Case: Katz v. Kosikar, 2025 BCCA 450 (CanLII)
Keywords: leave to appeal; adjournments
Synopsis:
The Appellant brings an action for defamation, misappropriation of personality, and breach of confidence. In her pleadings, the Appellant alleges that the Respondents engaged in “a defamation campaign against her on social media and harassed her, her family, and acquaintances”. (See para. 2).
The Respondents file but do no serve a response within the 21-day deadline. (See para. 3). The Appellant obtains default judgment against the Respondents. (See para. 4). The Respondents position: “one cannot obtain default judgment if a response to civil claim has been filed”; the Supreme Court Rules require the Appellant to file a requisition endorsed by the Registrar with a notation that no response has been filed. (See para. 5).
The Appellant sets an application hearing for damages, an injunction, and costs pursuant to the default judgment. (See para. 6). The Respondents retain counsel and communicate their intention to set aside the default judgment – the Appellant indicates this correspondence was not received. (See para. 7).
At the application for damages, the Respondents seek an adjournment allowing them to bring an application to set aside the default judgment. (See para. 8). The Appellant seeks leave to appeal the decision of Loo J. granting the adjournment. (See para. 9). The Court of Appeal per Griffin J.A. described events of the subsequent ‘set aside application’ as including the following:
- “This appears to have been a typical busy day in chambers, with several other matters on the list and the possibility that there would not be enough time to hear all of them.”
- “The judge canvassed with the parties their time estimates. Counsel for the respondents estimated 20 minutes…[the Appellant] estimated two hours and said she may be longer because there were eight affidavits in opposition.”
- “The judge explained that [the Appellant] would not be permitted two hours, but, rather, the respondents would probably take 15 minutes and she could have 30 minutes to make submissions.”
- “[The Appellant] objected, stating she paid her taxes. The judge explained that it was her function to control the courtroom, and [the Appellant] stated she would appeal.” (See paras. 11-13).
Justice Wilkinson adjourned the application until the first date the Appellant was available, with orders that the hearing was not to exceed one hour and that the Appellant could not set down any further applications until the ‘set aside application’ was heard and dealt with. (See para. 15). The Appellant seeks leave to appeal this order as well. The Court of Appeal dismisses both applications for leave to appeal. (See para. 44).
Importance:
The Court of Appeal provided valuable instruction on the legal principles governing an application for leave to appeal in British Columbia – though they are instructive for those seeking leave elsewhere, including the Supreme Court of Canada. Citing Goldman, Sachs & Co. v. Sessions, 2000 BCCA 326 at para. 10, the Court noted that the onus is on the applicant in this context and referred to four factors to be considered on an application for leave to appeal:
- The point on appeal is of significance to the practice;
- The point on appeal is of significance to the action itself;
- The appeal is prima facie meritorious (not frivolous); and
- The appeal will unduly hinder the progress of the action. (See para. 17).
Of interest to respondents, the Court also referred to Movassaghi v. Aghtai, 2010 BCCA 175 at para. 27, a decision standing for the proposition that “[e]ven where the four criteria have been met, leave may still be denied where it would not be in the interests of justice to grant leave”. (See para. 18).
The Court included further guidance for applications for leave in the context of discretionary orders as follows: “[w]here an application for leave to appeal relates to a discretionary order, the applicable test on the merits is whether there is an arguable case that the chambers judge erred in principle, made an order that is not supported by the evidence, or whether the order appealed will result in an injustice.” (See para. 19; Hagwilneghl v. Canadian Forest Products Ltd., 2011 BCCA 478 at para. 31).
Finally, as a general comment, the Court observed that “[n]ot every order or pronouncement made by a judge is an appealable order…[r]ulings or directions made mid-application or mid-trial are usually only reviewable after the trial decision or the full application decision, unless otherwise provided for in the Court of Appeal Rules.” (See para. 20).
Applying these principles to the Appellant’s applications, the Court concluded there was no merit to the challenge to Loo J.’s order (i.e., that it did not meet the criteria for granting leave and it was not in the interests of justice to do so). For the Court, Loo J.’s order was “akin to a scheduling order, which is generally not appealable” and “there is good reason to allow the respondents time to have their application heard and determined first”. (See para. 24-25).
Regarding Wilkinson J.’s order, the Court indicated its concern that the application for leave to appeal was “motivated by some sort of stubborn animus towards the judge, rather than any proper reason”. (See para. 32). For the Court, the Appellant “appears not to recognize a judge’s authority to control the courtroom” but there was “absolutely nothing in the record to suggest that Wilkinson J. was unfair to her”. (See para. 33). Rather, “[i]t is well established that courts have inherent jurisdiction to control their own process, which includes imposing and enforcing time limits on a party’s submissions”. (See para. 36; Universe v. Fraser Health Authority, 2022 BCCA 201 at para. 77).
Counsel for the Appellant, appearing in person: Karen Marie Katz
Counsel for the Respondent: Carly Peddle (Mackay Boyer, Vancouver)