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Posted Thursday, April 9, 2026:
Northern Health Authority v. du Plessis,
2026 BCCA 143
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2026/04/09
Court of Appeal
The respondent was a pediatrician under service contract with the appellant health authority during the COVID-19 pandemic. The appellant terminated the 2021 service contract because the respondent did not receive a vaccination against COVID-19, contending the contract had been frustrated as the respondent was required to obtain a vaccination pursuant to an order by the Provincial Health Officer to continue to provide services. The respondent disputed the termination and commenced arbitration. In an initial award, the arbitrator found the NHA had breached the service contract by terminating the respondent. In a subsequent remedy award, the arbitrator found the respondent was entitled to damages for breach of contract and costs. The appellant filed an appeal from both awards, and the respondent filed an appeal from the remedy award. The appeals were agreed to be heard together, and both parties waived the other party’s requirement to seek leave to appeal under s. 59(2)(b) of the Arbitration Act.
Held: Appeal dismissed; cross-appeal dismissed.
On the appeal, the arbitrator’s assessment of the frustration defence, and the two elements at issue in the analysis were matters of mixed fact and law. Foreseeability as part of the frustration analysis was fact dependent, requiring the arbitrator to determine whether the parties might have reasonably contemplated the possibility of a vaccine mandate. Whether the health order was a supervening event making performance of the contract impossible also required consideration of the respondent’s contractual obligations and his unique factual circumstances. In addition, the interpretation of the health order cannot be separated from the frustration analysis as a question of law and was an integral part of the analysis. Even if viewed as an independent analysis, its interpretation is so inextricably linked to the evidentiary record that most questions raised by the NHA are questions of mixed fact and law reviewable on a deferential standard. To the extent that the NHA has identified a question of law, it is unable to demonstrate that the arbitrator erred in law in the interpretation of the health order.
On cross-appeal, the alleged questions of law arising from the remedy award are either questions of mixed fact and law or legal questions which do not arise out of the remedy award. The characterization of the dismissal is a finding of mixed fact and law and does not raise a legal question on the application of the common law presumption of reasonable notice. The question of repudiation was never raised to the arbitrator; it does not arise out of the remedy award. The respondent’s alleged question of legal construction of the contract and termination provision are attempts to reframe a central exercise of contractual interpretation of the termination provision, which was undertaken by the arbitrator, to seek a different outcome.
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Perry v. General Motors of Canada,
2026 BCCA 148
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2026/03/12
Court of Appeal
This is an application for leave to appeal an order requiring that the applicant post security for costs in the court below. If leave is granted, the applicant also seeks a stay of the order pending the hearing of the appeal, and the respondent seeks to have the applicant post security for costs in this Court. Held: Leave to appeal denied. It is not in the interests of justice to grant leave, particularly as the proposed grounds of appeal have very little merit. The two other related applications are accordingly also dismissed.
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Qi v. Liu,
2026 BCCA 146
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2026/04/09
Court of Appeal
The appellants appeal a finding that they are in contempt of an interim order made in an action arising from a dispute between the appellants, and their neighbours, the respondents. The respondents are the beneficiaries of an easement over and through the appellants’ property to the street. The easement guarantees “unobstructed access” to and from the respondents’ home and the street. By a chambers judge’s interim order, the appellants were prohibited from “obstructing” the easement. On appeal, the appellants allege that the chambers judge erred in finding them in contempt of this interim order because she erred in (1) her interpretation of the interim order: (a) by not interpreting it in a way most favourable to them given the ambiguity in the interim order (and in particular, whether “obstructing” means partial or total obstruction); (b) by referring to the easement to interpret it; and (2) by not exercising her residual discretion to decline to make a finding in contempt.
Held: Appeal dismissed. The chambers judge made no error in concluding that the interim order was clear and unequivocal in prohibiting both total and partial obstruction. Though the chambers judge erred in considering the easement in her interpretation of the order, it was immaterial, because the appellants could ascertain their precise obligations without reference to the easement. Finally, the chambers judge did not err in exercising her residual discretion because the appellants never asked her to do so.
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Posted Tuesday, April 7, 2026:
Aulinger v. Oda,
2026 BCCA 140
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2026/04/07
Court of Appeal
In the underlying appeal, this Court affirmed the validity of a 1995 will. The respondent now asks the Court to order that reasonable indemnity costs of all parties be paid from the estate. Held: Application allowed. All parties should recover reasonable indemnity costs from the estate because this is clearly a case in which litigation was reasonably necessary in light of the surrounding circumstances and content of the 1995 will.
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Kaur v. Gill,
2026 BCCA 144
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2026/03/26
Court of Appeal
Ms. Kaur seeks leave to appeal from a costs decision, awarding Mr. Gill lump sum costs of some $164,000, including a special costs award of some $67,000, following a trial on parenting and relocation issues in a contentious family law proceeding. At the hearing of the leave application, Ms. Kaur’s main arguments were that the trial judge erred in: (1) finding that Mr. Gill was the substantially successful party at trial, (2) awarding special costs when the conduct in issue was related to a particular time period that, in her submission, preceded the trial itself, (3) awarding lump sum costs as a proportion of Mr. Gill’s draft bill of costs, and thereby failing to have regard to the need for caution in forgoing the normal process for assessment of a bill of costs by the Registrar, and (4) awarding costs for specific pre-trial applications, after having fashioned a lump sum award based on a draft bill of costs covering the entire proceeding. HELD: Application dismissed. None of these grounds of appeal raise matters of principle that are important to the practice or extend beyond the parameters of this particular case, which weighs against granting leave. Although there remains a second phase of the proceedings yet to be resolved (property division), the costs ruling does not determine any issue of significance to the ongoing proceedings, and the amount in issue, while substantial, is not significant in comparison to the actual legal fees said to have been incurred by each party to date. There is arguable merit in some of the grounds of appeal, a factor which weighs in favour of granting leave. Granting leave to appeal would not directly hinder the ongoing proceedings, but it would undermine the principle of finality as regards the costs proceedings and the conduct underlying the special costs order, which will cause the parties to continue to look backward, rather than looking forward to resolve the remaining issues in a timely, efficient, and cost-effective manner. On balance, the factors weighing against leave to appeal prevail, and it is therefore not in the interests of justice to grant the application.
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Richmond (City) v. British Columbia (Utilities Commission),
2026 BCCA 139
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2026/04/07
Court of Appeal
After an inquiry, the British Columbia Utilities Commission decided that local government corporations that are wholly owned and wholly operated by municipalities and regional districts are public utilities within the meaning of the Utilities Commission Act. However, the Commission went on to recommend to government that these types of corporations be exempted from application of the Act, subject to an annual reporting requirement. The appellant municipalities appealed the resultant order, arguing the Commission misinterpreted the meaning of the term “municipality” under its governing legislation. From the appellants’ perspective, the reference to “municipality” in the definition of a public utility under s. 1(1) of the Utilities Commission Act includes wholly owned and wholly operated energy corporations and these entities therefore fall outside the Commission’s regulatory authority. The appellants also argue the inquiry process leading to the Commission’s order was procedurally unfair.
HELD: Appeals dismissed. Applying the modern approach to statutory interpretation, the Commission correctly interpreted the scope of the municipal exclusion from the definition of a public utility under the Utilities Commission Act. The meaning of the term “municipality” is precise and unequivocal when read in conjunction with the Interpretation Act, and the Commission’s narrow construction accords with the context, objects, and purpose of the Utilities Commission Act. The appellants’ argument about procedural unfairness also fails. They received ample opportunities to provide input on the questions stated at the inquiry, including the framework to be applied in assessing whether a municipality’s local government corporation qualifies for an exemption from application of the Utilities Commission Act.
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Taddeo v. Ouellet,
2026 BCCA 141
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2026/04/07
Court of Appeal
The appellant appeals from the dismissal of his petition, brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, seeking the return of the parties’ child to Mexico. The dismissal was based on the chambers judge’s finding that returning the child to Mexico would place him in an intolerable situation as contemplated by the grave risk of harm exception in Article 13(b) of the Convention. The appellant argues the record in the proceeding below was materially incomplete due to ineffective assistance from his previous counsel. He also argues the judge erred in finding the grave risk of harm exception was met based on circumstances that are beyond its scope and below the high threshold for an exception to a mandatory return order.
Held: Appeal dismissed. The appellant’s fresh evidence application and ineffective assistance of counsel argument must fail absent evidence of either his former counsel’s communications with him or the evidence he says was material to the petition record. The judge did not err in finding there was a grave risk that returning the child to Mexico would place him in an intolerable situation under Article 13(b). The grave risk of harm exception includes a grave risk that a return order would place the child in an intolerable situation for reasons other than physical or psychological harm. The judge made no error in finding that placing the child in circumstances that include no housing or means of financial support establishes an otherwise intolerable situation.
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Thomson v. Thomson Estate,
2026 BCCA 142
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2026/04/07
Court of Appeal
The appellants appeal the dismissal of their actions for breach of contract and negligent misrepresentation on the basis that the trial judge erred in finding there was no oral contract formed between the appellant, Ms. Thomson, and her father, Allan Thomson, for her reinstatement in the family business, the A.R. Thomson Group. Held: Appeal dismissed. The trial judge properly identified the appropriate legal principles of contract formation and made no reviewable errors in assessing the evidence concerning the formation of the contract including the certainty of its essential terms and the parties’ intention to contract.
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