Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Clancy v. Clancy, 2018 BCCA 448

AREAS OF LAW: Summary judgment; Family law; Formal order; Want of jurisdiction

~The Court of Appeal has no jurisdiction to hear an appeal in which the appellant takes no issue with the order made in the court below, but contends that it should have been granted for reasons other than those expressed in the judgment.~


The Appellant, John Clancy, and the Respondent, Anne-Marie Clancy, signed a separation agreement on March 9, 2011. Both parties were represented by counsel. In the Agreement the Appellant represented that he had no ownership or beneficial interest in a company owned by his new spouse, Serpil Clancy. On the basis of that representation, and his representation as to income, the Respondent released her claims to compensatory and non-compensatory spousal support including arrears. In December 2012, the Respondent commenced a notice of family claim, seeking child and spousal support, an unspecified interest in family assets, an order that the Agreement be declared null and void or varied, and a variety of ancillary orders, all on the basis that the Appellant had misrepresented his ownership and beneficial interest in the new spouse’s company as well as his income arising from it. The Appellant filed a response to family claim, denying the alleged misrepresentation. In June 2013 he filed an application seeking to dismiss the proceeding. He claimed that the issues arising in the action were res judicata, that the Respondent was estopped from pursuing the issues, and that the filing of the action was an abuse of process. He sought that the action be dismissed pursuant to Rule 11-2(1) of the Supreme Court Family Rules, and he sought special costs against the Respondent. In the alternative, he sought that the action be dismissed on a summary trial application pursuant to Rule 11-3 with costs against the Respondent. The application proceeded on November 8, 2016. Both parties’ counsel agreed that the matter was suitable to be decided at a summary trial. The Respondent sought declarations that the representation made by the Appellant was untrue and that the Appellant withheld material facts and documents at the time the Agreement was signed. The judge said, in disposing of the application, “I grant the declarations sought by the [Respondent], dismiss the [Appellant’s] summary trial application, and award costs to the [Respondent].” However, the formal order simply provided “The [Appellant’s] application to dismiss the within action is dismissed.” There was a dispute as to what the terms of the final order were, and on December 12, 2017, the Registrar determined that the order was only for dismissal of the summary trial application and no declaratory relief had been granted. The BC Supreme Court dismissed the Respondent’s appeal of the Registrar’s decision. The Appellant appealed the dismissal of his summary trial application.


The appeal was quashed for want of jurisdiction. On the appeal the Appellant, represented by new counsel, raised for the first time the contention that the question of the truth of his representations in the Agreement was not suitable for summary trial. He said inter alia that the determination of that issue did not assist in the efficient resolution of the case, as it was not dispositive of the issues including entitlement to and quantum of spousal support. He sought that the order dismissing his summary trial application on the ground that his representations were untrue be set aside. He did not appeal on the basis that the judge ought to have granted his application; rather, the pith of his appeal was that the judge ought not to have granted his application to strike the action, because the matter itself was unsuitable for determination by summary trial. The Court of Appeal noted that it had no inherent jurisdiction to hear appeals. There must be a statutory basis for appellate review. An appeal must be from an order of the court below. It cannot be brought from passages in the reasons for judgment. The Appellant in this case effectively argued on appeal that the same order should have been made, but for different reasons. This is not a ground on which the Court of Appeal has jurisdiction to hear an appeal. Accordingly, the appeal was quashed.


Case comment by Larry Kahn, Q.C., Counsel for the Respondent

The decision of the Court of Appeal reminds counsel and that there may be unintended consequences as a result of a Court application.

The former husband applied by summary trial to dismiss his former wife’s action to set aside their separation agreement. After a protracted length of time, which included extensive document discovery and examinations her application came before Mr. Justice Leask.

At the summary trial, counsel for his former wife sought declarations that Mr. Clancy had misrepresented his beneficial interest in a company that was owned by his second wife.

If the summary trial application was successful, his former wife’s application was at an end. If not, the parties faced a lengthy trial, as there was no competing summary trial application by his former wife to review the separation agreement and determine what compensation, if any, was payable by Mr. Clancy to his former wife.

Mr. Justice Leaks dismissed the Appellant’s application to and in doing so made “findings” that impacted Mr. Clancy’s credibility.

Mr. Clancy sought to set aside the summary trial decision on the basis that Mr. Justice Leask should have declined to hear Mr. Clancy’s application because it was not suitable to proceed by summary trial. Counsel are reminded that the summary trial judge must be able to make the appropriate findings of fact to make the Order sought at the summary trial.

Mr. Clancy’s approach to the appeal was inconsistent with the submissions that he and Ms. Clancy’s counsel made before Mr. Justice Leask. They took the position that the application was suitable for determination by summary trial and Leask J could make the necessary findings of fact (see paragraph 17 of the Court of Appeal Reasons).

Madam Justice Garson noted that the Appellant requested that the Leask J. Order be set aside because the “finding” made by Mr. Justice Leask that Mr. Clancy misrepresented his circumstances in the Separation Agreement should not have been made.

Paragraph 21 of the Judgment is an important. So often overlooked is that the appeal lies from the Order and not from the Reasons.

Ms. Clancy took a pragmatic approach to the appeal. Rather than delving into the minutiae of the evidence, she argued that appeal ought to fail because Mr. Clancy should not be able to argue that the issue was suitable for summary trial before Leask J. and take the opposite position at the appeal.

The Court of Appeal was not willing to consider if Mr. Justice Leask should have proceeded with the summary trial. The court was satisfied that Mr. Justice Leask had the discretion to do so and that he exercised that discretion judicially because both counsel urged him to do so. I do not know if the Court would have approached this issue differently had there been competing applications so that the outcome of the summary trial would have led to finality for both parties.

Madam Justice Garson concluded the Court did not have jurisdiction to hear the appeal because the appeal arose from the Reasons and not the Order (para. 29).

Also, the Court emphasized that Mr. Clancy should not be able to make a strategic decision to apply to strike the claim at trial and resile from that decision on appeal.

The Court noted that it was not appropriate on appeal for the Court to decide if the summary trial judge made a “finding” which may be binding on the subsequent trial judge. If Mr. Justice Leask made findings, which the Court of Appeal was not entirely certain occurred, that should not be, in and of itself, a reason to set aside the Order. It appears that the Court of Appeal was not concerned if a subsequent trial judge would be influenced by the Leask J “finding”, or to put it another way, that the reasoning of Mr. Justice Leask was not so much about findings, rather than Mr. Clancy had not made a case at summary trial.

This case is a reminder that counsel are called upon to advise about strategic decisions, which may have significant consequences for their clients. For Mr. Clancy, the outcome of the summary trial was significant. It exposed Mr. Clancy to the potential of adverse findings, which he may not have considered, and if he had done so the application before Leask J. may not have taken place.

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