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Posted Friday, June 2, 2023:
Blackburn v. Lattimore,
2023 BCCA 224
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2023/06/02
Court of Appeal
After the appellant was awarded damages for losses of housekeeping and future earning capacity following a motor vehicle accident, the respondents applied under s. 83 of the Insurance (Vehicle) Act to reduce the awards by the amount of benefits provided by the Insurance Corporation of British Columbia. On appeal, the appellant challenges the judge’s deductions from both awards. Held: Appeal allowed in part; the order eliminating the entire award for loss of housekeeping capacity is substituted for an order deducting $9,275.58 from that award. The loss of housekeeping capacity award lacked the necessary correspondence with homemaking benefits, and only past benefits for reimbursement of certain housekeeping services could be deducted. There is no basis to interfere with the judge’s deduction from the award for loss of future earning capacity.
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Canada (Attorney General) v. Hideaway II Ventures Ltd.,
2023 BCCA 223
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2023/06/02
Court of Appeal
The appellant challenges the certification of a class action brought by the respondents, on behalf of residents of British Columbia engaged in commercial fishing in the Pacific coastal waters of Canada, who claim damages for expropriation of their right to fish geoducks. The respondents ground their expropriation claim in the Minister of Fisheries’ decision to close geoduck fisheries in designated Strict Protection Zones in Haida Gwaii. The respondents allege the elimination of commercial geoduck fishing in the Zones was an uncompensated expropriation of their right to harvest geoducks. Held: Appeal allowed. The certification judge erred in law in concluding that the plaintiffs demonstrated an arguable cause of action. The respondents’ claim that the closure of the Strict Protection Zones amounted to the expropriation of a common law profit à prendre in all Canadians is, itself, dependent upon establishing that Canadians have a proprietary interest in the fishery. It is settled law that no one has a proprietary interest in the fishery in Canada’s tidal waters. The common law right to fish has been substantially limited by the Fisheries Act. A right to fish in waters to which the Fisheries Act applies does not exist in law unless authorized under that statute, usually by licence. Licences do not create property rights in the fishery. Thus, the respondents cannot claim relief in the nature of compensation for expropriation of their right to harvest geoducks.
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Tom v. Tang,
2023 BCCA 221
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2023/06/02
Court of Appeal
The testator left a will in which she gave 85% of her estate to two of her children, the appellants, as recognition for the care they provided her in the last three years of her life. The testator’s three other children, the respondents, who were each given 5% of the estate, brought a successful application under the Wills, Estates and Succession Act to vary the will. The appellants appeal this order and say the jurisprudence of this court requires that the testator’s wishes be respected, as she had valid and rational reasons for the distribution she made. The respondents submit that this jurisprudence is inconsistent with the objective judicious testator test mandated by the Supreme Court of Canada, including in Tataryn v. Tataryn Estate.
Held: Appeal allowed in part. The cases relied on by the appellants, Bell v. Roy Estate, Kelly v. Baker and Hall v. Hall, do not stand for the principle that a testator’s unequal treatment of adult children must be deferred to if the reasons given for the unequal distribution are valid and rational. Those cases, read in context, recognize that a testator’s moral duty to adult children must be assessed using the objective standard of the reasonable testator, and provide that the moral duty may be negated where there is just cause. Here, the testator did not meet the objective standard of a judicious parent, given that each child had a significant moral claim arising from their contributions to the family economy. To address this, while still respecting the testator’s desire to reward the appellants, the will is varied to grant the appellants each 30% of the estate and the respondents each 13.3%.
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Wang v. The Owners, Strata Plan LMS 2970,
2023 BCCA 227
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2023/05/24
Court of Appeal
This appeal arises from an order allowing the appellant’s petition for judicial review but ordering each party bear their own costs. The appellant appeals only the costs aspect of the order, but did not file an application for leave. Held: the appeal is from a limited appeal order, which requires leave. As the proposed appeal does not meet the criteria for granting leave, leave would be denied. It is devoid of merit and raises no issues of importance. However, as the appellant declines to apply for leave, the appeal is quashed and her application for relief under the Constitutional Question Act is dismissed.
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Posted Wednesday, May 31, 2023:
1127551 B.C. Ltd. v. Prior Properties Inc.,
2023 BCCA 222
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2023/05/15
Court of Appeal
This is an appeal of the chambers judge’s order retrospectively adding the respondent Main Acquisitions Consultants (“MAC”) as a petitioner to the petition proceedings. The appellant contends that the chambers judge erred in adding MAC as a petitioner after the petition proceeding was wholly discontinued as of right. Alternatively, they say he erred in law in granting the order nunc pro tunc. Held: Appeal allowed. The issue of whether the chambers judge erred in adding a petitioner after the proceeding was wholly discontinued should not be determined in the absence of reasoned argument on each side of the question, which there was not in this appeal. Whether or not the chambers judge had jurisdiction to make the impugned order, he should not have done so because the MAC did not establish a case for the making of an order nunc pro tunc.
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Posted Tuesday, May 30, 2023:
Masjoody v. Trotignon,
2023 BCCA 220
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2023/05/30
Court of Appeal
A chambers judge dismissed the appellant’s action on the basis the court lacked jurisdiction over the underlying dispute. This is the appellant’s second appeal of that order; his first appeal was unsuccessful and he now seeks a new appeal on the grounds that a term in the judge’s order — that she be seized of further applications in the proceeding — was improper due to a reasonable apprehension of bias. The Registrar referred this appeal to a division for summary determination under s. 21(1) of the Court of Appeal Act. HELD: Appeal dismissed. The principle of res judicata and, in particular, cause of action estoppel, prevents the appellant from mounting a new appeal based on alleged errors that could and should have been raised in his first appeal. As well, the issue raised by the appellant is moot.
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