Kar Recovery, Ltd. v. KDA

2004 BCCA 503 Kar Recovery, Ltd. v. KDA

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Kar Recovery, Ltd. v. KDA, 2004 BCCA 503 Date: 20041001 Docket: CA030444; CA030445 Docket: CA030444 Between: Kar Recovery, Ltd. Appellant (Defendant by Counterclaim) And KDA Respondent (Defendant) - and - Docket: CA030445 Between: EJR Appellant (Plaintiff) (Defendant by Counterclaim) And KDA Respondent (Defendant) Before: The Honourable Madam Justice Ryan (In Chambers) Counsel for the Appellants J. Fiddes Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia July 9, 2004 Place and Date of Judgment: Vancouver, British Columbia October 1, 2004 Reasons for Judgment of the Honourable Madam Justice Ryan: Introduction [1] This is an application under s. 25(2) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, to remove these appeals from the inactive list and, if granted, for directions with respect to setting time limitations for the preparation of the factums. History of the Proceedings [2] The appellant launched two actions that were heard together: one under the Divorce Act; and the other, under the Family Relations Act. [3] On November 28, 2002 Mr. Justice Davies released a 111-page judgment, having heard a 13-and-one-half-day trial between the parties: 2002 BCSC 1649. As noted by the trial judge, while the litigation was in essence a family-law proceeding, it raised issues of corporate law and trust, and

issues of international judicial comity. [4] The appellant filed notices of appeal on December 24, 2002. A cross-appeal was filed January 2, 2003. [5] On February 24, 2003 the appellant filed the Appeal Record. [6] On March 5, 2003 an application to extend the time for 60 days to file the transcripts was filed, and for further time to file a factum. The record reveals that certain portions of the transcripts had been sealed in the Supreme Court and an order was required to unseal them for the purpose of preparing the transcripts. [7] On March 12, 2003 Mr. Justice Mackenzie ordered that the time to file the transcripts be extended 60 days from that date. [8] On March 25, 2003 two volumes of the Appellant's Appeal Books were filed. [9] On May 12, 2003 a letter was received by the Registry addressed to the appellant from Ms. N. Hope McEwan of Appeals Unlimited. The letter stated that a further 30 days were required to complete the transcripts. On May 16, 2003 the appellant's application for a stay of execution, which had been earlier denied in the Supreme Court, was refused in this Court on the basis that the court did not have the jurisdiction to make the order. [10] The appeals remained inactive from mid-May to December 2003. The transcripts were never filed. [11] On December 30, 2003 the appellant was notified by letter from the Court of Appeal Registry that these appeals had

been placed on the inactive list. [12] Up to that time the appellant had been unrepresented. [13] On June 3, 2003 the appellant filed a notice that Brent Ellingson had been appointed to act as his solicitor. [14] Mr. Ellingson appeared in Chambers in this Court on June 22, 2004 seeking to have these appeals removed from the inactive list. Counsel for the respondent was not prepared to proceed on that date. Mr. Justice Donald ordered that the time under s. 25 would cease to run and that the appeals should remain on the inactive list until such time as the application to remove them from the list had been heard and decided. [15] This application was adjourned by Mr. Justice Low on June 30 to July 9, 2004. [16] In his affidavit in support of his application, the appellant says that he was unable to pursue his appeals properly because of his health. The appellant swears that he has "always intended to pursue these appeals [but] I have been prevented from doing so and continue to be unable to personally perform the work required to complete the remaining steps of these appeals for the medical reasons documented in Exhibits B,C and D." Two letters attached to the affidavit appear to be from the appellant's family doctor and treating psychologist. Prepared in the spring of 2002, they say that the appellant suffers from depression and is not up to effectively preparing or defending

himself at trial. The last letter, undated, and addressed to Mr. Donaldson (a lawyer acting for the appellant in extradition proceedings) from the appellant's family doctor says that the appellant suffers from depression and cognitive memory impairment, and that an "upcoming hearing" ought to be adjourned for two to three months. [17] In response to this material, counsel for the respondent catalogued the appellant's involvement in prosecuting the underlying actions after the letters were written in 2002. The work was extensive. [18] Counsel for the respondent attested that on June 23, 2004, Ms. McEwan of Appeals Unlimited advised him that she was instructed by the appellant to stop work on the preparation of the transcripts. [19] The affidavit of counsel for the respondent also contains a number of e-mail transmissions from the appellant to his former wife advising her that he did not intend to carry on with these appeals. [20] In his reply affidavit, of which a number of paragraphs were objected to by counsel for the respondent, the appellant says that after June 2003 he suffered a mild stroke and that he has had CT Scans and other tests which have confirmed that he has suffered damage to the cerebral cortex. No letter from any treating physician is attached to confirm that assertion. [21] The appellant also admits that he contacted Ms. McEwan sometime in 2003 to stop

production of the transcripts because of his financial situation and his health and he was uncertain whether he would continue with these appeals. In his affidavit of July 6, 2004 the appellant says that he believes that the transcripts are now ready for filing. The Relevant Provisions [22] Section 25 of the Court of Appeal Act provides: 25 (1) If a certificate of readiness is not filed in accordance with the rules within one year after the filing of the applicable notice of appeal or notice of application for leave to appeal, the registrar must (a) place the appeal or application for leave to appeal on the inactive appeal list maintained in the registry, and (b) mail notice of the action taken by the registrar under paragraph (a) to the following persons at their respective addresses for delivery: (i) each counsel of record; (ii) each unrepresented appellant or respondent who has provided the registry with an address for delivery. (2) An appeal or application for leave to appeal referred to in subsection (1) must be removed from the inactive appeal list when a justice grants leave to the appellant or the applicant to proceed with the appeal or application for leave to appeal. (3) A justice may, in an order under subsection (2), impose terms and conditions and give directions that the justice considers appropriate. (4) The registrar must return the appeal or application for

leave to appeal to the inactive appeal list and must mail notice of that action in accordance with subsection (1)(b) if (a) a justice makes an order under subsection (2) that requires terms, conditions or directions to be complied with by a specified date and the appellant or applicant fails to comply with those terms, conditions or directions by that date, or (b) in any other case, a certificate of readiness is not filed in accordance with the rules within 180 days after the making of an order under subsection (2) in respect of the appeal or application for leave to appeal. (5) If appeal or application for leave to appeal has remained on the inactive appeal list for 180 consecutive days shall on the 181st day, if stands dismissed as abandoned. (6) An appeal or application for leave to appeal that stands dismissed as abandoned under subsection (5) must not be reinstated unless a justice orders otherwise. [23] There is no rigid test to apply in determining whether an inactive appeal ought to be reactivated. The overriding issue is whether it is in the interests of justice to grant the application. [24] Factors which have been considered by this Court include the following: ● the extent of the delay, ● the explanation for the delay, ● the existence of any prejudice arising from the delay, ● the likelihood of success on appeal. (Deline v. Kidd, 2003 BCCA 170 at para. 11.) [25]

Nothing has been done to prosecute these appeals since June 2003. An order was made in March permitting the appellant a further 60 days to file the transcripts. That deadline was not met. After being notified that the appeals were on the inactive list, nothing was done until June of this year to reactivate the appeals. The material leaves me in doubt as to whether the transcripts are in fact available, even now. [26] The explanation for the delay is not satisfactory. The medical letters obtained by the appellant relate to a time in the spring of 2002. After that time, if the number of motions and materials filed are any measure, the appellant undertook an energetic prosecution of his litigation in the trial court. [27] It was only after counsel for the appellant pointed out the extent of the appellant's work in the trial court that the appellant put forward the assertion that he recently suffered a stroke. As I mentioned, no material from a medical practitioner was filed with the court. [28] Counsel for the appellant attempted to explain that the grounds of appeal were worthy of investigation. The issues at trial were complicated. I cannot say that the grounds are frivolous. [29] The respondent wife is now living in the United States. She says that this litigation has been on-going for over six years. For financial and mental health reasons she says that this delay is

unacceptable in the context of all that has gone on. It is time to bring the appeals to an end. [30] The appellant bears the onus of satisfying the chambers judge that his appeals ought to be removed from the inactive list. I am not persuaded by the material before me that the appellant has a credible excuse for the delays. It seems that he lost interest in pursuing his appeals, allowed them to languish, and for some reason, unexplained in the material, now wishes to proceed. [31] While I cannot say that there is no merit in the grounds of appeal, the other factors militate against reactivating the appeals. In my view it would not be in the interests of justice to allow these appeals to go back onto the active list. [32] I would dismiss the application. "The Honourable Madam Justice Ryan"