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Posted Monday, September 26, 2022:
Arvanitis v. Slater Vecchio LLP,
2022 BCCA 326
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2022/09/26
Court of Appeal
The appellant has filed three applications to vary or cancel four orders made by justices of this Court that either refused an extension of time or required the appellant to post security for costs. The respondent applied for an order prohibiting the appellant from bringing or continuing an appeal or application for leave to appeal without leave of the Court or a justice on the ground that she is a vexatious litigant.
Held: The appellant’s applications to vary or cancel are dismissed. The appellant failed to establish any error in the orders under review. The respondent’s application to find the appellant a vexatious litigant is also dismissed. The extraordinary remedy of a vexatious litigant order is not justified at this stage of the proceedings.
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Hague v. Hague,
2022 BCCA 325
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2022/09/26
Court of Appeal
The appellant and respondent were together for 35 years. In 2011, they entered a consent order that divided their family property equally and required the respondent to pay spousal support to the appellant. The respondent turned 65 in 2020 and retired in 2021. The chambers judge found the respondent’s decision to retire to be reasonable and a material change in circumstances. He terminated the spousal support order. The appellant submits that the judge: (1) gave insufficient reasons; (2) erred by failing to consider her compensatory claim for spousal support; and (3) erred by terminating spousal support before she had been adequately compensated for the disadvantages she suffered as a result of the parties’ marriage and its breakdown. Held: Appeal dismissed. The judge could have clearly stated the framework for varying spousal support and more fully explained his reasons for terminating spousal support. Further, the judge made some minor errors in his determination of the parties’ incomes. Nevertheless, the judge applied the appropriate framework, considered Ms. Hague’s compensatory claim for ongoing spousal support, reached a conclusion that was open to him on the record and adequately explained why he reached that conclusion.
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Posted Friday, September 23, 2022:
Firestar Custom Home Builders Inc. v. 1099000 B.C. Ltd.,
2022 BCCA 324
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2022/09/23
Court of Appeal
This is an appeal from an order dismissing the appellant’s claim following summary trial. The judge dismissed the appellant’s claim for breach of contract or, alternatively, breach of the duty of good faith, finding the respondent was entitled to rely on a cancellation clause in the contract after it failed to secure financing and had properly relied on the clause. The appellant submits the judge misinterpreted the contract in finding the respondent’s ability to obtain financing was a term of the contract and in failing to consider the entire agreement clause, failed to properly apply the law of waiver in finding the appellant had waived the benefit of the notice provisions in the contract, and misapplied the law of contractual repudiation. Held: Appeal dismissed. Leave to raise the entire agreement clause for the first time on appeal is denied, because the issue might have called for further or other evidence or precluded a summary trial. The finding that the appellant waived the benefit of the notice provisions of the contract is a finding of fact; the appellant has failed to identify a palpable and overriding error in this finding. The clause on which the appellant relies to make its claim for lost profit has no applicability in this case.
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Singh v. Insurance Corporation of British Columbia,
2022 BCCA 320
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2022/09/09
Court of Appeal
Five defendants in a civil action by ICBC for fraud, conspiracy, and fraudulent misrepresentation were found liable for staging three car collisions which took place within the span of three months. On appeal, the defendants argued that the judge erred by failing to apply the correct legal test for civil fraud, which requires the plaintiff to prove that the defendants either knowingly or recklessly made a false representation. Further, they claimed that the judge reversed the burden of proof. Held: Appeal dismissed. The judge correctly stated and applied the test for civil fraud. She did not reverse the burden of proof. Ultimately, the judge rejected the appellants’ evidence and did so for good reason, but this is not the same as reversing the burden of proof. She appropriately considered the defendants’ evidence within the context of the whole body of available evidence.
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Posted Thursday, September 22, 2022:
Moiseiwitsch v. Canadian National Railway Company,
2022 BCCA 321
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2022/09/22
Court of Appeal
The appellant appeals an order granting carriage of claims in a class action. The claims advanced by the parties were markedly different. The appellant’s case theory was narrower and identified two defendants. The respondents’ claim was broader and appeared to be more complex. The case management judge awarded carriage of the proposed class actions to the respondents on the basis of their case theory and the defendants they selected. The appellant contends that the case management judge made several errors in principle and that he exercised his discretion in a manner that gives rise to clear injustice. There is no merit to any of these grounds of appeal. Held: The Appeal is dismissed.
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New Westminster (City) v. The Redeemed Christian Church of God,
2022 BCCA 323
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2022/09/22
Court of Appeal
The appellant seeks its costs of this appeal. This Court set aside the orders of the chambers judge below on the ground that the relief sought by the respondent for breach of its Charter rights could not properly be the subject of an application for judicial review brought by petition, but rather must be advanced by way of an action. This court converted petition into a statement of claim and gave leave to the respondent to file a notice of civil claim if it chose to do so. Held: The appellant is entitled to its costs as it enjoyed substantial success on the appeal, which involved issues that were procedural in nature. While the respondent raises issues in its claim that may be of public interest, it has a private interest in the outcome. Costs below shall be in the cause.
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Posted Wednesday, September 21, 2022:
Allen v. Khinda,
2022 BCCA 322
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2022/09/07
Court of Appeal
The appellant tenant seeks to set aside an order that she vacate commercial premises within 30 days. Held: Appeal allowed. The order went beyond the subject matter of the application before the court. The chambers judge granted relief that the respondent landlord was not seeking and without any consideration of the requirements of the Commercial Tenancy Act.
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Harrison v. Haramati,
2022 BCCA 302
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2022/09/08
Court of Appeal
The appellant appeals from an order which, in part, dismissed her application for final decision-making authority over the parties’ three children. She alleges that the judge failed to provide sufficient reasons, focused on the relationship between the parties rather than the best interests of the children, and misapprehended the evidence. Held: Appeal allowed. The reasons were sufficient to permit appellate review, but the judge erred in dismissing the application for decision-making authority. The judge failed to consider the mandatory factors relevant to the best interests of the children under s.37 of the Family Law Act, S.B.C. 2011, c. 25. Instead, the judge focused on the relationship between the parties and speculated that they needed to resolve cross-cultural communication styles. The judge also failed to appreciate the nature of the interventions that had already been tried, as well as their ineffectiveness. The appropriate remedy is for this Court to make the order sought, granting the appellant final decision-making authority with respect to the children.
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