Search Results
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F. (T.M.) v. H. (M),
2002 BCCA 155
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2002/03/01
Court of Appeal
The court concluded that the trial judge had not erred in determining the "best interests of the child" in a custody and access trial.
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F. P. Construction Ltd. v. B. U. K. Investments Ltd.,
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1993/03/30
Court of Appeal
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F. Williams Logging Co. Ltd. v. Roethel,
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1995/03/02
Court of Appeal
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F.(J.G.) v. B.(C.L.),
2003 BCCA 382
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2003/05/22
Court of Appeal
Huddart J.A. refused leave to appeal an interim custody and access order made under the Family Relations Act, finding it had no prospect of success and that the parties' resources would be more profitably spent in reaching a final decision about care arrangements for their daughter.
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F.H. v. McDougall,
2007 BCCA 212
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2007/04/13
Court of Appeal
Appeal from order finding the defendant, Ian McDougall, formerly an Oblate brother, had sexually abused the plaintiff when the latter was a student at the Indian Residential School in Sechelt in the 1960's. Appeal allowed; Ryan J.A. dissenting. At issue was whether the learned trial judge had properly instructed herself on the evaluation of the evidence.
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F.J.V. v. W.K.S.,
2019 BCCA 67
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2019/02/12
Court of Appeal
The parties in high-conflict litigation reached a settlement of parenting issues, which included a provision that counselling for the children be provided by a counsellor or child psychologist agreed by the parties or, failing agreement, selected by the previously appointed parenting coordinator. The parties informally applied for approval of a consent order embodying the settlement. The judge dismissed the application on the basis that the consent order was not in the best interests of the children. Held: Appeal allowed. The judge erred in failing to consider whether, given that the parties had not agreed on the identity of a counsellor or child psychologist, the consent order was nevertheless in the best interests of the children. He also erred by failing to give sufficient weight to the effect of the selection of a counsellor or child psychologist by the parenting coordinator. The judge had jurisdiction to order that the selection of a counsellor or child psychologist be made by a parenting coordinator.
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F.K.L. v. D.M.A.T.,
2024 BCCA 238
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2024/06/13
Court of Appeal
This appeal concerns parenting arrangements in respect of the parties’ eight-year-old daughter. Under the order that governed parenting arrangements prior to the order under appeal, the child resided primarily with Mr. T. in Gold River during the school year. Ms. L. was allocated some parenting time, most of which was exercised in Comox. The order was made on the understanding that Mr. T. would be residing and working in Gold River. Mr. T. decided to return to his previous employment, working in Northern Alberta for 14-day stints, between which he returned to Gold River for 14 days. Given the material change in circumstances, both parties applied for modifications to the parenting order, with Ms. L. proposing that the child be relocated to Comox to reside primarily with her. The judge modified the parenting order in minor respects but rejected the application to have the child move to Comox to live with the appellant. He indicated that when Mr. T. was away for work, he could authorize his wife to undertake parental responsibilities under s. 43 of the Family Law Act. Ms. L. appeals, arguing that parental responsibilities cannot be delegated in that fashion. She seeks an order relocating the child to reside with her in Comox.
Held: Appeal dismissed. The reference to s. 43 of the statute in the order was unnecessary, but it does not invalidate the order. The arrangements put in place by the judge exhibited no reversible error.
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F.S.M. v. The Anglican Church,
2000 BCCA 432
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2000/06/29
Court of Appeal
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F.S.M., Sr. v. Anglican Church of Canada,
2004 BCCA 23
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2004/01/14
Court of Appeal
a Appeal seeking costs with reference to an abandoned appeal dismissed.
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F.W.C. The Land Co. Inc. v. Kopas & Burritt Funding Inc.,
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1994/09/28
Court of Appeal
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Fabellorin v. Peterson,
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1994/03/04
Court of Appeal
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Fabrikant-Commonwealth Trading Inc. v. Morrisonn,
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1994/10/28
Court of Appeal
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Facchin Estate,
2012 BCCA 112
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2012/03/08
Court of Appeal
Application to restore appeal to active list refused on the basis that the appeal is wrongly brought in this Court and therefore lacks merit. The order is attacked on the ground that it was improperly procured. The proper forum for this complaint is in the Supreme Court.
Application for privilege of audience refused because of the applicant’s conflict of interest.
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Facebook, Inc. v. Douez,
2023 BCCA 40
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2023/01/26
Court of Appeal
The applicant is the representative plaintiff in a class action commenced against Facebook, Inc. On a summary trial application, the judge found in favour of the certified class on several common issues related to liability but determined that common issues relating to damages required a conventional trial. Facebook has appealed the order with respect to liability issues. The applicant seeks to stay that appeal on the basis that the trial judge has yet to decide the damages issues. Held: Application dismissed. While there is a general aversion to “litigation in slices”, it may be appropriate to permit an appeal to proceed where it would obviate the need for further proceedings in the trial court. Here, if Facebook achieves success on the appeal, then either the need for the damages trial will disappear, or the length, complexity, and cost of that trial will be reduced. The cases the applicant relied on are distinguishable, as here the issues were already bifurcated at the trial level, and a stay would cause a significant delay in the hearing of the appeal. Further, there is no merit to the applicant’s submissions that not staying the appeal would give Facebook two attempts to reargue the same issue, that the division hearing the liability appeal might say something embarrassing to a division hearing a damages appeal, or that the appeal might tie the hands of the trial judge. Finally, there is minimal risk that the liability appeal will not be decided in advance of the damages trial.
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Faculty Association of the University of British Columbia v. University of British Columbia,
2009 BCCA 56
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2009/02/12
Court of Appeal
In the circumstances, it was appropriate to award the Intervenor, CUPE, its costs of UBC’s unsuccessful application to strike certain paragraphs of CUPE’s factum, in any event of the cause.
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Faculty Association of the University of British Columbia v. University of British Columbia,
2009 BCCA 69
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2009/01/14
Court of Appeal
University of British Columbia’s application to strike various paragraphs from the factums of two of the Intervenors is dismissed. The impugned paragraphs of the factums do not exceed the permissible limits of argument by Intervenors. With respect to the Intervenor, CUPE, UBC’s objection misapprehends CUPE’s legal arbument.
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Faculty Association of the University of British Columbia v. University of British Columbia,
2008 BCCA 376
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2008/09/26
Court of Appeal
Applications for intervenor status allowed.
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Fadai v. Cully,
2015 BCCA 505
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2015/12/04
Court of Appeal
The appellant rear-ended the respondent’s vehicle. Most of the respondent’s accident-related injuries have healed, but he continues to experience difficulties regulating his behaviour and controlling his temper. The trial judge found these behavioural symptoms to be the result of the accident. While the respondent obtained awards under numerous heads of damages, the appellant only appealed the $250,000 award for loss of future income earning capacity. Held: Appeal dismissed. There was evidence upon which the trial judge could reasonably make an award of $250,000 for loss of future earning capacity. The award cannot be characterized as unreasonable or wholly erroneous. Also, the reasons for judgment are sufficient to permit meaningful appellate review. The trial judge analyzed the evidence in detail and made clear factual findings supporting his determination that the respondent had established a real and substantial possibility of a future event leading to an income loss. Those findings are sufficient to explain why the award under appeal was made.
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Fahey v. Hayashi,
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1992/11/05
Court of Appeal
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Fahey v. Hayashi,
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1993/03/04
Court of Appeal
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Fahey v. Hayashi,
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1993/04/16
Court of Appeal
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Fahey v. Laramie Mining Corp.,
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1990/01/12
Court of Appeal
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Fahlman, by his guardian ad litem Fiona Gow v. Community Living British Columbia et al,
2007 BCCA 15
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2007/01/09
Court of Appeal
The appellants failed to establish that the chambers judge erred in his interpretation of the definition of "developmental disability" in Community Living Authority Act, S.B.C. 2004, c.60. The appellants had denied benefits to the respondent on the basis of IQ criteria that does not form part of the Act or Regulations. For these and other reasons, the appeal was dismissed.
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Fairbanks v. Fairbanks,
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1998/03/06
Court of Appeal
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Fairbrass v. Hansma,
2010 BCCA 319
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2010/06/24
Court of Appeal
A group of electors from the township of Spallumcheen sought to have the mayor disqualified from office for failing to recuse himself from participating in a decision regarding a proposed zoning bylaw. The bylaw proposed to create a new class of land that could more easily be subdivided. Both the mayor and his two sons owned land that came within the new bylaw, however the mayor’s parcel was too small to subdivide even under the new regime. The mayor, after consulting with his lawyer, decided he was not in a conflict of interest and refused to recuse himself. While the proposed amendment ultimately was not passed, the electors nevertheless petitioned the British Columbia Supreme Court for a declaration that the mayor had a direct or indirect pecuniary interest in the matter, and that by failing to recuse himself he was temporarily disqualified from office, as provided by the Community Charter. The judge dismissed the petition, holding that there was not sufficient evidence to show that the mayor was in a conflict of interest, direct or indirect, and that in any event the mayor’s good faith reliance on his solicitor’s opinion provided a defence under the Community Charter. A number of the electors appealed. Held: Appeal dismissed. The judge made no error in holding that the electors had not established a direct pecuniary interest, as there was insufficient evidence to show that the proposed amendment would affect the value of the mayor’s property. Further, he did not err in holding the electors had adduced insufficient evidence to establish that the sons’ direct pecuniary interest in the proposed amendment caused the mayor to have an indirect interest sufficient to mandate disqualification under the Community Charter.
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Fairchild Developments Ltd. v. 575476 B.C. Ltd.,
2020 BCCA 123
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2020/04/30
Court of Appeal
The parties executed lease amendment letters in which the personal respondent, Mr. Kong, agreed to indemnify Fairchild under the lease obligations of the corporate respondents. The trial judge concluded that the parties had not reached consensus on the start date of the indemnities such that upon execution of the letter agreements, Mr. Kong would become immediately and personally liable for the outstanding arrears of the corporate respondents. She held that the letter agreements were unenforceable, or in the alternative, unconscionable. Fairchild appeals on the basis that the judge erred by failing to consider the express terms of the letter agreements, by finding that the time periods of the indemnities had not been resolved, and in holding that the letter agreements were unconscionable.
Held: Appeal dismissed. The judge did not fail to consider the express terms of the letter agreements in her interpretation of the objective intentions of the parties, nor did she commit a palpable and overriding error in concluding that the parties were not ad idem. This finding was open to her on the evidence and supported by the record.
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Fairfield v. Canada (Ministry of Citizenship and Immigration),
2009 BCCA 391
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2009/09/09
Court of Appeal
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Fairhurst v. De Beers Canada Inc.,
2012 BCCA 257
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2012/06/14
Court of Appeal
Appeal from a determination that the BCSC had territorial competence over the plaintiff’s proposed class action against various De Beers companies, under the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”). The plaintiff sought damages for illegal price-fixing of Gem Grade Diamonds contrary to common law and provisions of Part VI of the Competition Act. The purported plaintiff class would consist of persons resident in British Columbia who were “purchasers of Gem Grade Diamonds in British Columbia.” The plaintiff relied on s. 10(f) and (g) of the CJPTA, which provides that a real and substantial connection between British Columbia and the facts on which a pleading is based, is presumed to exist if the proceeding concerns “restitutionary obligations that, to a substantial extent, arose in British Columbia”, or concerns a “tort committed in British Columbia”. No argument was advanced by the defendants under s. 11 of the CJPTA, which deals with forum non conveniens.
Appeal Dismissed: The pleadings allege facts that if proven would meet the requirements of ss. 10 (f) and (g). In particular, the reference in the pleading to “purchasers in British Columbia” equated to a pleading that economic harm resulting from the alleged wrongs was suffered in British Columbia by persons resident here. The court below had correctly rejected the defendants’ argument that any connection between the case as pleaded and British Columbia was “tenuous” and “implausible”. As held in Stanway v. Wyeth Pharmaceuticals Inc. (2009 BCCA 592), once s. 10 (f) or (g) was met, the presumption of a real and substantial connection was mandatory. The court below was also correct in concluding that the defendants had not “rebutted” territorial competence by filling evidence to the effect that none of the De Beers defendants sold Gem Grade Diamonds in Canada and that most of them were merely “holding companies”. Even if these assertions were true, it did not follow that agents or employees of the defendants had not participated in price-fixing or other illegal activities which affected the price of Gem Grade Diamonds in British Columbia.
In any case, it was not for the court to make findings of fact at this stage. If the defendants wished to argue that the pleading did not disclose an arguable case, they should to apply under Rule 9-5(1).
Section 10 incorporates various “objective” factors in the test for territorial competence designed to reflect the realities of modern commerce. The conclusion of territorial competence may be then be negated only by a finding of forum non conviens under s. 11. As mentioned above, s. 11 ad not been invoked by the defendants below or in this court.
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Fajendazz Foundation v. HPY Industries Ltd.,
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1998/01/16
Court of Appeal
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Fakhri v. Wild Oats Markets Canada, Inc.,
2004 BCCA 549
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2004/10/27
Court of Appeal
Appeal from an order certifying a class action arising from food contamination. Held: Chambers judge did not err in appreciating the relative importance of the common and individual issues, in certifying a claim for punitive damages and in refusing to exclude in the definition of the class those who have settled their claims. Appeal dismissed.
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Falati v. Smith,
2011 BCCA 45
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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.
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Falconer v. Falconer,
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1993/03/30
Court of Appeal
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Falk (Guardian of) v. M.F. Wagner Shows Ltd.,
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1994/09/26
Court of Appeal
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Falkenberg v. Scott,
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1993/06/14
Court of Appeal
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Falkener v. Falkener,
2020 BCCA 303
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2020/11/05
Court of Appeal
The appellant appeals an order for lump sum spousal support on the basis of alleged erroneous findings of fact made by the trial judge regarding his health, the valuation of his interests in several private companies and the source of funds held in his name in a British bank account. The appellant seeks to adduce additional evidence in support of his appeal. Held: Appeal dismissed. The trial judge made no error in exercising her discretion to award lump sum spousal support. The applications to adduce further evidence are dismissed.
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Falls Creek Falling Contractors Ltd. v. Pat Carson Bulldozing Ltd.,
2001 BCCA 600
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2001/10/16
Court of Appeal
CONTRACT INDEMNITY CLAUSE ARBITRATION On appeal from a decision upholding an award by an arbitrator that an amount withheld under a head contract (not before the arbitrator) was a claim within the indemnity clause of the subcontract. Held, by a majority, Newbury J.A. dissenting, that the arbitrator's interpretation was correct and the appeal should be dismissed.
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Falls v. Falls,
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1997/04/15
Court of Appeal
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Falso v. De Stefanis,
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1996/10/07
Court of Appeal
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Falvai v. Falvai,
2009 BCCA 387
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2009/09/11
Court of Appeal
Supplemental reasons on costs.
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Falvai v. Falvai,
2008 BCCA 503
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2008/12/04
Court of Appeal
Appeal allowed from an order awarding the mother custody of a four year old child “conditional” upon her continuing to live in the area in which the father of the child resides. Permanent geographical restrictions on the residency of a custodial parent should only be imposed in the rarest of cases. The “condition” attached to the mother’s custody is rescinded and replaced with an order pursuant to s. 16(7) of the Divorce Act that the mother provide the father with 60 days notice of any proposed change of residence of the child, the date upon which that proposed change will occur and the place where the child will be residing.
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Fama Holdings Ltd. v. Powertech Industries Inc.,
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1997/03/25
Court of Appeal
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Fame Construction Ltd. v. 430863 B.C. Ltd.,
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1998/09/22
Court of Appeal
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Family Insurance v. Lombard Canada,
2000 BCCA 330
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2000/05/31
Court of Appeal
Insurance - competing excess insurance clauses - court finding that based on differing types of policies and consideration of circumstances that homeowner s policy should be found to be primary insurance and general liability policy should be found to be excess insurance.
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Faminoff v. The Law Society of British Columbia,
2017 BCCA 373
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2017/10/20
Court of Appeal
Mr. Faminoff was sanctioned by the Law Society for professional misconduct. On review, he applied for the admission of fresh evidence concerning the effect of a press release issued by the Law Society and a breach of an alleged “publication ban” regarding a previous disciplinary matter before the Law Society. The Review Board declined to admit the fresh evidence and held the Hearing Panel’s sanction of a two-month suspension fell within the appropriate range. On appeal, Mr. Faminoff argued the Review Board erred by declining to admit the fresh evidence. Held: Appeal dismissed. The Review Board made no reviewable error in declining to admit the fresh evidence and its decision to confirm the two-month suspension was reasonable.
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Fan v. Chana,
2011 BCCA 516
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2011/12/14
Court of Appeal
Appeal from an award of damages and costs following a trial concerning personal injuries caused by a motor vehicle accident. The appellant, who was eight years old at the time of the accident, claimed she suffered soft tissue injuries leading to a chronic pain disorder and interfering with her intended career as a professional musician. The trial judge found the injuries had essentially resolved in two years, she had not developed a pain disorder as a result of the accident, had suffered no loss of capacity, and required no future care. He awarded $25,000 in non-pecuniary damages. After receiving submissions on costs and considering the effect of a settlement offer, the trial judge awarded the appellant her costs and disbursements to the date of the trial, with the exception of the disbursements for two expert reports. On appeal, the appellant claimed the damages award was inordinately low, and the trial judge erred in failing to award damages for loss of capacity and future care. She also claimed the trial judge erred in disallowing the disbursements.
Held: Appeal allowed to the extent of ordering the appellant is entitled to the costs of the reports of one of the experts. In assessing damages, the trial judge reviewed and considered all of the evidence, weighed it, assessed the credibility and reliability of the witnesses, made findings of fact, and assessed the damages accordingly. There is no basis or reason for this Court to interfere. In disallowing the disbursement for the expert reports, the trial judge failed to apply the principle that a disbursement should not be disallowed if it was reasonably incurred at the time it was incurred.
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Fantov v. Canada Bread Company, Limited,
2019 BCCA 447
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2019/12/09
Court of Appeal
Class actions were commenced across the country in late 2017 and early 2018 in respect of claims of price fixing and conspiracy by suppliers and retailers of packaged bread. Asquith v. George Weston Limited [Asquith] was commenced in B.C. on behalf of residents of B.C. An action was filed and subsequently granted carriage in Ontario on behalf of a proposed national class excluding Quebec: David v. Canada Bread Company, Limited [David]. Counsel for David also filed Fantov v. Canada Bread Company, Limited [Fantov] in B.C. on behalf of residents of B.C. They did so not with the intent of going forward with the Fantov action, but rather with the intent of staying the action in B.C. in favour of a national class action in David. The case management judge awarded carriage to the Asquith action and found the Fantov action should be stayed. Counsel in the Fantov action and the defendant suppliers and retailers of packaged bread appeal that decision and submit the Asquith action should be stayed in favour of the David national class action, either to avoid a multiplicity of proceedings or as an abuse of process. Held: Appeal dismissed. A carriage motion is an imperfect mechanism to resolve multi-jurisdictional issues. The recent amendments to the Class Proceedings Act create a mechanism to resolve these issues in the context of a certification application where a case management judge can determine whether the proceeding should go forward or be heard in another jurisdiction. The applications to stay the Asquith action in favour of the David action on grounds other than an abuse of process are premature. Those issues should be decided at the certification hearing. However, circumstances may arise where it is appropriate to decide an application in advance of certification to stay a multi-jurisdictional class action for abuse of the court’s process. The Asquith action is not such an instance. A proposed class action is not abusive simply because there is another class action dealing with the same subject matter ongoing in another jurisdiction. The Fantov action is an abuse of process because under the new Class Proceedings legislation it no longer has a legitimate purpose. Counsel in the David action will have standing at the Asquith certification hearing to make submissions that the David Action should be the preferred vehicle to determine the claims against the defendants.
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Fanucchi v. Price's Alarm Systems Ltd.,
1999 BCCA 198
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1999/03/11
Court of Appeal
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Farand v. Jardine,
2008 BCCA 356
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2008/09/17
Court of Appeal
Application for leave to appeal dismissed.
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Farbeh v. The College of Pharmacists of,
2013 BCCA 59
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2013/02/01
Court of Appeal
Appeal by the College of Pharmacists of British Columbia (the “College”) from a judgment in chambers on judicial review of a decision of a panel of the College’s disciplinary committee. The respondent pharmacist, Manijeh Farbeh, was found guilty on various counts for misconduct. Her registration as a pharmacist was cancelled. The Chambers judge reversed the decision of the Panel on three counts. He upheld the Panel’s decision on two counts. He remitted the question of penalty only to the discipline panel. On appeal it is argued that the Chambers judge erred in failing to remit the question of liability on two of the counts for a new hearing.
Appeal allowed:
The judge erred by failing to consider whether a new hearing or admission of further evidence was necessary in the interests of justice, per s. 40(8) of the Health Professions Act, R.S.B.C. 1996, c. 183. The appeal was allowed. The question of the Pharmacist’s liability on Counts 1 and 2 was remitted to the discipline committee of the College of Pharmacists for a further hearing.
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Farbeh v. The College of Pharmacists of British Columbia,
2015 BCCA 348
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2015/08/05
Court of Appeal
The applicant appeals from the dismissal of her petition to set aside the penalty imposed by a discipline panel of the College of Pharmacists. Held: Leave to appeal is granted. The applicant has established some prima facie merit to the argument that the panel did not fully consider alternatives to the cancellation of her registration.
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