Court of Appeal - Recently Posted Judgments

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Recently Released Judgments

This webpage lists judgments recently released by the Court of Appeal and provides links to copies of those judgments. Judgments are best viewed in Internet Explorer 7 or newer (click here to download).

Some of the Court’s judgments may be subject to publication bans. The Court of Appeal will not publish reasons for judgment on its website without ensuring that information that is subject to a publication ban has been removed or redacted from the judgment (e.g. through the use of initials). For information about Publication Bans and their effect, please click here.


Posted Friday, March 5, 2021: Douglas Lake Cattle Company v. Nicola Valley Fish and Game Club, 2021 BCCA 99 – 2021/03/05 Court of Appeal The trial judgment gave the public access to two lakes on the appellant, DLCC’s property. DLCC challenges the judge’s determination that a road and a trail on the property were excepted from an 1895 Crown grant and that there is public access to both lakes. Held: Appeal allowed in part. The road in question was excepted from the Crown grant; however, because the trail was not excepted from the Crown grant and the elements of common law dedication are not met, the trail is not a public way. The trial judge erred in determining the natural boundary of one lake by failing to address the applicable statutory criteria. The public road at issue does not reach the natural boundary of either lake, as defined by survey. The Trespass Act permits DLCC to prohibit the public from crossing its property, including its land under water. The lakes in question are not navigable and no case for access to the shoreline as a right appurtenant to the right to navigate is made out. A public interest costs order against DLCC and the respondent Province was also set aside, with each party ordered to bear their own costs at trial. more ...
Osborne v. Family Insurance Solutions Inc., 2021 BCCA 104 – 2021/03/05 Court of Appeal Heavy rainfall caused damage to the land and soil on the respondent’s property. The respondent held a home insurance policy from the appellant. The policy included extended water damage coverage that covered damage caused by excessive rainfall. The respondent made a claim under the policy, which was denied by the appellant. The parties disputed whether the land and soil were insured property under the policy. The chambers judge held the damage to the land and soil was covered, finding that while the land and soil were not insured property under the base policy, they were included under the extended water damage coverage. The appellant challenges the finding that the land and soil were insured property under the policy. Held: Appeal allowed. The land and soil were not insured property. The extended water damage coverage did not extend coverage to otherwise uninsured property. It only expanded the type of damage insured against. As the base policy did not cover the land and soil, they were not insured under the policy. Expanding the perils insured against does not alter what property is covered by an insurance policy. more ...
R. v. Anderson, 2021 BCCA 101 – 2021/03/05 Court of Appeal Application to reinstate a conviction appeal that was dismissed for want of prosecution. The appellant seeks to proceed on grounds of appeal not raised in her original notice of appeal. Held: Application dismissed for the following reasons: the appellant bears sole responsibility for the three-year delay; she did not have a bona fide intention to appeal throughout the proceedings; the division that dismissed the appeal did not misunderstand the facts; public confidence in the administration of justice would be diminished if the appellant were now permitted to recast her grounds of appeal; and there is no merit in the grounds the appellant now seeks to raise. more ...
Posted Thursday, March 4, 2021: Coffey v. Sabbaghan, 2021 BCCA 98 – 2021/03/04 Court of Appeal The parties made supplementary submissions on the issue of costs of the appeal, in respect of the court’s conclusion that the order appealed denying liability should be set aside and an order substituted finding the parties equally at fault in respect of the motor vehicle accident at issue in the litigation. Held: the appellant was substantially successful on appeal and is entitled to costs. more ...
Wang v. Laura W. Zhao Personal Real Estate Corporation, 2021 BCCA 97 – 2021/03/04 Court of Appeal The appellant appeals a judgment dismissing his claim for recovery of a bonus fee paid to the respondents on a real estate transaction, and allowing the respondents’ claim for commission on a related sale. The appellant alleges that the respondents committed material breaches of fiduciary duty disentitling them to any fee or commission. Held: Appeal dismissed. The trial judge made findings of fact adverse to the appellant’s position. No error in the judge’s analysis has been shown. more ...
Posted Wednesday, March 3, 2021: Alvaro v. InsureBC (Lee & Porter) Insurance Services Inc., 2021 BCCA 96 – 2021/03/03 Court of Appeal This appeal is from a judgment awarding the appellants damages arising from negligence in the placing of a contract of insurance when coverage was denied because of a vacancy exclusion. The appellants say the trial judge erred in assessing damages by awarding the actual cash value of the destroyed building rather than its replacement cost. The respondent cross appeals alleging error on the part of the trial judge in dismissing the argument the appellants were contributorily negligent by failing to read their policy and become aware of the exclusion. Held: Appeal allowed; cross appeal dismissed. The appellants discharged the burden of showing they would have opted to replace the dwelling if they had effective coverage, and they were entitled to damages equivalent to the replacement cost of the dwelling. On the cross appeal, the evidence supported the trial judge’s conclusion that the appellants were not contributorily negligent as alleged. more ...
Chinese Social Development Society v. The Vancouver Chinese Public School, 2021 BCCA 100 – 2021/02/17 Court of Appeal The appellant operated a Chinese-language school in a property owned by the respondent. The respondent claimed the appellant had breached their agreement and applied for an order for vacant possession of the property. The appellant did not appear at the hearing, and the chambers judge made the order sought. The appellant applies for leave to appeal the decision on the basis that the judge erred in not giving them a chance to make their case. The appellant submits its representatives missed the hearing because they went to the courthouse rather than appearing by telephone as scheduled. Held: Application dismissed. Leave to appeal denied. When a party fails to attend a Supreme Court chambers hearing and an order is made in their absence, the proper remedy is to apply under Rule 22-1(3) of the Supreme Court Civil Rules to have that court reconsider the order. The appeal was premature. Once the lower court has refused to reconsider the order or has substituted a new order on reconsideration, an appeal would lie as of right, making a leave application unnecessary. more ...
Held v. Sechelt (District), 2021 BCCA 92 – 2021/02/10 Court of Appeal Application by the Province of British Columbia to be added as a respondent in two sets of appeals. Held: Application granted. The Province demonstrated that its interests are sufficiently affected by both sets of appeals to justify its addition as a respondent. more ...
R. v. Jerace, 2021 BCCA 94 – 2021/03/03 Court of Appeal The appellant was found guilty by a jury of sexual assault and sexual interference. The complainant was 14 years old and the appellant was 35 years old when the sexual activity occurred. The appellant argues the trial judge erred in his charge to the jury by instructing that it could convict if the Crown proved the appellant knew the complainant’s age or failed to take all reasonable steps to ascertain her age. He further argues: counsel appointed to cross-examine the complainant did so incompetently, the judge failed to assist him in obtaining the complainant’s youth court records, the judge failed to deal with his Charter applications, and the judge erred in restricting the scope of his cross-examination. Held: Appeal dismissed. It was not an error for the judge to instruct the jury that the fault element of the offence can be proven either by knowledge of the complainant’s age or by a failure to take all reasonable steps to ascertain her age. The judge adequately assisted the appellant in understanding his procedural options and properly dealt with the Charter issues. Court-appointed counsel conducted a competent cross-examination consistent with the defence strategy set by the appellant. Although the trial judge was incorrect in stating that non-accused witnesses cannot be cross-examined on unrelated misconduct that did not result in a criminal conviction, no miscarriage of justice occurred. more ...
Posted Tuesday, March 2, 2021: Lu v. Shen, 2021 BCCA 95 – 2021/02/22 Court of Appeal Applicant applies for a stay of execution and security for costs of the appeal. Held: Application for stay dismissed. Applicant failed to establish merit to the appeal or that she would suffer irreparable harm if the stay was refused. Application for security for costs adjourned on the condition that it can only be set for rehearing at the same time as an application for security for costs brought by the respondent. It is not in the interests of justice to make such an order without considering a similar order in favour of the respondent, given that the order appealed from grants nearly identical damage awards to each party, both have appealed, and both appeals appear to be equally unmeritorious. more ...
Sherwood v. Cinnabar Brown Holdings Ltd., 2021 BCCA 88 – 2021/02/19 Court of Appeal The parties disputed whether the roof built during a duplex renovation had been built as approved. In May 2018, the trial judge ordered that the roof as built had not been approved and ordered it replaced with one similar to the original roof. In June 2018, the appellant filed a notice of appeal from that decision. In January 2019, the appellant filed a notice of abandonment of the appeal. The appellant now seeks to set aside the notice of abandonment. Held: Application dismissed. While the appeal was not without merit, there were no exceptional circumstances to justify setting aside the notice of appeal. The appellant had not abandoned the appeal through inadvertence, mistake, or misapprehension and only sought to restart the appeal after obtaining new counsel and realizing its prospect of success was stronger than previously believed. more ...
Posted Monday, March 1, 2021: Airside Event Spaces Inc. v. The Township of Langley, 2021 BCCA 90 – 2021/03/01 Court of Appeal A stay of execution of an order dismissing the appellant’s application for relief from forfeiture is granted on conditions that (a) the appellant continues to pay rent to the respondent, and (b) the respondent refrains from leasing the premises or making alterations to the premises other than emergency repairs. Despite the discretionary nature of the order, the appeal is not frivolous, the appellant will suffer irreparable harm if a stay is not granted, and the balance of convenience favours the granting of the order. more ...
Der v. Zhao, 2021 BCCA 82 – 2021/02/25 Court of Appeal The appellant was seriously injured when he slipped and fell on black ice on a sidewalk adjacent to the respondents’ residential property. The summary trial judge found that it was appropriate to sever the issues of liability and damages and resolve the duty of care question on summary trial. He dismissed the claim on the basis that the respondents did not owe a duty of care. On appeal, the appellant recast the nature of the duty alleged, focusing on the obligation of property owners to clear snow and ice from sidewalks to comply with a municipal bylaw. He argued that a property owner owes a duty of care to users of municipal sidewalks to take reasonable care with respect to removal of snow and ice from adjacent sidewalks. Held: Appeal dismissed. While the weight of authority has rejected the existence of such a duty of care, no court has undertaken an Anns/Cooper analysis and the authorities are not binding on this Court. Applying the Anns/Cooper analysis, the risk of harm was foreseeable, but the appellant is unable to establish a sufficient relationship of proximity and it would not be just or fair to impose a duty of care in these circumstances. The judge did not err in deciding the issue on a summary trial application. more ...
Gichuru v. Purewal, 2021 BCCA 91 – 2021/03/01 Court of Appeal The plaintiff succeeded at trial in a defamation action. He was awarded $5000 in general damages jointly and severally against both defendants, and $5000 in punitive damages individually against only one defendant. In the trial reasons, the judge declined to order special costs to the plaintiff and ordered costs at Scale B. Both parties applied to the court to reopen the issue of costs. In her subsequent reasons, the trial judge again declined to order special costs to the plaintiff. She reduced the plaintiff’s Scale B costs to 50% from the date of an $8000 offer to settle before trial, but she did not award the defendants any costs. The plaintiff appeals the issue of special costs and the reduction of his Scale B costs. One of the defendants appeals the refusal to order any costs in her favour. Held: Appeals allowed, costs order set aside, and the various issues of costs remitted to the trial judge for reconsideration. The trial judge’s reasons refusing special costs provide no meaningful explanation for the result and rely on irrelevant considerations. There was no apparent basis to reduce the plaintiff’s Scale B costs based on the offers to settle. The trial judge initially proceeded on a misapprehension of fact regarding the apportionment of liability for the trial judgment, and although she corrected this misapprehension, it does not appear that she properly reweighed the factors relevant to the offers to settle that were made. more ...
Peninsula (Kingsway) Seafood Restaurant Inc. v. Central Park Developments Ltd., 2021 BCCA 93 – 2021/03/01 Court of Appeal The appellant was the commercial tenant of premises that it had renovated in order to operate a restaurant. It did not pay overdue rent after receiving notice of default, and the respondent landlord lawfully terminated the lease. The landlord subsequently accepted an offer to lease from a new tenant who sought to convert the space into an urgent care centre. Shortly thereafter, the appellant petitioned for relief from forfeiture. The trial judge refused the petition, finding the tenant had repeatedly failed to pay rent on time, and that the interest of the new tenant weighed against reinstating the appellant’s lease. The appellant filed a notice of appeal and sought an interim injunction to prevent the respondents from removing the appellant’s fixtures and chattels. Held: Application dismissed. Neither the balance of convenience nor the interests of justice favoured granting the injunction. While there was a risk of irreparable harm to the appellant if removal commenced, the respondents could also suffer irreparable harm if not allowed to proceed with the work. The landlord had already scheduled construction to prepare the premises for the new tenant and could be liable to the new tenant if the premises were not ready on schedule. If the premises were not ready, the new tenant’s commitments exposed it to having to build out another interim healthcare facility. Although the appellant was willing to give an undertaking to pay damages, it was judgment proof in this jurisdiction. more ...
R. v. Athwal, 2021 BCCA 84 – 2021/03/01 Court of Appeal A jury found the appellant guilty of first degree murder in the 2007 stabbing death of Amanpreet Bahia. The stabbing occurred in Ms. Bahia’s home while she was alone with two young children. The appellant appeals the murder verdict on three grounds. She contends that: (1) the trial judge erred in her admissibility analysis of hearsay statements tendered at the appellant’s trial; (2) statements made by the appellant to an undercover police officer were erroneously admitted without a “Hart” voir dire; and (3) the judge should have declared a mistrial when a sheriff misconducted herself at the trial. Held: Appeal from conviction dismissed. The appellant has not established that the trial judge misdirected herself on admitting the hearsay statements or that her exercise of discretion was clearly wrong and resulted in a miscarriage of justice. Nor did the decision to forego a voir dire in respect of the appellant’s statements to the undercover officer constitute an error in law. The appellant waived the necessity of a voir dire. Finally, the trial judge’s refusal to grant a mistrial is entitled to considerable deference on appeal. The appellant has not shown a principled basis for interfering with that exercise of discretion. more ...
R. v. Mills, 2021 BCCA 86 – 2021/03/01 Court of Appeal Appellant, now age 65, was convicted of three firearms offences contrary to ss. 95(1), 117.01(1), and 91(1) of the Code. (Latter charge was stayed under Kienapple.) At the time of offences he was subject to a lifetime prohibition on possessing a firearm, and he has a substantial criminal record including kidnapping, assaults and disobeying various court orders. Trial judge found no benign explanation for his being in possession of a fully loaded gun in his car and found his case fell at mid point of the “true crime” spectrum discussed in R. v. Nur. He was sentenced to six years’ imprisonment. Held: Appeal dismissed. Although this sentence was double the three years said to be at the bottom of the ‘true crime’ spectrum, it lay at the mid point of that spectrum and was justified by the appellant’s substantial record and the fact of the lifetime prohibition. Trial judge had not overemphasized the aggravating factors or failed to consider mitigating factors. more ...
Snaw-Naw-As First Nation v. Canada (Attorney General), 2021 BCCA 89 – 2021/03/01 Court of Appeal Application by Cowichan Tribes for public interest intervention dismissed. As a single First Nation, Cowichan does not have a sufficiently broad representative base to be a public interest intervenor in this appeal, especially in the context of similar litigation it has brought in which it seeks the same relief against the same defendants. Further, the broad interpretive principles advocated by Cowichan can be adequately presented by the appellant. more ...

Yukon Judgments

The Chief Justice and Justices of the Court of Appeal for British Columbia also sit, respectively, as the Chief Justice and Justices of the Court of Appeal of Yukon. From time to time, this section of the website includes recently released Court of Appeal of Yukon judgments.


Posted Friday, March 5, 2021: Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 3 – 2021/02/26 Court of Appeal The appellant is a member of the Vuntut Gwitchin First Nation, a self-governing Yukon First Nation. The Vuntun Gwitchin Constitution required members of Council to reside on the Nation’s settlement land. The appellant sought a declaration that the residency requirement violated her s. 15 equality right. The trial judge dismissed the appellant’s petition, finding that a modified version of the residency requirement did not violate s. 15 of the Charter. The appellant filed an appeal, arguing the judge erred in not finding the entire residency requirement in violation of her s. 15 right. The respondent cross-appealed, arguing the judge erred in his application of the Charter to the Vuntut Gwitchin Constitution. The Carcross/Tagish First Nation, the Métis Nation of Ontario, the Council of Yukon First Nations, and the Teslin Tlingit Council seek leave to intervene. Held: Applications granted. All four proposed intervenors had either a direct interest or a public interest in the appeal. Each applicant could bring a unique perspective to the appeal and would not unduly expand the issues on appeal. In cases involving novel Charter arguments, intervenors are more likely to be of assistance to the court. more ...
Yukon (Government of) v. Yukon Zinc Corporation, 2021 YKCA 2 – 2021/03/05 Court of Appeal These appeals relate to four orders arising from a proceeding in which the Government of Yukon (the “Government”) petitioned Yukon Zinc Corporation (the “Debtor”) into receivership. The Government appeals the order that it does not have a provable claim in bankruptcy with respect to the costs of remedying environmental damage. Welichem Research General Partnership, the Debtor’s primary secured creditor and the lessor of certain mining equipment, has three appeals. First, it appeals the provision in the order granting the Government security over the Debtor’s mineral claims. Second, it appeals the order dismissing its application for an order that a notice given by the receiver to disclaim the equipment lease was a nullity. Third, it appeals the order that certain of the leased items are subject to the receiver’s charge and challenges the approval of the receiver’s solicitation plan. Held: Appeals allowed in part. The Government does not have a provable claim or contingent provable claim in bankruptcy. Mineral claims are an interest in real property, not real property, and thus the judge erred in including the mineral claims in the Government’s charge over the Debtor’s real property. The equipment lease was disclaimed in its entirety, and the receiver’s purported appropriation of certain leased items is of no force or effect. As the leased items belong to Welichem, not the Debtor, the judge erred in extending the receiver’s charge over the leased items. It is appropriate for the receiver to consider a bidder’s ability to obtain regulatory approvals in assessing their bids, and the judge did not err in approving the solicitation plan. more ...

Posted Friday, March 5, 2021:

Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 3 – 2021/02/26
Court of Appeal

The appellant is a member of the Vuntut Gwitchin First Nation, a self-governing Yukon First Nation. The Vuntun Gwitchin Constitution required members of Council to reside on the Nation’s settlement land. The appellant sought a declaration that the residency requirement violated her s. 15 equality right. The trial judge dismissed the appellant’s petition, finding that a modified version of the residency requirement did not violate s. 15 of the Charter. The appellant filed an appeal, arguing the judge erred in not finding the entire residency requirement in violation of her s. 15 right. The respondent cross-appealed, arguing the judge erred in his application of the Charter to the Vuntut Gwitchin Constitution. The Carcross/Tagish First Nation, the Métis Nation of Ontario, the Council of Yukon First Nations, and the Teslin Tlingit Council seek leave to intervene. Held: Applications granted. All four proposed intervenors had either a direct interest or a public interest in the appeal. Each applicant could bring a unique perspective to the appeal and would not unduly expand the issues on appeal. In cases involving novel Charter arguments, intervenors are more likely to be of assistance to the court.

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Yukon (Government of) v. Yukon Zinc Corporation, 2021 YKCA 2 – 2021/03/05
Court of Appeal

These appeals relate to four orders arising from a proceeding in which the Government of Yukon (the “Government”) petitioned Yukon Zinc Corporation (the “Debtor”) into receivership. The Government appeals the order that it does not have a provable claim in bankruptcy with respect to the costs of remedying environmental damage. Welichem Research General Partnership, the Debtor’s primary secured creditor and the lessor of certain mining equipment, has three appeals. First, it appeals the provision in the order granting the Government security over the Debtor’s mineral claims. Second, it appeals the order dismissing its application for an order that a notice given by the receiver to disclaim the equipment lease was a nullity. Third, it appeals the order that certain of the leased items are subject to the receiver’s charge and challenges the approval of the receiver’s solicitation plan.

Held: Appeals allowed in part. The Government does not have a provable claim or contingent provable claim in bankruptcy. Mineral claims are an interest in real property, not real property, and thus the judge erred in including the mineral claims in the Government’s charge over the Debtor’s real property. The equipment lease was disclaimed in its entirety, and the receiver’s purported appropriation of certain leased items is of no force or effect. As the leased items belong to Welichem, not the Debtor, the judge erred in extending the receiver’s charge over the leased items. It is appropriate for the receiver to consider a bidder’s ability to obtain regulatory approvals in assessing their bids, and the judge did not err in approving the solicitation plan.

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Recently Published Judgments

Recently published judgments are judgments that were given at some time in the past but have only recently been posted on the website by the court.


Posted Thursday, March 4, 2021: R. v. Bogarh, 2018 BCCA 355 – 2018/09/21 Court of Appeal This is an application under s. 680 of the Criminal Code for a direction for bail review. Held: Application denied. The bail judge’s conclusions on flight risk were supported by the circumstances of the case. Considering the deferential standard to be applied on the proposed review, it is not arguable that the judge committed material errors or that the bail decision was clearly unwarranted. The threshold for directing a review is not met. more ...
R. v. Danjou, 2019 BCCA 16 – 2019/01/15 Court of Appeal The applicant is charged with second degree murder in relation to the death of his common-law partner. He applied for release pending trial and his application was dismissed. He now applies for a direction from the Chief Justice that the decision be reviewed by a division of this Court. Held: Application dismissed. It is not arguable that the chambers judge committed material errors of fact or law, or that the decision was clearly unwarranted. more ...
R. v. R.K., 2014 BCCA 119 – 2014/04/02 Court of Appeal The appellant, R.K. appeals an order detaining him in custody pending his trial on a charge of first degree murder. Pursuant to s. 29(2) of the Youth Criminal Justice Act, S.C. 2002, c. 1, a provincial court judge ordered the appellant detained. R.K. is charged with shooting a seventeen year old boy three times in a planned, deliberate, brutal murder. His detention was sought by the Crown on the sole ground that, in the exceptional circumstances of this case, R.K.’s detention was justified in order to maintain confidence in the administration of justice. On appeal it was held that the Crown had satisfied its onus of establishing that this case is “exceptional” as contemplated by s. 29(2)(b) of the YCJA. The appeal was dismissed. more ...

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