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Posted Wednesday, April 30, 2025:
Bhatti v. Grewal,
2025 BCCA 138
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2025/04/30
Court of Appeal
The appellant, Ms. Bhatti, appeals from an order striking her counterclaim against her former husband's parents and sister regarding her claim to family property. Her claim was struck because, according to the judge, her amended counterclaim failed to comply with an earlier order requiring her to amend the pleadings to disclose a cause of action and material facts.
Held: appeal allowed. The amended pleading could have been clearer, but it does set out a cause of action and at least some material facts. While it failed to comply with the judge’s order, it complied with the requirements of the Supreme Court Family Rules. Accordingly, the appellant should have an opportunity to amend the deficiencies that are capable of repair. Ms. Bhatti is required to file a further amended counterclaim detailing the causes of action and material facts.
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Chung v. Chung,
2025 BCCA 136
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2025/04/30
Court of Appeal
This appeal involves a dispute between two brothers over the management of Vancouver properties they purchased as a joint investment. The properties were held by corporate trustees. A trial judge found that one of the brothers (Won Sok Chung), misappropriated funds from the corporate trustees’ bank accounts for personal use. He used the money to purchase a residential property. To remedy the misappropriation, the judge ordered a 45% constructive trust against the residential property in favour of the second brother (Jae Hoon Chung). On appeal, it is alleged the judge erred in rendering the constructive trust subject to an accounting process that was established under a partial settlement agreement reached in relation to other issues. The judge is also said to have erred in dismissing a claim for punitive damages.
HELD: Appeal allowed. The term of the final order rendering the constructive trust subject to the accounting is set aside. Punitive damages are also awarded in the amount of $100,000. Making the constructive trust “subject to” the outcome of the accounting cannot be logically reconciled with findings made about the scope and effect of the partial settlement agreement. On the second issue, a punitive damages award was rationally required given the respondent’s reprehensible conduct as a fiduciary, including misappropriating over $1.6 million from corporate trustee bank accounts, using it for personal gain, and then actively taking steps to conceal the wrongdoing.
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McPhail v. Ross,
2025 BCCA 139
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2025/04/30
Court of Appeal
The plaintiff in a personal injury action appeals the outcome of a remittal hearing in the trial court after his successful appeal from the initial damages award. The initial trial judge found that the plaintiff had not proven that he experienced a loss of income or required future care as a result of the motor vehicle accident caused by the defendant’s negligence. However, she awarded $35,000 in non-pecuniary damages to reflect some minor physical injuries that had resolved by trial. On appeal, this Court found that the trial judge had overlooked expert evidence that the plaintiff had some lingering psychological symptoms caused by the accident. The matter was remitted to the trial court to reconsider damages in light of this evidence. The remittal judge found the evidence was not sufficient to prove the plaintiff’s claims for a loss of earning capacity and rejected a new claim for loss of marriageability. However, the remittal judge increased the non-pecuniary damages to $50,000 and awarded $3,600 to cover future counselling sessions. The remittal judge noted that the non-pecuniary award was limited by the fact that the plaintiff had not mitigated his damages because he did not seek psychological treatment after first being diagnosed with a trauma disorder by his doctor immediately following the accident. On appeal, the plaintiff seeks to introduce additional evidence from experts, and he argues that the remittal judge, trial judge and the Court of Appeal made several errors. He also argues that the remittal hearing was procedurally unfair and that there was a reasonable apprehension of bias.
Held: Appeal allowed in part. The appellant’s arguments that he should have been awarded damages for loss of earning capacity and loss of marriageability are rejected. The appellant’s arguments are limited by the fact he did not lead sufficient evidence at trial to show his capabilities before the accident, and his own testimony was found by the trial judge to be unreliable and lacking credibility. The remittal to the trial court was on a limited question and was not a full re-trial nor did it permit the appellant to advance new heads of damages such as loss of marriageability. The principle of finality means that the appellant cannot re-argue issues that he otherwise lost in the first trial and appeal or did not raise at trial. There was no reasonable apprehension of bias. However, the remittal judge’s conclusion that the appellant failed to mitigate was in error. The judge raised this on his own without hearing from the parties and made a palpable and overriding error of fact as the appellant’s doctor did not diagnose him with a trauma disorder or recommend treatment for it following the accident. As such, the award for non-pecuniary damages is reassessed, and varied to $60,000.
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Zhang v. Zhang,
2025 BCCA 143
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2025/04/30
Court of Appeal
The appellants were found liable for breach of trust in relation to two trusts by which they held shares and units in a BC company in trust for the respondents. Though they denied the existence and enforceability of the trusts, the trial judge found the trusts enforceable and held the appellants liable for substantial sums of money. In addition, he ordered them to pay punitive damages and special costs.
The appellants did not dispute the judge’s findings of fact and credibility but argued that the trusts were set up to help the respondents avoid creditors and were thus illegal and unenforceable. Alternatively, they claimed the judge erred in principle in assessing damages at the highest value at which the shares were traded and in awarding punitive damages.
Held: appeal dismissed. The trial judge’s conclusion that the trusts were enforceable was principled, consistent with the authorities, and is owed deference, given the trusts were not illegal per se, and what evidence was before the judge. Further, it was open to the judge to assess damages at their highest trading value based on a balancing of equities and with the goal of deterring faithless fiduciaries. His assessment was entitled to deference.
Moreover, the judge did not err in principle in awarding punitive damages. In the circumstances, punitive damages did not reward illegal conduct, and it was open to the judge to make the award he did to reflect appropriate denunciation of conduct he found to be exceptionally egregious.
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Posted Tuesday, April 29, 2025:
WestJet v. Gauthier,
2025 BCCA 134
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2025/04/29
Court of Appeal
The appellant, WestJet, is a commercial airline operating domestically and internationally. The respondents are persons with disabilities who require extra seating or space on airplanes in order to accommodate their disabilities. Pursuant to the common law and provincial consumer protection legislation, the respondents brought a proposed class action against WestJet seeking a declaration that the standard form contracts pursuant to which WestJet charges disabled passengers for extra seating are unconscionable, rescission of those contracts, restitution of the extra fares charged, and injunctive relief.
The appeal arises from a Supreme Court judge’s refusal to grant the appellant’s application to strike the proposed class action. WestJet submits that the Supreme Court of British Columbia lacks subject matter jurisdiction over the action and that the relevant federal regulations grant it a positive entitlement to charge per-seat fares to disabled passengers; as such, to the extent that the common law or provincial legislation might preclude the practice, they are rendered inoperative as per the doctrine of federal paramountcy.
Held: The appeal is dismissed. It is not plain and obvious that the Supreme Court lacks subject matter jurisdiction over the proposed class action, as it is not plain and obvious that the respondents’ claim is fundamentally a claim of discrimination. It is also not plain and obvious that the regulations that WestJet relies upon engage the doctrine of federal paramountcy.
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Posted Friday, April 25, 2025:
Speckling v. Communications, Energy and Paperworkers’ Union of Canada, Local 76,
2025 BCCA 133
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2025/04/25
Court of Appeal
The appellant, Walter Speckling, applies to re-open an appeal. An order reflecting the result of the appeal has not yet been entered. HELD: The application to re-open is denied. Although the Court has jurisdiction to re-open before entry of a final order, the appellant has not met the test for doing so. He seeks to raise three issues. One of those issues could have been but was not advanced at the hearing of the appeal. The other two were raised and resolved by the Court in the respondents’ favour. The appellant has not demonstrated a clear and compelling case in favour of re-opening.
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Posted Thursday, April 24, 2025:
Delane Industry Co. Ltd. v. Tsawwassen Quay Market Corporation,
2025 BCCA 129
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2025/04/10
Court of Appeal
This appeal involves a longstanding dispute over common area expenses payable under a five-year subleasing agreement entered into in 2005/06. A Registrar’s Report determined no monies were owing, by either side. That Report was confirmed by a Supreme Court judge. The appellant appealed from the confirmation, alleging multiple errors. It also brought a fresh evidence application in support of the appeal, and sought review of a decision by a chambers judge denying leave to add a third party as a respondent to the appeal. HELD: All three matters are dismissed. The appellant does not meet the test for the admissibility of fresh evidence. Nor has he established a proper basis for appellate interference with the other two orders.
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R. v. Kavanagh,
2025 BCCA 135
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2025/04/14
Court of Appeal
This is an appeal from an indeterminate sentence for sexual interference. The appellant was declared a dangerous offender and sentenced to an indeterminate sentence after the judge decided there is no “reasonable possibility” the appellant will make sufficient progress within a fixed sentence to control his risk in the community. The appellant says the judge erred in reaching that conclusion, including misapprehending parts of the evidentiary record. HELD: Appeal allowed, but only to the extent necessary to set aside victim surcharges imposed by the judge. The remainder of the sentence will remain intact. The appellant has not established an error of law or palpable and overriding error of fact that would otherwise allow for appellate intervention. Furthermore, based on the record as assessed and weighed by the judge, there were ample bases from which the judge could reasonably conclude in favour of an indeterminate sentence.
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