Search Results
|
R. v. MacDuff,
2011 BCCA 2
–
2011/01/06
Court of Appeal
John MacDuff was convicted in the Provincial Court of production of marihuana contrary to s. 7(1) of the Controlled Drugs and Substances Act (“CDSA”), possession of marihuana for the purpose of trafficking, contrary to s. 5(2) of the CDSA, and theft of electricity, contrary to s. 326(1)(a) of the Criminal Code. The police obtained a search warrant from information provided by investigators for FortisBC regarding the theft of electricity. Upon execution of the warrant, the police found a marihuana grow operation. The trial judge quashed the search warrant but admitted the evidence pursuant to s. 24(2) of the Charter. The appeal is from this decision.
HELD: Appeal dismissed. There was no error by the trial judge in admitting the evidence.
more ...
|
R. v. Olson,
2011 BCCA 8
–
2011/01/06
Court of Appeal
more ...
|
Sander v. Sun Life Assurance Company of Canada,
2011 BCCA 3
–
2011/01/06
Court of Appeal
Appeal by a participant under a group policy of insurance from the order of a summary trial judge dismissing his action against the insurer and holding that the participant’s claim is statute barred pursuant to s. 22(1) of the Insurance Act, R.S.B.C. 1996, c. 266.
Held: Appeal allowed. The participant’s cause of action is governed by the limitation period found in the group policy of insurance rather than s. 22(1) as an insurer is not prevented from stipulating for a limitation period greater than that in the Insurance Act itself. The limitation period found in the policy is triggered anew at each successive time benefits are to paid giving rise to a “rolling” limitation period. When the limitation period commenced to run requires a determination of the merits of the participant’s claim as to the time during which he had (or has) a valid claim under the policy.
more ...
|
Walker v. British Columbia (Securities Commission),
2011 BCCA 1
–
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.
more ...
|
Angus v. Themis Program Management and Consulting Ltd.,
2011 BCCA 37
–
2011/01/07
Court of Appeal
more ...
|
Angus v. Themis Program Management and Consulting Ltd.,
2011 BCCA 37
–
2011/01/07
Court of Appeal
more ...
|
Hall v. Becker,
2011 BCCA 5
–
2011/01/07
Court of Appeal
In this unjust enrichment case, the Court allowed the plaintiff’s appeal and varied the order of the trial judge to declare a constructive trust in her favour and award her costs of the trial and appeal. At issue was the appropriate method of apportioning the equity in a property purchased by the respondent at the beginning of a short common-law relationship. Market forces had increased its value significantly. The Court applied the reasoning in Wilson v Fotsch, 2010 BCCA 226 at paras. 51 to 64 to find error in the trial judge’s award of damages based on the received value approach in light of his findings of fact and to award her a 28% interest in the property on the survived value approach.
Additionally, the Court valued her interest and gave the respondent 60 days in which to purchase that interest, failing which the property was to be sold with the proceeds divided proportionately to their interests. The appellant was required to pay from the proceeds monies paid for her benefit by the respondent in the last months of their relationship which reduced her debt and improved the value of her car.
more ...
|
Jones v. Donaghey,
2011 BCCA 6
–
2011/01/07
Court of Appeal
The plaintiff, an infant, sued the Director of Child Development, into whose interim custody he had been ordered, and Ms. Donaghey and Ms. King, with whom the Director had placed him in foster care, for damages for injuries he allegedly sustained at the hands of Donaghey or King. Among other things, he pleaded the Director and Ms. King were negligent in leaving him with Ms. Donaghey when they knew or ought to have known that she was prone to violent behaviour. On the plaintiff’s application, a chambers judge ordered Ms. Donaghey to attend for a psychiatric examination pursuant to Rule 7-6(1) on the basis that her “mental condition” was “an issue in the litigation”. Appeal allowed and order set aside. Ms. Donaghey’s mental condition was not “in issue” in the action. Discussion of the role of pleadings and the meaning of “issue” in Rule 7-6(1).
more ...
|
Terrapin Mortgage Investment Corp. v. Ruby Lake Country Developments Ltd.,
2011 BCCA 4
–
2011/01/07
Court of Appeal
SUMMARY: Mr. Spetifore seeks indigent status, an extension of time to file a notice of appeal, leave to appeal and leave to introduce fresh evidence. The application for indigent status is dismissed. The application for an extension of time is dismissed. There is no need to address the other two applications.
more ...
|
Kerton v. Workers’ Compensation Appeal Tribunal,
2011 BCCA 7
–
2011/01/10
Court of Appeal
The Workers’ Compensation Board (“WCB”) and Workers’ Compensation Appeal Tribunal (“WCAT”) appeal from the order of the Supreme Court granting judicial review of and quashing two decisions of WCAT. The chambers judge held that the decisions were reviewable on the standard of correctness and that the decisions were incorrect. Kerton cross-appealed arguing the court should have made an order in the nature of mandamus. Section 58 of the Administrative Tribunals Act governs the standard of review where the tribunal’s enabling Act contains a privative clause. The standard of review is patent unreasonableness for matters over which a tribunal has exclusive jurisdiction under a privative clause. In United Brotherhood this Court held that determination of the standard of review should be made by applying the pragmatic and functional approach, taking into account four factors. There have been further developments in the law and the Supreme Court of Canada has endorsed a somewhat different approach. Rather than considering all factors in the pragmatic and functional approach to determine whether a matter is within the exclusive jurisdiction of a tribunal under its privative clause, the preferred approach is simply to examine whether the privative clause covers the “matters” in issue. In the result, the appropriate standard of review in this case is one of patent unreasonableness. WCAT’s decision was not patently unreasonable. Appeals by WCB and WCAT allowed. It follows that Kerton’s cross-appeal must be dismissed.
more ...
|
R. v. Wong,
2011 BCCA 13
–
2011/01/11
Court of Appeal
No error shown in trial judge's determination that a police constable had reasonable grounds to believe the appellant had been driving while blood alcohol level exceed. 08. The judge is not required to "resolve every issue or inconsistency arising on the evidence.
more ...
|
Rainbow Country Estates Ltd. v. Whistler (Resort Municipality of),
2011 BCCA 38
–
2011/01/13
Court of Appeal
Test in Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R. (2d) 256 at 260 (C.A.) applied. Appeal dismissed as abandoned for failure to file factum within time limited by the Rules.
more ...
|
R. v. Ball,
2011 BCCA 11
–
2011/01/14
Court of Appeal
The central issue on these appeals was whether the trial judge’s finding that the two appellants were liable in the manslaughter or death of the victim of an assault was unreasonable. Both appellants were a part of a group that jointly attacked two victims. Neither appellant actually struck one of the victims in the attack. The court concluded that the finding of the trial judge that the appellants were co-perpetrators in the joint attack was not unreasonable. The “blow of one was” therefore “the blow of them all.” The evidence also supported their convictions as aiders or abettors. Ball raised other evidentiary issues which were dismissed.
more ...
|
R. v. Lac,
2011 BCCA 12
–
2011/01/14
Court of Appeal
Applications for the appointment of counsel pursuant to s. 684 of the Criminal Code, and for release pending the conviction appeal dismissed.
more ...
|
R. v. Potts,
2011 BCCA 9
–
2011/01/14
Court of Appeal
The Crown appeals from a sentence imposed on Randall Richard Potts following his guilty plea to conspiracy to produce and traffic in methamphetamine, two counts of trafficking in cocaine, and to unlawful possession of proceeds of crime. The charges arose out of a police investigation of the East End Chapter of the Hells Angels. Earlier Mr. Potts had been convicted and sentenced to seven years on weapons offences arising out of the same investigation. The effective global sentence imposed for the four counts to which Mr. Potts pleaded was two years. The actual sentence, after a credit of one year was given for pre-trial custody, was one year. The sentence was unfit. The appeal was allowed and the effective sentence increased to five years. The one-year credit for pre-trial custody was applied leaving an actual sentence of four years.
more ...
|
R. v. Sanchez-Lopez,
2011 BCCA 14
–
2011/01/14
Court of Appeal
The sentence appeal of Mr. Sanchez-Lopez was dismissed, there being no error in principle and the sentence not being unfit.
more ...
|
D. Bacon Holdings Ltd. v. Naramata Vines Inc.,
2011 BCCA 22
–
2011/01/18
Court of Appeal
more ...
|
Main v. The Hershey Company,
2011 BCCA 21
–
2011/01/18
Court of Appeal
Appeals from orders of a Supreme Court justice approving a partial settlement agreement between the plaintiff and two of five defendants in a class proceeding. The plaintiff’s claim is against four chocolate manufacturers and a chocolate distributor, alleging price fixing. The causes of action are two intentional torts and a claim for damages under s. 36 of the Competition Act, RS 1985, c. C-34. The settlement includes a “bar order”, prohibiting the non-settling defendants (NSDs) from claiming contribution and indemnity from the settling defendants (SDs), and permits the plaintiff, unless the law permits the NSDs to claim contribution and indemnity, to claim joint and several damages from the NSDs, including those damages that would have been apportioned to the SDs if they had not settled. The appellants, the NSDs, claim the settlement agreement is unfair, because the “bar order” does not limit the plaintiff’s claims to each of the NSDs' proportionate liability. Held: appeals dismissed. The bar order does not interfere with the appellants’ substantive rights. If the law would permit them to claim contribution and indemnity under s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333, but for the bar order, the plaintiff’s claims will be limited to the NSDs' proportionate liability, as in the settlement approved in B.C. Ferry Corp. v. T & N plc (1996), 16 B.C.L.R. (3d) 53 (C.A). If the law does not permit the NSDs to claim contribution and indemnity, then the plaintiff will be entitled to claim joint and several liability against the NSDs. The appellants could not show any prejudice arising from the bar order.
more ...
|
Main v. The Hershey Company,
2011 BCCA 21
–
2011/01/18
Court of Appeal
Appeals from orders of a Supreme Court justice approving a partial settlement agreement between the plaintiff and two of five defendants in a class proceeding. The plaintiff’s claim is against four chocolate manufacturers and a chocolate distributor, alleging price fixing. The causes of action are two intentional torts and a claim for damages under s. 36 of the Competition Act, RS 1985, c. C-34. The settlement includes a “bar order”, prohibiting the non-settling defendants (NSDs) from claiming contribution and indemnity from the settling defendants (SDs), and permits the plaintiff, unless the law permits the NSDs to claim contribution and indemnity, to claim joint and several damages from the NSDs, including those damages that would have been apportioned to the SDs if they had not settled. The appellants, the NSDs, claim the settlement agreement is unfair, because the “bar order” does not limit the plaintiff’s claims to each of the NSDs' proportionate liability. Held: appeals dismissed. The bar order does not interfere with the appellants’ substantive rights. If the law would permit them to claim contribution and indemnity under s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333, but for the bar order, the plaintiff’s claims will be limited to the NSDs' proportionate liability, as in the settlement approved in B.C. Ferry Corp. v. T & N plc (1996), 16 B.C.L.R. (3d) 53 (C.A). If the law does not permit the NSDs to claim contribution and indemnity, then the plaintiff will be entitled to claim joint and several liability against the NSDs. The appellants could not show any prejudice arising from the bar order.
more ...
|
R. v. Bi,
2011 BCCA 10
–
2011/01/18
Court of Appeal
The evidence supported the conclusion of the trial judge that each appellant was a party to the marijuana grow operation found in the basement of a residential home in which they were main-floor tenants. Appeal dismissed.
more ...
|
Sykes v. Rosebery Parklands Development Society,
2011 BCCA 15
–
2011/01/19
Court of Appeal
The defendant appeals an order of the Supreme Court granting an easement to the plaintiffs for access across the defendant’s land for the purpose of moorage. The defendant argues that the summary trial judge erred in his treatment of the evidence and failed to consider whether the case was appropriate for determination under Rule 18A. The defendant further argues that the plaintiffs failed to establish a claim in proprietary estoppel, and that the judge granted relief that was too extensive. The fact that there is some conflicting affidavit evidence is not an absolute bar to a trial under Rule 18A. There was no conflict or dispute on the matters critical to a determination of proprietary estoppel. The judge applied the broad, flexible approach to proprietary estoppel endorsed by this Court. The trial judge did not err in his conclusion that proprietary estoppel was established or in his exercise of discretion in choosing the appropriate remedy.
more ...
|
Dosanjh v. Singh,
2011 BCCA 28
–
2011/01/20
Court of Appeal
This was a review from the decision of Mr. Justice Lowry refusing to stay an order for sale of a home jointly owned by the parties, who separated in 2008. Held: Appeal dismissed. The balance of convenience clearly favoured proceeding with the sale rather than delaying and possibly relitigating the inevitable. The appellant’s concern that the respondent would sell the property to a friend or family member for less than market value was unjustified, as the order in the court below clearly contemplated a sale on the public market for market value. With respect to the appellant’s concern that he would not have an opportunity to buy out the respondent’s interest, there was nothing preventing him from returning to the trial court and seeking to have court approval added as a term of the order.
more ...
|
R. v. Johnny,
2011 BCCA 25
–
2011/01/20
Court of Appeal
Sentence appeal by an individual of aboriginal descent. Court dismissing appeal. Although sentences for aggravated assault and robbery were lengthy, it could not be said that the total sentence in excess of 10 ½ years was unfit having regard to the need to protect the public from this individual who had an extensive record of violent criminal activity.
more ...
|
British Columbia (Assessor of Area #10 - North Fraser) v. Sherkat,
2011 BCCA 16
–
2011/01/21
Court of Appeal
Appeal by way of stated case from decision of Property Assessment Appeal Board valuing three properties. Appeal allowed with respect to valuation of one property. In answering the first two of three questions arising from the stated case, the chambers judge erred in weighing and considering the sufficiency of the evidence before the Board. Such matters fall within the jurisdiction of the Board alone. Valuation of that property remitted to the Board for reconsideration. Appeal related to third question dismissed. While the Board had made a factual error, it was not sufficiently significant to have affected the result.
more ...
|
Jakubcak v. Dr. R.A. Melnyk Inc.,
2011 BCCA 31
–
2011/01/21
Court of Appeal
Appeal from a trial judgment in a wrongful dismissal action.
Held: appeal dismissed except with respect to the costs order. No error had been demonstrated in the trial judge's conclusion that the employment contract was one of indefinite duration that could be terminated upon the giving of reasonable notice. The judge erred in awarding costs to the defendant in respect of steps taken in the action prior to the delivery of the defendant's settlement offer (which was higher than the judgment obtained by the plaintiff).
more ...
|
R. v. Aulakh,
2011 BCCA 19
–
2011/01/21
Court of Appeal
The applicant applied for judicial interim release pursuant to s. 679 of the Criminal Code pending appeal of his conviction for sexual assault. The application turned on whether the applicant had shown that his detention is not necessary in the public interest as required by s. 679(3)(c). Application granted.
more ...
|
R. v. Gullett,
2011 BCCA 17
–
2011/01/21
Court of Appeal
Mr. Gullett was convicted of criminal negligence causing bodily harm, theft over $5,000 and leaving the scene of an accident. He was sentenced globally to three years in prison. In addition, he was prohibited from driving for five years. On appeal, he sought a modification of the driving prohibition of his sentence. Leave to appeal is required and granted. The Crown’s application to introduce Mr. Gullett’s driving record as fresh evidence is allowed to support the fitness of the driving prohibition. It has been said that driving is a privilege; not a right: R. v. Ladouceur. At best, it is a permissive right that may be forfeited for non-compliance with prescribed norms. Recognizing that the maximum prohibition specified by Parliament is 10 years, taking into account Mr. Gullett’s history of complete disregard for the rules of the road, the protection of others through insurance and the need to respect driving prohibitions and considering the context of the circumstances of the offence, in my view, the driving prohibition of five years clearly was in the range of available prohibitions. The Court was not persuaded that it was unfit.
more ...
|
Spraggs v. Coldstream Court Resort (1966) Ltd.,
2011 BCCA 32
–
2011/01/21
Court of Appeal
This application to review an order of a chambers judge dismissing an application for leave to appeal a costs order is dismissed. Although the issue of costs of the first trial was not open for disposition in the trial court because the matter had been remitted for a second trial with an order there be no order for costs of the trial, the disposition that each party bear their own costs generally coincided with the order of this Court.
more ...
|
U.S.A. v. Kerfoot,
2011 BCCA 33
–
2011/01/21
Court of Appeal
Review of order of the Minister surrendering a fugitive to the United States on drug charges and an appeal from a committal order of a judge of the Supreme Court on the said drug charges. Because of a very substantial change in available evidence, appeal allowed, and matter remitted to Supreme Court for new hearing. Because the appeal was appeal allowed, the surrender order of the Minister based on the committal order could not stand and was set aside.
more ...
|
Coast Capital Savings Credit Union v. British Columbia (Attorney General),
2011 BCCA 20
–
2011/01/24
Court of Appeal
Former Corporation Capital Tax Act exempted from taxation the “non-equity shares” of a credit union. The Act imported a definition from the Financial Institutions Act which had two branches – that the shares were not “equity shares” and that they “evidenced indebtedness” of the credit union. The respondent credit union issued certain non-transferable shares, called “Class C Equity shares”, that carried a 6% non-cumulative dividend and that were entitled to their par value on a winding up of the credit union – i.e., the amount originally invested by the holder. The credit union was obliged to redeem them for their par value on a fixed date in 2009, and had done so.
The Province in assessing capital tax payable by the credit union, took the view the shares were equity shares rather than non-equity shares. In the period during which the credit union’s objections were being considered, the Legislature amended the legislation retroactively to remove a provision that had made GAAP as applied to the taxpayer’s financial statements determinative of what constituted debt or shares.
In the court below, Province conceded that the shares evidenced indebtedness of the credit union, but relied on the amendment, the nomenclature given to the shares and other arguments to support the re-assessment. Court ruled that the shares were non-equity shares for purposes of the capital tax.
HELD: Province’s appeal dismissed. The shares did not represent equity since they did not entitle holders to participate on a winding-up in the residue of the credit union’s assets, nor in profits beyond the 6% dividend. The shares represented indebtedness in that they had represented a fixed obligation payable by the credit union on the specified date.
more ...
|
R. v. Ashmore,
2011 BCCA 18
–
2011/01/24
Court of Appeal
Appeal from conviction on a charge of first degree murder. During the investigation the police utilized what is sometimes referred to as a “Mr. Big” undercover operation. An officer posing as a criminal boss befriended A. and offered him easy money to perform simple tasks with criminal overtones. A. admitted his involvement in the murder to the undercover officer. A. was arrested on a Friday afternoon, advised of his Charter rights, and taken to a police station. That evening he spoke with a legal aid duty counsel who advised him of his right not to speak to or co-operate with the police. Counsel also warned A. of stratagems the police might use to obtain information from him, and provided him with ways to assert his rights. On Saturday morning, A. appeared by teleconference before a justice of the peace and was remanded into custody. The warrant of committal authorized A.’s detention at several places, including a “police lockup”. Since provincial remand facilities do not accept prisoners on weekends, A. was held at the police station.
A. was interviewed by a police officer on Saturday afternoon. Part way through the interview he was shown a video clip of him admitting his involvement in the murder to the undercover officer. A. then confessed and agreed to participate in a re-enactment. Later that day A. was again advised of his Charter rights and confirmed his willingness to participate in the re-enactment. He was driven to several locations where he demonstrated aspects of the murder and the disposal of the body. On the drive back to the police station an officer suggested that A. call his mother. A. called his mother on Sunday (Mother’s Day). During their conversation, which was recorded, A. admitted his involvement in the murder.
A. sought a new trial on the basis that the trial judge erred in admitting into evidence: (a) his statement to an undercover police officer; (b) his post-arrest interview; (c) the re-enactment; and (d) the call to his mother. He asserted violations of his rights as guaranteed by ss. 8, 9, and 10(b) of the Charter. Held: Appeal dismissed.
The trial judge did not err in admitting the statements to the undercover officer. He balanced their admitted probative value against the potential prejudice arising from the fact that they showed A. to be a person willing to assist in the commission of criminal activity for money. The jury was given a limiting instruction.
The advice A. received from duty counsel was appropriate and efficacious and fulfilled the purposes of s. 10(b). This case is factually distinguishable from R. v. Osmond (B.C.C.A.).
There was no need for the police to re-advise A. of his s. 10(b) rights before either showing him the video clip or asking him to participate in the re-enactment; neither constitutes a material change in circumstances. In any event, A. was re-advised before the re-enactment.
A. was lawfully detained at the police station under the warrant of committal and, therefore, was not arbitrarily detained. Following a remand, the police are entitled to use whatever lawful means are available to them to further an investigation: R. v. Ansari (B.C.S.C.) not followed.
The action of the police in removing A. from the police station was unlawful, and amounted to an arbitrary detention. Accordingly, the admissibility of the re-enactment falls to be determined under s. 24(2) of the Charter. So, too, does the telephone call, as it is temporally and tactically connected to the re-enactment.
Having regard to the analytical framework set out in R. v. Grant (S.C.C.), the admission of the re-enactment and telephone call would not bring the administration of justice into disrepute.
more ...
|
Bishop v. Minichiello,
2011 BCCA 371
–
2011/01/25
Court of Appeal
more ...
|
Procon Mining & Tunnelling Ltd. v. McNeil,
2011 BCCA 23
–
2011/01/25
Court of Appeal
A Justice in Chambers refused to order security for costs of a trial judgment and special trial costs. The respondents applied to vary the decision as concerned the special costs order. The Justice was required to consider the merits of both the appeal from the judgment and the appeal from the special costs order. It is not apparent she did not do so. On the material before the judge, it was open for her to conclude the appeal was arguable, as she did. The judge properly considered the application in the context of the overall circumstances of the litigation. In that context, she exercised her discretion to refuse to order security for the special costs order. This Court is not persuaded that there is any basis on which her order could be varied.
more ...
|
Shields v. GetSet Communications Inc.,
2011 BCCA 34
–
2011/01/25
Court of Appeal
more ...
|
R. v. Moore,
2011 BCCA 36
–
2011/01/27
Court of Appeal
Sentence appeal by prison guard from global sentence of four years imposed on four counts of trafficking in controlled substances within the institution on ground the sentence was unfit in all the circumstances. Leave granted and appeal dismissed.
more ...
|
Sandhu v. The Khalsa Diwan Society,
2011 BCCA 24
–
2011/01/27
Court of Appeal
The appellants changed counsel during the respondents’ submissions at the hearing of the respondents’ petition concerning a dispute over membership applications brought pursuant to the Society Act. As new counsel retained by the appellants was out of the country, a junior lawyer in his office appeared and requested an adjournment of a few days to allow counsel to appear. In his reasons dismissing the adjournment application, the chambers judge determined the merits of the petition in favour of the respondents. He then heard submissions as to the appropriate relief from counsel for the respondents and from the junior counsel for the appellants and, at their conclusion, gave judgment in favour of the respondents. Held: appeal allowed and petition remitted for new hearing. In deciding the merits of the petition without hearing from the appellants on the merits, the chambers judge violated the audi alteram partem rule of natural justice.
more ...
|
Wah Fai Plumbing & Heating Inc. v. Ma,
2011 BCCA 26
–
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.
more ...
|
Domirti v. Domirti,
2011 BCCA 30
–
2011/01/28
Court of Appeal
Supplemental reasons on cost.
more ...
|
Hartshorne v. Hartshorne,
2011 BCCA 29
–
2011/01/28
Court of Appeal
Supplemental reasons on cost.
more ...
|
R. v. Belcourt,
2011 BCCA 40
–
2011/01/28
Court of Appeal
This was an appeal from sentence. Mr. Belcourt, an aboriginal offender, pleaded guilty to two offences for which he was sentenced to three months in jail and nine months in jail, to run consecutively, for a total of one year in prison. The sentence imposed followed a “joint submission” by the Crown and the defence. Held: Appeal allowed. The sentencing judge’s acceptance of the “joint submission” constituted an error in law, as Mr. Belcourt had not agreed to accept one year in prison. At the time he was sentenced, Mr. Belcourt had arranged to enter a residential treatment program. He attempted to explain this to the sentencing judge but neither his counsel nor the judge made further inquiries into what he was saying. As a result, the opportunity to consider a sanction other than imprisonment as required by s. 718.2(e) was lost, which constituted a second error in law. Mr. Belcourt’s sentence for the breaking and entering offence was reduced from nine months to six months and seven days, to run consecutively with the three month sentence for theft in order to accommodate his reacceptance into the residential treatment program. He was also placed on probation for one year.
more ...
|
R. v. Lebrun,
2011 BCCA 42
–
2011/01/28
Court of Appeal
The appellant, Mr. Lebrun appealed a global sentence of six years imposed by a provincial court judge on June 18, 2010, following his guilty plea to charges of Forcible Confinement, and illegal use of a firearm while committing forcible confinement. The two grounds of appeal were that the sentence was unfit because it was outside the range of sentences usually imposed for similar offences and similar offenders, and that the judge's comments made during the sentencing combined with her rejection of both crown and defence submissions demonstrated an apprehension of bias.
On appeal, Mr. Lebrun asks that this court substitute a global sentence of four years. The appeal was dismissed. The appellant did not demonstrate that the sentence was unfit. The comments of the sentencing judge made during counsel submissions and at the sentencing did not demonstrate that she had determined the appropriate sentence before hearing counsel’s submissions.
more ...
|
Wallster v. Erschbamer,
2011 BCCA 27
–
2011/01/28
Court of Appeal
Court below had not erred in ruling that a restrictive covenant and an easement encumbering appellant’s property provided a “practical benefit” to neighbouring property owners and should therefore not be modified or cancelled pursuant to s.35(2)(b) of the Property Law Act.
more ...
|
Bonnefoy v. Travill,
2011 YKCA 1
–
2011/01/31
Court of Appeal
more ...
|
Falati v. Smith,
2011 BCCA 45
–
2011/02/02
Court of Appeal
Mr. Falati, who was struck by a motor vehicle driven by Ms. Smith, appealed the trial judge’s awards for gross past loss of earning capacity and future loss of earning capacity. Appeal dismissed. There was evidence before the trial judge from which he could reasonably conclude that the past wage loss of the appellant was in the range of $180,000. The trial judge’s award of $75,000 for future loss of earning capacity was more than reasonable taking into account the evidence and potential contingencies.
more ...
|
Jim Pattison Enterprises Ltd. v. British Columbia (Workers’ Compensation Board),
2011 BCCA 35
–
2011/02/02
Court of Appeal
The appellant owners of fishing vessels appeal the dismissal of their petition and action, respectively, in which they challenge the constitutionality of provisions of the Occupational Health and Safety Regulations [OHSR] enacted pursuant to Part 3 of the Workers Compensation Act. Alternatively they seek a declaration that the impugned provisions are inapplicable, by operation of the doctrine of interjurisdictional immunity, or inoperative, pursuant to the doctrine of paramountcy, to their commercial fishing operations. Discussion of the federal and provincial regulatory regimes, the constitutional doctrines of pith and substance, incidental effects, and double aspect in relation to the federal jurisdiction over navigation and shipping and the provincial jurisdiction over property and civil rights, whether the appellants’ operations are a federal or provincial undertaking, and the inapplicability of the constitutional doctrines of interjurisdictional immunity and paramountcy to the overlapping areas of the two regulatory regimes.
more ...
|
R. v. Tanasescu,
2011 BCCA 47
–
2011/02/02
Court of Appeal
Compensation order in the amount of $9,000, tied to probation term of two years following custodial sentence was upheld. Sentencing judge had not erred by failing to consider offender's means, or the totality principle, and his long record of property-related offences suggested that he did, as court below stated, need a different "focus". The order was not inconsistent with principles of sentencing.
more ...
|
R. v. Haynes,
2011 BCCA 39
–
2011/02/03
Court of Appeal
Appellants appeal from their convictions of aggravated assault on the basis of errors of analysis in reasons of trial judge.
Court of Appeal finding no merit in argument that judge erred in admitting evidence of what injured victim told his partner immediately after assault, namely the identity of the assailants. This evidence properly admitted pursuant to R. v. Stirling, 2008 SCC 10, to rebut suggestion that his identification of assailants when he later spoke to police was a fabrication.
Court finding judge’s use of evidence of a defence witness as probative of guilt of appellant to be erroneous. This witness testified he had been hired by “some people” to get victim to change his story and had negotiations with victim in this regard. Witness said appellants had neither knowledge of nor involvement in this process. Court holding that no link to appellants existed concerning this evidence and accordingly judge erred in utilizing it to draw adverse inferences against appellants. New trial ordered.
more ...
|
Cheng v. Yu,
2011 BCCA 62
–
2011/02/04
Court of Appeal
Appeal allowed. Since the order in the Supreme Court which dismissed the defendants' application to dismiss the plaintiff's claim, a court in China has heard a trial on the validity of the guarantee which forms the basis of the plaintiff's claim. Accordingly, British Columbia should decline jurisdiction. As well, the guarantee stands no prospect of being enforced under Canadian law.
more ...
|
Keremelevksi v. V.W.R. Capital Corp.,
2011 BCCA 59
–
2011/02/04
Court of Appeal
more ...
|
Patzer v. Hastings Entertainment Inc.,
2011 BCCA 60
–
2011/02/04
Court of Appeal
Order for security for costs made in the trial court set aside.
more ...
|
|