Search Results
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W. Hanson Holdings Ltd. v. Wolrige Mahon Ltd.,
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1995/10/13
Court of Appeal
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W. R. Grace & Co. of Canada Ltd. v. Privest Properties Ltd.,
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1991/07/23
Court of Appeal
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W. R. Grace & Co. of Canada Ltd.v. Privest Properties Ltd.,
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1992/06/03
Court of Appeal
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W.(K.J.) v. W.(M.D.),
2003 BCCA 410
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2003/01/20
Court of Appeal
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W.(K.J.) v. W.(M.D.W.),
2003 BCCA 292
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2003/05/15
Court of Appeal
Application dismissed to vary order made in Chambers dismissing appellant's application for indigent status.
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W.A. v. British Columbia,
2003 BCCA 448
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2003/08/15
Court of Appeal
On an application for directions in respect of an appeal from a class-action "carriage order", it was held that an order staying one action as a proposed class action and granting carriage of the proposed class action to counsel in another action is an interlocutory order because the stay precludes only an application for certification and does not bring an end to that proceeding in the Supreme Court. Accordingly, leave to appeal is required.
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W.N. v. C.G.,
2012 BCCA 149
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2012/04/04
Court of Appeal
This appeal concerns the custody of two young children. The children’s father (respondent on appeal) and their former foster parents (the appellants) both claimed sole custody and guardianship pursuant to s. 35 of the Family Relations Act, R.S.B.C. 1996, c. 128. The trial judge awarded sole custody and guardianship to the father and dismissed the appellants’ application as against public policy. She held that their application was in conflict with the proper role of foster parents under the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, and with the Ministry of Children and Family Development’s decision to return the children to their father’s care. The central issue raised on appeal is whether the judge erred in deciding that, where the Ministry has returned children to the care of a natural parent, it would be against public policy to permit foster parents to apply for custody under the FRA in contest with the custody rights of a natural parent.
The second issue is whether the judge erred by interpreting s. 24(3) of the FRA in an overly restrictive manner by limiting consideration of the father’s conduct. The appellants argue that, in doing so, the trial judge unduly limited their ability to show the father’s unsuitability as a parent.
The Appeal is allowed and a new trial ordered.
The judge erred in her interpretation of s. 24(3) by overly restricting the cross-examination of the respondent concerning conduct that may be relevant to his parenting ability.
The judge erred in dismissing the appellants’ application based on public policy reasons and without considering the best interests of the children in the context of the competing claims of the father and the foster parents.
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Waddell v. Canada (Minister of Justice),
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1996/05/29
Court of Appeal
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Waddell v. Cintas Corp.,
2001 BCCA 717
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2001/12/13
Court of Appeal
An action for wrongful dismissal. The employment contract provided that notice of termination shall be the greater of what is provided in the Ontario Employment Standards Act or 4 weeks. The plaintiff was transferred to B.C. from Ontario, fired here, and paid 4 weeks. The plaintiff alleged that the primary contract was invalid on the ground that it did not meet the minimum requirements of the B.C. Employment Standards Act and therefore he was entitled to notice at common law. Trial judge dismissed action. He rejected plaintiff's primary argument as well as the contentions that the transfer to B.C. destroyed the substratum of the contract; and that he was both employed by American and parent company and Canadian subsidiary, only one of which held an employment contract. Appeal allowed: on appeal, the plaintiff brought to light a feature of the 2 statutes which showed a potential for less favourable compensation under the Ontario scheme and therefore contract did not meet minimum requirements of the B.C. Act. Since the case would have to be remitted to assess damages anyway, the defendants were given the opportunity to lead evidence that in practice the Ontario scheme produces the same compensation as B.C. The remaining issue of liability should be tried in accordance with this decision and damages assessed if the plaintiff succeeds.
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Wade v. Duck,
2018 BCCA 176
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2018/05/08
Court of Appeal
The appellant, the administrator of the Deceased’s estate, seeks to overturn an order of the Supreme Court releasing certain funds held in trust to the respondent, the Deceased’s common-law wife. The issues at trial that remain relevant on this appeal were whether the respondent was liable for any part of a loan agreement entered into by herself and the Deceased in the purchase of a motorhome, and whether the respondent breached her duties as the former executrix of the Deceased’s estate by failing to preserve the value of the motorhome. The judge answered both questions in the negative.
Held: appeal allowed. The judge erred in considering the Deceased and the respondent’s post-contractual conduct as relevant to his interpretation of the loan agreement. As per the terms of the agreement, the respondent was jointly and severally liable for the loan. Consequently, she was liable to contribute 50% of the loan to the estate. There was also sufficient evidence for the judge to conclude that the respondent had breached her duties as executrix, and the judge erred in finding otherwise.
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Wade v. Strangway,
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1996/02/07
Court of Appeal
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Wafler v. Trinh,
2014 BCCA 95
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2014/03/10
Court of Appeal
The plaintiff was injured in a motor vehicle accident for which the defendant admitted liability. A jury awarded the plaintiff an amount significantly less than the three settlement offers that had been made before trial. The judge awarded the plaintiff costs up to the date of the third offer. Each party bore their own costs after that date. The plaintiff appealed the jury’s award and the defendant appealed the judge’s decision not to award costs in the defendant’s favour.
Held: appeal and cross-appeal dismissed. The jury’s award was supported by the complex and sometimes conflicting medical evidence and there is no basis on which to interfere with it. Costs awards are discretionary, even when an offer to settle has been made. The trial judge exercised his discretion appropriately.
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Wage v. Royal Insurance Canada,
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1990/06/25
Court of Appeal
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Wagner (Guardian of) v. Briggs,
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1991/05/17
Court of Appeal
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Wagner v. Nelson et al.,
2000 BCCA 48
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2000/01/20
Court of Appeal
Extension of time refused because appeal having no prospect of success.
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Wagner v. Town of Oliver,
2003 BCCA 38
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2003/01/10
Court of Appeal
Appeal from a decision on a special case interpreting "irrigation purpose" as defined in the Water Act. Held: appeal allowed. "Irrigation purpose" includes sprinkling of grape vines during the growing season for the purposes of frost protection.
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Wah Fai Plumbing & Heating Inc. v. Ma,
2011 BCCA 26
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2011/01/27
Court of Appeal
The appellant subcontractor appealed from the dismissal of its claims for a lien against the holdback under the Builders Lien Act, S.B.C. 1997, c. 45, and a constructive trust as a remedy for unjust enrichment, in connection with the balance owing for plumbing work completed on the home of the respondent owners. The owners cross-appealed the order denying them costs. Held: appeal dismissed; cross-appeal allowed. The owners had not retained a holdback from their payments to the contractor as required by s. 4 of the Act. In those circumstances, which distinguished this case from Shimco Metal Erectors Ltd. v. Design Steel Constructors Ltd., 2002 BCSC 238, 99 B.C.L.R. (3d) 59, aff’d Shimco Metal Erectors Ltd. v. North Vancouver (District), 2003 BCCA 193, 11 B.C.L.R. (4th) 199, the appellant was not entitled to a declaration of a lien against the holdback. The appellant’s claim that the owners were unjustly enriched failed because it did not prove the owners were enriched by failing to pay the contractor in full for the work. The trial judge erred in principle in denying the owners the costs of the trial based on pre-litigation conduct.
Chiasson J.A. concurring: The legislation provides for two liens only: land and holdback. A lien must attach to property. In this case, there being no property to which the holdback lien could attach, the appellant is not entitled to a declaration of lien.
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Wahl v. Sidhu,
2012 BCCA 111
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2012/03/08
Court of Appeal
The appellant sustained physical and psychological injuries following a motor vehicle accident for which liability was admitted. The trial judge cut off damages at a point three years post-accident, finding that the appellant would have been fully recovered by that time had he properly mitigated his damages by attending a pain clinic and undergoing a needle test on his right shoulder. He held that through his own motivation, the appellant should have overcome symptoms which continued after this date and thus, those symptoms were not causally connected to the accident. The appellant argued that the trial judge erred in finding that he should have been fully recovered by the cut-off point.
Held: Appeal allowed, and a new trial ordered. The trial judge erred in his application of the test for mitigation of damages and confused the issues of mitigation and causation, making it impossible to engage in meaningful appellate review. Given the nature of the error, which significantly impacted the awards for loss of future earning capacity and past wage loss, the interests of justice plainly required a new trial.
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Wahlla v. Delta Sunshine Taxi (1972) Ltd.,
2012 BCCA 80
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2012/02/20
Court of Appeal
Appeal from the dismissal of an application under s. 229 of the Business Corporations Act, S.B.C. 2002, c. 57, to set aside the election of the Board of Directors of the respondent, Delta Sunshine Taxi (1972) Ltd. A court-ordered annual general meeting of the company was cancelled after holders of proxies objected to the proxies not being accepted because they were not deposited with the company not less than 48 hours before the meeting, as required by the Articles. Historically, proxies had been submitted and counted at the meeting. The appellants did not attend the reconvened meeting, at which the proxies were not counted, and the Board of Directors was elected. The chambers judge dismissed the application on the ground that the appellants’ misconduct in disrupting the first meeting disentitled them to an equitable remedy.
Held: Appeal allowed, order appealed from set aside, and new meeting ordered. It was a reasonable inference from the facts that the appellants had been involved in the disruption of the meeting, and their conduct was not irrelevant to the exercise of the chambers judge’s discretion in deciding whether to provide a remedy under s. 229 of the BCA. However, the appellants were seeking a statutory discretionary remedy, not an equitable remedy. In applying the “clean hands doctrine” to deny a remedy, the chambers judge did not take into account the interests of all of the shareholders, and thus did not apply the appropriate legal principles in exercising her discretion.
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Wait v. Wait,
2000 BCCA 406
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2000/06/28
Court of Appeal
Appeal from child support order turning on proper application of s. 7 of the Federal Child Support Guidelines. Issue of whether Montessori pre-school for three-year-old was a "necessary and reasonable" extraordinary expense. Appeal allowed.
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Wakeford v. College of Physicians and Surgeons of British Columbia,
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1993/08/17
Court of Appeal
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Wakelam v. Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc.,
2014 BCCA 36
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2014/01/30
Court of Appeal
The plaintiff’s class action against manufacturers of children’s cold medicines was certified by trial court, and certification order was challenged on appeal. APPEAL ALLOWED.
In late 2008, Health Canada, acting on new studies, decided that cold and cough medicines were not generally effective for children or were unsafe when dosage requirements were not followed. The ministry ordered that they were not to be marketed for children under age six, and required re-labelling to this effect. Manufacturers, including the defendants, duly complied with new labelling rules; but plaintiff claimed that in selling the medicines prior to December 2008, the defendants had engaged in “deceptive acts or practices” under the (provincial) Business Practices and Consumer Protection Act (“BPA”) and had made misleading representations to the public contrary to s. 36 of the (federal) Competition Act. These statutes provide private rights of action for persons who suffer loss or damage due to breach of the statute.
In her pleading, the plaintiff sought to marry the (assumed) statutory breaches with restitutionary remedies, seeking the benefits defendants had received from the sale of the medicines between 1997 and 2008. She deposed (but did not plead) that she had bought five bottles of the medicines over a number of years, but did not allege she had given medicine to her child or that the child had suffered any injury. The Court of Appeal held that:
1. As held by the certification judge, the Food and Drug Act and ss. 171 2 of BPA did not “conflict” in the constitutional sense and accordingly, the second branch of the paramountcy doctrine (based on “frustration” of the purposes of the federal legislation) did not apply to make the BPA inapplicable to this case. The primary purpose of FDA was to protect Canadians’ health and safety by regulating food and drugs, and to permit rather than compel the sale of safe products; and this case was more analogous to the Spraytech and Rothmans decisions of the SCC than to Mangat or Lafarge Canada (SCC 2007). Adding further protection by applying the BPA would not frustrate the purpose of the FDA, although it was possible a conflict might arise in future between the two statutes on different facts.
2. CA followed Koubi v. Mazda (BCCA) to hold that BPA is an “exhaustive code” regulating consumer transactions and that restitutionary remedies (including waiver of tort, unjust enrichment, disgorgement and constructive trust) sought by plaintiff are not available at law for breach of the BPA. Saskatchewan Wheat Pool applied. With respect to plaintiff’s claim for personal damages under s. 171 of the BPA, no causal connection between the (assumed) deceptive act or practice and some loss or damage suffered by her had been pleaded, and no material facts that would support such claim had been pleaded. Thus no cause of action for monetary relief under the BPA had been disclosed. However, non-monetary causes referred to in s. 172 of BPA were available, at least in theory.
3. Similarly, the Competition Act, enacted under the federal criminal law and trade and commerce powers, was a “well-integrated scheme” and s. 36 was not intended to create a “private right of action at large”, as stated in General Motors v. City National Leasing (SCC 1989). Section 36 referred to loss or damage suffered by a plaintiff, but did not contemplate the restitutionary remedies sought here. With respect to plaintiff’s own damage claim, s. 36 required proof of causation between the loss or damage and the statutory breach, which again had not been pleaded here.
4. The “aggregate damage” provisions of the Class Proceedings Act (“CPA”), being procedural in nature (see Pro-Sys v. Microsoft (SCC 2013)), could not provide a cause of action.
5. The court below had not erred in principle in finding that plaintiff had complied with s. 4(1)(b) of CPA, even though only one plaintiff had been named in the pleading.
In the result, only the causes of action arising under s. 172 of the BPA were left in the pleading. Certification order was set aside, but plaintiff was free to seek the re-certification of what remained.
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Walden v. Danger Bay Productions Ltd.,
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1994/04/07
Court of Appeal
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Waldman et al. v. The Medical Services of British Columbia et al.,
1999 BCCA 508
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1999/09/09
Court of Appeal
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Waldman v. British Columbia (Medical Services Commission),
2000 BCCA 131
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2000/02/18
Court of Appeal
Respondent successful in result but on narrower grounds than in court below costs at Scale 1 ordered in favour of respondent.
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Waldmann v. Kuo,
2023 BCCA 123
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2023/03/17
Court of Appeal
The appellant, a lawyer, appeals from a Master’s review of his contingency fee agreement and assessment of his fee billed to the client, the respondent. The Master’s review was pursuant to ss. 68 and 71 of the Legal Profession Act. A judge dismissed the lawyer’s appeal from the Master’s decision. Held: Appeal dismissed. The Master’s conclusion that the contingency fee agreement was unreasonable due to ambiguity was one she could draw on the facts. The agreement was ambiguous as to how to determine the “amounts recovered” when the client’s recovery was a share in real estate. The Master was not in error in exercising her discretion to cancel the contingency fee agreement rather than modify it. The Master considered all relevant factors in determining a fair fee. The judge made no error in concluding that there was no basis to interfere in the Master’s decision.
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Waldmann v. Vollmer,
1999 BCCA 605
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1999/10/06
Court of Appeal
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Waldock v. Bissett,
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1992/05/22
Court of Appeal
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Wales McLelland Development Co. Ltd. v. Western & Pacific Bank of Canada,
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1994/09/21
Court of Appeal
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Walford (Guardian of) v. Karim,
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1994/02/25
Court of Appeal
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Walia v. Thai Airways International Ltd.,
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1996/04/19
Court of Appeal
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Walia v. Walia,
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1992/06/16
Court of Appeal
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Walia v. Walia,
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1991/11/27
Court of Appeal
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Walker v. Aujla,
2005 BCCA 559
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2005/11/09
Court of Appeal
Appeal from the order of a chambers judge (upholding the order of a Master) finding that a retainer agreement between a lawyer and his clients had not been repudiated by the failure of the clients to pay all disbursements in a timely fashion in the circumstances. Held: Appeal dismissed.
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Walker v. B.C. Housing Management Commission,
2007 BCCA 32
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2007/01/16
Court of Appeal
Tenancy issue. Court of Appeal ordering new hearing in view of inconclusive state of the evidence concerning rent.
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Walker v. Blades,
2007 BCCA 436
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2007/09/07
Court of Appeal
Appeal allowed by a majority from a determination that the purchaser repudiated an agreement to buy a marina. The trial judge erred in relying upon a point neither pleaded nor argued. It related to the mechanism of closing which was an uncontroversial aspect of the deal. Specific performance ordered. The minority held that the point was significant and while the trial judge was in error in finding repudiation, nevertheless, the action should have been dismissed on the ground that the vendor did not default on the agreement, the purchaser not having done what was required to close under the terms of the agreement.
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Walker v. British Columbia (Securities Commission),
2011 BCCA 1
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2011/01/06
Court of Appeal
The appellants brought an application for leave to appeal a decision of the B.C. Securities Commission. Leave to appeal granted.
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Walker v. British Columbia (Securities Commission),
2011 BCCA 415
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2011/10/28
Court of Appeal
The appellant, who was at the relevant times a member of the Law Society of British Columbia, became a director, corporate secretary, and legal counsel to a company on the TSX Venture Exchange. The Securities Commission found that he and two others obtained funds from the company that they then used to purchase company shares for themselves. The Commission also found that the appellant had contravened other sections of the Securities Act, by taking and selling company shares wrongly issued for finder’s fees and keeping the proceeds of those sales and by filing misleading corporate reports. The appellant conceded that his actions were fraudulent, but his principal argument was that the fraud did not pertain to shares, and was thus not within the jurisdiction of the Commission.
Held: The appeal was dismissed with the exception of the period of prohibition imposed by the Commission relating to trading and related activities, which was remitted to the Commission for reconsideration.
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Walker v. Dubord,
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1992/05/29
Court of Appeal
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Walker v. Ghuman,
1999 BCCA 772
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1999/12/29
Court of Appeal
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Walker v. Kierans,
2023 BCCA 91
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2023/02/17
Court of Appeal
Application by Ms. Walker to vary a chambers decision denying leave to appeal the dismissal of her interim application in the court below. In that interim application, Ms. Walker sought to resume in-person visits with her brother after his care home suspended them due to the disruption they caused. The application judge found ample evidence in the record affirming her visits were not in his best interests. The chambers judge saw no error in that discretionary decision and denied leave to appeal it.
HELD: Application dismissed.
The applicant has not met her burden to show the chambers judge erred in such a way that this Court should intervene. The primary issue raised by Ms. Walker was that certain evidence relied on by the original application judge and chambers judge was inadmissible hearsay. This matter was not raised before the application judge. Further, there is no blanket prohibition on hearsay evidence in interim applications. In any event, there was ample direct evidence in the record to support the application judge’s discretionary decision, and Ms. Walker has not demonstrated any error in the chambers judge’s decision to deny leave.
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Walker v. Kierans,
2023 BCCA 433
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2023/11/15
Court of Appeal
The applicant sought an order that her brother be examined by two physicians in order to obtain evidence that established his incapacity. The applicant and her sister both brought petitions seeking committeeship of their brother. The applicant appealed the judge’s order dismissing her petition and granting her sister committeeship. In bringing her application, the applicant sought to obtain “affidavits of incapacity” for use at the appeal hearing. Held: Application dismissed. The applicant significantly misapprehended the judge’s reasons. The issue of whether the applicant’s brother is incapable of managing himself and his affairs was never an issue before the judge. The judge decided the competing petitions on the basis that he found the applicant’s sister to be best suited to be committee. The application is also unrelated to any of the alleged errors the applicant is seeking to argue on appeal. During the hearing of the petitions, the applicant also expressly declined to ask the judge for the same order she now seeks. It was open to the judge to rely on the two medical affidavits he had already been provided with and there was no dispute with the conclusions expressed in those affidavits.
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Walker v. Kierans,
2024 BCCA 118
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2024/03/28
Court of Appeal
At the start of the hearing of the appellant’s appeal, she requested that the judge recuse himself. The basis for the request was that the judge had made findings adverse to the appellant in unrelated litigation while the judge was a member of the Supreme Court of British Columbia.
Held: Application dismissed. The appellant has not met the burden of establishing that an informed person, viewing the matter realistically and practically, would conclude that the judge was unable to decide the appeal fairly.
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Walker v. Kierans,
2024 BCCA 119
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2024/03/28
Court of Appeal
At the start of the hearing of the appellant’s appeal, the appellant requested the judge recuse himself. The appellant’s concern was that she had appeared before him several times in the past. Held: Application dismissed. The appellant has not met the burden of establishing that a reasonably informed person would conclude that the judge was unable to hear and decide the appeal fairly and objectively.
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Walker v. Kierans,
2024 BCCA 120
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2024/03/28
Court of Appeal
The appellant appeals the dismissal of her petition to be appointed committee of the person of her brother. The appellant contends the judge erred by appointing her sister as committee when she lives outside of the province while the appellant lives in close proximity to her brother. She also contends the judge made several factual errors. Held: Appeal dismissed. The judge properly considered and applied the legal principles regarding the appointment of a committee. The paramount consideration is the best interests of the patient. The judge referred to numerous relevant considerations and was mindful of the appellant’s proximity to her brother. He found, however, that it was in the patient’s best interest for the appellant’s sister to be appointed committee. Further, the judge’s reasons are supported by the evidence and consistent with the record. The judge’s reasons had one slight inaccuracy that was not substantial or material to his reasoning. There is no merit to either ground of appeal.
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Walker v. Law Society of British Columbia,
2002 BCCA 666
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2002/12/05
Court of Appeal
The Law Society appeals a decision quashing an order of the Special Compensation Fund Committee granting a claim against the fund and ordering the member to reimburse the Society. The decision was quashed on the ground that the Committee acted without jurisdiction because the client had not, as required by s. 31(5)(b) of the Legal Profession Act, made a claim for payment within two years after the facts were known to him. The client had become aware of the facts in April 1990 and had filed a complaint against the member about six months later. The Committee held that the complaint, which set out fully the facts known to the client and set out the amount of the member's pecuniary loss, should be treated as a "claim" for the purposes of the two year limitation. The chambers judge held that the complaint did not meet the requirements of the limitation section because it made no specific claim against the fund and did not use the word "misappropriation" to describe the conduct of the member. The chambers judge also rejected the Law Society's submission that to apply the two year limitation would be to give retrospective effect to s. 31(5)(b) which was first enacted after the transaction which caused the loss.Held: Appeal allowed. The Law Society acted within its jurisdiction in treating the complaint as a "claim". It follows that the claim was brought within time. The retrospectivity question therefore did not arise but doubt is expressed regarding the correctness of the decision that the presumption against retrospectivity, which applies to statutes of limitation, could have no application to s. 31(5)(b) which creates a limit on jurisdiction.
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Walker v. Manufacturers Life Insurance Company,
2015 BCCA 143
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2015/04/07
Court of Appeal
The applicant applies for indigent status. She also has applied for leave to appeal the decision of G.P. Weatherill J. directing her to obtain a medical opinion whether she is capable of conducting the underlying litigation and staying the proceedings until the opinion is obtained. Held: application dismissed. While the applicant satisfies the financial requirement for indigent status, her appeal is bound to fail.
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Walker v. Manufacturers Life Insurance Company,
2015 BCCA 473
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2015/11/20
Court of Appeal
Where questions arose as to whether plaintiff is a “person under disability” for purposes of Supreme Court Rule 20-2, chambers judge below had the jurisdiction to require her to provide a report from qualified medical professional on the issue. Held: Appeal dismissed.
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Walker v. Maxwell,
2015 BCCA 282
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2015/06/23
Court of Appeal
Ms. Walker applied for an order permitting her to move with her daughter, E., to Minnesota for career advancement purposes. She also applied for child and spousal support. Mr. Maxwell, E.’s father, opposed the relocation application, primarily arguing that he was unable to move to Minnesota due to the establishment of his career in Vancouver. The trial judge ordered that E. remain in Vancouver. On appeal, Ms. Walker argues that the trial judge erred in several respects regarding the order that E. remain in Vancouver, and regarding spousal support, erred by failing to include a potential performance bonus when determining Mr. Maxwell’s income. Held: Appeal dismissed. The judge did not err in determining that it would be in the best interests of E. that she remain in Vancouver nor did he err in refraining from including the potential performance bonus when calculating spousal support.
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Walker v. Schober,
2008 BCCA 19
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2008/01/18
Court of Appeal
Client's appeal from the order of a Supreme Court chambers judge who allowed a lawyer's appeal from a registrar's decision to reduce her accounts in a matrimonial proceeding from $21,055 to $6,000. The chambers judge decided that the registrar had exceeded his jurisdiction in finding the lawyer's conduct "most discreditable", on the ground that amounted to a finding of professional misconduct within the exclusive jurisdiction of the Law Society, and made factual errors. Held: appeal allowed. The registrar did not exceed his jurisdiction in commenting on the lawyer's conduct in the context of a review of the lawyer's accounts, and made no errors of fact. Comments by the Court on ex parte proceedings in matters involving custody and access. Yukon Judgments:
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