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Posted Wednesday, February 8, 2023:
British Columbia (Lieutenant Governor) v. Canada Mink Breeders Association,
2023 BCCA 63
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2023/01/27
Court of Appeal
Subsequent to their petition for judicial review of an order in council, the respondents sought an order that the complete record of the proceeding be filed with the court. The judge ordered the appellants to provide an affidavit identifying documents reflecting the information considered by cabinet in making the order in council. The appellants bring an application for leave to appeal that order but seek a direction that leave to appeal is not required. Held: Application dismissed. Leave is not required. The purpose of Rule 11 of the Court of Appeal Rules, which sets out the provisions that provide authority for a limited appeal order, is to bring certainty and clarity to the question of leave to appeal. It is clear that the order was applied for and granted under s. 17 of the Judicial Review Procedure Act. Such orders are not included under Rule 11.
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Canfield v. Continental Appraisals Ltd.,
2023 BCCA 61
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2023/01/26
Court of Appeal
The applicant seeks leave to appeal an order requiring her to pay the respondent double its costs of the proceeding below after October 16, 2020, the date on which the respondent made a formal offer to settle the action. She submits that her rejection of that offer was objectively reasonable because it required her to execute a release of all claims in favour in the respondent when she had an extant claim against the respondent in another proceeding. Held: Application dismissed. Leave to appeal a costs order alone will generally not be granted unless a question of principle is involved and the proposed grounds of appeal are arguable. Neither factor is met. The judge did not consider the effect of the release on the extant claim because none of the parties raised it as an issue before her in assessing the reasonableness of the offer. Further, the extant claim could not have been a factor in considering the reasonableness of the offer because it was not identified until nine months after the offer was made, and the judge was required to consider what was known by the parties about the case at the time the offer was made.
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Engman v. Canfield,
2023 BCCA 56
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2023/02/08
Court of Appeal
The appellant, a notary public, was found liable for professional negligence. He witnessed a signature on a document transferring a property under a purchase and sale agreement. Unbeknownst to him, the agreement represented an unconscionable bargain. The trial judge found that the appellant breached the standard of care expected of him as a notary public; in particular, he failed to confirm whether the transferor had obtained legal advice about the transfer, or had made an informed decision to proceed without advice. The appellant appealed the finding of liability on grounds that the trial judge erred in her analysis of the duty of care owed to the transferor, breach of the standard of care, and causation. HELD: appeal allowed. The liability finding is set aside and the action in negligence against the appellant is dismissed. The trial judge committed palpable and overriding error in finding factual causation. The record before her did not support causation and her finding to the contrary was speculative.
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Union of British Columbia Performers v. Morton,
2023 BCCA 57
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2023/02/08
Court of Appeal
The appellant union amended its constitution to permit union members to change between two health and welfare benefits plans once every five years. The appellant Alvin Sanders, a union member, elected to exercise that right and to opt out of the plan overseen by the respondent trustees. The trustees refused to comply on the basis that the change implemented by the union was not in the interest of the trust beneficiaries; Mr. Sanders subsequently sought a declaration confirming his right to transfer benefits provider. The appellants now appeal the judge’s conclusion that the trustees had discretion to refuse to give effect to the change implemented by the union.
Held: Appeal allowed. The judge erred in law by failing to address the appellants’ argument that Mr. Sanders is no longer a beneficiary under the trust and erred in assuming that Mr. Sanders’ right to transfer out of the trust had to be found in the trust agreement. In the full context of the trust agreement, Mr. Sanders is no longer a beneficiary of the trust and the trustees are required to comply with his election to transfer his benefits. However, as it currently stands, the trust agreement compels the union to continue to remit Mr. Sanders’ contributions to the trustees. In that regard, the judge erred in concluding that the trustees are not under a duty to amend the trust to comply with changes to the union’s constitution. The union, as settlor of the trust, imposed such a requirement on the trustees through the trust agreement, and the trustees are not at liberty to disregard that duty. The trustees therefore must amend the trust agreement to bring it into line with the constitution.
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Posted Tuesday, February 7, 2023:
Dempsey v. Pagefreezer Software Inc.,
2023 BCCA 58
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2023/02/07
Court of Appeal
Registrar’s assessment of special costs arising from an application holding the appellant in contempt. The respondents claim the sum of $45,523.15 in fees and disbursements, including for the assessment itself. While the application was not overly complex or difficult, it was distinguishable given the high standard of proof required. In addition, the respondents achieved complete success in a matter that had significant importance to their commercial interests. That said, the sum was still objectively high given the amount of time that ought to have been spent, so the amount claimed was reduced to $36,726.09.
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J. Holmes Holdings Ltd. v. Canada (Attorney General),
2023 BCCA 59
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2023/02/01
Court of Appeal
The appellant appeals an order that set aside an ex parte rectification order and deemed service of the petition for rectification on the respondent, the Attorney General of Canada. The appellant argues that the respondent had filed the application to vacate the order out of time. Held: Appeal dismissed. Section 5(1)(a) of the Crown Liability and Proceedings (Provincial Court) Regulations, which establishes a 30-day timeframe for the Attorney General of Canada to file “a defence or other reply to a document originating proceedings”, does not apply to an application to set aside an ex parte order that had granted the relief sought in the “originating proceedings”.
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R. v. R.G.S.,
2023 BCCA 52
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2023/02/07
Court of Appeal
This is an appeal from the appellant’s conviction by jury of two counts of sexual assault and sexual interference of a child under the age of 16. On appeal, the appellant argues that the trial judge erred in admitting evidence of uncharged incidents involving the complainant A.P. He also alleges errors with respect to the adequacy of the jury instructions and invites the Court to reconsider the issue of jury unanimity. Held: Appeal dismissed. The trial judge was correct in finding the evidence of discreditable conduct was relevant based on the relationship between the appellant and A.P. The trial judge did not err in applying the framework for relevance and in assessing the moral prejudice and reasoning prejudice that could arise from the evidence. No trial unfairness resulted from the admission of the evidence. The jury instructions with respect to the incidents of discreditable conduct were adequate and clear; they were also made in consultation with counsel. This is not the appropriate case to re-assess the jury unanimity requirement; therefore, the request for a five-justice division is declined.
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Posted Friday, February 3, 2023:
Maddock v. Law Society of British Columbia,
2023 BCCA 53
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2023/02/03
Court of Appeal
Appeal by Mr. Maddock, a self-employed “legal consultant”, from two chambers orders concerning the scope of legal services permitted to be rendered to the public by non-lawyers. The orders arose from two petitions in the court below. The first was brought by the appellant who sought declarations as to the meaning of certain provisions in the Legal Profession Act (LPA) and Offence Act which set out exemptions to the general prohibition on non-lawyers providing legal services. The chambers judge found aspects of Mr. Maddock’s work did not come within those exemptions and that he had therefore contravened the LPA. The second petition was brought by the Law Society seeking an injunction to prevent the appellant from further engaging in that work. The chambers judge granted their petition and awarded the Law Society its costs. Mr. Maddock appeals on the basis that the judge erred in her interpretation of the relevant LPA and Offence Act provisions, in granting the injunction, and in awarding costs to the Law Society.
HELD: Appeal dismissed.
The chambers judge did not err in interpreting the relevant LPA exemptions and concluding the appellant’s legal work was not captured within them. Nor did she err with respect to her interpretation of the provisions of the LPA and Offence Act respectively. The chambers judge also made no error in granting the injunction sought by the Law Society, which she reasonably felt was necessary given Mr. Maddock’s prior interactions with the Law Society. Finally, it was within the judge’s discretion to award costs to the successful party, the Law Society. The appellant has not demonstrated a principled basis upon which to interfere with that exercise of discretion.
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Sperring v. Shutiak,
2023 BCCA 54
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2023/02/03
Court of Appeal
This is an appeal from orders setting aside a separation agreement made between common law partners before the coming into force of the Family Law Act. The appellant contends the trial judge erred in holding the respondent was a “spouse” for the purpose of the FLA; that the discovery provision of the FLA applied; that the transitional provision does not apply to common law spouses and does not require the division of property claim to be addressed under the Family Relations Act; that the separation agreement should be set aside due to a failure to make full and frank financial disclosure; in dividing property pursuant to the FLA; and by conducting the trial in a manner prejudicial to the appellant.
The respondent, by cross appeal, contends the judge erred in permitting the appellant to amend his pleadings to seek reapportionment of family property; in reapportioning family property in the appellant’s favour; and in refusing to indemnify her for costs incurred to set aside the separation agreement, pursuant to provisions of the FLA.
Majority (per Justice Willcock, Justice DeWitt Van Oosten concurring) Held: Appeal and cross appeal dismissed. The respondent, as a former spouse met the definition of a spouse under the FLA and the discovery provisions of the FLA are applicable. A proceeding to enforce, set aside or replace an agreement respecting property division made by common law partners before the coming into force of the FLA could not be started or continued, as applicable, under the former Act as if the former Act had not been repealed. The transitional provision does not apply in these circumstances. The trial judge’s finding that the parties entered into the separation agreement as a result of material non disclosure should not be interfered with. The agreement was one respecting spousal support and upon it being set aside the respondent’s claim to support could properly be brought under the Act. The bifurcation of the trial was not prejudicial to the appellant. Further, there was no basis to set aside the judge’s discretionary decision to allow the appellant to amend his pleadings, to reapportion family property or to dismiss the respondent’s claim to special costs.
Justice Stromberg Stein (dissenting in part) would have allowed the appeal to the extent of setting aside the order for spousal support. The separation agreement is not an agreement respecting spousal support. The respondent had no entitlement to spousal support at the time she purported to waive any entitlement she may have. Setting aside the separation agreement does not revive an extinguished claim for spousal support or permit a new claim in the first instance under the FLA.
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Posted Thursday, February 2, 2023:
R. v. Li,
2023 BCCA 47
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2023/02/02
Court of Appeal
The appellant appeals his convictions on three counts of sexual assault, in relation to three complainants. He argues that the trial judge erred in relying on similar fact evidence, misapprehending the evidence, and applying the W.(D.) framework improperly. Held: Appeal allowed in part. The appeal from conviction in relation to Count 1 (the sexual assault of MH) is allowed, and a new trial is ordered. The appeal from conviction in relation to Counts 2 and 3 (the sexual assaults of FD and AL) is dismissed. The trial judge convicted the appellant on the basis that each count of the indictment had been independently proven beyond a reasonable doubt, and did not rely on similar fact evidence. The trial judge erred in convicting the appellant on Count 1 by relying on inadmissible hearsay evidence to support MH’s in-dock identification of the appellant. The trial judge did not misapprehend the evidence in relation to Counts 2 and 3; his assessment of the appellant’s credibility was sound. The trial judge also applied W.(D.) properly in relation to Counts 2 and 3, in finding that the appellant’s bare denial of the allegations was not credible in light of the cogency of the evidence in its totality.
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The Owners, Strata Plan NW 2364 v. The Owners, Strata Plan NW 2301,
2023 BCCA 55
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2023/01/30
Court of Appeal
The parties are strata owners of side-by-side parcels of land that, for more than 30 years, have shared the use and cost of recreational amenities. The appellant gave notice that it was terminating the arrangement. A chambers judge found that the parties had entered a post-incorporation contract on the same terms as a pre-existing covenant that attached to the lands, and the appellant could not terminate the contract. The appellant appealed the Supreme Court order, arguing that: (1) the issue of a post-incorporation contract should not have been determined by way of a petition; (2) the judge erroneously granted relief on a basis that was not pleaded; and (3) he applied an incorrect legal test in finding a post-incorporation contract. Held: appeal dismissed. The appellant has not established a proper basis for interference with the judge’s discretion about proceeding by way of petition and the adequacy of the pleadings. Finally, the judge did not err in finding there was a post-incorporation contract.
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