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Posted Thursday, August 29, 2024:
Nisg̱a’a Nation v. Malii,
2024 BCCA 313
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2024/08/29
Court of Appeal
The Nisg̱a’a Nation appeals from an order dismissing its application to be added as a defendant to an action in which the Gitanyow Nation seek a declaration of Aboriginal rights and title to an area of land that overlaps with the Nisg̱a’a treaty lands. The case management judge dismissed the application, finding that at the time of the hearing of the application, the Nisg̱a’a had not shown that its treaty or statutory rights were engaged to justify adding it as a party. Given the issues for trial might still be in flux, the judge directed a judicial management conference occur 60 days before the trial to address whether the Nisg̱a’a needs to be served with statutory notice as per the party-conferring provisions in the provincial and federal Nisg̱a’a Final Agreement Acts.
Held: Appeal dismissed. The judge was correct in concluding that at the time of the application, the Nisg̱a’a had not established a statutory or treaty entitlement to be added as of right to the Gitanyow action. There was also no reviewable error in the exercise of his discretion in finding that the Nisg̱a’a should not be added as a party under R. 6-2(7) of the Supreme Court Civil Rules. Lastly, it was not an error for the judge to direct a judicial management conference as set out in the order. This was part of the exercise of his discretion in his role as the case management judge of a complex action.
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R. v. C.R.J.,
2024 BCCA 308
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2024/08/29
Court of Appeal
A jury found the appellant guilty of one count of sexual interference. On appeal, he says the trial judge erred in her instructions to the jury. She did not adequately explain the use to be made of evidence of delayed disclosure in the context of a case where the defence asserted motive to fabricate. HELD: Appeal dismissed. In the particular circumstances of this case, the jury was properly equipped to apply the law to the evidence. On a fair reading of the charge, as a whole and in the context of the record, the jurors would have understood that in assessing the credibility and reliability of the complainants’ evidence, they were to consider the timing of the complainants’ disclosures of sexual abuse, including delay, the context in which their disclosures were made (a contested family law proceeding), and variations in substance over time. These were the key factors and pieces of evidence underlying the defence theory of motive to fabricate.
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Posted Wednesday, August 28, 2024:
Canadian National Railway Company v. British Columbia,
2024 BCCA 309
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2024/08/28
Court of Appeal
In 2015, CN engaged in activities that caused a wildfire in the Fraser Canyon. The Forest Appeals Commission upheld the Fire Manager’s cost recovery order requiring CN to pay over $16 million in compensation to the Province for costs incurred to suppress and extinguish the wildfire as well as for damage to resources. CN brought a statutory appeal and judicial review to the B.C. Supreme Court seeking a reduction of the cost recovery order. CN took the position that the Province undertook firefighting efforts that did not suppress but rather exacerbated the wildfire. The chambers judge dismissed CN’s statutory appeal and judicial review. CN appeals, stating the chambers judge erred in her interpretation of the Wildfire Act and Regulation.
Held: Appeal dismissed. The chambers judge was correct when she declined to interfere with the Forest Appeal Commission’s interpretation of the Wildfire Act; that the Wildfire Act required proof of causation and, on the evidence accepted, causation was proven. The chambers judge did not err in the causation analysis which required the Commission to consider: whether an amount claimed by the government properly fell within the scope of fire control costs; whether the fire control costs claimed “resulted directly or indirectly from the contravention”; and, whether damage or destruction was caused directly or indirectly by the contravention.
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Fatla v. McCarthy,
2024 BCCA 311
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2024/08/28
Court of Appeal
The plaintiff was injured in a motor vehicle accident for which the defendant admitted liability. She appeals from the assessment of damages for loss of future earning capacity and loss of housekeeping capacity. She says the judge should have based earnings loss on average income statistics for males (or alternatively, for all people) rather than on her own income. She also contends that the judge arbitrarily discounted the award and that he wrongly concluded that she would work an average of four days per week rather than three days. With respect to loss of housekeeping capacity, she argues that the award was wholly inadequate. Held: Appeal allowed. The judge did not err in basing the award on the plaintiff’s own earnings, which were the best indicator of her loss. The judge did err, however, in arbitrarily discounting the award from the figure he arrived at using a mathematical analysis. The judge’s determination that the plaintiff would likely work an average of four days a week going forward was not contrary to the evidence, and he committed no reviewable error in reaching that conclusion. Similarly, the judge was entitled to accept or reject the evidence on the need for compensation for specific housekeeping expenses. After accepting the need for expenditures, however, the judge should not have reduced the compensation for them without explanation. The award for loss of future earnings is increased from $220,000 to $235,000. The award for loss of housekeeping capacity is increased from $6,000 to $22,500.
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Tan v. Tan,
2024 BCCA 312
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2024/08/15
Court of Appeal
The applicant filed a notice of appeal late from an order dismissing his claim against the respondents. A justice of this Court dismissed his application for an extension of time on the basis that the appeal is bound to fail because the underlying claim is duplicative of a previous claim brought by the applicant against the respondents, which was also dismissed. The applicant now seeks to vary the justice’s order dismissing his application for an extension of time to file his notice of appeal. The deadline to file an application to vary has passed, so the applicant applies for an extension of time with respect to that deadline, and also seeks other relief including a no fees order. Held: Applications dismissed. The appellant has failed to satisfy any of the criteria for an extension of time. The application to vary is bound to fail. The applicant argues that he has new evidence which justifies reopening his claim or varrying the justice’s order, but the evidence is not credible. Additionally, the applicant did not demonstrate a bona fide inteniton to vary the justice’s order. The other orders sought by the applicant are moot given that there is no valid appeal.
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Posted Monday, August 26, 2024:
R. v. Roche-Garcia,
2024 BCCA 298
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2024/08/19
Court of Appeal
The appellant was convicted of the first degree murder of Zenen Cepeda Silva who was shot and killed on January 26, 2019, as he sat on the porch of his residence in the company of his wife, Maria Baldivia. The central issue at trial was identity. The Crown’s case against the appellant consisted of four main pillars: (1) identification/recognition evidence from Baldivia, whose preliminary inquiry testimony was admitted at trial pursuant to s. 715(1) of the Criminal Code because she was ill and unavailable to testify at the time of the trial; (2) video surveillance evidence from a nearby parking lot capturing a man arriving just minutes before the shooting in a vehicle that had been loaned to the appellant, and leaving in the same vehicle shortly thereafter in possession with what appears to be a handgun; (3) testimony from the appellant’s roommate, who identified the appellant as the man depicted in the video; and (4) firearms evidence confirming the bullet that killed the victim was fired from the same gun as a bullet recovered from the appellant’s residence. The appellant did not testify at trial or call evidence in his defence. The appellant appeals from his conviction on three grounds: (1) the judge erred in law by admitting the deceased’s statement identifying him as the perpetrator—the statement having formed a part of Baldivia’s preliminary inquiry testimony—without ruling on the admissibility of this hearsay utterance; (2) the judge erred in law by misdirecting the jury on the application of W. (D.) principles to an exculpatory statement made by the appellant to his roommate that was elicited by the Crown; and (3) the judge erred by permitting the Crown to tender Baldivia’s prior consistent identifying statements, including to her granddaughter for the first time in re examination.
Held: Appeal allowed; new trial ordered. The judge erred in law by allowing the victim’s identifying declaration to be put before the jury in the absence of an admissibility inquiry. Further, the instructions given to the jury on the use they could make of the appellant’s out-of-court denial of guilt also reflect error in law. Finally, the judge erred in law in permitting the Crown to elicit Baldivia’s prior consistent identification of the appellant through the granddaughter in re-examination. Despite the formidable nature of the Crown’s case, this is not an appropriate case in which to apply the curative proviso.
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