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Posted Friday, March 28, 2025:
MacLellan v. Somers,
2025 BCCA 107
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2025/03/17
Court of Appeal
The appellants apply to have their appeal removed from the inactive list and an extension of time to file supporting materials on the appeal. The appeal was placed on the inactive list because more than one year had passed since the filing of the notice of appeal. At the time of the application, eighteen months have passed since the notice of appeal was filed. The appellants’ counsel asserts that the other materials are ready to be filed and the delay in applying for reactivation is partially attributable to getting these materials ready. The delay is also attributable to original counsel withdrawing. The respondent opposes the application, arguing that the delay has caused prejudice and if a new trial is ordered as a result of the appeal, the evidence will have eroded. Held: The application is allowed and the appeal is removed from the inactive list. The shortcomings of counsel in this case should not be visited on the appellants, who were diligent in contacting counsel, retaining new counsel when their original counsel withdrew, and had no knowledge that either counsel had missed filing deadlines. While there is some prejudice to the respondent, the trial turned on expert evidence, which has been recorded. The appeal is not bound to fail. In these circumstances, the interests of justice favour reactivating the appeal and allowing the appellants to file the necessary documents to allow it to proceed.
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Westfield Business Centre Ltd. v. GC Capital Inc.,
2025 BCCA 108
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2025/03/21
Court of Appeal
The appellants seek leave to appeal a judge’s approval for sale of a property in the context of foreclosure proceedings. Held: Application dismissed. The proposed appeal raises no point of significance to the practice. More significantly, it has very little merit, which also reduces its potential significance to the action. Therefore, granting leave is not in the interests of justice.
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Posted Thursday, March 27, 2025:
R. v. Moazami,
2025 BCCA 102
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2025/03/27
Court of Appeal
This is the applicant/appellant’s second application for an extension of time for leave to appeal a summary conviction appeal judge’s dismissal of his extension application. In 2011, the applicant pleaded guilty to assault with a weapon. Almost seven years later, the applicant applied for an extension of time to bring a summary conviction appeal. That application was dismissed. Five months later, the applicant sought leave to appeal to this Court and his application for an extension was dismissed. The applicant again seeks an extension of time to seek leave to appeal the assault conviction, asserting a material change in circumstances warranting reconsideration. Held: Application for extension of time is dismissed. On this renewed application, the applicant has not established there is new material showing that the interests of justice or special circumstances require reconsideration.
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R. v. Moazami,
2025 BCCA 103
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2025/03/27
Court of Appeal
The applicant/appellant seeks leave to appeal the decision of a summary conviction appeal judge dismissing his appeal against conviction for want of prosecution. Held: The application is dismissed. While the applicant raised a potential question of law relating to evidence that supported his conviction of breaches of the terms of recognizance, he did not establish that the appeal raised an issue of importance or that the appeal had a reasonable chance of success, which are required for granting leave under s. 839(1) of the Criminal Code. In these circumstances, it is not in the interests of justice to grant leave.
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Posted Tuesday, March 25, 2025:
Dynamic Air Solutions Ltd. v. Yu,
2025 BCCA 91
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2025/03/25
Court of Appeal
The respondent Mr. Yu was driving his motorcycle in the curb lane, passing vehicles in the centre lane on the right. Meanwhile, the appellant Mr. Chan, who was parked in the curb lane, opened the door of his truck, without checking for vehicles coming up behind him. An accident ensued in which Mr. Yu was thrown from his motorcycle. The trial judge apportioned liability 50/50 and assessed Mr. Yu’s damages at $413,000. Both parties appeal the trial judge’s decision on apportionment of liability. The appellants also appeal the finding that Mr. Yu’s back injury was caused by the collision, and the trial judge’s damages assessment. HELD: appeal and cross-appeal dismissed. No basis has been shown to interfere with the trial judge’s decision on liability, apportionment, causation, or assessment of damages.
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Moore v. Cheung,
2025 BCCA 97
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2025/03/25
Court of Appeal
The appellant applies to have his appeal removed from the inactive list. The appeal is from an order denying an interim stay of an order of possession in a tenancy dispute. The judicial review of the Residential Tenancy Branch decision has since been heard, and the appellant here has appealed the final order to this Court. He has obtained a stay of the order in the substantive appeal. Held: The application to reinstate the appeal is dismissed. The delay has been significant, and the appeal is now moot. The substance of the dispute is addressed by the appellant’s related appeal of the final order. It is not in the interests of justice to reactivate the appeal.
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Salinger v. Nicola Mortgage Corporation,
2025 BCCA 99
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2025/03/25
Court of Appeal
The appellant’s application for a stay of proceedings was set down on an urgent basis by the Registrar. The underlying appeal is from an order approving sale of the appellant’s home in the context of foreclosure proceedings. The sale was set to complete the day after the appellant’s stay application. Held: Stay granted. On the limited record, there appears to be some merit to the appeal. If the house is sold for below its value, this will harm the appellant and other creditors. It is unlikely that harm can be later compensated. There is no evidence of prejudice to the buyers on this application. A short stay is granted until leave to appeal can be heard.
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X Corp. v. Masjoody,
2025 BCCA 89
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2025/03/25
Court of Appeal
Appeal of an order refusing to stay proceedings on the basis of a forum selection clause. The respondent agreed to the appellant’s terms of service when he signed up to use X. Those terms included a requirement to address certain disputes only in California. The judge found the forum selection clause did not apply to the consequences of third parties viewing defamatory content on the platform. Following the appeal hearing, while judgment was under reserve, the respondent applied to vary the decision of one of the justices of appeal, who declined to recuse herself for alleged bias. Held: Appeal dismissed. Rule 62(2) does not authorize review of a recusal decision made during an appeal hearing. As for the appeal, the appellant’s publishing of allegedly defamatory content is not a dispute relating to the services because the terms of service differentiate “services” and “content.” The dispute is also not related to the terms, as the respondent is not asserting a contractual right to compel the appellant to remove the defamatory content, and the claims and remedies sought go beyond a claim for damages for defamatory content posted by third parties which are subject to the limitation of liability term.
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Posted Monday, March 24, 2025:
Dabanxiong Trading Corporation v. 0733849 B.C. Ltd.,
2025 BCCA 96
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2025/03/14
Court of Appeal
The appellant appeals the order of a chambers judge issued in December 2023 refusing its application for relief from forfeiture. Held: Appeal dismissed as moot. Since the order under appeal, the appellant has vacated the property, made no effort to preserve its interest in possession, and has paid no rent. In the underlying proceeding, the appellant has filed a pleading alleging that the respondent landlord is in breach of its duty to mitigate damages. The respondent had now leased the property to a new tenant. There is no genuine issue remaining, and it would not be in the interests of justice for this Court to exercise discretion to hear a moot appeal.
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Halifax Financial Corporation v. Edgemont Hollingsworth Heritage Revitalization Corporation,
2025 BCCA 95
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2025/02/19
Court of Appeal
This appeal arises from an application to determine the scale of costs payable under a mortgage. The judge ordered that the lender was entitled to 50% of its costs on a solicitor and client basis. The lender appeals. The appellant says that under the terms of the mortgage it was contractually entitled to recover indemnity costs, and the judge erred in failing to give effect to that presumptively enforceable entitlement.
Held: Appeal dismissed. The judge did err in applying the Law and Equity Act, R.S.B.C. 1996, c. 253, as though the proceedings were foreclosure proceedings, when in fact they were not. He should have started from the presumption that indemnity costs were payable. However, this error does not affect the result. The judge carefully weighed the relevant factors and exercised his discretion appropriately under the circumstances.
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