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Posted Friday, November 27, 2020:
British Columbia (Securities Commission) v. Liu,
2020 BCCA 338
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2020/11/05
Court of Appeal
The applicant seeks leave to appeal a decision of the British Columbia Securities Commission dismissing the applicant’s application to set aside or vary freeze orders issued against the applicant’s real and personal property. On appeal, the applicant would argue that the Commission erred in law in (1) maintaining the freeze orders in the absence of evidence and (2) failing to correctly apply the test to revoke or vary a freeze order. The applicant also applied for a sealing order and to hear the CA46957 and CA46958 appeals together. Held: The appeals will be heard together, the uncontested application for a sealing order is granted, and the application for leave to appeal is granted. The issues in the appeal have significance to the parties and to the practice, and the appeal has merit despite the high degree of deference afforded to the Commission. It is in the interests of justice to grant leave to appeal.
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Coffey v. Sabbaghan,
2020 BCCA 335
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2020/11/27
Court of Appeal
The parties’ vehicles collided when the appellant attempted a left turn at a controlled intersection as the respondent attempted to drive through the intersection. The appellant’s claim for damages was dismissed on the basis that the appellant had failed to yield the right-of-way to the respondent, contrary to s. 174 of the Motor Vehicle Act. The appellant appeals and argues that fault should have been found 100% against the respondent. Held: Appeal allowed. The trial judge did not err in concluding that the appellant was at fault in making an unsafe turn, but did err in failing to conclude that the respondent was also at fault. The relative fault of the parties was not significantly different. Liability should be apportioned 50% to each party.
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Ganapathi v. The Law Society of British Columbia,
2020 BCCA 340
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2020/11/06
Court of Appeal
The applicant applies for a stay of disciplinary proceedings of the Law Society of British Columbia pending the outcome of the applicant’s appeal. The applicant also seeks a sealing order for the appeal. The applicant argues that a stay should be granted on the grounds that: (1) the appeal from the finding of the applicant’s professional misconduct has merit; (2) having the disciplinary hearing proceed prior to the appeal would cause the applicant irreparable harm; and (3) the balance of convenience favours the applicant. Held: the application for a stay of proceedings is dismissed and the application for a sealing order is granted. While the appeal has some merit, the applicant failed to demonstrate irreparable harm. Public confidence in the legal profession tilts the balance of convenience in favour of the respondent. The appeal contains sensitive and privileged information, and the application for a sealing order is uncontested.
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Hammond v. Hammond,
2020 BCCA 314
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2020/10/29
Court of Appeal
The applicant seeks leave to appeal an order dismissing an application to vary the original consent order, which allows for shared custody of the child of the marriage. The applicant raises seven grounds of appeal, arguing that the chambers judge erred in fact and law in dismissing the variation application. A preliminary issue was whether the order could be appealed as of right, or whether the applicant required leave to appeal. Held: Leave to appeal is required and the application for leave to appeal is dismissed. The order at issue is an interim order concerning the best interests of the child, which attracts significant deference on appeal. The facts of this case do not rise to the level of ‘extreme’ or ‘exceptional’ such that would warrant granting leave to appeal the order.
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Howdle v. Mission Medium Institution (Warden),
2020 BCCA 334
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2020/11/27
Court of Appeal
The appellant, a federal inmate at Mission Institution, appeals from the dismissal of his application for habeas corpus with certiorari in aid. The appellant challenged decisions made by Correctional Service Canada to transfer him on an immediate involuntary basis from a minimum security unit to a medium security unit within the same institution, and to subsequently reclassify him as a medium security offender. Held: Appeal dismissed. The chambers judge did not err in finding that the decisions of corrections staff to reclassify the appellant and transfer him to medium security were reasonable and procedurally fair. The decisions were well founded, in compliance with the relevant regulations and directives, and the appellant was provided all the information necessary to meet the case against him and afforded an opportunity to rebut it.
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Hydro Aluminium Rolled Products GMBh v. MFC Bancorp Ltd.,
2020 BCCA 295
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2020/10/28
Court of Appeal
The parties entered into a guarantee which provided that any disputes would be referred to courts in Germany or, at the appellant’s option, any place where the respondent held an office. Immediately after signing the guarantee, respondent corporation moved its registration to the Cayman Islands. Appellant sued on the guarantee in BC, relying on the forum selection clause and the respondents’ ongoing presence in a Vancouver office as well as the connection between BC and the guarantee. Respondents applied to dismiss on the basis that BC lacked jurisdiction over the dispute, and in any event Germany was the more appropriate forum because the appellant’s witnesses were located there and German law applied. Chambers judge granted the application and dismissed the claim, finding the forum selection clause did not apply because the appellant had not pleaded respondents had an office in Vancouver, and finding in the alternative that Germany was the more appropriate forum.
Held: Appeal allowed. Judge erred in concluding that BC lacked territorial competence as the appellant met the low threshold of an arguable case that respondents continued to have an office in BC and an arguable case guarantee breached here. Judge erred by declining jurisdiction on the basis that it would be more convenient for the appellant to litigate in Germany. Plaintiffs are generally entitled to their choice of forum even if proceedings would be more convenient for them in another jurisdiction, subject to defendant’s competing interests. Here, the defendants had not established Germany was more convenient for them.
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R. v. McKibbin,
2020 BCCA 337
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2020/11/18
Court of Appeal
The appellant pleaded guilty to one count of trafficking in a controlled substance and was sentenced to six months’ imprisonment. The appellant suffers from a respiratory health condition and challenges his sentence on the basis that the sentencing judge erred: in finding the appellant’s health issues were not an exceptional circumstance; in failing to consider a departure from a normal sentence range; and in placing insufficient weight on the mitigating factors of the appellant’s case, including the appellant’s health issues. The appellant seeks to adduce fresh evidence with respect to his particular susceptibility to COVID-19 if incarcerated during the COVID-19 global pandemic. Held: Fresh evidence is admitted, and the appeal allowed. The sentence imposed by the sentencing judge was without error, but the COVID-19 pandemic, coupled with the context of the appellant’s serious respiratory illness has rendered the appellant’s circumstances exceptional and warrants appellate intervention. The six months’ imprisonment is suspended and the appellant is placed on probation with strict terms for the remainder of his sentence.
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Stein v. British Columbia (Workers' Compensation Appeal Tribunal),
2020 BCCA 327
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2020/11/10
Court of Appeal
This is an appeal of an order dismissing an application to find the respondents in contempt of court for failing to comply with a document production order. Held: Appeal dismissed: The appellant is unable to identify any error in principle or palpable and overriding error of fact in the judge’s decision. He did not err in his award of costs. The Court awards lump sum costs to the respondents fixed in an amount of $1,000.
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The Parent obo the Child v. The School District,
2020 BCCA 333
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2020/11/27
Court of Appeal
The respondent’s complaint to the Human Rights Tribunal alleging discriminatory conduct by the School District was dismissed because it was filed outside the time limit in the Human Rights Code. The respondent’s application for judicial review was allowed. The chambers judge found that the decision of the Tribunal turned on an extricable legal error regarding the evidence required to assert erroneous legal advice as a reason for filing delay. She concluded that the Tribunal’s decision was patently unreasonable. On appeal, the School District argues the chambers judge erred in finding an extricable legal error and by failing to afford sufficient deference to the Tribunal’s decision. Held: Appeal dismissed. The judge identified the correct standard of review and the appellant is unable to show that she applied that standard incorrectly. The Tribunal member applied the wrong legal test for sufficiency of evidence about erroneous legal advice. The judge correctly found that the Tribunal’s exercise of discretion was arbitrary as defined in s. 59(4) of the Administrative Tribunals Act.
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Posted Thursday, November 26, 2020:
R. v. Mero,
2020 BCCA 331
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2020/11/26
Court of Appeal
The appellant challenges his conviction for possession of heroin for the purpose of trafficking and possession of a loaded restricted firearm. Held: Appeal dismissed. The judge did not err by: a) finding that the search warrant for the appellant’s residence was properly issued; b) reversing the burden of proof and misapprehending evidence; c) admitting and relying on the KGB statement of a Crown witness; and d) not excluding evidence discovered as a result of the search warrant under s. 24(2) of the Charter. The judge’s finding that the search warrant was properly issued was reasonable and supported by the evidence. Accordingly, there was no basis to exclude the fruits of the search under s. 24(2). He was alive to the guidance set out in R. v. W.(D.) and did not reverse the burden of proof or misapprehend evidence. Any use he made of the KGB statement of a Crown witness was permissible.
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Tiamzon v. Vandt,
2020 BCCA 336
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2020/11/20
Court of Appeal
The appeal is from the dismissal of an application to set aside a default judgment and ordering payment out of court of monies paid into court, on account of the action. The monies were paid into court by consent to obtain cancellation of a Certificate of Pending Litigation. Held: Appeal allowed and default judgment set aside. As a matter of right the appellant is entitled to have the default judgment set aside because the criteria for a default judgment were not satisfied. First, the claim alleges a promissory note, the advancement of other funds, and entitlement to a beneficial interest in property in the statement of facts, seeks damages as a remedy, and asserts a legal claim based only on a constructive trust. These pleadings do not cohere; one cannot say the claim is for recovery of money in a specified or ascertainable amount. Second, the condition pleaded for payment under the document referred to as a promissory note was, on the court record, not met at the time default judgment issued. Third, by the document’s terms pleaded, the document is not a promissory note.
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Posted Wednesday, November 25, 2020:
Gill v. Khural,
2020 BCCA 332
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2020/11/20
Court of Appeal
A fire on the appellant’s property spread and caused damage to the respondent’s property. The parties subsequently entered a contract in which the respondent would withdraw their insurance claim in exchange for direct payment for damages from the appellant. The appellant ceased payments after receiving legal advice that a potential claim against them by the insurance company had been unlikely to succeed. The respondent sued for breach of contract, and the summary trial judge found the appellant liable. The appellant challenges the judge’s finding that there was valid consideration and that the contract was enforceable.
Held: Appeal dismissed. Forbearance to sue constitutes valid consideration even if the potential claim was unlikely to succeed. The trial judge did not err in finding that the contract was enforceable, as the appellant received the benefit he sought of negating the risk of a claim by the insurance company.
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Posted Tuesday, November 24, 2020:
Kindylides v. Does,
2020 BCCA 330
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2020/11/24
Court of Appeal
The appellant brought a Notice of Civil Claim against unnamed members of the RCMP, the Attorney General of Canada and the Minister of Justice of the Province of British Columbia alleging, among other things, personal injury, battery and intentional infliction of emotional suffering. Her claim was struck pursuant to Rule 9 5(1)(a) of the Supreme Court Civil Rules for failing to disclose a reasonable claim. The judge declined to grant the appellant leave to amend her claim. She appeals. Held: Appeal dismissed. The appellant’s Notice of Civil Claim failed to plead the material facts necessary to support a cause of action and was properly struck. The judge did not err in concluding that the claim was incapable of amendment.
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L.T. v. D.T. Estate,
2020 BCCA 328
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2020/11/24
Court of Appeal
Appeal of an order dismissing an application to permit the use of a deceased donor’s reproductive material to produce an embryo even though the donor’s consent to that use had not been provided in conformity with the governing legislation. Held: Appeal dismissed. Parliament has enacted a criminal prohibition on the posthumous use of a donor’s reproductive material unless the donor had given prior, informed, written consent to its removal and use for that purpose. The donor had not given his consent in the required form. The Court must give effect to Parliament’s clearly expressed intent.
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Posted Monday, November 23, 2020:
R. v. Chen,
2020 BCCA 329
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2020/11/16
Court of Appeal
The appellant challenges her conviction for sexual assault and sexual touching of a minor, S.H. At trial, the appellant did not deny this sexual incident occurred, but asserted S.H. had assaulted her. She flatly denied that a second alleged sexual incident occurred, and was acquitted on counts related to that incident. On appeal, she argues that the jury charge invited the jury to use prohibited myths and stereotypes when assessing her credibility, which shifted the burden of proof, and that the jury rendered inconsistent verdicts. Held: Appeal allowed. The judge’s charge did not adequately caution the jury against the use of prohibited myths and behavioural stereotypes in assessing the appellant’s credibility, including impermissible reasoning in connection with whether the appellant cried out, avoided S.H. after the fact, and demonstrated visible trauma. Clear, specific, and contemporaneous cautions were required when the jury was invited to consider such evidence in relation to the appellant’s credibility. The charge also invited the jury to consider whether there was evidence that supported the appellant’s assertion that she was assaulted, impermissibly shifting the burden of proof. Given these errors, it is unnecessary to consider the issue of inconsistent verdicts. The convictions are set aside, and a new trial ordered on the first two counts of the indictment.
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R. v. Jerace,
2020 BCCA 326
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2020/11/16
Court of Appeal
The appellant challenges his conviction for failure to comply with a long term supervision order. The Crown concedes that the conviction appeal should be granted and a new trial ordered. Held: Appeal allowed and new trial ordered. Crown counsel at trial erred by alleging in closing submissions, for the first time, that the appellant fabricated his testimony in response to police disclosure. The division did not address the grounds of appeal raised by the appellant.
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