COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Farand v. Jardine,

 

2008 BCCA 356

Date: 20080917

Docket: CA036165

Between:

Patricia Anne Farand

Respondent

(Plaintiff)

And

James Bradley Jardine

Appellant

(Defendant)

Before:

The Honourable Mr. Justice Lowry

(In Chambers)

 

J. C. M. Main

Counsel for the Appellant

W. W. Geselbracht

Counsel for the Respondent

Place and Date of Hearing:

Victoria, British Columbia

September 8, 2008

Place and Date of Judgment:

Vancouver, British Columbia

September 17, 2008

Reasons for Judgment of the Honourable Mr. Justice Lowry:

[1]                This is an application for leave to appeal an interlocutory order.

[2]                The parties, Patricia Farand and James Jardine, were divorced, I am told, by an order made in this action in March 2006.  A year later a consent order dismissing the action was entered.  It incorporated an agreed settlement of Ms. Farand’s claim for her interest in the family assets.  The settlement was expressly premised on there having been full disclosure of all assets held by each of the parties.  Ms. Farand now contends Mr. Jardine did not disclose substantial assets he holds in which she maintains she has an interest and she seeks to have the settlement set aside.

[3]                To this end, in April 2008, Ms. Farand filed a Notice of Motion in this action applying for an inquiry into the settlement pursuant to section 68 of the Family Relations Act, R.S.B.C. 1996, c. 128.  She accepts her application was not brought within two years of the order for divorce as required by the Act, and she made no application for an extension of the time in which such an inquiry can be made as provided by section 68(3).  The application was opposed on the ground that the consent order rendered the matter res judicata.  It was heard May 5 and 8, 2008, by Mr. Justice Wilson.  He made an order granting Ms. Farand leave to set the action for trial and requiring Mr. Jardine to verify his list of documents by affidavit.  I am told Ms. Farand has since initiated an application for an extension of time under section 68(3) of the Act which is to be heard shortly.

[4]                In addition, Ms. Farand commenced a new action naming Mr. Jardine and others in which she alleges Mr. Jardine did not disclose his assets such that he effectively obtained the settlement that was made by fraud.  She alleges the others named participated through various transfers to them of assets held by Mr. Jardine. 

[5]                Mr. Jardine contends it was not open to the judge to entertain an application pursuant to section 68 in what is an action that has been dismissed.  He further contends it was not open to the judge to grant leave to have the action set for trial.  Mr. Jardine acknowledges it is open to Ms. Farand to prosecute the new action and he accepts the relief purported to be sought under section 68 in this action can be effectively sought in that action.  Counsel is hard-pressed to advance any practical effect a successful appeal of the order made by Wilson J. will have on the end result.  He says only that Mr. Jardine is entitled to be able to put this action behind him.

[6]                For her part, Ms. Farand maintains the appeal is without merit.  She says the order was properly made, although no authority is cited to support the contention it was open to her to make an application in an action that had been dismissed.  Counsel does cite Laxton v. Coglon, 2006 BCSC 1688, in support but, after standing down to read the decision, acknowledges it offers no support for the position taken.  Counsel is hard-pressed to explain why, having commenced a new action, it is necessary to attempt to pursue a section 68 application in this action.  He identifies no relief that could be obtained in this action that cannot be obtained in the new action.  His concern appears to be solely that there may be some limitation of the use of the discovery undertaken in the litigation to date.  He says the two actions should be consolidated for trial.

[7]                The principles that govern the granting of leave to appeal are well recognized to be essentially four: 1) whether the point on appeal is of significance generally; 2) whether it is of significance to the action; 3) whether the appeal is prima facie meritorious; and 4) whether the appeal will unduly hinder the progress of the action: Power Consolidated (China) Pulp Inc. v. British Columbia Resources Investment Corp. (1988), 19 C.P.C. (3d) 396 (B.C.C.A. Chambers), McLachlin J.A.  The overarching concern is of course the interests of justice: Hanlon v. Nanaimo (Regional District), 2007 BCCA 538, 72 B.C.L.R. (4th) 341 at para. 2 (Chambers), Saunders J.A., and Vancouver (City) v. Zhang, 2007 BCCA 280 at para. 10 (Chambers), Saunders J.A.

[8]                In my view, there is certainly merit in the proposed appeal.  I am, however, unable to see any significance in the appeal either to the parties or generally.  I see no utility in the appeal and no purpose to be served in it being heard by this Court.  I do not consider it to be in the interests of justice that leave be granted.

[9]                The application for leave to appeal is dismissed. 

“The Honourable Mr. Justice Lowry”