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Posted Tuesday, February 4, 2025:
Gibbs v. HSBC Global Asset Management (Canada) Limited,
2025 BCCA 31
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2025/02/04
Court of Appeal
The appellant appeals an order refusing to certify a class action. The proposed class action alleges the respondent investment managers represented to investors that mutual funds were actively managed when they were actually passively managed. The appellant claims investors were charged fees that were “unfair and unreasonable” for a passively managed fund. The certification application was addressed over three hearings. In the first certification hearing, the judge found that the pleadings disclosed four expressly pleaded causes of action (breach of trust, breach of fiduciary duty, prospectus misrepresentation, and unjust enrichment) as well as the tort of civil fraud, which the appellant had not pleaded. He adjourned the hearing to allow the appellant to file evidence supporting the primary common issue. Between the first and second hearings, the appellant amended the claim to address the judge’s conclusion that her claim included fraud. At the second hearing, the judge found that the amended pleading, having disclaimed fraud, no longer disclosed a cause of action. He adjourned again to allow the appellant to clarify the pleadings. At the third hearing, the judge dismissed the certification application. The judge found that the amended pleading was confounding and awarded costs against the appellant for the second hearing, despite the presumption against costs in class proceedings.
Held: Appeal allowed. All three versions of the appellant’s claim pleaded causes of action for breaches of fiduciary duty and trust, failure to comply with statutory disclosure obligations, and unjust enrichment. Fraud is not a requisite element of those causes of action. The appellant could have pleaded the tort of civil fraud but chose not to. Because the judge found in the first hearing that the appellant had satisfied the other requirements for certification, this court should certify the class action. The judge erred in awarding costs against the appellant because any deficiencies in the pleadings did not amount to exceptional circumstances justifying a departure from the presumption against costs in class proceedings.
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Mills v. O'Connor,
2025 BCCA 34
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2025/02/04
Court of Appeal
The parties appeal and cross appeal from the order of the trial judge awarding spousal support, child support, and division of property. They agree and submit that the trial judge made a factual error in failing to identify and apportion a substantial amount of family property available for division. The appellant contends that this resulted in reviewable error in that the judge should not have ordered division of his excluded property. The cross-appellant argues that the judge erred in her tracing analysis of the appellant’s excluded property, and that the payment to her should have been greater. The appellant also challenges the judge’s award for retroactive child support.
Held: The appeal and cross appeal allowed to the extent necessary to give effect to these reasons. The judge committed a reviewable error in finding there was no family property available for division. She also made a reviewable error in her tracing analysis resulting in a substantial overvaluation of the appellant’s excluded property. The judge’s approach followed a “first-in, first-out” approach to tracing the value of the excluded property through a series of substitute assets involving increases in the value of that excluded property. The proper approach under the Family Law Act, S.B.C. 2011 c. 25, should recognize that, by operation of the Act, the increase in value of the excluded property is family property intermingled with excluded property, and the exclusion must be traced as through an intermingling of funds on a pro rata basis. In light of these errors, this court varies the valuation of the appellant’s excluded property and makes an award for the division of the family property, which includes a reapportionment in the cross-appellant’s favour. Although the judge made a palpable error regarding retroactive child support, it was not overriding, and that award is not interfered with.
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Pickwell v. Rajwan,
2025 BCCA 32
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2025/02/04
Court of Appeal
The appellant seeks leave to resile from the position he took at trial regarding the proper quantum of damages for loss of future earning capacity in his personal injury claim. In the event that leave to resile is granted, the appellant intends to ask this Court to substitute a much higher award. Held: Leave to resile is not granted. Permitting the appellant to resile from his position at trial would not be in the interests of justice. The appellant’s trial counsel made a series of strategic decisions in arguing the question of damages. These decisions bind the appellant, who has demonstrated no exceptional circumstances warranting a departure from this general rule.
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R. v. Donovan,
2025 BCCA 30
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2025/02/04
Court of Appeal
The appellant was convicted of a number of drug and firearms offences in relation to drugs and firearms seized pursuant to a search warrant. At trial, the appellant brought a s. 8 Charter challenge to the search warrant, which was summarily dismissed by the trial judge. The appellant appeals his convictions on the basis he was deprived of a fair hearing due to the conduct of the pre-trial proceedings. He further claims the trial judge erred in summarily dismissing his Charter challenge, convicting him on three counts of unauthorized possession of a firearm in the absence of evidence, in failing to apply the Kienapple principle to certain of the firearms convictions, and in rendering inconsistent verdicts in relation to the drug trafficking convictions.
Held: Appeal dismissed. The appellant was not deprived of a fair hearing despite the inadvertent mislabeling of certain pre-trial procedures. The trial judge did not err in declining to order a voir dire on the Charter challenge as it was bound to fail. The appellant’s admission that he was subject to a firearms prohibition provided the requisite evidence that he possessed the firearms without authorization or licence. The Kienapple principle against multiple convictions does not apply in this case because the firearms offences in question are distinct. Further, there was no inconsistency in the drug trafficking and simple possession verdicts; it was not unreasonable for the trial judge to distinguish the drug convictions based primarily on the amount of each seized drug.
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R. v. M.K.A.,
2025 BCCA 28
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2025/02/04
Court of Appeal
The appellant appeals his conviction for sexual assault, alleging: (1) the trial judge misapprehended material evidence by relying on inadmissible text messages; and, (2) his trial was unfair and he suffered a miscarriage of justice because of the ineffective assistance provided by his trial counsel.
Held: Appeal dismissed. Reviewing the record as a whole, there is no indication the judge used the messages for any improper purpose, let alone that they played an ‘essential role’ in the reasoning process leading to the conviction. Regarding the ground alleging ineffective assistance of counsel, the appellant has failed to establish that any of the conduct alleged fell below a standard of reasonable professional judgment or that the conduct caused a miscarriage of justice, either by an unreliable verdict or by undermining trial fairness.
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Seylynn (North Shore) Phase II GP Ltd. v. Seylynn (North Shore) Properties Phase II Limited Partnership,
2025 BCCA 36
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2025/02/04
Court of Appeal
The parties entered into partnership agreements to develop two separate projects, Seylynn Village and Seylynn Gardens. Over several years, the general partner had withdrawn over $2 million, asserted to be its entitled management fee. The limited partners resolved to remove the general partner. After the removal of the general partner, the parties referred their dispute to arbitration to resolve the issue about the proper interpretation of the management fee provision in the partnership agreement. The Tribunal interpreted the provision such that the general partner was required to return the money it had withdrawn. The general partner seeks leave to appeal the arbitrator’s award.
Held: Application for leave to appeal dismissed. The application for leave to appeal from the arbitration award fails to demonstrate an extricable question of law.
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Posted Friday, January 31, 2025:
R. v. T.S.,
2025 BCCA 25
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2025/01/31
Court of Appeal
The appellant was charged with sexual assault. The complainant and the appellant agreed that sexual activity occurred, but disagreed about whether the activity was consensual. The appellant’s position was that the complainant communicated consent during a conversation before the alleged assault when she agreed to participate in a “rape role-play” scenario.
Prior to the trial, the appellant applied to have certain messages entered into evidence under s. 278.92 of the Criminal Code. The complainant and the appellant exchanged these messages the night before the assault, and the messages were about rape role-play. The appellant’s testimony was that these messages were followed up with a more specific conversation the next day planning the rape role-play. The judge found that the messages were not relevant and could not be admitted into evidence. At trial, the judge found that the complainant and the appellant never had a conversation about rape role-play on the day of the assault, and ultimately convicted the appellant. On appeal, the appellant argues that the trial judge erred in holding that the messages were not relevant and could not be admitted under s. 278.92.
Held: Appeal allowed, conviction set aside, and a new trial ordered. The trial judge erred in finding that the messages were not relevant. The main issues in this case were consent and honest but mistaken belief in communicated consent, and the messages were relevant to these issues given their content and temporal proximity to the conversation the appellant alleges happened the following day. This is not an appropriate case to apply the curative proviso.
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Zahariev v. Zaharieva,
2025 BCCA 35
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2025/01/27
Court of Appeal
The appellant and respondent are the parents of a child born in Canada shortly after the respondent mother arrived in B.C. The appellant brought an application under the 1980 Hague Convention seeking the “return” of the child to Bulgaria. The chambers judge found the child habitually resident in B.C. by the date of retention and dismissed the appellant’s return application. The appellant raises grounds of appeal relating to the assessment of credibility, procedural fairness and ineffective assistance of counsel, and Bulgarian court decisions regarding jurisdiction and the child’s habitual residence under the 1996 Hague Convention. The appellant also applies to adduce new evidence.
Held: Appeal and new evidence application dismissed. The chambers judge made no error in assessing credibility. The appellant was not denied procedural fairness due to an absence of cross-examination. Nor could he establish ineffective assistance of counsel. Given the judicial authority of the requested state has primary responsibility for adjudicating applications under the 1980 Hague Convention, the chambers judge appropriately did not rely on the Bulgarian court’s initial decision. Nor should the subsequent appeal decision have played a role.
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Posted Thursday, January 30, 2025:
Adlani v. Fraser Health Authority (Medical Health Officer),
2025 BCCA 29
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2025/01/24
Court of Appeal
On July 9, 2020, a licencing officer imposed new conditions on the appellant’s daycare licence as a result of violations of the governing legislation. Under the Community Care and Assisted Living Act, reasons must be provided for any such change of conditions, and they cannot take effect until a thirty-day notice period has elapsed. The new conditions were stated to take effect on August 9, 2020. While the health authority couriered the decision to the daycare on July 9, the appellant says that she did not receive it, and that the first notice she had of the new conditions was on August 26. In December 2020, she sought reconsideration of the conditions by the Medical Health Officer, who decided that the conditions imposed were inadequate and terminated the appellant’s licence. The appellant appealed to the Community Care and Assisted Living Appeal Board, which upheld the termination. The appellant brought judicial review proceedings, in which she argued only that she had been denied procedural fairness due to the late delivery of the licencing officer’s initial decision. The judicial review application was dismissed. On appeal, held: Appeal dismissed. While late delivery of the initial decision may have rendered the new conditions unenforceable for a period of time, it did not deprive the appellant of procedural rights. She retained (and fully exercised) her rights to have the decision reviewed, and to have a hearing de novo before the appeal board.
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Fang v. Bob Landscaping Corp.,
2025 BCCA 27
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2025/01/30
Court of Appeal
The trial judge found the appellants in breach of contract for failing to pay the outstanding balance of a fixed term contract. He dismissed the remainder of the claim for damages in excess of the sum agreed to in the contract. He ordered that each party bear its own costs. The appellants appeal both orders. HELD: Appeal dismissed. The trial judge did not err in his determination of the essential elements of the contract. Nor did he err in the exercise of his discretion in fixing costs.
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Kassian v. British Columbia,
2025 BCCA 20
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2025/01/29
Court of Appeal
The individual petitioners had health challenges they say ought to have exempted them from the vaccination passport regime imposed during the COVID-19 pandemic. They contend that the regime violated their rights under the Charter by creating a closed list of medical conditions justifying exemptions, and by requiring separate applications for an exemption for each activity or series of activities. None of the applicants applied for exemptions. Ms. K.’s doctors declined to sign the form, while Ms. S. did not seek a physician’s signature. Ms. R. would have qualified for an exemption, but did not apply for one because she understood it could only be granted for a single event.
At first instance, the judge held that the list of medical conditions justifying an exemption was not a closed one. He dismissed the petition as premature because the petitioners had not exhausted their remedies under the administrative process. On appeal, held: Appeal dismissed. While the judge erred in embarking on his own interpretation of the regime, there was no reversible error because his interpretation matched that of the Provincial Health Officer (“PHO”), and that interpretation was reasonable. Ms. K. and Ms. S. failed to give the PHO the opportunity to decide whether to exempt them from the regime.
The regime, initially, did not allow for blanket exemptions, though the PHO did grant such exemptions. The failure of the PHO to follow the rules of the regime does not insulate it from constitutional challenge. It is arguable that the regime, as initially set out, infringed Ms. R.’s s. 15 rights. The initial rule was in place for a relatively short time, and the circumstances are unlikely to be repeated. The only remedy that is sought is declaratory, and it would have no practical effect. Given the factual complexity of the constitutional issue, and the absence of any practical effect, the Court declines to address the issue of whether the failure of the initial regime to provide for blanket exemptions was a violation of s. 15.
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