Respondents were lawyer and law firm acting for district accused of fraudulent settlement
The British Columbia Court of Appeal has dismissed an application to vary a judge’s order denying an extension of time to pursue an appeal in proceedings arising from an action for damages in connection with a trip-and-fall incident.
In September 2021, the appellant in Portnov v. Alexander Holburn Beaudin + Lang LLP, 2026 BCCA 193, tripped on some branches and fell while walking on a sidewalk in the district of West Vancouver.
The appellant sued the district before the provincial small claims court. After a May 2022 settlement conference, he settled his claim for $1,000.
In July 2022, before the Supreme Court of British Columbia, the appellant sued the district for damages in relation to the same incident. He alleged that the district had fraudulently obtained the settlement through the fabrication of documents and other fraudulent conduct.
In August 2022, Justice McDonald of the BC Supreme Court dismissed an application for judgment. While the appellant did not appeal this decision, he unsuccessfully applied for a production order against the district in pursuit of the 2022 action.
The appellant appealed the dismissal of his application, while the district applied to strike his claim. In November 2023, Justice Tucker of the BC Supreme Court dismissed the appeal, struck the appellant’s claim without leave to amend, and dismissed his action.
The appellant sought an extension of time to appeal the BC Supreme Court’s orders. The BC Court of Appeal refused an extension.
In April 2024, the appellant brought a civil claim against the respondents, who were the lawyer and law firm that had acted on the district’s behalf in the 2022 action.
In the 2024 action, the appellant asserted that the respondents engaged in fraudulent and other improper conduct in representing the district in the 2022 proceedings. The respondents filed a response and applied to strike the 2024 claim without leave to amend.
The appellant applied for default judgment in the 2024 action. He contended that the respondents did not properly serve him with their response to the civil claim. On June 13, 2024, a deputy district registrar rejected his application on the ground that the respondents had filed a response.
The appellant appealed the registrar’s decision before a chambers judge. The appellant claimed that he deserved a default judgment due to the lack of proper service of the response.
On June 20, 2024, Justice Francis dismissed the appeal. On Aug. 22, 2025, the appellant filed a notice of appeal and applications for a no-fee order and an extension of time to appeal.
On Oct. 14, 2025, in chambers, Justice Edelmann of the BC Court of Appeal declined an extension of time and thus did not address the no-fee application.
On Oct. 20, 2025, the appellant applied to vary Justice Edelmann’s order, but did not serve it on the respondents, who learned of the application when their counsel received a requisition scheduling the application hearing for Mar. 25, 2026.
Last Mar. 23, the appellant provided 270 pages of application materials and sought to adjourn the Mar. 25 hearing until mid-May.
Variation denied
The Court of Appeal for British Columbia declined to vary Justice Edelmann’s order.
The appeal court described the appellant’s application materials as difficult to understand. The appeal court noted that the materials primarily comprised evidence concerning the prior proceedings and the appellant’s problems with them.
The appeal court described the appellant’s arguments as follows:
- Justice Francis’ decision did not result in an appealable order
- The respondents filed their response within the time limit, but served it on the appellant about two weeks later, following the time limit’s expiry
- There was a flaw in Justice Edelmann’s factual finding that the appellant did not notify the respondents of his intention to appeal
The appeal court ruled that Justice Edelmann did not err in law or principle or misconceive the facts in applying the five factors in Davies v. C.I.B.C., 1987 CanLII 2608 (BC CA), to the application seeking an extension of time.
First, the appeal court explained that the appellant could not appeal Justice Francis’ decision if there were no order, pursuant to s. 13(1)(a) of the Court of Appeal Act, 2021.
Second, the appeal court pointed out that the issue before Justice Edelmann was whether to grant an extension of time to appeal, not whether the deputy registrar’s or Justice Francis’ decisions were correct.
The appeal court acknowledged that a consideration of the proposed appeal’s merits was one of the Davies factors. However, the appeal court identified the interests of justice as the overriding consideration.
Third, the appeal court found that the appellant failed to address what evidence Justice Edelmann had concerning his communications with the respondents regarding his intention to appeal.
