Court of Appeal Orders Return of Funds Paid After New Trial Ordered
What happens when a litigant sues and wins, collects part of the judgement, but then a new trial is ordered after appeal? Reasons for judgement were released by the BC Court of Appeal last week addressing such a situation.
In last week’s case (Camaso Estate v. Saanich (District)) the Plaintiff estate successfully sued for damages where the trial judge found a police officer was grossly negligent for fatally shooting the ‘disturbed’ plaintiff. Damages of over $300,000 were assessed. The Defendant appealed and pending appeal obtained an order for a partial stay upon the defendant paying the sum of $119,456.20 to the plaintiff. The Defendant successfully appealed and obtained an order for a new trial. The Defendant sought return of the $119,456. The Plaintiff opposed arguing the Court of Appeal was functus and had no ability to make such an order. BC’s High Court disagreed and provided the following reasons ordering the return of the funds:
 We do not consider that we are being asked to revisit our order determining the appeal or to adjudicate upon any issue that should have been addressed at the hearing of the appeal. We are being asked to give a procedural remedy arising out of a process that was initiated and ran its course in this court alone. The trial court gave a money judgment without terms as to payment. Terms of payment of the judgment were addressed only in this court in the form of a stay of execution application brought by the appellants under s. 18(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77. We are not being asked to rehear or to reconsider any aspect of this appeal. No variation of our order allowing the appeal is sought. This is merely a housekeeping matter that arises out of the proceedings in this court. Therefore, the doctrine of functus officio has no application.
 In a similar case, this court determined that the court has the power to make the kind of order sought by the appellants in the present case: Vaillancourt v. Molnar, 2004 BCCA 384. In Vaillancourt, the court reduced the amount of a jury award for damages for personal injury with the result that the appellant/defendant, pursuant to a pre-appeal agreement between the parties, had paid the respondent about $72,000 more than she was entitled to receive. The court relied on s. 9(8) of the Court of Appeal Act:
 We agree with counsel that this Court has jurisdiction to make an order for repayment of the overpayment. In that regard, we need look no further than s. 9(8) of the Court of Appeal Act, R.S.B.C. c. 77:
(8) For all purposes of and incidental to the hearing and determination of any matter and the amendment, execution and enforcement of any order and for the purpose of every other authority expressly or impliedly given to the Court of Appeal,
(a) the Court of Appeal has the power, authority and jurisdiction vested in the Supreme Court …
 In the result, we conclude that it is appropriate to make the order sought by the appellant, namely, that the respondent shall pay to the appellant the amount of the excess payment, plus interest to the date of repayment.
 See also Hoskin v. Han, 2005 BCCA 483.
 In our opinion, the court retains the power under s. 9(8) to make the order sought, it being a procedural remedy incidental to the appeal and the stay of execution order.
 There will be an order that the respondents forthwith pay to the appellants the sum of $119,456.20.
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