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Posted Friday, September 20, 2019:
R. v. Tallio,
2019 BCCA 330
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2019/09/06
Court of Appeal
In 1983, Mr. Tallio pleaded guilty to second degree murder. On June 30, 2017, an extension of time to file a notice of appeal was granted, in part, to enable DNA testing to be performed on tissue samples taken from the victim. This application relates to further DNA testing. The Crown applies for materials presently in the possession of the RCMP to be released to the British Columbia Institute of Technology Forensic Lab for scientific testing. Mr. Tallio applies to vary an order granted on March 12, 2018 in relation to the return of other material to Canada. Ms. Bolton, the intervenor, seeks orders returning all of the material to her forthwith. Held: Applications granted, in part. The interests of justice require that this case be decided on the best information available. Additional testing by the Crown may shed light on the important issues surrounding the DNA results obtained to date. The March 12, 2018 order is varied to allow the materials in the possession of the National Forensic Institute to remain there given the risk of damage from further transportation. Ms. Bolton’s application is adjourned generally.
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Tanious v. The Empire Life Insurance Company,
2019 BCCA 329
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2019/09/20
Court of Appeal
The appellant challenges the trial judge’s order that it pay the respondent’s special costs in the absence of any finding of bad faith or reprehensible conduct, arguing that he erred in departing from established legal principles, in holding that a disability insurance contract confers a contractual right to full indemnity costs, in awarding special costs in addition to aggravated damages for emotional harm, and in admitting an affidavit sworn by trial counsel. Held: Appeal dismissed. The trial judge did not err in exercising his discretion to award special costs in the exceptional circumstances of the case. He did not base his decision on a contractual right to full indemnity costs or compensate the respondent twice for emotional harm. Rather, he held that special costs were warranted in the interests of justice. He also applied the correct legal test in determining whether the affidavit evidence was relevant and he was entitled to accept and rely on its content in support of the application for special costs.
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Posted Thursday, September 19, 2019:
Gonzalez v. British Columbia (Attorney General),
2019 BCCA 328
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2019/09/09
Court of Appeal
The Appellant has been declared a vexatious litigant in the Supreme Court of British Columbia and therefore requires leave in order to commence an action. He applied for leave to file a civil claim against the Attorney General of British Columbia on the basis of vicarious liability for the actions of the Workers’ Compensation Board in connection with injuries suffered in 1995 when he fell from a ladder while working as a roofer. The chambers judge refused leave because the notice of civil claim disclosed no cause of action recognized in law and the proposed action constituted a collateral attack on the decisions of the WCB. Held: Appeal dismissed. The issues the appellant wishes to address have previously been heard and dismissed a number of times by both levels of court.
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Posted Wednesday, September 18, 2019:
Lee v. Weidner,
2019 BCCA 326
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2019/09/12
Court of Appeal
The appellant was found guilty of civil contempt in his role as a litigation guardian. The judge concluded, beyond a reasonable doubt, that the appellant knowingly disobeyed a court order directing that $1,300,000 in insurance proceeds be held and not distributed upon his father’s death, in the absence of further agreement between the parties to the civil action or court order. He appeals from the finding of contempt, alleging that the chambers judge made a number of errors. HELD: The appeal is allowed and the finding of contempt set aside. The chambers judge committed a palpable and overriding error in concluding that the appellant knowingly breached the court order. The evidentiary foundation tendered on the contempt hearing did not support this finding.
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Posted Tuesday, September 17, 2019:
Jerace v. British Columbia (Provincial Court),
2019 BCCA 320
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2019/09/17
Court of Appeal
The appellant appeals an order from the Supreme Court of British Columbia dismissing his certiorari application brought in respect of an order from the Provincial Court of British Columbia dismissing his application for access to youth justice court records under the Youth Criminal Justice Act, S.C. 2002, c. 1. The issue on appeal is whether the youth justice court record of a complainant in a sexual offence can be accessed by an accused when the application for the records is brought for the first time in the course of an appeal. Held: Appeal dismissed. The Mills regime under the Criminal Code does not allow for the release of YCJA records of a complainant in a sexual offence after the trial has been completed.
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Nouhi v. Pourtaghi,
2019 BCCA 324
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2019/09/12
Court of Appeal
Application to dismiss an appeal as moot granted. The appeal involves the validity of certificates of pending litigation cancelled on the basis the plaintiff’s pleadings were not adequate to support a claim to an interest in the properties. The plaintiff subsequently amended his pleading and filed new certifications against those properties.
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R. v. Cooper,
2019 BCCA 325
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2019/09/04
Court of Appeal
The appellant pleaded guilty to driving while prohibited and flight from police. He was sentenced to an effective sentence of nine months’ custody for each offence, to be served consecutively, and one year’s probation. The judge also imposed a five year driving prohibition for each offence, presumed to run concurrently. Crown acknowledged the sentencing judge erred with respect to the allowable length of driving prohibitions under s. 259 of the Criminal Code (now s. 320.24), given that notice of greater punishment by reason of previous convictions had not been provided to the offender under s. 727(1). Held: Appeal allowed to the extent of reducing the driving prohibition for flight from police from five years to three years plus time to be served, and for driving while prohibited from five years to two years plus time to be served, the prohibitions to run consecutively.
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R. v. Ruiz,
2019 BCCA 323
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2019/09/11
Court of Appeal
The appellant appeals from a sentence of 90 days’ imprisonment, to be served intermittently, imposed following a guilty plea to a charge of trafficking methamphetamine. The appellant was the owner and driver of a vehicle used to transport drugs that were being trafficked. The sentencing judge accepted that the appellant’s role in the transaction was a minor one. The appellant argues that the imposition of a custodial sentence was unfit, arguing that his sentence ought to have been suspended. Held: appeal dismissed. The sentence was within the appropriate range for the offence, and the judge did not err in imposing it.
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R. v. Wright,
2019 BCCA 327
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2019/09/13
Court of Appeal
Mr. Wright appeals his convictions for sexual assault and choking to overcome resistance to sexual assault. Held: appeal dismissed. The appellant has not established that the trial judge misapprehended the evidence or erred in his assessment of the complainant’s credibility or reliability.
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Squamish Nation v. British Columbia (Environment),
2019 BCCA 321
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2019/09/17
Court of Appeal
Under the Environmental Assessment Act, S.B.C. 2002, c. 43, British Columbia’s Minister of Environment and Minister of Natural Gas issued an environmental assessment certificate for the Trans Mountain Expansion Project containing 37 conditions. In doing so they relied upon an equivalency agreement made with the National Energy Board by which the Board’s assessment, by reason of ss. 27 and 28 of the Act, could stand in for a provincial assessment, in the interests of efficiency.
Squamish Nation and Chief Campbell (“Squamish”) challenged the British Columbia certificate, contending that British Columbia had failed to consult with them sufficiently prior to the Ministers’ decision. The judicial review judge dismissed the petition, finding the Province had met the standard for consultation, within the limits of its constitutional jurisdiction, that satisfied the honour of the Crown. After that order, the Federal Court of Appeal in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, set aside Canada’s approval of the Project on the basis: 1) the National Energy Board’s report to the Minister was fatally flawed in failing to include Project-related marine shipping within the scope of the “designated project” it was considering, and 2) that Canada had breached its duty to consult with Indigenous groups following the issuance of the Board’s report. Since that decision, the National Energy Board has engaged in further process and issued a reconsideration report, recommending again that the Project proceed. The reconsideration report amended portions of the original report, including some of the 157 conditions proposed, and added 16 recommendations. Canada has engaged in further consultation, and has reapproved the project. Canada’s approval is the subject of further Federal Court of Appeal challenge on the issue of consultation.
Squamish agrees British Columbia cannot refuse a certificate, but dispute the dismissal of their petition for judicial review of the province’s environmental assessment certificate on two grounds. They say that as a result of Tsleil-Waututh, the original report of the National Energy Board could not satisfy the requirements of the Act because it is not now the entire assessment of the National Energy Board. Second, they say the judge erred in finding British Columbia had satisfied its duty to consult.
Held: Appeal allowed to the extent only of remitting the conditions in British Columbia’s certificate to the Ministers for reconsideration in light of the changes to the original report of the National Energy Board as set out in its reconsideration report. Through no fault of the Executive Director of the Environmental Assessment Office or the Ministers, what is now Canada’s assessment – the reconsideration report – was not the assessment used in deciding to issue the certificate. On the question of British Columbia’s consultation with Squamish, British Columbia’s consultation and consideration of Squamish’s interests was reasonable and met legal requirements.
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Vancouver (City) v. British Columbia (Environment),
2019 BCCA 322
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2019/09/17
Court of Appeal
Under the Environmental Assessment Act, S.B.C. 2002, c. 43, British Columbia’s Minister of Environment and Minister of Natural Gas issued an environmental assessment certificate for the Trans Mountain Expansion Project containing 37 conditions, In doing so they relied upon an equivalency agreement made with the National Energy Board by which the Board’s assessment, by reason of ss. 27 and 28 of the Act, could stand in for a provincial assessment, in the interests of efficiency.
Vancouver challenged the British Columbia certificate, contending that the use of the equivalency agreement in the provincial process was non-compliant with the Act, and that the Province’s process breached procedural fairness. The judicial review judge dismissed the petition. He found that the equivalency agreement, combined with the provisions of the Environmental Assessment Act, allowed for the use to which the original report of the National Energy Board had been put, and he found that there was no breach of procedural fairness. After that order, the Federal Court of Appeal in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, set aside Canada’s approval of the Project on the basis: 1) the National Energy Board’s report to the Minister was fatally flawed in failing to include Project-related marine shipping within the scope of the “designated project” it was considering, and 2) that Canada had breached its duty to consult with Indigenous groups following the issuance of the Board’s report. Since that decision, the National Energy Board has engaged in further process and issued a reconsideration report, recommending again that the Project proceed. The reconsideration report amended portions of the original report, including some of the 157 conditions proposed, and added 16 recommendations. Canada has engaged in further consultation, and has reapproved the Project. Canada’s approval is the subject of further Federal Court of Appeal challenge on the issue of consultation.
Vancouver appeals from the dismissal of its petition on three grounds. It says, as in the companion appeal, Squamish Nation v. British Columbia (Environment), 2019 BCCA 321, that as a result of Tsleil-Waututh, the original report of the National Energy Board could not satisfy the requirements of the Act for an assessment because it is not now the entire assessment of the National Energy Board. Second, it says the judge misinterpreted the Act. Third, it says the judge erred in his conclusions on procedural fairness.
Held: Appeal allowed to the extent only of remitting the conditions in British Columbia’s certificate to the Ministers for reconsideration in light of the changes to the original report of the National Energy Board as set out in its reconsideration report. Through no fault of the Executive Director of the Environmental Assessment Office or the Ministers, what is now Canada’s assessment – the reconsideration report – was not the assessment used in deciding to issue the certificate.
On the issues of interpretation of the Act in respect to use of the equivalency agreement and of procedural fairness, no error is demonstrated. Further, the complaint of breach of procedural fairness should be dismissed on the basis of unreasonable delay, that being a one-year lapse of time between the appellant being advised, with an invitation to comment, of the procedure that would be (and was) followed, and the appellant filing its petition for judicial review, in circumstances in which it had not commented on the procedure as it was invited to do.
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