Executive Summary: Key Legal and Evidentiary Issues

• Justice Abrioux declined to recuse himself despite Mr. Moore naming him as a defendant in an unrelated notice of civil claim.
   
• Both applications before the Court turned on whether the underlying residential tenancy dispute remained a live controversy.
   
• Mootness was central, since Mr. Moore had not lived in the rental unit since April 12, 2025.
   
• The application to vary Justice Francis's order denying reinstatement of appeal CA50328 was dismissed.
   
• Appeal CA51220 was quashed for both mootness and lack of merit.
   
• Counsel for Mr. Cheung successfully argued that no live dispute remained between the parties.
   

Facts of the case

Wayne Moore and Kevin Cheung have been engaged in a residential tenancy dispute for several years. Cheung was Moore's landlord and gave notice ending the tenancy in May 2023. Moore disputed the notice under the Residential Tenancy Act, S.B.C. 2002, c. 78, but an arbitrator dismissed his case and granted Cheung an order of possession in August 2023. A reconsideration application failed, and the possession order was affirmed. Moore then sought judicial review in the Supreme Court of British Columbia, which dismissed his petition in December 2024. He remained in the unit under a stay obtained pending appeal, conditional on paying rent to Cheung. Moore did not comply with that condition, the stay was lifted in April 2025, and Cheung enforced the possession order; Moore has not lived in the rental unit since April 12, 2025.

The appeal from the dismissal of Moore's petition (CA50328) landed on the Court of Appeal's inactive list. Justice Francis dismissed Moore's application to remove it from that list on April 7, 2026, finding the matter moot since the possession order had already been enforced and there was no longer a live controversy. Separately, Moore filed a post-petition application in the Supreme Court seeking a range of relief, including return of court files, costs, punitive damages, leave to add third parties, and a stay of proceedings; that application was dismissed, and Moore's resulting appeal (CA51220) was the subject of Cheung's application to quash.

Policy terms or contractual clauses at issue

The proceedings did not centre on a specific contractual clause but on statutory and procedural provisions. The application to vary was brought under section 29 of the Court of Appeal Act, S.B.C. 2021, c. 6, which the Court noted involves a highly deferential standard of review, requiring an applicant to show the chambers justice was wrong in law, wrong in principle, or misconceived the facts. The application to quash CA51220 was brought under section 20(1) of the Court of Appeal Act and Rule 60(1)(c) of the Court of Appeal Rules, B.C. Reg. 120/2022.

Reasoning and analysis

Justice DeWitt-Van Oosten, writing for the panel, agreed with Justice Francis that the reinstatement application was correctly dismissed. Francis had properly instructed herself on the governing legal principles and made findings open to her on the record, including that Moore had not provided a reasonable explanation for delay and that no special circumstances justified using scarce judicial resources on a dispute where the tenancy relationship was over and Moore could not return to the unit. The Court relied on its earlier decision in Raju v. Red Door Housing Society, 2025 BCCA 212, which dismissed similar variation applications as moot once a possession order had already been enforced. On the second application, the Court found Moore's factum in CA51220 raised the same issues as in his first appeal and identified no legal error by the judge who dismissed his post-petition application; citing Grewal v. Grewal, 2017 BCCA 261, the Court confirmed it has jurisdiction to quash an appeal devoid of merit. Separately, in the related recusal decision (2026 BCCA 258), Justice Abrioux considered Moore's argument that a notice of civil claim naming Abrioux as one of more than 50 defendants created a conflict of interest. Applying the reasonable apprehension of bias test from Taylor Ventures Ltd. (Trustee of) v. Taylor, 2005 BCCA 350, and noting he had left his former firm roughly fourteen and a half years earlier, Abrioux concluded Moore had not met the burden of establishing a reasonable apprehension of bias and declined to recuse himself.

Ruling and overall outcome

The Court of Appeal dismissed Moore's application to vary the order denying reinstatement of appeal CA50328, finding that appeal moot, and quashed appeal CA51220 for both mootness and lack of merit. Cheung was the successful party on both applications. The decision does not specify any monetary award, costs, or damages granted in Cheung's favor; the amount is Not Specified.