Case Summary: Merits of an appeal should not be considered when deciding whether to convert a notice of application for leave to appeal to a notice of appeal
If an appellant files an application for leave to appeal within the prescribed timelines and leave is not required, the merits of the claim must not affect the judge’s decision to convert the notice of application for leave to appeal to a notice of appeal.
Administrative law – Judicial review – Appeals – Discretion of delegated authority
Gonzalez v. British Columbia (Attorney General),  B.C.J. No. 339, 2019 BCCA 88, British Columbia Court of Appeal, March 8, 2019, Sanders, Bennett and Willcock JJ.A.
The appellant Gonzalez filed an application for review of a Court of Appeal chambers order.
In 2014, the appellant was declared a vexatious litigant by the Supreme Court and thus required leave to bring a new civil claim. Leave was refused. The appellant sought leave to appeal the refusal order. A Court of Appeal chambers judge found leave to appeal was not required; however, the chambers judge refused to convert the application into a notice of appeal or grant an extension of time to bring the appeal on the basis that the proposed appeal, as a collateral attack on matters already conclusively decided, was doomed to fail. The Court of Appeal chambers judge also refused to add the Workers Compensation Board (“WCB”) as a party to the notice of application for leave to appeal and declared the appellant a vexatious litigant in the Court of Appeal.
On appeal from the Court of Appeal chambers’ judge’s decision, the appellant’s appeal was allowed in part. The panel held that, where an applicant was entitled to bring an appeal as of right but erroneously filed a notice of application for leave to appeal, a single judge could not defeat the appeal through an examination of its merits. Pursuant to a 2017 practice directive, where an applicant has filed a notice of application for leave to appeal within the prescribed time limit, but in truth has an appeal as of right, the chambers judge should convert, nunc pro tunc, the notice of application for leave to appeal into a notice of appeal. Although a chambers judge may exercise discretion in granting the conversion, this discretion ought not make reference to the merits of the proposed appeal. In this instance, in treating the merits of the appeal as a basis for refusing to convert the leave application, the chambers judge committed an error in principle and was led unnecessarily into a discussion of whether the matter warranted an extension of time. The panel ordered that the appellant’s notice of application for leave to appeal be converted into a notice of appeal and extended the time for him to file and serve his appeal record.
Otherwise, there was no basis for adding the WCB as a party given that the appellant’s claim for relief was based on vicarious liability of the Attorney General. The plaintiff did not establish any error in the Court’s vexatious litigant declaration given his long history of meritless claims. This portion of the appeal was dismissed.
This case was digested by JoAnne G. Barnum, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact JoAnne G. Barnum at email@example.com.