Portnov v. Alexander Holburn Beaudin + Lang LLP

2025 BCCA 373 Portnov v. Alexander Holburn Beaudin + Lang LLP

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Portnov v. Alexander Holburn Beaudin + Lang LLP, 2025 BCCA 373 Date: 20251014 Docket: CA50917 Between: Abraham Portnov Appellant (Plaintiff) And Alexander Holburn Beaudin + Lang LLP and Melody Cheung Respondents (Defendants) Before: The Honourable Justice Edelmann (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated June 20, 2024 (Portnov v. Alexander Holburn + Lang LLP, Vancouver Docket S242103). Oral Reasons for Judgment The Appellant, appearing in person: A. Portnov Counsel for the Respondents: M. Jain Place and Date of Hearing: Vancouver, British Columbia October 14, 2025 Place and Date of Judgment: Vancouver, British Columbia October 14, 2025 Summary: Mr. Portnov seeks an extension of time to appeal the decision of a Supreme Court judge in chambers. The chambers judge declined to overturn the decision of the Deputy District Registrar to reject Mr. Portnov's application for default judgment. Held: Application denied. It would not be in the interests of justice to grant an extension of time at this stage in the proceedings. [1] EDELMANN J.A.: Mr. Portnov seeks an extension of time to appeal a decision of a judge of the Supreme Court of British Columbia in chambers. In the underlying decision, the chambers judge declined to overturn a decision by the Deputy District Registrar to reject an

application for default judgment. I will begin by setting out some of the background before turning to the application for extension of time. [2] Mr. Portnov filed a Notice of Civil Claim ("NOCC") on April 2, 2024. A Response to Civil Claim ("RTCC") was filed on April 23, 2024. [3] The respondent says that they served the RTCC, along with an application to strike Mr. Portnov's pleadings on May 9, 2024. Mr. Portnov says it was not served in accordance with the Supreme Court Civil Rules, B.C. Reg. 169/2009. He sought default judgment on the basis of R. 3-8(1) which reads as follows: (1) A plaintiff may proceed against a defendant under this rule if (a) that defendant has not filed and served a response to civil claim, and (b) the period for filing and serving the response to civil claim has expired. Under the heading "Filings Required", R. 3-8(2) reads as follows: (2) A plaintiff who wishes to proceed against a defendant under this rule must file (a) proof of service of the notice of civil claim on that defendant, (b) proof that the defendant has failed to serve a response to civil claim, (c) a requisition endorsed by a registrar with a notation that no response to civil claim has been filed by that defendant, and (d) a draft default judgment order in Form 8. [4] On June 13, 2024, the Deputy District Registrar rejected the application for default judgment, indicating that the

application did not satisfy R. 3-8(2)(c) as a RTCC had been filed. Under the heading "Filings Required", R. 3-8(2)(c) requires a requisition endorsed by a Registrar with a notation that no RTCC had been filed by the defendant. [5] Mr. Portnov appealed the decision of the Deputy District Registrar. In his view, the requirements of R. 3-8(1) had been met as the RTCC was not filed and served. [6] On June 20, 2024, the chambers judge dismissed Mr. Portnov's appeal of the decision of the Deputy District Registrar. This is the order that Mr. Portnov now seeks an extension of time to appeal. [7] The application to strike was heard before Justice Hughes in February 2025. She rendered a decision striking the NOCC in its entirety without leave to amend on February 5, 2025. [8] The application for extension of time to appeal that is before me was filed on August 22, 2025. [9] The criteria in an application to extend time to begin an appeal or apply for leave to appeal were set out in Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 at 259-260 (C.A.) and may be summarized as follows: 1) Was there a bona fide intention to appeal?

2) When were the respondents informed of the intention?

3) Would the respondents be unduly prejudiced by an extension of time?

4) Is there merit in the appeal?

5) Is it in the interest of justice that an extension be granted? [10] The interests of justice is "an overriding question and embraces the first four questions"; the fifth factor thus "states the decisive question": Davies at 260-261. [11] I will address each question in turn.

1) Was there a bona fide intention to appeal? [12] Mr. Portnov concedes that he did not form an intention to appeal until sometime after the decision of Hughes J. in February 2025. It would appear that he was waiting to see if his action would be successful and only intended to appeal the decision if the underlying action was unsuccessful.

2) When were the respondents informed of the intention? [13] Mr. Portnov never informed the respondents of his intention to appeal. In fact, it would appear he did not even provide notice of the present application for an extension of time and the respondents only became aware of it upon reviewing the Court's docket.

3) Would the respondents be unduly prejudiced by an extension of time? [14] It is unclear what, if any, effect the appeal would have at this point, as the underlying action was dismissed in its entirety on the application to strike. Even assuming that default judgment remained available in the circumstances, had the appeal been brought in time, the respondents would not have incurred the costs of preparing and attending the proceedings in the interim.

4) Is there merit in the appeal? [15] In my view, the appeal has little if any merit. The requirement in R. 3-8(2)(c) clearly indicates that the filing of the RTCC is a relevant consideration in granting default judgment. If there is some prejudice that arises from the alleged failure to serve the RTCC, despite it having been filed, there are other mechanisms in the Rules to address it. It is difficult to see how the chambers judge erred in declining to grant default judgment in circumstances where the respondents had filed their RTCC in time, and Mr. Portnov had clearly become aware of its contents by the time the matter was before the chambers judge.

5) Is it in the interests of justice that an extension be granted? [16] This application was filed some 14 months after the decision of the chambers judge, in large part because Mr. Portnov was waiting to see if he would be successful in the underlying action. The underlying action was found to have no merit and was struck in its entirety without leave to amend. Mr. Portnov does not seek to appeal that decision. Had default judgment been granted and not subsequently set aside, it would have finally determined many of the issues in the underlying action. In my view, even if there were some merit to Mr. Portnov's interpretation of R. 3-8, it would not be in the interests of justice to grant an extension of time for him to raise that issue on appeal at this stage in the proceedings. [17] The application for leave is dismissed. "The Honourable Justice Edelmann"