In this case, the British Columbia Court of Appeal holds that time for appealing the allowance of a no-evidence motion pursuant to the Court of Appeal Act, R.S.B.C. 1996, c. 77, begins to run once the motion is ruled on and not once the trial has concluded. In other words, the allowance of a defendant’s no evidence motion at trial triggers a right of appeal for the plaintiff.
Section 14(1)(a) of the Court of Appeal Act imposes a 30-day time limit for filing an appeal. The plaintiff at trial appealed the allowance of the defendant’s no evidence motion after the trial against the other defendants had concluded – more than 30 days after the motion was allowed. The Court departs from the “order” approach taken in Glover v Magark ([1997] B.C.J. No. 766, 31 B.C.L.R. (3d) 9). In that case, a decision on a non-suit motion was deemed not appealable because it was not an interlocutory order or an order authorized by the rules of civil procedure. Rather, it was a ruling on evidence which formed part of the trial process. To support its conclusion, the Court cites the reasoning in Ceapro Inc. v Saskatchewan (2008 SKCA 64, [2008] S.J. No. 316): A non-suit judgment is a final judgement which disposes of the issues between the parties; it is not subsumed in the final judgment to be delivered against the other defendants at the end of the trial; the appeal would not interrupt or delay the trial. The Court also cites Stanley v Godwin (2002 BCCA 166, [2002] B.C.J. No. 451) for its proposition that a non-interlocutory order may still trigger a right of appeal.
Dane Richard
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