| |
Posted Friday, December 19, 2025:
British Columbia (Attorney General) v. McDermid,
2025 BCCA 455
–
2025/12/19
Court of Appeal
This appeal arises from a Charter challenge to a section of the Civil Forfeiture Act that allows the Director of Civil Forfeiture to apply for a court order compelling disclosure of records or information from third parties. The chambers judge held that s. 11.01 authorized an unreasonable search and seizure contrary to s. 8 of the Charter. HELD: Appeal allowed. The statutory requirement for prior judicial authorization before the Director can compel disclosure provides a sufficient safeguard against the violation of the privacy interests protected by s. 8.
more ...
|
British Columbia (Ministry of Children and Family Development) v. H.D.,
2025 BCCA 457
–
2025/12/19
Court of Appeal
The appellants seek to set aside an order permitting the respondent (the plaintiff below) to seek a lump sum award for the full cost of her future care needs and elect to forego a universal government benefit to avoid double recovery. They say the trial judge improperly departed from Canadian precedent and followed foreign jurisprudence that did not justify such a departure and improperly distinguished the facts and legal context of this case from those in other cases binding on him. The respondent cross appeals the denial of her claim for increased hours of active care to 24 hours (to include nighttime care) after 30 years. She says the judge misapprehended the evidence and applied a higher standard of proof than the applicable standard of a real and substantial possibility.
Held: Appeal allowed; cross appeal dismissed.
The trial judge erred in accepting the foreign jurisprudence as sufficiently persuasive to justify departing from binding precedent in the manner he did. He also erred in failing to identify a material distinction between the facts or legal context of this case and those in the binding precedents. Canadian jurisprudence establishes a general rule that requires trial judges to deduct the value of universally available government benefits that will likely be available to plaintiffs to address their future care needs and apply contingencies to address uncertainties with respect to the continuation and level of benefits. Limited exceptions to this general rule of deductibility have been recognized only in the context of past losses and have never been applied to future care costs. There is no proper basis to recognize an exception in the circumstances of this case. This general rule is based on fundamental principles of fair compensation and finality in litigation. The value of state benefits can be determined and the uncertainties in predicting the future can be addressed by applying contingencies.
The trial judge did not err in his assessment of the respondent’s claim for increased active nighttime care after 30 years. The expert evidence raised only the possibility of increased need in a general sense, with nothing specific about nighttime needs. On this record, it is not fatal that the judge failed to expressly apply the standard of a real and substantial possibility. His conclusion that the respondent had failed to establish a sufficient evidentiary basis to augment the damages award is consistent with the application of the correct standard of proof.
more ...
|
Nielsen v. Beland,
2025 BCCA 458
–
2025/12/19
Court of Appeal
The appellant is a member, and former interim director, of a society. The respondents filed a notice of civil claim seeking remedies in relation to an ongoing dispute over the governance of the society. They then obtained an ex parte order suspending the operation of the society. The appellant applied for orders adding himself as a party to the proceeding and setting aside the ex parte order, and for other forms of related relief. The respondents later filed a notice of discontinuance and consent order setting aside the ex parte order. The appellant applied to recover the costs he incurred in the discontinued proceeding. The respondents cross-applied for special costs against the appellant and a finding that he is a vexatious litigant. The chambers judge dismissed the appellant’s application and granted the relief sought by the respondents. The appellant argues on appeal that the hearing before the chambers judge was procedurally unfair.
Held: Appeal allowed. The appellant was denied procedural fairness because he was not provided with an opportunity to be heard on the applications. The orders of the chambers judge are set aside. The respondents’ application is dismissed because there is no basis in the record for the award of special costs or the finding that the appellant is a vexatious litigant. The appellant’s application for costs is remitted to the Supreme Court for a new hearing.
more ...
|
Weisenburger v. College of Naturopathic Physicians of British Columbia,
2025 BCCA 460
–
2025/12/19
Court of Appeal
Appeal from an order striking the appellant’s claims and dismissing an action against each of the respondents primarily on the basis that the action was a collateral attack on administrative decisions and actions that ought to have proceeded by way of judicial review. The decisions and actions included orders made by the Provincial Health Officer (PHO) during the Covid-19 pandemic requiring certain health care workers to be vaccinated, and notices by the College of Naturopathic Physicians to registrants about reporting vaccination status and restricting statements about prevention or treatment of Covid-19 to information made available by the public health authorities.
The appellant challenges only two aspects of the decision below, seeking to continue her action to (1) challenge the validity of the emergency provisions in the Public Health Act under the Charter of Rights and Freedoms, and (2) pursue her claim for damages for business losses resulting from the alleged breach of her s. 2(b) Charter rights. The respondents applied to quash the appeal as moot.
Held: Appeal is quashed with the exception of the appellant’s claim under s. 2(b) of the Charter, and the appeal of the order striking the s. 2(b) claim is dismissed. An appeal of the issues that formed the bulk of the claim is moot. The PHO no longer has emergency powers in response to Covid-19, the College no longer records a registrant’s vaccination status, and the issues raised in the appeal are no longer of public importance. There is no basis to interfere with the chambers judge’s conclusion that the s. 2(b) claim, as part of the broader claim, should be struck as an abuse of process and as disclosing no reasonable claim under Rule 9-5(1) of the Supreme Court Civil Rules.
more ...
|
Posted Thursday, December 18, 2025:
Alter v. The University of British Columbia,
2025 BCCA 453
–
2025/12/18
Court of Appeal
The appellants (plaintiffs below) appeal the dismissal of their application under Rule 13-1(14) of the Supreme Court Civil Rules to vary an order settled by the registrar of the British Columbia Supreme Court. The settled order emanated from a successful application by the Province (one of two defendants below) for an order striking the pleadings as against the Province. It provided that the pleadings were struck as against the Province, but did not specifically identify the struck portions. In addition to opposing the appeal, UBC (the other defendant below) applied to quash the appeal on the ground that this Court lacked jurisdiction because the order dismissing the application under Rule 13-1(14) was not an order for the purpose of s. 13(1)(a) of the Court of Appeal Act.
Held: Application dismissed, and appeal allowed. This Court has the jurisdiction to hear an appeal from a decision that is specifically authorized by R.13-1(14) as such a decision constitutes an order falling within the meaning of paragraph (c) in the definition of “order” in s. 1(1) of the Court of Appeal Act, and because it reflects the performance of a judicial function that affected the parties’ procedural rights. Both the registrar and the judge reviewing the settled order erred in determining that the registrar’s role is limited to crafting an order using the words used in the reasons for judgment by the judge who made the order, and does not extend to resolving perceived uncertainty or ambiguity in the reasons for judgment. The order should have been settled to include express reference to the portions of the pleadings that were struck.
more ...
|
Posted Tuesday, December 16, 2025:
R. v. Soper,
2025 BCCA 446
–
2025/12/16
Court of Appeal
The appellant appeals his convictions for offences relating to the use of a stolen debit card, breaking and entering a dwelling house, and theft of a vehicle. The central issue at trial was proof of identity. The appellant argues the trial judge made five material misapprehensions of the evidence. Held: Appeal dismissed. The judge’s only misapprehension of evidence was about the driving time between the locations where the offences were committed, which was not material to the issue of identity.
more ...
|
Posted Monday, December 15, 2025:
Osama v. Jiang,
2025 BCCA 427
–
2025/12/03
Court of Appeal
The appellant leased a residential property from the respondent in order to operate a daycare. The respondent sought to terminate the tenancy under s. 49(3) of the Residential Tenancy Act so that her son could live in the residence. The appellant disputed the validity of the termination, alleging that the respondent’s son did not intend to “occupy” the residence within the meaning of s. 49(3) because the unit was set to undergo three months of renovations before anyone moved in. He says that the lease could only be terminated under s. 49.2, which sets out the process for terminating a lease in order to complete renovations. The appellant also alleged that any intent to occupy was motivated by a desire to avoid the empty homes tax and was therefore not in good faith. The trial judge concluded that the lease was validly terminated.
Held: Appeal dismissed. Not all renovations will fall under the scope of s. 49.2. In this case, the trial judge found that the nature of the renovations and the time projected to complete them made the planned delay in occupancy reasonable. She also found that the respondent’s son had a good faith intention to occupy the property and make it his primary residence. Those findings are entitled to deference on appeal.
more ...
|
R. v. Khojsteh Kashani,
2025 BCCA 454
–
2025/11/28
Court of Appeal
The appellant was convicted of seven counts of sexual assault of clients of his medical aesthetics business and sentenced to 11 years’ imprisonment. He seeks bail pending his appeal from conviction and sentence, which the Crown opposes. Held: Bail granted, on terms. The appellant complied with bail conditions pending trial and does not pose a current safety risk to the public. His appeal meets the merits threshold. The largest concern in this case appears to be the appellant’s connections to Iran and the concern that he might flee. However, the appellant has proposed significant conditions which the Court accepts mitigate against this risk.
more ...
|
Email page
Print page