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Posted Tuesday, May 20, 2025:
Canadian National Railway Company v. British Columbia (Environmental Management Act),
2025 BCCA 156
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2025/05/20
Court of Appeal
The appellants, who are all interprovincial railways, challenge orders issued under s. 91.11 of the Environmental Management Act (the “EMA”) which would require them to disclose information about the routes and volumes of crude oil and diluted bitumen they transport through British Columbia (the “Orders”). The appellants first appealed the Orders to the Environmental Appeal Board, which found that s. 91.11 of the EMA was invalid on division of powers grounds, or alternatively inapplicable to the appellants. The Board dismissed the argument that the Orders were inoperative. The Board declined to make findings about the legitimacy of the appellants’ argument that the required disclosure under the Orders raised security concerns, and that such concerns fell within the core of the federal power over interprovincial undertakings. On judicial review, the chambers judge set aside the Board’s decision and concluded that the Board erred in determining that s. 91.11 was invalid, as well as inapplicable for the reasons it gave. He agreed with the Board that the Orders were not inoperative, albeit for different reasons. Finally, he remitted the question of inapplicability, in light of the security-related evidence, back to the Board.
On appeal, the appellants argue that the Orders were unlawful and that the chambers judge erred in his constitutional conclusions on validity, applicability, and operability. On cross-appeal, the respondents seek to set aside the chambers judge’s order remitting the security issue back to the board on the basis that it is unnecessary because there is no recognized core of federal power in relation to security issues.
Held: Appeal and cross-appeal dismissed. The chambers judge did not err in determining the pith and substance of s. 91.11 is spill planning, preparedness, and response, and that this was a matter within provincial jurisdiction under s. 92 of the Constitution Act, 1867. The Orders, and the provision of the EMA on which they were based, are applicable to the appellants. The direction to provide route and volume information does not impair a core of federal power over interprovincial undertakings. The Orders are not inoperative under the doctrine of federal paramountcy. There was no operational conflict between the Orders and directions issued under relevant federal legislation, nor did the appellants meet the burden of establishing that the purpose of that federal legislation would be frustrated by the operation of the Orders.
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Sewell v. Abadian,
2025 BCCA 158
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2025/05/20
Court of Appeal
The appellant signed a purchase agreement to purchase a home from the respondent. As part of the agreement, the respondent delivered a disclosure form, with a line through all the questions, including the question of whether there was an unpermitted addition. In additional comments, the respondent wrote “Tenanted Property, Owner has never occupied”. In fact, the respondent was aware of an unpermitted addition, which was disclosed when he purchased the home. After paying one of two deposits, the appellant became aware of the addition and decided not to move forward with the sale. She sued the respondent for return of her initial deposit based on a negligent or fraudulent misrepresentation in the disclosure statement; the respondent counterclaimed for delivery of the second deposit. At trial, the judge found that the respondent had made no representations in drawing a line through the disclosure form, dismissing the appellant’s claim and allowing the counterclaim.
HELD: Appeal allowed. The judge overlooked material evidence in his reasoning, namely that the respondent was previously a licensed realtor and knew the importance of accurately completing disclosure forms; the disclosure form received by the respondent when he bought the house did disclose the addition; the form itself certified that it was complete and accurate and changes to the information provided would be communicated; the comments provided by the respondent that the property was tenanted and never occupied by him were not responsive apart from suggesting that he did not know the answers to the form’s questions. When the form is interpreted in light of this evidence, it is a representation that the respondent was not aware of unpermitted additions. This was a misrepresentation.
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Posted Friday, May 16, 2025:
Green Light Solutions Corp. v. Kern BSG Management Ltd.,
2025 BCCA 166
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2025/05/08
Court of Appeal
The applicant seeks leave to appeal from a costs award in an arbitration order, and a stay of that costs award. The parties entered a contract for a construction project. The respondent invoiced the applicant for work it completed. The applicant took the position that it was entitled to hold back the amount owed indefinitely due to ongoing deficiencies. The arbitrator found that while the amount payable requited assessment of deficiencies that ought to already have been done and contractual interest would be due from that point forward. The arbitrator found that neither party was substantially successful and ordered that the applicant was entitled to 40 percent of its costs while the respondent was entitled to 60 percent of its costs.
Held: Applications dismissed. Arbitration awards can only be appealed directly to this Court on questions of law, which the applicant has failed to establish. The arbitrator applied the correct test for determining substantial success; the applicant disagrees with how he applied the test. The arbitrator did not commit an error of law in exercising his discretion not to follow the ordinary rule that if neither party is substantially successful each will bear their own costs. The applicant alleges breaches of procedural fairness which under s. 58(1)(h) of the Arbitration Act are properly brought to the BC Supreme Court. Finally, the arbitrator did not improperly consider the applicant’s pre-litigation conduct when allocating costs.
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Ma v. Wu,
2025 BCCA 165
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2025/05/08
Court of Appeal
Application to dismiss the appeal as abandoned because the appellant has failed to comply with an order to pay security for costs. The security for costs order of a justice in chambers has been upheld by a division of this Court and leave to appeal to the Supreme Court of Canada has been dismissed. The appellant says he cannot pay and the security for costs order should be overturned.
Held: Application allowed. The appellant has no plan to pay security for costs and has provided no legal basis for overturning the order of another justice of this Court. Further delay in paying security would prejudice the respondent. Any limited merits to the appeal do not justify declining to dismiss the appeal. The appeal is dismissed as abandoned.
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Queen Elizabeth Annex (QEA) Parents’ Society v. Vancouver School District No. 39,
2025 BCCA 160
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2025/05/16
Court of Appeal
An elementary school providing French immersion education to around seventy students from kindergarten to grade 3 was closed, and the site leased to the francophone school board. An organization comprised of interested parents sought judicial review of those decisions. Its petition was dismissed. On appeal, it argues that the chambers judge erred in finding that the decision was procedurally fair and reasonable, and in ordering costs against it. It argues that by attending workshops on the public consultation process undertaken in making the closure decision, the Board contravened the requirements in the School Act that meetings be open to the public. It also argues that the decision was unreasonable because the true rationale was an improper attempt to secure funding from the Province, which had tied funding to the disposition of school sites in order to transfer them to the francophone school board, and other reasons that were not rational or coherent. Finally, it appeals the cost order made against it in the underlying petition, which was based partially on it advancing arguments of bad faith, submitting that the litigation here is akin to public interest litigation, which should be protected from cost awards.
Held: Appeal dismissed. The appellant has not shown error in the chambers judge’s conclusions that the school closure decision was not discussed or debated at the workshops. The workshops therefore did not deprive the public from observing a material part of the decision-making process. They were not meetings under the School Act. The chambers judge also correctly found that the decision to close and dispose of the school site was reasonable. It was entirely appropriate for the Board to consider the funding incentive provided to it by the Province, which was in turn motivated by court orders requiring the province to take action to assist the francophone school board in securing school sites. This was not an improper rationale, and it was not hidden from the interested parents and other stakeholders. The decision as a whole was coherent and rational and justified in light of the factual and legal constraints. Finally, costs orders are highly discretionary, and the appellant has not shown any error that would require appellate intervention. The appellant itself requested costs of the hearing. Although it was given an opportunity to make submissions on costs, it did not. In an earlier application for an injunction, the appellant was put on notice of the lack of merit of many of its claims. It chose to continue its spurious allegations of bad faith. The analogy to public interest litigation falls short. Although the cost award is significant, there is no basis to set it aside.
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R.R. v. Vancouver Aboriginal Child and Family Services Society,
2025 BCCA 151
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2025/05/08
Court of Appeal
The appellant, RR, is a racialized Afro-Indigenous woman facing structural and intersectional disadvantage. The respondent and cross-appellant, Vancouver Aboriginal Child and Family Services Society (the “Society”), is an Indigenous child welfare agency established to address the grossly disproportionate number of Indigenous children coming into government care. The Society removed but eventually returned RR’s children. RR felt the Society discriminated against her in the process, and that its decisions about her ability to care for her children were based on her protected characteristics, rather than her children’s best interests. RR brought a complaint to the BC Human Rights Tribunal (the “Tribunal”) under the Human Rights Code, R.S.B.C. 1996, c. 210 [Code].
The Tribunal Member (“Member”) concluded the Society had discriminated against RR and ordered the Society to pay her $150,000 in compensation. On judicial review, the chambers judge rejected the Society’s contention the Tribunal did not have jurisdiction to hear RR’s complaint. However, he found the Member, in vindicating RR’s rights, failed to do so consistently with the child-centered legal framework established by the Child, Family and Community Services Act, R.S.B.C. 1996, c. 46 [CFCSA]. According to the chambers judge, the Member’s approach would create an operational conflict between the Code and the CFCSA, and undermine social workers’ ability to intervene in the best interests of the child. The chambers judge set aside the Member’s decision and remitted it to the Tribunal for further consideration.
On appeal, RR seeks to restore the Member’s decision. On cross-appeal, the Society maintains the Tribunal did not have the jurisdiction to hear the complaint and it should therefore be dismissed. Held: Appeal allowed, order of Tribunal restored and cross-appeal dismissed. The Tribunal had the jurisdiction to hear the complaint. Finding otherwise would leave RR, and other parents in a similar situation, without the ability to vindicate their right to be free of discrimination. There is no operational conflict between the CFCSA and the Code. The CFCSA protects children while the Code ensures child protection services are delivered free of discrimination. The Member’s decision does not “hamstring” social workers with irreconcilable legal duties. Instead, it provides redress to RR for the discrimination she endured. The decision should have no impact on the duties performed by individual child protection workers. These duties can, and should, be performed in a non-discriminatory manner. The Member followed a fair process and did not expand the scope of the complaint. There was no basis to interfere with the Member’s decision.
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Trigon Pacific Terminals Limited v. Prince Rupert Port Authority,
2025 BCCA 155
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2025/05/16
Court of Appeal
The appellant, Trigon, appeals from an order denying its application for production of unredacted copies of certain commercial agreements between the respondents, the Prince Rupert Port Authority and Ridley Island Energy Export Facility Limited Partnership.
Held: The Appeal is dismissed. The judge did not err in concluding that he had discretion, under the Supreme Court Civil Rules, to deny an application for production of redacted documents where the redacted information is only of marginal or tangential relevance and where there is “good reason” for the redactions. Production orders are discretionary, including in the context of redactions to otherwise producible documents, and this discretion is guided by the principle of proportionality as it applies to the relevance of the redacted information and the strength of the reason for redaction. The judge also made no error in determining that the redacted information in question was ultimately irrelevant and that there was a “good reason” for the redactions. Nor did he err in failing to consider alternatives to redaction.
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Posted Thursday, May 15, 2025:
Petrov v. Plan A Real Estate Services Ltd.,
2025 BCCA 163
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2025/05/14
Court of Appeal
The appellant is a tenant in a residential building. He removed some artwork from the laundry room of the building, arguably for the purpose of preserving it. On noticing that the artwork was missing, the landlord reported the matter to police. After it became clear that the tenant had removed the artwork and after he returned it, the landlord served a notice to end the tenancy, on the basis that the appellant had engaged in illegal activity and jeopardized lawful rights or interests of the landlord or others. The tenant sought to have the notice cancelled but his application was dismissed by a residential tenancy arbitrator, who found the tenant’s actions to be “illegal and seriously jeopardizing for the landlord and other occupant’s lawful rights”. The arbitrator granted the respondent an order of possession in respect of the rental premises. The appellant applied for judicial review and sought a stay of the order of possession pending the hearing of the judicial review application. A Supreme Court Judge denied the stay, holding that there was no serious issue to be tried as to the arbitrator’s reasons or exercise of discretion. The appellant appealed from the denial of a stay and obtained a stay pending the hearing of the appeal. On appeal, held: Appeal allowed. The chambers judge erred in finding that the appellant did not present an arguable case. The balance of convenience decidedly favoured the appellant. The appellant is granted a time-limited stay of the order for possession so that the judicial review petition may be heard.
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