Court of Appeal - Recently Posted Judgments

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Recently Released Judgments

This webpage lists judgments recently released by the Court of Appeal and provides links to copies of those judgments. Judgments are best viewed in Internet Explorer 7 or newer (click here to download).

Some of the Court’s judgments may be subject to publication bans. The Court of Appeal will not publish reasons for judgment on its website without ensuring that information that is subject to a publication ban has been removed or redacted from the judgment (e.g. through the use of initials). For information about Publication Bans and their effect, please click here.


Posted Wednesday, April 8, 2020: Galloway v. A.B., 2020 BCCA 106 – 2020/04/08 Court of Appeal A.B. appeals from an order directing her to produce certain documents relevant to her allegations against Steven Galloway of physical and sexual assault. The order was made in s. 4 dismissal proceedings taken pursuant to the Protection of Public Participation Act. Held: Appeal dismissed. In the circumstances the documents were relevant and the prejudice to A.B. in their disclosure was out-weighed by the interests the respondent seeks to advance. While the chambers judge made some errors in describing the impact and effects of the statutory scheme, the order was nevertheless appropriate on a fresh exercise of the discretion to order production. more ...
Posted Tuesday, April 7, 2020: 1120732 B.C. Ltd. v. Whistler (Resort Municipality), 2020 BCCA 101 – 2020/04/07 Court of Appeal The appellants brought petition proceedings challenging a restrictive covenant and two municipal bylaws, a zoning amendment bylaw and a tourist accommodation bylaw. The covenant and bylaws collectively require that strata units in the Cascade Lodge be placed in a rental pool operated by a single licensed rental pool manager. The petition was dismissed by a chambers judge. On appeal, the appellants argue the chambers judge erred because: (1) the zoning amendment bylaw is invalid because it requires that the properties be used only by means of a rental pool arrangement with a single professional rental pool manager; and (2) the covenant is either void for vagueness and uncertainty, or exceeds the municipality’s statutory authority to register covenants in respect of land use. In the alternative, the appellants argue the judge erred by dismissing their claim for a declaration of non-conforming protection. Held: Appeal dismissed. The applicable standard of review for judicial review of a municipal bylaw is reasonableness. The municipality’s implicit conclusion that it had the statutory authority to enact the zoning amendment bylaw was reasonable. Similarly, the covenant did not exceed the municipality’s statutory authority, and it is not vague or uncertain by requiring the use of a rental pool arrangement. Finally, the appellants have failed to establish prior non-conforming use. more ...
R. v. Forner, 2020 BCCA 103 – 2020/04/07 Court of Appeal The appellant appeals the custodial portion of her 40-month sentence, and a banishment term in her probation order. The appellant, who had a long history of depression and alcohol abuse disorder, appeared at the victim’s door visibly intoxicated, wearing a wig, and asking to see the victim’s baby. She then entered the victim’s home holding a large butcher knife. The incident ended when the victim successfully pushed the appellant back outside. She was sentenced to three years, four months and 11 days, less time served, plus three years’ probation. The probation order included a term banishing her from Osoyoos. Held: Appeal allowed. The custodial sentence is reduced to 20 months. The judge erred in principle by failing to treat the appellant’s mental illness as a mitigating factor and by treating her addiction as significantly aggravating, where one contributed to the other, and both contributed to the offence. Moreover, there was no history of violence and no physical injury. The result was an unfit sentence. The banishment term was unreasonable. This was an isolated event, the term did not facilitate the offender’s rehabilitation, and the non-contact terms of the order adequately provide for the victim’s safety and security. more ...
R. v. Pipping, 2020 BCCA 104 – 2020/04/07 Court of Appeal The appellants challenge their convictions for drug- and firearms-related offences on the grounds that (1) a general warrant used by the police was invalid because it lacked a notice provision as required by the Criminal Code and (2) the delay between the date of the charge and the conviction violated their s. 11(b) Charter rights to trial within a reasonable time. Held: Appeals dismissed. The general warrant used by the police in this case was invalid as it authorized a covert search but lacked a provision for notice as required by the Code. Nevertheless, the evidence should not be excluded under s. 24(2) of the Charter. Further, the determination of the trial judge that the delay in this case could be attributed to the conduct of the defence is entitled to deference on appeal. There are no reversible errors in his analysis. more ...
Posted Monday, April 6, 2020: R. v. Myles, 2020 BCCA 105 – 2020/03/31 Court of Appeal Following a Supreme Court trial, the appellant was convicted of firearms and property offences. He was sentenced to 21 months’ imprisonment. He has appealed the convictions and sentence and applies for release pending the hearing. Held: Application for release pending appeal is dismissed. The appellant has not met his burden under s. 679(3) of the Criminal Code. There are serious concerns that if released, the appellant will not surrender himself into custody in accordance with the terms of any bail order. Moreover, release on the form of bail proposed by the appellant would raise issues of public safety and adversely impact public confidence in the administration of justice. Although release pending appeal is denied, it is appropriate to direct that the appeals from conviction and sentence be expedited. more ...
R. v. Reimer, 2020 BCCA 102 – 2020/03/27 Court of Appeal The appellant pleaded guilty to ten charges: uttering threats, nuisance, being found in a dwelling house, and several breaches of recognizances. The judge imposed an effective sentence of 16 months, reduced to nine months after credit for time served. The day before the sentencing hearing, his counsel was contacted by a prosecutor who advised him that if he adjourned the hearing to the following week, she would appear for the Crown, and would take a more lenient approach to sentencing than the prosecutor who was appearing on the scheduled date. The appellant chose to proceed on the scheduled date, but now contends that the conduct of the Crown made the sentencing “unfair”. He also raises issues with respect to the length of the sentence, and with the probation conditions that were imposed. On appeal, held: There was no unfairness in the way the sentencing took place, though the discrepancy between the positions of two Crown counsel underlines the need for the Court to carefully consider the fitness of the sentence. The sentence was not unfit, apart from the sentencing judge’s failure to give effect to the totality principle. The global sentence should be reduced by one month. With respect to probation conditions, the Court expresses concern with respect to overloading probation orders. Counsel and judges must be mindful of the rationale for probation conditions, and, should generally give some explanation of why they are imposed. In this case, two of the conditions were unreasonable, and several required modification. more ...

Yukon Judgments

The Chief Justice and Justices of the Court of Appeal for British Columbia also sit, respectively, as the Chief Justice and Justices of the Court of Appeal of Yukon. From time to time, this section of the website includes recently released Court of Appeal of Yukon judgments.


Posted Thursday, April 2, 2020: Carlock v. ExxonMobile Canada Holdings ULC, 2020 YKCA 4 – 2020/02/07 Court of Appeal This appeal is from an order setting the fair value of shares owned by dissident shareholders under s. 193 of the Yukon Business Corporations Act, R.S.Y. 2002, c. 20. Pursuant to a court approved Plan of Arrangement, ExxonMobil Canada Holdings ULC agreed to acquire InterOil Corporation for $49.98 per share, paid in Exxon shares. A small number of InterOil shareholders invoked their dissent and appraisal rights. The court appraised the fair value of the dissidents’ shares at $71.46 per share. Exxon appeals from this order. Held: Appeal allowed, fair value of the dissidents’ shares set at $49.98. Prior to this Plan of Arrangement, Exxon and InterOil had previously agreed to a different Plan of Arrangement on similar terms. This Court held, on the record then before it, that the Supreme Court erred in approving the first Plan of Arrangement. In making the order currently under appeal, the Chief Justice erred in principle by reasoning that this Court’s previous judgment meant the transaction price initially agreed upon in the first Plan of Arrangement could not be resurrected as fair value in the second Plan of Arrangement. As a result, the Chief Justice failed to give weight to objective market evidence of fair value and instead relied on a theoretical valuation. This Court is satisfied on the facts of this case that fair value is equivalent to the transaction price. The facts surrounding the transaction show that the transaction price was the highest price available in an open and unrestricted market between informed and prudent parties, acting at arm’s length and under no compulsion to act. more ...
Senft v. Vigneau, 2020 YKCA 8 – 2020/03/27 Court of Appeal The respondents brought an action against the appellants for allegedly defamatory comments. The appellants pleaded the defence of fair comment and the respondents replied by pleading the appellants had acted with express malice in publishing the comments. The judge put the question of malice to the jury without first determining if the evidence established a probability of malice. The jury was directed to first make a finding on the question of malice before considering if the defence of fair comment was established. The jury found the comments were defamatory and that the appellants had acted with malice. They awarded the respondents general, special, aggravated and punitive damages. No finding was made with respect to the defence of fair comment. Held: Appeal allowed, awards set aside and a new trial ordered. The judge erred in failing to determine whether the evidence adduced at trial raised a probability of malice before putting the question of malice to the jury. The judge also erred in failing to instruct the jury that (i) express malice could not be considered unless they first determined the appellants had established the defence of fair comment on a balance of probabilities and (ii) if established, in order to defeat the defence, that malice was the appellants’ dominant motive in publishing the defamatory comments. more ...

Posted Thursday, April 2, 2020:

Carlock v. ExxonMobile Canada Holdings ULC, 2020 YKCA 4 – 2020/02/07
Court of Appeal

This appeal is from an order setting the fair value of shares owned by dissident shareholders under s. 193 of the Yukon Business Corporations Act, R.S.Y. 2002, c. 20. Pursuant to a court approved Plan of Arrangement, ExxonMobil Canada Holdings ULC agreed to acquire InterOil Corporation for $49.98 per share, paid in Exxon shares. A small number of InterOil shareholders invoked their dissent and appraisal rights. The court appraised the fair value of the dissidents’ shares at $71.46 per share. Exxon appeals from this order. Held: Appeal allowed, fair value of the dissidents’ shares set at $49.98. Prior to this Plan of Arrangement, Exxon and InterOil had previously agreed to a different Plan of Arrangement on similar terms. This Court held, on the record then before it, that the Supreme Court erred in approving the first Plan of Arrangement. In making the order currently under appeal, the Chief Justice erred in principle by reasoning that this Court’s previous judgment meant the transaction price initially agreed upon in the first Plan of Arrangement could not be resurrected as fair value in the second Plan of Arrangement. As a result, the Chief Justice failed to give weight to objective market evidence of fair value and instead relied on a theoretical valuation. This Court is satisfied on the facts of this case that fair value is equivalent to the transaction price. The facts surrounding the transaction show that the transaction price was the highest price available in an open and unrestricted market between informed and prudent parties, acting at arm’s length and under no compulsion to act.

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Senft v. Vigneau, 2020 YKCA 8 – 2020/03/27
Court of Appeal

The respondents brought an action against the appellants for allegedly defamatory comments. The appellants pleaded the defence of fair comment and the respondents replied by pleading the appellants had acted with express malice in publishing the comments. The judge put the question of malice to the jury without first determining if the evidence established a probability of malice. The jury was directed to first make a finding on the question of malice before considering if the defence of fair comment was established. The jury found the comments were defamatory and that the appellants had acted with malice. They awarded the respondents general, special, aggravated and punitive damages. No finding was made with respect to the defence of fair comment. Held: Appeal allowed, awards set aside and a new trial ordered. The judge erred in failing to determine whether the evidence adduced at trial raised a probability of malice before putting the question of malice to the jury. The judge also erred in failing to instruct the jury that (i) express malice could not be considered unless they first determined the appellants had established the defence of fair comment on a balance of probabilities and (ii) if established, in order to defeat the defence, that malice was the appellants’ dominant motive in publishing the defamatory comments.

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Recently Published Judgments

Recently published judgments are judgments that were given at some time in the past but have only recently been posted on the website by the court.

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