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Posted Thursday, May 21, 2020:
Bonavista Energy Corporation v. Fell,
2020 BCCA 144
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2020/05/21
Court of Appeal
The appellants seek to overturn the order of a judicial review judge declaring that the Surface Rights Board of British Columbia has no jurisdiction to hear the appellants’ claim on the basis that they are not “landowners” within the meaning of the applicable legislation. The context was an application by the appellants to the Board seeking compensation from the respondent relating to its operation of a well site on land the appellants’ predecessors in title acquired via Crown grant, which land is charged with a right-of-way granted to the respondent for its pipeline corridor. The respondent filed an application disputing the Board’s jurisdiction to hear the claim, contending that the part of the land covered by the right-of-way remained Crown land. The Board concluded that the right-of-way land had passed to the appellants under the Crown grant, so that it had jurisdiction to hear their application for compensation. On judicial review, the judge set aside that order. Held: Appeal allowed. The Board was correct in its interpretation of the original Crown grant, and in concluding that the appellants, and not the Crown, own the land covered by the right-of-way for the respondent’s pipeline corridor. The plain and ordinary meaning of the words of the grant do not except from the parcel granted the land covered by the right-of-way.
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Chahal v. Chahal,
2020 BCCA 147
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2020/05/21
Court of Appeal
Following a long, interrupted trial, the trial judge issued extensive reasons that made a number of findings about the source of funds for the purchase of property and the beneficial ownership of property in this hotly contested family proceeding. The documentary evidence was unsatisfactory, the principal witnesses were unreliable, and much of the evidence of those witnesses was directly contradicted by other witnesses. On appeal, the husband and his parents challenge some of the orders made by the trial judge and argue that she erred in law and fact. The appellants also say the reasons are insufficient to explain how the trial judge arrived at her findings on the disputed issues. Held: Appeals dismissed. The appellants are not able to identify any errors warranting appellate intervention.
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R. v. Bacon,
2020 BCCA 140
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2020/05/21
Court of Appeal
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Sherry v. CIBC Mortgage Inc.,
2020 BCCA 139
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2020/05/21
Court of Appeal
This appeal concerns a class action proceeding regarding the enforceability of certain prepayment provisions in a mortgage contract. The appellant appeals from an order certifying an amended claim based on statutory illegality, arguing that the chambers judge erred by: not finding the claim was bound to fail due to this Court’s earlier decision in Sherry v. CIBC Mortgages Inc., 2016 BCCA 240 [Sherry Appeal #1] and failing to consider several alternative arguments for why the claim should be struck. Held: Appeal dismissed. The reasoning in Sherry Appeal #1 is not determinative of the viability of the statutory illegality claim. Likewise, the appellant’s alternative arguments do not foreclose the possibility that the claim will succeed at trial, but rather, raise issues that will require a merits-based analysis.
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Posted Wednesday, May 20, 2020:
0940460 BC Ltd. v. Burnaby (City),
2020 BCCA 142
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2020/05/20
Court of Appeal
The appellants 0940460 BC Ltd. and Crescent Beach Properties Ltd. brought a petition for judicial review of a refusal by the respondent City of Burnaby to issue a preliminary plan approval aimed at regularizing building aspects said to be non compliant with a zoning bylaw. By the time of the judicial review, the appellants sought preliminary plan approval of a patio cover, which Burnaby had refused to issue due to the patio cover and a pizza oven resulting in excess lot coverage beyond that permitted, and an impermissible parking arrangement with a nearby property. The petition was dismissed by a chambers judge. On appeal, the appellants contend: (1) Burnaby was unreasonable in relying upon issues of the pizza oven’s bylaw compliance when rejecting the preliminary plan approval application; (2) Burnaby’s treatment of the donor parking was unreasonable; (3) Burnaby was unreasonable in deciding that the patio cover increases the lot coverage; and (4) Burnaby fettered the discretion of the Chief Building Inspector by requiring approval by the Director of Planning of the preliminary plan, as a step to obtaining a building permit. Held: Appeal dismissed. Burnaby’s reliance on the pizza oven and donor parking was reasonable, as was Burnaby’s conclusion that the patio cover increases the lot coverage. Finally, Burnaby did not fetter the discretion of the Chief Building Inspector.
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Posted Tuesday, May 19, 2020:
Law Society of British Columbia v. Maddock,
2020 BCCA 146
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2020/05/05
Court of Appeal
The appellant seeks a stay of an injunction order, pending appeal of that order. The order requires him to comply with the provisions of the Legal Profession Act that prohibit persons who are not qualified lawyers from practising law. Held: Application dismissed. The appellant’s challenge is to the reasoning of the judge who granted the order. However, a stay will only be directed to the order itself. The appellant’s argument that the order is unnecessary, because he intends to comply with the Legal Profession Act, does not meet the test for a stay. He has shown neither irreparable harm nor that the balance of convenience favours granting the stay.
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R. v. Myles,
2020 BCCA 143
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2020/05/08
Court of Appeal
Appointment of counsel application on appeals from conviction and sentence. Held: Application dismissed. The appellant argued that a concession had previously been made by the Crown on his bail pending appeal application that the appeal from conviction is not frivolous. In light of this concession, the appellant submits it is not open to the Crown to submit in response to this application that the appeal is not arguable. A review of the record shows that the Crown did not make this concession. Whether the merit components of the test for bail pending appeal and for the appointment of counsel are the same, is best left for another day.
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Vancouver Coastal Health Authority v. Adamson,
2020 BCCA 145
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2020/05/11
Court of Appeal
In breach of the provisions of the Community Care and Assisted Living Act, the appellant operated a daycare facility where she provided care to three or more children who were not related to her. She continued to operate the daycare, and hold herself out as operating an authorized daycare, after being advised that it was unlawful for her to do so. The Vancouver Coastal Health Authority, having identified safety concerns with the facility and noted that the number of children under her care was increasing over time, brought an injunction to restrain the appellant from operating the daycare, instead of attempting to bring proceedings under the Offence Act. The chambers judge granted the injunction. Held: Appeal dismissed. The appellant was unable to establish any apprehension of bias on the part of the chambers judge and was unable to demonstrate any palpable error in findings of fact. The respondent established its right to obtain final injunctive relief and the judge applied the correct test when considering whether the statutory remedy was adequate.
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West Moberly First Nations v. British Columbia,
2020 BCCA 138
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2020/05/19
Court of Appeal
The parties dispute the meaning of a provision of Treaty 8 describing a tract of land with a western boundary along the “central range of the Rocky Mountains”. The trial judge concluded this clause referred to the Arctic-Pacific Divide, which is located within the Rocky Mountains up until the 54th parallel north, then diverges west. The appellant submits (i) declaratory relief was unavailable in the circumstances and (ii) the judge erred in his interpretation of the relevant provision.
Dissenting (per Justice Smith): No declaration was available in the circumstances of this case; in the alternative, the only declaration available was one stating the relevant provision refers to the watershed of the Rocky Mountains, which falls east of the Arctic-Pacific Divide north of 54º. Declarations must affect a legal right. In this case, the judge expressly declined to make any findings on the relationship between the relevant provision and the parties’ rights under the treaty, and it is unclear from the text of the treaty alone that any rights are tied to the provision. Consequently, the declaration should not have been granted. Alternatively, if a declaration was available, the trial judge erred and a declaration should be issued that the entirety of the boundary falls within the Rocky Mountains. The judge failed to apply the principles of treaty interpretation and made palpable and overriding factual errors. In view of the mainly documentary record and the length of time that has already passed in attempting to resolve this dispute, it is appropriate for this Court to reassess the evidence and substitute its own declaration as requested by the parties. That reassessment shows the only possible interpretation of the provision is that the western boundary of the tract is the line of watershed in the Rocky Mountains.
Majority (per Chief Justice Bauman, Justice Goepel concurring): The declaration is upheld. The trial judge did not err in determining a declaration was available, or that the disputed provision was intended to refer to the Arctic-Pacific Divide. The requested declaration clarifies legal rights and obligations and the trial judge had discretion to issue it. The law of declaratory relief does not require the parties to litigate the effects of a declaration in order for said declaration to be available, nor would such a requirement be advisable. Further, the trial judge made no reversible error in his analysis of the relevant provision. He cited and applied the relevant law correctly and his inferences were supported by the extensive factual record. This Court should not interfere with the conclusions he reached from his vantage point at trial.
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