Roy v. Kretschmer

Roy v. Kretschmer

The single justice's dismissal for failure to post security was an error because, under First Majestic, a single justice lacks authority to dismiss an appeal for failure to comply with another order to post security; the March 10, 2014 order of Mr. Justice Harris is set aside and the appellant is granted two business days to apply under s.9(6) to a division to review the December 18, 2013 order; costs awarded to respondents.

Citation
2014 BCCA 219
Parties
Respondents (plaintiffs): Richard Roy and Dianne Roy; Appellant (defendant): Dennis Kretschmer; Respondent by Cross Appeal (defendant): 1216393 Ontario Inc.
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
30 May 2014
Procedural Posture
Civil Appeal / Application to Vary Single Justice Order and for Extension of Time to Apply for Review Under S.9(6) of the Court of Appeal Act
Outcome
Order of Mr. Justice Harris dated March 10, 2014 set aside; time extended to two business days from judgment to apply to a division under s.9(6) of the Court of Appeal Act to review the December 18, 2013 security order; costs awarded to respondents.
Legal Topics
Security for Judgment, Single Justice Jurisdiction, Dismissal for Non Compliance, Extension of Time, Review Under S.9 Court of Appeal Act
Source Language
English
Civil Procedure Appeals Court Jurisdiction Security for Judgment Single Justice Jurisdiction Dismissal for Non Compliance Extension of Time Review Under S.9 Court of Appeal Act

Case Brief

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Parties

Richard Roy and Dianne Roy

Respondents (plaintiffs)

Dennis Kretschmer

Appellant (defendant)

1216393 Ontario Inc.

Respondent by Cross Appeal (defendant)

Procedural Posture

Civil Appeal / Application to Vary Single Justice Order and for Extension of Time to Apply for Review Under S.9(6) of the Court of Appeal Act

Legal Issues

  1. 1 Whether a single justice has authority to dismiss an appeal for failure to comply with an order to post security
  2. 2 Whether a single justice can vary an order of a single justice
  3. 3 Whether the appellant should be granted an extension of time to apply to a division under s.9(6) to review the December 18, 2013 security order

Ratio Decidendi

The single justice's dismissal for failure to post security was an error because, under First Majestic, a single justice lacks authority to dismiss an appeal for failure to comply with another order to post security; the March 10, 2014 order of Mr. Justice Harris is set aside and the appellant is granted two business days to apply under s.9(6) to a division to review the December 18, 2013 order; costs awarded to respondents.

Court Disposition

Order of Mr. Justice Harris dated March 10, 2014 set aside; time extended to two business days from judgment to apply to a division under s.9(6) of the Court of Appeal Act to review the December 18, 2013 security order; costs awarded to respondents.

Orders

  • Set aside the March 10, 2014 order of Mr. Justice Harris.
  • Extend time to two business days from May 30, 2014 for the appellant to apply under s.9(6) of the Court of Appeal Act to review the December 18, 2013 order requiring $100,000 security.