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Posted Friday, December 9, 2022:
British Columbia (Superintendent of Motor Vehicles) v. Chahal,
2022 BCCA 416
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2022/12/09
Court of Appeal
Appeal by the Superintendent of Motor Vehicles of an order remitting a notice of immediate roadside prohibition (IRP) for rehearing. Held: Appeal allowed; the order remitting the matter is set aside and the adjudicator’s confirmation of the driving prohibition is reinstated. The reviewing judge erred in his analysis of delay. A 22 month delay after the expiration of an abeyance agreement in setting the petition for hearing was unreasonable in the context of the legislative scheme and in the absence of an explanation for the delay or prejudice to the respondent. The judge also erred in his application of the reasonableness standard of review in respect of the adjudicator’s assessment of the respondent’s credibility, by parsing the adjudicator’s reasons without reading them as a whole, an approach not countenanced in Vavilov, nor in earlier jurisprudence from this court in the context of IRP reviews.
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Mok v. Wong,
2022 BCCA 418
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2022/12/05
Court of Appeal
Appeal of an order appointing three siblings, but not a daughter in law, committees of a person. The appellants contend the judge misapplied the test to determine whether the patient had expressed wishes about who should be her committees. Held: Appeal dismissed. The judge did not err in principle in exercising his discretion.
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White v. Baptist Housing Enhanced Living Communities,
2022 BCCA 419
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2022/12/02
Court of Appeal
This is an appeal of the dismissal of petition for judicial review, arising out of decisions by the Human Rights Tribunal dismissing the appellant’s complaints against her employer because they were filed late and/or had no reasonable prospect of success. Held: Appeal dismissed. There was no basis to conclude that the Tribunal decisions were patently unreasonable.
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Posted Thursday, December 8, 2022:
R. v. Stampp,
2022 BCCA 408
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2022/12/08
Court of Appeal
The appellant appeals a sentence of 12 months’ imprisonment for pleading guilty to trafficking fentanyl. He argues that the sentencing judge’s failure to consider collateral immigration consequences, when taken with fresh evidence relating to his mental health, warrant setting aside the sentence. He seeks a conditional sentence or a carceral sentence of six months less a day. Held: Appeal dismissed. The new evidence should not be admitted as it could not reasonably be expected to have affected the result. Further, while the sentencing judge did not consider the collateral immigration consequences, he did not err in determining that a conditional sentence would not be appropriate. The judge found that such a sentence would not be consistent with the principles of denunciation and deterrence nor would it be justified by the circumstances of the offence or offender. Finally, imposing a six-month sentence would not be proportionate to the gravity of the offence and the degree of responsibility of the appellant.
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Tran (Re),
2022 BCCA 417
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2022/11/23
Court of Appeal
An application for an order of certiorari and an appeal of a ruling in a summary conviction appeal proceeding were filed by a person who is not a party to the summary conviction appeal. In the ruling the person was denied standing to address the court on behalf of the summary conviction appellant because he had resigned his membership in the Law Society of British Columbia. Held: this court lacks jurisdiction to entertain an application for certiorari and the individual, not being a party to the summary conviction appeal, lacks standing to commence an appeal in this court as appellant. Both proceedings are quashed.
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Posted Wednesday, December 7, 2022:
Mountainstar Gold Inc. v. British Columbia Securities Commission,
2022 BCCA 406
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2022/12/07
Court of Appeal
A panel of the British Columbia Securities Commission found that the appellants contravened the Securities Act by making repeated false and misleading statements in required public filings about certain Chilean mining claims. The panel imposed broad, permanent market prohibitions and other sanctions against the appellants. The appellants challenge the panel’s liability and sanctions decisions on procedural fairness grounds. HELD: Appeal dismissed. The panel’s liability and sanctions decisions were procedurally fair. The panel did not err: with respect to admitting and assessing expert evidence; by scrutinizing the parties’ evidence unevenly; by refusing to grant the appellants an adjournment; by failing to assist the appellants as self-represented parties; in assessing and imposing sanctions; or by failing to give sufficient reasons.
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R. v. Smith,
2022 BCCA 405
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2022/12/07
Court of Appeal
The appellant was convicted of one count of sexual assault and sentenced to 31 months’ jail. The appellant is not a Canadian citizen. As a result of the length of his sentence, he lost his right to appeal a removal order against him under the Immigration and Refugee Protection Act. He seeks leave to appeal his sentence. He alleges the sentencing judge erred: by relying on an element of his defence as an aggravating factor; determining that because there were aggravating factors there were no mitigating factors; failing to consider relevant mitigating factors; and imposing a demonstrably unfit sentence. He submits that a sentence of less than six months’ incarceration plus three years’ probation is fit. If imposed, such a sentence would allow him to maintain his right to appeal a removal order.
Held: Leave to appeal is granted, the appeal is allowed and a two-year time served sentence is imposed. The judge erred in principle in finding that there were no mitigating factors. The presence of aggravating factors does not preclude the existence of mitigating factors. A majority of the Court is also of the view that the judge erred in considering the appellant’s attitude towards the offence, derived from his defence at trial (that the judge described as revenge theory and perpetuation of a rape myth), as an aggravating factor.
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Spirit Bay Developments Limited Partnership v. Scala Developments Consultants Ltd.,
2022 BCCA 407
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2022/12/07
Court of Appeal
The respondent builder brought arbitration proceedings against the appellant developer, seeking damages for unpaid invoices. The developer filed a counterclaim alleging negligent work. The arbitrator awarded damages to the builder and dismissed the developer’s counterclaim. The developer brought a petition under the Arbitration Act for leave to appeal the Arbitrator’s Award and was granted leave on three questions of law. The appeal judge found the arbitrator erred on the first two grounds but that it did not affect the Award, but found that the arbitrator did err in applying principles of unjust enrichment, the third ground, and remitted the Award to re-hearing on a discrete issue. The developer appealed on the first two grounds and the respondent cross-appealed on the third ground.
Held: Appeal dismissed, cross-appeal allowed, and Award of the arbitrator restored. The grounds for appeal did not raise extricable errors of law that were appealable under the Arbitration Act. The appeal judge was correct in concluding that the misstatements of the law by the arbitrator did not affect the Award. On the cross-appeal, though the arbitrator made references to unjust enrichment, it did not alter his analysis, which was consistent with general principles of contract law. As such, the cross-appeal is allowed.
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Posted Tuesday, December 6, 2022:
Grewal v. Grewal,
2022 BCCA 414
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2022/11/28
Court of Appeal
Appellant husband in family law claim applies for an extension of time to serve a notice of appeal, and an extension of time to file the appeal book, appeal record, and appellant’s factum. Held: Application dismissed. Having missed the deadline for service by one day, the husband must show there is at least some merit to his appeal. He is appealing from an order made after the respondent wife’s summary trial application was heard in his absence. He says he went to the wrong courtroom where another case with the same parties’ last names was listed, and was told it was not proceeding, and that is why he did not attend the summary trial application. However, as that is his complaint the appeal is premature, as the proper recourse is to bring an application before the trial court to change or set aside the order: see s. 200 of the Family Law Act, S.B.C. 2011, c. 25. It can be said with confidence that his proposed appeal has no merit and so his application is dismissed.
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Henderson v. Bank of Montreal,
2022 BCCA 412
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2022/11/24
Court of Appeal
The appellants challenge the dismissal of their ex parte application for the discharge of two mortgages registered against their properties and lump sum costs. The appellants argue that the judge failed to exercise his discretion judicially and failed to provide adequate reasons for his decision. The respondent seeks to admit fresh and new evidence on appeal regarding its delay in processing the mortgage discharges, and showing that the mortgages have now been discharged. Held: Appeal dismissed. The appeal is moot. The Court should not exercise its discretion to hear the appeal.
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Pheasant v. Thompson,
2022 BCCA 410
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2022/11/29
Court of Appeal
Appellant seeks a stay of the trial court order paying funds out of court to the respondent; the respondent seeks an order that the appellant post security for costs of the appeal. Held: It is in the interests of justice to grant a partial stay, holding back $25,000 from the amount ordered paid out to the respondent. The respondent has financial pressures but has shown herself to be financially responsible. The appellant who lives in the U.K. concedes that security for costs of the appeal should be awarded against him. Security for costs is ordered in the amount of $5,000.
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R. v. S.B.K.,
2022 BCCA 413
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2022/11/17
Court of Appeal
The appellant has been charged with a breach of her bail pending appeal. The Crown applied to cancel her bail based on the breach, as well as other information of non-compliance. Accepting that the test for cancellation was met, the appellant did not oppose cancellation. However, she sought to be re-released. HELD: the appellant’s bail pending appeal is cancelled and her application to be released on a new bail is denied. The appellant shall be detained in custody while awaiting her appeal.
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Thomas v. Rio Tinto Alcan Inc.,
2022 BCCA 415
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2022/12/05
Court of Appeal
The two appellants brought a claim in nuisance against the respondent Rio Tinto Alcan related to the construction and operation of the Kenney Dam and the diversion of water from the Nechako watershed, which had a severe and negative impact on their traditional fishery. The two Crown respondents were later added as parties. At trial, Rio Tinto Alcan successfully relied on the defence of statutory authority to avoid any liability in nuisance. The case also raised issues regarding Aboriginal title to submerged lands, but the trial judge ultimately did not determine that issue. The appellants appeal from the dismissal of their claim against Rio Tinto Alcan. Four First Nations seek to intervene in this appeal. The appellants and the two Crown respondents do not object, but the respondent Rio Tinto Alcan opposes the applications for intervener status. Held: Applications granted, with restrictions on the length of the factums and with no leave to make oral argument without further order. The intervener Nadleh Whuten has a direct interest in the litigation due to their overlapping claims of Aboriginal rights, interest, and title with the appellant Stellat’en First Nation. Nadleh may intervene and file a seven-page factum. The other three First Nations meet the public interest test and may intervene on the limited issue of Aboriginal title to submerged lands. Together, they may file a single factum of 21 pages.
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Posted Monday, December 5, 2022:
Hanson-Tasker v. Ewart,
2022 BCCA 411
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2022/11/22
Court of Appeal
This appeal arises out of an action in medical negligence. The respondents brought an application for security of costs of the appeal and of the trial. HELD: applications dismissed. An order for security of costs would prevent the appellant from pursuing the appeal. In the circumstances of this case, an order for security of costs is not in the interests of justice.
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