St-Amand v. Eldorado Corp. Ltd.

2000 BCCA 572 Citation: St-Amand v. Eldorado Date: 20001024 2000 BCCA 572 Docket: CA027382 CA027383 Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: JACQUES ST-AMAND

PLAINTIFF (APPELLANT) AND: ELDORADO CORP. LTD., JORDAN DEV. CORP. LTD.

AND JOSEPH LEBLANC

DEFENDANT (RESPONDENTS) Before: The Honourable Mr. Justice Braidwood The Honourable Mr. Justice Hall The Honourable Mr. Justice Low J. St-Amand In Person W.A. Van Der Sande Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia 17 October 2000 Place and Date of Judgment: Vancouver, British Columbia 24 October 2000 Written Reasons by: The Honourable Mr. Justice Hall Concurred in by: The Honourable Mr. Justice Braidwood The Honourable Mr. Justice Low Reasons for Judgment of the Honourable Mr. Justice Hall: [1] Mr. St-Amand applies pursuant to s. 9(6) of the Court of Appeal Act for an order to discharge or vary an order of the Honourable Madam Justice Saunders made on July 21, 2000. On May 12, 2000, the appellant filed a writ of summons and statement of claim in the Supreme Court of British Columbia seeking damages from the respondents arising out of a residential tenancy issue. The appellant was a tenant in an apartment building. The respondent, Eldorado Development Corp. Ltd., was the landlord and the respondent, Jordan Development Corp. Ltd., did property management in connection with the property. The respondent, Mr. Leblanc, is a caretaker at the building. [2] It appears that late in the day of 12th of May 2000, there was a fax of a copy of a page of the writ of summons sent to the office of the respondent Jordan. From my review of the material, it

seems doubtful that the filed writ of summons or the filed statement of claim was served on the respondent as required by the applicable Rules of Court. [3] On May 19, 2000, an appearance was filed in the Supreme Court on behalf of the respondents and a copy of that appearance was mailed to the appellant. On June 5, 2000, a statement of defence was filed. On June 7, 2000, the appellant delivered to counsel for the respondents a notice of motion and affidavit seeking an order setting aside the statement of defence of the respondents on the basis that the statement of defence had not been filed and delivered in a timely manner. In essence, as I see it, the appellant was seeking an order in the nature of a default judgment. [4] The application of the appellant was dismissed on June 19, 2000 by the Honourable Mr. Justice Tysoe, substantially on the basis that it had not been demonstrated that the appellant had properly served the writ of summons and statement of claim on the respondents. His Lordship also noted that it appeared from the material before him that the statement of defence had been filed within the time permitted. Thereafter on June 20, 2000, the appellant delivered a notice of motion seeking to vary this order of Mr. Justice Tysoe. That application came on before Madam Justice Sinclair-Prowse on June 29, 2000. She dismissed the application. [5] Thereafter the

appellant sought an order in this court granting him indigent status to allow him to pursue an appeal from the noted orders. The application came on before the Honourable Madam Justice Saunders sitting in chambers and on Friday, 21st July 2000, she dismissed this application. As I read the Reasons of Madam Justice Saunders, she was satisfied that concerning his financial status, the appellant would qualify for indigent status. However, she went on to conclude that the proposed appeals from the orders of Tysoe J. and Sinclair-Prowse J. were without merit and were bound to fail. Having reviewed the material in this case, I believe that the conclusion of the learned chambers judge is unassailable. I can see no basis for any suggestion that there could be a successful appeal in these matters. I consider that the order made by Tysoe J. was soundly based on the facts and the law, and it is also clear to me that there was no basis for Sinclair-Prowse J. to make any variation in that order. [6] It follows from the above that I see no basis upon which this court ought to make any variation of the order that was made by Madam Justice Saunders on July 21, 2000. Accordingly, the application made to the panel must be dismissed. Costs will follow the event. "The Honourable Mr. Justice Hall" I AGREE: "The Honourable Mr. Justice Braidwood" I AGREE: "The Honourable Mr. Justice Low"