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Posted Wednesday, November 29, 2023:
R. v. Lucier,
2023 BCCA 426
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2023/11/15
Court of Appeal
The application for leave to appeal is from a summary conviction appeal order dismissing Mr. Lucier’s appeal of a conviction by a Provincial Court Judge on a violation ticket. The ticket was issued under s. 4(1) of the Emergency Program Act, R.S.B.C. 1996, c. 111, for breach of the Gathering and Events Order issued by the Provincial Health Officer in response to the COVID 19 pandemic. Mr. Lucier contends that Gathering and Events Order is unconstitutional as infringing on rights under the Canadian Charter of Rights and Freedoms. Held: Application dismissed. The same Gathering and Events Order has been found by this court not to be unconstitutional in Beaudoin v. British Columbia (Attorney General), 2022 BCCA 427. On the basis of stare decisis both the Provincial Court and summary conviction appeal court were bound by Beaudoin. A party is not entitled to relitigate an issue decided by a higher court absent a basis to conclude that there has been a fundamental shift in the parameters of the legal debate: R. v. Comeau, 2018 SCC 15; Canada (Attorney General) v. Bedford, 2013 SCC 72.
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Webb v. Genaille,
2023 BCCA 443
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2023/11/24
Court of Appeal
The trial judge found that the appellants, the Chief and two councillors of a band, breached fiduciary obligations to the band in their handling of its finances. The judge’s findings are not challenged on the appeal, but the appellants say that she erred in finding that the appellants owed fiduciary duties to the band, and also erred in allowing the respondent band members to sue on behalf of the band. They also challenge the award of punitive damages. Held: Appeal dismissed. Band councillors owe fiduciary duties to their bands. The standing issue is not straightforward, but it was not raised in a timely manner and should not be allowed to be pursued at this late stage of the litigation. The award of punitive damages was moderate and in accordance with legal precedent. The amounts awarded were within the discretion of the trial judge.
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Posted Tuesday, November 28, 2023:
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.,
2023 BCCA 436
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2023/11/28
Court of Appeal
The appellant entered into a contract with the respondents for the construction of a townhome project. The parties got into a dispute about the work, and the respondents terminated the contract. The appellant filed a claim of lien against the land. The respondents applied to cancel the lien. The appellant appeals the order of the Chambers Judge dismissing the respondents’ application to cancel the lien but reducing the lien security from just over $3 million to $500,000. The respondents cross appeal, taking the position that the Chambers Judge erred in failing to cancel the lien or reduce the lien security to a nominal amount.
Held: Appeal dismissed, cross appeal allowed. The appellant put forward no evidence to explain the basis of its excessive lien claim. The lien claim was an abuse of process pursuant to s. 25(2)(b) of the Builders Lien Act and should be cancelled.
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Popoff v. Popoff,
2023 BCCA 439
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2023/10/27
Court of Appeal
Chambers judge below erred in striking pleadings under Rule 9 5.
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Posted Monday, November 27, 2023:
Brar v. British Columbia (Securities Commission),
2023 BCCA 432
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2023/11/27
Court of Appeal
Petitioners were issued summonses to attend as witnesses in an investigation into various third parties pursuant to the Securities Act. Petitioners repeatedly refused to attend and Securities Commission commenced contempt proceedings. Prior to contempt proceedings, Petitioners filed a petition for judicial review of summonses objecting that they required more information than what they had received concerning the investigation. Chambers judge struck the petition on the basis that it was barred by a privative clause, s. 170 of the Securities Act. Alternatively, judge held that, in any event, any duty of procedural fairness owed to the Petitioners was “minimal” and had been discharged in the circumstances.
Held: Appeal dismissed. The weight of authority suggests that privative clauses are not a complete bar to judicial review on grounds of procedural fairness. Chambers judge therefore erred in finding that s. 170 barred the petition for judicial review. In light of that error, the CA engages the judicial review by ‘stepping into the shoes’ of the Court below. The summonses issued in this case represented a preliminary stage in the Commission’s process that did not decide or prescribe rights, powers, privileges, immunities, duties or liabilities of the Appellants. To require the Commission to produce a record of the basis for issuance of the summonses at a preliminary stage would compromise the investigative process. The duty of fairness owed to the Appellants was minimal, and had been met in this case.
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Dick v. Vancouver City Savings Credit Union,
2023 BCCA 435
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2023/11/17
Court of Appeal
The applicant is subject to vexatious litigant orders in both the Supreme Court and Court of Appeal for British Columbia, which require him, and his companies, to apply for leave to commence a proceeding in both courts. The applicant applied to the Supreme Court for leave to make an application to set aside two court orders made approximately 25 years ago and to bring a claim against his then-lawyer. His application was dismissed. The applicant now applies for leave in this Court to appeal that dismissal. Held: Application dismissed. In the context of a leave application brought as a result of a vexatious litigant order, the usual test for leave to appeal applies, but the primary factor is the merit of the appeal. The issues the applicant seeks to raise have been repeatedly determined in earlier proceedings. The appeal has no prospect of success and is entirely without merit.
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Dr. C.A. Whittington Inc. v. The Owners, Strata Plan VR 2027,
2023 BCCA 437
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2023/11/23
Court of Appeal
The appellant seeks to vary the orders of a single justice sitting in chambers: (1) dismissing its application for an extension of time to file and serve the Appeal Record and various transcripts; and (2) dismissing its appeal as abandoned. Held: Application dismissed. The chambers judge identified and applied the correct legal test for granting an extension. The appellant has not identified any error in the substance of the chambers judge’s analysis. There is therefore no basis on which to set aside or vary the orders.
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Posted Friday, November 24, 2023:
Ashraf v. Jazz Aviation LP,
2023 BCCA 434
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2023/11/16
Court of Appeal
The respondents applied to have the appeal dismissed as abandoned as the appellant failed to pay security for costs in the appeal pursuant to a previous court order. The appellant sought to vary the order to decrease the amount of the costs ordered. Held: Application allowed. It is in the interests of justice to dismiss the appeal as abandoned, given that the appellant has not complied, or taken any steps to comply, with the order to pay security for costs and his appeal is without merit. The appellant did not pursue the proper avenues to have the order to pay security for costs reviewed or stayed. The appellant also did not assert a legal basis, namely, any particular material changes in circumstances, to vary the order to pay security for costs. The appeal being without merit further supports the original security for costs order.
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C.C. v. S.P.R.,
2023 BCCA 422
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2023/11/24
Court of Appeal
The parties are former spouses and the parents of a seven-year-old boy. The appellant mother appeals the trial judge’s dismissal of her application to relocate with the child from Vancouver to Kamloops. The respondent father cross-appeals orders upholding a prenuptial agreement and denying him spousal support, and applies to adduce new evidence in support of his cross-appeal.
Held: Appeal largely dismissed and cross-appeal dismissed. The judge did not err in assessing the mother’s relocation application without considering all four custodial scenarios in accordance with S.S.L. v. J.W.W., 2010 BCCA 55. That analysis is no longer required under the 2019 Divorce Act amendments which govern relocation. The remaining grounds of appeal amount to challenges to the judge’s findings of fact which were open to him on the evidence. The judge’s order giving the father the right to determine where S goes to school is set aside, as neither party sought that relief at trial. Regarding the father’s cross-appeal, the judge did not err in denying him spousal support or upholding the prenuptial agreement. The application to adduce new evidence is denied because the evidence would not have altered the outcome of the proceeding below, and this type of evidence in family matters is better dealt with on a variation application rather than as new evidence on appeal.
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Neale Engineering Ltd. v. Ross Land Mushroom Farm Ltd.,
2023 BCCA 429
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2023/11/24
Court of Appeal
This is an appeal from an order granting leave to the respondent, Ferro Building Systems Ltd., to file and serve a third party notice against Neale Engineering Ltd. claiming contribution and indemnity. Neale Engineering opposed the application before the chambers judge on the basis that the limitation period for bringing a third party claim had expired. The chambers judge, considering herself bound by the decision of this Court in Sohal v. Lezama, 2021 BCCA 40, concluded that the time for bringing a claim for contribution and indemnity had not begun to run because the plaintiff had not served a pleading alleging fault on the part of two or more persons. On appeal, Neale Engineering contends that the relevant passage of Sohal relied upon by the chambers judge is obiter. Alternatively, it says Sohal was wrongly decided. Held: Appeal allowed. The relevant passage of Sohal, which suggests that a claim for contribution or indemnity is only “discovered” under s. 16(a) of the Limitation Act when a plaintiff serves a pleading alleging damage caused by the fault of two or more persons, is obiter. A claim for contribution or indemnity is “discovered” under s. 16(a) of the Limitation Act on the date of service upon the claimant of a pleading which could, if the cause of action is proven, result in a defendant paying more than its share of damages. This interpretation of the provision accords with its remedial purpose and with common sense. When s. 16 of the Limitation Act is properly applied, the chambers judge’s unchallenged conclusions are dispositive of the appeal. The proposed third party proceedings against Neale Engineering are statute barred.
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R. v. Olson,
2023 BCCA 430
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2023/11/24
Court of Appeal
In this sentence appeal, the appellant asserts that the sentencing judge failed to properly apply Gladue principles and the totality principle. The appellant also contends that the judge erred in imposing consecutive rather than concurrent sentences for certain offences. Held: Leave to appeal is granted; appeal is dismissed. The judge considered both the Gladue principles and the totality principle. It was also open to the judge to order consecutive sentences in these circumstances.
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Vesuna v. Stillwater Waterworks District,
2023 BCCA 431
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2023/11/21
Court of Appeal
The appellant appeals an order for substituted service that was made ex parte and ad hoc. The parties agree that the appeal should be allowed by consent, with agreed fixed costs to the appellant. Held: Appeal allowed. The parties’ consent to the appeal being allowed raises no concerns respecting the administration of justice.
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Walker v. Kierans,
2023 BCCA 433
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2023/11/15
Court of Appeal
The applicant sought an order that her brother be examined by two physicians in order to obtain evidence that established his incapacity. The applicant and her sister both brought petitions seeking committeeship of their brother. The applicant appealed the judge’s order dismissing her petition and granting her sister committeeship. In bringing her application, the applicant sought to obtain “affidavits of incapacity” for use at the appeal hearing. Held: Application dismissed. The applicant significantly misapprehended the judge’s reasons. The issue of whether the applicant’s brother is incapable of managing himself and his affairs was never an issue before the judge. The judge decided the competing petitions on the basis that he found the applicant’s sister to be best suited to be committee. The application is also unrelated to any of the alleged errors the applicant is seeking to argue on appeal. During the hearing of the petitions, the applicant also expressly declined to ask the judge for the same order she now seeks. It was open to the judge to rely on the two medical affidavits he had already been provided with and there was no dispute with the conclusions expressed in those affidavits.
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Posted Thursday, November 23, 2023:
Dietterle v. Vanguard Mortgage Investment Corporation,
2023 BCCA 425
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2023/11/23
Court of Appeal
The appellant appealed a summary judgment concluding that a mortgage loan was not unconscionable and awarding special costs of the proceeding against him. Held: Appeal on the merits dismissed; special costs order varied. The appellant failed to identify any errors of law or palpable and overriding errors of fact warranting appellate intervention. The court concluded, however, that some adjustment to the costs award was required to address an aspect of the judge’s exercise of discretion that was founded on an error in principle.
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