THE LAW COURTS

400-800 HORNBY STREET

VANCOUVER, BC.
V6Z 2C5

COURT OF APPEAL

January 17, 2023

Julie Gibson Jeremy Maddock

BC Ministry of Attorney General 2536 Forbes Street
1001 Douglas Street Victoria, British Columbia
Po Box 9280 Stn Prov Govt V8R 4B8
Victoria, British Columbia
V8W 9J7

Geoffrey Trotter Polina Furtula

Geoffrey Trotter Law Corporation Citadel Law Corporation
Suite 1700-1185 West Georgia Street 1400-1125 Howe Street
Vancouver, British Columbia Vancouver, British Columbia
V6E 4E6 V6Z 2K8

Dear Parties:
RE: KASSIAN, et al. (A) vs. PHO
CSASPP & WARNER (A) vs. PHO
MADDOCK (A) vs. AGBC, et al.
Court of Appeal File Nos: CA48586; CA48599; CA48601

I have received the Crown’s letter of 13 January 2022.

In respect of the proposed preliminary objection for mootness, given the wording of
s. 20(2)(a) of the Court of Appeal Act, I do not think a single justice will have the
jurisdiction to hear the proposed application.

The Court’s usual concern in allowing preliminary applications in advance of an appeal

is that it rarely achieves an efficiency for two reasons:

1. It is less efficient for the Court because it runs the risk of involving two separate
divisions if the application is unsuccessful;

2. It is less efficient for the parties because the submissions on the preliminary
objection often address the merits of the appeal enough that the application may
as well be “rolled into” the appeal.

In light of these two factors, the question is usually whether the mootness question is
focused enough to justify being segregated and whether it can efficiently be heard
without the parties’ full factums. As is most often the case, the efficiency argument is
not made out here. Accordingly, I would not accede to Crown’s request under Rule
60(4). Any preliminary objection on the basis of mootness must be brought on at the
hearing of the appeals. The three appeals are to be heard together.

Given the fairly fundamental nature of the preliminary objection, I would ask the Crown
to file and serve it at least 30-days prior to the hearing of the appeal and for any
responses and replies to be filed and served at least two-weeks before to the hearing
date. I suspect all parties will agree that the timelines under Rule 60 are quite short for
all, including the Court, to give the mootness question its full attention and be prepared
for oral argument. Parties should prepare a separate joint book of authorities on the
mootness application.

As the appellants factums have now been filed, the appellants should coordinate the
scheduling of these appeals for hearing with the Crown. The appellants must ensure
that their oral arguments do not unnecessarily overlap. Understandably, the Crown’s
intention to bring on a preliminary objection at the hearing of the appeal will factor into
any time estimate. My office will review any time estimate and settle any dispute on the
time required.

Given the number of authorities relied upon, the parties are directed to prepare joint
condensed books of authorities for the appeal, which may be provided at the hearing of
the appeal.

If there are any further issues that should be addressed, any party may raise them with
my office.