Fraser Valley Refrigeration Ltd. v. British Columbia

Fraser Valley Refrigeration Ltd. v. British Columbia

Determination of the Province's standing to pursue the appeal is not merely incidental but goes to whether a controversy exists before this Court; therefore a single justice under s.10(2) lacks jurisdiction to dismiss an appeal for want of standing and that decision must be made by a division of the Court; accordingly the in‑chambers motion to quash is dismissed without prejudice.

Citation
2009 BCCA 422
Parties
Respondent (petitioner): Fraser Valley Refrigeration Ltd.; Appellant (respondent): Her Majesty The Queen In Right Of The Province Of British Columbia
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
7 October 2009
Procedural Posture
Appeal / Preliminary Motion on Standing (in Chambers)
Outcome
FVR's motion to quash the Province's notice of appeal dismissed for lack of jurisdiction of a single justice; matter to be determined by a division of the Court; dismissal without prejudice to renew before a division.
Legal Topics
Rectification, Standing, Appeal Jurisdiction, Court of Appeal Act S.10(2), Rules of Court R.15(5)(a)
Source Language
English
Contract Law Tax Law Procedural Law Equity (rectification) Rectification Standing Appeal Jurisdiction Court of Appeal Act S.10(2) +1 more

Case Brief

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Parties

Fraser Valley Refrigeration Ltd.

Respondent (petitioner)

Her Majesty The Queen In Right Of The Province Of British Columbia

Appellant (respondent)

Procedural Posture

Appeal / Preliminary Motion on Standing (in Chambers)

Legal Issues

  1. 1 Whether a single justice under s.10(2) of the Court of Appeal Act has jurisdiction to dismiss an appeal for want of standing
  2. 2 Whether the Province has standing to appeal when it was not a formal party in the court below but participated by making submissions
  3. 3 Whether the Province could have been added as a party under R.15(5)(a) or under the Court of Appeal Act s.9(1)

Ratio Decidendi

Determination of the Province's standing to pursue the appeal is not merely incidental but goes to whether a controversy exists before this Court; therefore a single justice under s.10(2) lacks jurisdiction to dismiss an appeal for want of standing and that decision must be made by a division of the Court; accordingly the in‑chambers motion to quash is dismissed without prejudice.

Court Disposition

FVR's motion to quash the Province's notice of appeal dismissed for lack of jurisdiction of a single justice; matter to be determined by a division of the Court; dismissal without prejudice to renew before a division.

Orders

  • Dismiss motion to quash the Province's notice of appeal (in chambers) for lack of jurisdiction of a single justice
  • Dismissal is without prejudice to FVR's right to bring the same application before a division of the Court