Rogers v. Joy et al, 2003 BCCA 210

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Rogers v. Joy et al, 2003 BCCA 210 Date: 20030402 Docket: CA029849 Between: Theresa Rogers Respondent ( Plaintiff ) And Linda Joy and Michael Joy Appellants ( Defendants ) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Braidwood The Honourable Madam Justice Levine Oral Reasons for Judgment B. Cornish Counsel for the Appellant C. Bacon Counsel for the Respondent Place and Date: Vancouver, British Columbia April 2, 2003 [ 1 ] BRAIDWOOD, J.A. : This is an appeal from an order made in the Supreme Court pronounced on 4 June 2002 dismissing the appellants’ application for

summary judgment when they sought the dismissal of the suit against them and directing that the matter be referred to the trial list. The claim arose from an allegation that a one year old dog, Primo, caused injury to the respondent at the premises of the appellants on 31 July 1999. [ 2 ] The respondent had been invited to the appellants’ premises to attend a social gathering. It is apparent that leave should have been sought and granted before this appeal came on. However, with leave of the Court, we have now heard an application for leave to appeal.

This, of course, is because the order appealed from is not a final order in that it has sent the matter on for hearing at trial. That trial has now been scheduled and it is set for four days. [ 3 ] The appeal from Judge Wong is from a discretionary matter. In his Reasons for Judgment he analyzed the evidence and in para. 2 of those Reasons he said in part: What is going to be alleged on behalf of the plaintiff is that by virtue of the breed of dog there may well be a duty to inquire and, if need be, to undertake a further obligation of training.

As I say, that may well be fact-specific… He then refers to a case on that point. At para. 3 he said: In my view, the plaintiff should be given an opportunity to see if a more compelling evidentiary base might be canvassed. As I indicated to counsel, it may turn out to be for naught. But, if so, then the plaintiff is responsible for costs.

[ 4 ] We have been treated to cases and, of course, it is the law that counsel must be ready at a trial and have his, as it were, tackle in order to fully argue the matter. However, as opposed to that, the learned judge hearing this matter came to the opinion that it was unjust for this case to proceed summarily and a full trial should be held. No doubt he was influenced in that decision by the affidavit of one Helmut Peters, a dog trainer.

Although not specifically referred to, some of his evidence concerned the propensity of the breed of dog which appears, at least on one view of the evidence, to perhaps be at cross-purposes to the sworn evidence of the plaintiff. [ 5 ] I refer to the case of Moore v. Castlegar & District Hospital , [1995] B.C.J. No. 2790 (C.A.) . At para. 13 of those reasons the Honourable Mr. Justice Wood says this: In my view this argument misses the thrust of the trial judge’s reasons for judgment.

From the passages quoted, and indeed from comments appearing elsewhere in his reasons for judgment, it is clear that although he was troubled about the adequacy of the evidence from which to find all the facts germane to the issue of causation, the trial judge ultimately exercised the discretion found in sub-Rule 18A (5)(

b) and concluded that in any event it would be unjust to decide that issue on a

summary trial. 14 In the Inspiration Management case it was recognized by McEachern C.J.B.C., who wrote for the majority, that: … the chambers judge, even if he can decide the necessary factual and legal issues, may nevertheless decline to give judgment if he thinks it would be unjust to do so. [ 6 ] In all of the circumstances, I can see no reasons upon which to interfere with the exercise of the discretion vested in the learned judge below. Accordingly, I would not grant leave. [ 7 ] NEWBURY, J.A. : I agree. [ 8 ] LEVINE, J.A. : I agree. ”The Honourable Mr. Justice Braidwood”