[1] This is an application by the plaintiff to reinstate an appeal that was first placed on the inactive list and then administratively dismissed as abandoned on September 21, 1998 pursuant to s. 25(6) of the Court of Appeal Act, R.S.B.C. 1996 c. 77.

[2] The proceeding at first instance was an action to recover a retirement "entitlement" equivalent to three times the plaintiff's average annual income for the years in which he was a partner in the defendant firm of Chartered Accountants.

[3] Proceeding under Rule 18A, the trial judge ruled that the plaintiff had already received everything to which he was entitled and dismissed his action on January 13, 1997. Accordingly, the plaintiff had an appeal to this Court as of right.

[4] Although the filings required to process the appeal did not proceed strictly within the time limits prescribed by the Rules of Court, and were completed late by consent. The necessary Transcript, Appeal Books, and appellant's Factum were filed by December 11, 1997. In addition, the appellant paid $10,000 into Court to secure the costs of the trial and appeal.

[5] The appellant's solicitor, who was not counsel on this application, did not press the respondent's solicitor for his Factum as he intended to consent to its being filed late. The respondent's Factum was eventually filed late on March 19, 1998.

[6] Three days earlier, however, on March 16, 1998, one year from the filing of the Notice of Appeal, no Certificate of Readiness having been filed, the Registrar of this Court issued a Notice under s. 25(1) that the appeal had been placed on the inactive list. Nothing turns on the fact that respondent's Factum was filed after the date of such notice.

[7] The appellant's solicitor, of course, should have applied to have the appeal removed from the inactive list. This would likely have been ordered by consent. Unfortunately, as sometimes happens, the appellant's then solicitor through overwork and disorganization was experiencing serious difficulties with the management of his one-lawyer practice. Although this solicitor ultimately sought the assistance of the Law Society, nothing was done about this appeal and it was administratively dismissed on September 21, 1998 after the expiration of a further 180 days.

[8] During that long period, the appellant made occasional inquiries of his then solicitor, who sought the consent of the respondent's solicitor in December, 1998 to have the appeal reinstated. This consent was promptly refused; yet the appellant's solicitor still failed to take any further steps until September, 1999 when he retained the services of Mr. Clark. Mr. Clark sprung immediately into action by filing this application to reinstate the appeal under s. 25(6). Although there have been some adjournments by consent, the parties agree that I should treat this application as if it had been heard on September 18, 1999. The overall period of delay therefore seems to be March, 1998 to September, 1999 - about 18 months.

[9] While I suppose it might be said that the appellant himself was partly responsible for this delay by not pressing his former solicitor more forcefully, I am satisfied that he always intended to prosecute this appeal and that the real cause of delay was the negligence of his former solicitor who, on uncontradicted evidence, was experiencing serious personal problems arising from overwork and under-management of his practice.

[10] In Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 this Court noted five factors that must be considered in deciding whether applications for extensions of time in order to bring an appeal into compliance with the rules. Those were:

First, was there a bona fide intention to appeal? Second, when were the respondents informed of the intention? Third, would the respondents be unduly prejudiced by an extension? Fourth, is there merit in the appeal? And fifth, is it in the interest of justice that an extension be granted?

 

[11] After stating these considerations, the Court went on to say:

The fifth question, I think to be the most important as it encompasses the other four questions and states the decisive question. Here the interests of the parties are opposed. If the appeals go ahead the respondents will incur costs and risk. If they do not go ahead, the appellants will have lost everything that they have built over many years. I have already expressed the view based on the limited material available that the appellants' arguments will probably not prevail, but if the time is not extended the opportunity to make the arguments will be gone.

 

[12] In Davies, the time extension was granted notwithstanding a delay of several months.

[13] In Frew v. Roberts (1990), 44 C.P.C. (2d) 34, which was decided before the enactment of s. 25(6), a majority of this Court established a three-part test for determining whether to dismiss appeals for want of prosecution. The matters to be considered under that test were inordinate delay, explanations or excuses for such delay, and prejudice.

[14] In Wilson v. Wilson (1997), 87 B.C.A.C. 178 (C.C.C.A.), Esson J.A. thought the test in Frew v. Roberts, was appropriate in considering the reinstatement case before him, but suggested an analogy to applications for setting aside a default judgment where a defence worth investigating must be shown. That learned judge commented that the test under s. 25(6) might be whether the plaintiff can establish a substantial likelihood of a sufficient degree of significant success. In that case, however, it was noted that the parties had apparently lost interest in the appeal and there was serious prejudice to the respondent because she risked the loss of her home.

[15] Also in 1997, in Barta v. Canaccord Capital Corp. (1997), 36 B.C.L.R. (3d) 81, this Court reversed a Chambers judge's refusal to grant an extension of time solely on the basis of lack of merit. In arriving at that decision, the Court noted that Appeal Books had been filed, the delay caused by difficulty getting transcripts was not serious, and there was no prejudice.

[16] Again, in 1997, in Galiano Conservancy Assn. V. British Columbia (Ministry of Transportation and Highways) (1997), 40 B.C.L.R. (4^th) 172 (B.C.C.A.), Huddart J.A. reviewed many of the authorities relating to reinstatement of administratively-dismissed appeals. She particularly stressed the need on such applications for the applicant to explain the reason for the delay and considered that no sufficient reason had been shown in that case.

[17] In another case, Wilson v. CRC Canadian Retirement Corp. (1998), 111 B.C.A.C. 239 (B.C.C.A) Rowles J.A., in a reinstatement case, attempted to reconcile the various tests for delay. She observed that the three-part test in Frew v. Roberts may not be appropriate for such applications but suggested it would continue to be influential. Later in her judgment, Rowles J.A., borrowing in part from the above cases, particularly Davies v. C.I.B.C., stated in her para. 29:

The jurisprudence under s. 25(6) is still developing and it may be that, depending upon the nature of the appeal and the issues at stake, an applicant under s. 25(6) may have to show that the appeal has a substantial likelihood of success.

 

At the end of that case, however, Rowles J.A. refused to reinstate the appeal on the basis that there was sufficient prejudice not in a financial sense, but in the form of stress imposed upon the elderly respondents, who were in poor health.

[18] I would not wish to decide that prejudice will always be determinative in this kind of case, particularly the kind just described, but it is always an important consideration. Similarly, in most cases, no other individual factor should be regarded as conclusive on such an important matter.

[19] I am not satisfied that it is wise to attempt to establish a test in this or any one case that would apply fairly in all subsequent cases. It seems to me, however, that a timely intention to appeal is important. After that, the three-part test in Frew v. Roberts should be considered. But after considering those matters, I think it is necessary to go beyond the answers reached on that test, and decide whether, considering the merits of the case and all other relevant matters, it is in the interests of justice that the appeal be reinstated or left dismissed. The onus on all these matters, of course, rests upon the applicant.

[20] In considering the merits of the case, I decline to decide whether the appellant must show a substantial chance of significant success or any other particular degree or level of probability of success. The purpose of s. 25 is prevent dormant appeals from sleeping too long, not to foreclose reasonable access to the appeal process. Appeals without merit should certainly be weeded out, and appeals with little or no chance of success should often be left undisturbed. There must be at least an arguable case, but whether any particular case is sufficiently deserving of being allowed to continue may depend in part upon other factors such as the cause of the delay or the nature, if any, of the prejudice likely to be caused by reinstating the appeal. I remember a case where an extension of time was granted to a widow so that she could file expensive appeal books and a transcript that had already been purchased, even though she had a doubtful case for damages for the death of her husband. It was my view in that case that the widow, who originally had a right of appeal without leave, should not be kept from the judgment seat by an administrative failure even though her chances of success were not great. On the other hand, ordering transcripts after inordinate delay might not be very persuasive. Adopting the fifth rule in Davies v. C.I.B.C., I prefer to leave the assessment of the merits to the good judgment of the Chambers judges who will consider all these matters in light of the particular circumstances of each case.

[21] In this case, Mr. Clark agrees the delay was inordinate, but argues this is explained in terms that should not be attributed to the appellant personally. With respect, I agree. Lawyer-caused delay is always unfortunate but the fact that the appellant intended at all times to prosecute this appeal, and the further fact that he caused all the preliminary steps to be completed, including posting security, militate very much in his favour. In many cases, incurring the cost of Transcripts and Appeal Books is an important but not necessarily a conclusive factor in favour of allowing an appeal to proceed both in cases of extensions of time and in reinstating appeals.

[22] With regard to prejudice, the respondents have very little to say. The appellant's claim is for a reasonably modest money judgment against a substantial commercial enterprise. Other than delay, which is usually some evidence of prejudice, the only prejudice suggested is that the person who fired the appellant is no longer employed by the respondent. It is not alleged that this person is not available as a witness.

[23] That brings me to the merits of the appeal. Only a panel of the court, of course, can ultimately decide whether the appellant will succeed. The respondent's partnership agreement provided for various "payouts" of annual salary and capital. Clause 15.1(m) of the partnership agreement, however, provided for a further payment for retiring partners with less than five years with the firm. The payment, called "Special Entitlement", was equal to three times the average of the partner's annual income. This is the amount the appellant claims in the action. There were memoranda between him and the respondent confirming the terms of his separation from the partnership, but they did not refer to "Special Entitlements". The appellant disagreed with one clause written by the respondent referring to "allocations" and he stated: "The statement that 'no payment shall be applicable to these retirements' is not appropriate". That provision was re-written without that phrase.

[24] The learned trial judge concluded the appellant was not entitled to "Special Entitlements" because he had neither died nor became disabled. Mr. Clark argues that the death or sickness benefit referred to by the trial judge is not found in clause 15.1(m), but in another clause. Mr. Clark also submits that the finding of fact which Mr. Urquhart stressed, that the appellant received everything to which he was entitled, is only significant if the judge correctly construed the relevant documents.

[25] Although the appellant appears to have an arguable case, I am unable, without hearing the appeal, to decide whether he has a substantial chance of success, let alone a substantial chance of significant success, and I think that test will be too severe in many cases.

[26] Having regard to the appellant's intention to prosecute the appeal, the cause of the delay, the fact that the Appeal Books, Transcripts and Factums have been filed, the posting of security, and the lack of any significant prejudice, and the further fact that the appellant appears to have an arguable case, I have concluded that the interest of justice requires that this appeal be reinstated. I would so order.

[27] The appellant, however, must pay the respondent's costs of this application in any event of the cause. Mr. Clark advises that the appellant's former solicitor, quite properly, accepts responsibility for these costs.