Pearlman v. Atlantic Trading Company Ltd.
- Citation
- 2009 BCCA 475
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- British Columbia Court of Appeal
- Decision
- 18 February 2009
- Posture
- Appeal (application to Vary Prior Order) / Hearing on Application to Vary Order and Application to Dismiss Appeal as Abandoned; Disposition Delivered
- Language
- English
More details
- Court
- British Columbia Court of Appeal
- Decision
- 18 February 2009
- Posture
- Appeal (application to Vary Prior Order) / Hearing on Application to Vary Order and Application to Dismiss Appeal as Abandoned; Disposition Delivered
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal was dismissed as abandoned because the appellant failed to post the security for costs ordered by the court, did not follow up the application to vary that order over an extended period, and the appeal in any event had no reasonable prospect of success.
Court disposition
Appeal dismissed as abandoned
Orders
- Appeal dismissed as abandoned
- Respondents awarded their costs of the application
02
Material facts
Parties
David Pearlman
Appellant / Plaintiff Counsel: Appellant appearing in personAtlantic Trading Company Ltd.
Respondent / Defendant Counsel: V.G. CritchleyRebecca Lee Spence
Respondent / Defendant Counsel: V.G. Critchley03
Procedural history
Posture
Appeal (application to Vary Prior Order) / Hearing on Application to Vary Order and Application to Dismiss Appeal as Abandoned; Disposition Delivered
04
Questions and positions
Legal issues
- 01
Whether the appeal should be dismissed as abandoned for failure to post security for costs
- 02
Whether the court should vary or set aside the prior security for costs order
- 03
Whether the appeal has a reasonable prospect of success
Party arguments
- Applicant
- Appellant applied to vary Chiasson J.A.'s order and sought to continue the appeal despite the security for costs order; argued to pursue outstanding claims in the Supreme Court and this court.
- Respondent
- Respondents argued the appellant had not complied with the court's security for costs order, had not followed up the variation application for months, evidenced no intention to prosecute the appeal, and that the appeal had no reasonable prospect of success; they sought dismissal as abandoned and costs.
05
Court’s reasoning
Legal principles
- 01
Newbury J.A. reasons in Pearlman v. Atlantic Trading Co. Ltd., 2009 BCCA 475 (referring to Chiasson J.A.'s order)
An appeal may be dismissed as abandoned where the appellant fails to comply with court orders such as posting security for costs.
- 02
Statement of Madam Justice Southin cited by Newbury J.A. in the reasons
Courts will not go behind a security for costs order by varying or ignoring it in a backhanded way; such orders should not be lightly disturbed.
06
Ratio, limits and disposition
Ratio decidendi
The appeal was dismissed as abandoned because the appellant failed to post the security for costs ordered by the court, did not follow up the application to vary that order over an extended period, and the appeal in any event had no reasonable prospect of success.
Obiter and limits
- One should not go behind a security for costs order by varying it or ignoring it (per Madam Justice Southin as cited).
- Respondents are entitled to their costs of the application.
Court disposition
Appeal dismissed as abandoned
- Appeal dismissed as abandoned
- Respondents awarded their costs of the application
Source and reliance status
British Columbia Court of Appeal · 18 February 2009
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
British Columbia Court of Appeal
Judgment· 18 February 2009
2009 BCCA 475 Pearlman v. Atlantic Trading Company Ltd.
COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Pearlman v. Atlantic Trading Company Ltd., 2009 BCCA 475 Date: 20090218 Docket: CA036501 Between: David Pearlman Appellant (Plaintiff) And Atlantic Trading Company Ltd. and Rebecca Lee Spence Respondents (Defendants) Before: The Honourable Madam Justice Newbury (In Chambers) Application to vary order from: British Columbia Court of Appeal, February 2, 2009 (Pearlman v. Atlantic Trading Company Ltd., 2008 BCCA 477, Vancouver Reg. CA036501) Oral Reasons for Judgment Counsel for the Appellant: Appellant appearing In Person Counsel for the Respondent: V.G. Critchley Place and Date of Hearing: Vancouver, British Columbia February 18, 2009 Place and Date of Judgment: Vancouver, British Columbia February 18, 2009 [1] NEWBURY J.A.: I am going to grant the application to dismiss this appeal as abandoned. I think that the fact Mr. Pearlman's application to vary Mr. Justice Chiasson's order has sat for at least two months without his following up on it, means that he really did not intend to pursue it. He has not paid the security for costs to date as required. [2] Mr. Justice Chiasson obviously considered all of the arguments that I have heard today regarding the proceedings and claims Mr. Pearlman has made, or intends to make, in future, outstanding in the Supreme Court and in this court. Nevertheless, Chiasson J.A. felt that security
should be ordered. [3] As Madam Justice Southin said, one should not go behind such an order in a backhanded way of overruling it, by varying it or ignoring it. The fact is that Mr. Pearlman has not obeyed this order, and that the appeal in any event has "no reasonable prospect of success" as stated by Mr. Justice Chiasson. [4] In the result, this appeal is dismissed as abandoned because of the failure to post security for costs as ordered by this court. (discussion with counsel) [5] NEWBURY J.A.: The application to dismiss the appeal as abandoned is granted. (discussion with counsel) [6] NEWBURY J.A.: The respondents will be entitled to their costs of the application. "The Honourable Madam Justice Newbury"
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