Search Judgments (Court of Appeal and Supreme Court)



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R. v. Schinkel,  2015 YKCA 2  –  2015/01/05
Court of Appeal

Crown appeal from concurrent 60-day intermittent jail sentences with a two-year period of probation following the accused’s guilty plea on charges of impaired driving causing bodily harm, dangerous driving causing bodily harm, and refusal to provide a breath sample. Also included was a one-year driving prohibition concurrent on the impaired and dangerous driving causing bodily harm convictions. The Crown contends the sentences are unfit and an appropriate sentence would be a total of six months jail with the one-year driving prohibition to apply concurrently to the refusal to provide a breath sample conviction. Held: Appeal dismissed, except to amend the Driving Order to apply to the third conviction, concurrently with the other two convictions. Otherwise, although the sentences are below the ordinary range for these offences, they were fit for this particular Aboriginal offender. Further, it was open to the judge in the circumstances to impose concurrent sentences for the three offences.
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Lam v. University of British Columbia,  2015 BCCA 2  –  2015/01/06
Court of Appeal

This is a class action brought by men who deposited their sperm with the appellant. The respondent is the representative of the class. The sperm was kept in a freezer that malfunctioned, damaging or destroying the sperm. The appellant raised an exculpatory clause in the contract of storage against the respondent. He contends it offends the Warehouse Receipt Act [WRA]. The parties agreed to have a sub-issue tried to determine whether the appellant could rely on the WRA. The issue at trial and on appeal was whether frozen human sperm is “property” for the purposes of the WRA. The trial judge held that it was and that the appellant was precluded from relying on the exclusion clause. Held: Appeal dismissed, majority reasons of Bennett J.A. agreed to by Frankel J.A concurring in the result. Per Chiasson J.A.: For the purposes of the WRA, human sperm is “property”. The task is to determine the meaning of “goods” in the WRA. As of the date the class members deposited their sperm, medical science had advanced to the point where sperm could be considered to be property. The judge concluded correctly that the plain meaning of goods in the WRA includes human sperm. He also undertook a purposive or contextual analysis and correctly reached the same conclusion. The decision of the Supreme Court of Canada in Harvard College does not support reading into the definition of goods in the WRA a limitation that goods are only property that can be traded in the market place. Majority (per Bennett J.A. and Frankel J.A.): The definition of sperm as “property” is limited to the WRA in this case. After applying a framework weighing the rights of the donors and the legislative restraints imposed on the donors, each of the donors had ample rights in relation to his own sperm specimen that invested him with ownership of the specimen sufficient to be defined as “property” and meet the definition of “goods” under the WRA.
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Roe v. British Columbia Ferry Services Ltd.,  2015 BCCA 1  –  2015/01/06
Court of Appeal

Mr. Roe brought an action against his former employer for wrongful dismissal. The employer defended the action alleging cause. After an internal investigation, the employer concluded that Mr. Roe, a senior manager, had on more than one occasion knowingly given complimentary food and beverage vouchers to his daughter’s volleyball team without prior authorization, contrary to the employer’s policy. Mr. Roe denied that he knowingly contravened what he said was an ambiguous policy. The trial judge did not resolve the conflict in the evidence, and made no findings of fact with respect to the nature of Mr. Roe’s alleged misconduct or which of the two posited scenarios had occurred. Instead, he assumed for the purpose of his analysis that the employer’s version was true. Based on that scenario, he found that Mr. Roe’s actions were “bordering on trifling” and “relatively minor” and therefore did not amount to just cause for dismissal. The employer appealed.

HELD: Appeal allowed; the matter is remitted to the trial court for a new trial. The judge erred in his characterization of the misconduct he assumed occurred for the purposes of his analysis and for which Mr. Roe was dismissed for cause. In particular, the judge erred in finding that Mr. Roe’s assumed conduct, objectively viewed by a reasonable employer and in all of the circumstances, was “bordering on trifling” or “relatively minor”, and therefore did not rise to the level of undermining the obligations of good faith that are inherent in and essential to the employment relationship. His finding as to the nature of Mr. Roe’s misconduct does not appear to have been considered in the context in which it occurred, including: Mr. Roe’s employment contract, the responsibilities and trust attached to his senior management position, and the employer’s policy and procedures that he was required to follow in the distribution of complimentary vouchers. The judge’s failure to apply this contextual approach to assessing the nature and seriousness of Mr. Roe’s misconduct resulted in palpable and overriding error. As well, the judge’s failure to consider the employer’s evidence that included a finding that Mr. Roe deliberately attempted to conceal his actions by using outdated and untraceable vouchers and failing to obtain prior approval or to report his actions after the fact, also amounted to palpable and overriding error. Given that the factual underpinnings of the judge’s decision were assumed and not determined, this Court cannot substitute a finding of just cause for Mr. Roe’s dismissal. Accordingly, the matter must be remitted to the trial court for a new trial.
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Bradshaw v. Victoria (City),  2015 BCCA 4  –  2015/01/07
Court of Appeal

The appellant subdivided property and sought building permits for the new lots. The City introduced development permit requirements in its official community plan after the application for subdivision but before the deposit of the subdivision plan. The City then refused to issue the building permits until the appellant obtained development permits. The appellant’s application for a declaration that he did not need development permits and for an order that the building permits be issued was dismissed and he appealed. Held: Appeal dismissed. Section 943 of the Local Government Act exempts applicants from new bylaws that affect the ability to subdivide, but not from bylaws that affect subsequent development. The appellant’s reliance on section 929 of the Act, which allows a municipality to withhold building permits in certain circumstances, is misplaced. It has no application to this case. Finally, the requirements of s. 879 of the Act for consultation before adoption of an official community plan were satisfied in this case.
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Ntibarimungu v. Whistler Blackcomb/Intrawest,  2015 BCCA 17  –  2015/01/07
Court of Appeal

A judge of the Court dismissed an application by the appellant for indigent status on his appeal, finding that the appeal had no prospect of success. Application for variation of the judge’s order dismissed. The judge applied the correct legal test, and did not make any error of law or principle, or misconceive the facts in her analysis.
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R. v. Rosenthal,  2015 YKCA 1  –  2015/01/08
Court of Appeal

Crown appeal allowed from suspended sentence for sexual assault; sentence varied to 14 months’ imprisonment.


West Kelowna (District) v. Newcomb,  2015 BCCA 5  –  2015/01/09
Court of Appeal

Mr. Newcomb moored his houseboat on Okanagan Lake in breach of certain provisions of a municipal bylaw and a licence of occupation that only permitted temporary moorage when accessory to the use of the immediately abutting upland parcel. Mr. Newcomb did not own an upland parcel. The District, relying on its licence and on the bylaw, applied for declaratory and injunctive relief against Mr. Newcomb. Mr. Newcomb responded by challenging the constitutional validity of the bylaw and the licence on the ground that they are, in pith and substance, about navigation and shipping and therefore outside the jurisdiction of the municipality’s legislative competence. The chambers judge found both the licence and the bylaw to be constitutionally valid as being in pith and substance about land use and regulation of land use under property and civil rights and matters of a merely local or private nature, both within provincial jurisdiction. While finding the bylaw and the licence did not purport to regulate the operation of boats or other marine vessels, the judge determined they did impact moorage by permitting temporary boat and buoy moorage only if accessory to the use of immediately abutting upland parcels. Applying the doctrine of interjurisdictional immunity, the judge held the licence and the bylaw could not prohibit temporary moorage of vessels which falls within the protected “core” of shipping and navigation. The judge therefore concluded both the bylaw and the licence must be read down. The Province appealed the judge’s order on the basis she erred in applying the doctrine of interjurisdictional immunity to the licence. Mr. Newcomb cross-appealed contending the judge erred in her application of the relevant constitutional division of powers principles and in failing to award him costs. Held: Appeal dismissed; cross-appeal allowed in part. During the hearing of the appeal, the parties agreed the judge’s order be amended to separate her declaration as to the licence from her declaration regarding the bylaw. The Province thus abandoned its appeal. As to the cross-appeal, the chambers judge correctly applied settled principles of constitutional law in determining the bylaw was in pith and substance within provincial jurisdiction. In addition, the judge correctly read down the bylaw, by applying the doctrine of interjurisdictional immunity, in order to avoid it infringing upon exclusive federal jurisdiction over navigation and shipping. The judge did, however, err in determining the District was the successful party in the litigation. Accordingly, Mr. Newcomb’s cross-appeal is allowed only to the extent of setting aside the judge’s order as to costs so that the District and Mr. Newcomb bear their own costs of the proceeding in the court below. The District is to receive 80 per cent of its costs on appeal.
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Acciona Infrastructure Canada Inc. v. Allianz Global Risks US Insurance Company,  2015 BCCA 6  –  2015/01/13
Court of Appeal

The respondents, two contracting companies, obtained judgment against the applicants, four insurance companies, which provided them with insurance coverage in relation to a large construction project. The applicants seek an order staying the execution of the judgment pending appeal, arguing that there would be a risk of irreparable harm if the monies are paid out, namely, that they would be unable to recover the funds if their appeal is successful. Held: Application dismissed. The applicants have not demonstrated that there would be a real or serious risk of non-recovery if they pay out the damages to the respondents and are successful in their appeal.
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Edgewater Casino v. Chubb-Kennedy,  2015 BCCA 9  –  2015/01/13
Court of Appeal

This appeal is from the dismissal of a petition for judicial review of a decision of the Human Rights Tribunal declining to dismiss a human rights complaint prior to a hearing. The reviewing judge held that the decision, a discretionary one made in the exercise of the Tribunal’s gatekeeping function, was not patently unreasonable. Held: appeal dismissed. The judge did not err in concluding the Tribunal’s decision was not patently unreasonable. Section 27(1)(c) of the Human Rights Code, R.S.B.C. 1996, c. 210 discussed.
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R. v. Tahirsylaj,  2015 BCCA 7  –  2015/01/13
Court of Appeal

Mr. Tahirsylaj appealed his conviction of three offences: production of marihuana, possession of marihuana for the purposes of trafficking and fraudulent consumption of electricity. Mr. Tahirsylaj argued that the Crown did not prove “possession” beyond a reasonable doubt, that the trial judge failed to consider “innocent possession” and that the verdicts were unreasonable and not supported by the evidence. Held: appeal dismissed. The evidence supported the conclusions of the trial judge.
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Sampley v. Sampley,  2015 BCCA 51  –  2015/01/13
Court of Appeal

Mr. S. sought and obtained relief under the Hague Convention on the Civil Aspects of International Child Abduction. Before the litigation commenced, he had consulted with Ms. L. with a view to having her represent him. On the appeal, Ms. S. retained Ms. L. Mr. S. applied to have Ms. L. removed from the case on the basis of conflict of interest. Held: Application dismissed. Ms. L. was in a situation of conflict, having received confidential from Mr. S. She should not have accepted a retainer to represent Ms. S. on the appeal. The dangers of abuse of confidential information are generally attenuated on appeal, but remain present. A bright-line test generally prevents counsel from representing one party after having received confidential information from the opposite party to the litigation. There is, however, a discretion in the court to allow counsel to continue where it is satisfied that it is in the interests of justice to do so, and where the dangers of misuse of confidential information are minimal. Here, there was no real likelihood of misuse of confidential information. Counsel took on the case in good faith, there was urgency in having the matter heard, and Mr. S. had not brought the application on in a timely fashion. Ms. L. was allowed to continue to represent Ms. S., but only for the purposes of the current appeal.
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T.K. v. R.J.H.A.,  2015 BCCA 8  –  2015/01/13
Court of Appeal

The appellant mother commenced divorce proceedings in which she applied to relocate with the children of the marriage from the Victoria area of British Columbia, where she and the father had lived for the almost ten years of their marriage, to the Toronto area of Ontario, where she was raised and her family continues to reside. The trial judge found that it was in the children’s best interests that they continue to be co-parented in the de facto joint custody and shared residency arrangement the parties had implemented in the Victoria area after their separation. He therefore refused the mother’s application to relocate with the children. He also imputed income to the mother for the purposes of the child support and granted the father costs of the action as the substantially successful party. The mother appeals all three orders.

Held: Appeal dismissed. The mother failed to demonstrate any material error of law or fact in the trial judge’s analysis in determining the best interests of the children. The judge weighed all of the relevant factors set out in Gordon v. Goertz and other relevant circumstances relating to the needs of the children and the ability of the respective parents to satisfy them. The judge did not rely on the reasons volunteered by the mother for wanting to relocate or the reasons of the father in preferring not to relocate, for a presumptive disposition in favour of the status quo; rather he weighed all of the evidence in determining the custodial arrangement that was in the best interests of the children. Nor did the judge err in imputing income to the mother at a level below full-time employment for the purposes of child support or in awarding the father costs of the action as the substantially successful party.
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Dosanjh v. Liang,  2015 BCCA 18  –  2015/01/14
Court of Appeal

The plaintiff agreed to purchase residential property from the defendant. The defendant refused to complete the transaction because she considered the purchase price to be too low. After initially insisting on completion, the plaintiff wrote to the defendant, accepted her repudiation and sued for damages. The trial judge found that the purchaser had not unequivocally affirmed the contract, and that he was entitled to accept the repudiation and sue for damages. Over the objection of the vendor, the judge accepted a property assessment under the Assessment Act as evidence of the market value of the property. The vendor appealed. Held: Appeal allowed to the extent of remitting the assessment of damages to the trial court. While the purchaser had unequivocally affirmed the contract, the vendor’s conduct amounted to a continuing repudiation, and the vendor was entitled to accept the repudiation when he did. The property assessment was not admissible evidence to establish the market value, and it should not have been considered by the judge. The court acknowledges that property assessments are sometimes used as evidence of value in family law cases; whether or not that is proper practice, it does not extend to other types of civil litigation.
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Preferred Steel Construction Inc. v. M3 Steel (Kamloops) Ltd.,  2015 BCCA 16  –  2015/01/14
Court of Appeal

These two appeals arise from a construction project after which the respondent failed to pay the appellant, who was its subcontractor, the full amount owing on its subcontract. The appellant brought an action against the respondent. The respondent brought an application to strike parts of the appellant’s notice of civil claim because it did not plead a valid claim under the Builders Lien Act. The appellant responded by applying to amend its pleadings. The motions were heard together. The chambers judge dismissed the appellant’s motion to amend because it had failed to bring it within the time set by an order made at a case planning conference. The judge then granted the respondent’s motion to strike.

Held: Appeals allowed. The chambers judge erred by resting his decision solely on the case planning order without considering other factors enunciated in the authorities, including the overriding concerns of justice and convenience. The Court considered these factors, and allowed the amendments. It followed that the appeal from the order striking the claim must be allowed as well.
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R. v. Cliff,  2015 BCCA 15  –  2015/01/14
Court of Appeal

Appellant was convicted of second degree murder following a jury trial. Crown led evidence from a witness in respect of whom trial judge issued a Vetrovec warning. Crown also cross-examined the appellant on his post-offence conduct, which included giving police a false name. Although there was evidence the appellant had been drinking, the trial judge did not instruct the jury on intoxication after defence counsel agreed such warning was unnecessary. Appellant argued on appeal that trial judge erred in not instructing the jury on his right to silence, in failing to instruct the jury that corroboration was not required with respect to the appellant’s own testimony, and in not providing instructions on intoxication.

Held: appeal dismissed. Appellant’s right to silence was not violated by the Crown’s questioning, the purpose of which was clearly to challenge his credibility rather than to suggest he had a duty to co-operate with police. Even though appellant had a similar history to the Vetrovec witness, an ‘anti-Vetrovec warning’ was not required. The standard W.(D.) instruction was sufficient to allay any potential prejudice in these circumstances. Finally, trial judge did not err in failing to instruct jury on intoxication. There was no air of reality to an intoxication defence, nor was there sufficient evidence of intoxication upon which a reasonable jury could infer the appellant did not have the requisite intent or capacity for murder.
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Broad v. Pavlis,  2015 BCCA 20  –  2015/01/15
Court of Appeal

Appeal from an order that the B.C. Supreme Court has jurisdiction in a family law proceeding. The respondent, who lives in B.C., brought the proceeding for orders for child and spousal support under the Divorce Act, and to set aside an equalization payment made under a settlement agreement on the ground that the appellant fraudulently failed to disclose the true value of his business. The parties were divorced in 2006 in divorce proceedings brought in Alberta, and the settlement agreement was made in Alberta and is governed by Alberta law. The appellant’s primary residence is in Alberta. He applied for an order staying the B.C. proceeding on the ground that the B.C. Supreme Court lacked jurisdiction, and if it has jurisdiction, it should decline to exercise it on the basis that an Alberta court is the more appropriate forum. The chambers judge held that the B.C. Supreme Court has territorial competence under s. 3(d) of the Court Jurisdiction and Proceedings Transfer Act, R.S.B.C. 2003, c. 28, because the appellant is ordinarily resident in B.C. He has a home in West Kelowna, B.C. where he spends 30 per cent of his time during vacations and seeing his children. The chambers judge refused to decline jurisdiction, finding that a B.C. court is the more appropriate forum. Held: appeal dismissed. The chambers judge did not err in finding the appellant was ordinarily resident in B.C. A person may be ordinarily resident in more than one place. The appellant has a home in which he regularly, normally and customarily lives in B.C. Nor did the chambers judge err in exercising his discretion to refuse jurisdiction, having considered all of the factors in s. 11(2) of the CJPTA. The B.C. Supreme Court has jurisdiction over the claims for child and spousal support under the Divorce Act. The B.C. Supreme Court can apply Alberta law with respect to the property matters to the extent that is necessary. The expense and inconvenience to the respondent would be greater than that of the appellant if there were proceedings in two jurisdictions.
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R. v. Cornish,  2015 BCCA 14  –  2015/01/15
Court of Appeal

The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis.


R. v. Lundy,  2015 BCCA 11  –  2015/01/15
Court of Appeal

The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis.


R. v. Vaillancourt,  2015 BCCA 13  –  2015/01/15
Court of Appeal

The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis.


R. v. Weinmeyer,  2015 BCCA 10  –  2015/01/15
Court of Appeal

The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis.


R. v. Wong,  2015 BCCA 12  –  2015/01/15
Court of Appeal

The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis.


British Columbia v. Burlington Resources Canada Ltd.,  2015 BCCA 19  –  2015/01/16
Court of Appeal

The respondent Burlington Resources Canada Ltd. procured well cementing services from BJ Services Company Canada (“BJ Services”). BJ Services places cement in the “annulus” of wells, and once set, the cement becomes part of the realty. Following a tax audit, the appellant concluded that the materials associated with the cementing process were sold as tangible personal property to the respondent by BJ Services and attracted provincial sales tax (“PST”). The respondent objected to the assessment of PST, claiming that its contract with BJ Services was a contract of service and that it never had possession of the cementing materials, which lost their character as tangible personal property once they set and became affixed to the land. On appeal from the Minister’s decision, the chambers judge agreed with the respondent and set aside the assessments, holding that the cement materials remained under the control of BJ Services until the work was completed, at which point the materials were affixed to the land and title to them passed to the Crown, which owns the real property. The Crown appealed, submitting that the trial judge erred in her application of the burden of proof in tax appeals and in her characterization of the contractual relationship between the respondent and BJ Services. Held: the appeal is dismissed. The trial judge correctly stated that while the Crown is entitled to rely on assumptions of fact in tax cases and the burden of proof lies with the respondent, these assumptions may be “demolished”. Based on the evidence before her, she found that the Crown’s assumptions were demolished, and there was ample evidentiary support for her to do so. She was correct to set aside the assessments because the cementing material, the tangible personal property, did not pass to the respondent before it lost that character and became part of the realty. The Crown’s assumption to the contrary was based on a misconception of the initial auditor, who did not have and did not ask for the contractual documents.
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R. v. Wilson,  2015 BCCA 21  –  2015/01/16
Court of Appeal

Sentence appeal limited to the availability of enhanced credit for pre-sentence custody. The sentencing judge denied the appellant enhanced credit pursuant to the s. 515(9.1) exception in s. 719(3.1) of the Criminal Code. There had not been a bail hearing but the judge reasoned that, if there had been, the appellant would have been detained in custody primarily because of his previous convictions. Held: Appeal allowed. The s. 515(9.1) exception in s. 719(3.1) cannot apply unless there has actually been a bail hearing.
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Spookw v. Gitxsan Treaty Society,  2015 BCCA 77  –  2015/01/16
Court of Appeal

Application for intervenor status by the Tstesaut/Skii km Lax Ha Nation. The underlying appeal concerns the right of the Gitxsan Treaty Society to speak on behalf of Gitxsan houses during consultations and negotiations with the Crown. The TSKLH identified itself as a Gitxsan house in earlier litigation, but now takes the position that it is not a Gitxsan house. The appellant and respondents take the position that the TSKLH is a Gitxsan house. Held: Application dismissed. Because the TSKLH takes the position that it is not a Gitxsan House, and because the validity of that position will not be before the court in the appeal, this appeal will not finally determine rights of the proposed intervenor. It therefore does not have a “direct interest” in the appeal. Further, the proposed intervenor does not a have unique perspective on the issues before the court, and there is no necessity of giving it intervenor status to ensure that all issues are fully canvassed.
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R. v. Anthony-Cook,  2015 BCCA 22  –  2015/01/19
Court of Appeal

The issue raised on this appeal is whether the sentencing judge erred in departing from the joint recommendation of Crown and defence in respect to the sentence to be imposed on the appellant, Matthew John Anthony-Cook, on a charge of manslaughter. At trial, the judge rejected the joint submission recommending that Mr. Anthony-Cook be incarcerated for an additional 18 months, on the grounds that the sentence was unfit, and imposed a sentence of two years less 1 day, factoring in deductions for pre-sentence custody. The judge also imposed a three year probation order.

Appeal dismissed.

On appeal, the appellant submitted that the trial judge erred in departing from the joint submission, in imposing too high a sentence, in failing to take into account restrictive bail conditions in accounting for pre-sentence custody credit and in imposing the probation order. The appeal was dismissed on all counts. The Court upheld the judge’s determinations regarding the appropriate sentence, assessment of pre-sentence custody credit and imposition of probation order conditions. The Court dismissed the argument that the trial judge erred in disregarding the joint submission.
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Boxer Capital Corporation v. JEL Investments Ltd.,  2015 BCCA 24  –  2015/01/20
Court of Appeal

Appeal from an order of a Supreme Court judge sitting on appeal from a commercial arbitration award. The judge held the arbitrator had erred in finding that issue estoppel did not apply. Held: Appeal allowed. The arbitrator did not err in finding that issue estoppel did not apply. The arbitral award is reinstated.
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R. v. Louie,  2015 BCCA 23  –  2015/01/20
Court of Appeal

The appellant appeals his convictions for aggravated assault and assault causing bodily harm on the basis that trial counsel’s previous representation of a Crown witness created a conflict of interest and that the trial judge erred by declining to grant a mistrial. He argued that where a mistrial is sought to remedy a conflict of interest after conviction but before sentencing, the test to be applied is the same as that applicable at trial, and that the trial judge erred by applying the test used on appeal. Held: Appeal dismissed. The trial judge properly applied the test used on appeal and no miscarriage of justice occurred. There is nothing to support the view that trial counsel’s prior relationship with the witness resulted in a conflict of interest that had a prejudicial impact on his representation of the appellant, or affected the reliability of the trial judge’s verdict or fairness of the trial.
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Brule v. Rutledge,  2015 BCCA 25  –  2015/01/22
Court of Appeal

Appeal from a dismissal of the plaintiff’s case on a no evidence motion under Rule 12-5(4) of the Supreme Court Civil Rules. The plaintiff brought an action against multiple defendants alleging various claims (breach of contract, inducement of breach of contract, unjust enrichment, breach of a duty of trust, and fraudulent representation) arising out of the prospective purchase of a mining property. The trial judge held that there was no evidence in support of any of the causes of action upon which a properly instructed jury would make the requisite findings. Held: Appeal allowed. The trial judge erred in finding the contract between the principal parties to be void for uncertainty on the no evidence motion and in weighing the evidence in support of the balance of the claims advanced. There was some evidence upon which a jury could conclude in the plaintiff’s favour in relation to at least one claim advanced against each of the defendants. The order of the trial judge is set aside and the matter is remitted for a new trial.
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Charlton v. Abbott Laboratories, Ltd.,  2015 BCCA 26  –  2015/01/22
Court of Appeal

Patients who had used sibutramine commenced an action against Abbott Laboratories, Ltd. and Apotex Inc., founded upon allegations the drug increased the risk of cardiovascular events, including heart attack and stroke. They pleaded causes of action in negligence and that sibutramine had been marketed in breach of obligations described in the Business Practices and Consumer Protection Act and the Competition Act and sought damages pursuant to the doctrine of waiver of tort. This is an appeal by the manufacturers from the certification of the proceedings as a class action against two defendants and a cross appeal from the refusal of the judge to certify class proceedings against a third defendant. The appellants argue the plaintiffs failed to meet the criteria for certification under s. 4 of the Class Proceedings Act by failing to adduce some evidence of a workable methodology to prove causation of damages on a class-wide basis. Held: appeal allowed. The certification judge erred in certifying the class action. Each common issue required a finding that sibutramine increases the risk for all class members. The plaintiffs did not adduce evidence of a methodology to address this question. While the plaintiffs provided evidence that sibutramine increased the risk of cardiovascular events for those with pre-existing conditions, there was no evidence before the certification judge of a method of establishing that sibutramine increased the risk of harm to patients without pre-existing conditions, for whom it was intended. The evidence before the certification judge was that the question of causation for the class was incapable of resolution. The certification order is set aside.
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Rabanes v. Pureza,  2015 BCCA 27  –  2015/01/22
Court of Appeal

Division dismissed appeal as abandoned, and for failure of appellants to comply with Order of the Registrar re preparation of transcripts.


A.L.B. v. Park,  2015 BCCA 37  –  2015/01/23
Court of Appeal

The respondent applies for an order dismissing the appeal as abandoned for the failure of the appellant to comply with an order requiring him to post security for the costs of the trial in the amount of $100,000 within 21 days. The respondent also applies for an order that $110,000 paid into court pursuant to an earlier order that required the appellant to post security for the trial judgment of $100,000, and for the appeal costs of $10,000, be paid out to herself. Held: Appeal dismissed as abandoned with costs of the appeal to the respondent. Application for the payment out of court of $110,000 granted in part: the $100,000 paid into court as security for the trial judgment shall be paid out of court to the respondent; the $10,000 security posted for appeal costs shall be held and available to be paid out of court to the respondent in the amount of the appeal costs as taxed.
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R. v. Bornyk,  2015 BCCA 28  –  2015/01/23
Court of Appeal

This is a Crown appeal from acquittal. The key evidence on one charge of breaking and entering a dwelling house is a sole fingerprint found in the home. The expert witness called by the Crown identified the print as, in his opinion, having been deposited by Mr. Bornyk. After the trial concluded the judge sent counsel four articles critical of fingerprint identification. Counsel made further submissions, following which the judge found the accused not guilty. In doing so the judge referred to the articles and found areas of concern with the expert’s evidence on matters not put to the expert witness but which appear to derive from the articles located by the judge. He also made his own comparison of the known and latent prints, identifying “differences” that had not been put to the expert witness. Held: The judge erred in locating and using material that was in the nature of opinion but was not evidence in the trial. By doing so he effectively assumed the multi-faceted role of “advocate, witness and judge”, and so compromised the appearance of judicial independence essential to a fair trial. As fingerprint comparison is an area of forensic science in which expert evidence elucidation is required, the judge erred as well in making his own comparison unassisted by expert evidence. The verdict is set aside and a new trial is ordered.
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R. v. Roy,  2015 BCCA 35  –  2015/01/23
Court of Appeal

The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. Based on a joint submission, the appellant is granted a modified additional credit of three days.
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R. v. Stone,  2015 BCCA 36  –  2015/01/23
Court of Appeal

Mr. Stone pleaded guilty to six counts of robbery and three counts of using an imitation firearm in the course of committing robbery. He was sentenced to five years’ imprisonment. On appeal, Mr. Stone argued that the sentencing judge placed undue emphasis on the principles of deterrence and denunciation, did not adequately consider mitigating factors, and underemphasized the totality principle. Held: Leave to appeal granted; appeal dismissed. The sentencing judge appropriately considered the relevant factors and arrived at a fit sentence.
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C.P. v. RBC Life Insurance Company,  2015 BCCA 30  –  2015/01/26
Court of Appeal

C.P. was insured under a disability policy she obtained in 1999. She began receiving benefits under the policy in 2006. Her benefits were discontinued between August 2009 and April 2010. After her benefits were reinstated, C.P. commenced an action alleging breach of good faith causing her severe mental stress. Prior to the trial, the defendant made an offer to settle for $50,000. At trial, she was awarded $10,000 in damages for mental distress but not punitive damages. The trial judge also awarded double costs against her from the date of the offer. Held: Appeal allowed in part. The trial judge did not err in determining the award of damages. However, it was not open to the trial judge to award double costs to the defendant; doing so was an error in principle. The judge could, however, have awarded the defendant its costs from the date of the offer to settle had he appreciated that double costs were not an available option. In the result, a cost award for single costs is substituted for the double cost award.
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R. v. Samuelson,  2015 BCCA 29  –  2015/01/26
Court of Appeal

Application for leave to appeal and an appeal from a sentence of two years less a day followed by three years’ probation for an aggravated assault. Following a provocative and aggressive exchange, the offender attacked the victim with a makeshift weapon, which was a rock placed in a sock and swung like a sling. The sentencing judge found that the assault was severe and premeditated. Held: Appeal dismissed. The sentence was not demonstrably unfit and the sentencing judge did not commit an error in principle, fail to consider a relevant factor, or overemphasize a relevant factor.
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Bea v. The Owners, Strata Plan LMS 2138,  2015 BCCA 31  –  2015/01/27
Court of Appeal

The appellants appeal from an order of the Supreme Court of British Columbia, ordering the seizure and sale of the appellants’ strata property as a remedy to put a stop to the appellants’ continuing contempt of court. The appellants launched numerous frivolous actions against the respondents. The appellants were subsequently found to be vexatious litigants and ordered to stop filing claims in respect of this matter. The appellants repeatedly disobeyed that order and were subsequently found in contempt of court. The respondents had obtained numerous orders for special costs against the appellants and had registered numerous judgments against the title to the strata property. The chambers judge determined that the only curative remedy available was the immediate seizure and sale of the strata property, with conduct of the sale to be carried out by the respondents. The appellants allege that there was no jurisdiction to make the order, and in the alternative that it was not an appropriate order in the circumstances. Held: Appeal dismissed. The majority (per Garson and MacKenzie J.A.) held that the chambers judge had jurisdiction to make an order for seizure and sale of property, as such an order is analogous to the historical power to use sequestration as a remedy for contempt. This power is constitutionally protected as a core aspect of a superior court’s inherent jurisdiction to punish for contempt, and therefore the language of the Supreme Court Civil Rules pertaining to available powers in contempt must be read as non-exhaustive. The chambers judge’s discretionary decision to grant the order deserves deference in the circumstances, and it cannot be shown to be inappropriate in this case. Goepel J.A. dissented. In his opinion the court’s inherent jurisdiction to sentence for contempt was limited by the provisions of the Supreme Court Civil Rules and the chambers judge did not have the jurisdiction to order the sale of the appellant’s property.
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British Columbia/Yukon Association of Drug War Survivors v. Abbotsford Police Department,  2015 BCCA 97  –  2015/01/27
Court of Appeal

The applicant sought leave to appeal an order for costs in any event of the cause flowing from an application for third-party disclosure in the Supreme Court of British Columbia. The applicant is a non-profit organization engaged in “public interest litigation” on behalf of drug-addicts. In the court below, the applicants successfully applied for third-party disclosure from the Abbotsford Police Department, but were ordered to pay the costs for such disclosure in any event of the cause. Held: leave granted. The applicant seeks relief pursuant to actions of the Abbotsford Police Department, but cannot sue the Abbotsford Police Department as a co-defendant because it is not a legal entity. There is some merit in the argument that the Abbotsford Police Department should not be treated the same as a “typical” third-party in these circumstances. The applicant may not be able to obtain the necessary disclosure if it is required to pay the costs in any event of the cause due to its financial status as a non-profit. Only the possible delay of the underlying action weighs against granting leave, but this does not outweigh the interest that the applicant and the legal profession has in resolving this issue.
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Regional District Fraser-Fort George v. Norlander,  2015 BCCA 98  –  2015/01/28
Court of Appeal

The applicant sought leave for directions as to whether leave is required to appeal a statutory injunction pursuant to the Community Charter for breaching a property bylaw. The respondent argued that the order was an interlocutory injunction, and is therefore a limited appeal order requiring leave. Held: leave is not required. The order made by the chambers judge was a permanent injunction and a statutory final order, despite the language used by the chambers judge to the contrary. It was therefore not a limited appeal order.
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R. v. Charlie,  2015 YKCA 3  –  2015/01/29
Court of Appeal

Crown appeal from a sentence of nine weeks in custody plus 14 months served for one count of robbery, contrary to s. 344 of the Criminal Code. The Crown seeks in substitution a sentence of two years less one day in jail, for a global sentence of 38 months in custody accounting for pre-trial custody. Mr. Charlie is an Aboriginal offender suffering from Fetal Alcohol Syndrome (FAS). In comprehensive reasons, the sentencing judge took particular note of the special circumstances facing the offender as the basis for the sentence. Held: Appeal dismissed. The sentencing judge did not err in principle by crafting a sentence outside of the usual range, and the sentence cannot be said to be unfit on the basis of the principles of sentencing or the circumstances of this offence and this offender.
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R. v. Flanders,  2015 BCCA 33  –  2015/01/29
Court of Appeal

Mr. Flanders’s $2,000 cash bail deposit was marked for estreatment after he violated the conditions of his release. Following estreatment proceedings, the presiding Provincial Court judge declined to order forfeiture of the deposit and instead directed the monies to Mr. Flanders’s counsel, who had taken assignment of the funds, in order to properly pay and recognize him for the work he had done on the case. The judge stated that he “might be flying in the face of authority” by doing so. The Crown brought an application in the nature of certiorari to quash the judge’s decision, which was dismissed in the court below on the basis that the judge had not acted outside his jurisdiction or breached the principles of natural justice. Held: Appeal dismissed. Though it was incorrect for the judge to consider the remuneration of counsel, it cannot be concluded that he failed or refused to consider the relevant factors. He therefore applied the wrong test and erred in law, not jurisdictionally. For the same reason, it cannot be concluded that the judge breached the principles of natural justice.
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R. v. Kwok,  2015 BCCA 34  –  2015/01/29
Court of Appeal

Mr. Kwok, Mr. Ng, and Mr. Lau were found guilty of drug offences involving over 1,000 kg of ketamine. Mr. Kwok and Mr. Ng were sentenced to a total of 16 years for importation and possession for the purposes of trafficking. Mr. Lau was sentenced to 10 years for possession for the purposes of trafficking. On appeal, the accused argued that the sentencing judge overstated the harmfulness of ketamine, and erroneously found the group to be a criminal organization as an aggravating factor under s. 718.2(a)(iv) of the Criminal Code. The accused also raised the issue of credit for pre-trial custody, as well as other individual issues. Held: Appeal allowed. The sentencing judge erred in finding the group to be a criminal organization as the group did not have a level of structure or continuity that would pose an enhanced threat to society. There was sufficient evidence to establish the use of ketamine as a harmful drug. The sentencing judge’s legal error led her to impose a sentence in a range similar to cocaine-related offences. Mr. Kwok and Mr. Ng’s sentences were reduced to a total of 12 years, and Mr. Lau’s sentence was reduced to 6 years. Credit for pre-trial custody at 1:1.5 granted.
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R. v. T.E.C.,  2015 BCCA 43  –  2015/01/30
Court of Appeal

The appellant was given a suspended sentence for assaulting his wife. He appeals that disposition on the basis that the judge erred in principle by over-emphasizing the domestic nature of the assault and by failing to give sufficient weight to his admission of the assault at trial as a mitigating factor. He also argues the sentence was unfit and a conditional discharge would be appropriate in his personal circumstances. Held: Appeal dismissed. The judge made no error in principle, and the sentence was fit. The sentence fell within the accepted range for similar offences, and the public interest did not favour a discharge.
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United Mexican States v. British Columbia (Labour Relations Board),  2015 BCCA 32  –  2015/01/30
Court of Appeal

Certain Mexican workers in a union representing agricultural workers applied to the British Columbia Labour Relations Board to cancel the union’s certification, following a representation vote. The union filed a complaint with the Board, arguing, inter alia, that Mexico had improperly interfered with the representation vote, within the meaning of s. 33(6)(b) of the Labour Relations Code, such that the vote was unlikely to disclose the true wishes of the union employees. Mexico raised a preliminary objection before the Board, arguing that the Board was barred by the doctrine of state immunity, as codified in s. 3(1) of the State Immunity Act, from adjudicating in relation to its conduct and was therefore prohibited from making a finding that it had engaged in “improper interference”. Held: Appeal dismissed. A finding of “improper interference” under s. 33(6)(b) of the Code does not amount to an exercise of jurisdiction over the individual or organization that engaged in improper interference. That individual or organization is neither directly nor indirectly impleaded by such a finding. The doctrine of state immunity therefore does not apply.
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R. v. Rutley,  2015 YKCA 4  –  2015/02/02
Court of Appeal

Mr. Rutley filed an amended notice of appeal for his conviction appeal on March 1, 2013. The Crown brought a Rule 13 application to dismiss the appeal for want of prosecution. Mr. Rutley was given extensions to file through a series of case management conferences and hearings, and he filed his appellant’s factum on January 30, 2015. His factum bears no relation to his amended notice of appeal. In his factum, Mr. Rutley alleges that the state and the judiciary altered the trial transcripts. HELD: appeal on the ground of altered transcripts dismissed. As Mr. Rutley does not wish to pursue any further grounds of appeal, the conviction appeal is dismissed.
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Albu v. The University of British Columbia,  2015 BCCA 41  –  2015/02/03
Court of Appeal

Appeal from the dismissal of a petition for judicial review of a decision by the University’s Senate Committee declining to hear an appeal of the petitioner’s academic standing in a course in which she committed plagiarism. The petitioner previously had agreed to withdraw her appeal in a settlement agreement. Held: Appeal dismissed. The settlement agreement was legally binding. The chambers judge properly confined the record on judicial review to the record of the proceedings before the Senate Committee, which does not support the petitioner’s allegations of bad faith and improper motive.
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Healey v. Chung,  2015 BCCA 38  –  2015/02/03
Court of Appeal

The appeal is from an award of damages for injuries sustained when the appellant in a crosswalk with the light in his favour, was struck by a vehicle driven by the respondent. He contends the judge erred in receiving as expert reports, consulting reports from physicians to his doctor disclosed to the defendant in the family physician’s clinical records, in misapprehending aspects of his medical files, in misapprehending evidence concerning the appellant’s recollection of the accident, in misapprehending evidence relating to his employment and loss thereof, and in considering the issue of mitigation of damages. Held: Appeal allowed. The two consulting reports in issue which were material to the order appealed, did not satisfy the requirement for alteration of the reports by the experts required by R. 11-2, or contain the essential requirements required by R. 11-6. As such, they were not expert reports for the purposes of R. 11-6(10) and (11). Further, the complaints of misapprehension of the medical files, and evidence of the appellant’s recollection of the accident, are established. On these two bases, a new trial is ordered.
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McKenzie v. McKenzie,  2015 BCCA 42  –  2015/02/04
Court of Appeal

Application to re-open the appeal to reconsider the disposition of costs at trial. Application dismissed.


United States of America v. Wilcox,  2015 BCCA 39  –  2015/02/04
Court of Appeal

Mr. Wilcox is sought for extradition by the United States on charges of sexual conduct with a minor under fifteen years. He was tried in Arizona in absentia, and found guilty by a jury of two out of four counts. Mr. Wilcox appeals the extradition judge’s committal order and applies for judicial review of the Minister’s surrender order.

On appeal, Mr. Wilcox argues that he did not touch the complainant for a sexual purpose but rather a therapeutic purpose, and that mistrial on two of the counts indicates the committal judge could not commit on those counts. Held: appeal dismissed. There was sufficient evidence to support the inference that Mr. Wilcox acted with a “sexual purpose”, and the test on committal is based on a reasonable jury, not any particular jury.

On judicial review, Mr. Wilcox argues that he should not be surrendered due to the harsh sentencing regime in Arizona, and should be prosecuted in Canada instead. In the alternative, he argues that if surrendered, the Minister should seek assurances that he will receive a new trial, and not be prosecuted on the two counts that resulted in mistrial. Held: Judicial review dismissed. The Minister was reasonable in finding that his sentence would not shock the conscience of the community, that prosecution in the USA is favourable, and that assurances are not necessary.
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NCR Canada Ltd. v. International Brotherhood of Electrical Workers, Local 213,  2015 BCCA 44  –  2015/02/05
Court of Appeal

Appeal from the award of a labour arbitrator. In January 2002, the appellant offered its employees a one-time opportunity to switch from their current defined benefit pension plan to a defined contribution plan. Nineteen members of the respondent union elected to stay with the defined benefit plan. In December 2012, the appellant amended the pension plan, requiring employees to switch to the defined contribution plan. The respondent filed a grievance on the ground that the appellant employer was estopped from such an amendment based on representations that it had made. The arbitrator made an award in favour of the respondent. Held: appeal dismissed. This Court does not have the jurisdiction to hear the appeal because the question it raises, even if it was a matter of general law, pertains to the principles of labour relations. Thus, the appeal falls within the jurisdiction of the Labour Relations Board.
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