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Posted Wednesday, August 4, 2021:
Hutchison v. Moore,
2021 BCCA 301
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2021/08/04
Court of Appeal
These two appeals arise from two actions involving a dispute concerning a trust and a development project in relation to the trust. The appellant brings the first appeal in her capacity as capital beneficiary of the trust. The appellant brings the second appeal in her capacity as executrix of her mother’s estate. Both actions centred on breaches of the fiduciary duties of the trustees and solicitors. The trial judge dismissed both actions, with the exception of the claim against one of the trustees. The judge concluded that the respondent law firm was in a fiduciary relationship with the appellants and had breached its fiduciary duties by acting in situations of clear conflict. However, the judge found that the particular circumstances of the case rendered the breach irrelevant. The trial judge found that the use of certain proceeds to fund the development project was not a breach of the fiduciary duty owed by the trustees to the beneficiaries. The judge also ordered that, with respect to one trustee, a proper accounting take place, in order to address particular issues raised around the alleged misappropriation of trust funds. The appellant challenges the dismissal of the actions on the basis that the trial judge: misapplied the law concerning the duties of fiduciaries, committed palpable and overriding errors, failed to address all of the claims and submissions before the court, and misapprehended the evidence. Held: Appeals dismissed. The judge did not commit a reversible error in applying the law of fiduciaries. Furthermore, these actions were distinctly fact-driven and unique in their circumstances, particularly with respect to the family dynamics at play amongst the parties. The appellants were well-aware of the conflicts that existed. There was ample evidence upon which the judge could conclude that the appellants received independent legal advice. The judge did err in finding that there was no material non-disclosure, however, he did not err in concluding that there was no loss as a result of the non-disclosure. All of the parties consented to the use of certain proceeds to fund the development project. The trial judge committed no palpable and overriding error, and was entitled, on the evidence before him, to conclude that the appellants would have continued with the development even if they had received the material. In relation to the alleged misappropriation of trust funds, once the passing of the trustee’s accounts has taken place, the parties are free to make submissions to the trial judge.
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Posted Tuesday, August 3, 2021:
Baum v. British Columbia (Director of Adult Forensic Psychiatric Services),
2021 BCCA 300
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2021/08/03
Court of Appeal
The appellant was found not criminally responsible on account of mental disorder for an arson committed in 2011. Since her designation, she has remained under the jurisdiction of the BC Review Board. Since 2017, she has been subject to a conditional discharge from the Forensic Psychiatric Hospital, reviewed annually. In a November 2020 review, the BC Review Board again maintained the conditional discharge, noting the appellant remained a significant risk to public safety and that the risk could not be reliably managed by the civil mental health system. The appellant challenges the conditional discharge, seeking an absolute discharge or, in the alternative, a new hearing.
Held: Appeal dismissed. The Board’s conclusion was acceptable, defensible, and based on coherent reasons that were justified in relation to the facts and the law. The evidence clearly demonstrated that the appellant posed an ongoing risk to public safety if discharged absolutely. Per s. 672.54(a) of the Criminal Code, an absolute discharge is required unless there is a significant risk to public safety. A moderate risk of serious violence satisfies the threshold of a “significant risk to public safety” in s. 672.54(a).
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Etemadi v. Maali,
2021 BCCA 298
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2021/08/03
Court of Appeal
The appellant, Koorosh Etemadi, and respondent, Mehrsa Maali, are scheduled to go to trial in February 2022 in contested family litigation. A central issue at trial is the division of property, including a townhouse that was the former family home, which Mr. Etemadi maintains is 50% owned by his father, Dr. Etemadi, who is also a party to the litigation. Before trial, Ms. Maali applied for an interim distribution of property of $250,000 pursuant to s. 89 of the Family Law Act to fund her legal costs. A judge in chambers granted her application and ordered that if Mr. Etemadi did not advance $250,000 to Ms. Maali within 30 days, the townhouse was to be sold pursuant to Rule 15-8(1) of the Supreme Court Family Rules to fund the distribution. He also granted Ms. Maali sole conduct of sale. On appeal, the appellants submit, inter alia, that the judge erred in ordering an interim distribution and sale in a (final) manner that impacts the interests of a third party to the family litigation.
Held: Appeal allowed in part. The judge’s orders granting an interim distribution of $250,000, and if not paid, for the sale of the townhouse within 30 days, are upheld. The order granting sole conduct of sale to Ms. Maali is set aside. The judge did not err in his analysis of harm and necessity in finding that an interim distribution was appropriate under s. 89, nor in ordering the sale of the townhouse as necessary to fund the distribution. Courts may order a sale under Rule 15-8(1) even where it impacts the interests of third parties if it is necessary or expedient that the property be sold. As to the quantum of the distribution ordered, courts are to determine what is necessary to fund dispute resolution in light of the issues to be determined and the apparent value of the family property. In this case, the judge’s assessment was discretionary and is owed deference on appeal. However, the judge erred in granting sole conduct of sale to Ms. Maali without any such application from her and without justification of her inability to cooperate with Dr. Etemadi regarding the sale.
Dissent: Butler J.A. dissents on the quantum of the distribution and would substitute the figure of $125,000. The judge did not undertake the requisite analysis to determine the amount necessary to fund the litigation within the strict parameters of s. 89, under which distributions are extraordinary in nature and must be assessed carefully. The judge further drew inferences and resolved contested issues in a manner beyond that which was appropriate on the application before him. The $250,000 ordered was disproportionate in the circumstances of the case.
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McLeod v. Law Society of British Columbia,
2021 BCCA 299
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2021/08/03
Court of Appeal
A Panel of the Law Society found that the appellant had committed professional misconduct by failing to conduct himself in a manner characterized by courtesy and good faith but concluded that the same conduct did not amount to sharp practice. The allegations in the citation arose out of the appellant’s actions in failing to provide notice of the hearing of a committeeship application to counsel who advised the appellant that she had been retained by the patient and intended to participate in the application. The appellant challenges the finding that he committed professional misconduct and the Law Society cross appeals from the finding that his conduct did not amount to sharp practice. Held: Appeal and cross appeal dismissed. The appellant is unable to point to any error in the findings of fact or inferences drawn by the Panel, nor can he identify any error of law. Under s. 48 of the Legal Profession Act, the Law Society is limited to appeals on a question of law. It is unable to identify any error of law made by the Panel.
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R. v. Hamer,
2021 BCCA 297
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2021/08/03
Court of Appeal
Following a conviction by jury of several offences, including aggravated assault, the appellant was found to be a dangerous offender and was given an indeterminate sentence. The appellant appeals his designation and sentence, arguing that the sentencing judge erred in making findings of fact that were inconsistent with the jury’s verdict, impermissibly relied on character evidence, erred in rejecting evidence of defence witnesses, imposed a sentence that violated the parity principle, and failed to consider Gladue principles. The appellant sought to adduce fresh evidence in the form of a Gladue report. Held: Appeal dismissed; the application to adduce fresh evidence is dismissed. The sentencing judge’s conclusions were entirely consistent with the evidence and the verdicts. The judge did not err in her consideration of the evidence, and did not improperly consider either the prior mischief count or the telephone call in concluding that the appellant had engaged in a pattern of behaviour pursuant to s. 753(a)(i). Given the judge’s rejection of the appellant’s evidence regarding his sincerity for wanting to change, the judge was entitled to afford the defence evidence, which relied directly on the appellant’s self-reporting, little weight. The sentence is not “a substantial and marked departure” from sentences normally imposed for offenders in similar circumstances, and thus appellate intervention is not warranted. Finally, there is nothing in the Gladue report to show that systemic or background factors as described in Gladue and Ipeelee operated in any way in the appellant’s life or affected his moral culpability for his criminal offending. The application of the Gladue principles in this case would not have affected the result, and therefore the evidence does not meet the fourth criteria in the Palmer test.
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Posted Friday, July 30, 2021:
R. v. Pugh,
2021 BCCA 293
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2021/07/30
Court of Appeal
The appellants appeal from conviction on grounds that the trial judge wrongly dismissed their ss. 11(b) and 24(1) Charter application for a stay of proceedings. They say the judge erred in the calculation methodology he employed when attributing delay to a discrete exceptional event. They also contend that the judge erred in finding defence delay in the circumstances of this case and miscalculated the amount of that delay. Held: Appeals dismissed. In calculating delay, the judge properly took into account the cascading effect of the events and conduct in question. He also did not err in his attribution and allocation of defence delay, finding as a fact that the appellants did not exercise due diligence in pursuing a request for disclosure. That request, which manifested itself in the form of a late court application, interrupted the trial and caused the need for continuation dates.
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Wang v. Shi,
2021 BCCA 296
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2021/07/30
Court of Appeal
The appellants agreed to sell the shares of their business to the respondent. The respondent, alleging breach of contract, refused to pay the final installment, brought an action for the return of money already transferred, and registered a certificate of pending litigation against title to the appellants’ family home. The parties reached a settlement agreement and entered a consent order under which the appellants would make several payments in exchange for the action being dropped. The respondent subsequently filed a certificate of judgment against the appellants’ home and removed the certificate of pending litigation. When the appellants failed to make the first payment under the consent order, alleging it had been entered into under duress, the respondent re-registered the certificate of pending litigation. The appellants applied to set aside the consent order, entered judgment, and certificate of judgement, arguing that the respondent had accepted the appellants’ repudiation of the settlement agreement by re-registering the certificate of pending litigation. The chambers judge refused to set them aside but stayed their execution until the duress issue could be resolved. The appellants challenge the refusal to set aside the consent order, certificate of judgment, and entered judgment.
Held: The judge did not err in declining to set aside the order, judgment, and certificate. Given the novel positions being advanced, limited pleadings, and ongoing and potentially dispositive proceeding on the issue of duress, the decision to leave the consent order in place and stay its execution was not plainly wrong. Appeal allowed in part to extend the stay until resolution of both the duress and entitlement issues.
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