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Posted Wednesday, April 23, 2025:
Cline v. Fédération de Gymnastique du Québec,
2025 BCCA 132
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2025/04/23
Court of Appeal
Application to determine whether leave to appeal is required from a pre-certification hearing considering whether common issues alone are sufficient to create a real and substantial connection and ground territorial jurisdiction over an ex juris defendant in respect of ex juris potential class member whose claims arise outside BC. Held: the order in issue is not appealable under the Court of Appeal Act. The appeal is quashed. If it were a limited appeal order, the application for leave is dismissed.
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Insurance Corporation of British Columbia v. Ari,
2025 BCCA 131
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2025/04/23
Court of Appeal
The Insurance Corporation of British Columbia (ICBC) appeals an order made in the course of ongoing class action proceedings awarding aggregate damages of $15,000 per class member. ICBC says the judge made an error of law in awarding more than nominal damages for the breach of privacy under s. 1 of the Privacy Act, R.S.B.C. 1996, c. 373, without proof of consequential harm common to the whole class.
Held: the appeal is dismissed. The Privacy Act creates a tort actionable without proof of damage and does not restrict the court to nominal damages where consequential loss has not been established by the plaintiff. General damages may be awarded to compensate, vindicate and deter injuries to the privacy interest itself, in keeping with the quasi-constitutional nature of the right to privacy. The judge made no legal error, and his discretionary assessment of damages is entitled to deference.
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Posted Tuesday, April 22, 2025:
R. v. R.D.W.,
2025 BCCA 130
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2025/03/12
Court of Appeal
The appellant challenges his conviction on the sole ground of ineffective assistance of counsel and seeks to adduce fresh evidence in support of that ground. He says that trial counsel was ineffective in failing to cross-examine the complainant on medical records that the appellant says would have undermined her credibility. The Crown submits that trial counsel was not ineffective, and that cross-examination on the medical records could not reasonably have been expected to affect the result.
Held: Appeal dismissed. The fresh evidence is admitted for the limited purpose of assessing ineffective assistance. However, for the reasons advanced by Crown counsel, the appellant has not established ineffective assistance. Trial counsel provided reasonable professional assistance, and it is not reasonably probable that cross-examination on the medical records could have affected the result.
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Posted Thursday, April 17, 2025:
Delane Industry Co. Ltd. v. Tsawwassen Quay Market Corporation,
2025 BCCA 129
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2025/04/10
Court of Appeal
This appeal involves a longstanding dispute over common area expenses payable under a five-year subleasing agreement entered into in 2005/06. A Registrar’s Report determined no monies were owing, by either side. That Report was confirmed by a Supreme Court judge. The appellant appealed from the confirmation, alleging multiple errors. It also brought a fresh evidence application in support of the appeal, and sought review of a decision by a chambers judge denying leave to add a third party as a respondent to the appeal. HELD: All three matters are dismissed. The appellant does not meet the test for the admissibility of fresh evidence. Nor has he established a proper basis for appellate interference with the other two orders.
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Dhaliwal v. Stang,
2025 BCCA 128
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2025/04/17
Court of Appeal
Appeal and cross-appeal of damages for injuries sustained in a motor vehicle accident. The appellants argue the judge erred in assessing damages for future loss of capacity to earn income by failing to find that a subsequent workplace accident sustained by the respondent brought an end to damages from the motor vehicle accident. The respondent cross-appeals and argues the judge erred in finding the injuries (from the two separate events) to be divisible by misapprehending the evidence and leading to inordinately low damage awards. Held: appeal dismissed; cross-appeal allowed, in part. The judge ignored material aspects of the doctor’s testimony and made findings on causation and divisibility that were inconsistent with this evidence. This led to errors in the assessment of past and future loss of earning capacity and special damages.
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Lewis v. Gibeau,
2025 BCCA 127
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2025/04/17
Court of Appeal
The appellant, Ms. Lewis, appeals from a damages award to her for personal injuries in connection with a motor vehicle accident. Ms. Lewis argues that the trial judge’s “global” award of $89,641.02 for loss of past and future earning capacity was the product of multiple errors, and that the trial judge also erred in rejecting her claim of $162,000 for future cost of housekeeping services. HELD: appeal allowed in part. The trial judge erred in (1) using the capital asset approach for valuing the loss of earning capacity, in circumstances where the appellant had an established career with a proven earnings history, (2) lumping together the claims for loss of past and future earning capacity, and (3) failing to properly analyze negative contingencies. The trial judge’s “global” award is set aside and replaced with awards of (i) $25,995 (minus required reductions) for past loss of earning capacity, and (ii) $206,583.56 for loss of future earning capacity. The trial judge did not err in dismissing the appellant’s claim for future cost of housekeeping services.
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R. v. Bowcock,
2025 BCCA 124
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2025/04/17
Court of Appeal
A jury found the appellant guilty of attempt murder, aggravated assault, and using a firearm to commit an indictable offence. The Crown called only one eyewitness to the shooting. The remainder of its case was circumstantial. The identity of the shooter was the main issue at trial. The eyewitness was not asked to identify the shooter in the courtroom and his description of the shooter differed from the appellant. The appellant appealed from his convictions, alleging error in the judge’s charge to the jury on how to approach the eyewitness identification evidence. HELD: Appeal from conviction dismissed. The jury charge was not perfect, but it adequately equipped the jury on how to assess identification evidence with exculpatory aspects. The jury would have understood from the instruction that differences between the eyewitness description and the appellant’s physical appearance could form the basis for reasonable doubt, even if it did not accept the description as true.
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R. v. Lemoel,
2025 BCCA 126
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2025/04/17
Court of Appeal
Mr. Lemoel appeals his conviction for welfare fraud, arguing that the trial judge failed to (1) provide him with sufficient assistance as a self-represented accused, and (2) properly consider whether the Crown had proven an essential element of the offence, or alternatively, to give reasons adequately explaining the result. HELD: appeal dismissed. (1) Near the beginning of the trial, the trial judge gave Mr. Lemoel an explanation of the substantive law and the trial process. As the trial progressed, the judge explained various rules of evidence and procedures when it became necessary to do so. There was no trial unfairness pertaining to any of the four specific points on which Mr. Lemoel says the trial judge failed to provide him with sufficient assistance. (2) The judge’s reasons, read as a whole, together with the record, and in light of the live issues, reflect that he found all of the essential elements of the offence were proven.
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