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Posted Wednesday, May 8, 2024:
Jeffries v. Bayfield Mortgage Investment Corp.,
2024 BCCA 178
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2024/04/26
Court of Appeal
The respondent foreclosed on the appellant’s mortgage in respect of real property. A contract for the property’s purchase and sale was entered into and the property was vested in the purchasers. The chambers judge dismissed the appellant’s appeal of the issuance of the vesting order. The appellant appeals the chambers judge’s order and seeks no fee status.
Held: Application dismissed. While the fees would cause the appellant undue hardship, the appeal is bound to fail. There is no basis for the appellant’s assertion that the document he tendered to the respondent would constitute payment of the mortgage debt.
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Posted Tuesday, May 7, 2024:
Centrone v. Jones,
2024 BCCA 177
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2024/05/03
Court of Appeal
The appellant applies to remove her appeal from the inactive list. Held: Application dismissed. The appellant did not take any steps to advance her appeal for over a year and has not provided adequate reasons for the inordinate delay. The appellant sought and received legal advice regarding the property at issue and consequences of the trial decision. The respondents’ submissions regarding prejudice have merit. They have taken steps to carry out the trial order and have continued to make improvements to the property. The likelihood of success of the appeal is low. It would not be in the interests of justice to reactivate the appeal.
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R. v. Huston,
2024 BCCA 179
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2024/04/18
Court of Appeal
The appellant pleaded guilty to one count of fraud over $5,000. The Crown and defence made a joint submission proposing a conditional sentence order of two years less a day, along with three years of probation and payment of restitution. The judge rejected the joint submission and instead imposed a sentence of one year in jail, restitution, and three years’ probation. The appellant asks this Court to set aside the period of incarceration and replace it with the conditional sentence order proposed in the joint submission.
Held: Appeal allowed. Faced with a joint submission, a judge must use a different methodology than the one they would use on a conventional sentencing hearing which involves competing submissions as to an appropriate sentence. The judge was required to consider not only the principles of sentencing and proportionality, but also the benefits of the joint submission. She was also required to provide cogent reasons for not accepting the proposed sentence. The proposed conditional sentence would not be regarded by reasonable persons as signalling that the proper functioning of the justice system had broken down. The sentence originally proposed in the joint submission is therefore imposed.
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Simán v. Eisenbrandt,
2024 BCCA 176
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2024/05/07
Court of Appeal
The appellant appeals the dismissal of his defamation action under the Protection of Public Participation Act. The action concerned a book authored by the respondent about the assassination of Archbishop Óscar Romero in El Salvador in 1980. The appellant alleged that there were passages in the book that conveyed the inferential defamatory meanings that he had conspired in the assassination and had financed death squads in El Salvador. The chambers judge concluded that there was substantial merit to the appellant’s claim that the words were defamatory. However, he dismissed the action on the basis that the appellant did not show grounds to believe that the defence of responsible communication had no real prospect of success.
Held: Appeal dismissed. The judge erred in his analysis of the defence of responsible communication in finding that the impugned statements could constitute reportage. However, the error does not affect the overall conclusion that the appellant did not meet his onus to show there are grounds to believe that the defence had no prospect of success. Although the order dismissing the action may be upheld on this basis alone, the appellant also failed to show that the public interest in allowing the proceeding to continue outweighed the public interest in protecting the respondent’s expression.
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Posted Monday, May 6, 2024:
Ai Kang Capital Inc. v. Xing,
2024 BCCA 175
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2024/05/06
Court of Appeal
Mr. Xing and a corporation owned by Mr. Chen were minority shareholders in Aikang GP; A.K. Capital was the majority shareholder. Dr. Wang, through his company, controlled 50% of the shares in A.K. Capital. He acted as sole director of Aikang GP in recent years. Mr. Xing and Mr. Chen brought a petition seeking a declaration that the affairs of Aikang GP were being conducted in an oppressive manner and asking for a variety of remedies. A.K. Capital and Dr. Wang sought to have the petition referred to the trial list. The chambers judge dismissed the application. Although he considered that some of the issues in the proceeding raised arguable questions of fact and law, he found that the question of whether the company’s affairs were being conducted oppressively could be determined summarily. A.K. Capital and Dr. Wang appealed, seeking an order that the matter proceed as a trial. Mr. Xing and Mr. Chen opposed the appeal, arguing not only that the matter should proceed summarily in the trial court, but also that issue estoppel would prevent the defendants from arguing that the company’s affairs were not conducted oppressively. After the appeal was commenced, but before it was argued, this Court established a more flexible approach to the question of when the trial court should refer a petition to the trial list (Cepuran v. Carlton, 2022 BCCA 76).
Held: Appeal dismissed. While there were some flaws in the judge’s analysis, it was not an error to refuse to refer the petition to the trial list, particularly in light of the more flexible approach adopted by this Court in Cepuran. The matter is returned to the B.C. Supreme Court for further proceedings. That Court will have to determine what procedures should be undertaken to resolve the dispute fairly and efficiently.
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Posted Friday, May 3, 2024:
Bang v. Kim,
2024 BCCA 174
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2024/05/03
Court of Appeal
An order to strike paragraphs of the factual pleadings in the amended response to civil claim said to be unnecessary in light of this court’s reasons indexed as 2024 BCCA 88, is refused. The issue of unnecessary pleadings should be resolved by the trial court.
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Podollan v. Trustee of Estate of David Podollan,
2024 BCCA 173
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2024/05/03
Court of Appeal
The appellant filed a notice of appeal 27 days after the order under appeal was pronounced. The respondent Trustee applies to dismiss the appeal as abandoned because of the appellant’s failure to comply with the 10-day time limit to appeal prescribed by the Bankruptcy and Insolvency General Rules. The appellant contends the abbreviated appeal period has no application and the appeal was brought in time under the Court of Appeal Rules. As an alternative position, she cross applies for an extension of time to commence the appeal.
Held: Trustee’s application dismissed; the appellant’s cross application allowed. The abbreviated appeal period applies in the present case as the order under appeal was granted in reliance on jurisdiction under the Bankruptcy and Insolvency Act. The appeal was thus brought out of time. However, it is appropriate to grant an extension of time to commence the appeal. The delay was adequately explained, occasioned no inordinate prejudice to the Trustee and the appeal is not bound to fail.
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Posted Thursday, May 2, 2024:
Pinnacle Living (Capstan Village) Lands Inc. v. Fairway Recycle Group Inc.,
2024 BCCA 172
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2024/05/02
Court of Appeal
The appellants, owner and head contractor, engaged a subcontractor to provide work and materials for a project. The subcontractor then contracted with another subcontractor, the respondent Fairway Recycle Group Inc. After the subcontractor failed to pay outstanding invoices owed to Fairway, the appellants allegedly agreed to pay the invoices in return for Fairway’s agreement to not file a lien claim. When the appellants did not pay, Fairway filed a lien claim. The appellants applied to discharge the lien claims of all subcontractors, upon payment into court of a certain amount, relying on s. 23 of the Builders Lien Act. The judge held that, because of the subsequent direct contract between Fairway and the appellants, the appellants could not rely on s. 23 to discharge the Fairway lien. The appellants argue that the judge erred in her interpretation of this provision.
Held: Appeal allowed. The judge erred in finding that because of the subsequent agreement with the appellants to pay past invoices, Fairway was no longer in the “class of lien claimants other than a class of lien claimants engaged by the owner”. Section 23 refers to contracts to provide work or materials to an improvement. As Fairway’s contract to provide work or materials was with a subcontractor, not the appellants, s. 23 applied and the lien should be discharged.
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R. v. Cliffe,
2024 BCCA 168
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2024/05/02
Court of Appeal
This is an application for an extension of time to file an appeal from conviction. HELD: Application dismissed. The appellant has not established it is in the interests of justice to grant an extension. Based on the record before this Court, there is no reasonable possibility of success on the appeal from conviction. The appellant has an outstanding appeal from sentence that was filed within the prescribed period. The appeal from sentence can and should proceed expeditiously.
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Sunshine Coast (Regional District) v. Vanderhaeghe,
2024 BCCA 169
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2024/05/02
Court of Appeal
The respondent received permits from the appellant, Sunshine Coast Regional District, to demolish and rebuild a lakeside cottage. The construction of the new cottage did not align with approved plans. The District rejected the respondent’s application for a development variance permit (“DVP”). She successfully applied for judicial review of that decision. The District’s cross-petition to obtain an order compelling the respondent to bring her home into compliance with its bylaws was dismissed. The District appeals both orders.
Held: Appeal from judicial review allowed in part; appeal from cross-petition allowed. The District erroneously treated the cottage as a non-conforming structure and thereby mistakenly focused on its equivalence with the old cottage’s volume and mass. But it was not unreasonable for the District to require the respondent to obtain a variance to address development within the setback that differed substantially from the approved plans. It was unreasonable for the District to require her to apply for new permits; any changes should be considered as amendments to the existing permits. It was reasonable for the Board to deny the DVP and it did not breach its duty of procedural fairness. An injunction should be issued to require the respondent to bring her building into compliance with the approved plans.
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