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Posted Friday, February 7, 2025:
Abbotsford (City) v. Matsqui-Abbotsford Impact Society,
2025 BCCA 41
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2025/01/31
Court of Appeal
The applicant seeks to be added as a respondent to two “appeals” but before the necessary leave to appeal is granted. The City of Abbotsford, which is seeking leave to appeal, says she has no standing because there is no appeal until leave to appeal is granted. Held: Application adjourned to the hearing of the leave applications, at which time the applicant may seek standing. She may also file written argument in advance opposing the leave applications.
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Bennett v. The Oak Bay Police Department,
2025 BCCA 44
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2025/02/07
Court of Appeal
The appellant seeks an order for no fees to be payable, an extension of time to appeal and an order removing the appeal from the inactive list. HELD: Application for no fees payable granted; application to extend the time to appeal is dismissed.
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Dignard v. Dignard,
2025 BCCA 43
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2025/02/07
Court of Appeal
The appellant appeals the trial judge’s order for division of property arising out of a family law proceeding. She argues the trial judge erred because the division was based on a misapprehension of her submissions, or alternatively that he failed to properly apply the test for unequal division of property. She also submits that the judge erred in failing to deduct capital gains tax when valuing the respondent’s share of family property.
Held: Appeal allowed in part. The trial judge erred by ordering a division of property on the assumption that the appellant made a concession that she did not, in fact, make. He also erred in applying the test for unequal division of property, as he did not take into account whether the respondent would be disproportionately advantaged by an equal division. However, the trial judge did not err in deciding not to account for a capital gains tax liability on one of the family properties. It was open to him to conclude, based on the evidence, that the tax liability was too speculative.
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Moore v. Cheung,
2025 BCCA 39
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2025/02/07
Court of Appeal
The appellant tenant applies for a stay of an order of possession pending appeal of a judicial review of a Residential Tenancy Branch decision approving his eviction for causing significant risk to property. Held: the stay is granted. The appellant has shown some merit to the appeal, irreparable harm if he is evicted, and the balance of convenience favours staying the order of possession until the appeal is decided.
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Posted Wednesday, February 5, 2025:
InvestorCOM Inc. v. L’Anton,
2025 BCCA 40
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2025/01/27
Court of Appeal
The appellants are defending a proposed class action related to a data breach which exposed their customers to a loss of privacy. They appeal the dismissal of their application to strike the within claim as an abuse of process, prior to certification. Held: Appeal dismissed. The chambers judge did not err in refusing to strike the within claim, simply because there is a parallel action in Ontario by other plaintiffs which also seeks certification as a class action. Mere similarity of the claims proposed in the class action does not establish an abuse of process. The chambers judge understood there were legitimate reasons for Mr. L’Anton to choose to sue in BC. There were no facts to suggest that the action was brought or continued for an improper purpose. The question of what jurisdiction might be preferable, when there is a possibility of multiple class actions, would be addressed at the stage of the certification application pursuant to s. 4.1(1)(b) of the Class Proceedings Act, R.S.BC. 1996, c. 50.
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R. v. Khamvongsa,
2025 BCCA 33
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2025/02/05
Court of Appeal
The appellant was convicted of multiple drugs, firearms, and weapons offences. The Crown’s case depended on evidence seized from the appellant’s apartment pursuant to a warrant. The admissibility of this evidence was the primary issue at trial. The judge found the evidence was obtained in violation of s. 8 of the Charter because there were insufficient grounds for the search warrant, but admitted the evidence under s. 24(2). On appeal, the appellant challenged the s. 24(2) ruling. HELD: Appeal allowed, the s. 24(2) ruling is set aside, the convictions are quashed, and a new trial is ordered. The judge committed an error in principle in assessing the seriousness of the state misconduct under s. 24(2), which is an essential component of the admissibility analysis. The error was material and requires a new trial.
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Richmond (City) v. British Columbia (Utilities Commission),
2025 BCCA 38
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2025/01/31
Court of Appeal
FortisBC and BCHydro apply to be added as respondents to related appeals from a decision of the BC Utilities Commission. The appellants submit that they qualify as interveners but should not be respondents. Held: Application allowed. The applicants could be directly affected by the appeal, and were participants in the hearing with the same status as the appellants. They will provide positions that are adverse in interest to the appellants which will assist the Court hearing the appeal.
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Posted Tuesday, February 4, 2025:
Gibbs v. HSBC Global Asset Management (Canada) Limited,
2025 BCCA 31
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2025/02/04
Court of Appeal
The appellant appeals an order refusing to certify a class action. The proposed class action alleges the respondent investment managers represented to investors that mutual funds were actively managed when they were actually passively managed. The appellant claims investors were charged fees that were “unfair and unreasonable” for a passively managed fund. The certification application was addressed over three hearings. In the first certification hearing, the judge found that the pleadings disclosed four expressly pleaded causes of action (breach of trust, breach of fiduciary duty, prospectus misrepresentation, and unjust enrichment) as well as the tort of civil fraud, which the appellant had not pleaded. He adjourned the hearing to allow the appellant to file evidence supporting the primary common issue. Between the first and second hearings, the appellant amended the claim to address the judge’s conclusion that her claim included fraud. At the second hearing, the judge found that the amended pleading, having disclaimed fraud, no longer disclosed a cause of action. He adjourned again to allow the appellant to clarify the pleadings. At the third hearing, the judge dismissed the certification application. The judge found that the amended pleading was confounding and awarded costs against the appellant for the second hearing, despite the presumption against costs in class proceedings.
Held: Appeal allowed. All three versions of the appellant’s claim pleaded causes of action for breaches of fiduciary duty and trust, failure to comply with statutory disclosure obligations, and unjust enrichment. Fraud is not a requisite element of those causes of action. The appellant could have pleaded the tort of civil fraud but chose not to. Because the judge found in the first hearing that the appellant had satisfied the other requirements for certification, this court should certify the class action. The judge erred in awarding costs against the appellant because any deficiencies in the pleadings did not amount to exceptional circumstances justifying a departure from the presumption against costs in class proceedings.
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Mills v. O'Connor,
2025 BCCA 34
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2025/02/04
Court of Appeal
The parties appeal and cross appeal from the order of the trial judge awarding spousal support, child support, and division of property. They agree and submit that the trial judge made a factual error in failing to identify and apportion a substantial amount of family property available for division. The appellant contends that this resulted in reviewable error in that the judge should not have ordered division of his excluded property. The cross-appellant argues that the judge erred in her tracing analysis of the appellant’s excluded property, and that the payment to her should have been greater. The appellant also challenges the judge’s award for retroactive child support.
Held: The appeal and cross appeal allowed to the extent necessary to give effect to these reasons. The judge committed a reviewable error in finding there was no family property available for division. She also made a reviewable error in her tracing analysis resulting in a substantial overvaluation of the appellant’s excluded property. The judge’s approach followed a “first-in, first-out” approach to tracing the value of the excluded property through a series of substitute assets involving increases in the value of that excluded property. The proper approach under the Family Law Act, S.B.C. 2011 c. 25, should recognize that, by operation of the Act, the increase in value of the excluded property is family property intermingled with excluded property, and the exclusion must be traced as through an intermingling of funds on a pro rata basis. In light of these errors, this court varies the valuation of the appellant’s excluded property and makes an award for the division of the family property, which includes a reapportionment in the cross-appellant’s favour. Although the judge made a palpable error regarding retroactive child support, it was not overriding, and that award is not interfered with.
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Pickwell v. Rajwan,
2025 BCCA 32
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2025/02/04
Court of Appeal
The appellant seeks leave to resile from the position he took at trial regarding the proper quantum of damages for loss of future earning capacity in his personal injury claim. In the event that leave to resile is granted, the appellant intends to ask this Court to substitute a much higher award. Held: Leave to resile is not granted. Permitting the appellant to resile from his position at trial would not be in the interests of justice. The appellant’s trial counsel made a series of strategic decisions in arguing the question of damages. These decisions bind the appellant, who has demonstrated no exceptional circumstances warranting a departure from this general rule.
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R. v. Donovan,
2025 BCCA 30
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2025/02/04
Court of Appeal
The appellant was convicted of a number of drug and firearms offences in relation to drugs and firearms seized pursuant to a search warrant. At trial, the appellant brought a s. 8 Charter challenge to the search warrant, which was summarily dismissed by the trial judge. The appellant appeals his convictions on the basis he was deprived of a fair hearing due to the conduct of the pre-trial proceedings. He further claims the trial judge erred in summarily dismissing his Charter challenge, convicting him on three counts of unauthorized possession of a firearm in the absence of evidence, in failing to apply the Kienapple principle to certain of the firearms convictions, and in rendering inconsistent verdicts in relation to the drug trafficking convictions.
Held: Appeal dismissed. The appellant was not deprived of a fair hearing despite the inadvertent mislabeling of certain pre-trial procedures. The trial judge did not err in declining to order a voir dire on the Charter challenge as it was bound to fail. The appellant’s admission that he was subject to a firearms prohibition provided the requisite evidence that he possessed the firearms without authorization or licence. The Kienapple principle against multiple convictions does not apply in this case because the firearms offences in question are distinct. Further, there was no inconsistency in the drug trafficking and simple possession verdicts; it was not unreasonable for the trial judge to distinguish the drug convictions based primarily on the amount of each seized drug.
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R. v. M.K.A.,
2025 BCCA 28
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2025/02/04
Court of Appeal
The appellant appeals his conviction for sexual assault, alleging: (1) the trial judge misapprehended material evidence by relying on inadmissible text messages; and, (2) his trial was unfair and he suffered a miscarriage of justice because of the ineffective assistance provided by his trial counsel.
Held: Appeal dismissed. Reviewing the record as a whole, there is no indication the judge used the messages for any improper purpose, let alone that they played an ‘essential role’ in the reasoning process leading to the conviction. Regarding the ground alleging ineffective assistance of counsel, the appellant has failed to establish that any of the conduct alleged fell below a standard of reasonable professional judgment or that the conduct caused a miscarriage of justice, either by an unreliable verdict or by undermining trial fairness.
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Seylynn (North Shore) Phase II GP Ltd. v. Seylynn (North Shore) Properties Phase II Limited Partnership,
2025 BCCA 36
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2025/02/04
Court of Appeal
The parties entered into partnership agreements to develop two separate projects, Seylynn Village and Seylynn Gardens. Over several years, the general partner had withdrawn over $2 million, asserted to be its entitled management fee. The limited partners resolved to remove the general partner. After the removal of the general partner, the parties referred their dispute to arbitration to resolve the issue about the proper interpretation of the management fee provision in the partnership agreement. The Tribunal interpreted the provision such that the general partner was required to return the money it had withdrawn. The general partner seeks leave to appeal the arbitrator’s award.
Held: Application for leave to appeal dismissed. The application for leave to appeal from the arbitration award fails to demonstrate an extricable question of law.
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