Case: Stewart v. Richardson, 2026 BCCA 235 (CanLII)
Keywords: procedure; appeal book; Registrar’s decision
Synopsis:
An appeal arises from a summary trial dealing with the parties’ parenting arrangements and in which the Judge makes orders relating to parenting schedule and parenting time. (See para. 2). The Appellant files an appeal book containing “a mixture of evidence and other material drawn from the Supreme Court file”. (See para. 5). The Respondent objects to the contents of the Appellant’s appeal book; files an affidavit describing what was before the Trial Judge – none of which is in the Appellant’s appeal book. (See para. 6).
The Appellant says these documents are included in the appeal book to provide the Court with proper “context”. (See para. 7). Registrar Outerbridge strikes the materials and requires the Appellant to file and serve an amended appeal book. (See para. 12).
Importance:
This is a significant, practical decision from Registrar Outerbridge. For all practitioners appearing before the Court of Appeal, important to clarify what goes in/what stays out of one’s appeal book. The Registrar’s decision confirms there is a meaningful difference between materials that were “in the Supreme Court’s file” and materials that were “put before the judge”. (See para. 7).
To explain that difference, the Registrar included the following key quotes taken from Iser v. Attorney General of Canada et. al., 2017 BCCA 358:
- If there is material filed in the Supreme Court which counsel thinks ought not to be considered by the Chambers judge for the purposes of a particular application, then counsel has a duty to make that position clear to the Chambers judge and be prepared to justify that position if called on to do so. As to what constitutes the record in the Court appealed from, in ordinary circumstances, a Supreme Court judge may properly refer to any material that is filed in the proceedings prior to pronouncement of judgment.
- A judge engaged in the writing of a reserve Chambers judgment is not obliged to inquire whether material in the Supreme Court file is, or is not, properly to be considered for the purposes of the decision he or she is engaged in making. (See paras. 4-5).
As stated in Iser, the “more recent practice in the Supreme Court has the parties list the affidavits and other documents on which they intend to rely in their Notice of Application…and Application Response …and then compile an Application Record” so as to create “a more certain record” of what was before the Judge. (See para. 7; Iser at para. 6). For the Registrar herein, this approach “has not meaningfully changed”:
As stated in Iser, the “more recent practice in the Supreme Court has the parties list the affidavits and other documents on which they intend to rely in their Notice of Application…and Application Response …and then compile an Application Record” so as to create “a more certain record” of what was before the Judge. (See para. 7; Iser at para. 6). For the Registrar herein, this approach “has not meaningfully changed”:
The parties are required to include only necessary affidavits placed before the chambers judge or, in the case of a trial, the necessary evidence entered at that trial: Rule 26(4); Appeal Book Completion Instructions. As was the case when Iser was decided, the Completion Instructions aim to reduce the size of the appeal book by ensuring that only evidence that was: a) before the judge; and b) necessary to resolve the issues on the appeal end up in an appeal book. (See para. 8).
The Registrar also emphasized the need for parties to place necessary records before the Court as “[i]t can hardly be the expectation that every document within a Supreme Court file is properly ‘before’ a Supreme Court judge on a summary trial or application, particularly if it is not referred to.” (See para. 9).
Finally, the Registrar indicated that materials not referred to will be considered “fresh evidence” and so the party seeking to adduce them must apply to introduce them under Rule 59 of the Court of Appeal Rules. (See para. 10).
Counsel for the Appellant: L D Stewart
Counsel for the Respondent: M Henricksen