
judge may have been influenced by Ms. Cindrichs optimistic assessment
that she expected to be back at work by February 2017, but at the time of the
application (and for many months prior), it is apparent on the judges findings
that her financial circumstances had changed materially, in the same way that Mr. Frenchs
financial circumstances changed materially when he lost his employment in March
2016, albeit for only four months.

[31]

Under s. 17(4.1) of the
Divorce Act
, before making a
variation order in respect of a spousal support order, a judge must be
satisfied that a change in the condition, means, needs or other circumstances
of a spouse has occurred since the making of the spousal support order. I
conclude that the judge erred in principle by failing to consider the length of
time Ms. Cindrich had been unable to work in determining that there had
been no material change in Ms. Cindrichs means and other circumstances.

[32]

I am also satisfied that the judge erred in imputing income of $48,000
in calculating Ms. Cindrichs Guideline Income. Ms. Cindrich has
argued that there was no basis for the judge selecting the amount of $48,000 to
represent her pre-accident income, but I would not give effect to that
submission. Ms. Cindrich told the judge that her earnings from employment
at the time of her accident were about $48,000, and there was evidence before
the judge that her income in 2013 and 2014 was in that range.

[33]

The problem with the judges imputation of income was not, in my view,
that he selected the wrong number for pre-accident income, but that there was
no proper basis to use pre-accident income in the circumstances of this case.

[34]

Under the
Spousal Support Advisory Guidelines
, income is
calculated as in the
Federal Child Support Guidelines
. Section 19(1) of
the
Federal Child Support Guidelines
states that income can be imputed
to a spouse in various circumstances, including where the spouse is
intentionally under-employed or unemployed. The judges finding that Ms. Cindrich
was unable to work as a consequence of her injuries negates any conclusion
that, at least as of November 2016, she was intentionally underemployed.

[35]

The judges real concern, as expressed in para. 17 of his judgment,
seems to have been that if Ms. Cindrich received support based on her
current income, she might be overcompensated when (or if) she was reimbursed
for wage loss through her ICBC claim. This possibility, which was no more than
speculative as of November 2016, could have been accommodated by including a
term in the order similar to the term in the Suspension Order requiring Ms. Cindrich
to disclose if she was subsequently compensated for wage loss though her damage
claim, and permitting Mr. French to apply for a retroactive adjustment.
But in my view, the prospect of reimbursement at some time in the distant
future does not represent a proper basis for imputing income to someone who has
not received that income, and who the judge has found is not able to earn that
income due to her medical condition.

[36]

Mr. French submits that there is support for the judges approach
in two judgments from the Supreme Court of British Columbia,
Neufeld v.
Neufeld
, 2001 BCSC 1197, and
M.K. v. R.A.S
., 2004 BCSC 1798.
However, in both of these cases, the payor spouse had already received the
damage award and the issue was one of accounting for that part of the damage
award that related to loss of earning capacity. That is a far different
situation from that at the time of Ms. Cindrichs application in November
2016. It was not known at that time whether there would be a damage award and
if so, how much would be allocated to lost earnings. Again, the judge may have
been influenced by Ms. Cindrichs optimism about her litigation prospects,
but it is not unknown for litigants to have a rosier view of their likelihood
of success than circumstances merit.

[37]

In any event, I am satisfied that the judge made an error in principle
by setting Ms. Cindrichs Guideline Income at her pre-accident level on
the expectation that at some point in the future she would presumably be
compensated for the loss of that income. Mr. French had quite properly not
requested that result, but had asked only that the Guideline Income be set at
the actual amount she was receiving, rather than zero income as she was
requesting. That is the order that was supportable on the record before the
judge, supplemented by the parties statements at the hearing.

[38]

As I have indicated, the chambers judge reviewed three options for
setting Ms. Cindrichs Guideline Income. He calculated that utilizing her
actual income at the time of the application would result in a requirement for Mr. French
to pay spousal support in the amount of $822 at the mid-range level. That
amount is roughly half what Ms. Cindrich had been receiving under the
Final Order. The reduced amount reflects Mr. Frenchs significantly lower
income as at November 2016. But it is approximately twice what she had been
receiving since August 2016, and properly reflects her loss of employment
income after her accident. In my opinion, that is the order that ought to have
been made, to operate until the review that was authorized in the Final Order
and expressly contemplated in the Suspension Order could take place.

[39]

For these reasons, I am satisfied that paragraph 3 of the order under
appeal must be set aside.

[40]

Pursuant to s. 9(1) of the
Court of Appeal Act
, this Court
may make any order that could have been made by the court appealed from. I
would substitute for paragraph 3 the following paragraph:

3.         Pending
the review contemplated by the orders of this Court dated August 5, 2011 and June
22, 2016, the respondent will pay spousal support to the claimant in the amount
of $822 per month, based on Guideline Income of $14,400 for the claimant and $75,000
for the respondent, effective August 1, 2016.

[41]

An order in these terms would result in arrears in support payments
between August and November 2016 of $1,432, representing the difference between
the $464 that Mr. French paid during those months and the amount that
ought to have been paid given the parties respective incomes during that
period.

[42]

As Mr. French stated his intention to the chambers judge of
initiating a review in accordance with the Final Order and Suspension Order, I
consider it appropriate to assume that the review would have taken place by May
of 2017. Arrears in support payments from December 1, 2016 to May 1, 2017 on
the basis of an $822 monthly obligation amount to $4,932. Total arrears to May
1, 2017 are $6,364. Those arrears should be paid now.

[43]

As to Mr. Frenchs obligations beyond May 1, 2017, I consider that
this Court does not have adequate information, nor is it our role, to determine
the amount, if any, that should be paid in spousal support after that date. I
would remit this case back to the Supreme Court of British Columbia and direct
that the review contemplated in the Suspension Order be conducted. Mr. French
is directed to initiate this review, not later than March 1, 2021.

Adjournment of Application for Retroactive Payments

[44]

The final ground of appeal relates to paragraph 4 of the order under
appeal, which adjourned Ms. Cindrichs application for retroactive
adjustment of the spousal support payments between July 2012 and April 2016.
The judge adjourned this application because he was not satisfied that the
parties were ready to address the test for retroactive support orders set out
in
D.B.S. v. S.R.G
., 2006 SCC 37.

[45]

I would not interfere with this order. It was within the discretion of
the chambers judge to adjourn the application if he concluded that the parties
were not properly prepared to deal with the legal requirements for such an
order. Ms. Cindrich could have brought that application on for hearing at
any time in the last four years, and can do so now if so advised.

Disposition

[46]

For these reasons, I would allow the appeal and order as follows:

1.       Paragraph 3 of the order under appeal is set aside
and replaced with the following:

3.         Pending the review contemplated by the orders of
this Court dated August 5, 2011 and June 22, 2016, the respondent will pay
spousal support to the claimant in the amount of $822 per month, based on
Guideline Income of $14,400 for the claimant and $75,000 for the respondent,
effective August 1, 2016.

2.       Mr. French shall pay Ms. Cindrich
the sum of $6,364, representing arrears in spousal support from August 1, 2016
to May 1, 2017.

3.       Ms. Cindrichs claims
for spousal support after May 1, 2017 are remitted to the Supreme Court of
British Columbia to be considered at the review contemplated by the orders of
this Court made August 5, 2011 and June 22, 2016, such review to be initiated
by Mr. French no later than March 1, 2021.

[47]

NEWBURY J.A.
: I agree.

[48]

GRAUER J.A.
: I agree.

[49]

NEWBURY J.A.
: The appeal is allowed to the extent given in Mr. Justice Hunters
reasons. To emphasize, we are expecting the review in the Supreme Court of
British Columbia will be initiated no later than March 1, 2021.

The Honourable Mr. Justice Hunter


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

McDermott v. Thompson,

2021 BCCA 23

Date: 20210115

Docket: CA46949

Between:

Kevin Franklin
McDermott

Appellant

(Claimant)

And

Karen Gillian
Thompson

Respondent

(Respondent)

Before:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Goepel

The Honourable Madam Justice DeWitt-Van Oosten

On an application to
vary: An Order of the Court of Appeal for British Columbia
(in Chambers), dated October 14, 2020 (
McDermott v. Thompson,
Vancouver Docket CA46949).

Oral Reasons for Judgment

The Appellant, appearing in person

(via videoconference):

K.F. McDermott

Counsel for the Respondent

(via videoconference):

M.G. Perry

Place and Date of Hearing:

Vancouver, British
  Columbia

January 11, 2021

Place and Date of Judgment:

Vancouver, British
  Columbia

January 15, 2021

Summary:

The appellant applies to
vary an order made by a judge of this Court dismissing his application for
leave to appeal a Family Law Act protection order made by a Supreme Court judge
that precludes him from having access to his child.  The dismissal was based on
the fact that the appellant had been charged with assaulting the child and was
subject to a no-contact undertaking.  Held: Application dismissed.  New
evidence that the criminal charge against the appellant had been stayed
constitutes a material change to the circumstances which underpinned the
chambers judges decision.  However, a fresh consideration of whether leave to
appeal should be granted results in the same outcome.  The interests of justice
do not warrant granting leave to appeal as the protection order permits the
appellant to apply in the Supreme Court to set the order aside and the hearing
of such an application is underway.

[1]

FRANKEL J.A.
: This is a high-conflict family law case commenced
by the appellant, Kevin Franklin McDermott, in October of 2011.  Mr. McDermott
now applies, pursuant to s. 9(6) of the
Court of Appeal Act
,
R.S.B.C. 1996, c. 77, to vary an order of Justice Abrioux, sitting in
chambers.  That order dismissed Mr. McDermotts application for leave to
appeal two orders made by Justice Mayer of the Supreme Court of British
Columbia.  Those orders concern Mr. McDermotts access to the child he and
the respondent, Karen Gillian Thompson, had together.  That child is now ten
years old and has grown up primarily in Ms. Thompsons care.

[2]

On May 5, 2020, Ms. Thompson applied for a protection order under
s. 183(3)(a) of the
Family Law Act
, S.B.C. 2011, c. 25.  She
also sought to vary earlier orders granting Mr. McDermott parenting time.
At that time, the trial was scheduled to commence on July 2, 2020, for four
weeks.

[3]

In the affidavit Ms. Thompson swore in support of her application,
she alleged Mr. McDermott had been emotionally and physically abusive to the
child on a number of occasions.  The most recent incident was alleged to have occurred
on April 30, 2020.  Ms. Thompson deposed that when she picked the child up
from Mr. McDermotts home that day, the child told her Mr. McDermott
had assaulted him.  She reported the matter to the police.  This led to Mr. McDermott
being arrested for assault in early May.  He was released on an undertaking
with the condition that he not have any direct or indirect contact with the
child.  Later, an information was sworn charging Mr. McDermott with
assault.

[4]

On May 14, 2020, the application for a protection order came before
Justice Mayer.  Mr. McDermott, who had been unable to prepare
response materials, unsuccessfully sought an adjournment.  On the basis of the limited
materials before him, Justice Mayer considered it appropriate to make what he
described as an interim protection order  on a without-prejudice basis,
pending a full hearing.  That order restricts Mr. McDermotts ability to
communicate with the child or be in the childs presence.  A formal order was
entered that day.  As provided for in s. 183(4) of the
Family Law Act
,
the order states it will expire in one year.

[5]

On May 20, 2020, Mr. McDermott filed an affidavit in which he disputed
all the allegations.

[6]

The hearing resumed on May 21, 2020.  At the conclusion of that hearing Justice
Mayer ordered the continuation of the protection order and stayed the
parenting-time orders while that order was in effect.  In giving Mr. McDermott
leave to apply to set the protection order aside, Justice Mayer said this:

[21]      I will just make an additional
order which is that Mr. McDermott is at leave to bring an application, if
he is successful in gathering additional relevant evidence, to apply to set
aside this protection order on one condition, that is, that any such
application to set aside this protection order will not be set down prior to
the conduct of a case management hearing before [the case management judge] for
a number of reasons.

[22]      First
of all, there is an issue with respect to the completion and/or issuance of the
s. 211 report which I understand has been completed by Dr. England
pursuant to previous orders of this Court, but has not been released as a
result of non-payment.  That is an issue to be discussed, in my view, before [the
case management judge].  It is one thing to argue that further evidence would
be of assistance to the court in determining whether or not a protection order
is necessary.  It is another thing to make that argument when at the same time
taking steps which arguably have resulted in that report not being issued.  I
am not certain if that is the case,
Mr. McDermott.
I do not know if that is the case, but it may be the case, and this is
something that [the case management judge] will be able to work out at a case
management conference.

[7]

The May 21st order has not been entered because
the parties have been unable to agree on its terms.  The dispute is over the
basis on which Mr. McDermott can apply to set the May 14th order aside.  The
draft order prepared by Ms. Thompsons counsel states:

2.   The Claimant is
granted leave to bring an application to set aside this courts May 14, 2020
Protection Order on the basis of new evidence, but subsequent to a case
management hearing with the case management Justice.

Mr. McDermotts position is that the
order should use the words additional relevant evidence as per para. 21
of Justice Mayers May 21st reasons.  However, as discussed below, in light of
the position on the admissibility of evidence taken by Ms. Thompson on
this application, it appears the parties differences are only a matter of semantics.

[8]

The trial did not proceed in July of 2020; it is
now set for July of 2021.

[9]

On August 4, 2020, Mr. McDermott filed a
notice of appeal from the May 14th and 21st orders and an application for a no
fees order.  On August 25, 2020, a judge of this Court granted a no fees order
and directed that the notice of appeal stand as an application for leave to
appeal.  That judge expressed the view that one of Mr. McDermotts three
proposed grounds of appeal is arguable.  On September 23, 2020, Mr. McDermott
filed an amended application for leave to appeal setting out six grounds, the
first being the one said to be arguable.

[10]

On October 5, 2020, Mr. McDermott filed an
application to settle the terms of the May 21st order.  That hearing has yet to
take place because the parties have been unable to agree on a mutually
convenient date.

[11]

The chambers judge heard the leave application
on October 8, 2020, and gave oral reasons dismissing it on October 14, 2020.  He
accepted that arguable grounds exist with respect to the protection order.
However, he concluded it was not in the interests of justice to grant leave
because of the no-contact undertaking.  In this regard, he stated:

[27]      First of all, Mr. McDermotts undertaking to
not have any contact with his child remains in force and, in my view, is
dispositive of this application.  An appeal to set aside the Protection Order
and reinstate parenting time would serve little purpose and would be contrary
to the interests of justice.

[28]      Furthermore, I am not persuaded that an appeal
would be an efficient use of the Courts or the parties resources.  I am
advised by the parties that following his memorandum, [the case management
judge] has set down a case management conference for Wednesday, October 14, 2020,
that is today, at which time he will apparently establish a schedule for the
hearing of Mr. McDermotts application to set aside the
Protection Order as contemplated in
the May 21, 2020 order.

[29]      Accordingly, I am of the view there is no benefit
to be gained by permitting Mr. McDermott to pursue proceedings in this
Court in relation to the May 21 order when there is a procedure available to
obtain essentially the same relief in the Supreme Court.  I do recognize,
however, that the appellants position in this Court is that the Protection
Order was made on an improper legal basis.  But to grant leave would likely
negatively affect, that is hinder the broader issues between the parties,
namely the hearing of the application to set aside the Protection Order in the
Supreme Court and ultimately a trial of the action which is now under renewed
case
management.

[32]      In any event, while
there may well be a real issue as to whether an appeal would be bound to
fail, the issue is essentially moot as long as Mr. McDermott is subject
to the no-contact undertaking, at least during the timeframe of the upcoming
case management and the hearing of his application in the Supreme Court to set
aside the Protection Order.

[12]

On October 20, 2020, Mr. McDermott filed an
application to vary the chambers judges order.  He seeks an order granting
leave to appeal the May 14th and 21st orders and directing that the appeal be
heard on an expedited basis.

[13]

As disclosed in an affidavit Mr. McDermott
filed on November 3, 2020, the Crown entered a stay of proceedings on the
assault change on October 31, 2020.  It did so based on a recording Mr. McDermott
made of his April 30, 2020 parenting time that disclosed the assault did not
happen.  As a result of the stay, Mr. McDermott is no longer bound by the
undertaking.  Ms. Thompson accepts the child misled her and others in
regard to Mr. McDermott engaging in acts of physical violence on this and
other occasions.

[14]

Mr. McDermott has filed an application in
the Supreme Court seeking to set the protection order aside.  The application
commenced before the case management judge on December 11, 2020.  Following a
daylong hearing it was adjourned to January 28, 2021, for continuation.  On that
application, Mr. McDermott relies on recordings he made of many of his
parenting times with the child, including the one from April 30, 2020.  In
addition, he relies on a
Family Law Act
s. 211 report prepared by psychologist
Dr. Rebecca St. Clere England in January 2020, which had been completed but
not released to the parties when this matter was before Justice Mayer.  In that
report, Dr. England recommends the child be equally parented by Mr. McDermott
and Ms. Thompson.  Dr. England further opines that she does not have concerns
regarding family violence but is concerned the child has developed an unhealthy
alignment with Ms. Thompson, and is at risk of becoming alienated from Mr. McDermott.

[15]

The standard of review on an application to vary
an order made by a chambers judge in this Court is as set out by Justice Willcock
in
Animal Welfare International Inc. v. W3 International Media Ltd.
,
2015 BCCA 148, 66 C.P.C. (7th) 309:

[9]

On an application to
discharge or vary an order of a justice in chambers, the applicant must
establish there has been an error in principle; the justice was wrong in the
legal sense; the justice misconceived the facts; or relevant information was
not brought to the justices attention:
East Broadway Residents Association
v. Vancouver (City)
, 2000 BCCA 657;
Haldorson v. Coquitlam (City)
,
2000 BCCA 672; and
McKnight v. Hutchison
, 2012 BCCA 510.

Mr. McDermott contends the chambers
judge made both factual and legal errors.

[16]

There can be no question that the undertaking
was central to the chambers judges decision to refuse leave.  However, that
undertaking is no longer in force.  This is new evidence that should be admitted
and considered on this application:
Animal Welfare International Inc.
at
paras. 1012.  As the elimination of the undertaking constitutes a
material change in circumstances, Mr. McDermotts application for leave
warrants fresh consideration.

[17]

Even though the undertaking is no longer in
force, and notwithstanding the existence of at least one arguable ground, I am
not persuaded that leave should be granted.  I say this because the interests
of justice are the overarching concern on an application for leave:
K.F.M.
v. K.G.T.
, 2020 BCCA 10 at paras. 1112, 35 R.F.L. (8th) 74.

[18]

As the chambers judge noted at para. 23 of
his reasons, protection orders are a form of interim relief, which is why leave
to appeal is required.  This Court is generally reluctant to interfere with interim
orders in family law matters:
K.F.M.
at paras. 1314.  Apposite is
the following from the judgment of Justice Huddard in
F.(G.F.) v. B.(C.L.)
,
2003 BCCA 382 (Chambers), 184 B.C.A.C. 1:

[10]      The jurisdiction of
this Court to vary an interim order for custody or for most orders made under
the
Family Relations Act
is very limited.  All of these orders are
discretionary.  It is only in exceptional circumstances, where there is a clear
reason to interfere that this Court will do so.  In a case which Mr. F. so
properly provided to me (
Testawitch v. Farquhar
[1997] B.C.J. No. 2866),
Mr. Justice Hall commented that the management of these cases is usually
best left to the trial court.  It is only when a final resolution of the matter
has been arrived at in the trial court that it will usually be appropriate for
this Court to hear the matter.  Even then it is rare for this Court to
interfere with the decision of a trial judge after the trial.  This Court has
recently been told by the Supreme Court of Canada (
van de Perre v. Edwards
[2001] 2 S.C.R. 1014), we should not interfere with a decision of a custody
matter except in the most exceptional of circumstances.

[19]

Also pertinent is the following from
Gill v.
Delbeck
, 2020 BCCA 37 (Chambers), in which Justice Garson refused an
application by the father for leave to appeal an interim order granting the
maternal grandparents time with the children, the mother having died:

[21]

As stated in
Munro v.
Munro
, 2015 BCCA 530 at para. 18 (Chambers), the values of efficiency
and proportionality are relevant to the interests of justice.  The question is
whether the potential benefit of a successful appeal justifies the expense that
both parties will incur if it proceeds, given that the appeal will have no
effect on the final order made at trial.  In my view, it does not.

[20]

In his submissions, Mr. McDermott emphasized
that his position is that a protection order should never have been granted and
expressed concern the case management judge might not have the ability to make
that determination.  He submits that if the order is set aside only on a
going-forward basis, then the stigma associated with it having been granted in
the first place will remain.  Further, based on the terms of the May 21st draft
order prepared by Ms. Thompsons counsel, Mr. McDermott is concerned Ms. Thompson
may object to the admissibility of some of the evidence he seeks to have the
case management judge consider because it is fresh as opposed to new
evidence: see
Stav v. Stav
, 2012 BCCA 154 at para. 30, 18 R.F.L.
(7th) 326, leave to appeal refd [2012] 3 S.C.R. xiii.

[21]

With respect to the scope of the review now
taking place in the Supreme Court, Ms. Thompson submits the case
management judge is entitled to consider whether a protection order should have
been granted in the first place (i.e., that judge is entitled to consider
the matter
de novo
).  In the circumstances of this case, I agree.  It is
clear the protection order was made on a most limited record.  The case
management judge, based on the fuller record before him, can properly determine
whether it should have been made.  That judge is not limited to determining
whether there has been a material change in circumstances that makes that order
no longer necessary.

[22]

Ms. Thompson also clarified her position
with respect to some of the evidence Mr. McDermott wishes the case
management judge to consider.  More specifically, Ms. Thompson said she does
not object to the admissibility of: (a) the parenting-time recordings;
(b) Dr. Englands report; and (c) evidence the assault charge was
stayed.  What weight the case management judge should give to any of the
evidence is, of course, a matter for argument.

[23]

Given that the application before the case
management judge will be continuing in just under two weeks, I have concluded that
the time and resources of the parties, not to mention the resources of the
judicial system, are best spent litigating whether the protection order should
be set aside in the Supreme Court.  Put otherwise, in the circumstances of this
case, it is not in the interests of justice to grant leave.

[24]

I would urge the parties to settle the terms of
the May 21st order prior to the resumption of the hearing before the case
management judge.

[25]

In the result, I would dismiss this
application.  I would order that the parties bear their own costs.

[26]

GOEPEL J.A.
: I
agree.

[27]

DEWITT-VAN OOSTEN J.A.
: I agree.

[28]

FRANKEL J.A.
: The
application is dismissed and there will be no order as to costs.

The Honourable Mr. Justice Frankel


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

The Owners, Strata Plan VR29 v. Kranz,

2021 BCCA 32

Date: 20210118

Docket: CA47027

Between:

The Owners, Strata
Plan VR29

Respondent

(Petitioner)

And

Fred Kranz

Appellant

(Respondent)

Before:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Fitch

The Honourable Madam Justice Griffin

On appeal from: An
order of the Supreme Court of British Columbia, dated
September 17, 2020 (
The Owners, Strata Plan VR29 v. Kranz and others
,
Vancouver Docket S197870).

Oral Reasons for Judgment

Counsel for the Appellant (via videoconference):

J.D. Shields

Counsel for the Respondent (via videoconference):

J.M. Chatten

Place and Date of Hearing:

Vancouver, British
  Columbia

January 18, 2021

Place and Date of Judgment:

Vancouver, British
  Columbia

January 18, 2021

Summary:

Appeal brought from a
judges Chambers decision to adjourn a petition hearing to permit the filing
of additional evidence by the petitioner. Held: appeal quashed. The substance
of the order was an adjournment, which is a limited appeal order for which
leave to appeal is required pursuant to Court of Appeal Rule 2.1(e).

GRIFFIN J.A.
:

Introduction

[1]

This proceeding is an appeal from a decision made in a petition
proceeding involving a dispute between the respondent Strata Corporation and
one of the owners of a residential condominium unit in the Strata complex, the
appellant Mr. Kranz.

[2]

The matter before us today is a preliminary matter, having to do with
whether or not the order sought to be appealed is appealable, and if it is,
whether the appeal ought to be stayed.

Background

[3]

The Strata filed a petition on July 15, 2019 seeking a number of orders
against Mr. Kranz, including judgment for just over $78,000 allegedly owed
for strata fees and special levies; legal fees; and for an order to sell
the strata lot owned by Mr. Kranz.

[4]

The Strata filed one affidavit, the Affidavit #1 of Geoffrey Langford
(the Langford Affidavit), in support of its petition. Mr. Langford was
identified as a co‑president of the Strata council and an owner of a unit
in the same building. The Langford Affidavit referred to a number of historical
facts regarding the management of the Strata, its fees and levies, and its
several disputes with Mr. Kranz. A great part of the history preceded Mr. Langfords
ownership of a unit in the building. The affidavit attached, as supportive
evidence, various Strata records, correspondence from the Stratas management
company and lawyers, a Land Title search to prove Mr. Kranzs ownership of
his unit and liens filed against the title, and reasons for judgment dealing
with past disputes between the Strata and Mr. Kranz, among other things.

[5]

Mr. Kranz opposed the petition. The response to petition did not
seek to rely on any evidence that would contradict the facts relied upon in the
petition, and Mr. Kranz did not file any evidence. Rather, the response
simply stated: [t]here is no admissible evidence to prove the Petition, or
meet the high onus on the Petitioner, and the Petition must be dismissed and
[t]he Langford Affidavit is all but inadmissible. The response to
petition then listed
inter alia
, 37 cases without any indication
of what point in the cases was relevant.

[6]

At the hearing of the petition on September 8, 2020, Mr. Kranz
advanced objections to the admissibility of the Langford Affidavit, taking the
position that most of it was inadmissible hearsay.

[7]

The Strata relied on a number of exceptions to hearsay.

[8]

The Strata also argued that if the judge was to rule that parts of the
Langford Affidavit were inadmissible, the petition should be adjourned and
leave granted for it to file additional affidavit evidence, and for Mr. Kranz
to file responsive affidavits.

[9]

Mr. Kranz argued that the judge should not grant leave to the
Strata to file additional evidence, it being the duty of the petitioner to put
its full case forward. He also argued that allowing additional affidavits would
split the petitioners case.

[10]

Only one day was set aside for the hearing, and it was taken up with
hearing the evidentiary objections.

[11]

In reasons for judgment issued September 17, 2020, the judge noted that
because a final order was being sought, hearsay evidence was presumptively
inadmissible, citing

0690860 Manitoba Ltd. v.
Country West Construction Ltd.
, 2009 BCCA 535 at para. 33. While
some of the evidence objected to was simply background and normally would not
be controversial, the judge held that Mr. Kranz was entitled to put the
petitioner to strict proof of the facts. Some but not all of the documents may
have qualified as subject to recognized exceptions to hearsay evidence
,
such as the business records exception and public documents exception, but not
all of the formal steps had been taken by the petitioner to certify the latter.
The judge found that the principled exception to hearsay evidence was not made
out. The judge accepted the submissions of Mr. Kranz that much of the
Langford Affidavit was inadmissible.

[12]

The judge noted that Mr. Kranzs materials were also defective. The
judge observed that Mr. Kranzs response to petition took broad positions
as to the inadmissibility of evidence and listed 37 cases, without explanation
as to the basis for his objections or the particular point being relied upon in
the cases.

[13]

The judge considered Mr. Kranzs objection to her granting
leave to file additional evidence, but ruled she did have that broad discretion
and should exercise it, citing
The Owners,
Strata Plan VR 390 v. Harvey
,
2014 BCSC 2580 and
Sharp v. Royal Mutual Funds Inc.
, 2019 BCSC 2357.

[14]

The judge held:

[59]      I must balance the need for strict compliance with
the substantive rules of evidence against the public interest in ensuring that
cases are heard on their merits.

[60]      The court has discretion to craft its own
processes, including discretion to allow the petitioner to correct its
shortcomings in the evidence. In
Hayes Forest Services Limited v. Krawcyzk,
2006
BCCA 156, a criminal contempt case, the Court of Appeal agreed with Justice
Harvey that the court has discretion on how to proceed, subject to the
principles of fairness: para. 55. This is consistent with the
courts truth
seeking function.

[61]
Since I allowed the respondent to proceed with
his objection to the affidavit despite the deficiencies in his pleading, in the
interest of fairness I should also allow the petitioner to overcome the
deficiencies in the affidavit
.

[62]      I am bolstered by the fact that I see no prejudice
in allowing the petitioner to file additional affidavits. I do not accept that
granting leave to allow the petitioner to file additional affidavits is
splitting its case in this situation. The petitioner is not filling in

evidentiary gaps

as referred to in the cases relied upon by the respondent:
British
Columbia (Director of Civil Forfeiture) v. Vu,
2020 BCSC 106;
The
Owners, Strata Plan KAS 2971 v. American Bankers Insurance Company of
Florida
, 2016 BCSC 581. The petitioner is not being permitted to

patch up

its case under the guise of reply:
Slaughter
at para. 56.
The
respondent has not provided the petitioner with his argument on the merits of
the case, so the petitioner has no greater indication about what needs

patching

up than it did prior to filing Mr.
Langfords
affidavit. It will simply be
correcting the form of the same evidence already provided to the court through
admissible affidavits
.

[63]
The hearing of the petition on its merits has
not commenced
. The respondent will be in a position to provide responsive
affidavits and to amend his response to petition if he believes this is
required.

[64]
Rule
1‑3 is overarching. The
stated objective is to find a just, speedy, and inexpensive way to determine
every proceeding on its merits.
It is not in the interests of justice that I
not hear the petition on its merits based on these admissibility issues with
the affidavit
.

[Emphasis added.]

[15]

In the result, the judge neither granted nor dismissed the petition. She
adjourned the hearing of the petition and granted leave to the Strata to file
new or revised affidavits to correct the deficiencies. She also granted leave
to Mr. Kranz to file responsive affidavits and an amended response to
petition. The judge made clear that the Strata was not to bolster its evidence
in the process, in the sense that the new evidence should be supporting what
was said in the Langford Affidavit, not going into new areas.

[16]

Mr. Kranz drafted an order, but the Strata resisted approving it on
the grounds that the judge simply made an evidentiary ruling and not an order.

[17]

After a hearing to determine whether the formal order should be entered,
the judge issued her ruling regarding the form of order on October 27, 2020.
She declined to wade into the parties dispute about whether or not her ruling
was merely a mid‑proceeding evidentiary ruling or an order, quite
correctly leaving it for this Court to characterize the nature of her decision.
She observed that signing the order was not determining the question.

[18]

In her ruling regarding the form of order, the judge noted at para. 3
Mr. Kranzs position that this was a decision with respect to practice
issues:
the order that the matter be adjourned
and the order that new
affidavits may be filed prior to the hearing of the petition (emphasis added).
At para. 10 of her ruling, she observed that the decision deals not only
with an evidentiary ruling on the validity of evidence in affidavits, but also
allows the filing of new affidavits and
adjourns
the hearing of the
petition so this can occur (emphasis added). She endorsed the form of order
from which Mr. Kranz has brought his appeal.

[19]

The terms of the entered order read that:

THE HEARING OF the Petition coming on for hearing :

1.        THIS
COURT ORDERS that the Petitioner has leave to refile the Affidavit of Jeffrey Langford
and/or file other affidavits to support the Petition.

2.        THIS
COURT FURTHER ORDERS that the Respondent Fred Kranz may file response
affidavits and an Amended Response to Petition.

3.        THIS COURT FURTHER ORDERS that
costs of this hearing are to be determined at a later date.

[20]

As mentioned, Mr. Kranz has filed this appeal from the entered
order. The relief he seeks on appeal is dismissal of the petition.

[21]

The Strata brought an application to dismiss the appeal for want of
jurisdiction, or in the alternative for a stay of the appeal. This matter came
before a single justice, who referred it to a division of this Court to
determine whether the entered order is appealable, and, if so, whether a stay
ought to be granted.

[22]

This division is therefore not considering the question of whether or
not the judge below made any error in her decision.

The Parties Positions

[23]

In support of its position that the order below is not appealable, the
Strata relies on
Cambie Surgeries Corporation v. British Columbia (Attorney
General)
, 2017 BCCA 287. In that case, this Court held that mid‑trial
evidentiary rulings are not orders that can be appealed while the trial is
ongoing, and instead are rulings that should be appealed as a ground of appeal
upon conclusion of the trial. The Strata argues that the same logic applies to
mid‑petition evidentiary rulings decided on chambers applications.

[24]

Further, the Strata argues that the substance of the order was an
adjournment, for which leave to appeal is required.

[25]

In the alternative, the Strata submits that the appeal should be stayed
pending a final decision on the merits of the petition. The Strata relies on
s. 10 of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77 (
CA
Act
),

and
Hollander v. Nelson
, 2013 BCCA 83.

[26]

Mr. Kranz relies on
Eastside Pharmacy Ltd. v. British Columbia
(Minister of Health)
, 2019 BCCA 60. That case distinguished
Cambie
Surgeries
as dealing with a trial of an action, not a petition proceeding.
This Court in
Eastside Pharmacy
allowed an appeal from a ruling made during
a petition proceeding. The ruling had allowed an application pursuant to
R. 22‑1(4)(a) of the
Supreme Court Civil Rules,
B.C. Reg. 168/2009 (
SC Rules
and individually SC Rule)

for
cross‑examination of an affiant.

[27]

Mr. Kranz submits that the issue on his appeal from the judges
order will be a jurisdictional issue. He submits that the judge did not have
jurisdiction to permit the Strata to file additional evidence.

Analysis

[28]

In order to solve this procedural puzzle, it is necessary to:

a)

review the basis
for this Courts jurisdiction on appeals; and

b)

consider the
authority for and substance of the decision or order of the judge.

Court of Appeal Jurisdiction on Appeals

[29]

In
Cambie Surgeries
, this Court referred to two unassailable
propositions. One is that this Court is a creature of statute. This means that
the authority to appeal must be found in either the
CA Act
or another
statute conferring jurisdiction. The other is that appeals are brought from the
formal order entered in the court appealed from, not from the reasons for
judgment that gave rise to the order.

[30]

This Courts jurisdiction to entertain appeals from decisions of the
Supreme Court is established by s. 6(1) of the
CA Act
, dealing
with appeals as of right; and s. 7, dealing with limited appeal orders,
for which leave to appeal is required. The latter are prescribed under R. 2.1
of the
Court of Appeal Rules
, B.C. Reg. 297/2001 (
CA Rules

and individually CA Rule).

[31]

Section 6(1)(a) of the
CA Act
provides:

6(1)      An appeal lies to the court

(a)

from an order of the Supreme Court or an order of a judge of that court,

[32]

An order is defined in s. 1 of the
CA Act
:

1

order includes

(a)     a judgment,

(b)     a decree, and

(c)     an opinion, advice, direction,
determination, decision or declaration that is specifically authorized or
required under an enactment to be given or made;

[33]

Not every decision or pronouncement of a judge is an order for
purposes of appeal. Even if the decision was documented in the record of the
Supreme Court as an order, that does not necessarily mean the decision gave
rise to an appealable order within the meaning of the
CA Act
. What
governs is the substance, not the form:
Cambie Surgeries
at paras. 30,
39, citing
First Majestic Silver Corp. (Re)
,
2015 BCCA 452
at paras. 3435
.

[34]

This Court may look behind the wording of an order, which might not
properly reflect its true substance:
Tri‑City Capital Corp. v. 0942317
B.C. Ltd.
, 2016 BCCA 407 at paras. 2224 (Smith J.A. in
Chambers).

[35]

Section 7 of the
CA Act
provides:

7 (1)     In
this section, limited appeal order means an order prescribed under the rules
as a limited appeal order.

(2)     Despite section 6(1) of this
Act, an appeal does not lie to the court from a limited appeal order without
leave being granted by a justice.

[36]

Limited appeal orders, from which leave to appeal is required, are
prescribed by R. 2.1 of the
CA Rules
:

2.1    The following orders are prescribed as limited appeal orders for
the purposes of section 7 of the Act:

(a)     an order granting or refusing relief for which
provision is made under any of the following Parts or rules of the Supreme
Court Civil Rules:

(i)       Part 5
[Case Planning]
;

(ii)      Part 7
[Procedures for Ascertaining Facts]
, other than Rule 7‑7 (6)
[application
for order on admissions]
;

(iii)      Rule 9‑7 (11),
(12), (17) or (18)
[adjournment or dismissal, preliminary orders, orders and
right to vary or set aside order]
;

(iv)     Part 10
[Property and Injunctions]
;

(v)      Part 11
[Experts]
;

(vi)     Rule 12‑2
[trial management conference]
;

(vi.1)  Rule 18‑1
[inquiries, assessments and accounts]
;

(vii)     Rule 21‑7
[foreclosure and cancellation]
;

(b)     an order granting or refusing relief for which
provision is made under any of the following Parts or rules of the Supreme
Court Family Rules:

(i)       Part 5
[Financial Disclosure]
, other than Rule 5‑1 (28) (b) and
(c)
[relief]
;

(ii)      Rule 7‑1
[judicial case conference]
;

(iii)      Part 9
[Procedures for Obtaining Information and Documents]
, other than Rule 9‑6 (6)
[application for order on admissions]
;

(iv)     Rule 11‑3
(11), (12), (17) or (18)
[adjournment or dismissal, preliminary orders,
orders and right to vary or set aside order]
;

(v)      Part 12
[Property and Injunctions]
;

(vi)     Part 13
[Court Ordered Reports and Expert Witnesses]
;

(vii)     Rule 14‑3
[trial management conference]
;

(viii)    Rule 18‑1
[inquiries, assessments and accounts]
;

(c)     an order granting or refusing interim relief under the
Family
Law Act
;

(d)     an order, granting or refusing an investigation into a
family matter, made under section 211 of the
Family Law Act
;

(e)
an order granting or refusing an adjournment
or
an extension or a shortening of time;

(f)      an order granting or refusing costs, or granting or
refusing security for costs, if the only matter being appealed is that grant or
refusal;

(g)     an order of a Supreme Court judge granting or
refusing an appeal from any order referred to in paragraphs (a) to (f) of this
rule.

[Emphasis by underlining added.]

[37]

The predecessor
CA Act
and
CA Rules
attempted to
distinguish between interlocutory and final orders as the basis for deciding
when leave to appeal should or should not be required. This attempt at
categorization turned out to be a fruitful source of litigation.

[38]

It can be seen in the present
CA Act
and
CA Rules
that the
overall policy goal of distinguishing between decisions that finally determine
a partys rights and those that do not remains the same. Thus, the
CA Act
and
CA Rules
recognize that it is in the interests of justice that there
be an automatic right of appeal from orders which finally determine a claim or
defence. The drafting of CA Rule 2.1 also recognizes that it could clog
the justice system and increase the expense and time of litigation to have
automatic appeals from orders that are largely procedural and discretionary and
that relate to the conduct of a claim or defence. It therefore makes good sense
to require leave to appeal from some orders.

[39]

The present
CA Act
and
CA Rules
were designed to provide
more certainty and clarity and less room for debate about whether a particular
order requires leave to appeal or not:
Clifford v. Lord
, 2013 BCCA 302
at para. 29 (Garson J.A. in Chambers);
Tri‑City Capital Corp.
at
para. 22.

[40]

As can be seen by the express language of CA Rule 2.1(a) and (b),
in many cases what now governs the question of whether leave to appeal is
required is the basis of the authority under which the order was granted:
Clifford
at

para. 29;
Tri‑City Capital Corp.
at paras. 2223.

[41]

In other words, to determine whether leave to appeal is required in a
civil proceeding, the question must first be asked: pursuant to which rule of
the
SC Rules
was the order made?

[42]

Because of the approach of creating an express list of those types of
orders requiring leave to appeal in CA Rule 2.1, it is perhaps inevitable
that some anomalies result.

[43]

Specifically, SC Rule 22‑1(4) creates somewhat of an anomaly.
It provides the judge with the discretion in a chambers application to make a
number of orders regarding evidence that are of an interlocutory nature, yet it
is not identified in CA Rule 2.1 as a category of limited appeal
orders.

[44]

SC Rule 22‑1(4) provides:

(4)
On a chambers proceeding, evidence
must be given by affidavit, but the court may

(a)
order the attendance for
cross‑examination of the person who swore or affirmed the affidavit,
either before the court or before another person as the court directs,

(b)
order the examination of a
party or witness, either before the court or before another person as the court
directs,

(c)
give directions required for
the discovery, inspection or production of a document or copy of that document,

(d)
order an inquiry, assessment
or accounting under Rule 18‑1, and

(e)
receive other forms of evidence.

[45]

It can be seen that orders of the nature outlined in SC Rule 22‑1(4)
are not final orders determining the merits of a proceeding. Rather, they are
very much of a procedural nature and are similar to orders for discovery in
actions, orders that are limited appeal orders requiring leave to appeal.
Nevertheless, because SC Rule 22‑1(4) orders are not one of the
categories of listed orders in CA Rule 2.1, these types of orders give
rise to an automatic right of appeal. In this regard, see for example,
Galloway
v. A.B.
, 2019 BCCA 385 (Griffin J.A. in Chambers), dealing with
an order for production of documents in a petition proceeding; and
Eastside
Pharmacy Ltd.,
dealing with an order for cross‑examination of a
witness who swore an affidavit in a petition proceeding.

[46]

It is important to note that the question of under what SC Rule an order
was made determines many but not all categories of limited appeal orders
pursuant to CA Rule 2.1.

[47]

As examples, CA Rules 2.1(e) and (f) are not based on the authority
by which an order is made, but are based on the subject‑matter of the
order. CA Rule 2.1(e) requires leave to appeal from orders dealing with
adjournments and extending or shortening time. CA Rule 2.1(f) requires
leave to appeal from orders dealing solely with costs or security for costs.

[48]

Lastly, there remains another undefined category of judicial decisions,
a category that does not involve a final order and does not involve a limited
appeal order. From this category of decisions, there is neither an automatic
right of appeal nor an ability to seek leave to appeal. Rather, a decision in
this grey area might simply form one part of a ground of appeal, if later in
the proceeding an appealable order is made. An example is the evidentiary
ruling made mid‑trial in
Cambie Surgeries
.

[49]

This grey area includes a wide number of discretionary decisions by
judges in the trial court, as they manage the caseload and individual cases
before them.

[50]

As explained in the concurring judgment of Justice Saunders in
Cambie Surgeries
:

[70]      The juridical nature of the Supreme Court's tools
for managing its caseload has taken on added importance with the enactment of
current s. 7 of the
Court of Appeal Act
referred to by my
colleague. That section changed the criterion for leave to appeal from interlocutory
order to a limited appeal order enumerated in Rule 2.1.
There are a great
number of events that occur in the trial court under a rule that provides the
court may order, that are interlocutory, that would never have attracted leave
to appeal under the former s. 7, and that are not under a rule enumerated
in Rule 2.1. There are also judicial instructions given that are not
expressly provided for by a rule but are recorded by the Supreme Court of
British Columbia and filed in documents entitled order
. If such matters
are within s. 6 of the
Court of Appeal Act
, they are appealable as
of right. An example of this effect is demonstrated in
British Columbia
(Director of Civil Forfeiture) v. Lloydsmith
,
2014
BCCA 72
, a case concerning a document entitled order that addressed
the timing of a cross‑examination. This Court held the matter was not
appealable because it concerned no more than a ruling made in the management of
litigation.

[71]      Two approaches are possible. One is to give a
literal reading to the
Supreme Court Civil Rules
and all documents
entered by the Supreme Court of British Columbia entitled order, so as to
engage this Courts process whenever a litigant chooses to challenge such an order.
The other is to enquire into the substance of the event that occurred in the
Supreme Court of British Columbia, to determine whether an order, as intended
by s. 6 of the
Court of Appeal

Act
, has been made that
allows an appeal.

[Emphasis added.]

[51]

As is clear from
Cambie Surgeries
, this Court has decided on the
second approach articulated by Justice Saunders. The Court does not take a
literal approach to the question of whether a document is an order to
determine if it gives rise to a right of appeal or to the right to seek leave
to appeal. Rather, the substance of the matter is considered.

The Authority for and Substance of the Judges Decision

[52]

We must consider whether the judges order is an appealable order within
the meaning of the
CA Act
; fits within one of the categories of limited
appeal orders listed in CA Rule 2.1; or is neither.

[53]

That requires consideration of the authority for and substance of the
judges decision that is the subject of Mr. Kranzs appeal.

[54]

No specific reference to the
SC Rules
or other authority is set
out in the order. The hearing of the petition was before the judge and no other
application was brought. The judge did not dismiss the petition, nor did she
grant it.

[55]

Having considered the content of the order, I am not persuaded that the
form of order fully captures the substance of the judges decision.

[56]

The judge granted the relief sought by the Strata, which she earlier
identified at para. 26 of her reasons:

If I am inclined to rule that parts of the affidavit are
inadmissible,
the [Strata] argues the petition should be adjourned
and
leave granted for it to file additional affidavit evidence. Counsel concedes
that if I do so, I should also grant leave for [Mr. Kranz] to file
responsive affidavits and/or an amended response to petition.

[Emphasis added.]

[57]

In my view, the substance of the judges decision was to adjourn the
hearing of the petition on terms that allowed the Strata the opportunity to
file supplemental evidence and provided Mr. Kranz with the opportunity to
respond to the same. The judge did not rule on the admissibility of any
supplemental evidence or other materials.

[58]

The authority for the judges order was not SC Rule 22‑1(4).
The judge was not being asked to determine any application under that sub‑rule.
She did not order cross‑examination, discovery, or the receipt of
evidence in a form other than by affidavit.
Eastside Pharmacy
is
distinguishable because it was dealing with an application and order expressly
authorized under SC Rule 22‑1(4), as noted at paras. 29 and 33.

[59]

In my view, the judges authority to adjourn the petition can be found
within the powers granted to a judge in chambers by SC Rule 22‑1(7)(b),
which provides:

(7)
Without limiting subrule (4), on the
hearing of a chambers proceeding, the court may

(a)
grant or refuse the relief
claimed in whole or in part, or dispose of any question arising on the chambers
proceeding,

(b)

adjourn the chambers
proceeding
from time to time, either to a particular date or generally, and
when the chambers proceeding is adjourned generally a party of record may set
it down on 3 days' notice for further hearing,

(c)
obtain the assistance of one
or more experts, in which case Rule 11‑5 applies, and

(d)
order a trial of
the chambers proceeding, either generally or on an issue, and order pleadings
to be filed and, in that event, give directions for the conduct of the trial
and of pre‑trial proceedings and for the disposition of the chambers
proceeding.

[Emphasis added.]

[60]

Had the judge not adjourned the petition, but proceeded to grant or
dismiss it, there is no question that there would be an automatic right of
appeal. But, in my view, because the substance of the judges order is an
adjournment of the hearing of the petition, on terms, it requires leave to
appeal pursuant to CA Rule 2.1(e).

[61]

I pause to acknowledge that in her October 27, 2020 ruling at para. 8,
the judge stated that both parties agreed that the case was not a limited
appeal order. Mr. Kranz suggests it would be unfair for the Strata to
resile from that position now. There is no transcript of that chambers
application and counsel for the Strata does not recall whether he took that
position.

[62]

I do note that it is possible both parties agreed with the proposition
in
Eastside Pharmacy
, a case they cited to the judge, that an order
under SC Rule 22‑1(4) is not a limited appeal order. However, the
judges order was not made pursuant to SC Rule 22‑1(4).

[63]

Regardless of the position taken by the parties, as the judge noted at para. 11
of her October 27, 2020 ruling, it is for this Court to decide the character of
the ruling for the purposes of appeal. We are not bound by the position taken
by either party on the hearing before the judge as to the nature of her order.

[64]

I recognize that wrapped up in the adjournment was the judges
evidentiary ruling that parts of the Langford Affidavit were inadmissible. Mr. Kranz,
of course, is not seeking to appeal that aspect of the judges decision. Had
the Strata sought to appeal that aspect of the judges decision, in my view the
reasoning in
Cambie Surgeries
would apply. A ruling determining the
admissibility of evidence midway through a petition hearing (and not the
subject of a distinct application authorized by the
SC Rules
) should not
be considered an appealable order. The significance of the judges evidentiary
ruling on the merits of the petition is not yet known and will not be known
until the outcome of the continued petition hearing itself. It may be that in
the future the evidentiary decision will be a ground of appeal for the Strata,
should the petition be dismissed, but that remains to be determined.

[65]

The aspect of the judges decision that Mr. Kranz complains about
is the judges granting of leave to the Strata to file supplementary
affidavits. Mr. Kranz takes the position before us that the judge did not
have jurisdiction to grant such an order. I do not find any support for the
proposition that this was a matter of the judges jurisdiction, as opposed to
simply being the exercise of her discretion. Leaving aside a judges inherent
jurisdiction to control the process, it is clear that a judge hearing a
petition in chambers has the power, under the
SC Rules
, to make a wide
variety of orders relating to procedure and evidence: see for example, SC Rules 16‑1(7);
16‑1(18); 22‑1(4); 22‑1(7). SC Rule 16‑1(7) expressly
gives the court the power to permit a party to serve additional affidavits.
Indeed, Mr. Kranz conceded in oral argument before us that there could be
circumstances where a judge would be permitted to exercise discretion to allow
for additional evidence to be filed on a petition; he just takes the position
the judge ought not to have done so here.

[66]

In my view, the judges exercise of her discretion to permit the Strata
to attempt to provide supplemental evidence was part of the reasoning for the
judges decision to adjourn the petition hearing and was not a separate
decision giving rise to a right of appeal. Even if one was to say it was a
separate decision, in my view it would fall into the grey area that Justice
Saunders discussed in
Cambie Surgeries
as simply being a decision
relating to the management of the ongoing hearing of the petition. It would not
be appealable as of right, but could potentially form a ground of appeal
depending on the final outcome of the petition hearing.

Conclusion

[67]

Having determined that the substance of the judges order was to adjourn
the hearing of the petition, on terms, and having concluded that this means Mr. Kranz
will require leave to appeal, there is no need to deal with the Stratas application
for a stay. The concerns raised by the Strata regarding the bringing of an
appeal mid‑way through the petition hearing could properly be raised in
response to any leave to appeal application and application for an extension of
time.

[68]

For these reasons, I would quash the appeal. I would give the Strata
costs of the appeal. The scale and quantum of costs can be addressed by written
submissions, including the applicability or inapplicability of the case of
Strata
Plan KAS 2428 v. Baettig
, 2017 BCCA 377.

[69]

BAUMAN C.J.B.C.
: I agree.

[70]

FITCH J.A.
: I agree.

[71]

BAUMAN C.J.B.C.
: The appeal is quashed. The Strata will have its
costs determined in the manner indicated in Justice Griffins reasons following
submissions of the parties in accordance with a schedule that they hopefully
can agree to.

The
Honourable Madam Justice Griffin