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Posted Friday, May 27, 2022:
Coquitlam (City) v. British Columbia (Assessor of Area #10 - North Fraser Region),
2022 BCCA 183
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2022/05/27
Court of Appeal
The assessor appeals from an order of the British Columbia Supreme Court on a stated case appeal. The stated case poses two questions relating to the provision in the Community Charter exempting land “vested in or held by” municipalities from taxation. At the tax assessment date, the respondent municipality had a registered interest in certain property pursuant to an Agreement for Sale of property, legal title to which was in the name of the respondent corporation. The municipality contends both its interest and the corporation’s interest were tax exempt. The Property Assessment Appeal Board found that the municipality’s interest was not exempt and therefore it did not need to address the corporation’s interest. On appeal to the Supreme Court, the judge held that the statutory exemption applied to the municipality’s interest, and that the corporation’s interest was tax exempt because the municipal exemption applied to the physical property, leaving nothing in the hands of the corporation to be taxed. Held: Appeal allowed. On the first question of the stated case, the answer was correct: the interest created by the Agreement for Sale was “vested in or held by” the municipality within the meaning of the statute, and therefore the exemption applied to the municipal interest. On the second question of the stated case, the answer was not correct: the statutory provision speaks to interests in land, not merely the physical parcel. Case law arising in the Crown exemption context establishes that the existence of an exempt interest does not serve to provide parallel exemptions to other interest holders, with the result that the corporation’s interest cannot gain the exemption through piggybacking onto the municipal exemption.
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Forrest v. Aerin,
2022 BCCA 184
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2022/05/27
Court of Appeal
A Husband appeals a spousal support award and a finding that a son, S., is no longer a child of the marriage for child support purposes. The Husband submits the chambers judge erred (1) by not determining spousal support de novo and considering all of the objectives and factors set out in the Divorce Act, the Family Law Act and the Spousal Support Advisory Guidelines with respect to a spousal support claim; and (2) in terminating child support for S. by failing to consider all relevant factors impacting that determination.
Held: Appeal allowed in part. First, the chambers erred in not determining the spousal award de novo as the foundation for the original spousal support order was flawed. Given this Court has the evidence available to it to make a spousal award determination, upon application of the Spousal Support Advisory Guidelines, no additional spousal support is payable by the Husband. Second, the chambers judge correctly determined that S. is no longer a child of the marriage.
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Freeland v. Farrell,
2022 BCCA 187
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2022/05/27
Court of Appeal
The appellant was partially successful on her appeal and seeks costs of the appeal. Held: The respondent was substantially successful and is awarded costs of the appeal.
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Kringhaug v. Men,
2022 BCCA 186
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2022/05/27
Court of Appeal
The appellant challenges a loss of future earning capacity award on the basis that the judge made evidentiary errors, failed to analyze relevant contingencies, failed to consider the reasonableness of the award and gave insufficient reasons. Held: Appeal dismissed. The judge followed the correct analytical framework for assessing the respondent’s loss of future earning capacity claim. There was evidence to support the judge’s finding that there was a real and substantial possibility of an actual future loss of income. Moreover, the judge did not misapprehend the respondent’s evidence concerning her pre-accident billable hours. While the judge’s reasons were somewhat sparse, when read functionally, contextually and in light of the record as a whole, they were sufficient for appellate review and demonstrate that contingencies and the overall reasonableness of the award were considered by the judge. The judge’s award was not inordinately high.
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Luminary Holding Corp. v. Fyfe,
2022 BCCA 185
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2022/05/27
Court of Appeal
The appellant, Todd Fyfe, was the listing agent for a 160-acre property in Fernie. A portion of the property was in the Agricultural Land Reserve. The respondent, Kevin Dunn, was a prospective purchaser. Over the course of three to four months, Mr. Fyfe and Mr. Dunn communicated about the property. Ultimately, Mr. Dunn purchased it. Mr. Fyfe knew, well before the closing date, that an ongoing boundary review would result in the remainder of the property moving into the ALR unless the landowner opted out. He did not tell Mr. Dunn about this fact. After the purchase, Mr. Dunn learned that the entirety of the property was in the ALR. As a result, his plans for developing the property had to change and construction was delayed. Mr. Fyfe and the other appellants were found liable in negligence for failing to disclose the boundary review and the entitlement to opt out. Mr. Fyfe appeals the judge’s finding of an implied agency and breach of duties owed to Mr. Dunn. He also alleges error in the assessment of damages.
HELD: Appeal allowed, in part. The liability findings were open to the judge on the evidence. That aspect of the appeal is dismissed. However, the appeal from the damages award for lost business profits is allowed and the amount reduced.
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R. v. Hopkins,
2022 BCCA 182
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2022/05/20
Court of Appeal
The appellant pleaded guilty to offences including driving while prohibited and possession of stolen property valued in excess of $5,000. The appellant and the Crown jointly recommended a sentence for the driving offences, and agreed on an 18-month to two years less a day range for the stolen property offence. The appellant sought a conditional sentence order but the judge instead imposed a custodial sentence of two years less a day. The appellant seeks leave to extend the time to appeal his sentence and, if granted, seeks to appeal his sentence on the basis that the judge erred in not imposing a custodial sentence of 18 months or, alternatively, that the custodial sentence of two years less a day was unfit. He submits that the judge overemphasized his prior criminal record, ignored relevant mitigating factors including his traumatic upbringing and early guilty plea, and did not properly consider his medical condition.
Held: Extension of time to appeal granted; appeal dismissed. It was implicit that the judge had taken into account the guilty plea as that was the basis upon which counsel agreed to the sentencing range. Great deference is owed to the decisions of sentencing judges; no error in principle was committed and the sentence was not demonstrably unfit.
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The Owners, Strata Plan VR 1120 v. Civil Resolution Tribunal,
2022 BCCA 189
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2022/05/27
Court of Appeal
The chambers judge concluded the petitioner had raised new jurisdictional issues on judicial review that warranted determination by the tribunal. He remitted the matter to the tribunal to provide reasons on the new issues. The tribunal appealed. Held: Appeal allowed. The judge made palpable and overriding errors of fact in characterizing issues as new when they had already been decided by the tribunal. The judge also erred in the exercise of discretion in remitting the only truly new issue raised back to the tribunal rather than deciding it himself.
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Posted Thursday, May 26, 2022:
Arora v. Canadian National Railway,
2022 BCCA 188
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2022/05/12
Court of Appeal
The appellant seeks to overturn an order dismissing his petition for judicial review of an arbitrator’s decisions in the employment context. The petition was dismissed on the ground that the appellant had no standing to seek judicial review independent of his union and, as a result, the Supreme Court did not have jurisdiction to hear the matter. Held: Appeal dismissed. To establish standing, the appellant had to show that the complaints he sought to advance in the petition engaged an exception to the general rule that a unionized employee who was not a party to an arbitration cannot seek judicial review of the outcome independently of their bargaining agent. The chambers judge correctly found that the appellant did not meet that test.
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Ford v. Lin,
2022 BCCA 179
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2022/05/26
Court of Appeal
At a 2021 trial with respect to a motor vehicle accident that occurred in 2016, the trial judge found that the appellant’s injuries had substantially resolved in 2017 and awarded damages on that basis. The appellant seeks a new trial. She contends, in general terms, that the judge erred by: (a) prohibiting her during direct examination from eliciting certain evidence from two treating clinicians whom she called as both expert and fact witnesses; (b) failing to excuse a witness from the courtroom while dealing with an objection to that witness’s evidence; (c) failing to properly analyze the evidence and (d) misapplying the “crumbling skull” rule. In response to the first alleged error, the respondent submits a party cannot call a witness to give both expert opinion and fact evidence.
Held: Appeal dismissed. A party can call a witness to give both opinion and fact evidence, but must comply with the Supreme Court Civil Rules applicable to each type of evidence. If a party tenders an expert report in evidence, then they cannot call the expert as a fact witness respecting matters addressed in that report. The trial judge was correct to confine the scope of the treating clinicians’ direct examination to what was necessary to clarify each report’s terminology or make it more understandable. The judge was also correct in not permitting the clinicians to testify in direct examination to subjective complaints the appellant made after the date of their reports. Regarding the other grounds of appeal: (a) whether to excuse a witness is within the trial management power of judges and the witness being present did not affect the appellant’s ability to present her case; (b) the judge did not err in considering the evidence; and (c) the judge did not misapply the crumbling skull rule.
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Posted Wednesday, May 25, 2022:
R. v. Labbee,
2022 BCCA 168
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2022/05/04
Court of Appeal
The appellant was convicted of failing to stop at the scene of an accident, and sentenced to two years less a day. She appeals the sentence as unfit, contending the judge erred by treating her disbelieved testimony at trial as an aggravating factor, and by giving insufficient weight to her health issues. Held: Appeal dismissed. The judge did not rely on the appellant’s misleading testimony at trial as aggravating, but rather the appellant’s elaborately concocted alibi which she maintained for years prior to trial, even fabricating letters from alleged witnesses in an attempt to obstruct the police investigation and evade liability. On the second ground, the appellant did not provided independent evidence of her medical conditions, and in any event the judge expressly considered the appellant’s health, reducing the sentence she would otherwise have found to be fit.
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Posted Tuesday, May 24, 2022:
Hoggan v. Silvey,
2022 BCCA 176
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2022/05/24
Court of Appeal
Appeal from a chambers judge’s refusal to remove an executor of an estate and denial of leave to bring an action. Held: Appeal allowed in part, leave granted to bring action. The appellants are daughters (and beneficiaries) of the deceased, and seek to bring an action against their sister (the third beneficiary) and brother-in-law (the estate administrator). Cheques for substantial amounts had been made from the deceased to the respondents prior to the deceased’s death when the respondents had some control over the deceased’s finances. The judge erred in finding that there was no arguable case. The application for leave under section 151(3) of the Wills, Estates and Succession Act does not always require that the proposed action be in the best interests of the estate. Leave may also be granted if the action is necessary or expedient to protect the interests of a specified person, as the language in section 151(3)(b) is disjunctive.
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R. v. Davies,
2022 BCCA 172
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2022/05/24
Court of Appeal
The appellant challenges his conviction for sexual assault. The appellant argues the trial judge erred in finding a critical witness was unbiased and seeks to adduce fresh evidence in support of this ground of appeal. The Crown seeks to adduce fresh evidence in response. The appellant also argues the judge misapprehended evidence in concluding Crown witnesses had no motive to lie or fabricate evidence, improperly relied on the complainant’s emotional state to bolster her credibility, erroneously narrowed the complainant’s cross-examination, mischaracterized the severity of inconsistences in the complainant’s evidence, erroneously applied more rigorous scrutiny to the appellant’s evidence than to that of Crown witnesses, and improperly considered post-offence conduct as evidence of a guilty conscience.
Held: Appeal dismissed, applications dismissed. Fresh evidence is admitted on appeal in exceptional circumstances only. Here, the evidence was available at trial and the appellant made a tactical decision not to adduce it. The appellant failed to demonstrate due diligence and the fresh evidence lacks the required level of heightened cogency for admission. The Crown’s responsive application to adduce fresh evidence is dismissed. On the merits of the appeal, the appellant failed to demonstrate any legal error or palpable and overriding error of fact. The judge’s credibility assessments were balanced, thorough and rooted in evidence, not based on stereotypes.
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R. v. Tayo Tompouba,
2022 BCCA 177
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2022/05/24
Court of Appeal
Appeal from conviction for sexual assault. Held: Appeal dismissed. The appellant, a native French-speaker who also spoke English, appealed his conviction on the basis that he was not informed of his s. 530 language rights in accordance with s. 530(3) of the Criminal Code. The substantive language right under s. 530 is the right to be tried in the accused’s official language of choice. The appellant raised his language rights for the first time on appeal but did not establish that the provincial court judicial officers’ failure to inform him of his right to be tried in French in accordance with s. 530(3) prejudiced his substantive language rights. The trial judge was not obligated to inquire into the appellant’s language of choice of his own motion, given the overall context which included the appellant’s proficiency in English. The appellant also alleged two errors on the admission of hearsay statements and prior consistent statements, neither of which were made out.
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