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Posted Friday, January 17, 2020:
Argo Ventures Inc. v. Choi,
2020 BCCA 17
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2020/01/17
Court of Appeal
The appellants entered into a contract for the purchase and sale of a property for approximately $6.5 million, with a non-refundable deposit of $300,000 due within ten business days. The contract was immediately binding upon signature. After signing the contract, the appellants decided not to complete the purchase and did not pay the deposit, which was due and owing. Ultimately, the seller accepted the appellants’ repudiation of the contract for non-payment of the deposit and sued. The trial judge awarded judgment in the amount of the unpaid deposit, plus pre-judgment interest and costs. The appellants argue, among other things, that the judge erred in making this award because an unpaid deposit, unlike a paid deposit, cannot be forfeited upon repudiation of a contract. Held: Appeal dismissed. A seller can sue for the amount of an unpaid deposit that is due and owing at the time the seller accepts the buyer’s repudiation of the contract. A buyer is not entitled to put itself in a better position than it would be in had it met its contractual obligation to pay the deposit by simply refusing to pay the deposit.
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R. v. Holland,
2020 BCCA 16
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2020/01/09
Court of Appeal
The appellant filed four notices of appeal, which were referred to this Court by the Registrar for summary determination under s. 685(1) of the Criminal Code. Held: Appeals dismissed. Three of the notices are interlocutory decisions in criminal proceedings, which this Court lacks jurisdiction to review. The remaining notice is moot.
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Posted Thursday, January 16, 2020:
Wang v. Wang,
2020 BCCA 15
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2020/01/16
Court of Appeal
Mr. Wang and Ms. Wang contracted to jointly purchase property. Ms. Wang granted Mr. Wang a power of attorney for the purpose of applying for a mortgage to secure the necessary funds in the event Ms. Wang’s funds were not ready by the closing date. Mr. Wang received Ms. Wang’s funds before the closing date and applied for a mortgage nonetheless. He funded the purchase of the property with his deposit ($75,000), his mortgaged funds ($570,000), and Ms. Wang’s cash contribution ($651,000). A judge held Mr. Wang did not breach a fiduciary duty and in any event, Ms. Wang was barred from an equitable remedy on the basis of the clean hands doctrine. The judge ordered a contractual accounting.
On appeal, Ms. Wang contends the judge erred in failing to find Mr. Wang owed Ms. Wang a fiduciary duty, in failing to find Mr. Wang breached the fiduciary duty, in restricting the remedy to a contractual accounting, and in holding that Ms. Wang was barred from an equitable remedy. Held: Appeal allowed. The power of attorney created a fiduciary duty that Mr. Wang act in Ms. Wang’s best interests; Mr. Wang breached this duty. Ms. Wang is not barred from an equitable remedy as the clean hands doctrine is narrow and does not encompass her activities here. As a remedy, with an exception for Mr. Wang’s interest in the property due to his deposit, Mr. Wang’s interest should be held in a constructive trust for Ms. Wang with a charging order in favour of Mr. Wang to repay him the principal amount of the mortgage, and there needs to be an accounting of related expenditures and receipts.
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Posted Tuesday, January 14, 2020:
Patterson v. Canada (Minister of Justice),
2020 BCCA 13
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2020/01/14
Court of Appeal
The appellant faces charges of murder, robbery, and theft in Washington, United States arising from an incident that took place in September 2014. The Minister of Justice ordered her unconditional surrender on October 17, 2015. She now applies for bail pending her judicial review of the decision of the Minister declining her submissions for reconsideration. Held: Application dismissed. The appellant has not established a material change in circumstances since her last bail application that would alter the assessment of one or more of the statutory factors set out in s. 679(3) of the Criminal Code. She continues to present a high risk of absconding, and her detention remains necessary in the public interest.
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R. v. Hernandez-Lopez,
2020 BCCA 12
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2020/01/14
Court of Appeal
The appellant, who was supervising a daycare, was alleged to have engaged in sexual touching of AD, a four-year-old child. The only evidence dealing with the touching came from AD; the appellant did not testify. The judge did not hear expert evidence on the assessment of child evidence, nor was any academic literature on that issue referred to by counsel. In his reasons, however, the judge referred to a law review article that made observations with respect to the evidence of children. He found AD’s evidence convincing. In doing so, he noted that AD’s answers to open-ended questions were more detailed and more probative than her answers to leading questions. He also commented on the witness’s demeanour. He convicted the appellant. Held: Appeal dismissed. The law review article made observations with respect to the evidence of children, but was not used as expert evidence. The judge used it as a convenient summary of common-sense observations with respect to child evidence, and such use was not improper. The judge’s assessment of the weight to be given to particular answers and his observations of the witness’s demeanour were within his purview, and did not give rise to reversible error. Finally, the judge’s comment that the accused might have masturbated after the event was unnecessary, but was not used to draw an inference of guilt.
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Posted Monday, January 13, 2020:
R. v. Tallio,
2020 BCCA 14
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2020/01/09
Court of Appeal
Mr. Tallio re-applies for bail pending his appeal. Held: Application granted. The proposed release plan is sufficient to protect public safety.
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