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Posted Friday, January 24, 2025:
Galiano Forest Lot Owners Association v. Galiano Island Local Trust Committee,
2025 BCCA 15
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2025/01/24
Court of Appeal
The appellants argue that the chambers judge erred in dismissing their challenge to a land use bylaw which prohibits any residential use of their properties on Galiano Island. A challenge to the same residential use restrictions in a predecessor bylaw was also dismissed by this Court 30 years ago in MacMillan Bloedel Ltd. v. The Galiano Island Trust Committee. However, the appellants argue that the passage of two acts in the meantime—the Forest Land Reserve Act [FLRA] and the Private Managed Forest Land Act [PMFLA]—make the impugned bylaw either invalid or inapplicable to their properties.
Held: Appeal dismissed. The appellants’ appeal and petition should not be dismissed on the grounds of abuse of process or delay. Nor are the appellants precluded from challenging the validity of the bylaw because their land was not designated as “forest reserve land” under the FLRA at the time the bylaw was passed. However, the appeal fails on the merits. The respondent’s decision that it had the authority to pass the bylaw was reasonable. The FLRA did not prohibit the adoption of the bylaw, since the bylaw’s restriction on residential use was not a restriction on “a forest management activity related to timber production or harvesting”. The repeal of the FLRA and subsequent enactment of the PMFLA does not assist in interpreting the definition of “forest management activity” in the FLRA. Subsequent legislative history should not be relied on to discern the intention of the legislature in enacting the FLRA. Since the respondent’s decision to adopt the impugned bylaw was reasonable, it necessarily follows that their decision to apply the impugned bylaw to the appellants’ properties was also reasonable.
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Lyons v. Canadian Imperial Bank of Commerce,
2025 BCCA 22
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2025/01/17
Court of Appeal
The Canadian Imperial Bank of Commerce obtained summary judgment against the appellant for unpaid credit card debt. She appealed the judgment, claiming that the judge made a number of errors. This included granting judgment without the CIBC advancing a valid claim. HELD: Appeal allowed, the summary judgment is set aside, and the matter is remitted to the Supreme Court for determination. The judge committed two material errors: (1) he granted summary judgment without accounting for evidence that directly contradicted an essential element of the respondent’s case; and (2) he applied an incorrect standard of proof.
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NV Highway Properties Ltd. v. 1155204 B.C. Ltd.,
2025 BCCA 8
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2025/01/13
Court of Appeal
The appellants argue that the trial judge erred in law by finding a binding contract between the parties unenforceable based on the principle of nemo dat quod non habet (“no one can give what they do not have”). The contract was for the sale of a number of properties, and included a share purchase option which the respondents ultimately elected. However, the shares were owned by a holding company which was not a party to the contract. Held: Appeal allowed. Nemo dat is a principle of property law typically applied where there is a dispute over entitlement to property or priority of interests. Nemo dat does not operate to render contracts unenforceable on the basis that the seller does not own what they are contracting to sell. Accordingly, the trial judge erred in holding that nemo dat rendered the parties’ otherwise binding contract unenforceable because the owner of the shares was not a party to the contract. The evidence showed that the appellants were capable of conveying the shares to the respondents at the time of closing.
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R. v. Berry,
2025 BCCA 14
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2025/01/24
Court of Appeal
The appellant was sentenced to life in prison with a period of parole ineligibility of 22-years for the murder of his two young children on Christmas Day. He appealed the period of parole ineligibility, arguing that the judge erred in characterizing his motive, did not take proper account of jury recommendations, the sentence was undermined by the fact that the consecutive sentencing regime for multiple murders is now unconstitutional, and the sentence was demonstrably unfit.
Held: Appeal dismissed. The judge did not err in finding that the appellant was partly motivated by spite for his ex-partner in killing the children, and that this was a highly aggravating factor. Jury recommendations are not binding, and it is not possible to know what the recommendations would be if the jury was not told about the possibility of consecutive sentencing. The appellant did not receive a consecutive sentence. His sentence was constitutionally sound. Finally, the sentence was not demonstrably unfit given the appellant’s high degree of moral culpability, the brutal nature of the killings, and the legislative requirement to prioritize denunciation and deterrence in this case.
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Posted Wednesday, January 22, 2025:
Pacific Gate Development Group Ltd. v. Bui,
2025 BCCA 12
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2025/01/22
Court of Appeal
The appellants contracted to build a residence for the respondent. Disputes arose about construction details and delays and the parties terminated their joint project. The appellants had the respondent sign a release, releasing the appellants of all liabilities in exchange for $250,000. The respondent commenced a lawsuit alleging breaches of the construction contract and the appellants defended the lawsuit, in part, by relying on the release. The trial judge dismissed the respondent’s claim but awarded damages in the amount of $100,000 on the basis that the appellants had failed to pay the full amount owing under the release. The appellants allege the judge erred because he decided the claim outside the scope of the pleadings, the respondent having not pleaded a breach of the release. Additionally, the appellants allege the trial judge erred when he drew an adverse inference against the appellants for failing to produce the $100,000 bank draft. Held: Appeal dismissed. This was a lawsuit about the construction contract between the parties and the appellants sought to rely on the release to defend the claim against them. The legal issue about consideration under the release was captured by the pleadings and the issue was joined. Even if the payment fell outside of the pleadings, there was no procedural unfairness—the appellants had adequate notice of the issue and a full opportunity to respond. Regarding the alleged error about an adverse inference, although the judge was mistaken about the adjournment for the specific purpose of locating the bank draft, this mistake did not constitute an error that was either palpable or overriding.
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Posted Tuesday, January 21, 2025:
Alam v. Leung,
2025 BCCA 13
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2025/01/02
Court of Appeal
The appellant seeks an extension of time to file his appeal book and factum. The respondents oppose that application, and seek dismissal of the appeal as abandoned based on the appellant’s failure to meet prior filing deadlines. Held: Application for extension of time granted, application to dismiss the appeal refused. This is the appellant’s third application for an extension of time, and the matter is approaching a point where further failures to meet filing deadlines could be regarded as unacceptable. However, the appellant has demonstrated a bona fide intention to prosecute the appeal, the appeal has some merit, and the delays thus far have not caused sufficient prejudice to the respondents to warrant dismissal.
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