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Posted Friday, April 26, 2024:
Emil Anderson Maintenance Co. Ltd. v. Taylor,
2024 BCCA 156
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2024/04/26
Court of Appeal
After traffic lights went out on an intersection on a busy highway, a serious and fatal accident occurred. The judge found liable the drivers of the two motor vehicles that collided in the intersection, a finding which is not appealed. The judge also found liable the operations communications centre of the RCMP who received a call warning that drivers were racing through the intersection and a serious accident was going to occur, but did not immediately alert the appropriate external agency and did not dispatch the RCMP to the intersection. The Attorney General of Canada appeals the finding of liability. The judge further found liable the highway maintenance contractor whose driver went through the intersection twice that day but took no action to address the problem. The highway maintenance contractor also appeals.
Held: Appeals dismissed.
The judge did not err in finding that there was a duty of care owed by the communications centre employees, as the harm to users of that intersection was reasonably foreseeable. The judge also did not err in her standard of care analysis or in applying too high a standard of care on the appellants. It was not necessary for the judge to have expert evidence supporting her findings on the standard of care. That there was contrary evidence did not undermine the judge’s findings, as there was evidence to support her findings. Nor did the judge err in her analysis of causation. The judge’s apportionment of 40% liability to the communications centre was in her discretion and she did not make any palpable and overriding errors.
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Goodall v. Reeves,
2024 BCCA 162
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2024/04/24
Court of Appeal
Urgent application brought before the Registrar to shorten the time to seek a stay of proceedings. The parties were engaged in a shareholder dispute concerning the ownership of a retail cannabis store. That dispute was settled for $80,000 at a settlement conference over a year ago and formalized in the order under appeal. As no amounts were then paid by the appellants, execution proceedings began. The appellants then sought to shorten the time for a stay as the sheriffs were involved and funds were garnished. Held: Application dismissed. The appellants’ evidence outlining the need to hear the stay urgently was only of a general nature. While there was prejudice to the appellants here, the cost and inconvenience to the respondent was high, particularly given delay and certain procedural defects in the appeal.
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M.T.B. v. L.B.V.,
2024 BCCA 159
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2024/04/26
Court of Appeal
Appellant seeks an order setting aside a default judgment ordered against him in a proceeding related to claims of assault, battery and intentional infliction of emotional distress. Appellant alleges that chambers judge erred by making improper adverse findings of fact; finding contempt without an application for the same; and misapplying the Miracle Feeds test by failing to properly consider the prejudice he would face should the default judgment stand. Appellant also alleges that fresh evidence reveals respondent’s failure to disclose relevant information and led to a miscarriage of justice.
Held: Appeal dismissed. The factual findings made by the judge were available to her and supported by the evidence; the judge did not make the finding of contempt that the appellant alleges; appellant failed to demonstrate the prejudice he alleges; and the application to allow fresh evidence is not allowed, as the evidence is not relevant to setting aside the default judgment and in any event, would not change the result.
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Mowatt v. British Columbia (Attorney General),
2024 BCCA 157
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2024/04/26
Court of Appeal
Appeal from judicial review of a decision of the Deputy Attorney General (“DAG”) pursuant to the Escheat Act, rejecting appellants’ claims for transfer of property (“East Lot”) to them and ordering a blind auction to occur between the appellants and respondent City. East Lot adjoins a parcel owned by the appellants (“West Lot”). In 1920, a company that owned East Lot purported to dedicate it as a road allowance in favour of the City, but dedication was unsuccessful and title to East Lot lapsed when company was dissolved. East and West Lots have been landscaped as a single property, and appellants have used them for residential purposes since they purchased all rights of previous owner in both Lots in 1992. Since then, title to East Lot has been the subject of litigation.
Supreme Court of Canada held in 2017 that East Lot had escheated to the Crown in 1930 or 1931. The Escheat Act permits the Province to transfer escheated land to certain persons, including persons with a “moral claim” or persons who “discovered” the escheat. Competing applications by Appellants and City were filed with Attorney General for transfer of the East Lot under ss. 5 and 11 of the Act. Attorney General appointed DAG as his delegate under the Act and in 2021, DAG decided that neither application should be granted. He ordered blind auction under which either party could bid at price not less than assessed value of East Lot. On judicial review, decision was upheld as reasonable. On appeal, the appellants allege that the judge failed to conduct a proper reasonableness review, and that when reviewed properly, DAG’s decision is not reasonable. City did not appeal.
Held: Appeal allowed. DAG’s decision is not reasonable under the Vavilov analysis, He failed to address appellants’ “moral claim” in light of the entire legal context, including purposes of the Crown’s prerogative to transfer escheated land, as confirmed by s. 5 of the Act; failed to state a conclusion on whether appellants had a “moral claim”; failed to decide whether they had “discovered” the escheat and, assuming they had, failed to explain why discovery alone was insufficient to merit transfer to the appellants. Justification, transparency and intelligibility of decision were undermined within the meaning of Vavilov. CA remitted the matter to the Attorney General for reconsideration.
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Pereira v. British Columbia (Workers’ Compensation Appeal Tribunal),
2024 BCCA 158
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2024/04/26
Court of Appeal
The appellant’s employment was terminated in circumstances which the appellant alleged constituted a prohibited action under the Workers Compensation Act. The appellant brought a prohibited action complaint against her employer and grieved the termination of her employment through her union. The grievance was settled between the union and the employer. The Workers’ Compensation Board found it had no authority to consider the prohibited action complaint on the grounds that it had been addressed by the grievance. The Workers’ Compensation Appeal Tribunal dismissed the appellant’s appeal and request for reconsideration. The appellant’s application for judicial review was dismissed. Held: Appeal dismissed. It was not patently unreasonable for the Workers’ Compensation Appeal Tribunal to find that the grievance and settlement agreement appropriately dealt with the substance of the prohibited action complaint.
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Williams Moving & Storage (B.C.) Ltd. v. Canada (Minister of National Revenue),
2024 BCCA 160
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2024/04/26
Court of Appeal
This is an appeal from an order dismissing an application made by the appellant in respect of a proposal made to its creditors under the Bankruptcy and Insolvency Act [BIA]. An error was made in the drafting of the proposal. The error only came to light, however, when the Canada Revenue Agency re assessed the appellant several years after the proposal had been approved and implemented. The appellant moved for relief, applying to rectify the proposal or, alternatively, to have the order approving it amended pursuant to s. 187(5) of the BIA. The chambers judge dismissed the application. The appellant contends the chambers judge erred in principle in the exercise of her discretion under s. 187(5) of the BIA, and in law in her application of the test for rectification.
Held: Appeal allowed. The chambers judge did not err in refusing to rectify the proposal. However, she erred in failing to adequately consider whether to exercise her discretion pursuant to s. 187(5) so as to vary the order approving the proposal. This is an appropriate case to exercise that discretion to correct the drafting error. Doing so does not constitute a substantive alteration to the proposal. An order is granted amending and correcting the order approving the proposal with retroactive effect.
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Posted Thursday, April 25, 2024:
Boonstra v. Boonstra,
2024 BCCA 153
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2024/04/25
Court of Appeal
This appeal arises from a decision by a Supreme Court judge to order spousal support, both retroactive and ongoing. The judge reviewed a prior order for spousal support (made in 2016) and decided the support should continue, albeit at a slightly increased amount based on updated information. The appellant sought to have his support obligation terminated. The judge declined to do so. There were two main issues on appeal: 1) whether the judge properly included the appellant’s pension benefits as income for purposes of the spousal support analysis, allowing for some double recovery by the respondent; and 2) whether the judge erred by taking the appellant’s Veterans Affairs Benefits into account as part of his overall “means” in deciding spousal support. In a cross-appeal, the respondent contended that the latter benefits must be treated as income, as a matter of law.
HELD: Appeal and cross-appeal dismissed. A judge’s review of a spousal support order is subject to a highly deferential standard on appeal. On the record in this case it was open to the judge to include the appellant’s pension benefits as income, even in the face of some double recovery. It was also open to the judge to consider the Veterans Affairs Benefits as part of the appellant’s “means” in choosing a Spousal Support Advisory Guidelines range for spousal support. This Court has previously endorsed such an approach. The position raised in the cross-appeal effectively asks for that decision to be overturned and requires a five-member division. The respondent made no such application.
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Pavlov v. Edwards,
2024 BCCA 155
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2024/04/25
Court of Appeal
The appellant appeals a summary trial order finding him liable up to the amount of his guarantee, which secured a part of a vendor-take-back loan in a commercial transaction. The judge found that the respondents’ application primarily concerned the interpretation of a series of contracts regarding the loan and proceeded summarily. On appeal, the appellant argues that the issues were not suitable for summary determination and that the judge erred in her interpretation of the agreements.
Held: Appeal dismissed. The judge was aware of the substance of the appellant’s counterclaims along with other pending issues and decided to proceeded summarily on narrow issues concerning the interpretation of the contracts. The judge’s discretion to do so is owed deference. The appellant established no extricable error of law in the judge’s interpretation of the relevant agreements, and her conclusion, again, is owed deference.
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R. v. Ordway,
2024 BCCA 154
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2024/04/25
Court of Appeal
The appellant appeals his sentence of 18-months’ imprisonment, to be followed by 18 months of probation. He was convicted by a jury on one count of assault causing bodily harm. He submits the judge erred by: (1) erroneously finding as an aggravating factor that he knew the complainant was confined when he assaulted her; (2) erroneously making independent findings of fact to the effect that he aided and abetted in the complainant’s unlawful confinement; (3) imposing an abstention from alcohol and illicit drugs in the probation order; and, in light of these errors (4) imposing a demonstrably unfit sentence.
Held: Application to extend time to seek leave to appeal the sentence is granted, as is leave, but the appeal is dismissed. The judge appropriately applied the Ferguson factors in her fact-finding analysis to resolve ambiguities in the jury’s findings. In the circumstances of this offence, it was open to the judge to find the abstention clause would further the appellant’s rehabilitation. The judge did not make any reviewable errors nor was the sentence imposed demonstrably unfit.
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Posted Monday, April 22, 2024:
Prokam Enterprises Ltd. v. British Columbia Farm Industry Review Board,
2024 BCCA 151
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2024/04/22
Court of Appeal
Appeal from an order dismissing the appellant’s application for judicial review of a decision of the British Columbia Farm Industry Review Board (the “Board”). The Board implemented a review process into whether allegations made by the appellant Prokam Enterprise Inc., a potato producer, in a notice of civil claim could be substantiated and if not, what resulting orders should flow from that finding. The appellant argues that the review process was procedurally unfair because the Board’s finding that the appellant is a “rogue producer”; and that the appellant’s allegations as set out in the notice of civil claim had “no evidentiary foundation” were beyond the proper scope of the review.
Held: Appeal dismissed. While the review process attracted a duty of procedural fairness, there was no breach of that duty. In effect, the appellant takes issue with the language used by the Board in support of its conclusion rather than the result. Moreover, the Board’s observations about the lack of an evidentiary foundation for Prokam’s allegations did not amount to a finding of misconduct on the part of Prokam. Finally, any consequences flowing from the Board’s findings will only be decided after a further phase of the review that has not yet occurred.
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R. v. Thomas,
2024 BCCA 150
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2024/04/22
Court of Appeal
The appellant challenges his convictions of two counts of sexual assault. He submits that the trial judge erred by misapprehending his evidence on certain peripheral matters, and applying uneven scrutiny to his evidence and the evidence of the complainant. He further argues that the judge erred in her application of the law of sexual assault. Held: Appeal dismissed. The trial judge did not make any palpable and overriding errors in her assessment of the evidence. The judge correctly stated and applied the principles in relation to the actus reus and mens rea for sexual assault.
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