Peloso v. Peloso

2026 BCCA 28 Peloso v. Peloso COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Peloso v. Peloso, 2026 BCCA 28 Date: 20260115 Docket: CA50980 Between: Antonio Augusto Peloso Appellant (Plaintiff) And Rodolfo Rany Peloso in his Personal Capacity and in his Capacity as Executor of the Estate of Gino Giuseppi Peloso, Deceased, Gima Masonry Co. (2003) Ltd., Rosanna Pasqua Skov, Jens Skov, and Simard Josee Respondents (Defendants) Before: The Honourable Justice Riley (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated August 29, 2025 (Peloso v. Peloso, New Westminster Docket S257568). Oral Reasons for Judgment Counsel for the Appellant: Q. Jiwan Counsel for the Respondent, Rosanna Pasqua Skov (via videoconference): M. Potomak Counsel for the Respondent, Simard Josee (via videoconference): J.E. Fung Place and Date of Hearing: Vancouver, British Columbia December 19, 2025 Place and Date of Judgment: Vancouver, British Columbia January 15, 2026 Summary: The applicant, Antonio Peloso, seeks leave to appeal from a decision of a chambers judge granting an adjournment of two separate applications on terms requiring that they be set down for hearing together. HELD: Application dismissed. If the decision resulted in an appealable order, it is properly characterized as an order refusing an adjournment on certain terms, for which leave to appeal is required. The proposed appeal lacks merit because, among other things, it relates to a scheduling decision that arguably did not result in an appealable order. Even if appealable, the impugned scheduling decision was a discretionary matter not likely to be disturbed. Furthermore, since the decision did not address anything beyond timing of the chambers applications, the proposed appeal would have no significance to the action itself, nor would it present any issue of broader significance to the practice. It is not in the interests of justice to grant leave to appeal. RILEY J.A.: Introduction [1] This is a ruling on an application for leave to appeal from what is effectively a scheduling decision made by a judge of the Supreme Court of British Columbia, in litigation related to the estate of Gino Peloso, who died leaving three adult children, Antonio Peloso, Rodolfo Peloso, and Rosanna Skov. [2] Because the parties involved are related and many have the same last name, I will refer to them hereafter by their first names, intending no disrespect. [3] Antonio is the plaintiff in the underlying case. The litigation began when Antonio commenced an action in his own name, alleging that prior to Gino's passing, Rodolfo, Rosanna, and their spouses or partners wrongfully diverted property from Gino's estate, for their own benefit. [4] Rosanna, who takes the position that there is no basis for any claim against her, filed an application for summary dismissal under Rule 9-6 of the Supreme Court Civil Rules, B.C. Reg. 168/2009. [5] Meanwhile, Antonio filed an application under s. 151 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA], seeking leave to bring a claim on behalf of Gino's estate against all the defendants in his personal action, including Rodolfo and Rosanna. [6] The ruling that Antonio seeks to appeal has to do with the scheduling of these two applications. Both matters were originally set down for hearing in chambers on the same day, although the parties had never discussed their timing and there was no agreement that they be heard together. There was also insufficient court time to argue the merits of either application on the original hearing date. It was in these circumstances that a judge in chambers adjourned both applications and directed that they should proceed together in a two-day chambers hearing. Positions of the Parties [7] Antonio seeks to appeal the chambers judge's ruling that the applications should be heard at the same time. Antonio argues that the chambers judge "erred in law by conflating the distinct purposes and procedural character of a leave application" under s. 151 of WESA with "those of a summary dismissal application" under Rule 9-6. He says the decision is not a limited appeal order, so leave to appeal is not required. If he is wrong in that position, he argues in the alternative that leave should be granted, given the significant prejudice caused by the chambers judge's decision. In particular, Antonio says the decision effectively forecloses his ability to develop the evidentiary basis to defend against Rosanna's summary dismissal application, by preventing him from obtaining document production and conducting discoveries in advance of the hearing. [8] Rosanna opposes the application. She says the decision is not an appealable order, or in the alternative, that leave is required, because the chambers judge's decision to grant an adjournment on conditions is a limited appeal order as described in Rule 11(e) of the Court of Appeal Rules, B.C. Reg. 120/2022 [Rules]. She opposes leave on the basis that the chambers judge's ruling was a discretionary decision which is of no particular significance to the action or the practice more generally, and that an appeal would be disruptive to the proceedings. Analysis [9] The first issue to consider is whether leave to appeal is required. Antonio says leave is not required because the order directing that the applications be heard together does not fit into any of the classes of limited appeal orders in Rule 11 of the Rules. [10] Antonio cites Aldergrove Credit Union v. Hoessmann Estate, 2013 BCCA 213 at para. 10 (Chambers), for the proposition that where the order under appeal does not fit within the list of "limited appeal orders" in the Rules, leave is not required. I accept that as settled law. The combined effect of s. 13(2)(a) of the Court of Appeal Act, S.B.C. 2021, c. 6 [Act] and Rule 11 of the Rules is to simplify appellate procedure by creating a closed list of orders for which leave to appeal is required. If an order of the Supreme Court does not qualify as a limited appeal order under Rule 11, leave is not required. [11] In Antonio's submission, the chamber's judge's direction that the two applications be heard together can be characterized as a form of "joinder" order, which is not listed as a limited appeal order in Rule 11, such that leave to appeal is not required. In support of this position, he relies on a number of cases including Tomic v. Tough, 2013 BCCA 212 at paras. 19-21 (Chambers). In that case, Justice Chiasson held that since the appellant had an appeal as of right in respect of other terms of the order under appeal, leave was not required to appeal from another component of the same order providing for the joinder of a family law claim together with a petition for the partition of property. [12] It is not clear to me that Tomic is of assistance to Antonio's position, because Chiasson J.A. declined to rule on whether the joinder term was a limited appeal order. The outcome appeared to turn on a finding that the joinder was a component of a broader order, and that leave to appeal was not required on two of the other terms of the order. [13] In any event, I do not accept Antonio's characterization of the chambers judge's decision in this case as an order joining two proceedings. Rather, I agree with Rosanna's characterization of the chambers judge's decision as an order adjourning the two applications, on conditions. The entered order contains a single term stating: "The Skov Application filed on August 18, 2025, and the Antonio Application filed on August 19, 2025, are adjourned generally to be heard together over the course of two days in long chambers". This is, in my view, an order granting an adjournment on certain conditions. To the extent that it constitutes an order at all (an issue I will address in more detail below), it is properly classified as a "limited appeal order" within the meaning of Rule 11(e), which applies to orders "granting or refusing an adjournment": The Owners, Strata Plan VR29 v. Kranz, 2021 BCCA 32 at para. 60; see also Katz v. Kosikar, 2025 BCCA 450 at paras. 25-29 (Chambers). [14] I conclude that leave to appeal is required. [15] I turn next to the test for leave to appeal. I am guided by Justice Griffin's succinct statement of the governing principles in Katz at paras. 17-19, which I would summarize in three propositions. [16] First, the factors to be considered in deciding whether to grant leave to appeal include whether the proposed appeal: (a) is of significance to the practice, or (b) is of significance to the action itself, (c) has prima facie merit, or conversely, is frivolous, and (d) will unduly hinder the progress of the action: Katz at para. 17, citing Goldman, Sachs & Co. v. Sessions, 2000 BCCA 326 at para. 10 (Chambers). [17] Second, these factors are all assessed with a view to determining whether it is in the interests of justice to grant leave: Katz at para. 18, citing Vancouver (City) v. Zhang, 2007 BCCA 280 at para. 10 (Chambers). [18] Third, leave to appeal will rarely be granted from a discretionary order, given that the test the Court would apply in such circumstances is whether the judge's exercise of discretion involved any error in principle, resulted in an order that is unsupportable on the record, or was manifestly unjust: Katz at para. 19, citing Dehydration Research LLC v. EnWave Corporation, 2022 BCCA 347 at para. 55 (Chambers) and Hagwilneghl v. Canadian Forest Products Ltd., 2011 BCCA 478 at para. 31 (Chambers). [19] There is a fourth proposition emerging from Katz, which I find to be particularly apt in this case. It is the idea that not every decision made by a Justice of the Supreme Court results in an appealable "order". As Griffin J.A. put it, "[s]ome court orders are more in the nature of evidentiary or procedural rulings, or case management or courtroom management directions, and these are not considered by this Court to be 'orders' subject to appeal.": Katz at para. 20, citing Skyllar v. The University of British Columbia, 2022 BCCA 138 at paras. 17-19, 37; First Majestic Silver Corp. v. Davila Santos, 2015 BCCA 452 at para. 34; Cambie Surgeries Corporation v. British Columbia (Attorney General), 2017 BCCA 287 at paras. 70-71; Flynn v. Woodward, 2023 BCCA 45 at para. 21 (Chambers). [20] The court's jurisdiction to entertain an appeal from a decision of the Supreme Court is found in s. 13(1)(a) of the Act, which, in summary, provides that an appeal lies from an "order" of the Supreme Court or a judge of that court. The term "order" is defined in s. 1 of the Act to be "a judgment", "decree", or "opinion, advice, direction, determination, decision or declaration that is specifically authorized or required under an enactment to be given or made". This language is very broad but is not without its limits. It has consistently been held that there are certain kinds of decisions or rulings that do not fall within the meaning of "order" as that term is used in the Act, and, hence, are not appealable. [21] As Justice Groberman stated in First Majestic at para. 34, "not every pronouncement of a judge of the Supreme Court constitutes an 'order'", and "[p]rocedural rulings of the trial court, for example, are generally not 'orders' for the purpose of appeals". [22] The fact that the decision has been documented in an entered order in the court below does not dispositively resolve the question of whether it is, in substance, an "order" within the meaning of the Act: Katz at para. 20; Cambie Surgeries at para. 30; Kranz at para. 33. [23] In this case, the matter under appeal is a decision of a judge in chambers adjourning two applications, on conditions requiring that they be set down together for a two-day hearing. It was effectively a discretionary ruling by a judge in chambers on a matter of scheduling. The case law recognizes that scheduling decisions of this sort are "generally not appealable" under the reasoning described above: Katz at para. 24; see also Badela v. Donald, 2024 BCCA 215 at paras. 14, 20-23, 31 (Chambers). The case law also recognizes that rulings or directions made in case management do not necessarily qualify as appealable orders: Skyllar at para. 18; Tylon Steepe Homes Ltd. v. Landon, 2011 BCCA 162; Este v. Taherkhani, 2025 BCCA 336. [24] Whether a particular decision or ruling disposes of substantive or procedural rights is relevant to the distinction between an unappealable direction and an appealable "order" within the meaning of the Act: North Vancouver (City) v. British Columbia (Utilities Commission), 2024 BCCA 221 at para. 14; Singh v. Singh, 2025 BCCA 309 at para. 16. [25] In this case, Antonio says the chambers judge's ruling has a significant impact on his rights, because a direction for the two applications to be heard together prevents him from exercising the estate's discovery powers prior to defending against Rosanna's summary dismissal application. Antonio says that without first getting leave to advance his claim on behalf of the estate, he lacks the authority to compel or obtain the very evidence necessary to respond to Rosanna's summary dismissal application. In his view, by ordering him to defend the summary dismissal application before he has access to the estate's discovery powers, the chambers judge "deprived [him] of a fair opportunity to establish the evidentiary foundation necessary for the court's consideration of the claim". [26] Rosanna takes issue with Antonio's submission that the chambers judge's directions on scheduling involved any determination of substantive or procedural rights. She says the judge merely directed that the two applications be set down for hearing on the same dates, without deciding anything bearing on the merits of either application. Dealing more specifically with the submission that the ruling deprives Antonio of the ability to conduct document discovery in advance of the WESA application, Rosanna relies on Carpino v. Carpino, 2022 BCSC 2237 at para. 106, for the proposition that evidence to meet the merit threshold under s. 151(3)(b) of WESA must exist at the time of the leave application, otherwise an order granting leave could be used to authorize a fishing expedition. [27] It seems to me that Antonio's position may conflate his right to document production in the action commenced in his own name with his obligation to obtain leave under s. 151 of WESA before commencing an action on behalf of his father's estate. However, I do not need to place any reliance on the "fishing expedition" point discussed in Carpino because, in my view, at an even more basic level the chambers judge's direction on scheduling of the two applications did not determine any procedural or substantive rights. I say that because the direction that the two applications be set for hearing together does not tie the hands of the judge who will hear the merits of those applications. The chambers judge's ruling did not involve a binding determination that the applications must be decided in any particular order, or even that both must be disposed of on their merits. Indeed, at the hearing before me, it was common ground that the chambers judge's scheduling decision will not prevent the judge who ultimately hears the applications from disposing of them in the way that judge determines to be most appropriate in all the circumstances at that time. [28] It is open to Antonio to argue before the presiding judge, at that chambers hearing, that Rosanna's summary judgment application is premature and should be adjourned to allow him time to exercise the estate's discovery powers should leave be granted. Whether the presiding judge accedes to that position will depend on the judge's assessment of the pleadings, the evidence that exists at the time the applications are heard, and the particular circumstances of the case. [29] For all of these reasons, I see no realistic possibility that Antonio would be able to convince a division of this Court that the chambers judge's scheduling direction gave rise to an appealable order. As noted above, the fact that the direction was entered as an order is not dispositive of the substance of the matter. A division of this Court would in all likelihood conclude that the subject matter in issue is a non-appealable direction, and therefore not open to variance by way of an appeal. [30] Furthermore, even if the Court were satisfied that the judge's decision gave rise to an appealable order, I see no merit in Antonio's principal submission that the chambers judge "erred in law by conflating the distinct purposes and procedural character of a leave application" under s. 151 of WESA with "those of a summary dismissal application" under Rule 9-6. The thrust of Antonio's argument here is that the test for leave under s. 151 of WESA involves little or no consideration of the merits of the underlying claim and will not necessarily turn on an assessment of evidence, whereas the test for summary dismissal under Rule 9-6 involves a merits assessment that calls for a consideration of both the pleadings and the presentation of evidence showing that there is a triable issue. Antonio says the two applications are so fundamentally different that the chambers judge erred in directing them to be set for hearing together. [31] I can accept that the legal requirements for leave to commence an action under s. 151 of WESA are distinct from the legal requirements for summary dismissal of a claim under Rule 9-6. However, both involve a threshold assessment of the moving party's claim that may go beyond a consideration of the pleadings. Thus, I do not think it can be credibly argued that the two applications were so fundamentally different in their nature that it would be impossible for a judge to hear them together, or one after the other in a two-day hearing. [32] For all of these reasons, I consider that the proposed appeal has no merit. I see no chance that Antonio would be able to convince a division of the Court that the chambers judge's ruling resulted in an appealable order, much less that the chambers judge's discretionary decision was tainted by any error in principle, unsupportable on the record, or manifestly unjust. [33] There are several other factors that also weigh against granting leave. I am of the view that the direction for the two applications to be set down for hearing together is not of significance to the action given that, as previously discussed, it did not determine any procedural or substantive rights in the action. Nor did Antonio argue that the point on appeal is of broader significance to the practice. It would be hard for Antonio to advance such an argument considering that the impugned decision was a simple ruling on the scheduling of two contested applications in the context of an adjournment requested by both parties due to a lack of court time. [34] I will sum all of this up with reference to the interests of justice. In light of the discretionary nature of the chambers judge's ruling on scheduling, the lack of merit in the proposed appeal, the fact that the ruling did not determine any procedural or substantive rights such that it has no significance to the action itself, and the absence of any point of broader significance to the practice, I conclude that it is not in the interests of justice to grant leave to appeal. Conclusion [35] The application is dismissed. "The Honourable Justice Riley"