Application for dismissal of order essentially an appeal
The British Columbia Court of Appeal has refused to allow an appeal asking to set aside an adjournment order in a residential tenancy dispute because it would not be in the interests of justice and would only delay the action.
In Gong v. O’Neill, 2022 BCCA 359, Quan Gong filed a civil action against P. O’Neill, who was the arbitrator on a dispute between Gong and her landlord. Dissatisfied with O’Neill’s decisions, Gong also filed a petition for judicial review of his decisions. O’Neill, in turn, filed an application seeking to have the civil action struck on the ground that Gong’s pleadings did not disclose a claim and was frivolous, vexatious, and an abuse of court process.
The hearing for the dismissal application was originally scheduled for February 2022 but it was adjourned on a number of occasions and Gong did not file any response material. Master Robertson ordered that the dismissal application be adjourned to August, on a peremptory basis, and that Going was required to provide response materials within the set deadline. Gong applied for a court order to set aside Master Robertson’s decision to adjourn the dismissal application.
Gong asserted that the adjournment order gave her insufficient time to prepare for an August hearing date. The chambers judge characterized Gong’s application as “fundamentally an appeal of Master Robertson’s order,” which could not be brought by way of notice of application, and she would need leave of the court to allow her appeal to be heard. The materials before the chambers judge were also insufficient for the notice of application to be converted to an appeal. As a result, the chambers judge dismissed her application to set aside Master Robertson’s order, but the judge expressly noted that “her notice of appeal can go ahead.”
A party must seek leave to appeal if the order being appealed is a limited appeal order – such as Master Robertson’s order in which an adjournment was granted and the order of the chambers judge in which she dismissing Gong’s request to set aside the Master’s order, said the appeal court.
In determining whether leave to appeal should be granted, the appeal court considered four factors – first, whether the point on appeal was of significance to the practice; second, whether the point raised was of significance to the action itself; third, whether the appeal was prima facie meritorious or, on the other hand, whether it was frivolous; and lastly, whether the appeal would unduly hinder the progress of the action. The court emphasized that these factors were “all considered under the rubric of the interests of justice.”
Gong argued, among others, that she should have been entitled to apply to set aside Master Robertson’s order by way of notice of application, and that Master Robertson imposed a timeline for the filing of response material that was impossible to meet. However, the appeal court found that it would not be in the interests of justice to grant her leave to bring an appeal because it had no merit, no practical utility, and could only serve to unduly hinder the progress of the action.
The court noted that the chambers judgment did not raise any issue of general importance to the practice of law, as it merely involved a discretionary interlocutory order by a chambers judge dismissing an application to set aside a Master’s order granting an adjournment on certain terms. The court also ruled that the proposed appeal had no significance to the action itself. The order of the chambers judge did not decide the dismissal application and did not even decide the merits of Gong’s appeal of Master Robertson’s order. The chambers judge even expressly stated that Gong was free to pursue her appeal.
The court further said that given the history of the proceeding, there was a risk that the proposed appeal could unduly hinder the progress of the action. The court did not see any purpose that could be served by the appeal, other than to delay the action.
