Jensen v. Ross

Jensen v. Ross

The chambers judge erred by deciding on her own motion and by determining a final disposition at a case planning conference in the absence of an application and without an evidentiary foundation; limitation defences and postponement under the Limitation Act are fact‑intensive and cannot be resolved on the notice of civil claim alone at a CPC; the appeal is allowed and the order striking the claim is set aside and remitted to the Supreme Court for proper process.

Citation
2014 BCCA 173
Parties
Appellant/plaintiff: Cynthia Jane Jensen; Respondent/defendant: Margaret Ross; Respondent/defendant: Dr. Kirstie Overhill; Respondent/defendant: Dr. Ruth Campling; Respondent/defendant: Ministry of Children and Family Development; Respondent/defendant: Polly Powley; Respondent/defendant: Janice Pentland-Smith; Respondent/defendant: Paul McKinnon; Respondent/defendant: Don Fairweather; Respondent/defendant: Blaine Hagedorne; Respondent/defendant: Elaine Hagedorne; Respondent/defendant: Super Valu Grocery Store; Respondent/defendant: North Shore Home Support Services; Respondent/defendant: RCMP, Gibsons Detachment
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
2 May 2014
Procedural Posture
Civil Appeal / Appeal From Supreme Court of British Columbia Chambers Judge Order Striking Plaintiff's Claim at a Case Planning Conference; Matter Remitted to Trial Court
Outcome
Appeal allowed; order striking statement of claim set aside; matter remitted to Supreme Court for further case management; plaintiff granted liberty to file a reply pleading postponement provisions before CPC
Legal Topics
Case Planning Conference Powers, Rule 9 5 Striking Pleadings, Postponement of Limitation Period, Acting on Court's Own Motion, Abuse of Process
Source Language
English
Civil Procedure Limitation of Actions Judicial Conduct Administrative Law Case Planning Conference Powers Rule 9 5 Striking Pleadings Postponement of Limitation Period Acting on Court's Own Motion +1 more

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Parties

Cynthia Jane Jensen

Appellant/plaintiff

Margaret Ross

Respondent/defendant

Dr. Kirstie Overhill

Respondent/defendant

Dr. Ruth Campling

Respondent/defendant

Ministry of Children and Family Development

Respondent/defendant

Polly Powley

Respondent/defendant

Janice Pentland-Smith

Respondent/defendant

Paul McKinnon

Respondent/defendant

Don Fairweather

Respondent/defendant

Blaine Hagedorne

Respondent/defendant

Elaine Hagedorne

Respondent/defendant

Super Valu Grocery Store

Respondent/defendant

North Shore Home Support Services

Respondent/defendant

RCMP, Gibsons Detachment

Respondent/defendant

Procedural Posture

Civil Appeal / Appeal From Supreme Court of British Columbia Chambers Judge Order Striking Plaintiff's Claim at a Case Planning Conference; Matter Remitted to Trial Court

Legal Issues

  1. 1 Whether a judge may make a final order at a case planning conference
  2. 2 Whether a cause of action appearing time-barred can be struck as an abuse of process at a CPC
  3. 3 Whether a judge may decide a matter on her own motion absent application by parties

Ratio Decidendi

The chambers judge erred by deciding on her own motion and by determining a final disposition at a case planning conference in the absence of an application and without an evidentiary foundation; limitation defences and postponement under the Limitation Act are fact‑intensive and cannot be resolved on the notice of civil claim alone at a CPC; the appeal is allowed and the order striking the claim is set aside and remitted to the Supreme Court for proper process.

Court Disposition

Appeal allowed; order striking statement of claim set aside; matter remitted to Supreme Court for further case management; plaintiff granted liberty to file a reply pleading postponement provisions before CPC

Orders

  • Order striking the plaintiff's statement of claim set aside
  • Action remitted to the Supreme Court of British Columbia for further case planning and proceedings