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Posted Thursday, February 27, 2020:
567 Hornby Apartment Ltd. v. Le Soleil Restaurant Inc.,
2020 BCCA 69
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2020/02/27
Court of Appeal
The respondents were awarded special costs at trial. At the assessment hearing, the registrar awarded special costs of various interlocutory orders made in the course of the proceedings and ordered special costs of the assessment.
The appellants’ appeal of the registrar’s decisions to the Supreme Court was dismissed, and the chambers judge ordered special costs of the appeal. The appellants now appeal the chambers judge’s decision on the grounds that the trial judge’s order for special costs should not apply to interlocutory orders or the costs assessment, and that the chambers judge erred in ordering special costs of the appeal without a finding of misconduct by the appellants on the appeal.
Held: Appeal allowed, in part.
A trial judge may not change or vary an earlier costs order made in a proceeding. A trial judge’s costs order is limited to the costs of the action apart from such costs as may already have been awarded during the course of the litigation. If the prior order is silent as to costs, the entitlement is determined pursuant to Rule 14-1(12).
If the earlier costs order is silent as to the scale of costs, they must be assessed according to s. 2(4) of Appendix B, being on Scale B, unless a party, on application, obtains an order of the court that the costs be assessed on another scale. When a judge orders the costs of the proceedings at a specific scale, that scale is attached to all orders made in the proceedings other than those in which the scale has already been set.
With respect to the costs of an assessment, there is no general rule that a party awarded special costs at trial is also entitled to special costs of a costs assessment. However, an order of a trial judge that the costs of the proceedings be assessed as special costs, which is silent as to the costs of the assessment, extends to the costs of the assessment.
With respect to the costs of an appeal, it does not form part of the proceedings captured by the trial judge’s costs order, and as such, costs of the appeal are determined by the conduct of the appeal. There being no misconduct in the appeal the order for special costs of the appeal is set aside.
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Forjay Management Ltd. v. 625536 B.C. Ltd.,
2020 BCCA 70
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2020/02/27
Court of Appeal
In the context of receivership proceedings arising out of a failed residential real estate development, the trial judge held that advances made by the first and second mortgagees in excess of the face amount of their mortgages were secured and ranked in priority to the third mortgage. She also found the second mortgage provided for a criminal interest rate and fashioned a remedy that struck one of the $2 million broker fees but increased the interest rate from 12% to 18%. Held: Appeal allowed in part. The judge did not err in concluding that the over advances were secured by the first and second mortgages. The registration system is intended to convey certainty of title, not certainty of value. The prior charges permitted advances beyond the original advance of principal, putting a subsequent encumbrancer on notice to make further enquiries. The judge did not make a palpable and overriding error in finding that the first mortgagee did not receive notice of the third mortgage for the purposes of s. 28 of the Property Law Act. The provision requires notice in writing of the subsequent registration. Actual notice does not suffice. Thus, the over advances may tack in priority onto the first mortgage. The judge erred in principle in assuming she had wide-ranging discretion to alter the contractual rate of interest on the second mortgage. Having determined that the rate exceeded the criminal interest rate, the options were to either sever particular terms of the contract or read-down the interest to an effective annual rate of 60%.
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Landmark Solutions Ltd. v. 1082532 B.C. Ltd.,
2020 BCCA 74
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2020/02/18
Court of Appeal
This is an application for leave to appeal from an interim interlocutory injunction, in the context of a non solicitation agreement between the parties, restraining the appellants from behaviours that are substantially the same or in competition with the services supplied by the respondents, and soliciting any customers or prospective customers of the respondents. Held: Application granted. The appeal, involving as it does issues of rectification in the context of the formation of the contract and the breadth of persons described as being beyond the proper range of the appellants permitted activity, meets the merits criteria for the granting of leave, and the subject matter of the injunction and consequences for all parties supports the granting of leave to appeal in the interests of justice.
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R. v. Coffey,
2020 BCCA 75
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2020/02/25
Court of Appeal
In this appeal from conviction of unlawful possession of cannabis (marihuana) exceeding 3 kg. for the purpose of trafficking and unlawful production of cannabis (marihuana), the appellant contended that the judge erred by failing to consider the reasonable possibility the appellant had considered the growing of the plants (4,200) in a marihuana grow operation, was lawful as being appropriately licensed for medicinal purposes. Held: Appeal dismissed. The case, entirely circumstantial, dealt with a large volume of evidence including documents, carefully reviewed by the judge. The judge understood the accused contended he thought all plants grown were lawfully grown, but did not accept his evidence and on the basis of the totality of the evidentiary record, convicted. There is no basis to interfere with his rejection of exculpatory reasonable possibilities.
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Posted Wednesday, February 26, 2020:
Eng v. Wong,
2020 BCCA 72
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2020/02/14
Court of Appeal
The application is to remove the appeal from the inactive list. All filings other than the notice of hearing have been timely and the appellant continued to demonstrate his intention to pursue the appeal, including through communications with respondent’s counsel, during the period which ran out his time to file the final document. Held: Application allowed. Although the merits of the appeal are weak, given the resources expended to date, given the fact this is the first indulgence sought by the appellant, and considering the purpose of s. 25 is to address dormant or lifeless appeals, the interests of justice are better served by advancing the appeal to a decision on the merits rather than pushing it to a rules based dismissal.
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R. v. Robertson,
2020 BCCA 65
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2020/02/26
Court of Appeal
Appeal by R. challenging the constitutional validity of the one-year mandatory minimum penalty required by s. 96(2)(a) of the Criminal Code on a charge of possession of stolen firearms. R. was convicted on a number of charges arising out of the search of his residence. After dismissing R.’s challenge to s. 96(2)(a), the sentencing judge imposed an 18-month global sentence on the possession of stolen firearms charge and lesser concurrent sentences on other charges, the longest of which was six months. R. seeks to have the sentence on the stolen firearms charge varied to six months so that his global sentence is six months. Held: Mandatory minimum declared unconstitutional; sentence appeal dismissed. The mandatory minimum is invalid because it requires the imposition of a grossly disproportionate sentence on a reasonably foreseeable hypothetical offender. However, 18 months is not a demonstrably unfit global sentence having regard to all the charges on which R. was convicted.
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Wright v. Schlesiger,
2020 BCCA 73
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2020/02/20
Court of Appeal
The appeal is from an order directing certain monies held in court pursuant to a previous court order to be released to the respondent, and a smaller sum to be retained. The monies paid into court were the subject of a settlement agreement reached in litigation concerning the administration of the parties’ mother’s estate. Funds were said to have been co mingled, and while some of the monies paid into court were undisputedly estate assets, the genesis of the balance of monies was not determined in court proceedings. Held: Appeal dismissed. No basis was established to interfere with the order appealed.
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Posted Tuesday, February 25, 2020:
0742848 B.C. Ltd. v. 426008 B.C. Ltd.,
2020 BCCA 67
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2020/02/25
Court of Appeal
The corporate applicant seeks an extension of time to bring an appeal. The notice of appeal was filed seven weeks late, arguably in part, due to the applicant’s absence from the country. Held: Application dismissed. As the underlying appeal is without merit, it is not in the interests of justice to grant an extension of time to bring the appeal.
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R. v. Hotomani,
2020 BCCA 64
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2020/02/18
Court of Appeal
The appellant was sentenced to a global sentence 18 months’ imprisonment followed by two years’ probation for a number of offences involving intimate partner violence. For reasons that are not clear, no consideration was given to Gladue factors. The appellant applied to introduce fresh evidence of his Indigenous background. Appeal allowed, fresh evidence admitted. In light of the fresh evidence and its affect on the assessment of the appellant’s moral culpability, some adjustment to the sentence was warranted. A sentence of 6 months on the criminal harassment charge and 4 months each on the assault charges, to be served consecutively, followed by two years’ probation was substituted.
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R. v. Hotomani,
2020 BCCA 68
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2020/02/21
Court of Appeal
Supplementary reasons to address oversight in not dealing with credit for time served when substituting a new sentence on appeal.
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Posted Monday, February 24, 2020:
Kriegman v. Wilson,
2020 BCCA 66
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2020/02/24
Court of Appeal
The appellant seeks to enforce a judgment by selling the property of the respondent judgment debtor, Ms. Wilson. Ms. Wilson resides in the property with her son, and both have serious health conditions. While granting the order for sale, the judge below deferred the sale for 24 months. The appellant submits that the judge erred in not imposing terms and conditions on the respondent, which the appellant says is mandatory pursuant to s. 96(2) of the Court Order Enforcement Act, and further erred in granting such a long deferral. Held: Appeal allowed. The judge did not err in his interpretation of s. 96(2), which does not require the imposition of terms and conditions. However, the judge erred in his exercise of discretion in granting such a long deferral which gave insufficient weight to the prejudice to the appellant. Given the passage of time, the order for sale will be varied such that the deferral will expire on March 31, 2020.
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Posted Friday, February 21, 2020:
R. v. Moazami,
2020 BCCA 61
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2020/02/19
Court of Appeal
Application to intervene in a constitutional challenge brought by The Vancouver Sun and the C.B.C. to this Court’s disclosure policy with respect to criminal files. Held: Two applications dismissed; one allowed. The applications of F.A. and K.M. for intervenor status based on a direct interest in the challenge are dismissed. Their respective interests are indirect and relate to the precedential effect of the outcome of the challenge. For the same reason, a group of media-related organizations does not have a direct interest. However, those organizations joint application is allowed because their arguments will be of assistance to the division hearing the challenge.
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R. v. Penttila,
2020 BCCA 63
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2020/02/21
Court of Appeal
Appeal from a sentence of two years’ imprisonment for fraud involving a breach of trust on grounds that the sentencing judge erred in principle, including by concluding that a gambling addiction could never be treated as a mitigating circumstance in a case of this kind. Held: Appeal dismissed. A gambling addiction may impair an offender’s decision-making processes and be causally connected to an offence such as fraud. If so, a sentencing judge may, in appropriate circumstances, find that the offender’s moral culpability is attenuated. In this case, the judge found that the appellant was well able to control her gambling. In light of this finding, the result would not have been different had the judge approached the issue differently. The sentencing judge committed other errors in principle but none that had a material impact on the sentence. Further, the sentence was not shown to be demonstrably unfit.
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