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Posted Monday, January 25, 2021:
French v. French,
2021 BCCA 30
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2021/01/15
Court of Appeal
The appellant appeals a variation in a spousal support order which imputed to her income which she had earned prior to an accident that had left her unable to work for 18 months. The judge held that the consequences of the accident did not constitute a material change in circumstances. Held: Appeal allowed. The chambers judge erred in imputing pre-accident income in these circumstances. Arrears were required to be paid and the question of spousal support going forward referred to the Supreme Court for review.
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R. v. A.B.,
2021 BCCA 20
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2021/01/21
Court of Appeal
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The Owners, Strata Plan VR29 v. Kranz,
2021 BCCA 32
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2021/01/18
Court of Appeal
Appeal brought from a judge’s Chamber’s decision to adjourn a petition hearing to permit the filing of additional evidence by the petitioner. Held: appeal quashed. The substance of the order was an adjournment, which is a limited appeal order for which leave to appeal is required pursuant to Court of Appeal Rule 2.1(e).
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Posted Friday, January 22, 2021:
Fonseca v. Gabriola Island Local Trust Committee,
2021 BCCA 27
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2021/01/22
Court of Appeal
The Gabriola Island Local Trust Committee appeals an order that its Land Use Bylaw is inapplicable to a seawall constructed by the landowners, the Fonsecas, on their property. The judge held the bylaw inapplicable to the structure for the reason that the purpose of a seawall is to protect one’s property from erosion, a right held at common law by a landowner that can only be abrogated by clear legislative intent. The Fonsecas cross appeal the order that other structures on their property, including fences and a deck/walkway, contravened the bylaw and that they be removed. Held: Appeal allowed; cross appeal dismissed. A right to protect one’s property from the impact of erosion might exist at common law, but it operates to govern the relations between private persons, not to circumscribe the scope of statutory grants of municipal power. Local governments have the authority to regulate the exercise of private rights through zoning bylaws, as did the Island Local Trust here. The seawall contravenes the bylaw and must be removed. On cross appeal, the judge correctly determined that the fences, gates and deck/walkway were offending structures under the bylaw and ordered their removal.
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Landmark Solutions Ltd. v. 1082532 B.C. Ltd.,
2021 BCCA 29
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2021/01/22
Court of Appeal
The appellants appeal an order granting the respondents an interlocutory injunction based on a restrictive covenant in a “Non Solicitation, Non Disparagement and Confidentiality Agreement” from the sale of a business. The appellants contend that the chambers judge failed to consider their pleas of common mistake and rectification; failed to assess or give sufficient weight to whether certain definitions in the agreement are ambiguous and whether the geographic scope of the restrictive covenant is reasonable; and determined that there would be irreparable harm to the respondents in the absence of evidence. Held: Appeal dismissed. The chambers judge considered and addressed each of the issues and drew conclusions that were supported by the evidence and relevant authorities.
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S.R. v. A.B.,
2021 BCCA 28
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2021/01/22
Court of Appeal
The parties have two children together. By order dated September 25, 2019, the father was granted limited supervised parenting time with his younger child. The order varied a previous order granted in 2017, which had in turn varied a 2013 order. The 2013 order provided that the parties’ older child would reside with the father, and the younger child with the mother during weekdays, and the children would reside together with each parent on alternate weekends. This order was varied in 2017 to provide that each child would reside exclusively with each parent: the older child with the father and the younger child with the mother. That arrangement was extended by a 2018 order. The father appeals the 2019 order on the grounds that the judge erred in (1) finding, absent expert evidence, that he had alienated his child; and (2) misapprehending evidence related to his compliance with past orders. Prior to the hearing the Court, by memorandum, requested submissions from the parties on the validity of the 2019 order. Held: Appeal allowed. The 2018 order was made on the judge’s own motion after the 2017 order had expired. The judge therefore erred in law in basing his decision on a variation of the 2017 order when the extant order was the 2013 order. The 2019 order is set aside with the exception of a term prohibiting the parents from discussing the litigation or parenting arrangements with the younger son; the 2013 order governs parenting arrangements in respect of the younger son, the older child having reached the age of majority.
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Posted Thursday, January 21, 2021:
R. v. Clayton,
2021 BCCA 24
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2021/01/21
Court of Appeal
The appellant was convicted of assault and unlawful confinement following a trial by judge alone in the BC Supreme Court. He and the complainant had been in an intimate relationship and her pregnancy was a source of conflict. On appeal, the appellant argued the trial judge erred in refusing to direct the complainant to answer questions in cross-examination about whether she had an abortion, and if so, when. Held: Appeal dismissed. The information sought by the defence was relevant to its theory about the complainant’s motive to lie, and was therefore relevant to her credibility. However, the trial judge did not err in refusing to direct the complainant to answer the questions. The Crown put the information sought on the record. Once that information was before the judge, it was no longer a live issue and there was no need to cross-examine the complainant to obtain the same information. The appellant was not prevented from arguing his theory on motive, nor was he otherwise limited in his defence.
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R. v. Tremblay,
2021 BCCA 26
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2021/01/21
Court of Appeal
In 2013, the appellant was convicted of two counts of criminal negligence causing death. The Crown subsequently initiated dangerous offender proceedings, which resulted in the appellant being designated as a dangerous offender. The appellant was sentenced to an indeterminate term of imprisonment. He appeals his sentence on the ground that the judge erred in failing to properly consider the management of his risk at the penalty phase of the assessment. He seeks to adduce fresh evidence in support of the appeal. Held: Appeal dismissed. The judge fully considered the appellant’s risk assessment and treatment prospects and his findings were reasonable. The application to adduce fresh evidence is dismissed.
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Posted Wednesday, January 20, 2021:
R. v. Alfred,
2020 BCCA 384
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2020/12/18
Court of Appeal
The appellant seeks leave to challenge the constitutionality of s. 742.1(c) of the Criminal Code for the first time on appeal on the basis that it infringes his s. 7 Charter rights. Held: Application dismissed. Despite the recent decision in R. v. Sharma, 2020 ONCA 478, striking s. 742.1(c) on the basis of ss. 7 and 15 Charter violations, the evidentiary record and the interests of justice do not support granting the application. This constitutional challenge could have far-reaching consequences, an evidentiary record was not created in court below, and there is no apparent risk of injustice. As such, the circumstances do not justify departing from the general rule that new issues will not be heard for the first time on appeal.
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