Other parties can only challenge order through an appeal
The British Columbia Court of Appeal ruled that only “parties on record” can seek reconsideration of an order adding a petitioner, while others must challenge the order by way of appeal.
In Main Acquisitions Consultants Inc. v. Prior Properties Inc., 2022 BCCA 102, Prior Properties Inc. (Prior) commenced proceedings against the Grewal respondents. Roughly six months later, Main Acquisitions Consultants (MAC) applied to be added as a petitioner. It served Prior with the addition application but not any of the respondents. One month later, Prior filed a discontinuance of the petition.
The judge heard MAC’s application in chambers. While Prior did not appear, counsel for MAC mentioned that Prior discontinued the petition. MAC submitted that the discontinuation did not affect the merits of the application since it was filed after service. The chambers judge granted the order adding MAC as a petitioner.
The respondents sought reconsideration of the order pursuant to Rule 22-1(3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 (Rules). In granting the application, the chambers judge ruled that the respondents should have been served the addition application and set aside the order without considering the merits of the addition application.
MAC appealed, alleging that since the additional application was functus officio, the chambers judge did not have jurisdiction to reconsider the order. Since the respondents were not parties to the addition application, the order should be challenged by way of appeal, it said.
The appellate court agreed.
Despite being parties to the proceeding, the appellate court ruled that the respondents were not “parties of record” since they didn’t file a response. The fact that they were not served with the application did not change that reality, said the court.
Under the present Rule 8-1(7), the respondents were not entitled to the service of the application, and therefore could seek relief under Rule 22-1(3) based on a failure to attend,” said the court.
Pursuant to the doctrine of functus officio, the appellate court ruled that the chambers judge did not have jurisdiction set aside the order, which could only be challenged through appeal.
