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Posted Thursday, July 25, 2024:
Bentley v. British Columbia (Adult Forensic Psychiatric Services),
2024 BCCA 281
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2024/07/17
Court of Appeal
The appellant was found not criminally responsible on account of mental disorder on two counts of criminal harassment and was referred to the British Columbia Review Board (the “Board”) for disposition. The Board ordered a custodial disposition. The appellant challenges the Board’s order on the basis that it was unreasonable and argues it should be set aside and replaced with a conditional discharge or that a new hearing be held. Held: Appeal dismissed. The Board was entitled to consider the appellant’s mental condition and entire mental health history. The Board found that even though the appellant was currently medicated, he continued to express problematic and delusional beliefs and lacked insight into his illness. The Board also had concerns that went beyond the appellant’s use of the Internet. Those concerns included whether the appellant’s family could reliably monitor and report the appellant’s online behavior and sufficiently manage his risk to the public. Further, the Board fashioned a disposition with conditions that allowed the appellant, with authorization, to use the Internet and visit his parents’ home. The Board expressly recognized this was the start of a “slow and cautious” reintegration for the appellant. The Board carefully considered the evidence and made the acceptable and defensible decision that a custodial disposition was necessary.
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Grace Mtn. Land Company, Ltd. v. 1055249 B.C. Ltd.,
2024 BCCA 280
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2024/07/25
Court of Appeal
The appellant applies for leave to appeal an order made by an associate judge in foreclosure proceedings. The application engaged the jurisdiction of the Court to hear the appeal in light of s. 13(2) of the Court of Appeal Act, which came into force in July 2022. Pursuant to that section, an appeal may not be brought to the court (a) from a limited appeal order, unless leave to appeal is granted, or (b) from an order of an associate judge of the Supreme Court. The applicant argued that this must be interpreted to mean that where an associate judge makes a limited appeal order, it may be appealed to this court with leave. Held: application dismissed. The language in s. 13(2)(b) is plain, and precludes this appeal directly to the Court of Appeal. The appeal must be brought first to a judge of the Supreme Court of British Columbia.
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Jahnke v. 436537 B.C. Ltd.,
2024 BCCA 276
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2024/07/25
Court of Appeal
The appellant is a minority shareholder in a closely held family company. The respondent holds all of the preferred shares, which gives her majority voting control and the right to an annual dividend. The respondent runs the daily operations of the Company’s only asset, an apartment building, and causes the Company to pay her a salary. The appellant brought a proceeding under the Business Corporations Act, seeking an oppression remedy that would require the Company or the respondent to buy her shares. The judge found that the respondent’s failure to hold AGMs or obtain audited financial statements was oppressive conduct. At a second hearing to address remedy, the judge was advised that audited financial statements were being prepared but that the AGM had not been conducted professionally. The judge ordered that for the next three AGMS, the respondent could not be chairperson; an independent party would need to act as recording secretary; and the respondent would need to prepare a detailed annual report before each AGM. On appeal, the appellant challenges the remedy ordered, still seeking an order for purchase of her shares. She says the judge erred in excluding expert evidence that would support a finding that the respondent was over-paying herself management fees. Held: Appeal dismissed. The proposed expert evidence was inadmissible, although for other reasons than found by the judge. The remedy ordered was not disproportionate to the oppressive conduct found.
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McKinsey & Company, Inc. United States v. British Columbia,
2024 BCCA 277
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2024/07/25
Court of Appeal
The appellants appeal from a decision refusing to strike claims alleged against them, related to their role as consultants to pharmaceutical companies. They say as consultants, they were not in sufficient proximity to owe a duty of care to consumers of opioids, nor did they make misrepresentations, because any representations were made by their clients. Held: Appeal dismissed. The Amended Notice of Civil Claim alleges a very close relationship between the appellants and the pharmaceutical companies and that the appellants were responsible for designing the strategy that gave rise to the increased harmful spread of opioid use. The closeness of the relationship and the appellants’ role with its clients arguably could give rise to findings that the appellants are responsible for misrepresentations to consumers and could give rise to a duty of care, depending on the evidence and findings at trial. It is not plain and obvious at the pleadings stage that these claims cannot succeed.
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Sabok Sir v. Hill,
2024 BCCA 279
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2024/07/25
Court of Appeal
This appeal was referred to this division for summary determination under s. 21 of the Court of Appeal Act. The appeal is from the dismissal of an appeal from the order of a Provincial Court judge in a small claims trial. Held: The appeal is summarily dismissed. It is well-established that this Court has no jurisdiction to hear an appeal from the Supreme Court in a small claims proceeding.
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Zandbergen v. Craig,
2024 BCCA 278
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2024/07/25
Court of Appeal
The appellant applied to vary a support order on the grounds that the parties’ child is no longer a child of the marriage and because the quantum of spousal support paid has satisfied his support obligations. The judge declined to find a material change in circumstances based on the quantum of support paid but accepted that the parties’ child is no longer a child of the marriage. The judge terminated the appellant’s child support obligations and ordered that he continue to pay spousal support at the high end of the SSAG range for an indefinite duration. The appellant appeals, arguing that the judge erred by failing to recognize that the cumulative amount of support paid constitutes a material change in circumstances which justifies ending or reducing support, and further erred by fixing support at the high end of the SSAG range.
Held: Appeal dismissed. The judge did not err by rejecting the appellant’s allegation of a material change posed by the quantum of support paid. It was open to the judge to vary the order to provide for continuing support at the high end of the SSAG range.
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Posted Wednesday, July 24, 2024:
Takhar v. Insurance Corporation of British Columbia,
2024 BCCA 275
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2024/07/24
Court of Appeal
The trial judge dismissed the appellant’s action for damages for injuries alleged to have been caused by a motor vehicle accident on the basis that he had not made “all reasonable efforts” to identify the other driver, as required by s. 24(5) of the Insurance (Vehicle) Act. On appeal, the appellant argues that the judge made legal and factual errors in his analysis. Held: Appeal allowed, new trial ordered. The judge’s assessment of the reasonableness of the appellant’s conduct reflects palpable and overriding error. The judge ignored a substantial body of evidence that was relevant to the appellant’s position and condition at the time of the accident. The appropriate remedy is to remit the matter back to the Supreme Court for a new trial.
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Posted Tuesday, July 23, 2024:
Pousette v. Janssen,
2024 BCCA 274
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2024/07/23
Court of Appeal
After the Court issued reasons for judgment clarifying how child support arrears were to be assessed, the parties were able to agree on the amount payable. The appellant accepts that the respondent was the substantially successful party on the appeal. The respondent applies to the Court for an order that she receive increased costs, largely on the basis that she made an offer to settle prior to the hearing of the appeal that was more advantageous to the appellant than the result he ultimately obtained. The appellant opposes the application, contending that only ordinary costs should be payable. Held: Application for increased costs dismissed. Notwithstanding the settlement offer, an award of ordinary costs would not be unjust. The respondent is entitled to ordinary costs of the appeal. In light of the history of this matter, each party will bear their own costs of the application for increased costs.
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Trenchard v. Westsea Construction Ltd.,
2024 BCCA 273
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2024/07/23
Court of Appeal
The appellant appeals from the order of a case management judge striking portions of his further amended response to the respondent’s further amended petition. The appellant contends the judge erred in selecting and applying the correct legal test and in misapprehending his arguments. Held: Appeal dismissed. The judge was correct in applying the test articulated in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 in considering whether to strike the impugned pleadings. The pleadings in issue were struck pursuant to R. 9-5(1)(b) and (c) of the Supreme Court Civil Rules. The standard of review applicable to discretionary decisions made under those sub rules is deferential. The appellant has not shown that the judge gave insufficient weight to a relevant consideration, made a palpable and overriding error, or that the decision results in an injustice. Finally, the judge did not misapprehend the appellant’s arguments.
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Posted Monday, July 22, 2024:
R. v. Dick,
2024 BCCA 272
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2024/07/22
Court of Appeal
The appellant is Secwe̓pemc. She was convicted of one count of criminal contempt of court for breaching what has become known as the Trans Mountain Injunction. The sentencing judge sentenced her to 28 days’ imprisonment. Although the appellant has already served her sentence, she seeks leave to appeal it. If leave is granted, she advances two grounds of appeal. First, she argues a comment made by the judge at the sentencing hearing relating to “potential” burial sites discovered at the site of the former Kamloops Indian Residential School gave rise to a reasonable apprehension of bias. Second, she argues the judge failed to give proper effect to Gladue principles.
Held: Leave to appeal granted; appeal dismissed. As the length of Ms. Dick’s sentence is a matter of public importance, leave to appeal is granted and her appeal is not dismissed on grounds of mootness. In its full context, the judge’s comment about “potential” unmarked burial sites cannot be interpreted as indicative of apparent or actual intolerance, denial or bias. Further, the judge’s reasons demonstrate she took guidance from s. 718.2(e) of the Code and Gladue. Based on the record and subsequent binding authority of this Court, it was open to the judge to emphasize denunciation and deterrence, weigh the relevant sentencing factors as she did, and impose a sentence within the range identified by Ms. Dick herself.
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