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COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Bank of Montreal v. Peri Formwork Systems Inc., 2012 BCCA 4 Date: 20120106 Docket: CA038150 Between: Bank of Montreal Respondent (Petitioner) And Peri Formwork Systems Inc. Appellant (Respondent) And No. 249 Seabright Holdings Ltd., Squamish Pointe Limited Partnership, Bel-Tar Holdings Ltd., Pointe of View Developments (Squamish) Inc., Pointe of View Limited Partnership, POV (Squamish) Inc., 963341 Alberta Inc., 687866 Alberta Inc., 1128356 Alberta Inc., 1047013 Alberta Inc., Pointe of View Marketing & Management Inc., Klapstein Family Trust, Balboa Trust, Pacific Pointe Trust, Randy Klapstein, Thomas Ivanore, Leading Edge Forming Ltd., All Seasons Roofing (2001) Ltd., L & A Equipment Ltd., Valley Truss Ltd., Varsteel Ltd., RJM Investments Corp., Ring Creek Management Ltd., Alpine Pacific Construction Group Ltd., Friction Fit Insulation Inc., Westwood Mechanical Ltd., and Garibaldi Electrical Contractors Ltd., B & B Excavating and Landscaping Corp., West Vancouver Trading Inc. dba Squamish Interiors, and Canadian Mortgage and Housing Corporation Respondents (Respondents) Before: The Honourable Chief Justice Finch The Honourable Madam Justice Prowse The Honourable Madam Justice Newbury The Honourable Madam Justice Garson The Honourable Mr. Justice Hinkson On appeal from:  Supreme Court of British Columbia, April 23, 2010, ( Bank of Montreal v. No. 249 Seabright Holdings Ltd. , Vancouver No. H091697) Counsel for the Appellant: M.G. Armstrong Counsel for the Respondent, Bank of Montreal: H.M.B. Ferris and K. Robertson Counsel for the Respondent, The Bowra Group Inc (Receiver) A.M. Gunn Place and Date of Hearing: Vancouver, British Columbia September 30, 2011 Place and Date of Judgment: Vancouver, British Columbia January 6, 2012 Written Reasons by: The Honourable Madam Justice Garson Concurred in by: The Honourable Chief Justice Finch The Honourable Madam Justice Prowse The Honourable Madam Justice Newbury The Honourable Mr. Justice Hinkson Reasons for Judgment of the Honourable Madam Justice Garson: Introduction [1] Sometimes a construction lender is faced with a difficult choice when a debtor defaults before a project is complete, that is, whether to realize on its security and liquidate the underlying asset or lend further monies in the hopes that completing the project will increase the likelihood of full repayment of the debt.  In this case the lender, the Bank of Montreal, chose the latter course and applied to court for the appointment of a receiver in order to finish the construction project.  Thus, construction continued. [2] The Bank sought, and eventually obtained, an order pursuant to ss. 32(5) and (6) of the Builders Lien Act , S.B.C. 1997, c. 45, that its subsequent advances would rank in priority to builders’ liens filed before the money was advanced.  It is this priority order that is the subject of this appeal.  In ordering that the appellant’s previously filed builder’s lien would rank subsequent to the debt incurred after the Bowra Group (the “Receiver”) was appointed, the chambers judge construed ss. 32(5) and (6) as permitting him to make such an order despite the fact that the advances were not made to the original debtor, but rather to a receiver, and despite the fact that the loan was a new loan on different terms than the existing mortgage security. [3] On appeal, the lien holder, Peri Formwork Systems Inc., argues that the relevant provisions of the Builders Lien Act cannot be interpreted so broadly and the chambers judge erred in so doing.  The respondents, the Bank of Montreal and the Receiver, contend that the chambers judge correctly interpreted the legislation. [4] In the alternative, the respondents argue that the chambers judge could have made the same order under the umbrella of the extant proceeding under the Companies’ Creditors Arrangement Act , R.S.C., 1985, c. C-36.  The appellant says that the CCAA proceeding had terminated when the Receiver was appointed because the debtor failed to achieve a reorganization. [5] Until now, ss. 32(5) and (6) have not been considered by this Court. [6] Before turning to the analysis of the issues raised on this appeal, I will describe in more detail the background to this dispute. Facts [7] This appeal concerns a builder’s lien filed on a five-phase residential land development project in Squamish known as Coastal Village. [8] The Bank of Montreal was a lender to the owners and developers of the project pursuant to a February 2008 lending commitment of up to $37,968,750 plus interest at bank prime plus 1/4 percent.  The loan was payable on demand, or failing demand, by July 31, 2009.  Payment of the loan was secured in part by a mortgage registered against title to the property. [9] Peri Formwork was subcontracted to supply concrete formwork equipment and did so for all phases of the development.  It was not paid by the contractor who, in turn, had not been paid by the owners. [10] On June 21, 2009, the Bank of Montreal made demand on the owners for repayment of its loan.  The balance outstanding on the loan as at June 30, 2009, was $29,002,860. [11] On July 21, 2009, the owners sought and received a stay of proceedings under the CCAA .  In the initial CCAA order, Mr. Justice Rice ordered that:  a) the stay of proceedings did not prevent the filing of builders’ liens or the commencement of legal proceedings to enforce those liens; b) the owners were permitted to borrow up to $2 million by way of debtor-in-possession financing (“DIP financing”) from the Bank of Montreal; c) the DIP financing was given priority over all other security interests including the builders’ liens. [12] On July 28, 2009, Peri Formwork filed a builders’ lien claim in the amount of $357,984.52. [13] As at November 3, 2009, the amount due to the Bank of Montreal pursuant to the initial lending commitment in 2008 was $29,509,603.72.  In addition, the Bank had advanced $2 million in DIP financing pursuant to the CCAA stay order for a total lending commitment of $31,509,603.72. [14] On October 13, 2009, in the CCAA proceeding, further DIP financing from the Bank of Montreal was approved in the amount of $21 million.  That order included a term providing that the DIP financing security interest had priority over all other creditors including builders’ lien claims.  Peri Formwork and other builders’ lien claimants unsuccessfully opposed the priority order and then filed an appeal from the order.  However, those appeals became moot and did not proceed because on December 8, 2009, the CCAA stay order was not renewed, the owners having failed to achieve a restructuring arrangement.  By December 8, 2009, the Bank of Montreal had not provided any further DIP financing. [15] The Bowra Group, which had been the monitor appointed in the CCAA proceedings, was appointed Receiver by Mr. Justice Rice on December 8, 2009.  One of the terms of the December 8, 2009, order was that the Receiver was permitted to borrow up to $21 million to complete the construction of the project and to provide security through a Receiver’s Borrowing Charge on the property. [16] The Bank of Montreal sought an order giving the Receiver’s Borrowing Charge priority over lien claims.  The priority sought by the Bank was opposed by Peri Formwork and other lien claimants.  The question of priority was not determined in the December 8 order; instead, that order gave the Bank and the Receiver liberty to apply at a later date for an order determining priorities.  Paragraph 19 of the order provided: THIS COURT ORDERS that, the Receiver be at liberty and it is hereby empowered to borrow from Bank of Montreal by way of a revolving credit or otherwise, such monies from time to time as it may consider necessary or desirable, for the sole purpose of completing construction, on the Property as described in the Monitor’s First Report to Court filed August 6, 2009, provided that the outstanding principal amount of such borrowing does not exceed the principal amount of $21,000,000 (or such greater amount as this Court may by further Order authorize) at any time, and a rate of interest not to exceed 1% above the Bank of Montreal’s prime rate of interest, as the Receiver deems advisable for such period or periods of time as it may arrange, for the purpose of funding the exercise of the powers and duties conferred upon the Receiver by this Order, including interim expenditures.  The whole of the Property shall be and is hereby charged by way of a fixed charge (the “Receiver’s Borrowing Charge”) as security of the payment of the monies borrowed, together with interest and charges thereon, in priority to all security interests, trusts, liens, charges and encumbrances, statutory or otherwise, in favour of any person, save and except the Receiver’s Charge and save and except claims of builders liens filed prior to the date of this Order. This Order shall be without prejudice to the right of the Receiver or the Bank of Montreal to apply to the Court for priority of any funds advanced or to be advanced under the Receiver’s Borrowing Charge pursuant to paragraph 19 of this Order over any and all builders liens or claims of builders lien.” [Emphasis added.] [17] On December 9, 2009, the Bank of Montreal commenced foreclosure proceedings and on January 27, 2010, Mr. Justice Pitfield granted an order nisi .  He also ordered that the December 8, 2009 order appointing the Bowra Group as Receiver be incorporated in the foreclosure order “in the same manner and effect as if the Bowra Group Inc. was appointed in the [foreclosure] proceedings”. [18] As is explained in more detail below, the loan authorized by the order made December 8, 2009, has different terms than the original lending commitment. [19] On April 23, 2010, pursuant to clause 19 of the December 8, 2009, order, the Bank applied for an order giving the $21 million Receiver’s Borrowing Charge priority over the lien claims filed prior to December 8, 2009, including Peri Formwork’s lien claim. [20] At the hearing, Mr. Justice Rice gave the following brief reasons for judgment: I really do appreciate the input on this, all of you.  It’s always informative, and I certainly took to heart what Mr. Armstrong said that I – but I did come really to the conclusion that the new regime, which has been in for a few years, allows the advances to climb, climb, climb.  I accept the submissions of Ms. Ferris.  The order will be according to the first option that – the one that we’ve used before, Ms. Ferris. [21] The lien claims over which the Bank of Montreal obtained priority totalled $2,050,672.96.  The Receiver made arrangements with certain claimants to pay them $1.655 million for past services, which payment was to be made from the $21 million facility.  The amount of the distributions to the other lien claimants has not been disclosed to the Court or to Peri Formwork.  The latter was not included as a payee in the proposed distribution to the lien claimants. [22] Before December 8, 2009, it was the assessment of the monitor that the sale of the development on an “as is” basis, that is, without continuing construction, would result in a significant shortfall to the mortgagee.  The monitor projected that a sale of the project after completion of phases two and three would likely result in a substantial reduction of the shortfall. Issues on Appeal [23] The appellant says the chambers judge misinterpreted ss. 32(5) and (6) and that he ought not to have granted priority to the Receiver’s Borrowing Charge over its builder’s lien claim.  It says that the judge erred in the following ways: · The word “further advances” in s. 32(5) must be a reference to the original loan and does not include a new loan that is secured by a different charge on different terms than the original mortgage. · The term “further advances” in s. 32(5) does not include a loan to a receiver; it can only be a reference to a loan to the same borrower. To interpret s. 32(5) as including loans to a receiver conflicts with the priorities established by s. 21. · Even if s. 32(5) could be construed as including loans to receivers and the Bank is correct that s. 32(5) permits the priority it asserts, the Bank has not complied with s. 32(6) and the chambers judge erred in failing to consider and apply s. 32(6). · The chambers judge’s reasons are insufficient for meaningful appellate review. [24] The Bank and the Receiver also argue that this Court should dismiss the appeal on the ground that there are other sources of jurisdiction to grant the impugned priority order, either under the CCAA proceeding or the Court’s inherent jurisdiction.  Subsumed in this issue is the question of whether the CCAA proceeding was effectively terminated upon the appointment of the Receiver when the CCAA stay order expired. Analysis I.        Statutory provisions [25] The statutory provisions that are pertinent to this appeal are ss. 21 and 32 of the Builders Lien Act .  I have emphasized the particular words that require interpretation in this appeal. [26] Section 21 of the Act reads as follows: A claim of lien filed under this Act takes effect from the time work began or the time the first material was supplied for which the lien is claimed, and it has priority over all judgments, executions, attachments and receiving orders recovered, issued or made after that date. [27] The pertinent parts of s. 32 are: 32 (1) Subject to subsection (2), the amount secured in good faith by a registered mortgage as either a direct or contingent liability of the mortgagor has priority over the amount secured by a claim of lien. (2) Despite subsection (1), an advance by a mortgagee that results in an increase in the direct or contingent liability of a mortgagor, or both, under a registered mortgage occurring after the time a claim of lien is filed ranks in priority after the amount secured by that claim of lien. (3) In a proceeding for the enforcement of a claim of lien, (a) the court may order the sale of mortgaged land at an upset price of at least the amount secured by all registered mortgages that have priority over the claim of lien, court ordered costs and the costs of the sale, and (b) the amount secured by any registered mortgages must be satisfied out of the proceeds of the sale in the order of their priorities and in priority over the claim of lien to the extent provided under this section. (4) A mortgagee who applies mortgage money in payment of a claim of lien that has been filed is subrogated to the rights and priority of the lien claimant to the extent of the money applied. (5) Despite subsections (1) and (2) or any other enactment, if one or more claims of lien are filed in a land title office in relation to an improvement, a mortgagee may apply to the court for an order that one or more further advances under the mortgage are to have priority over the claims of lien. (6) On an application by a mortgagee under subsection (5), the court must make the order if it is satisfied that (a) the advances will be applied to complete the improvement, and (b) the advances will result in an increased value of the land and the improvement at least equal to the amount of the proposed advances. II.       Order could be made under the extant CCAA proceeding [28] I find it convenient to turn initially to the Bank’s argument that, although the chambers judge explicitly stated that he was exercising his jurisdiction under the Builders Lien Act , he could have made the same order under the CCAA . [29] The order was made in the same proceeding that was commenced under the CCAA on July 21, 2009.  The initial CCAA order was renewed on seven occasions but was allowed to expire on December 8, 2009.  The Bank argues that, despite the expiry of the stay, the CCAA proceeding remained extant.  I find it useful to consider the general purpose and goal of a CCAA proceeding in order to judge whether this proceeding could be said to have continued in furtherance of that purpose after December 8, 2009. [30] The purpose of the CCAA was discussed by this Court in Chef Ready Foods Ltd. v. Hongkong Bank of Canada (1990), 51 B.C.L.R. (2d) 84 (C.A.) at 88: The purpose of the C.C.A.A. is to facilitate the making of a compromise or arrangement between an insolvent debtor company and its creditors to the end that the company is able to continue in business... When a company has recourse to the C.C.A.A. the court is called upon to play a kind of supervisory role to preserve the status quo and to move the process along to the point where a compromise or arrangement is approved or it is evident that the attempt is doomed to failure. [31] In Century Services Inc. v. Canada (Attorney General) , 2010 SCC 60, Deschamps J., for a majority of the Supreme Court of Canada, discussed limitations on the exercise of CCAA authority.  One of the issues in Century Services was whether the chambers judge had jurisdiction under the CCAA to maintain the stay once the debtor, concluding that reorganization was not possible, made an assignment into bankruptcy.  The Court held that the CCAA and Bankruptcy and Insolvency Act, R.S.C., 1985, c. B‑3, share the remedial goal of avoiding social and economic costs upon liquidation of a debtor’s assets and that the CCAA stay could be used as a bridge to foster a “harmonious transition” from the CCAA scheme to the BIA scheme.  In discussing the limitations of CCAA authority, the Court held that: [59]      Judicial discretion must of course be exercised in furtherance of the CCAA ’s purposes.  The remedial purpose I referred to in the historical overview of the Act is recognized over and over again in the jurisprudence.  ... The legislation is remedial in the purest sense in that it provides a means whereby the devastating social and economic effects of bankruptcy or creditor initiated termination of ongoing business operations can be avoided while a court-supervised attempt to reorganize the financial affairs of the debtor company is made. ( Elan Corp. v. Comiskey (1990), 41 O.A.C. 282, at para. 57, per Doherty J.A., dissenting) ... [71]      It is well established that efforts to reorganize under the CCAA can be terminated and the stay of proceedings against the debtor lifted if the reorganization is "doomed to failure" (see Chef Ready , at p. 88; Philip's Manufacturing Ltd., Re (1992), 9 C.B.R. (3d) 25 (B.C.C.A.), at paras. 6-7). However, when an order is sought that does realistically advance the CCAA 's purposes, the ability to make it is within the discretion of a CCAA court. [32] In the case at bar, the proceedings had reached the point where it had become obvious that the reorganization was “doomed to failure” and, for all intents and purposes, the CCAA action had ended.  Unlike the case in Century Services , the stay order expired and there was no assignment into bankruptcy; instead, the Bank of Montreal moved immediately to appoint the Receiver and very quickly to foreclose on the asset. This action precluded the goal of reorganization. [33] That the court’s jurisdiction under the CCAA proceeding was exhausted and that this was recognized by all parties is demonstrated by the fact that, although DIP financing was authorized prior to the contentious loan, the Bank chose not to make use of this mechanism.  I see this as a tacit acknowledgment by the Bank that the DIP loan was no longer appropriate because the CCAA order had expired. [34] Redfern Resources Ltd. (Re) , 2011 BCCA 333 (Chambers), concerned an application for directions as to whether or not leave to appeal was required pursuant to s. 13 of CCAA . Tysoe J.A. decided that leave was not required because the order under appeal was not made under the CCAA. Although the proceedings remained styled as a CCAA proceeding, the original stay order had expired and the debtor was assigned into bankruptcy.  In concluding that jurisdiction under the CCAA proceedings was exhausted, Tysoe J.A. held at para 8: In my opinion, the order or decision of Burnyeat J. was not made under the CCAA .  The efforts to reorganize Redcorp had come to an end, and there was no ongoing attempt to have Redcorp file a plan of arrangement.  Alvarez & Marsal Canada Inc. simply filed its application in the CCAA proceeding as a matter of convenience.  The fact that Alvarez & Marsal Canada Inc. was appointed in the CCAA proceeding did not require the application to be filed in that proceeding.  Alvarez & Marsal Canada Inc. could have, and more properly should have, commenced a separate proceeding.  Alvarez & Marsal Canada Inc. was not appointed as interim receiver or receiver pursuant to the CCAA , but rather pursuant to the BIA and the Law and Equity Act , R.S.B.C. 1996, c. 253 ... [35] In conclusion, when the last order expired on December 8, 2009, the CCAA proceeding was effectively terminated.  The object of a CCAA proceeding is to allow the debtor to remain in possession of the secured asset while he has an opportunity to achieve a reorganization.  Ms. Ferris, counsel for the Bank, argues that the appointment of a receiver does not necessarily preclude the goal of reorganization and that, in this case, “it may yet happen”.  Here, as in Redfern , the “efforts to reorganize [the debtor] had come to an end”.  The order appointing the Receiver was made pursuant to the court’s jurisdiction under the Law and Equity Act , R.S.B.C. 1996, C. 253, and the then applicable Supreme Court Rules , B.C. Reg. 221/90.  Therefore, I do not agree that there was any life remaining in the CCAA proceeding.  It ended on December 8, 2009, and as a result, the priority order made by the chambers judge could not be made under the umbrella of the CCAA proceeding. III.      Order could be made under the court’s inherent jurisdiction [36] As to the respondents’ next alternative argument, that the court had inherent jurisdiction to grant priority to the Bank in this case based on Robert F. Kowal Investments Ltd. v. Deeder Electric Ltd. (1975), 9 O.R. (2d) 84, I am of the view that there is no merit to the proposition that the court has an inherent jurisdiction that could override the specific statutory language found in the Builders Lien Act (see Baxter Student Housing Ltd. v. College Housing Co-operative Ltd ., [1976] 2 S.C.R. 475 at 480, citing Montreal Trust Co. v. Churchill Forest Industries (Man.) Ltd., [1971] 4 W.W.R. 542.) This argument was not pressed on appeal and need not be considered further. IV.      Insufficient reasons for judgment [37] The chambers judge’s reasons were brief but, taken in the context of the entire record of the proceedings, it is my view that their brevity does not in this case pose a barrier to appellate review.  At the chambers hearing, counsel for the Bank argued that the court had jurisdiction to give priority to its $21 million loan in a number of ways:  making an order granting priority under the court’s equitable jurisdiction; granting priority through application of ss. 32(5) and (6) of the Builders’ Lien Act and amending the receivership order to state that the Bank will advance the money and that the loan meets the requirements of s. 32(6); discharging the lien under s. 24 of the Builders Lien Act after the Bank posts nominal security; or making an order in the CCAA proceeding granting priority.  After a lively exchange between counsel and the bench, the chambers judge accepted her argument in favour of a broad interpretation of the exception created by ss. 32(5) and (6).  I would not accede to this ground of appeal. V.       Interpretation of s. 32(5) [38] I now turn to what I conclude is the determinative issue on this appeal, that is, the question of what constitutes a further advance under s. 32(5). [39] To recapitulate, the Receiver’s Borrowing Charge was created in the order of December 8, 2009, which also provided for the appointment of the Receiver.  Paragraph 19 of the order, quoted above, authorizes the Receiver to borrow up to $21 million from the Bank of Montreal for the sole purpose of completing construction.  The order was, in turn, registered on title as a “Certificate of Pending Litigation” by the Bank of Montreal pursuant to the court order authorizing it. [40] The appellant argues that the Receiver’s Borrowing Charge cannot be given priority pursuant to ss. 32(5) and (6) as it is a new loan, to a different borrower.  The loan has a far different principal amount and a different interest rate than the original loan.  It also includes for instance a “success fee” of at least $300,000 to be paid from the first advance. [41] The appellant notes too that the owners’ inability to meet their financial obligations in June 2009 was precipitated by the Bank’s decision to curtail advances under its existing mortgage loan.  At the time, the Bank had advanced only $29 million of the $38 million loan limit.  The appellant argues that the Bank could have chosen at that time to maintain its existing loan facility and apply for priority to the lien claims pursuant to s. 32(5) but chose not to take that course of action.  Rather, it petitioned for foreclosure on the existing mortgage and obtained an order authorizing the loan of $21 million on the security of the Receiver’s Borrowing Charge, not the foreclosed mortgage. [42] The appellant also observes that the notice of motion originally brought by the Bank asked for an order “deeming” the $21 million loan to be a further advance under the existing security agreement.  The appellant says that the reason the Bank sought the deeming order was to “shoehorn its way into s. 32(5)”.  The chambers judge did not make the requested deeming order. [43] The Bank and the Receiver note that the remaining loan facility was insufficient to meet the estimated costs of completion.  The Bank says it was compelled to obtain an order nisi of foreclosure because it needed vesting orders so as to be in a position to transfer completed condominium units to purchasers. [44] At the hearing before the chambers judge that led to the order under appeal, the Bank’s counsel took the position that the $21 million loan was “the same mortgage”.  On appeal, the Bank takes a somewhat different position; it argued that there is nothing in s. 32(5) that requires “further advances” to be either from the original mortgagor or pursuant to the original mortgage.  The Bank says that to construe the section in such a restrictive manner would defeat the section’s purpose because usually when an owner/developer defaults there will not be (as was the case here) sufficient room in the existing financing arrangement, on the existing terms, to complete construction.  The Bank argues the section is designed to permit a lender to choose to finance construction to completion, regardless of the terms of its existing security.  It says that, in order to achieve the goals of s. 32(5), it is important not to place too restrictive an interpretation on the section.  The Bank (and to a somewhat lesser extent, the Receiver) argues that the section should be given a more expansive interpretation and not the more restrictive approach contended for by the appellant. [45] In its factum and in its oral submission, the Receiver appears to interpret the $21 million loan in this case as a further advance under the same mortgage and the section as requiring the further advance to be from the same lender. (a) Rizzo Shoes [46] I now proceed to interpret s. 32(5).  In doing so, I draw upon the approach taken by the Supreme Court of Canada in Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27.  In that case , the Court was required to interpret the Employment Standards Act, R.S.O. 1980, c. 137; specifically, the provision of that Act that provided for payment of severance pay to employees whose employment has been terminated.  The question for the Court was whether it could be said that the employees’ employment was “terminated” when that termination came about as a consequence of the employer’s bankruptcy. [47] Speaking for the Court, Iacobucci J. concluded that it was consistent with the object and purpose of that Act to interpret the provision under consideration as including a termination brought about by bankruptcy. [48] The first step in his route to that conclusion was an examination of the plain meaning of the section under consideration.  At para. 20, he noted that a plain reading of the section favoured a more restrictive interpretation: At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete. [49] At para. 21, Iacobucci J. cited with approval Elmer Driedger’s oft-cited enunciation of the principled approach to the interpretation of statutes: Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “ Construction of Statutes ”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [50] At para. 22, Iacobucci J. noted the remedial directive from the Ontario Interpretation Act , R.S.O. 1980, c. 219: I also rely upon s. 10 of the Interpretation Act , R.S.O. 1980, c. 219, which provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”. (It should be noted that s. 8 of British Columbia’s Interpretation Act , R.S.B.C. 1996, c. 238, mirrors this wording: “Every enactment must be construed as being remedial, and must be given such fair, large, and liberal construction and interpretation as best ensures the attainment of its objects”.) [51] Justice Iacobucci then applied those interpretive guides to the issue before the Court.  He found that the Ontario Court of Appeal had failed to place sufficient importance on the object and scheme of the Act : [23]      Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA , its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues. [52] And finally, at para. 27, he held that a literal interpretation of the Act was incompatible with the remedial purpose of the legislation: In my opinion, the consequences or effects which result from the Court of Appeal’s interpretation of ss. 40 and 40 a of the ESA are incompatible with both the object of the Act and with the object of the termination and severance pay provisions themselves. It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra , an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes , supra , at p. 88). (b)      Application of Rizzo Shoes interpretive principles to s. 32(5) i.        Plain meaning interpretation [53] Applying the analysis employed in Rizzo Shoes to this case, the first step is to consider the plain meaning of s. 32(5). [54] I begin by noting that “mortgage” is not a defined term in the Builders Lien Act nor in any other relevant statute . [55] Unlike s. 32(1), reference is not made in s. 32(5) to a “registered mortgage” but simply to a “mortgage”, arguably suggesting that the mortgage referenced in the provision under consideration need not be the same mortgage as the mortgage originally registered.  However, at odds with this interpretation is the fact that the plain meaning of the words “further advances” appears to require the advance to be made pursuant to a pre-existing mortgage through which money has already been lent. [56] Also, it should be noted that the opening words of s. 32(5), “Despite subsections (1) and (2)”, appear to relate back to the mortgage security in place when the lien is filed.  The language “further advances” must be interpreted with consideration of s. 32(5)’s reference to ss. 32(1) and (2).  This supports the conclusion that ss. 32(5) and (6) are exceptions to the priority rules established in ss. 32(1) and (2).  In my view, the fact that s. 32(2) contemplates an increase in the debtor’s liability under an existing mortgage and subordinates the lender’s priority, speaks in favour of the view that the exception under ss. 32(5) and (6) addresses a narrower set of circumstances: where the lender is willing to make further advances but only if they can be given priority. [57] Thus a plain reading of the section would favour an interpretation that the “further advances” relate to the original mortgage. ii.       Scheme and Purpose of the Act [58] Following the Rizzo Shoes approach, the next issue for consideration is the overall scheme and purpose of the Act and provisions in question. [59] The purpose of the Builders Lien Act and its predecessor statutes was discussed by this Court in Northern Thunderbird Air Ltd. v. Royal Oak & Kemess Mines Inc. , 2002 BCCA 58.  Beginning at para. 24, the Chief Justice, speaking for the Court, said: [24]      The purpose of the predecessor statute to the one presently under consideration, was considered by McLachlin J.A. (as she then was) in Kettle Valley Contractors Ltd. v. Cariboo Paving Ltd. (1986), 1 B.C.L.R. (2d) 236 (C.A.). She cited at 251 Hickey v. Stalker 53 O.L.R. 414, [1924] 1 D.L.R. 440 (C.A.) as correctly stating the purpose of mechanics lien legislation: Speaking generally, the object of the Mechanics Lien Act is to prevent owners of the land getting the benefit of buildings erected and work done at their instance on their land without paying for them. [25]      I would, as well, look at the matter from the perspective of those who supplied the materials or did the work on the land. The corollary of the principle expressed in Hickey (supra) is that the purpose of the Act is to protect those who contribute to the erection of buildings, or other physical improvements on another's lands, and to ensure their payment by granting them a security interest in the land. The protection and the security in favour of a lien claimant come at the expense of the land owner, and of others having claims against the owner relating to the improvement which may be unsecured. [60] Thus, one important purpose of the statutory scheme is to ensure that contractors and workers are paid for materials provided and for services rendered. [61] The current Builders Lien Act came into force on February 1, 1998.  One goal in revamping the scheme was to bring commercial certainty to construction projects affected by the legislation ( Marbella Pacific Construction Ltd. v. Fast Trac Bobcat & Excavating Services & Coast Aggregates Ltd. , 2002 BCSC 803 at para. 36).  The importance of this objective was noted in Nita Lake Lodge Corp. v. Conpact Systems (2004) Ltd. , 2006 BCSC 885 at para.14: ... Certainty in relation to rights and obligations arising in the construction industry is a worthy objective.  That certainty is best provided by requiring strict adherence to a clearly stated legislative scheme that was not intended to create or negative a contractual right but to create security in relation to the performance of a contract. [62] The purposes of the Builders Lien Act are pursued through a legislative scheme that employs three main mechanisms: the right to a lien, holdback provisions and the creation of a trust ( Marbella Pacific Construction Ltd. at para. 29).  These mechanisms create rights unknown to common law.  The jurisprudence is clear that because the Act creates new rights, the threshold question of entitlement is strictly construed; it is only once entitlement is established that the Act is to be construed liberally and with consideration to its remedial purpose, see: Clarkson Co. v. Ace Lumber Ltd. , [1963] S.C.R. 110 at 114 and Chaston Construction Corp. v. Henderson Land Holdings (Canada) Ltd. , 2002 BCCA 357 at para. 50.  This principle is consistent with concern for certainty and fairness to all stakeholders in the construction industry. [63] The combined effect of ss. 32(1) and (2) is to protect a secured lender’s priority status regarding debt incurred by a borrower pursuant to a registered mortgage before a lien is filed.  This protects secured lenders by affording them priority over funds lent or promised before a lien is registered; thereby permitting lenders to adequately assess the value of their security when deciding whether or not to make an advance under a loan.  Pursuant to s. 32(2), where a secured lender provides an advance after a lien has been filed, the lien holder is given priority.  This protects the lien holder, who has provided work and/or materials, and ensures that the secured creditor does not lend money without notice that its claim is subordinate.  Overall, the lien holder is given priority status but the secured lender is protected by fair notice, thereby pursuing the goals of protection and certainty. [64] Subsections (5) and (6) create an exception to this general scheme whereby advances made after a lien has been filed may obtain priority through a court order.  Such an order is mandatory when the requirements of ss. 32(5) and (6) are met; the provision therefore gives the court no room to contemplate the fairness or desirability of allowing the application. [65] The British Columbia Law Institute and the British Columbia Ministry of Employment and Investment addressed the purpose of the exception in Questions and Answers on the New Builders Lien Act (Vancouver, British Columbia: British Columbia Law Institute, 1997) at 17.4: Where a project encounters difficulties and the market value of the partially completed improvement is less than the amount of the advances already made by the lender, everyone loses.  The lender is not fully paid off and there is no money left for the lien claimants.  The lender, however, might be prepared in principle to continue to advance money under its mortgage if it could be assured that those additional advances would have priority over the liens.  If this were done, the project could be completed.  Its value would probably match or exceed the amount of the lender’s claim, raising the possibility that something will be left for the lien claimants.  This outcome would be in the best interests of all concerned but the basic priority rule impedes such an arrangement. For this reason, the Act creates an exception to the basic priority rule.  Where lien claims have been registered, the lender may apply to the court for an order that one or more further advances under its mortgage are to have priority over the lien claims. The court must make that order if it is satisfied that: (a) the advances will be applied to complete the improvement, and (b) the advances will result in an increased value of the land and the improvement at least equal to the amount of the proposed advances. ... An order made under this provision permits work on the improvement to continue. [Emphasis added.] [66] While this excerpt considered the original wording of s. 32, which was subsequently re-enacted in 1998, the provisions remain sufficiently similar that this statement is instructive.  I agree with the description of the legislative purpose as set out in the above excerpt. [67] In its factum, the Bank argues that a remedial reading of the legislation is necessary to give any effect to the subsections.  The Bank contends: The narrow interpretation put forward by the appellant would mean that an order under subsections (5) and (6) could only be made in very limited circumstances.  Such an order could only be made where: 1) there are still advances left to be made under the original “registered mortgage”; and 2) the creditors have not sought the appointment of a receiver or trustee to step into the shoes of the owner/original mortgagor.  Such an interpretation would defeat the remedial purpose of the 1997 amendments to the Builders Lien Act and is inconsistent with the practical reality of the construction industry and construction financing.  It would mean that these subsections would rarely operate to allow an improvement to be completed.  Where a project runs into difficulty, it is unlikely that there will be funds left unadvanced under the original financing commitment.  It is also unlikely that a mortgagee would be prepared to allow the defaulting owner to remain in control of the project’s completion in circumstances where the project runs into difficulty.  Far more likely is the appointment of a receiver (by instrument or court order) or trustee to take control of the asset comprising the project. [68] The purpose of ss. 32(5) and (6), interpreted within the overall scheme of the Builders Lien Act , is consistent with the goal of promoting the interests of multiple stakeholders in the industry by, in specific circumstances, enabling the completion of projects that encounter financial difficulty.  The lender must satisfy the court that the advances will increase the value of the land, that the increase in value will at least match the value of the advance, and that the loan will be applied to complete an improvement.  These requirements protect the lien holder by providing assurance that the advance will not ultimately increase the proportion of the secured debt ranking in priority to the lien. [69] The question that remains however is just how broad the Legislature intended the exception to be.  In other words, whether the words “further advances” are broad enough to include any loan secured by a mortgage or whether additional advances given by the same mortgagee that are not secured by the pre-existing registered mortgage excluded.  I agree with the Bank that the scenario in which ss. 32(5) and (6) come into play will almost always be one of financial difficulty.  However, I do not think that the plain meaning of s. 32(5) may be stretched so far that, upon application by the creditor, any loan secured by a mortgage may fit within s. 32(5).  This is an overly broad construction of the provision in question.  It is both inconsistent with the plain meaning of the provisions and unnecessary to fulfil the remedial purposes of the Act .  To give the words “further advances” any meaning, the Legislature must be presumed to have intended there be a link to the original mortgage.  In this case there was no link because of the order nisi and the existence of a new loan secured by an entirely new charge.  I cannot read this legislation as extending so far as is contended for by the respondent Bank. [70] My conclusion that the loan to the Receiver does not have priority over previously filed liens is dispositive of this appeal.  The Court agreed to sit as a division of five judges because the respondents contended that we should overrule our previous decision in Yorkshire Trust Co. v. Canusa Construction Ltd. (1984), 10 D.L.R. (4th) 45 (B.C.C.A.) concerning the question of whether, pursuant to s. 21, liens take priority over loans to receivers.  Given my conclusion as to the breadth of s. 32(5), it is not necessary to decide this alternate but related ground of appeal. VI.      Section 32(6) [71] Given that I have decided the loan to the Receiver is not a “further advance”, it is unnecessary to consider the alleged failure of the chambers judge to consider this subsection. Summary of Conclusions [72] In summary, I conclude that the $21 million loan made to the Receiver in this case was not a “further advance” within the meaning of s. 32(5) because it is a new loan.  The words “further advance” must refer back to the original lending commitment. [73] While Rizzo Shoes is authority that legislation ought to be interpreted in a manner that is harmonious with the overall scheme of the Act under consideration and the intention of the legislature, that does not in my view enable a court to rewrite legislation in a manner that would stretch the ordinary meaning of the words to the extent argued here by the Bank. Disposition [74] I would allow the appeal and restore the appellant’s lien claim to hold priority over the Receiver’s Borrowing Charge. [75] The Bank sought introduction of new evidence on this appeal.  That fresh evidence consisted of several affidavits of the Receiver, email exchanges and receiver’s certificates.  As I have not found that material of assistance in my analysis, I would dismiss the application for new evidence. “The Honourable Madam Justice Garson’ I agree: “The Honourable Chief Justice Finch” I agree: “The Honourable Madam Justice Prowse” I agree: “The Honourable Madam Justice Newbury” I agree: “The Honourable Mr. Justice Hinkson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: First Majestic Silver Corp. v. Davila Santos, 2012 BCCA 5 Date: 20120106 Docket: CA038977 Between: First Majestic Silver Corp., First Silver Reserve Inc. and Minera el Pilon, S.A. de C.V. Respondents (Plaintiffs) And Hector Davila Santos and Minera Arroyo Del Agua, S.A. de C.V. Appellants (Defendants) Before: The Honourable Madam Justice Levine The Honourable Mr. Justice Tysoe The Honourable Madam Justice Bennett On appeal from: Supreme Court of British Columbia, March 25, 2011 ( First Majestic Silver Corp. v. Davila , 2011 BCSC 362) Counsel for the Appellants: D. P. Church, Q.C. and M. W. Bühler Counsel for the Respondents: B. Cramer Place and Date of Hearing: Vancouver, British Columbia December 6, 2011 Place and Date of Judgment: Vancouver, British Columbia January 6, 2012 Written Reasons by: The Honourable Mr. Justice Tysoe Concurred in by: The Honourable Madam Justice Levine The Honourable Madam Justice Bennett Reasons for Judgment of the Honourable Mr. Justice Tysoe: Introduction [1] The defendants appeal an order of a chambers judge striking out a paragraph of their statement of defence and denying the defendants leave to amend their statement of defence to include certain proposed amendments. [2] The judge made his ruling under Rule 9-5(1)(a) of the Supreme Court Civil Rules on the basis that the proposed defences were bound to fail. [3] For the reasons that follow, I agree with the conclusions of the judge and would dismiss the appeal. Background [4] The pleadings in this action are complex but, as I understand it, the main thrust of the claim is that the defendants wrongfully appropriated a corporate opportunity of the plaintiff, First Silver Reserve Inc. (“First Silver”), when, in August 2007, the defendant, Minera Arroyo Del Agua S.A. de C.V. (“Minera Arroyo”), acquired a silver mine and mill in Mexico known as the Bolaños property. The claims pleaded by the plaintiffs include breach of fiduciary duty, breach of trust, breach of statutory duties, fraud, interference with economic interests, conspiracy and misrepresentation. [5] The defendant, Hector Davila Santos, had been the majority shareholder and a director and officer of First Silver. In 2004, Mr. Davila Santos learned that the owner of the Bolaños property was interested in selling it and there were negotiations between him and the owner. The plaintiffs plead that Mr. Davila Santos conducted the negotiations on behalf of First Silver and its wholly owned subsidiary, the plaintiff, Minera el Pilon, S.A. de C.V. The defendants plead that these negotiations were conducted on the understanding of First Silver’s directors that, if First Silver was not willing or did not have sufficient funds to purchase the Bolaños property, Mr. Davila Santos was free to purchase it for his own account. [6] In April 2006, the plaintiff, First Majestic Silver Corp. (“First Majestic”), entered into a share purchase agreement with Mr. Davila Santos for the purchase of all of his shares in First Silver. Half of the purchase price was payable on the closing of the transaction with the other half of the purchase price payable in equal instalments on the first and second anniversaries of the closing. The plaintiffs plead that Mr. Davila Santos misrepresented to First Majestic that he was personally entitled to acquire the Bolaños property, in order to induce it to agree to a clause in the share purchase agreement stating that he had an interest in the Bolaños property (and giving First Majestic a right of first refusal in respect of the negotiation and purchase of the property). The share transaction closed on May 30, 2006, and Mr. Davila Santos ceased to be an officer and director of First Silver shortly thereafter. [7] The plaintiffs plead that First Majestic came to understand in July 2006 that Mr. Davila Santos did not have a personal right to acquire the Bolaños property and that it was a corporate opportunity of First Silver. [8] The Bolaños property was acquired by Minera Arroyo under an agreement entered into in August 2007. The defendants admit that Minera Arroyo is owned by Mr. Davila Santos and members of his family. [9] After First Majestic became the majority owner of First Silver, it did two things that are relevant to the proposed defences in question. First, it raised funds through public offerings in order to make payments due under the share purchase agreement and, in that regard, it issued prospectuses in July 2006 and May 2007. Secondly, it acquired the shares of the minority shareholders of First Silver by way of a plan of arrangement approved by the Supreme Court of British Columbia on September 8, 2006. The minority shareholders exchanged their shares in First Silver for shares in First Majestic on a two-for-one basis, and First Silver became a wholly owned subsidiary of First Majestic. [10] Neither the prospectuses nor the documents relating to the plan of arrangement made reference to First Silver having an interest in, or a cause of action relating to, the Bolaños property. First Silver provided a letter dated August 2, 2006 to the firm preparing the fairness opinion in respect of the plan of arrangement stating that there had been no irregularities involving First Silver, its directors or management. [11] In their statement of claim, the plaintiffs plead that First Majestic and First Silver should be regarded as “one business enterprise” and that Mr. Davila Santos’ violations of fiduciary duties to First Silver should be regarded as violations of fiduciary duties owed to First Majestic. The Proposed Defences [12] The following is the paragraph in the statement of defence struck by the chambers judge: 41A.     In order to make the May 30, 2007 payment, First Majestic was required to go into the public markets to borrow funds. Despite intending to assert that Davila Santos had acted “fraudulently”, First Majestic, through its senior representatives, including Neumeyer, failed to disclose this information to First Majestic’s potential shareholders in its Prospectus, despite, a statutory obligation that it make full, true and plain disclosure, therein. [13] The following are the proposed paragraphs that the chambers judge did not allow to be included in the amendments sought by the defendants: 39A.     As a result of FSR’s conduct set out in paragraphs 38 to 39 herein, while in possession of the knowledge identified in paragraphs 24D, 28, 31A, 31E, 31G, 31I and 31J herein, the Plaintiffs can not bring or maintain the claims made in the Second Further Amended Statement of Claim, for the following reasons: a.         FSR brought a proceeding in the Supreme Court of British Columbia and obtained an order which approved the Plan of Arrangement as being fair to the shareholders of FSR and binding on FSR and its shareholders. The evidence and other materials put forward by FSR in support of the relief sought on that proceeding, explicitly or implicitly, included statements to the effect that (1) there had been no material wrongdoing by the past directors of FSR, and (2) that a claim to or in relation to the Bolanos Property was not an asset of FSR. In the circumstances, these issues are res judicata , and it is an abuse of process for FSR to make the claims that it is now making in the within proceeding against the Defendants. Furthermore, FSR is estopped from now making such claims against the Defendants. b.         by taking the steps necessary to conclude the Plan of Arrangement, including by seeking and obtaining the approval of its shareholders – including Davila Santos, who remained a shareholder of FSR – for the Plan of Arrangement without stating that (1) there had been material wrongdoing by Davila Santos against FSR, and (2) that a claim to or in relation to the Bolanos Property was an asset of FSR, FSR has acquiesced in and/or waived and/or ratified the conduct that forms the basis for its claims against the Defendants in this action, thereby precluding FSR from making such claims. Furthermore, FSR is estopped from making such claims in this proceeding; and c.         in the circumstances pleaded above, the Plaintiffs lack clean hands to seek equitable relief in relation to claims of wrong-doing by the Defendants in relation to the Bolanos Property. * * * 41.1     In order to have sufficient funds to pay to Davila Santos the full amount due to him on closing of the Share Purchase Agreement, First Majestic was required to go into the public markets to raise funds. First Majestic issued its final prospectus for this financing on or about July 19, 2006. Despite intending to assert that Davila Santos had acted “fraudulently”, First Majestic, through its senior representatives including Neumeyer, failed to disclose this information to First Majestic’s potential investors in its prospectus, despite a statutory obligation that it make full, true and plain disclosure therein. [14] In addition, the chambers judge did not allow amendments to para. 70 of the statement of defence to the extent that it relied on the facts pleaded in the proposed para. 41.1 to support defences of waiver, acquiescence, estoppel and lack of clean hands. [15] The defendants also sought to add paras. 41B and 41C to their statement of defence. These paragraphs related to lack of disclosure to stock exchanges. The defendants are not appealing from the judge’s order to the extent that he refused to allow these paragraphs to be added to the statement of defence. [16] The defendants are also not appealing from the judge’s order to the extent that he found the proposed defences of res judicata , estoppel and acquiescence alleged in proposed para. 39A were bound to fail. The appeal is restricted to the proposed defences of abuse of process, waiver, lack of clean hands and ratification. Discussion [17] I wish to make two observations before considering the proposed defences in detail. In proposing the defences, the defendants are relying on non-disclosure in the two prospectuses in question and in the proceeding in which the plan of arrangement was approved (the “plan approval proceeding”). This does not involve a consideration of whether the non-disclosure gives rise to claims in favour of investors who participated in the two First Majestic financings or the minority shareholders of First Silver. Whether the non-disclosures could give rise to such claims is irrelevant to the question of whether the defendants should be allowed to put forward these defences. [18] The second observation is that none of the proposed defences goes to the merits of the allegations made by the plaintiffs. The position of the defendants is that the proposed defences give them defences to the plaintiffs’ claims or the relief sought, in whole or in part, even if the plaintiffs’ allegations are true. [19] In striking paragraph 41A and refusing the application of the defendants to add paragraphs 39A and 41.1, the chambers judge applied the well-known test articulated in Hunt v. Carey Canada Inc. , [1990] 2 S.C.R. 959 at 980, 74 D.L.R. (4th) 321; namely, “assuming that the facts as stated in the statement of claim can be proved, is it ‘plain and obvious’ that the plaintiff’s statement of claim discloses no reasonable cause of action?”  Of course, this test was expressed in the context of a claim being struck from a statement of claim. In the context of a possible defence being struck from a statement of defence, the test is whether it is plain and obvious that the pleading does not disclose a reasonable defence. [20] The Supreme Court of Canada recently had occasion to comment on motions to strike in R. v. Imperial Tobacco Canada Ltd. ( sub. nom. British Columbia v. Imperial Tobacco Canada Ltd.; Knight v. Imperial Tobacco Canada Ltd. ), 2011 SCC 42, 335 D.L.R. (4th) 513. Chief Justice McLachlin made, among others, the following comments: [17]      ... A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse , 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15, 233 D.L.R. (4th) 193; Hunt v. Carey Canada Inc. , [1990] 2 S.C.R. 959, at p. 980, 74 D.L.R. (4th) 321. Another way of putting the test is that the claim has no reasonable prospect of success. * * * [21]      Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging ... Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial. [22]      A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven: Operation Dismantle Inc. v. The Queen , [1985] 1 S.C.R. 441, at p. 455, 18 D.L.R. (4th) 481. No evidence is admissible on such a motion: r. 19(27) of the Supreme Court Rules (now r. 9‑5(2) of the Supreme Court Civil Rules ). * * * [25]      ... The judge on a motion to strike asks if the claim has any reasonable prospect of success. In the world of abstract speculation, there is a mathematical chance that any number of things might happen. That is not what the test on a motion to strike seeks to determine. Rather, it operates on the assumption that the claim will proceed through the court system in the usual way — in an adversarial system where judges are under a duty to apply the law as set out in (and as it may develop from) statutes and precedent. The question is whether, considered in the context of the law and the litigation process , the claim has no reasonable chance of succeeding. Again, of course, these comments were made in the context of a motion to strike a claim and must be adapted to the present situation where it is a pleaded defence and a proposed defence that are under consideration. [21] With these principles in mind, I will now consider whether it is plain and obvious that the potential defences of abuse of process, waiver, lack of clean hands and ratification have no reasonable prospect of success on the basis of the pleaded facts in relation to the plan approval proceeding and the two prospectuses in question. (a) Abuse of Process [22] The doctrine of abuse of process is a very broad and flexible mechanism to enable judges to prevent abuses of the court’s process. In Toronto (City) v. C.U.P.E., Local 79 , 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 35, the Supreme Court of Canada adopted descriptions of the concept of abuse of process as proceedings “unfair to the point that they are contrary to the interest of justice” and “oppressive treatment”. [23] The concept of abuse of process is used in a variety of contexts. For example, in Toronto (City) v. C.U.P.E., Local 79, it was used to prevent an attempt to relitigate an issue which had already been adjudicated upon in circumstances where the requirements of the doctrine of issue estoppel had not been met. In the present case, the defendants say the doctrine of abuse of process should be used to prevent the plaintiffs from bringing a subsequent action based upon allegations that are inconsistent with allegations made in support of a previous action (being the plan approval proceeding). [24] The defendants submit the chambers judge erred in focusing on the concept of an election between inconsistent rights rather than on the type of mischief prevented in the case of Vanmills Establishment v. Coles (1992), 8 C.P.C. (3d) 178 (B.C.S.C. Chambers). In that case, a former shareholder of a bankrupt company had sued the trustee in bankruptcy, alleging that his negligence and wrongdoing had caused loss to the former shareholder when he sold his legal and beneficial interest in his shares to Mr. Coles. The former shareholder then sued Mr. Coles alleging that he held the beneficial interest in the shares in trust for the former shareholder. In dismissing the second action, Mr. Justice Cohen said the following: [10]      This is not a matter of a litigant pursuing inconsistent remedies, where no election is necessary until judgment. There can be no doubt that in the instant action Crux is attempting to pursue inconsistent rights. Crux elected in his action against Sigurdson to claim that he had disposed of his legal and beneficial interest in the C.I.S. shares to Coles. Having elected to sue Sigurdson on that basis, I find that Crux cannot now sue Coles in the instant action on the basis that he retained a beneficial interest in the C.I.S. shares. In my opinion, his election in his action against Sigurdson is binding upon him. The principle that, in the case of inconsistent rights, a plaintiff’s irrevocable and unequivocal election is deemed to be made by the commencement of an initial action is established in Scarf v. Jardine (1882), 7 App. Cas. 345, 30 W.R. 893 (H.L.) and Ashmore v. Bank of British North America (1913), 4 W.W.R. 1014, 18 B.C.R. 257, 13 D.L.R. 73 (C.A.). [25] In Vanmills Establishment , Cohen J. made reference to an election having been made, and there is jurisprudence that supports the notion that the doctrine of election governs this type of situation: see, for example, Commonwealth Investors Syndicate Ltd. v. Laxton (1992), 15 B.C.A.C. 282, 68 B.C.L.R. (2d) 145, and Allnorth Consultants Limited v. Tercon Construction Ltd. , 2010 BCCA 570, 79 B.L.R. (4th) 238, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 78. However, there is support for the defendants’ position that this type of defence falls under the rubric of abuse of process. In Mystar Holdings Ltd. v. 247037 Alberta Ltd. , 2009 ABQB 480, 10 Alta. L.R. (5th) 260, Mr. Justice Brooker considered the existence of inconsistent allegations within the context of the court’s inherent jurisdiction to prevent abuses of the court’s process. He expressed the principle in the following terms: [49]      In general, I am persuaded that a party is not free to deliberately argue diametrically inconsistent facts in various actions, thus knowingly advancing irreconcilable positions which are not articulated as alternative claims. [26] The flaw in the defendants’ position is that there were no statements made in the plan approval proceeding that are inconsistent with the allegations in this action. There was simply no mention in the plan approval proceeding of the Bolaños property or a possible claim against the defendants. Silence does not equate to a representation or an allegation that First Silver did not have any interest in the Bolaños property or that First Silver did not have a cause of action against the defendants. None of the allegations made in this action is inconsistent with any statement in the materials filed in the plan approval proceeding. [27] The defendants rely on the fact that First Silver provided to the firm which prepared the fairness opinion on the plan of arrangement a letter stating that there had been no irregularities involving First Silver, its directors or management. Mr. Davila Santos was no longer a director of First Silver at the time of the plan of arrangement, and this letter cannot reasonably be construed as a comment on the actions of past directors. [28] The chambers judge commented that the “plan of arrangement and the lawsuit can quite easily stand together without clashing” (para. 37). So too can the materials filed in the plan approval proceeding and the allegations in this lawsuit quite easily stand together without clashing. This is not a situation of diametrically inconsistent facts or irreconcilable positions. In my view, the defence of abuse of process has no reasonable chance of succeeding in these circumstances, and it is plain and obvious that it is bound to fail. (b) Waiver [29] The defendants wish to rely on the defence of waiver in relation to both the plan of arrangement and the prospectuses. [30] The availability of the defence of waiver was described by the Supreme Court of Canada in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co. , [1994] 2 S.C.R. 490 at 500, 115 D.L.R. (4th) 478: Waiver will be found only where the evidence demonstrates that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them. Mr. Justice Major, for the Court, also commented at 501 that, while hard and fast rules for what constitutes waiver should not be proposed, the “overriding consideration in each case is whether one party communicated a clear intention to waive a right to the other party”. [31] Here, there is no pleading that the plaintiffs communicated to the defendants an intention to waive their causes of action against the defendants. There cannot be waiver in the air. [32] In addition, simple non-disclosure of potential causes of action in the prospectuses and the materials filed in the plan approval proceeding does not evince an unequivocal intention to abandon those causes of action. While the unequivocal intention to relinquish a right may be inferred from the conduct of a party, it cannot reasonably be inferred from silence, without something more. The defendants do not propose to plead anything more than simple non-disclosure. [33] In my opinion, the facts pleaded in para. 41A of the statement of defence and proposed paras. 39A and 41.1 cannot give rise to a defence of waiver. (c) Lack of Clean Hands [34] The plaintiffs are seeking, among others, equitable remedies such as equitable tracing, constructive trust and disgorgement of profits. The defendants wish to plead that the plaintiffs are not entitled to equitable remedies on the basis that they lack clean hands. [35] In dealing with this potential defence in connection with the non-disclosure in the prospectuses, the chambers judge referred at para. 26 to the following passage from I.C.F. Spry, The Principles of Equitable Remedies , 6th ed. (UK: Sweet & Maxwell, 2001) at 169-170, quoted with approval and applied by this Court in DeJesus v. Sharif , 2010 BCCA 121, 71 B.L.R. (4th) 159 at para. 86: ...it must be shown, in order to justify a refusal of relief, that there is such an “immediate and necessary relation” between the relief sought and the delinquent behaviour in question that it would be unjust to grant that particular relief. ... So it was once emphasised “that general fraudulent conduct signifies nothing; that general dishonesty of purpose signifies nothing; that attempts to overreach go for nothing; that an intention and design to deceive may go for nothing, unless all this dishonesty of purpose, all this fraud, all this intention and design, can be connected with the particular transaction, and not only connected with the particular transaction, but must be made to be the very ground upon which the transaction took place, and must have given rise to this contract”. [Emphasis added.] [36] The chambers judge then reasoned that the defence of lack of clean hands with respect to the prospectuses was bound to fail: [27]      Applying that analysis, the purchase of Mr. Davila’s shares had no direct relationship to First Majestic’s prospectuses. The plaintiffs do not have to rely on the prospectuses to found their claim. The fact that the plaintiffs may have issued shares in order to fund the transaction has no direct nexus with the transaction with Mr. Davila and does not affect him; in fact, the prospectuses were issued after the share purchase transaction between him and First Majestic was concluded. I agree with this reasoning. In addition, there is no direct relationship between the prospectuses and the Bolaños property. [37] The chambers judge did not specifically deal with the potential defence of lack of clean hands in connection with the approval of the plan of arrangement, but the same reasoning applies. There is no direct relationship between any non-disclosure in the plan approval proceeding and the purchase of Mr. Davila Santos’ shares or the Bolaños property. [38] The defendants say there is an “immediate and necessary relation” between the approval of the plan of arrangement and the plaintiffs’ pleading that First Majestic and First Silver should be regarded as “one business enterprise” so that any violations of fiduciary duties owed to First Silver are regarded as violations of fiduciary duties owed to First Majestic. The plaintiffs make this plea in an attempt to take advantage of the holding in Manley Inc. v. Fallis (1977), 2 B.L.R. 277, 38 C.P.R. (2d) 74 (Ont. C.A.), that a breach of duty owed to a subsidiary can lead to a finding of a breach in favour of its parent company. [39] In my view, there is insufficient nexus between the approval of the plan of arrangement and this plea of the plaintiffs. While it is true that First Silver became a subsidiary of First Majestic as a result of the plan of arrangement, there is no direct relationship between the plan of arrangement and the allegation of breach of fiduciary duty. Although some of the activities of Mr. Davila Santos pre-date the plan of arrangement, the consummation of the alleged breach of fiduciary duty occurred when Minera Arroyo acquired the Bolaños property in August 2007, almost a year after the plan of arrangement was approved. Also, I am unable to see how improper non-disclosure in connection with First Silver becoming a wholly-owned subsidiary of First Majestic would have a bearing in deciding whether a breach of duty owed to First Silver should also be regarded as a breach in favour of First Majestic. [40] In addition to the lack of sufficient nexus between the plea of lack of clean hands and the equitable remedies sought by the plaintiffs, there is no proposed plea demonstrating why the non-disclosure would constitute a lack of clean hands. For example, there is no proposed plea of a requirement on the plaintiffs to disclose what the defendants say should have been disclosed. Nor is there a proposed plea that the plan of arrangement would not have been approved or that the financings would not have been successful had the disclosure been made. By itself, non-disclosure does not equate to a lack of clean hands. [41] In my view, the proposed plea of lack of clean hands to defeat the plaintiffs’ requests for equitable relief has no reasonable prospect of success, and it is plain and obvious that the plea is bound to fail. (d) Ratification [42] The defendants argue that the plaintiffs effectively ratified the alleged wrongdoings of Mr. Davila Santos by failing to disclose the opportunity to purchase the Bolaños property in the plan approval proceeding and by providing the letter for the purpose of the fairness opinion that there had been no irregularities involving First Silver, its directors or management. The defendants cite no authority for this proposition and do not address the holding of the chambers judge that the concept of ratification only applies in the context of an agency relationship in situations where the principal ratifies actions of his or her agent. There is no allegation of agency in the pleadings. [43] Outside the context of an agency relationship, the effect of an assertion that the plaintiffs ratified the alleged wrongdoings of Mr. Davila Santos is very similar, if not identical, to an assertion that the plaintiffs waived their rights with respect to those wrongdoings. To say that a person has ratified a wrongdoing seems equivalent to saying that the person has waived their rights with respect to the wrongdoing. [44] When discussing the potential defence of waiver, I concluded that silence, without something more, does not evince an unequivocal intention to abandon causes of action. Similarly, mere silence does not amount to ratification. In an agency situation, silence is not ratification: see Community Savings Credit Union v. United Assoc. of Journeymen, Local 324 , 2002 BCCA 214, 22 B.L.R. (3d) 313 at para. 36. The same principle would apply if a defence of ratification existed outside an agency relationship. [45] Hence, it is my view that a defence of ratification, if known to law outside an agency relationship, has no reasonable prospect of success in these circumstances, and that it is plain and obvious that the proposed defence is bound to fail. Conclusion [46] It is for these reasons that I would dismiss the appeal. “The Honourable Mr. Justice Tysoe” I agree: “The Honourable Madam Justice Levine” I agree: “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Royal Bank of Canada v. Skrapec, 2012 BCCA 10 Date: 20120106 Docket: CA039224 Between: Royal Bank of Canada Respondent (Plaintiff) And Barry A. Skrapec Appellant (Defendant) Before: The Honourable Chief Justice Finch The Honourable Madam Justice Prowse The Honourable Mr. Justice Chiasson On appeal from: Supreme Court of British Columbia, June 28, 2011 ( Royal Bank of Canada v. Skrapec , Kamloops Registry 45419) Oral Reasons for Judgment Appellant appearing In Person: Counsel for the Respondent: J. Coulter Place and Date of Hearing: Vancouver, British Columbia January 6, 2012 Place and Date of Judgment: Vancouver, British Columbia January 6, 2012 [1] FINCH C.J.B.C. : On 28 June 2011, the Supreme Court of British Columbia granted judgment in favour of the plaintiff bank against the defendant in the following terms: 1. The Defendant, Barry A. Skrapec, pay to the Plaintiff the sum of $33,144.57 as at March 1, 2011 plus interest to May 30, 2011 at the rate of the Royal Bank of Canada’s prime lending rate of interst plus 3% per annum (currently $5.24 per diem for 90 days) being the amount of $471.60 for a total owing of $33,616.17; 2. The Defendant’s Amended Counterclaim be dismissed; 3. Costs to the Plaintiff from the Defendant, Barry A. Skrapec, on the basis of Scale C. 4. The requirement that the Defendant, Barry A. Skrapec, endorse this Order approving it as to form be dispensed with. [2] On 28 July 2011, the appellant faxed a notice of appeal to the Registry of this Court for filing. [3] On 23 September 2011, the defendant filed an appeal record in the Kamloops Registry of this Court. [4] Counsel for the plaintiff pointed out to the defendant that the record did not comply with the Rules of Court . [5] On 6 October 2011, the defendant filed a supplemental appeal record. [6] On 24 October 2011, the defendant filed transcripts of the proceedings in the Kamloops Registry, and on the same day filed his factum. [7] The plaintiff now applies to quash or dismiss the appeal as one completely devoid of merit. [8] The judgment in the plaintiff’s favour was granted on a proper evidentiary foundation. There was evidence on which the Court could find that the defendant was indebted to the plaintiff in the amount claimed. Although the defendant advanced arguments against the plaintiff’s claim, the judge found that there was nothing that could constitute a defence in law. [9] On this appeal the defendant has not identified any arguable issue or ground of appeal on which the judgment appealed from could be varied or set aside. To permit any further steps to be taken in the appeal would be to countenance an abuse of the Court’s process. [10] I would quash the appeal as devoid of any merit. The plaintiff is entitled to its costs of this proceeding. [11] The appellant’s signature on the order to be entered is dispensed with. [12] PROWSE J.A. : I agree. [13] CHIASSON J.A. : I agree. [14] FINCH C.J.B.C. : The appeal is dismissed with costs to follow. “The Honourable Chief Justice Finch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Dhesi, 2012 BCCA 9 Date: 20120110 Docket: CA039531 Between: Regina Respondent And Gurvinder Dhesi Appellant Before: The Honourable Madam Justice Prowse (In Chambers) On appeal from the Provincial Court of British Columbia, December 15, 2011 ( R. v. Dhesi , Surrey Registry, Docket Number 179141) Application for Judicial Interim Release Counsel for the Applicant: D.G. Butcher, Q.C. Counsel for the Respondent: W.P. Riley Place and Date of Hearing: Vancouver, British Columbia January 5, 2012 Place and Date of Judgment: Vancouver, British Columbia January 10, 2012 Reasons for Judgment of the Honourable Madam Justice Prowse: [1] On October 6, 2011, a Provincial Court judge convicted Mr. Dhesi of importing 68 kilograms of cocaine into Canada and possession of cocaine for the purpose of trafficking.  Mr. Dhesi was sentenced on November 25, 2011 to nine years’ imprisonment.  He is applying for judicial interim release pending his appeal. [2] By way of brief background, Mr. Dhesi is a truck driver who was dispatched in July 2009 by his then employer to transport cargo from Richmond, B.C. to California, and to return with another cargo of goods from California to British Columbia.  The trailer attached to his truck was loaded with cargo at a warehouse in California and then sealed.  When Mr. Dhesi drove through the border into Canada, he was referred to a Customs warehouse for a secondary inspection of the truck.  The referral was purely random.  Six boxes of cocaine with a street value estimated at 2.5 million dollars were found in the trailer on top of other cargo. It was established at trial that the seal to the truck could be bypassed by way of a bolt/nut mechanism on the right trailer door.  There was evidence indicating that the right trailer door had been tampered with after the doors had been sealed; that Mr. Dhesi had purchased a drill and drill bit shortly prior to driving the load into Canada; that other tools in the truck were consistent with the type which could be used to tamper with the door; and that a bolt which appeared identical to that on the right-hand door was found in a bag which contained other items linked to Mr. Dhesi.  Based on this and other circumstantial evidence, the trial judge concluded that the cocaine was loaded on to the truck at some time after the doors were sealed and that Mr. Dhesi knew that he was transporting cocaine into Canada with a view to delivering it to third parties. [3] Under s. 679(3) of the Criminal Code , R.S.C. 1985, c. C-46 (the “ Code ”), in order to secure his release pending appeal Mr. Dhesi must establish that: (a)      the appeal ... is not frivolous; (b)      he will surrender himself into custody in accordance with the terms of the order and; (c)      his detention is not necessary in the public interest. [4] Crown counsel has conceded that the requirements of s. 679(3)(a) and (b) have been met; that is, that the appeal is not frivolous, and that Mr. Dhesi would surrender himself into custody as and when required to do so. [5] I agree that Mr. Dhesi has satisfied the first two requirements under s. 679(3).  With respect to the question of surrender, I note that Mr. Dhesi was released on $40,000 cash bail pending his trial, and there is no suggestion that he breached the terms of his bail.  Further, he has ties in the community, including a common law wife, daughter, and employment.  He has also surrendered his passport. [6] The only question which remains is whether Mr. Dhesi has established that his detention is not necessary in the public interest.  This involves two considerations:  (1) the protection and safety of the public, and (2) the maintenance of the public’s confidence in the administration of justice. [7] With respect to the first consideration, it is not suggested that if Mr. Dhesi were released on bail he would re-offend or that he would present a danger to the public.  In that regard, it is important to emphasize that he does not have a criminal record other than the convictions which are the subject of this appeal. [8] The second consideration ‒ the effect Mr. Dhesi’s release pending appeal would have on the public’s confidence in the administration of justice ‒ requires balancing Mr. Dhesi’s interest in the reviewability of the decision under appeal with the interest of the public in the enforceability of his conviction and sentence pending appeal.  The leading case in this jurisdiction which discusses that analysis is R. v. Mapara , 2001 BCCA 508 at paras. 32-36 where Madam Justice Ryan, speaking for the Court, stated: [32]      An analysis of the section's objectives was undertaken by Arbour J.A. (as she then was) in R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.). She said at pp. 47-8: Section 679(3)(c) of the Criminal Code provides, in my opinion, a clear standard against which the correctness of any decision granting or denying bail pending appeal can be reviewed. The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice. The “public interest” criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments. Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability. On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months' imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. Assuming that the requirements of s. 679(3)(a) and (b) of the Criminal Code are met entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes. This same principle animates the civil law dealing with stays of judgments and orders pending appeal. It is a principle which vindicates the value of reviewability. [33]      In R. v. Baltovich (31 March 2000), No. C12090 (Ont. C.A., in Chambers), Rosenberg J.A. quoted the above passage from Farinacci with approval. Noting the appellant in that case was a mature offender with no previous record, and there was no suggestion he represented a danger to the public or would interfere with the administration of justice, Rosenberg J.A. concluded (para. 25) that “the matter that is most influential on the question of the public interest is the strength of the grounds of appeal.” [34]      I agree with the analyses in Farinacci and Baltovich . Public confidence in the administration of justice requires that verdicts, properly rendered, be enforced. Where an appellant establishes that he or she does not pose a flight risk and is unlikely to re-offend, the public interest also acknowledges that actual punishment for a crime be avoided if strong grounds exist for setting aside the verdict. [35]      In Demyen when Culliton C.J.S. speaks of the necessity for the appellant to show “something more” than the requirements of paragraphs (a) and (b) of s. 679(3) to establish that his detention is not necessary in the public interest, he must be referring to the necessity for the appellant to show that the principle of enforceability is outweighed by that of reviewability. In my view the strength of the interest of reviewability must primarily be measured by examining the likelihood of the success of the appeal. Very strong grounds will tip the scale in favour of reviewability. [36]      Depending on the demonstrated strength of the grounds, other factors, such as the circumstances of the offence - for example, pre-meditated violence - and, inordinate delay will be matters to weigh in the balance. The essential question, however, will be whether the appellant has been able to establish that enforceability is outweighed by reviewability. [9] It is apparent from these passages that a significant factor to be considered in engaging in this balancing exercise is the relative strength of the proposed grounds of appeal. [10] The trial judge stated the critical issue before him as whether the Crown had established, beyond a reasonable doubt, that Mr. Dhesi knowingly transported cocaine into Canada or whether, as suggested by the defence, Mr. Dhesi was what was referred to at trial as a “blind courier”.  In answering that question, the trial judge observed that the evidence was purely circumstantial, but he was persuaded that the only rational conclusion on the evidence was that Mr. Dhesi knew that he was transporting a large quantity of cocaine across the border for distribution to third parties. [11] Counsel for Mr. Dhesi submits that the guilty verdict was unreasonable or unsupported by the evidence and, in particular, that the trial judge made findings of fact and drew inferences critical to his decision which were not supported by the evidence.  He refers, in particular, to the trial judge’s finding that the bolt on the right-hand door had been newly installed around July 24, 2009, and his finding, based on what he concluded were “unique markings”, that the bolt appeared identical to the bolt found in the bag containing documents linked to Mr. Dhesi.  Counsel submits that there was no evidence to support the timing of the installation of the bolt on the door, or that the bolt found in the bag had “unique markings”.  He submits that the trial judge placed considerable weight on these findings in concluding that Mr. Dhesi was knowingly involved in the transportation of the cocaine into Canada.  He also submits that the evidence supported other rational inferences which were inconsistent with Mr. Dhesi’s guilt. [12] Although conceding that Mr. Dhesi’s appeal is not frivolous, Crown counsel submits that it is weak.  In his view, the conclusions of the trial judge were reasonable and fully supported by the evidence. [13] It is difficult to determine the relative merits of an appeal at such an early stage of the proceedings.  Based on the information and submissions before me, while I agree that the appeal is not frivolous, I would certainly not describe the proposed grounds as “strong”.  As observed by Crown counsel, an appellant faces an uphill battle in attempting to overturn findings of fact and inferences drawn from those facts by a trial judge.  It is arguable that the trial judge went too far in drawing certain inferences upon which he relied in concluding that Mr. Dhesi was guilty of the charges against him, but I do not find the arguments to be such as to tilt the balance in favour of reviewability over enforceability. [14] Further, it is not only the relative merits of the appeal which must be balanced in determining the effect of Mr. Dhesi’s proposed release on the public’s perception of the administration of justice.  The Court must also consider that these are very serious charges, as reflected in the sentence imposed of 9 years.  These offences involved a very large quantity of cocaine valued at almost 2.5 million dollars.  The  distribution of this quantity of cocaine would necessarily have involved further criminal activity on the part of individuals in Canada, not to mention the damage which would be inflicted on members of the public affected by its distribution, both direct users and others. [15] I have taken into account the fact that Mr. Dhesi appears to have been an otherwise law-abiding member of the community with no prior criminal record; that he has been regularly employed and is supporting a family; and that there is no suggestion that he represents a danger to the community if released on bail.  On balance, however, and having particular regard to the seriousness of the offences and what I view to be the relative lack of strength of the grounds of appeal, I am not persuaded that Mr. Dhesi has satisfied the third criterion for his release; that is, using the words of s. 679(3)(c), Mr. Dhesi has not persuaded me that his detention is not necessary in the public interest.  I would, therefore, dismiss his application for bail pending appeal. [16] During the course of the hearing, I canvassed with counsel the prospect of expediting this appeal.  Given my conclusion that Mr. Dhesi should be detained pending his appeal, it is important that steps be taken to have the appeal heard as soon as possible.  (I would have been of the same view even if I had ordered Mr. Dhesi’s release, given the public interest in having serious matters like this brought to a final resolution as soon as practically possible.) [17] I am advised by counsel for Mr. Dhesi that the transcripts of the trial should be available next week and that he will be able to file his factum on or before February 29, 2012.  I would, therefore, direct that the appellant’s factum be filed on or before February 29, 2012; that the Crown’s factum be filed on or before March 30, 2012; and that a date be set in April 2012 for the hearing the appeal.  Counsel should take steps to reserve an April hearing date upon receipt of these reasons.  I understand that dates are presently available on April 16, 17, 19, 24, and 30 th , but these should be confirmed with the Registry.  If problems arise with respect to this proposed schedule, they should be brought to my attention as early as possible. [18] In the result, Mr. Dhesi’s application for release pending appeal is dismissed. “The Honourable Madam Justice Prowse”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Horner, 2012 BCCA 7 Date: 20120110 Docket: CA037127 Between: Regina Appellant And Jason James Horner Respondent Before: The Honourable Madam Justice Ryan The Honourable Madam Justice Saunders The Honourable Mr. Justice Lowry On appeal from the Supreme court of British Columbia, April 23, 2009 ( R. v. Horner , Vancouver Registry, Docket Number 2476301) Counsel for the Appellant: W.P. Riley Counsel for the Respondent: B.A. Martland M. Scott Place and Date of Hearing: Vancouver, British Columbia November 9 & 10, 2010 Place and Date of Judgment: Vancouver, British Columbia January 10, 2012 Written Reasons by: The Honourable Madam Justice Ryan Concurred in by: The Honourable Madam Justice Saunders The Honourable Mr. Justice Lowry Reasons for Judgment of the Honourable Madam Justice Ryan Introduction [1] This is a Crown appeal from the order of Mr. Justice Leask, pronounced April 23, 2009, staying proceedings against Jason James Horner after finding a breach of his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms (the “ Charter ”).  The reasons in this case are being released concurrently with R. v. Poloni , 2012 BCCA 8, a second Crown appeal relating to Mr. Horner’s co-accused, who was granted a stay of proceedings for similar reasons by Mr. Justice Leask on June 9, 2009. [2] Justice Leask’s order was made on the basis of an estimated 62.5-month delay between the laying of charges against Mr. Horner in October of 2004 and the projected conclusion of his trial at the end of December 2009. [3] In this case, the Crown appellant raises two overarching grounds of appeal.  First, the Crown says that the Supreme Court Justice erred in characterizing and categorizing the delay.  Second, the Crown submits that the Supreme Court Justice erred in his overall assessment of the reasonableness of the delay and in assessing the prejudice to the respondents caused by the delay. Factual Background [4] The Crown alleges the following underlying facts.  Mr. Horner was stopped along with another man on September 29, 2004 in a vehicle on the highway near Chilliwack.  A search produced 20 kilograms of cocaine from hidden compartments in the vehicle.  As the police investigation was ongoing, Mr. Horner was released without being immediately charged. [5] The police investigation ended just over two weeks after Mr. Horner’s release.  It culminated in the arrest of five other men on October 15, 2004.  On the same day, Mr. Horner and the others were charged on a four-count Information, each count accusing different groupings of the men of various conspiracies to import cocaine (from the United States) or to traffic in cocaine or marihuana.  The conspiracies were alleged to have occurred between January 1 and October 14, 2004.  Specifically, Mr. Horner was charged with Robert Della Penna, Robert Muoio, Robert Poloni and James Micklewright that they: Count 2: Between the 1 st of June, 2004 and the 30 th of September, 2004 at or near the cities of Burnaby and Vancouver, British Columbia and elsewhere in the Province of British Columbia and in Toronto, Ontario and elsewhere in the Province of Ontario did unlawfully conspire together, the one with the other or others of them, and with Casey WELLS, Liaqat KHAN, Amaran TYAB, Clint FARRELL, Ernest POLONI, Micro PASTRO and Robert FRIEDMAN and with a person or with persons unknown, to commit the indictable offence of trafficking in a controlled substance, to wit: Cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act and did thereby commit an offence contrary to section 465(1) of the Criminal Code of Canada . [6] As Mr. Riley has summarized in the Crown’s factum, the allegations were that Robert Della Penna and his associates, based in British Columbia, agreed to supply wholesale quantities of cocaine to James Micklewright and others, based in Ontario.  The conspiracy was ongoing and entailed at least three specific drug shipments for a total of 38 kilograms of cocaine, all of which was seized by the police.  Robert Poloni, who was alleged to have a continuing drug trafficking relationship with Robert Della Penna, was the supplier for the last of the three shipments.  James Horner, an associate of Mr. Micklewright, was directly implicated in two of the three shipments. [7] The allegation was that the first of the three specific transactions took place on June 19, 2004, when Mr. Horner obtained ten kilograms of cocaine from Mr. Della Penna at a Burnaby apartment and then stayed overnight in a hotel room booked by Mr. Della Penna.  Mr. Horner then boarded a plane from Vancouver to Toronto, checking a suitcase which the police subsequently seized using a general warrant, recovering the ten kilograms of cocaine. [8] The second transaction alleged by the Crown, in which neither Mr. Poloni nor Mr. Horner had any direct involvement, took place on June 29, 2004 and involved a further eight kilograms of cocaine, once again seized by the police from a bag checked as luggage on a flight from Vancouver to Toronto. [9] The third transaction allegedly took place in late September 2004.  In the days leading up to this transaction, Robert Della Penna had numerous telephone conversations with Robert Poloni, in which Mr. Poloni agreed to obtain 20 kilograms of cocaine for Mr. Della Penna at a price of $26,000 per kilogram, to be sold to James Micklewright at a price of $27,000 per kilogram.  On September 28, 2004, a meeting took place at a house in Burnaby in which Mr. Della Penna provided the 20 kilograms of cocaine to Mr. Micklewright and several associates including Mr. Horner, who subsequently concealed the drugs in the undercarriage of a vehicle with the intention of driving it back to Toronto.  It was those drugs that were seized from Mr. Horner’s car when he was stopped by the police on September 29, 2004. [10] The Crown’s case consisted largely of wiretap evidence derived from a series of six wiretap authorizations granted under Part VI of the Criminal Code .  Two of the authorizations were one-party consents permitting the recording of conversations between undercover agents and Mr. Della Penna.  The others were conventional wiretap authorizations leading to the interception of communications between Mr. Della Penna and the other accused persons.  The Crown’s case against Mr. Horner also included conventional surveillance and drug seizures.  The wiretap evidence was a crucial part of the Crown’s case, and much of the litigation comprised defence challenges to its admissibility. The History of the Proceedings [11] As noted earlier, Mr. Horner was charged on October 15, 2004.  After learning that there was a warrant for his arrest, he turned himself in on November 7, 2004.  He was granted bail the following day with a $40,000 cash deposit and subject to conditions that he report to a bail supervisor, continue to reside at his current address, and refrain from applying for a passport, leaving the country or communicating with certain potential witnesses. [12] By virtue of Rule 6 of the Provincial Court Criminal Caseflow Management Rules , the respondent’s first appearance triggered the Crown’s duty to begin disclosing its case.  The record demonstrates that the Crown began complying with the Rule accordingly. [13] Rule 8 of the Criminal Caseflow Management Rules requires that the Crown and defence attend an arraignment hearing prior to setting a trial or preliminary hearing date.  Rule 8(2) provides: (2)        At an arraignment hearing, the judge may (a)        call on the accused to make an election or enter a plea to the charges; (b)        make inquiries to i. assist in making an informed and accurate estimate about the length of a trial or preliminary inquiry into the matter, or ii. facilitate the trial or preliminary inquiry, or simplify or dispose of issues; (c)        give directions to the trial scheduler about the time to be set for the trial or preliminary inquiry; (d)        if there is no trial scheduler for that Court registry, set the time for the trial or preliminary inquiry; (e)        make any order or give any direction that the judge considers necessary to achieve the purpose of these Rules, to facilitate the trial or preliminary inquiry or to simplify or dispose of issues; (f)         adjourn the arraignment hearing to enable compliance with any order made or direction given under paragraph (e); (g)        adjourn the arraignment hearing and refer the accused, if not represented by legal counsel, to consult with duty counsel or other legal counsel of the accused's choice; and (h)        hear one or more applications made in respect of the case, if it is convenient and practicable to the Court and all parties.  [Emphasis added.] [14] On December 30, 2004, a “pre-trial conference” (which I take to be, in effect, an “arraignment hearing” under Rule 8), was set for all accused for February 3, 2005.  Because one of the other accused had difficulty retaining counsel, the pre-trial conference was not conducted until April 4, 2005.  By that date, Judge Warren had been assigned as trial judge.  Mr. Poloni had retained Mr. Rubin to act for him.  Mr. Horner had retained Mr. Kayfetz.  All six accused elected before Judge Warren to be tried in the Provincial Court.  As for time estimates, counsel were agreed that they required two days for applications to cross-examine Crown witnesses on affidavits, one month for voir dires to be held with respect to the admissibility of wiretap evidence, and two months for the Crown’s case to be heard.  Judge Warren adjourned the matter to the judicial case manager (known in the Rules as the “trial scheduler”) to book court time accordingly. [15] Subrules (6) and (7) of Rule 8 provide: (6)        If the judge presiding at the arraignment hearing refers the matter to a trial scheduler for scheduling, the trial scheduler shall (a)        set a time for the trial or preliminary inquiry, as the case may be, or for the hearing of any applications in respect of the case, in accordance with i. the time estimate determined by the judge, and ii. any direction given by the judge; and (b)        set a time for the accused's trial confirmation hearing, which time shall not be less than 30 days before the time set for the trial or preliminary inquiry under paragraph (a). (7)        The trial scheduler may, before setting a time under subrule (6), refer any scheduling difficulties that arise to the judge who presided at the arraignment hearing, providing the judge with information about those difficulties. [16] During the April 4, 2005 pre-trial conference, counsel told Judge Warren that they expected to take a break after the voir dires , and then take the two months required for the trial.  There is no explanation on the record as to why counsel wished to break between the voir dires and the main trial.  I take it to now be common practice to take such a break so that counsel can assess the case for the Crown on the basis of the evidence the judge has ruled admissible. [17] Regrettably, there is no record of what took place before the judicial case manager.  However, the record shows that before the pre-trial conference of April 4, 2005, Ms. Devlin of the Crown office had written to counsel for Messrs. Muoio, Della Penna, Poloni, Horner and Micklewright: Further to my letter sent earlier today, I now have had an opportunity to discuss this matter with Mr. Rubin and we have some suggestions in regards to scheduling.  Keeping in mind that Mr. Wells does not yet have counsel, we suggest that this matter be scheduled in two parts.  In anticipation of Charter challenges, we suggest a 4 week period be set aside for the voir dire followed by another 4-6 weeks for the trial a month or two later. I understand from Mr. Rubin that the Provincial Court Registry has indicated we are looking at scheduling time in early 2006. With respect to Mr. Wells, when he obtains counsel we can deal with any scheduling problems that may arise.  ...  [Emphasis added.] [18] On March 9, 2006, defence counsel for Mr. Poloni and Mr. Della Penna appeared before Judge Warren seeking an adjournment of their application to cross-examine on the affidavits underlying the wiretap authorizations, which had been set by the judicial case managers for March 14 and 15, 2006.  Counsel informed Judge Warren that four weeks, beginning April 10, 2006, had been set aside for the voir dires and that the application to cross examine could be safely accommodated in those four weeks.  Counsel blamed the necessity for the adjournment on the failure of the Crown to make timely disclosure.  In reluctantly consenting to the application, counsel for the Crown noted in passing that the trial proper was scheduled to begin in October or November of 2006.  (In its factum, the Crown states that the trial proper was set to run from October 4 to November 30, 2006.)  Without assigning blame to anyone, the trial judge adjourned the matter to April 10. [19] On April 10, 2006, several defence counsel continued to complain about disclosure and asked that the matter be put over a week.  Counsel for Mr. Della Penna was not ready to proceed.  The Crown not only rejected the suggestion that it was failing in its duty to disclose but also suggested that the disclosure had nothing to do with the applications to cross-examine on the affidavits.  In the end, Mr. Rubin advised the court that “we’re sort of in agreement that there’s some merit to [Crown counsel’s] suggestion that we put it over and let [counsel for Mr. Della Penna] start off on the leave application when he is better able to do so”.  The parties dealt with other matters, such as whether some of the accused would be excused from the proceedings at certain times, and the matter was adjourned to April 18, 2006. [20] The applications continued on April 18, 2006.  The trial judge ruled that the defence could cross-examine a police officer who had sworn affidavits relating to several of the wiretaps.  The cross-examination of the police officer on the first wiretap began on April 25 and was continuing on May 10, 2006 when the time that had been set aside for the voir dire s expired. [21] On May 10, 2006, the trial judge and counsel did not consider simply carrying on with the voir dire , but proceeded on the premise that the case would need to be adjourned to find further court time to complete it.  The trial judge asked counsel to consider how much time would be necessary to complete cross-examination on the affidavit.  She said: THE COURT: And can we not accomplish anything this afternoon in that regard [referring to defence counsel’s suggestion that a conference with the judge seemed necessary] with respect to finding out or trying to determine or nail down how much time is going to be necessary for various further applications to cross-examine the affiant on other authorizations, and how much time might be -- I certainly would like to hear from counsel, but it seems to me that it might be done in parts rather than having it all done in one fell swoop so that there’s some time for people to gather their thoughts and so forth, including the court .  [Emphasis added.] [22] In the ensuing discussion, it was clear that counsel for Mr. Della Penna was of the view that he would not know how much longer he would need for cross-examination of the affiant on subsequent authorizations before obtaining a ruling on the first.  Again, the trial judge sent counsel to the judicial case manager: THE COURT: ... And so do try to address your minds, at least in some way, over the noon break about what this all might look like in the future, and whether [discrete], you know, times can be set aside because obviously it’s also much easier for the Judicial Case Manager to find [discrete] blocks of time, or days at a time or so forth, or two days and whatever, with respect to various applications to be made .  [Emphasis added.] [23] Later, when counsel for the Crown expressed concern with how long the cross-examination had taken to this point, the trial judge stated that she was expecting that the continuation of the cross-examination would advance “in chunks” before the trial proper was scheduled to continue.  It was then that Mr. Rubin advised the court: MR. RUBIN: I was thinking that we should get, like, say about 10 days or a week in June of next year which is probably the earliest we could get a chunk, and then maybe a chunk in July. [24] Counsel for the Crown then noted that Mr. Rubin had written to the judicial case managers and had been told that there were “no appreciable chunks of time” until the summer of 2007. [25] After the lunch break, counsel for the Crown was able to advise the trial judge that two days, July 26 and July 28, 2006, had been obtained for the purpose of argument with respect to the admissibility of evidence obtained from one of the wiretaps. [26] Counsel for the Crown advised the trial judge that counsel did not press the judicial case manager for two days but rather for “week-long blocks” for further cross-examination in the summer of 2006: [CROWN COUNSEL]: And I was advised [by the judicial case manager] that to be booking you would be, in some cases, double or triple booking.  So there’s no significant block of time in that period. [27] Since two months were already booked for trial in October and November 2006, it was agreed that this time would be used for cross-examination on the affidavits.  Having learned that there was no significant court time available until June of 2007 for the continuation of the trial, counsel agreed to go to the judicial case manager and (allowing for vacation time of counsel) find some time at the end of May, two weeks or so in June and also time in September and October 2007 for completion of the trial. [28] The voir dires continued with submissions of counsel on July 26 and 28, 2006.  On October 3, 2006, the trial judge delivered a 64-page judgment rejecting the defence application that the first of the authorizations for wiretap be set aside. [29] On October 4, 2006, the proceedings resumed and carried on for a further month with additional cross-examination of the police officer who swore the affidavit in support of the other wiretaps. [30] On November 6, 2006, the trial judge made a ruling with respect to further Crown disclosure relating to the material on which one of the wiretap authorizations was made.  On November 7, 2006, submissions on the validity of another of the wiretap authorizations were put over to November 15, 2006.  During the course of that discussion, counsel for the Crown expressed his concern about the length of time the issues with respect to the validity of the authorizations were taking and mentioned that the court had suggested looking into whether time was available in November of 2007.  Mr. Rubin, speaking on behalf of Mr. Horner and Mr. Poloni, suggested waiting until the court had made its ruling on the wiretap authorizations (this ruling was scheduled by the court for December 8, 2006) before determining whether more time would be needed. [31] Counsel returned to court on November 15 for argument on the validity of certain wiretap authorizations.  On November 16, this discussion took place between counsel for the Crown and Judge Warren: [CROWN COUNSEL]: Your Honour sent us away last week to inquire about November, and just so Your Honour knows, we were advised that there were -- you were assigned two long trials ... November 13 to 21 st , and then November 27 th to December 3 rd .  And certainly not without Your Honour doing anything we won’t be able to budge the case manager in terms of setting -- having those reassigned and having the court time free up.  I have no idea whether there’s court time generally speaking so that another judge can be assigned those trials and whether there’s a courtroom available, but I just raise that because that was the answer we got with respect to November. THE COURT: Right. [CROWN COUNSEL]: And if Your Honour wants to do something about that, that’s up to you.  But I just raise it as -- in answer to the inquiry as to the availability of next November. THE COURT: Right.  I hesitate to interfere too much with the judicial case managers, who already have a very difficult job. [CROWN COUNSEL]: Right. THE COURT: And particularly because there’s a new policy now where ten judges from Robson Square and ten judges from Main Street are going to be interchanged on three-month rotations, and that, of course, will additionally make a very difficult job -- [CROWN COUNSEL]: Scheduling. THE COURT: -- scheduling for the judicial case managers. [CROWN COUNSEL]: Right. THE COURT: Amongst other people. [CROWN COUNSEL]: Right.  No, I suspected that would -- but I wanted to let you know that that’s the inquiry we made, and that was what -- the result, and that we’re powerless to do anything about that, I think. THE COURT: Right. [CROWN COUNSEL]: The other thing is that Mr. Rubin mentioned yesterday January of -- THE COURT: 2008. ... [CROWN COUNSEL]: And when we were looking at setting November, I think the one month addition was my -- was my view, a starting point. THE COURT: Right. [CROWN COUNSEL]: Of course my concern being that we’ll see where we’re at in June, and then if at that time it looks like we may need more time, well, we’re not going to get February of ’08.  It’s going to be later and later and later.  … I’m suggesting that we set actually longer than one month.  In fact I’m going to suggest, certainly something unusual in the provincial court, that we sit until we finish, starting in January ’08. Or, I know that that will cause the judicial case managers all sorts of conniptions, but -- but or we set a significant block of time in which we can later assess, and perhaps agree to give up a couple of weeks so that we sit in chunks over the course of six months, perhaps.  And I say that in part because of the experience of this, that we sat, I didn’t count it up, but I would say perhaps two thirds of the dates that we actually had scheduled.  And I’m not being critical, because in a long trial sometimes it is more productive not to sit for certain periods of time -- THE COURT: Right. [CROWN COUNSEL]: -- to continue on in the most expeditious manner possible.  So that’s why I say that that might be a way to deal with it. So I’ll leave that with you, and I’ll try and remember to raise it tomorrow when Mr. Rubin’s here, and I appreciate of course he’s not here when I say this, but – and then the last thing about scheduling is that the next dates are June, and I’m suggesting that there be perhaps a pre-trial conference sometime before June, perhaps two months in advance, or so, so that it’s clear what those dates will be used for, and so that if there are disclosure requests or applications, they be made maybe in advance, if possible.  Or at least we know that the first week or days will be used for that rather than the course of a witness’s testimony and interrupting that kind of flow. So those are my suggestions as to how to best use the time we have, and with respect to whatever additional time we may ultimately require. ... [COUNSEL FOR MR. DELLA PENNA]: And I don’t know if my friend has turned his mind to the thought of maybe transferring the case to Ontario where they have those special microphones and judicial appointments who can make blocks of time for rulings and all kinds of things.  Because we’re just not moving at a good enough pace here in poor old British Columbia. [32] Submissions on the authorization then under scrutiny continued the next day, November 17, 2006.  Before adjourning, Judge Warren raised with defence counsel the Crown’s suggestion from the previous day that the trial resume in January of 2008 and “just keep going until it’s done”.  Mr. Rubin said that he was unavailable in February and insisted that they would have a better idea of how long the trial would take once the rulings on the remaining wiretap authorizations were obtained.  Judge Warren sent counsel to the judicial case managers to fix a time for a pre-trial conference and adjourned to December 8, on which date she anticipated giving her ruling.  On December 15, Judge Warren delivered her judgment on the challenged authorization after a one-week adjournment initiated by the court. [33] On January 9, 2007, the parties appeared before the trial judge to discuss how the remaining voir dires might be conducted.  The trial was adjourned to June 5, 2007.  Counsel advised the court that the hearing dates would be June 5-8; June 12-15, and the week of June 25, 2007. [34] The voir dires resumed in June and continued on the designated days.  The trial judge issued reasons for judgment on August 17, 2007. [35] The trial continued on September 10, 2007 with an application for further disclosure by the defence, which was refused by the trial judge on September 11.  On the same day, Mr. Horner advised the court that he was seeking new counsel. The voir dires continued on September 13, 18, 19, and 20.  On September 19, Ms. Gaffar confirmed that she had been retained by Mr. Horner. [36] By September of 2007, the trial judge had set limits for defence counsel with respect to the time they would be given for cross-examination.  Nonetheless, concerns again arose about the length of time the voir dires were taking and how the time allotted might be used efficiently.  On September 19, during the course of such a discussion in which it was suggested that the trial judge take a day from the time allotted to consider a ruling, the trial judge said: THE COURT: ...The difficulty is you see, I don’t -- I need the time to think and the thinking time is put on top of my sitting list.  When I don’t sit on this matter, it’s not as though I go into my chambers and get to read all this stuff.  Another case comes, bingo, it’s ready to go.  We’re over booked. [37] In response to this problem, counsel for the Crown later suggested that perhaps all counsel might approach the administrative judge to ask him to consider allowing the trial judge to work on the case during the time assigned for it without being assigned other cases in the same timeslot.  As he put it: [CROWN COUNSEL]: … It’s our time that’s been -- and I realize of course they’re booked up, but we need Your Honour to be able to look at the material in a timely fashion and give us responses. [38] The trial judge responded: THE COURT: ... the problem with that is, is that everything that I don’t do is a burden on my colleagues, and they are quadruple booking every single court every single day in this building and it’s just -- there’s just a -- there’s a lot of factors to be considered. [39] She continued: THE COURT: And I’ve had maybe two days out since April 2006 to write and I may have another two in the next four months, but it’s not going to be more than that. [CROWN COUNSEL]: And I’m certainly not trying to step on Your Honour’s toes in any way. … Just when we don’t finish, we end up taking up more court time too because we didn’t have to book extra days. THE COURT: I understand. [CROWN COUNSEL]: And I certainly realize the triple booking in these courtrooms and -- THE COURT: And the case goes on and on and on. [CROWN COUNSEL]: Yes. THE COURT: And we’re now January 2008, and is it going to be finished in January 2008, not likely. [CROWN COUNSEL]: And the only reason I raise it, Your Honour, is I know there is a directive from the Chief Judge’s office that lengthy cases are now to continue so that they’re to be given consideration, and I don’t know if that directive is actually being regularly put into place but -- THE COURT: No, they’re not able to put it in place, unfortunately. [40] The voir dires continued on September 20 and October 1, 2007.  On October 1, Ms. Gaffar, whom Mr. Horner had just retained in place of Mr. Kayfetz, sought and obtained a one-week adjournment so that she could become familiar with the case.  The proceedings continued on October 9 and sporadically thereafter until October 24, on which date they were adjourned to January 8, 2008.  In the meantime, on November 2, 2007, the trial judge issued her reasons for judgment on the validity of another wiretap authorization. [41] The proceedings resumed on January 8, 2008.  At the beginning of the day, the trial judge referred to the necessity to take special measures in order to finish the trial in a timely fashion.  She said: THE COURT: Yes.  All right.  It started in 2006.  I’ve told the administrative judge, and the judicial case managers that I am to be freed up, whenever counsel have got the time, and someone else is going to take over my rota, things that are settled, other than -- and matters are going to be -- have to be adjourned.  I may have to not sit at the Robson Square, whatever.  I am going to count on counsel to adjourn other matters.  If this were in another court, I know you would be coming to me and saying I have to adjourn this because I have a matter involving seven, eight counsel, six accused, and it has -- the court has ordered that it has to go ahead, and that’s what I’m saying. [42] Mr. Rubin noted that the case now needed three or four months to conclude and remarked that it would be difficult for him to adjourn other matters scheduled in those three or four months. [43] During the discussions with respect to trial scheduling, counsel for the Crown said this: [CROWN COUNSEL]: ... And I think the biggest hurdle is simply getting the six week block of time for Your Honour in this courthouse.  I mean, I know that counsel all have busy calendars, but -- THE COURT: Yes. [CROWN COUNSEL]: -- it’s very difficult to get time in the courthouse -- THE COURT: That’s right. [CROWN COUNSEL]: -- and so if we know we can get a six week time period -- MR. RUBIN: I gather that the court is saying that the problem of getting Your Honour freed up is now solved and it’s -- THE COURT: I wouldn’t say it’s solved, but it’s -- they have a heads up, they have -- MR. RUBIN: Okay. THE COURT: -- a red flag, if there is going to be a problem it can be sorted out. [44] By this time, however, Mr. Rubin had booked time off in July 2008, and the judge had booked a leave of absence based on the expectation that the trial would be finished by the end of January 2008.  It was agreed that all counsel would sit down with their calendars to organize a schedule for the completion of the trial. [45] On January 14, 2008, the court convened to deal with the matter of setting down the continuation of the trial, now expected to take 90 more days.  At this point, the obvious problem surfaced ‒ counsel’s calendars were by then filled with other trials and booked vacations.  However, on January 16, 2008, counsel confirmed they had obtained six weeks for the trial proper, which would begin November 17, 2008 and continue, in two-week segments, concluding by January 19, 2009. [46] The voir dires continued after January 14 for four days, after which judgment was reserved.  On February 22, 2008, the trial judge issued another ruling with respect to another wiretap authorization. [47] The voir dires resumed on June 26, 2008 for further submissions, and the matter was put over to October 10 for decision.  In the meantime, on July 25, 2008, the trial judge issued reasons for judgment on a s. 24(2) Charter application to exclude evidence earlier found to have been obtained in contravention of the accused’s rights. [48] On September 30, 2008, counsel received notification that Judge Warren had fallen ill and would not be able to continue as trial judge.  On October 10, 2008, the proceedings resumed before Judge Howard. [49] Argument ensued on October 10, 2008 as to whether Judge Howard could continue the proceedings under s. 669.2 of the Criminal Code , or whether the Code required that they be recommenced.  On October 28, Judge Howard ruled that the proceedings must start from the beginning. [50] On November 12, 2008, the Crown did the only sensible thing it could do in face of the countless delays already encountered in the Provincial Court.  It filed a direct indictment in the Supreme Court of British Columbia. [51] Mr. Horner made his first appearance in Supreme Court on November 17, 2008.  He appeared on December 3, 2008 to fix a date for trial.  Thereafter, Mr. Horner appeared before Justice Leask a number of times with regard to trial scheduling.  It was agreed that dates in March and April would be set for pre-trial motions including Mr. Horner’s application to stay proceedings pursuant to s. 11(b) of the Charter .  A voir dire was set to transpire from May 19 through to July 2009, and the trial itself from October 1 to December 31, 2009. [52] On April 23, 2009, Mr. Justice Leask issued reasons for judgment in chambers staying the proceedings against Mr. Horner. Supreme Court Reasons for Judgment [53] As I mentioned earlier in these reasons, the parties were agreed before Justice Leask that the estimated time from the laying of the charges to the anticipated completion of the Supreme Court trial was 62.5 months. [54] The Supreme Court Justice began by assessing the inherent time requirements of the case to be 12 months.  Of this time, he calculated that 5½ months were required for “intake” and six months for trial.  The six months would consist of two months of voir dire s followed by four months of trial. [55] In determining the length of delay to be attributed to the actions of the accused, the Supreme Court Justice said this about Mr. Horner: [21]      Neither the accused nor his two counsel have been a significant cause of delay in this case.  When Mr. Horner’s current counsel took over his case in September 2007, she asked for a one-week adjournment to allow herself to become familiar with the proceedings to date.  This was a clear manifestation of a desire by Mr. Horner and his lawyer to proceed expeditiously.  Most trial judges would have been prepared to allow counsel at least one month to read the voluminous materials involve in this case.  Taking into account the one week adjournment request, and any other very minor delays associated with this accused, I am prepared to find that this accused was responsible for 2 weeks or ½ of 1 month’s delay to these proceedings. [56] The Supreme Court Justice found that the Crown and the defence were equally responsible for the delay in failing to realistically estimate the time requirements necessary for the defence challenges to the admissibility of the wiretap evidence.  Justice Leask said: [24]      In this case, I find that the underestimate of the time required for the voir dire was jointly attributable to the Crown and the defence.  In a case such as this, where the bulk of the Crown evidence comes from intercepted communications, it is too simplistic to treat the length of the voir dire as purely a matter for the defence.  The Crown’s responsibility to manage the case includes a responsibility to make realistic estimates of the time required for the “wire” voir dire .  Having said that, in this case, I believe the main cause of delay in the Provincial Court was the limits on institutional resources and the under-estimate of the time required for the voir dire did not add significantly to the delay .  [Emphasis added.] [57] Next, the Supreme Court Justice considered limits on institutional resources as a cause of delay.  He concluded that, of the 62.5 months between the laying of the charge against Mr. Horner and the end of the scheduled Supreme Court trial, over half of it (32 months) was attributable to scheduling delays.  He said this: [26]      A principal [cause] of the delay in this case was the difficulty of scheduling time in the Provincial Court.  When the intake period was complete on April 4, 2005, the court scheduled the commencement of the voir dires for April 10, 2006, a delay of 12 months .  On May 11, when counsel sought to book extra time for this matter, they were given three weeks in June 2007 ‒ 13 months away ‒ and eight weeks in September and October 2007 ‒ an additional 2 months in the future .  Between the end of the hearing on May 10, 2006 to the re-commencement of proceedings on October 4, 2006 there was a 5-month gap .  On November 17, 2006, when the Crown suggested that the trial should begin in January 2008 and continue until it was concluded, the court booked January 8-31, 2008 ‒ 14 months into the future. Altogether, provincial court scheduling delays equalled 32 months.  [Emphasis added.] [58] In this paragraph, the Supreme Court Justice has added up the amount of time that passed between each court appearance.  I am not sure why he concluded that the delay was 32 months.  By my calculation, the total is 46 months. [59] Having looked at the time that passed between court dates, the Supreme Court Justice then examined the length of time actually taken up by the trial itself.  He observed that 5½ months had been consumed by the voir dire .  He found that the voir dire should have taken three months to complete.  Rejecting the submission that the extra 2½ months resulted from “thorough defence applications” that ought to be attributed to the actions of the co-accused, Justice Leask attributed two months of the delay to the co-accused and two weeks to the Crown.  He said: [31]      ... The proceedings in Provincial Court in this case took 88 court days.  The Provincial Court sits four days per week.  The time spent in court was the equivalent of 22 weeks or roughly 5½ months.  Considering the nature of the Crown’s evidence in this case, the inherent requirements of the case involve a substantial allocation of time for challenges to the admissibility of the wire tap evidence.  My estimate is that this case required approximately 3 months of court time for wire tap challenges.  The extra 2½ months represents part of the delay in this case.  From the submissions I have heard and the transcripts I have reviewed, I believe the Crown was responsible for 20% of the extra time spent in the voir dires. Consequently, I attribute one half of a month to the Crown and 2 months to the actions of the co-accused.  On these facts I follow the ruling in Farewell and treat those 2 months as neutral. [60] The Supreme Court Justice found that Mr. Horner waived very little of the time that had elapsed.  He accepted that Mr. Horner had waived six months between January 2007 and November 2008 on account of his counsel’s unavailability. [61] The Supreme Court Justice accepted as a neutral factor the illness of the Provincial Court judge, which necessitated that the proceedings recommence from the beginning.  Curiously, he concluded that the Crown had contributed to the delay by six months in preferring the direct indictment.  In defending its decision to prefer the indictment, the Crown made this telling submission (reproduced by the Supreme Court Justice at para. 32): [32]      The Crown’s position is: ... that any delay caused by the illness of the trial judge is neutral and cannot be laid at the feet of the Crown.  In any event, it has not caused significant delay to date.  It is speculative to conclude that had the trial judge not been ill, the trial would have concluded in the time allotted ... Moreover, given the difficulty obtaining additional time in Provincial Court it is not at all certain that the trial would have ended any sooner than it is now scheduled to end .  [Emphasis added.] [62] The Supreme Court Justice rejected this submission, finding that given the illness of the trial judge, “the Provincial Court would have given preferred treatment to the scheduling of this case …” (para. 33).  He attributed six months’ delay to the Crown for its decision to directly indict: [33]      ... However, even if the Crown’s speculation is accurate and the end of the trial in Provincial Court would be on the same day as the projected end of the Supreme Court trial, then the applicant here would be entitled to treat the “extra” 6 months as institutional delay caused by limits on institutional resources.  In s. 11(b) terms, such institutional delay is chargeable to the Crown.  However the issue is examined, it would appear that 6 months’ delay must be attributed to the Crown. [63] Lastly, the Supreme Court Justice labelled neutral the 3½ months that Judge Howard estimated the wiretap voir dires would take. [64] Turning his mind to the prejudice suffered by Mr. Horner, Justice Leask felt compelled to infer prejudice as the delay had been sufficiently lengthy.  Justice Leask also found actual prejudice, accepting that Mr. Horner’s access privileges to and relationship with his young daughter had suffered on account of the pending charges, that the outstanding charges had produced strain and stagnation in his relationship with his fiancée, and that he had had difficulty healing from a serious workplace injury because of the stress of the outstanding charges and the delays in securing specialist appointments due to ongoing court proceedings. [65] In reaching his final conclusions about the effect of the trial delay, Justice Leask said this: [47]      In this case, the total delay is 62½ months.  I have found that the accused waived 6 months of the time period and was responsible for one-half month of delay.  I have accepted the submissions of counsel that the inherent time requirements of this case were 12 months.  I have found two other time periods to be neutral in terms of s. 11(b) ‒ 2 months of delay caused by the actions of the co-accused and 3½ months caused by the illness of the trial judge.  Altogether, these time periods total 24 months.  The remaining 38½ months involve 6½ months of delay attributable to the Crown and 32 months caused by limited resources provided to these litigants by the Provincial Court of B.C.  I find that a 38½ month period of delay caused by shortage of institutional resources and action of the Crown occurring within a 62½ month total period of delay to be excessive. [66] Finally, the Supreme Court Justice referred to the reasons of the late Chief Judge Stansfield in R. v. Fleetwood Forest Products Ltd. , 2006 BCPC 548, who said, in allowing a similar application in similar circumstances: [21]      ... the crucial factor in this case is ... that because of the operation of sec. 669.2(3) of the Criminal Code that the defendant now must re-try this case ab initio , whether literally beginning again and being placed back where the parties were on the first day of trial on January 19, 2004, or by securing agreement to proceed by transcripts. [22]      In the unusual and unfortunate circumstances of this case, it is difficult to imagine how this defendant could perceive that it will ultimately receive a fair trial 4½ years after initially being placed in jeopardy through the original swearing of the Information.  The defendant has been subjected to a prolonged and obviously very expensive process already, only to be told it must begin again, for reasons wholly unrelated to any fault of the defendant. [26]      Once a trial begins in the Provincial Court of British Columbia, it is our responsibility -- as a constitutionally independent court which controls the scheduling of its cases -- to ensure that the trial continue within a reasonable time The Grounds of Appeal [67] At para. 3 of these reasons, I set out the Crown’s overarching grounds of appeal.  More particularly, the Crown says: I.        The learned trial judge erred in his characterization of the reasons for the delay, including errors: a.       in his calculation of the inherent time requirements of the case; b.       in failing to characterize the time required to litigate the Charter issues as “actions of the accused”, and in failing to properly address the implications of time estimates in connection with the defence applications. c.       In failing to properly consider the failure of the defence to request sufficient time for defence applications and the “cascading effect” it had on the scheduling of the trial proper. II.       The trial judge erred in finding that the overall delay was unreasonable within the meaning of s. 11(b) of the Charter : a.       The trial judge’s error in failing to properly characterize the reasons for delay caused him to err in assessing the overall reasonableness of the delay under s. 11(b) of the Charter . b.       The trial judge overemphasized the prejudice to the appellants. c.       The trial judge placed too little emphasis on society’s interest in obtaining a trial on the merits. The Standard of Review [68] The legal framework applicable to an analysis under s. 11(b) of the Charter was set out by the Supreme Court of Canada in R. v. Morin , [1992] 1 S.C.R. 771 (“ Morin ”).  The question whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) is designed to protect: R. v. Godin , [2009] 2 S.C.R. 3 at para. 18. [69] The ultimate question is whether the overall delay is unreasonable, considering the causes of the delay, the prejudice, and the interests at stake: R. v. Qureshi (2004), 190 C.C.C. (3d) 453 (Ont. C.A.) at para. 24. [70] With respect to a judge’s analysis of the Morin factors, including his or her characterization and allocation of various periods of time, the standard of appellate review is correctness.  However, I agree with the Ontario Court of Appeal that a judge’s underlying findings of fact are reviewed on a standard of palpable and overriding error: R. v. Khan , 2011 ONCA 173 at para. 18, leave to appeal ref’d [2011] S.C.C.A. No. 195 (QL); R. v. Schertzer , 2009 ONCA 742 at para. 71, leave to appeal ref’d [2010] S.C.C.A. No. 3 (QL). Discussion The First Ground of Appeal ‒ the Characterization of the Reasons for the Delay [71] As mentioned earlier, Justice Leask calculated the length of time required to conclude the case to be 62.5 months.  All parties to this appeal agree with this assessment. [72] The central issue pursued by the Crown on this appeal is the Supreme Court Justice’s identification and characterization of the reasons for this delay. [73] Morin specifically directs (at 787) courts scrutinizing reasons for delay to examine the: (a)      inherent time requirements of the case, (b)      actions of the accused, (c)      actions of the Crown, (d)      limits on institutional resources, and (e)      other reasons for delay. [74] The Crown says that the trial judge erred in his evaluation of each category. The Inherent Time Requirements of the Case [75] The Supreme Court Justice assessed the “inherent time requirements” of the case to be 12 months.  The Crown submits that he arrived at this conclusion by adding the time required for intake procedures ‒ such as bail hearings, disclosure facilitation, and retention of counsel ‒ to the length of actual court time counsel estimated conduct of the trial to require.  As Justice Leask put it: [20]      … Counsel before me are agreed that the period between October 15, 2004 to April 4, 2005 should be categorized as the intake period and that the 5½ months involved are a portion of the inherent time requirements of this case.  There is no substantial disagreement between counsel that the voir dire and trial should take approximately 6 months.  In total, I find the inherent time requirements of the case, as it is now presented to this court, to be 12 months. [76] Noting that the parties appeared on April 4, 2005 and set trial dates commencing approximately one year later, on April 10, 2006, the Crown submits that the Supreme Court Justice must have attributed this one-year period solely to limitations on institutional resources. [77] The Crown says that this approach fails to account for the fact that there were four counts of conspiracy and six accused.  It argues that, had the Supreme Court Justice appreciated the complexity of this trial, he would have ascribed more time after the trial date was set to trial preparation as part of the trial’s inherent time requirements.  I agree that some of the one-year wait after the 5½-month intake period should be attributed to trial preparation, but no more than one month.  I say this because the first part of the trial was to consist of voir dires to determine the admissibility of five wiretap authorizations, and admissibility turned on the cross-examination of one police officer who swore the affidavits used in obtaining the authorizations to intercept all of the communications. [78] Counsel for the Crown also submitted that the time allotted to the trial itself must be longer than six months as all counsel were agreed that there should be a hiatus between the voir dires and the trial proper, which would allow counsel to prepare for trial with full knowledge of the admissible evidence.  I agree that the Supreme Court Justice did not account for this hiatus, nor did he include the time that the trial judge would require to consider the evidence and make her rulings as to admissibility. [79] When all of these matters ‒ more time for trial preparation, time for the trial judge to consider the applications to exclude evidence, and the planned interval between the voir dires and the trial proper – are considered, a more realistic assessment of the “inherent time requirements” of the trial would be 18 months. Actions of the Accused [80] Next, the Crown submits that the Supreme Court Justice erred in failing to attribute actions voluntarily undertaken by the respondents as “actions of the accused”.  Justice Leask characterized the time taken for challenges to the wiretap authorization as part of the “inherent trial requirements” rather than as the actions of the accused. [81] Crown counsel recognizes that the assessment of delay under s. 11(b) is not an exercise in assigning fault or blame for each step in the process, and that all delay that is not waived falls to be considered in the final assessment of reasonableness.  The Crown says, however, that different degrees of weight will be attached to the delay depending upon to whom or to what it is attributed: R. v. Ghavami , 2010 BCCA 126, at paras. 44, 52-3, 72. [82] The Crown submits that had the Supreme Court Justice properly applied settled law, he would have appreciated that a large portion of the delay in this case was the product of defence applications.  The voir dires , originally scheduled to begin in Provincial Court on March 14, 2006, eventually concluded on June 26, 2008.  Adding this 26.5 months to the four months scheduled for the voir dires in Supreme Court, the Crown says that, of the 62.5 months required to take this case to completion, 30.5 months are attributable to actions of the defence. [83] The Crown cites Morin in support of its position that the challenges to the wiretap authorizations should be classified as actions of the accused rather than as part of the inherent requirements of the case.  Speaking for the majority, Sopinka J. said this about “the actions of the accused” at 793-94: This aspect of the reasons for the delay should not be read as putting the “blame” on the accused for certain portions of delay.  There is no necessity to impute improper motives to the accused in considering this factor.  Included under this heading are all actions taken by the accused which may have caused delay.  In this section I am concerned with actions of the accused which are voluntarily undertaken.  Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc.  I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable. An example of such actions is provided by Conway , supra .  In Conway , the accused made a number of requests which led to the proceedings being delayed.  Those requests included a change of venue motion, changes of solicitor and a request that the accused be allowed to re-elect trial by judge alone.  A further example is provided in Bennett , supra , where the accused made an election at his scheduled Provincial Court trial to be tried in the then District Court.  This converted a scheduled trial into a preliminary inquiry.  While the type of action of the accused in both these cases was unquestionably bona fide , each action contributed to the delay and must therefore be taken into consideration in determining whether the overall delay suffered by the accused was reasonable. [84] I agree with the Crown that, strictly speaking, the voir dires were not part of the inherent requirements of the trial, but rather attributable to “actions of the accused”.  However, in a trial where the Crown’s case is based on evidence obtained from wiretaps, unless a guilty plea is entered, it might be said to be inevitable that the wiretap evidence will be challenged.  The applications in the case at bar were not considered by the trial judge to be frivolous.  When the dust settled, she ruled invalid two of five authorizations before her illness precluded hearing submissions on the sixth.  In my view, the amount of court time taken to complete the voir dires , while attributable to the defence, is not much more than a neutral factor in this case. Actions of the Crown [85] That said, Justice Leask did note that counsel underestimated the time required to complete the voir dires by 2½ months, and that two months of that time should be attributed to the accused and two weeks to the Crown. [86] I agree with Crown counsel that it is erroneous to attribute two weeks of that underestimation to the Crown.  The voir dires were initiated by the defence.  Defence counsel knew who and what they wished to attack on the application.  They were not obliged to disclose their case on the voir dires to the Crown.  Without collaboration, such as an agreed statement of facts or outline of legal argument presented by the defence, the Crown had only the defence to rely upon for an estimation of time. [87] However, to whom the extra time in conducting the voir dires should be attributed is not the Crown’s central point on this appeal.  Eighty-eight days were spent on the voir dires ‒ two months longer than anticipated.  In a period of just over five years, the two week delay wrongly attributed to the Crown is a quibble. Institutional Delay and Limits on Institutional Resources [88] The primary submission of the Crown on these appeals is that 30.5 months of delay should be, but was not, attributed to the defence.  This is the amount of time it would have taken to complete the voir dires, including court time and the length of the intervening adjournments. [89] The Crown submits all of this time can be attributed to the defence because their failure to accurately estimate time required for their applications had a cascading effect on trial scheduling. [90] Relying on the words of Doherty J.A. in R. v. Allen (1996), 110 C.C.C. (3d) 331 (Ont. C.A.) (“ Allen ”) at 348, aff’d [1997] 3 S.C.R. 700, the Crown submits that the length of an adjournment made necessary to find additional court time when initial time estimates prove inaccurate must be included as part of the inherent time requirements of a case.  And, as Doherty J.A. said at 348: ... The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates.  No case is an island to be treated as if it were the only case with a legitimate demand on court resources.  The system cannot revolve around any one case, but must try to accommodate the needs of all cases.  When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources. [91] In Allen , a trial scheduled to complete in four weeks in fact required a further five weeks to finish. The trial did not resume again for six months.  Doherty J.A. found that a 3½-month delay would have been acceptable in the circumstances.  He concluded that, for different reasons, the Crown and defence were responsible for the rest of the delay. [92] There is no question that most of the delays in this case were initiated by the failure of defence counsel to properly estimate the time required for the voir dires .  Once the time initially scheduled for the voir dires had been used up, counsel could have expected delays of several months before obtaining a continuation date owing the number of defence counsel involved and the busy court calendar.  The fact is, however, that these delays were significantly compounded by the paucity of judicial resources. [93] In detailing the procedural history of this case, I have reproduced much of the discussion between the bench and counsel relating to difficulties encountered in scheduling additional court time for the voir dires .  The leading motif running throughout the discussions is not the unavailability of counsel, but rather the inability of the court to find any time, let alone blocks of time beyond two-week segments, to carry on with the trial. [94] Allusions to scarcity of institutional resources emerge early in these proceedings.  As Ms. Devlin noted in her February 28, 2005 letter to counsel, “… the Provincial Court Registry has indicated we are looking at scheduling time in early 2006”, a year into the future.  The next time the record discloses significant problems in finding available court time was on May 10, 2006, when the time scheduled for the voir dires concluded and the Crown suggested that two-to-three more months be scheduled.  The trial judge suggested continuing the trial in parts so that there would be time for all to gather their thoughts. [95] Bearing in mind that time for the trial proper was already scheduled for October and November of 2006, Mr. Rubin mentioned that he was thinking that they might find some time, a week or ten days, in June or July of 2007.  While this seems a strange request at first, the record indicates that Mr. Rubin had written to the judicial case managers and had been told that there were “no appreciable chunks of time until the summer of 2007.”  There were obviously neither “chunks of time” nor any continuous period of time available to finish the voir dires before the scheduled trial dates.  The record also reveals that if the parties had insisted on booking time in the summer of 2006, they would be double or triple-booking the trial judge’s calendar. [96] As a result, the decision was made to use the time scheduled for trial in October and November 2006 for the voir dires , and to find some time in the summer or fall of 2007 to complete the trial.  Mr. Rubin had been told by the judicial case managers that only “chunks of time” were available in the summer of 2007 and not a continuous two-month period of time still thought required to complete the trial. [97] When the case continued in October and November of 2006, time had not been scheduled yet for the trial proper.  On November 15, 2006, counsel dealt again with the issue of a trial date.  The trial judge had earlier sent counsel to the judicial case managers to find time in November 2007, a year away.  On November 16, it became clear that nothing was available until January of 2008, 14 months away. [98] It was then that Crown counsel suggested that “they do something unusual in the Provincial Court”: beginning in January 2008, they sit until finished.  Alternatively, Crown counsel suggested that the court might set “a significant block of time in which we can later assess, and perhaps agree to give up a couple of weeks so that we sit in chunks over the course of six months, perhaps”. [99] Counsel for Mr. Della Penna then made his cryptic remark about moving the trial to Ontario “where they have those special microphones and judicial appointments who can make blocks of time for rulings and all kinds of things”.  While I am not quite sure what counsel meant by that, it appears that he was voicing some concern about the state of judicial resources in the Provincial Court. [100] The voir dires carried on by fits and starts through 2007.  By September of 2007, counsel for the Crown raised with the trial judge the existence of a directive that had been issued by the Chief Judge’s office with respect to lengthy cases, which, in counsel’s words, “are now to continue so that they’re given consideration”.  The trial judge responded, “they’re not able to put it into place, unfortunately”. [101] By January 8, 2008, the date set for trial, the voir dires were still not complete.  At this point, the trial judge raised concerns about the time it was taking to complete the voir dires .  She said she had taken special measures by insisting on being freed up to carry on with this case.  In the course of those discussions, Mr. Rubin mentioned that he had trials booked that would be difficult to adjourn.  Tellingly, however, Crown counsel noted that “the biggest hurdle is simply getting the six week block of time for Your Honour in this courthouse”. [102] When the matter was raised again on January 14, 2008, it was clear that counsel would not be available that summer.  Given the scheduling difficulties already encountered, it seems safe to say that no court time would be available in any event.  Counsel went to visit the judicial case managers and, upon returning, confirmed that they had set down six weeks for trial to begin November 17, 2008, and to continue in two-week segments until January 19, 2009.  Although counsel had earlier been of the view that three more months were required for trial, counsel for Mr. Poloni assured the court that, if the Crown provided them with “the package” of information concerning surveillance evidence, six weeks would be more than enough time. [103] As I mentioned earlier, the trial judge fell ill in September 2008.  Judge Howard had all counsel before her on October 10 to determine the next steps to take in the matter. [104] To sum up, on every occasion when more time was required, the case was adjourned for at least a year before any time to continue it could be found.  While counsel are accountable for inabilities to properly predict the time they would take to complete the trial, I am of the view that Justice Leask was correct in concluding that the delays in this case were largely institutional. [105] Perhaps the most disturbing aspect of this case is that once it was apparent that counsel had underestimated the length of the time required to challenge the wiretap evidence, it was impossible to reschedule the trial so that it could take place continuously.  Instead, the parties staggered through it in bits and pieces. [106] It is true that after it was first determined that more time would be needed for the voir dires , it was the trial judge who suggested that they try it “in parts”, but it quickly became clear that, because of scheduling problems, the trial would have to be conducted in this manner in any event. [107] Even after the trial judge expressed her exasperation in January 2008 with the stunted way in which the trial was proceeding, counsel were only able to obtain six weeks of time starting in November 2008 to carry on in two-week segments until January 2009. [108] The phenomenon of adjourning trials for later continuation is a relatively recent development.  In cases tried before a judge and jury, it was thought necessary to specifically provide for it in the Criminal Code . [1] Charter Charter [109] I have the Crown’s point that, when counsel underestimate the time that they need to pursue their applications, they can hardly expect to have further court time provided to them at their earliest convenience.  Other cases in the system must not be casually pushed aside to instantaneously cure a poor assessment of time.  But nothing like that occurred in the case at bar.  Here, the voir dires were often adjourned for a year or more because of the lack of time available.  Not only were the gaps between the hearings exceptionally long, but once the original time allotted was consumed, the court was usually unable to provide more than a few days at a time for the continuation. [110] It is hardly a sensible use of time to conduct a trial in a piecemeal fashion.  It creates significant problems to have to pick up a voir dire or trial after a year-long break in the proceedings.  The accused person must wait for a year before his or her case resumes.  Counsel must spend time reacquainting themselves with the case and the evidence, adding extra costs for the client.  Witnesses must refresh their memories to the limited extent the passage of time allows.  The trial judge winds up ordering transcripts of the evidence previously taken if he or she is to truly appreciate it.  Time is wasted in court getting back up to speed, as the record in this case clearly demonstrates.  In these circumstances, victims, accused persons, and members of the public are certainly entitled to ask how a trial judge is expected to arrive at a fair conclusion. [111] In November 2008, when the Crown decided to directly indict to the Supreme Court four years after the charges were laid, only 88 days of voir dire hearings had taken place in the Provincial Court.  I cannot say that Justice Leask was wrong in concluding that much of the accumulated and further anticipated delay in this case was attributable to the lack of institutional resources, with the rest owing in large part to neutral causes. The Application of the Test ‒ Was the Overall Delay Unreasonable [112] Mr. Riley has nicely summarized the test the Supreme Court Justice was obliged to apply in the case at bar: 84.       In the final analysis, the question becomes whether the overall delay in a particular case is reasonable, having regard to the length of the delay, the underlying reasons or causes, the prejudice to the accused’s liberty, security, and fair trial interests, and the societal interests at stake.  The reasonableness of the delay is not a function of its length alone, but also its underlying causes, its effects on the accused, and the public interest, which includes the collective interest in seeing cases proceed expeditiously, and the community’s interest in ensuring that alleged transgressions of the criminal law are ultimately determined on their merits [citations omitted].  This balancing of interests is case specific and the factors may be given different weight depending on the circumstances [citations omitted]. [113] The Crown submits that mischaracterization of the reasons for the delay led the Supreme Court Justice to place emphasis on institutional delay where it did not belong.  This portion of its argument must fail.  While I disagree with aspects of the Supreme Court Justice’s characterization of the delay, correction of those aspects of his analysis would make no difference to the outcome of the case.  The central concern of the Supreme Court Justice was institutional delay.  For the reasons I have given, the Supreme Court Justice was right in placing the emphasis that he did upon that delay. [114] In Ghavami , Justices Donald and Huddart said this at para. 52: [52]      In our view, balancing makes sense only if weight is attributed to the causes of delay. Inherent time requirements should receive little if any weight, because they are not attributable to either the state or the accused, and because some delay is inevitable. Actual or inferred prejudice to the accused will be accorded a certain weight, but it may be counter-balanced by delay caused or contributed to by the deliberate actions of the defence. Correspondingly, if the organs of state – Crown, justice system, or judiciary – are responsible for some part of the delay, then the public interest will be entitled to less weight when balanced against the accused’s right to a timely trial, because the protectors of the public interest have failed to live up to the standard expected of them. However, institutional and judicial delays will be accorded less weight than delays actually within the scope of the Crown’s ability to expedite proceedings, because they are not the result of voluntary Crown action.  [Emphasis added.] [115] In the case at bar, the conduct of Crown counsel cannot be faulted.  The Crown did everything in its power to move this case along.  Unfortunately, the record reveals that the Crown too faced a stone wall when it came to finding time to continue the proceedings.  While the Crown should not be faulted, the delays in this case caused by the scarcity of institutional resources were significant nonetheless and properly weighted by the Supreme Court Justice. [116] The Crown also submits that the Supreme Court Justice mistakenly focussed on the stress Mr. Horner suffered caused by the fact of the charges being laid rather than the fact that the trial was prolonged.  I do not need to address this issue.  It was open to the Supreme Court Justice to attribute the prejudice suffered by Mr. Horner to the prolonged nature of this trial rather than simply to the inevitable stress likely to be suffered by any person charged in similar circumstances. [117] The Crown also says that the Supreme Court Justice did not give sufficient weight to the seriousness of the offence in determining whether to stay the charges.  In my view, the reasons for judgment demonstrate that the Supreme Court Justice fully understood the nature of the offence with which Mr. Horner was charged.  As I read the reasons for judgment, the other factors weighed heavier in the balance. Conclusion [118] In Morin, Sopinka J. began his reasons for judgment with this observation (779): The issue in this appeal concerns the right of an accused to be tried within a reasonable time.  This right is enshrined in s. 11( b ) of the Canadian Charter of Rights and Freedoms which states: 11.       Any person charged with an offence has the right ... (b)        to be tried within a reasonable time; Though beguiling in its simplicity, this language has presented the Court with one of its most difficult challenges in search of an interpretation that respects the right of the individual in an era in which the administration of justice is faced both with dwindling resources and a burgeoning caseload. [Emphasis added.] [119] I am mindful of the struggle the Chief Judge of the Provincial Court has described in his effort to stretch dwindling resources in the face of an increasing workload (see Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources , September 14, 2010 and the updates of September 30 and December 31, 2011). [2] [120] Unlike the Supreme Court of Canada in Morin , this Court has not been provided with any statistics or information concerning the chronic delays which, as demonstrated by the discussions between the trial judge and counsel on the record, are obviously occurring in the Provincial Court.  Since we know nothing of the administrative context, we do not know, and cannot comment upon, what damage would have ensued had the trial judge untethered herself from the judicial case managers, assumed control of her calendar, set down a continuation for a fixed number of continuous days, and pressed this case to a conclusion. [121] Before concluding, I note that I have not overlooked the reality that many accused persons are only too happy to accept delays of their trials.  As observed by Cory J. in R. v. Askov , [1990] 2 S.C.R. 1199, at 1222 (quoting from the remarks of Doherty J.A.): Many accused do not want to be tried at all, and many embrace any opportunity to delay judgment day.  This reluctance to go to trial is no doubt a very human reaction to judgment days of any sort; as well as a reflection of the fact that in many cases delay inures to the benefit of the accused.  An accused is often not interested in exercising the right bestowed on him by s. 11( b ).  His interest lies in having the right infringed by the prosecution so that he can escape a trial on the merits.  This view may seem harsh but experience supports its validity. This unique attitude on the part of accused toward this right often puts a court in a position where it perceives itself as being asked to dismiss a charge, not because the accused was denied something which he wanted, and which could have assisted him, but rather, because he got exactly what he wanted, or at least was happy to have ‒ delay.  A dismissal of the charge, the only remedy available when s. 11( b ) is found to have been violated, sticks in the judicial craw when everyone in the courtroom knows that the last thing the accused wanted was a speedy trial.  It hardly enhances the reputation of the administration of justice when an accused escapes a trial on the merits, not because he was wronged in any real sense, but rather because he successfully played the waiting game. [122] The Crown did not suggest on this appeal, nor did the record support, that the delays in the case at bar were accepted by the respondent or encouraged by him to gain advantage.  This may be the finding in other cases, but it was not so in the case at bar. [123] In the end, in balancing the full 62.5-month length of the delay, the reasons for it, and the ensuing prejudice to the respondent, along with the seriousness of the offence and the public interest in seeing the charges dealt with accordingly, I cannot say that the Supreme Court Justice erred in law in staying the charges against Mr. Horner for breach of his right to be tried within a reasonable time.  In the words of Justices Donald and Huddart at para. 52 of Ghavami, “the protectors of the public interest have failed to live up to the standard expected of them”. [124] I would dismiss the appeal. “The Honourable Madam Justice Ryan” I Agree: “The Honourable Madam Justice Saunders” I Agree: “The Honourable Mr. Justice Lowry” [1] Code (1) The trial of an accused shall proceed continuously subject to adjournment by the court. (2) The judge may adjourn the trial from time to time in the same sittings. [2] http://www.provincialcourt.bc.ca/reportsofthecourt/index.html

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Poloni, 2012 BCCA 8 Date: 20120110 Docket: CA037250 Between: Regina Appellant And Robert Luigi Poloni Respondent Corrected Judgment: the reference at paragraph 12 has been corrected to read “in Horner at para. 84.” Before: The Honourable Madam Justice Ryan The Honourable Madam Justice Saunders The Honourable Mr. Justice Lowry On Appeal from the Supreme Court of British Columbia, July 2, 2009 ( R. v. Poloni , 2009 BCSC 882, Vancouver Registry, Docket 2476301) Counsel for the Appellant: W.P. Riley Counsel for the Respondent: H. Rubin, Q.C. Counsel for the Intervenor, Attorney General of British Columbia M.J. Dewitt-Van Oosten Place and Date of Hearing: Vancouver, British Columbia November 9 & 10, 2010 Place and Date of Judgment: Vancouver, British Columbia January 10, 2012 Written Reasons by: The Honourable Madam Justice Ryan Concurred in by: The Honourable Madam Justice Saunders The Honourable Mr. Justice Lowry Reasons for Judgment of the Honourable Madam Justice Ryan: [1] These reasons are released concurrently with R. v. Horner , 2012 BCCA 7, as both cases arise from the same facts and raise the same issues.  In both cases, the Crown has appealed stays of proceedings entered by Mr. Justice Leask following his finding a breach of Mr. Horner’s and Mr. Poloni’s right to be tried within a reasonable time pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”). The overriding concern of the Supreme Court Justice was delay caused by the lack of institutional resources.  Since Mr. Horner and Mr. Poloni were co-accused on the same information, the delay they experienced is largely the same.  My reasons in Horner explain the overlapping facts and procedural history of these cases. [2] Mr. Poloni resisted the Crown appeal taking issue directly with its grounds of appeal.  In defending the stay of proceedings he also argued that proceedings should have been stayed in any event as the Crown did not have the power to directly indict him while his trial was continuing in the Provincial Court.  Because I have reached the conclusion that the Crown’s appeal must fail, it is unnecessary for me to deal with Mr. Poloni’s argument, which was rejected by the Supreme Court Justice, as to the validity of the direct indictment. [3] The Charter remedy of a stay of proceedings is individually tailored to each accused.  I have already dealt with the Crown appeal in Mr. Horner’s case.  His case differs in some respects from that of Mr. Poloni.  What follows is a short discussion of the particular facts pertaining to Mr. Poloni’s case and my reasons for concluding that the Crown’s appeal in his case should also be dismissed. [4] Mr. Poloni was charged along with James Horner, Robert Della Penna, Robert Muoio and James Micklewright as follows: Count 2: Between the 1 st of June, 2004 and the 30 th of September, 2004 at or near the cities of Burnaby and Vancouver, British Columbia and elsewhere in the Province of British Columbia and in Toronto, Ontario and elsewhere in the Province of Ontario did unlawfully conspire together, the one with the other or others of them and with Casey WELLS, Liaqat KHAN, Amaran TYAB, Clint FARRELL, Ernest POLONI, Micro PASTRO and Robert FRIEDMAN and with a person or with persons unknown, to commit the indictable offence of trafficking in a controlled substance, to wit: Cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act and did thereby commit an offence contrary to section 465(1) of the Criminal Code of Canada . [5] I have set out the Crown’s allegations against Mr. Poloni in my reasons for judgment in Horner and will not repeat them here. [6] Mr. Poloni was arrested on October 15, 2004.  He was released on bail on November 2, 2004 on a recognizance in the amount of $250,000 with two sureties and with conditions similar to those of Mr. Horner. [7] His trial proceeded along with Mr. Horner and the other accused persons in Provincial Court, culminating in his direct indictment to the Supreme Court in November of 2008. [8] While Mr. Horner’s case was stayed by Justice Leask on April 23, 2009, Mr. Poloni did not make his application for a stay until May 22, 2009.  Justice Leask stayed the proceedings against Mr. Poloni on June 9, 2009 and delivered written reasons for so doing on July 2, 2009. [9] The reasons for judgment that Justice Leask delivered in R. v. Horner provided the template for his reasons in Mr. Poloni’s case with some differences. [10] The first difference is that the Supreme Court Justice concluded that Mr. Poloni had not waived any delay that occurred in this case.  On the contrary, he found that Mr. Poloni’s counsel, Mr. Rubin, was actively engaged throughout the years in efforts to expedite the proceedings.  Crown counsel does not dispute that finding on this appeal. [11] Nor did the Supreme Court Justice attribute much of the other delay in the case to Mr. Poloni.  As set out in my reasons in Horner , one police officer was central to obtaining the entire wiretap authorizations in this case.  Rather than cross-examine him globally on all of the wiretap authorizations, the voir dires proceeded on a step-by-step basis, which required an examination and a ruling on each wiretap in chronological order.  There was a reason for this.  A ruling on one wiretap could affect submissions and rulings on subsequent wiretaps.  Nonetheless, counsel for Mr. Poloni disagreed with this method (proposed by the Crown and endorsed by counsel for Mr. Della Penna).  In dealing with the position of Mr. Poloni at trial, Justice Leask said this at para. 13 of his reasons in Poloni : [13]      Furthermore, counsel for Mr. Della Penna, counsel for the accused other than Mr. Poloni, and counsel for the Crown all opted for a step-by-step procedure which entailed several separate voir dires proceeding one application after another, interspersed with applications for disclosure and for cross-examination of wire tap affiants.  I find that it was this procedure that caused the 2½ months of delay during the voir dire stage of the proceedings.  Counsel for Mr. Poloni repeatedly opposed this procedure and argued on numerous occasions that an alternative procedure involving a single voir dire that dealt with the applications altogether would be a more efficient way to proceed.  The trial judge acceded to the desires of the majority despite Mr. Poloni’s counsel’s objections that his client was suffering serious prejudice as a result of the trial delays caused by the step-by step procedure, and his complaints that Mr. Poloni’s s. 11(b) rights were at issue. [12] Thus, the Supreme Court Justice concluded that the delay caused by the procedure adopted was not attributable to Mr. Poloni.  I agree with that conclusion.  The Crown argues that, although Mr. Poloni’s counsel objected to the procedure the Court adopted in determining the validity of the authorizations, he did take an active role in attacking their substance.  I agree that the Supreme Court Justice should have characterized Mr. Poloni’s challenges to the wiretap authorizations as “actions of the accused” under the Morin test. That said, this re-characterization makes little difference to the analysis for the reasons I gave in Horner at para. 84. [13] Justice Leask characterized the other periods of delay in the same way he characterized them in his reasons in Horner .  As mentioned in my reasons in Horner, I am of the view he erred in attributing any delay to the actions of Crown counsel. [14] In the end, I am of the view that the Supreme Court Justice did not err in concluding that the delay in this case was largely due to the scarcity of institutional resources.  As in Horner , the decision on this appeal turns on that finding. [15] The question then, is whether the trial judge erred in balancing all of the factors in deciding whether to stay proceedings against Mr. Poloni.  In considering the case for Mr. Poloni, the Supreme Court Justice recognized that the charges against Mr. Poloni were more serious than those against Mr. Horner.  Mr. Poloni was alleged to be a seller of 20 kg of cocaine, as opposed to Mr. Horner who was said to be a courier. [16] Considering the length of time that passed, the Supreme Court Justice concluded that he was compelled to infer prejudice, but went on to note the specific instances of hardship to Mr. Poloni.  This included loss of income, loss of employment, his inability to find work, deterioration of personal relationships, anxiety, and depression.  The Supreme Court Justice concluded that these problems ensued from the delay in the case rather than from the fact of being charged itself.  I cannot say that these findings are unreasonable.  Nor can I say that the Supreme Court Justice erred in balancing the factors he was obliged to consider. [17] For these reasons, and for the reasons I have set out in Horner insofar as they are applicable to this case, I would dismiss the appeal. “The Honourable Madam Justice Ryan” I Agree: “The Honourable Madam Justice Saunders” I Agree: “The Honourable Mr. Justice Lowry”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Duarte v. British Columbia (Attorney General), 2012 BCCA 6 Date: 20120111 Docket: CA039471 Between: Captain E.G. da Costa Duarte and Sailmaster Glenn Lusk Proposed Appellants And Attorney General of British Columbia, Prothonotary Roger R. Lafreniere (Federal Court of Canada), Campbell River Harbour Authority (CRHA), The Board of Directors of the CRHA, Coast Bailiff & Collections, Shelley Chapelski and Phyllis Titus Respondents Before: The Honourable Mr. Justice Hall (In Chambers) On appeal from:  Supreme Court of British Columbia, October 17, 2011 ( Duarte v. British Columbia (Attorney General) , Campbell River Registry 37556) The Proposed Appellants appeared via telephone Counsel for the Respondent Attorney General: P. Juk, Q.C. Counsel for the Respondent R. Lafreniere appeared via telephone R. McLarty Place and Date of Hearing: Victoria, British Columbia December 6, 2011 Place and Date of Judgment: Vancouver, British Columbia January 11, 2012 Reasons for Judgment of the Honourable Mr. Justice Hall: [1] In this case the proposed appellant, Captain Duarte, swore an information on December 15, 2010 alleging unlawful conduct by a number of individuals associated with the Campbell River Harbour Authority.  This procedure in common parlance is often denoted a private information or prosecution.  This makes applicable the provisions of the Criminal Code , R.S.C. 1985, c. C-46, ss. 504 and 507.1.  Section 504 provides that a justice “shall receive the information” from an informant. [2] The issue then arises whether or not process should issue to compel the attendance of a party alleged to have committed an offence.  This question is addressed by certain provisions of s. 507.1: 507.1 (1)  A justice who receives an information laid under section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to consider whether to compel the appearance of the accused on the information. (2)  A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information. (3)  The judge or designated justice may issue a summons or warrant only if he or she (a)  has heard and considered the allegations of the informant and the evidence of witnesses; (b)  is satisfied that the Attorney General has received a copy of the information; (c)  is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and (d)  has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing. (4)  The Attorney General may appear at the hearing held under paragraph (3)(a) without being deemed to intervene in the proceeding. ... (10)  In this section, “designated justice” means a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter or, in Quebec, a justice designated by the chief judge of the Court of Quebec. [3] I think it could fairly be observed that the object and purpose of the stipulated 507.1 process is to filter out proceedings where there may be justifiable dubiety about the substance of allegations.  In the present case, it appears that Captain Duarte considered that there was unwarranted delay by Provincial Court officials in scheduling the requisite hearing.  Because of this, he sought on September 14, 2011 to invoke the assistance of the Supreme Court of British Columbia. Inter alia , Captain Duarte sought orders in the nature of Certiorari or Mandamus requiring the Supreme Court to perform the functions mentioned in s. 507.1.  As can be seen from the above quoted portions of s. 507.1, these functions are in all provinces, save Quebec, to be exercised by a Provincial Court judge.  It appears that in addition to the above noted relief being sought in Supreme Court, Captain Duarte was also seeking an order that the Supreme Court assume jurisdiction over a Federal Court proceeding.  On September 20, 2011, Captain Duarte and Sailmaster Glenn Lusk filed a petition in Supreme Court seeking orders of the same general nature as sought in the original filings in Supreme Court and additionally, advanced a claim for financial restitution. [4] On October 17, 2011, after a hearing in Supreme Court, Romilly J. made the following order: THIS COURT ORDERS THAT the Supreme Court of British Columbia declines jurisdiction on these matters until there has been an adjudication under s. 507.1 of the Criminal Code in respect of information No. 37556 (Notice of Appeal, para. 7 p. 3) [emphasis added]. [5] By a filing in this Court on November 9, Captain Duarte and Sailmaster Lusk sought to appeal from the order of Romilly J.  On December 6, 2011, I heard an application brought on behalf of the Attorney General of British Columbia seeking dismissal of the proposed proceeding in this Court.  At this proceeding, I heard submissions from Mr. Juk, counsel for the Attorney General, from Captain Duarte, and Sailmaster Lusk (present by telephone) and from Mr. McLarty, counsel for Prothonotary Lafreniere of the Federal Court (also present by telephone). [6] I consider that the order sought to be appealed is correctly characterized by Mr. Juk as an interlocutory order made by a Supreme Court judge.  Such an order requires the granting of leave by a justice of this Court before any appeal may proceed.  The submission by counsel for the Attorney General that this Court, a court of statutory jurisdiction, is without jurisdiction to hear the proposed appeal is probably correct.  Appeals of interlocutory rulings in criminal proceedings are not normally available.  However, more fundamentally, I cannot envision that a division of this Court could or would grant any relief on the proposed appeal from the interlocutory decision of Romilly J.  Therefore this is not a case in which leave to appeal ought to be granted to the proposed appellants and I therefore decline to make an order granting leave to appeal. [7] Before leaving the case, I observe that it is to be hoped that this matter can be addressed (as provided for in the Code ) before the Provincial Court in a timely fashion.  Perhaps Mr. Juk can take such steps as he may consider useful to see that there is no undue delay in having this matter addressed in the proper forum. “The Honourable Mr. Justice Hall”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Grape Expectations Wine Emporium Inc. v. Haslam, 2012 BCCA 14 Date: 20120112 Docket: CA038068 Between: Grape Expectations Wine Emporium Inc. Appellant (Plaintiff) And Keith Haslam, doing business as Keith Haslam Associates Respondent (Defendant) Before: The Honourable Mr. Justice Hall The Honourable Madam Justice Saunders The Honourable Mr. Justice Chiasson On appeal from:  Supreme Court of British Columbia, April 1, 2010 ( Grape Expectations Wine Emporium Inc. v. Baker Jr. , 2010 BCSC 452 Courtenay Docket No. 07174) Counsel for the Appellant: E. Chesterley Counsel for the Respondent: M. Burger Place and Date of Hearing: Victoria, British Columbia December 7, 2011 Place and Date of Judgment: Vancouver, British Columbia January 12, 2012 Written Reasons by: The Honourable Mr. Justice Chiasson Concurred in by: The Honourable Mr. Justice Hall The Honourable Madam Justice Saunders Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] This appeal and appeal CA038188 arise out of the purchase by the appellant of a restaurant business in Courtenay, British Columbia.  The appellant alleged negligent misrepresentation and breach of contract against Mr. Baker personally and as executor of the estate of his mother and negligent misrepresentation against the business’s bookkeeper, the respondent Keith Haslam.  This appeal is from the judge’s dismissal of the claim against the respondent on a no-evidence motion.  The latter appeal is from the judge’s decision after the trial of the action against Mr. Baker. Background [2] The details of the transaction are set out in my decision in appeal CA038188 and I shall not repeat them here. [3] The claim against the respondent, as stated in the appellant’s statement of claim, was that Mr. Haslam knew that the 2004 financial statements he prepared would be used by the vendor of the restaurant business and relied on by prospective purchasers.  More specifically, the appellant claims that its representative, Mr. Tingley, relied on the 2004 financial statements in deciding to purchase the business. [4] Of significance on this appeal are findings of fact made by the trial judge in the action against Mr. Baker ( Grape Expectations Wine Emporium Inc. v. Baker Jr. , 2010 BCSC 658).  At para. 68 he stated, “I find that the [appellant] has failed to prove that Mr. Tingley relied on these statements ... to any significant extent in removing the ‘subject to’ conditions”. Discussion [5] The appellant contended before us that the judge erred in granting the no evidence motion.  I find it unnecessary to address this submission or to comment on the judge’s reasons because, in my view, the judge’s finding in para. 68 is dispositive of this appeal. [6] In Skender v. Farley , 2007 BCCA 629, 289 D.L.R. (4th) 111, real estate was registered to a son and his mother as tenants-in-common.  The son’s parents took the position that the registration did not reflect the real situation and that their son was entitled to a one-fifth interest only.  The son brought an action against his parents for a declaration that he was entitled to a one-half interest in the real estate.  The trial judge held that the registration reflected the legal and beneficial interests of the son and his mother.  The parents then sued Mr. Farley, the notary public who had handled the transaction, alleging that his registration of the property did not reflect the true interests of the parties.  At para. 32, I had this to say: In my view, insofar as the Skenders pursue Mr. Farley for failing to follow their instructions, this action is an abuse of process. The core issue before Dorgan J. was whether the property, as registered, reflected the true interests of Nada and Leon Skender. She found that it did. In para. 26 the chambers judge said, "[t]o succeed the plaintiffs in this action are going to have to persuade a trier of fact to come to different conclusions on essential points". It would be a misuse of the court’s procedures, would impinge upon the integrity of judicial decision making and would hold the administration of justice in disrepute if, in this action, the Skenders were allowed to seek a conclusion contrary to the findings of Dorgan J. as inevitably they must to succeed. I see no difference in principle between this case and Skender . [7] If the appellant were to succeed in setting aside the dismissal on the no-evidence motion, he would have to proceed with the litigation against Mr. Haslam on the basis that the appellant relied on the 2004 financial statements when deciding to remove the “subject-to” conditions, that is, when finally making the agreement to purchase the business.  This would require the Court to make a finding directly contrary to the finding of the trial judge in the appellant’s action against Mr. Baker.  To pursue such a path would be an abuse of process.  The dismissal on the no-evidence motion is moot. [8] The appellant argues that Mr. Haslam continued to provide financial information after the agreement was made and that this constitutes an affirmation of his misrepresentations.  The respondent disputes this, but, in any event, I do not see how this could obviate the finding of pre-contractual non-reliance. Conclusion [9] As noted, it is not necessary for me to review the reasons of the trial judge for granting the no-evidence motion.  It should not be taken by this that I necessarily agree with all aspects of the judge’s reasons. [10] I would dismiss this appeal. “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Mr. Justice Hall” I agree: “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Smeltzer v. Merrison, 2012 BCCA 13 Date: 20120112 Docket: CA038695 Between: Kelly Smeltzer Appellant (Plaintiff) And Krystal Merrison, Jim Pattison Industries Ltd. doing business as Jim Pattison Lease and Craftsman Collision (1981) Ltd. Respondents (Defendants) Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Frankel The Honourable Madam Justice Neilson On appeal from: Supreme Court of British Columbia, December 3, 2010 ( Smeltzer v. Merrison , Vancouver Docket M095170) Counsel for the Appellant: R. N. McFee, Q.C. Counsel for the Respondents: J. D. James Place and Date of Hearing: Vancouver, British Columbia December 8, 2011 Place and Date of Judgment: Vancouver, British Columbia January 12, 2012 Written Reasons by: The Honourable Mr. Justice Lowry Concurred in by: The Honourable Mr. Justice Frankel The Honourable Madam Justice Neilson Reasons for Judgment of the Honourable Mr. Justice Lowry: [1] Kelly Smeltzer was injured when the vehicles she and Krystal Merrison were driving collided.  Her action for damages was tried before Mr. Justice Stewart.  It was dismissed.  For reasons given orally, the judge found Ms. Smeltzer was solely at fault; she had not discharged her onus of proving that negligence attributable to Ms. Merrison caused the accident.  Ms. Smeltzer appeals, contending the judge erred.  She says Ms. Merrison was solely at fault. The Accident [2] On November 16, 2007, Ms. Smeltzer turned south onto a two-lane road at an intersection.  The road was divided by a solid yellow line.  She travelled only 135 feet and then stopped to turn left, across the northbound lane, into a parkade.  The driver of a truck proceeding north stopped and motioned to her to make her turn in front of him.  There was then a gap between the truck and vehicles backed up from the intersection ahead of it.  Ms. Merrison was travelling north following two or three cars that were behind the truck.  Starting about 200 feet from the intersection, the northbound lane widened (narrowing the southbound lane) to ultimately accommodate a second northbound lane, marked with a white line about 95 feet in length, for vehicles turning right at the intersection.  Cars were parked along the east side of the road.  Ms. Merrison was travelling at about the posted speed limit (50 kph) and slowed.  She intended to turn right at the intersection so she proceeded to pass the stopped cars and the truck ahead of her on their right, and the parked cars on her right, to enter the marked turning lane.  Ms. Merrison would have travelled no more than 100 feet before reaching the beginning of the white line marking the right-turn lane, which was about 35 feet beyond the truck.  Ms. Smeltzer proceeded with her turn past the front of the truck.  Neither she nor Ms. Merrison saw each other before they collided. The Judgment [3] The submissions before the judge focused on ss. 158 and 166 of the Motor Vehicle Act , R.S.B.C. 1996, c. 318.  They provide: 158 (1) The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except (a)  when the vehicle overtaken is making a left turn or its driver has signalled his or her intention to make a left turn, (b)  when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive, or (c)  on a one way street or a highway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and is of sufficient width for 2 or more lanes of moving vehicles. (2)      Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right (a)  when the movement cannot be made safely, or (b)  by driving the vehicle off the roadway. * * * 119      ... “laned roadway” means a roadway or the part of a roadway that is divided into 2 or more marked lanes for the movement of vehicular traffic in the same direction; * * * 166      A driver of a vehicle must not turn the vehicle to the left from a highway at a place other than an intersection unless (a)  the driver causes the vehicle to approach the place on the portion of the right hand side of the roadway that is nearest the marked centre line, or if there is no marked centre line, then as far as practicable in the portion of the right half of the roadway that is nearest the centre line, (b)  the vehicle is in the position on the highway required by paragraph (a), and (c)  the driver has ascertained that the movement can be made in safety, having regard to the nature, condition and use of the highway and the traffic that actually is at the time or might reasonably be expected to be on the highway. [4] The judge began by saying: [7]        Counsel’s submissions focused to such an extent on whether the plaintiff or the defendant or both were in violation of a provision contained in the Motor Vehicle Act that I make it clear that I am alive to the fact that the breaching of a statutory duty is not proof of negligence and that the statutory duties imposed on these drivers – and any breaching of them – can be taken into account in setting the standard of care or as evidence of negligence, nothing more: The Queen (Can.) v. Saskatchewan Wheat Pool , [1983] 1 S.C.R. 205; and Jordison v. Graham , 1999 BCCA 245 at paragraph 14. [8]        I make it clear that I have not lost sight of the Motor Vehicle Act sections brought to my attention by counsel.  But because – as will become clear – I am dealing with a de facto lane of travel and not a “laned roadway” within the meaning of the Act, it is only some of the sections that are of interest. [5] Citing this Court’s decision in MacLaren v. Kucharek , 2010 BCCA 206 at para. 20, the judge found that at some point south of the commencement of the white line marking the right-turn lane for the intersection, the road “must become a de facto two-lane road for northbound traffic”.  He then found a reasonable northbound driver would begin to treat the road as having two such lanes several car lengths south of where the collision occurred and found Ms. Merrison was in “the de facto right lane” proceeding north because she intended to turn right at the intersection. [6] The judge found Ms. Smeltzer executed her left turn as a reasonably prudent driver would except that she did not comply with s. 166 of the Act .  Having regard for the configuration and width of the road, she was negligent because, having passed in front of the truck, she did not stop to verify it was safe to proceed and, in particular, that the de facto lane was free of northbound vehicles.  The judge found that it was her negligence that caused the collision. [7] The judge said Ms. Merrison was the dominant driver; she had the right of way.  He appears to have said s. 158 was not directly relevant.  He said further there was no doubt Ms. Merrison passed the vehicles to her left “without taking reasonable steps to assure herself that the gap she ought reasonably to have seen to her left was not present because a car was turning left”.  But he said that does not mean Ms. Merrison “should have become aware that the driver of a left turning vehicle was in fact failing to give way to northbound traffic in the de facto lane; and [that Ms. Merrison] had sufficient opportunity to avoid the accident”.  He then found Ms. Merrison “could not have avoided the collision” short of slowing to a crawl or stopping before passing the truck, which was not a duty the law imposes.  He concluded it had not been established that Ms. Merrison was negligent.  I take him to have meant negligent in a manner that caused the two vehicles to collide. The Parties’ Positions [8] Ms. Smeltzer contends the judge erred in law in failing to have proper regard for s. 158 of the Act , which she says prohibited Ms. Merrison from passing the truck and the cars behind it on the right.  She maintains the failure to respect the prohibition would lead to unpredictability and potential chaos on the roads, citing R. v. Dickson , 2003 BCSC 437, 36 M.V.R. (4th) 235 at paras. 9-11 and 13.  Ms. Smeltzer maintains the judge’s references to the existence of a de facto lane in which Ms. Merrison was said to be travelling in passing the cars on her right, and his apparent reliance on MacLaren in that regard, were misplaced.  The Act makes no provision for such and it does not justify the way in which Ms. Merrison proceeded.  Ms. Smeltzer says it was Ms. Merrison’s breach of the Act , coupled with her failure to maintain a proper lookout ahead and to her left, that were the cause of the collision.  Had she not passed on the right in contravention of the Act , Ms. Smeltzer’s left turn would have been safely made.  Ms. Smeltzer says further she can in no way be faulted for not having seen Ms. Merrison’s car approaching because she was entitled to assume other drivers, like Ms. Merrison, would adhere to the rules of the road and not pass on the right, citing Salaam v. Abramovic , 2010 BCCA 212, 4 B.C.L.R. (5th) 117 at para 25. [9] Finally, and in any event, Ms. Smeltzer says, even if Ms. Merrison was in the circumstances entitled to pass on the right, by failing to keep a proper lookout, she exercised her right of way in a manner that resulted in a collision that, by keeping a proper lookout, she could reasonably have avoided, and accordingly bears some if not all of the fault for what happened, citing Walker v. Brownlee , [1952] 2 D.L.R. 450 (S.C.C.) at 460-61. [10] Ms. Merrison maintains s. 158(1)(b) permits one vehicle to pass another on the right when it is travelling in an unobstructed lane, citing Kerslake v. Kim , 2008 BCCA 220, and Dickson , supra , at paras. 8-11.  She says the judge made no error in finding she was travelling in a de facto lane such that she was permitted to pass the cars she did on the right.  Relying on MacLaren , which recognized the existence of de facto lanes in what are said to be essentially the same circumstances in material respects, Ms. Merrison contends the distance from where the northbound lane widened to the beginning of the white line marking the turning lane (about 100 feet) was a de facto lane.  It is, she says, essential that it be recognized as such.  A right-turning northbound vehicle is prohibited from crossing the white line marking the right-turn lane, citing Stulec v. Johnson , 2000 BCSC 584, 3 M.V.R. (4th) 295.  Hence, a right-turning vehicle must be aligned with the right-turn lane some distance before reaching it.  Of necessity, such a vehicle must travel some distance in what is an unmarked de facto lane leading to where the white line marking the right-turn lane begins.  It must then be accepted there may be vehicles travelling side-by-side in de facto lanes.  This is especially the case where, as here, traffic may be backed up in one of the lanes.  The length of a de facto lane becomes a question of fact in any given circumstance. [11] Ms. Merrison then contends the judge made no error in finding Ms. Smeltzer was solely at fault.  She was turning across a solid yellow line to leave the road as permitted by s. 166 but failed to ascertain her left turn could be executed safely and without unreasonably affecting the travel of another vehicle.  Ms. Merrison relies, by analogy, on the decisions of this Court in Pacheco (Guardian ad litem) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.), and Dhah v. Harris , 2010 BCSC 172, with respect to left-turning drivers at intersections having to give way to vehicles having the right of way, as she maintains she had.  Further, relying on Haase v. Pedro (1970), 21 B.C.L.R. (2d) 273, Ms. Merrison says Ms. Smeltzer did not discharge the onus she bore of proving Ms. Merrison could, by the exercise of reasonable care, have avoided the accident such that the judge’s determination in that regard cannot now be disturbed. [12] The primary question on which the appeal turns is the extent to which s. 158 of the Act applies. D id it prohibit Ms. Merrison from proceeding to pass on the right as she did and, if so, did her breach of the statute cause the collision? Discussion [13] Dickson , an appeal of a cyclist’s conviction for passing on the right, contains the most complete discussion of s. 158 to which we are referred.  I would respectively endorse what was said there.  Section 158(1) prohibits one vehicle passing another on the right: “The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle...”  There are only three exceptions.  Essentially, passing on the right is permitted when the overtaken vehicle is turning left, when passing on a laned roadway, or when passing on a one-way street where room permits.  A “laned roadway” is defined.  It means a road that is divided into two or more marked lanes for vehicles proceeding in the same direction.  The exceptions are qualified by subsection (2) which prohibits any passing on the right when it cannot be done safely or by driving off the road. [14] Despite the recognition of a de facto lane in MacLaren , I do not consider the concept can afford any further exception to the three for which s. 158(1) provides.  In MacLaren , a cyclist was injured at an intersection which he entered passing on the right of vehicles where there was what was said to be a de facto lane to his right, being a widened part of the road that accommodated vehicles turning right, but was not marked.  He was faulted for riding between two lanes instead of positioning himself between the vehicles he passed on the right.  It was specifically said (at para. 28) that no determination was being made with respect to whether s. 158 permitted the cyclist to pass on the right. [15] I am unable to accept that s. 158(1)(b) permitted Ms. Merrison to pass two or three cars and the truck on the right as she contends.  The exception is confined to passing on the right where there are two marked lanes for vehicles proceeding in the same direction and only then when passing can be undertaken in safety.  Here, there was only one such lane regardless of whether there was what might be called a second de facto lane.  I recognize this means drivers proceeding to turn right at the intersection, as Ms. Merrison was, could not align their vehicles to enter the 100-foot marked lane until it was virtually reached, if there were vehicles ahead in the “through” lane that were not turning left, but that is what the Act provides and it appears to me to be with good reason.  If it were otherwise, drivers would be entitled to pass on the right wherever the road is sufficiently wide for two vehicles to pass.  Drivers do not expect to be passed on the right when they are not travelling on a road with more than one designated lane.  They generally expect to be able to turn off of the road to their right, whether into intersecting streets or driveways, or to pull over to the side of the road or off the road altogether without being obstructed by vehicles passing to their right. [16] As quoted from his reasons, the judge said that, while he had not lost sight of the provisions of the Act , he was concerned with a de facto lane of travel, not a “laned roadway” within the meaning of the Act such that only some of the sections were of interest.  I am unable to accept he was correct in law to consider Ms. Merrison passing on the right was not prohibited by s. 158, as it appears he did, on that basis.  As the judge said, she was not travelling in a “laned roadway” within the meaning of the Act : s. 158(1)(b) did not apply.  If she entered a de facto lane, meaning the road became wide enough to permit her to pass the cars and the truck ahead of her on the right, she was, in the circumstances, prohibited from passing them.  She was required not to pass the vehicles in front of her until she entered the marked right-turn lane. [17] I consider Ms. Merrison was negligent in passing the three cars and the truck on the right in contravention of s. 158.  She was negligent because it was reasonably foreseeable that passing on the right, in contravention of a statutory prohibition, could be dangerous to other motorists on the road.  Her negligence was, on what the judge said, compounded by her failure to proceed cautiously while maintaining a proper lookout.  Had Ms. Merrison not proceeded to pass on the right as she did, the collision would not have occurred.  It follows that her negligence was a cause of the accident and the injury Ms. Smeltzer suffered. [18] It remains to consider how the legal error identified alters the judge’s conclusion that Ms. Smeltzer was herself negligent such as to cause the injury she suffered.  The judge’s finding in that regard was premised on Ms. Merrison having been entitled to proceed to pass on the right as she did in approaching the point where the collision occurred.  Given she was prohibited from proceeding in that way, the question becomes whether Ms. Smeltzer can still be faulted for what happened and, if so, to what extent. [19] In Salaam , this Court found a defendant driver who had the right of way at an intersection negligent for having failed to take the steps it was said a reasonable driver would have taken in the circumstances to avoid a collision once it became apparent the plaintiff, who bore the greater proportion of fault, was not yielding as required.  In reviewing the governing authorities and drawing in particular on what is often cited from Walker v. Brownlee , supra , Cartwright and Locke JJ. concurring at 460-461, the following was said: [25]  A driver like the defendant, who is in a dominant position, will not typically be found to be liable for an accident. Drivers are generally entitled to assume that others will obey the rules of the road. Further, though defensive driving and courteous operation of motor vehicles are to be encouraged, they do not necessarily represent the standard of care for the purposes of a negligence action. A driver will not be held to have breached the standard of care simply because he or she failed to take extraordinary steps to avoid an accident or to show exceptional proficiency in the operation of a motor vehicle. [20] While that general principle may apply where the driver of a vehicle fails to give way to another which has the right of way in circumstances where each driver was or ought to have been aware of the other’s vehicle, I do not consider it serves to relieve a driver in Ms. Smeltzer’s position from complying with the provisions of the Act as is now contended.  Section 166(c) required her to ascertain whether her left turn across the northbound lane could be made safely.  It could not.  Had she done what was required of her, the collision would not have occurred. [21] This is not a case where it is suggested Ms. Smeltzer was required to take exceptional steps to avoid an accident or show exceptional proficiency.  She was turning left, other than at an intersection, over a solid yellow line to leave the road.  Her doing so was governed by s. 166(c).  She was not to turn without making certain it was safe to do so having regard for the nature, condition and use of the road and the traffic that actually was or might reasonably be expected to be on the road. [22] Ms. Smeltzer may not have expected a vehicle would proceed toward the right-turn lane as Ms. Merrison did.  However, given the width and configuration of the road with the right-turn lane beginning a short distance to her left, the traffic with which she was confronted, the parked cars, and the limitation on what she could see, I consider it to have been incumbent on Ms. Smeltzer to “inch” her way over the solid line and past the truck, as drivers do, until she could see there was no obstacle to her completing her turn – no car was in fact approaching in a manner she did not expect – rather than turning blindly in front of the truck and proceeding as she did.  She could easily have done this and the collision would have been avoided.  In the result, Ms. Smeltzer bears a measure of fault for the injury she suffered. [23] This accident happened because neither driver saw the other before they collided.  That was because both proceeded in a manner that contravened the provisions of the Act : Ms. Merrison breached s. 158 and Ms. Smeltzer breached s. 166.  Ms. Merrison could not see Ms. Smeltzer’s vehicle while she was wrongfully passing the cars and the truck ahead of her on the right and she was not looking where she should have been; Ms. Smeltzer could not see Ms. Merrison’s car while her vision was obstructed and she did not take steps to ascertain her turn could be safely made.  I do not consider it is possible to establish different degrees of fault in the circumstances of this case such that in accordance with s. 1 of the Negligence Act , R.S.B.C. 1996, c. 333, liability is to be apportioned equally. Disposition [24] I would allow the appeal, set aside the judge’s order, and replace it with an order declaring Ms. Merrison to be liable for 50% of Ms. Smeltzer’s injury and consequent loss. “The Honourable Mr. Justice Lowry” I agree: “The Honourable Mr. Justice Frankel” I agree: “The Honourable Madam Justice Neilson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Gichuru v. Smith, 2012 BCCA 20 Date: 20120113 Docket: CA037946 Between: Mokua Gichuru Appellant (Plaintiff) And Howard Smith and Howard Smith Personal Law Corporation, both doing business as “Howard Smith & Company” Respondents (Defendants) Before: The Honourable Madam Justice Newbury The Honourable Madam Justice Bennett The Honourable Madam Justice Garson On appeal from the Supreme Court of British Columbia, ( Gichuru v. Smith 2010 BCSC 234, New Westminster Registry, Docket S123626) Acting on his own behalf: M. Gichuru Counsel for the Respondents: V. Milne K. Paul Place and Date of Hearing: Vancouver, British Columbia June 18, 2010 Written Submissions Received: November 3, 8 & 16, 2011 Place and Date of Judgment: Vancouver, British Columbia January 13, 2012 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice Bennett The Honourable Madam Justice Garson Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The division that heard the appeal in this matter have had an opportunity to review counsel’s most recent submissions made in response to Ms. Jordan’s letter to counsel of October 27, 2011. We are  of the view that the form of draft order is appropriate, with the exceptions that : (a) The third paragraph on the second page should read: AND THIS COURT FURTHER ORDERS that the lump sum costs award is set aside and that an award of party and party costs in any event of the cause, to be assessed and paid in the usual way, be substituted therefor; (b) The penultimate paragraph should read: AND THIS COURT FURTHER ORDERS that the respondents return forthwith to the Appellant the $1800  paid previously to the Respondents. [2] The division wishes also to clarify that our intention was that counsel for the respondents was to repay the $1800 immediately to Mr. Gichuru, without attempting to set-off any other amount to which the respondents might become entitled in respect of costs.  Accordingly, the amount remaining set off or unpaid is now to be paid to Mr. Gichuru. “The Honourable Madam Justice Newbury” I Agree: “The Honourable Madam Justice Bennett” I Agree: The Honourable Madam Justice Garson

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Giza v. Sechelt School Bus Service Ltd., 2012 BCCA 18 Date: 20120113 Docket: CA039042 Between: Raymond Giza Appellant (Plaintiff) And Sechelt School Bus Service Ltd., Randy Gould Respondents (Defendants) Before: The Honourable Mr. Justice Hall The Honourable Mr. Justice Mackenzie The Honourable Mr. Justice Chiasson On appeal from:  Supreme Court of British Columbia, April 21, 2011 ( Giza v. Sechelt School Bus Service Ltd. and Gould , 2011 BCSC 669, Vancouver Docket No. S101387) Appellant appearing in person Counsel for the Respondent: J.W. Rowe Place and Date of Hearing: Vancouver, British Columbia November 2, 2011 Place and Date of Judgment: Vancouver, British Columbia January 13, 2012 Written Reasons by: The Honourable Mr. Justice Chiasson Concurred in by: The Honourable Mr. Justice Hall The Honourable Mr. Justice Mackenzie Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] This appeal considers the legal effect of an employer’s termination of an employee’s contract of employment with inadequate notice as well as the effect of the employee’s failure to work during the notice period given.  Also considered is whether this Court’s decision in Macaraeg v. E Care Contact Centers Ltd. , 2008 BCCA 182, 77 B.C.L.R. (4th) 205 extends to a claim for unpaid holiday pay, requiring the appellant to pursue that claim under the Employment Standards Act , R.S.B.C. 1996, c. 113 and not in a court action. [2] From September 2004 until September 2009, the appellant was employed as a bus driver by the respondent Sechelt School Bus Service Ltd. (referred to herein as the “respondent”).  On September 30, 2009, the respondent terminated the appellant’s employment, providing him with approximately five weeks’ notice.  The trial judge described the circumstances of the termination at para. 20 as follows: September 30, 2009 was the last workday in September and was payday. Mr. Gould left a number of items clipped together on the seat of the bus Mr. Giza was to drive. The items included Mr. Giza’s paycheque, a statement of the hours for which he was paid, and a letter. The payment to Mr. Giza was based on $17.50 per hour. The letter stated as follows: This letter will serve as your official notice of Termination of Employment with the Sechelt School Bus Service Ltd. as of November 6, 2009. You will be given your final pay cheque that day and a Record of Employment will follow within the prescribed period. As required by the Employment Standards Act , Part B, Termination of Employment, we are giving you just over 5 weeks notice as compensation for your length of service. Your start date was September 28, 2004. Attached is the related excerpt from the Act for your reference. Good luck in your future endeavors. [3] When the appellant had read the letter, he drove his bus back to the respondent’s terminal and left work permanently. [4] The trial judge held that five weeks’ notice was inadequate, but that the appellant repudiated his employment contract by failing to work after notice was given and was not entitled to damages. Background [5] In 2007, the respondent Randy Gould and his wife purchased the respondent Sechelt School Bus Service Ltd.  They continued the existing practice of not paying statutory holiday pay, in contravention of the Employment Standards Act . [6] In late June 2009, Mr. Gould met with the appellant.  They do not agree on what was said at this meeting.  The appellant asserts that the respondent agreed to increase his wage rate by $1.00 per hour to $18.50 per hour, effective in September 2009.  Mr. Gould contends that he agreed only to consider a wage review in the autumn and that the parties discussed aspects of the appellant’s behavior which Mr. Gould considered to be inappropriate. [7] In September, the appellant was assigned a different route, which increased his working time in the afternoon by 30 minutes.  He wanted his bus to leave the school at 3:15 p.m. in order to facilitate a connection.  School administrators wanted the bus to leave at 3:25 p.m.  The appellant contends that Mr. Gould agreed to a 3:15 p.m. departure.  Mr. Gould denies this. [8] The appellant spoke to school officials about the departure time.  Mr. Gould felt this was inappropriate.  The respondent decided to terminate the appellant, a decision which led to the September 30, 2009 letter. [9] The appellant claimed holiday pay in proceedings under the Employment Standards Act which he subsequently withdrew. [10] This action was commenced on February 25, 2010.  The appellant alleged that he was wrongfully dismissed.  The respondent denied that the appellant was dismissed and asserted that he was terminated with notice. The trial judgment [11] At para. 36 of her reasons, the judge quoted from this Court’s decision in Zaraweh v. Hermon, Bunbury & Oke, 2001 BCCA 524, B.C.L.R. (3d) 223 at para. 14: The common law provides that, in cases of indefinite hiring without written contract establishing terms of dismissal, an employer may terminate the employment without cause by giving reasonable notice to an employee that the employment will terminate. During this time the employee is required to work and to conduct himself or herself in a fashion compatible with the employment relationship. [12] At para. 39, the judge had this to say: In this case, the 5 weeks of notice was not adequate. [The respondent] breached the employment contract by giving Mr. Giza too little notice. The legal effect of giving inadequate notice depends on all the facts. [13] The judge concluded that Mr. Gould had not intended to repudiate the employment contact and that he mistakenly had believed that the statutory notice period would suffice.  She held that the respondent “did not in law ‘repudiate’ the employment agreement” (para. 40).  The judge then turned to the failure of the appellant to work during the notice period, stating at paras. 41 – 42: I quote now from the reasons for judgment of Hutcheon J.A., writing for the Court of Appeal, in Suleman v. B.C. Research Council (1990), 52 B.C.L.R. (2d) 138 at 142: In other words, the contract of employment is not terminated until the end of the notice period and during that period the employer has the right to the services of the employee. It follows that the employee must remain ready and willing to carry out the contract of service ... Here, Mr. Giza left immediately after receiving the termination notice. He did not return to work. Unless [the respondent] constructively dismissed him, Mr. Giza repudiated the employment agreement, or in other words, quit. [14] The judge then considered whether the respondent’s conduct amounted to a constructive dismissal of the appellant, noting that the latter’s position was that it would have been intolerable to continue to work for the respondent. [15] The judge observed at para. 46 that the fact the respondent gave notice of termination does not establish constructive dismissal because the respondent was “entitled to give reasonable notice”. [16] The judge accepted Mr. Gould’s evidence about discussions with the appellant, finding that Mr. Gould had raised complaints about the appellant’s conduct and had agreed only to consider a raise in the autumn (paras. 12 and 48).  She rejected the argument for constructive dismissal and stated at para. 53: Objectively, there is no reason why Mr. Giza could not have continued to work through the period of reasonable notice. Mr. Giza failed to do so, and as a result, quit his employment before it ended. Therefore, he is not entitled to damages for wrongful dismissal. [17] The judge then addressed the appellant’s claim for damages for manner of dismissal.  She stated at para. 59: The Record of Employment Form completed by SSBS gives reason “M” as the reason for issuing the ROE. The explanation of the code on the back of the form shows that “M” refers to “dismissal”. There is nothing in the description of the codes on the back of the form which distinguishes between dismissal for cause and dismissal by giving working notice. This form does not establish any dishonesty by SSBS in the manner of the dismissal. [18] The judge considered the appellant’s contention that Mr. Gould had falsely told him that the school had agreed to his proposed earlier departure time in order to create an incident which would give the respondent a basis for dismissing him.  The judge preferred the evidence of Mr. Gould on this point.  She stated that there may have been a misunderstanding about the departure time, but that the appellant was not dismissed.  His employment was terminated with notice. [19] The judge concluded at para. 62: SSBS did not act unfairly or in bad faith in connection with dismissing Mr. Giza.  As a result, Mr. Giza’s claim for such damages must be dismissed. The claim for punitive damages also was dismissed. [20] The judge held that she could not order statutory holiday pay, citing this Court’s decision in Macaraeg, which held that rights conferred by the Employment Standards Act can be enforced only through the mechanisms in that Act . [21] The judge dismissed the appellant’s case.  She awarded “the defendant” costs in the amount of $500.00, being “his out-of-pocket expenses for dealing with this matter” (para. 97).  This appears to be an award of costs in favour of Mr. Gould only.  The entered order states simply, “[c]osts to the Defendant”. Positions of the parties [22] The following are the errors of the trial judge alleged by the appellant in his factum: 1.         The judge erred at [42] by ruling that by declining to work the five week notice at termination, the plaintiff had repudiated the contract, and thus had lost his right to sue  for reasonable notice. 2.         The judge erred at [37] by confusing the discharge provision under the Employment Standards Act regarding the earned benefit owed to the plaintiff with the requirement to provide reasonable notice at common law. 3.         The judge erred at [40] by ruling that the five week notice was an honest misapprehension of the defendant to provide reasonable notice at common law and accordingly, the defendant was freed of this obligation. 4.         The judge erred at [45] by ruling that only a fundamental change in the contract, amounting to constructive dismissal, would free the plaintiff from responsibility of working the notice period. A constructive dismissal occurs with any reduction in wages during a notice period at termination. In addition, responsibility to work the notice period must also take into account the non-tangible elements of the working relationship – in this case the breach of trust by the defendant. 5.         The judge erred under the Charter at [41] and [42] by ruling that there was an obligation on the plaintiff to work the notice period. In a free society no one is required to work for another against their will save a declaration of war or essential service by statute. 6.         The judge erred at [75] by ruling that rights in the Employment Standards Act can only be enforced through that Act and not through a civil action. 7.         The judge misstated, ignored, and overlooked evidence and failed to arrive at the truth of the matter.  In order to provide context, these matters are specifically identified in part 3. [23] The respondents join issue with the appellant’s allegations. Discussion Effect of the termination and the appellant’s failure to work thereafter [24] I begin by addressing a possible inconsistency in the judge’s reasons.  At para. 39, she held that the notice given by the respondent was inadequate.  At para. 46, she observed that the respondent was entitled to give reasonable notice and that it “gave such notice” [emphasis added]. [25] I do not think the perceived inconsistency is of consequence.  In my view, the judge correctly concluded at para. 39 that the notice period was inadequate.  She went on to consider whether there had been a constructive dismissal and her comment in para. 46 was made in that context.  I interpret her statement as merely confirming that an inadequate notice period does not result automatically in constructive dismissal. [26] I do not agree with the judge’s conclusion at para. 53 that by failing to work during the notice period, the appellant lost his entitlement to reasonable notice or damages in lieu thereof. [27] This Court in Zaraweh v. Hermon, Bunbury & Oke made it clear that an employee terminated with notice is required to work during the notice period (para. 14.).  Saunders J.A. referred to this Court’s decision in Suleman v. British Columbia Research Council (1990), 52 B.C.L.R. (2d) 138, 24 A.C.W.S. (3d) 508, in which Mr. Justice Hutcheon observed at p. 141 that, subject to conduct by the employer  amounting to constructive dismissal, ... the contract of employment is not terminated until the end of the notice period and during that period the employer has the right to the services of the employee.  It follows that the employee must remain ready and willing to carry out the contract of service. [28] Whether the employer’s conduct amounts to constructive dismissal is a question of fact.  In Zaraweh, Saunders J.A. observed at para. 31 that: Provision of inadequate notice may constitute repudiation of the contract.  Whether it does or not is a question of fact, to be resolved on the evidence of the circumstances accompanying the provision of the notice. [29] In the present case, the trial judge held that the respondent’s conduct did not constitute constructive dismissal.  This Court must give deference to that finding of fact.  In my view, the judge’s conclusion is amply supported by the evidence. [30] Although the appellant challenges many of the judge’s conclusions, they must be respected if there was evidence to support them.  The judge was entitled to accept some, all or none of the testimony of the parties.  The fact that she preferred testimony with which the appellant disagrees is not a basis on which this Court may interfere. [31] The testimony of both the appellant and Mr. Gould established that they had had discussions regarding the appellant’s conduct and attitude. [32] The appellant relied on a statement in an October 5, 2009 letter from the respondent to the appellant that “[d]ue to your termination of employment on September 30, 2009, you were not given an increase in pay” as showing that there had been an agreement his pay would be increased (Appeal Record at p. 6).  The letter was appended to the respondents’ statement of defence and as such could be an admission against interest, subject to determining the meaning of the comment and the weight to be given to it. [33] At the hearing of the appeal, we were informed that the October 5, 2009 letter was a draft and was not sent to the appellant.  Under cross-examination at trial, Mr. Gould flatly denied agreeing to a pay raise, stating, “I wouldn’t give anybody a raise that acted like you did”. [34] There was no specific date by which Mr. Gould had agreed to consider an increase in the appellant’s wage rate.  In context, I read the comment in the October 5, 2009 letter as stating merely that consideration of a wage rate increase became irrelevant or moot with the termination of the appellant. [35] As to the allegation that Mr. Gould showed the appellant a schedule with a start time of 3:15 p.m., Mr. Gould testified that the schedule he had shown the appellant was from a previous year and served merely to illustrate the route and that on September 9, 2009 he had told the appellant that the departure time was 3:25 p.m. [36] Mr. Gould purposely determined not to dismiss the appellant.  Under cross-examination by the appellant, he testified that the decision to terminate the appellant was based on an accumulation of problems, and that “none of the incidents on their own were cause for dismissal”.  The triggering event was a telephone call by Mr. Gould to the appellant at his home on the evening of September 21 or 22, 2009 in which Mr. Gould instructed the appellant not to leave at the school at 3:15 p.m., but to do so at 3:25 p.m.  The appellant became argumentative.  This telephone conversation and the fact the appellant had dealt directly with the school on the departure timing issue resulted in the decision to terminate him. [37] Under cross-examination, Mr. Gould explained that he did not think leaving the letter of termination in the bus for the appellant was harsh because it was not an immediate termination, but working notice; he stated, “I expected you to continue” and confirmed his belief that the appellant “would simply just carry on and finish working for [the respondent]” during the five-week notice period.  He denied that the respondent was attempting to avoid severance pay, stating that “we offered the five weeks 'cause we hoped you [sic] take the five weeks and still work”.  Immediately after deciding the appellant should be terminated, Mr. Gould contacted the Employment Standards Branch to ascertain what period of notice would be appropriate. [38] The respondent hired someone on a temporary basis during the notice period.  This suggests it kept open the appellant’s opportunity to work. [39] In my view, it is clear that the respondent did not constructively dismiss the appellant and that the appellant repudiated the employment contract by failing to work during the notice period.  In classic terms, he evidenced an intention not to be bound by the contract, but that did not deprive him of his right to damages for the respondent’s breach of contract in giving him inadequate notice. [40] In Zaraweh , Saunders J.A. stated at paras. 35 and 36 that ... the breach of contract by provision of inadequate notice gave Ms. Zaraweh a cause of action for damages although it did not constitute a repudiation ... .  The entitlement to sue did not die with Ms. Zaraweh’s repudiation of the employment relationship. ... ... Ms. Zaraweh was entitled to ... damages based on the difference between the notice provided ... and the period of reasonable notice ... . [41] In Hadcock v. Georgia Pacific Securities Corp. , 2006 BCCA 536, 64 B.C.L.R. (4th) 308 at para. 48 this Court, relying on the Supreme Court of Canada’s decision in Guarantee Co. of North America v. Garden Capital Corp. , [1999] 3 S.C.R. 423, explained that although repudiation ends the ongoing rights and obligations of parties under a contract, it does not affect rights and obligations that have accrued.  In the present case, the appellant’s right to damages in lieu of reasonable notice had accrued when he was given inadequate notice.  His repudiation did not take away that right and it did not take away the right of the respondent to the appellant’s services during the period of notice given. [42] In summary: 1.       the respondent breached its contract of employment by failing to give adequate notice of termination; 2.       the respondent’s conduct did not amount to a constructive dismissal, that is, a repudiation by the respondent of the employment relationship; it continued during the notice period; 3.       the respondent’s  breach gave the appellant a cause of action for damages in lieu of reasonable notice; 4.       the period of reasonable notice for which damages could be recoverable is the period of reasonable notice to which the appellant was entitled less the period of notice actually given during which the appellant could have and should have worked and been paid; 5.       the appellant’s failure to work during the notice period was a repudiation that brought to an end the employment relationship and the ongoing rights and obligations of the parties under it; 6.       that repudiation did not take away the appellant’s cause of action for damages in lieu of notice or the respondent’s right to have the appellant’s services during the notice period that was given because those rights had accrued before the repudiation. Remedy [43] Although the trial judge held that the notice period given by the respondent was inadequate, she did not determine what notice would have been reasonable because she concluded that the appellant was not entitled to damages. [44] I do not think it is in the interests of justice to remit this matter to the trial court to determine the appropriate period of reasonable notice.  This Court should do so. [45] The “seminal enunciation” of what length of notice is reasonable at common law derives from Bardal v. The Globe & Mail Ltd. (1960), 24 D.K.R. (2d) 140 (Ont. H.C.J.) at 145, in which McRuer C.J. held that [t]here can be no catalogue laid down as to what is reasonable notice in particular classes of cases.  The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. This test was adopted by, inter alia , McEachern C.J.S.C. in Ansari v. B.C. Hydro (1986), 2 B.C.L.R. (2d) 33 . [46] An examination of cases reasonably comparable to the present case suggests that the appropriate range of notice is somewhere between three and 11 months.  There obviously is considerable variability. [47] At the time the contract of employment was terminated, the appellant was 61 years of age.  He had been employed by the respondent for approximately five years.  He had worked previously as a professional forester, but the availability of forestry work had diminished by the time he left this industry and began working as a school bus driver.  The appellant has had little success in obtaining alternative employment. [48] The appellant seeks nine months’ notice.  In my view, reasonable notice in this case would have been six months.  For the purpose of calculating damages, the period of actual notice during which the appellant could have worked and been paid must be deducted.  I would calculate damages based on a notice period of five months. [49] The trial judge held that the in the year prior to his termination the appellant earned $1,938 per month.  In my view, the appellant is entitled to $9,690 (5 x $1,938). Punitive damages [50] The trial judge correctly stated the law applicable to an award of punitive damages and found no basis on which such an award would be appropriate in this case.  In part, this finding was based on her conclusion that there had been no wrongful dismissal, contrary to the appellant’s position. [51] The judge carefully considered the evidence of the parties and preferred that of Mr. Gould, as she was entitled to do.  I see no basis on which this Court could interfere. Holiday pay [52] I agree with the judge that this Court’s decision in Macaraeg is a complete answer to the appellant’s claim for statutory holiday pay.  In Macaraeg , this Court concluded that the Employment Standards Act contained a complete procedure for enforcing rights granted by that legislation.  In the context of this case, holiday pay is such a right. Costs [53] Rule 14-1 (10) of the Rules of Court states: A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders. (This rule is identical to the former Rule 57(10).) [54] The monetary jurisdiction of the Small Claims Court is for claims of $25,000 or less ( Small Claims Court Monetary Limit Regulation, B.C. Reg. 179/2005).  In total, the appellant claimed $41,190, comprising $18,315 for nine months’ pay in lieu of notice at $2,035 per month, $20,000 for punitive damages and $2,875 for statutory holiday pay. [55] The per-month sum was based on a $1.00 per hour wage raise, which the judge rejected.  I agree that the appellant is entitled to pay in lieu of notice, but do not accept the appellant’s claimed duration.  I also have concluded that as a matter of law, the period of notice the appellant was given must be deducted from the time for which he is entitled to pay in lieu of notice. [56] The statutory holiday pay claim is not sustainable in light of this Court’s decision in Macaraeg . [57] Although the monetary amount advanced by the appellant in his statement of claim exceeded the jurisdiction of the Small Claims Court, in my view, there was not sufficient reason to bring these claims in the Supreme Court at the time they were initiated. [58] In addition, I am mindful of the trial judge’s discretionary disposition of costs in awarding the respondent out-of-pocket expenses only.  Exercising my discretion, in my view, in the interests of justice an award of disbursements only is a fair disposition in this matter, taking into account the monetary award recovered and the mixed success of the parties on the components of the appellant’s claim. [59] I would award the appellant his allowable disbursements in this Court and in the Supreme Court against the respondent Sechelt School Bus Service Ltd. Conclusion [60] I would allow this appeal, set aside the order dismissing the appellant’s claim and awarding costs to the respondent and enter judgment in favour of the appellant against the respondent Sechelt School Bus Service Ltd. in the amount of $9,690. [61] The appellant is entitled to his allowable disbursements in this Court and in the Supreme Court. [62] There is no basis in the evidence for judgment against Randy Gould personally and I would dismiss the action against him without costs.  His participation was required by the corporate defendant and was not increased by reasons of the personal action against him. “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Mr. Justice Hall” I agree: “The Honourable Mr. Justice Mackenzie”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Modonese v. Delac, 2012 BCCA 21 Date: 20120113 Docket: CA038832 Between: Helena Modonese Respondent (Plaintiff) And Marko Delac, Executor of the Will of Regina Delac, The Estate of Regina Delac, and Marko Delac Appellants (Defendants) Corrected Judgment: Counsel’s name was corrected on January 24, 2012 Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice K. Smith The Honourable Mr. Justice Tysoe On appeal from the Supreme Court of British Columbia, January 25, 2011 ( Modonese v. Delac , 2011 BCSC 82, Chilliwack Registry S16867) Counsel for the Appellants: L.F. Tungohan Counsel for the Respondent: D. MacAdam, Q.C. J. Meyer Place and Date of Hearing: Vancouver, British Columbia December 2, 2011 Written Submissions Received: December 16, 2011 Place and Date of Judgment: Vancouver, British Columbia January 13, 2012 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice K. Smith The Honourable Mr. Justice Tysoe Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The division that heard this appeal on December 2, 2011 has had an opportunity to review counsel’s submissions, both received December 16, 2011.  Counsel had been invited to make submissions regarding costs. [2] The submission made by counsel for the appellant did not deal with costs but seeks to re-open the case on the basis of “interventions” made by the trial judge during trial.  It is said the judge ignored evidence presented by the appellant, that he misconceived the evidence, and did not conduct a “meticulous examination of facts.”  At the hearing of this appeal, counsel had not provided this court with a transcript of the trial in full and was asked to provide a list of pages where he alleged the judge had stopped him from conducting his examination of witnesses.  However, after having heard the appellant’s argument, this court determined that it was able to decide the appeal without receiving the pages and without the necessity of calling on counsel for the respondent. [3] We remain of the view that the trial judge’s conduct of the trial does not support the grounds of appeal or give rise to an injustice.  We therefore decline to re-open the appeal. [4] We note Mr. MacAdams’ argument that having failed to make submissions regarding costs by the time indicated, counsel for the appellant should be taken to have forfeited the opportunity to make such submissions. [5] We are of the view that in the circumstances, Mr. Tungohan should be given until January 23, 2012 to make his submission regarding costs, failing which the Court shall inform counsel as to its order. “The Honourable Madam Justice Newbury” I Agree: “The Honourable Mr. Justice K. Smith” I Agree: “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Skibinski v. Community Living British Columbia, 2012 BCCA 17 Date: 20120113 Docket: CA038615 Between: Sheila Elizabeth Skibinski Respondent (Plaintiff) And Community Living British Columbia and Her Majesty the Queen in Right of the Province of British Columbia as Represented by the Ministry of Children and Family Development Appellants (Defendants) Before: The Honourable Mr. Justice Low The Honourable Mr. Justice Frankel The Honourable Mr. Justice Hinkson On appeal from:  Supreme Court of British Columbia, October 26, 2010 ( Skibinski v. Community Living British Columbia , 2010 BCSC 1500, Chilliwack No. S18769) Counsel for the Appellant, Community Living British Columbia: J.G. Morley Counsel for the Respondent: F.W. Hansford, Q.C., A.W. Bevan & D.G.R. Sands Place and Dates of Hearing: Vancouver, British Columbia November 14 and 15, 2011 Place and Date of Judgment: Vancouver, British Columbia January 13, 2012 Written Reasons by: The Honourable Mr. Justice Low Concurred in by: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Hinkson Reasons for Judgment of the Honourable Mr. Justice Low: [1] Since 14 July 2007, the respondent, Sheila Skibinski, has been the full-time caregiver of Lynn S., a severely disabled adult, excluding only a brief period during which Lynn was hospitalized. [2] The respondent, Community Living British Columbia (“CLBC”), is a provincial statutory body charged with offering to fund the care of disabled adults within budgetary limits. It often fulfills this mandate by entering into contracts with professional caregivers for the benefit of specific individuals. [3] CLBC and Ms. Skibinski failed to agree to the terms of a contract with respect to the full-time care of Lynn by Ms. Skibinski. [4] On 11 March 2008, Ms. Skibinski commenced an action against CLBC and the Province of British Columbia for compensation for the care of Lynn. Following a 29-day trial, the presiding judge provided written reasons for judgment on 26 October 2010, indexed at 2010 BCSC 1500. He fixed the amount of compensation payable by CLBC to Ms. Skibinski at $334,308. This award covered the period of 14 July 2007 to 11 October 2010. The parties were to calculate the compensation from that date to 26 October 2010. The parties approved the formal order with a somewhat lesser judgment amount of $308,042.53, apparently after making some adjustments, to which I will later make reference. [5] The trial judge dismissed claims made by Ms. Skibinski against the Province of British Columbia. Ms. Skibinski has not appealed that part of the order. [6] The trial judge rejected two causes of action advanced by Ms. Skibinski against CLBC, but he found that she was entitled to compensation on the basis of unjust enrichment. He relied on expert evidence to fix the amount. [7] CLBC appeals. It does not dispute that Ms. Skibinski is entitled to compensation for her services from 24 October 2007 until 15 January 2008. It says the trial judge erred in awarding compensation outside those dates. [8] As will be seen, 15 January 2008 is a significant date because CLBC formally terminated contract negotiations with Ms. Skibinski by a letter of that date. [9] Ms. Skibinski takes the position that if the 15 January letter has the effect claimed by CLBC, she is entitled to compensation from 11 July 2007 (the date on which her full-time care of Lynn began) until 24 January 2008 (the date on which she received the letter of 15 January). [10] The order does not address the question of payment for Lynn’s care post-judgment. We are told that Lynn continues to reside in the care of Ms. Skibinski. Facts [11] Lynn was born in 1962 with severe developmental disabilities. She has an IQ of approximately 41, and a history of behavioral problems marked by verbal and physical aggression. In 2006, she suffered further brain damage when physicians induced a coma in order to administer dialysis. She is unable to live independently and requires a high level of care. She also suffers from severe medical problems, including insulin-dependent diabetes, congestive heart failure, and congenital kidney failure, for which she must receive regular dialysis. She also requires rigorous dietary supervision. Her life expectancy is short, a matter of a few years. [12] CLBC is a provincial crown agency under the Community Living Authority Act, S.B.C. 2004, c. 60. Its role is to provide support to adults with developmental disabilities. CLBC provides various services, including residential programs, community inclusion day programs, and respite services for residential care providers, to over 1200 developmentally disabled adults in B.C. It delivers these services through its own employees and through agreements with third parties. The agency’s funding comes from the provincial government; it is statutorily obliged to develop a service plan and budget, and is proscribed from running a deficit. It enjoys a certain degree of financial flexibility, and is permitted to deviate from its support guidelines to ensure that it can meet the special needs of particular clients. [13] Ms. Skibinski is a qualified care provider with more than thirty years’ experience. She specializes in working with individuals with autism and other disabilities. Since 1992, she and her family have owned a rural property in Mission, B.C. where they provide residential care to adults with developmental disabilities. The trial judge described Ms. Skibinski as a “very capable and gifted service provider in her field [who] has dedicated herself to the care of the developmentally challenged adults, taking pride in her skills and methods” (para. 42). [14] Ms. Skibinski first encountered Lynn in 1978, while working with students with disabilities at Arthur Peake School. This marked the beginning of a long-standing association which included a two-year period of residential care in the early 1980s. In 1992, at the Ministry’s request, Ms. Skibinski began providing a day care program for Lynn. This contract expired in December 2007 and is referenced in some of the correspondence between the parties reproduced below. [15] In the summer of 2007, Lynn’s mother, Pat Chalmers, then in her mid-seventies and in poor health, decided she was no longer able to care for Lynn at her home. The Abbotsford police had received complaints about Lynn’s trespassing and aggression toward neighbours. On 28 June 2007, at the request of police, Ms. Chalmers had her daughter admitted to the Abbotsford hospital’s psychiatric ward, where she remained for almost two weeks. [16] During this time, Ms. Chalmers proposed to CLBC that Ms. Skibinski assume full-time care of Lynn. CLBC disagreed on the basis that Ms. Skibinski was already providing care to two full-time residents, the maximum number permitted under an applicable law in the absence of a particular licence. Ms. Chalmers refused alternative care arrangements offered by Bruce Morgan, a CLBC representative. [17] The hospital, meanwhile, requested that Lynn be discharged due to her disruptive and unmanageable behavior. On 11 July 2007, at Ms. Chalmers’s request, Ms. Skibinski took Lynn into her care at her Mission residence. CLBC maintained its position that Ms. Skibinski was already caring for the maximum number of full-time residents. [18] In late October, Ms. Skibinski dropped off one of her other residential clients at a CLBC office. This paved the way for contract negotiations to begin between CLBC and Ms. Skibinski for Lynn’s full-time care. However, the parties were unable to agree on the appropriate level of remuneration. Ms. Skibinski insisted that she was providing Lynn with the equivalent of 24-hour care, and that the nature and extent of this care did not fit within any of CLBC's existing categories. CLBC, however, was of the view that Lynn's requirements fell within the “residential” or “home share” category of care, with some extra funding due to her special needs. [19] During these negotiations, Ms. Skibinski returned Lynn to the psychiatric ward at the hospital. The trial judge found that the evidence conflicted as to her reasons for doing so. Lynn struggled in the hospital, requiring physical restraint and medication. [20] Proper consideration of the unjust enrichment issue in this case rests on the correspondence that passed between the parties as they attempted to form a contract. [21] On 20 December 2007, Mr. Birdi, the manager of quality service for the Upper Fraser Region of CLBC, sent a letter to Ms. Chalmers headed “Re: Support Services for Lynn [S.]” in which he said he was “prepared to allocate” $6,632.07 per month “to support Lynn, excluding any financial contribution that Lynn will make directly to the caregiver”. This offer was followed by a breakdown of the total amount and a paragraph that discussed additional payment for travel costs to a hospital in New Westminster for Lynn’s dialysis treatments. (The letter’s statement regarding a financial contribution from Lynn is a reference to a monthly payment of about $666 Lynn then received, apparently under the Employment and Assistance for Persons with Disabilities Act, S.B.C. 2002, c. 41.) [22] The letter concluded with the following (emphasis added): I acknowledge your preference is for Ms. Skibinski to provide the residential services and the community inclusion for Lynn. I am prepared to offer this contract to Ms. Skibinski provided that she accepts the allocated funds mentioned above and our contractual expectations of caregivers. Please be advised that should Ms. Skibinski not be prepared to accept this contract offer, I am prepared to offer residential and community inclusion services to Lynn through another service provider in the region. As of the date of this letter, we have a home share provider available to provide residential care to Lynn. This caregiver is a registered nurse and has experience in providing services to individuals who may have a need for medical supports. If you would like us to propose this service provider, please let me know by December 27, 2007 and a Quality Service Analyst will make arrangements for you and the service provider to meet and discuss the next steps to providing residential and community inclusion services for Lynn. I appreciate and acknowledge that both Sheila Skibinski and yourself have authorized Dale Sands, Barrister & Solicitor, to represent your interests and by extension, interests of Lynn. Our practice is to work directly with individuals and their families and service providers. Therefore I have addressed the reply to you. If and when we have the agreement on a service provider, we will finalize the contractual arrangements with the service provider. [23] Mr. Sands responded to this letter the next day, 21 December 2007. His letter is headed by the words “Without Prejudice”. He represented both Ms. Chalmers and Ms. Skibinski. He proposed a monthly payment to Ms. Skibinski of $8,722.43 with the following additional terms: (3)        retro-active to July 1, 2007; (4)        includes a “start-up fee” of $1,500.00; (5)        includes a “Cost Of Living Adjustment” annually; and (6)        for the life-time of [Lynn]. [24] As of the date of this letter, Lynn was in hospital. The next paragraph of this letter limited the time for acceptance by CLBC of the contract proposal: If the Counter-proposal is accepted by 12:00 noon on December 24, 2007, and you provide my client with a rental car until funding is released to my clients, then Ms. Skibinski can bring [Lynn] home from the hospital as early as the afternoon of December 24,2007 (in time for Christmas). You may indicate your acceptance by phone call to my office or by faxing a letter to me at 604-820-4066. [25] The letter concluded with the following perplexing paragraph: Should this matter go to trial, I reserve the right to bring this letter to the attention of the Court on the issue of costs following the trial, in accordance with the decision of Calderbank v. Calderbank [1975] 3 All E.R. 333. [26] The litigious tone of this concluding paragraph is difficult to understand. At the time the letter was written there was no compelling need for Lynn to return from the hospital to the care of Ms. Skibinski. CLBC had proposed an alternative caregiver in the event it did not enter into a contract with Ms. Skibinski. Although it might have been appropriate to adopt a litigious tone with respect to a claim for past care, it is difficult to understand how, in the circumstances, the subject of future care could have litigation implications. The main purpose of the letter was to attempt to negotiate a contract for future care. This curious paragraph might lie at the heart of the problem in this case. There seems to have been a mindset on the part of Ms. Skibinski that CLBC was legally obligated to contract with her for Lynn’s future care. [27] CLBC was not so obligated. [28] Apparently Ms. Chalmers received a copy of the letter written by Mr. Sands. In a letter dated 24 December, Mr. Birdi sent a counter-offer to Ms. Chalmers, providing a copy to Ms. Skibinski. This proposal included an increase in the monthly amounts CLBC would pay for Lynn’s care from 1 January 2008. On that issue, I believe the parties’ offers were at that point approximately $1,200 per month apart. [29] They were not ad idem on other significant matters. CLBC offered to pay retroactively only from 1 November 2007 in the total amount of $9,807.86; the contract would be for one year; and there would be no COLA clause. Mr. Birdi’s letter is silent as to payment of a $1,500 “start-up” fee but his letter implicitly rejects that suggestion. The letter included this sentence: Contract renewal is subject to contractor's performance and compliance with the standards as outlined in the body of the contract. [30] The trial judge found that CLBC entered into contracts on a yearly basis. It is difficult to understand how Ms. Skibinski could have expected to negotiate a contract for the lifetime of Lynn or how the court could have contemplated a compensation period beyond the normal contract length. It is equally difficult to understand how Ms. Skibinski could have expected a COLA clause or a “start-up” fee. [31] On 27 December 2007, Lynn left the hospital and returned to the care of Ms. Skibinski. [32] Ms. Skibinski met with a representative of CLBC on 28 December. On 8 January 2008, Mr. Birdi wrote to Ms. Skibinski as follows (emphasis added): I understand that on December 28, 2007, you reviewed my letter of offer of December 24, 2007 (attached) with our Regional Financial Manager, Jon Cruz. In this letter, I had outlined funding level and terms of contract should you wish to accept our offer of a contract for delivering residential services to Lynn [S.]. I further understand that on December 28, 2007 you advised Jon Cruz that you were not prepared to accept our contract offer. Therefore, please be advised that based on this information, I am rescinding my offer to contract with you for residential services for Lynn [S.]. [33] Mr. Sands replied on 10 January 2008: I advise that I revoke all offers by my clients to settle the contract dispute in the above-captioned matter. On behalf of my clients: (1)        I further advise your contract offer, set out in your correspondence to Ms. Chalmers of December 24, 2007 and copied to Ms. Skibinski, is rejected; (2)        I enclose invoices signed and dated by Ms. Skibinski for her services and disbursements incurred for [Lynn] from July, 2007 to December 31,2007, totaling $83,942.02 plus accrued interest to date of 19.25% per annum (the “Debt”); and (3)        I hereby demand that the Debt be paid, in full, on or before 5:00 p.m. on January 18, 2008. I further advise that if the Debt is not paid as aforesaid, my instructions are to issue a Writ Of Summons and Statement Of Claim in the Supreme Court of B.C. without further notice to you. Although this letter is not written on a “Without Prejudice” basis, I further advise that should this matter go to trial, I reserve the right to bring this letter to the attention of the Court on the issue of costs following the trial, in accordance with the decision of Calderbank v. Calderbank [1975] 3 All E.R. 333. [34] Mr. Birdi responded with a letter to Ms. Skibinski dated 15 January (emphasis added): Please be advised that I am not prepared to accept your claim for these services. Under Contract Number FL0191CF01, Community Living British Columbia (“CLBC”) has entered into an agreement with you to provide day services only to Lynn [S.] and you receive a monthly payment for these services as set out in that contract. There is no other contract, or agreement, in effect between you and CLBC to provide additional supports to Lynn [S.]. Your decision to provide additional supports to Lynn [S.] was, and continues to be, between you, Lynn and her family and it is without the consent, agreement, or approval of CLBC. [35] Mr. Sands continued to send invoices to CLBC, accompanied by a running total. On 15 February, Mr. Birdi responded by a letter to Ms. Skibinski refusing payment. Mr. Birdi wrote (emphasis added): Please be advised that I am not prepared to accept your claim for these services. There is no contract, or agreement, in effect between you and CLBC to provide care to Lynn [S.]. Your decision to provide supports to Lynn [S.] was, and continues to be, between you, Lynn and her family and it is without the consent, agreement, or approval of CLBC. Please also be advised that your contract with CLBC to provide day supports (community inclusion) to Lynn [S.] has been expired since December 31, 2007. We had offered to renew this contract with you; however, it is my understanding that you have refused to renew the contract. Therefore, please note that at this time there is no contract in effect between yourself and CLBC with regard to services for Lynn [S.]. [36] Mr. Birdi repeated CLBC’s position in identical words in a letter dated 7 March. Ms. Skibinski brought this action four days later, naming both CLBC and the Province of British Columbia as defendants. Pleadings [37] Ms. Skibinski pleaded in her statement of claim that the parties had entered into a contract with only one term, namely price, left to be resolved. This was a difficult pleading to maintain in light of the correspondence, set out above, that had passed between them. The prayer for relief includes a claim for “debt, in the amount of $117,450.80, to February, 2008 ...” as well as “debt, post-February 29, 2008 until the date of judgment, in the additional amount to be invoiced monthly by ... [Ms.] Skibinski for services ...”  There was also a claim for “contract interest at 19.25% per annum”. [38] I am at a loss to understand the basis for invoicing and pleading these high amounts. The claims do not seem to have anything to do with what transpired during the dealings between the parties. [39] There were additional pleadings of promissory estoppel and damages for mental distress. Unjust enrichment was pleaded as an alternative to the claim in contract. Trial judgment [40] The trial judge noted that the strained relationship between CLBC and Ms. Skibinski predated the failed contract negotiations of December 2007 – January 2008. In particular, CLBC's requirement that caregivers issue regular reports on their clients was a long-standing source of friction; Ms. Skibinski felt that these requirements conflicted with her obligation to protect her clients’ privacy. While he stressed that this particular conflict had been resolved by December 2007, the trial judge found that “both parties b[ore] some responsibility” for the atmosphere of hostility in which negotiations took place (para. 219). He took note of Ms. Skibinski's “stress and depression … [and] seemingly limited capacity to see things from CLBC's perspective” and of CLBC’s “failure to take the managerial initiative to communicate with [Ms. Skibinski] at an earlier stage, to comprehensively acknowledge her concerns … and … failure also to fully explain the funding process” (also at para. 219). [41] I pause here to observe that these findings, although properly included as part of the background, have no bearing on the unjust enrichment analysis. This case is about the legal effect of the relationship between the parties in light of the letters that passed between them during contract negotiations. Fault for the breakdown of these negotiations is not generally relevant, except perhaps on the issue of whether Ms. Skibinski acted officiously in continuing to provide care for Lynn after 15 January 2008. [42] Ms. Chalmers could not afford private care for her daughter. As noted by the trial judge at para. 252 of his reasons, Ms. Chalmers testified that she felt Ms. Skibinski’s home provided the best place for her daughter and that “no one else had ever come close over the years to providing the care the [Skibinskis] had given”. She “wanted [Lynn's] last years to be as healthy and happy as possible”. [43] The relationship between Lynn and Ms. Skibinski was characterized by the trial judge as a “familial bond”; he observed that “[d]espite her low intelligence, [Lynn] can communicate to some extent and clearly feels human bonds and affections” (para. 294). He also found that Ms. Skibinski “had been able to manage [Lynn's] behaviour more effectively than anyone else” (para. 255). [44] CLBC does not dispute that Ms. Skibinski had a good relationship with Lynn and that she was “at least initially the best placed provider”. However, the evidence does not support the conclusion, and the trial judge did not find, that Ms. Skibinski was the only person who could provide Lynn with the care she needs. [45] It is important to note that the trial judge, at para. 105 of his reasons, observed that Ms. Chalmers “acknowledged that if [Ms. Skibinski] were unable or unwilling to provide care, another suitable caregiver would have to be found”. [46] The trial judge rejected Ms. Skibinski’s claims that CLBC was liable in contract or on the basis of promissory estoppel. He also rejected a claim for damages for mental distress. Ms. Skibinski does not contend on appeal that the trial judge erred in any of these findings. [47] At para. 127 of his reasons, the trial judge concluded that “CLBC owed [Lynn] and her mother a continuing statutory obligation to provide [Lynn] support for community living” and that this entitlement “is not a matter of discretion”. He added that this “does not in any way constitute an interference with whatever other discretion [CLBC] may have”. [48] In the next paragraph, the judge described the duty as being (my emphasis) “to offer funding ... in an amount that accords with [Lynn’s] particular needs, its statutory obligations, its policy guidelines and its wider ... obligations to the community to distribute funding to eligible applicants in an equitable way”. He added (my emphasis): “[ CLBC] did not owe [Ms. Skibinski] or [Lynn] a statutory obligation to pay whatever amounts [Ms. Skibinski] demanded” . It should be added that CLBC was not obliged to pay any caregiver any greater amount for the care of Lynn than it determined, in good faith, was reasonable with regard to its policies and its budgetary constraints. [49] Assuming the above is an accurate description of CLBC’s statutory obligations, there can be no suggestion that CLBC did not live up to those obligations in attempting to negotiate a contract with Ms. Skibinski and in dealing with Lynn’s committee. Ms. Skibinski did not accept CLBC’s contract offer and Ms. Chalmers, who had control over Lynn’s person and estate, would not consent to another caregiver. [50] At para. 129 of his reasons, the trial judge concluded that CLBC, absent bad faith, owed Ms. Skibinski “no legal obligations related to the services [she] has provided, other than those that could arise in common law”. I agree with this conclusion. Ms. Skibinski had no statutory rights and she was required to prove her claim under the common law. [51] Following an extensive discussion of the circumstances of this case and the law of unjust enrichment, the trial judge summarized his findings, at para. 301, as follows: 1.         The plaintiff provided necessary services and incurred expenses of a kind the defendant was obligated to fund. 2.         The defendant likely would have had to pay someone for those expenses and for performance of those necessary expenses and incurred services. 3.         There was a reasonable expectation she would receive something for her services despite the absence of agreement. Donative (or gratuitous) intent cannot be inferred. 4.         Her conduct was not officious, for the reasons given, most notably the finding that to the extent the plaintiff’s conduct deprived the defendant of a significant interest, it can be restored by taking these interests into account when ordering compensation. Accordingly, the plaintiff’s conduct was not offensive to the degree recovery is completely barred. 5.         Therefore, analysis based on the reasonable expectations of the parties does not provide a juristic reason to allow it to retain whatever benefit it has received, with the exception of the day program in effect until [31 December 2007]. 6.         Considering fairness to both parties, it is fair and just for the defendant to disgorge the benefit it has received. Peel [para. 61]. Fairness encompasses the defendant’s legitimate concerns about its need to exercise its discretion, taking into account its fiscal limits, statutory and policy guidelines and obligation to the community to distribute its resources in an equitable way. This must be considered when assessing compensation, as discussed in these reasons. Grounds of appeal [52] Although I state them in a different manner, CLBC raises three grounds of appeal: (1)      the trial judge erred in finding that Ms. Skibinski, in part because she acted as a necessitous intervenor in taking Lynn into her full-time care in July 2007, was entitled to compensation on the basis of unjust enrichment; (2)      the judge erred in finding that Ms. Skibinski was entitled to compensation on the basis of unjust enrichment after contract negotiations between the parties had broken down; and, (3)      in the alternative, the judge erred in awarding compensation in an amount more than CLBC was prepared to pay under contract, and in failing to discount the award for non-monetary terms of which CLBC did not receive the benefit. Necessitous intervention [53] Although he did not include his findings on necessitous intervention in the above summary, the trial judge determined that CLBC was liable to pay Ms. Skibinski for the care of Lynn for an (arbitrary) eight month period starting on 11 July 2007 on this basis. The award on this analysis extended to 11 March 2008, which coincides with the date this action was commenced. (As will be seen, Ms. Skibinski is entitled to compensation for most of this period on a quantum meruit basis.) [54] It is my opinion that the judge erred in finding that Ms. Skibinski acted as a necessitous intervenor and was entitled to compensation as a result. Necessitous intervention is a very limited cause of action, having its origins in marine shipping cases. Like unjust enrichment, in appropriate cases it imposes liability for services rendered outside the law of contract. [55] The trial judge discussed necessitous intervention at some length. He appears to have treated it as a route to a finding of unjust enrichment, probably on the element of absence of juristic reason. In my opinion, this discussion was unnecessary and confusing. [56] Prior to 11 July 2007, there was extensive discussion about Lynn’s placement among those concerned with Lynn’s care, including representatives of CLBC. As already noted, it was CLBC’s position that Ms. Skibinski could not take Lynn into her full-time care without being in breach of certain licensing requirements. CLBC was prepared to arrange for another placement but was met with opposition until Ms. Skibinski, with Ms. Chalmers’s approval, acted unilaterally on 11 July. [57] These circumstances cannot be characterized so as to justify application of the law of necessitous intervention. In determining whether the cause of action is made out and a remedy is available, the cases in this area of the law turn on whether the plaintiff provided necessaries to the defendant when it was impractical to obtain instructions from the defendant: see Matheson v. Smiley , [1932] 2 D.L.R. 787 (Man. C.A.), in which a patient could not give instructions for needed medical services and his estate was liable for the cost of the services; and, in contrast, Soldiers’ Memorial Hospital v. Sanford , [1934] 2 D.L.R. 334 (N.S.S.C.), in which a patient was not liable to pay for medical services after he was taken to the hospital under arrest and stated he did not want to be there; see also Black v. Edenwold , [1931] 1 D.L.R. 577, [1930] 3 W.W.R. 529 (Sask. C.A.). [58] Assuming that CLBC, not being a direct recipient of the services provided, was a person contemplated as a beneficiary of the services under this area of the law, it was not impractical for Ms. Skibinski to seek its instructions. Its instructions were in fact sought and it made its views known. Given the circumstances, it cannot be said that the law of necessitous intervention has any application, either as a stand-alone cause of action or as part of an unjust enrichment analysis. In particular, the concept can have no relevance to the legal positions of the parties following Mr. Birdi’s letter of 15 January 2008. Unjust enrichment [59] CLBC does not dispute that it is liable on a quantum meruit basis to pay Ms. Skibinski for the care of Lynn from late October 2007 (when she reduced her full-time care clients from three to two) until 15 January 2008. It concedes that during this period the care was provided with CLBC’s acquiescence and with a reasonable expectation by Ms. Skibinski that she would receive payment. I will return to this topic after I have discussed the unjust enrichment claim as it pertains to the period from 15 January 2008 to the date of the trial judgment some 33 months later. Cause of action [60] In Garland v. Consumers’ Gas Co. , 2004 SCC 25, [2004] 1 S.C.R. 629, Iacobucci J., for the Court, stated the law of unjust enrichment with reference to earlier leading authorities of the Court: 30        As a general matter, the test for unjust enrichment is well established in Canada. The cause of action has three elements: (1) an enrichment of the defendant; (2) a corresponding deprivation of the plaintiff; and (3) an absence of juristic reason for the enrichment ( Pettkus v. Becker , [1980] 2 S.C.R. 834, at p. 848; Peel (Regional Municipality) v. Canada , [1992] 3 S.C.R. 762, at p. 784) ... Enrichment [61] In items 1 and 2 of his summary set out above, the trial judge concluded that Ms. Skibinski had provided services that CLBC was obligated to fund and that CLBC likely would have had to pay someone for those services. With respect, it does not follow from these conclusions that CLBC was enriched as a result. The analysis is factually incomplete. [62] I am unable to agree that CLBC obtained a benefit as a result of the care Ms. Skibinski provided to Lynn following termination of the contract negotiations. Ms. Skibinski did not provide the care to CLBC. Although Peel and Garland establish that a benefit may be negative (such as an avoidance of an expense that might otherwise have been incurred), this principle is not applicable to the present case. The evidence is that CLBC operates under a budget fixed by government. At the relevant time, there was a waiting list of approximately 40 adults in the Upper Fraser Region in need of various services. It was Mr. Birdi’s evidence that “wait lists are necessary because of funding restraints.” [63] It follows that CLBC’s not paying for Lynn’s care did not increase the amount of money in its coffers, except perhaps temporarily within the current fiscal year. Within its budget, it merely applied elsewhere the money it might have paid for Lynn’s care. For this simple reason, it cannot be said that CLBC was enriched by the service given to Lynn by Ms. Skibinski. [64] The trial judge concluded that CLBC nevertheless benefitted because it had in some manner set aside funds pending the outcome of this lawsuit. At para. 167 of his reasons, the judge referred to the evidence of Mr. Birdi that “CLBC had set money aside to meet the possible eventuality of [Ms. Skibinski] succeeding in her claim”. The judge concluded that this money was probably invested with a return and that the investment return rebutted CLBC’s argument that money that would otherwise have gone to payment for Lynn’s care went to the benefit of others in need. [65] I consider this conclusion to be merely speculative. There was no evidence as to the amount of money CLBC had set aside, or that it had been invested. The evidence on this point was sketchy at best. The issue arose only in cross examination of Mr. Birdi. He was asked if CLBC had set aside the money it offered for the care of Lynn. He testified: “In this situation the money that we had offered -- based on that, we have set that aside, so that money is being -- is accrued”. When he was pressed, it became apparent that Mr. Birdi knew little about the accounting and he said that it was done “at the headquarters level ... and so we have set aside money based on the monthly rate that we would have offered”. There was no attempt at trial to develop specific evidence as to the amount of money set aside or what period it was intended to cover. [66] CLBC no doubt expected it would have to pay some monies to Ms. Skibinski for all or some of the period from July 2007 to January 2008. Prudent contingent bookkeeping is not proof of enrichment. [67] The evidence does not support the conclusion that there was an enrichment of CLBC. Deprivation [68] CLBC concedes that Ms. Skibinski provided to Lynn a service that has a monetary value and that, assuming without conceding that CLBC was enriched, the deprivation corresponds to the enrichment. Juristic reason [69] On the third element of the cause of action, absence of juristic reason, Iacobucci J. began his analysis in Garland thus: 38        In his original formulation of the test for unjust enrichment in Rathwell v. Rathwell , [1978] 2 S.C.R. 436, at p. 455 (adopted in Pettkus , supra , at p. 844), Dickson J. (as he then was) held in his minority reasons that for an action in unjust enrichment to succeed: ... the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason — such as a contract or disposition of law — for the enrichment. 39        Later formulations of the test by this Court have broadened the types of factors that can be considered in the context of the juristic reason analysis. In Peter , supra , at p. 990, McLachlin J. held that: It is at this stage that the court must consider whether the enrichment and detriment, morally neutral in themselves, are “unjust”. ... The test is flexible, and the factors to be considered may vary with the situation before the court. [70] At para. 40, Iacobucci J. referred to p. 802 in Peel , where McLachlin J., as she then was, wrote that application of the test for unjust enrichment should not be used to create “case by case ‘palm tree’ justice”. [71] In Garland , the discussion of juristic reason concludes as follows: 43        It should be recalled that the test for unjust enrichment is relatively new to Canadian jurisprudence. It requires flexibility for courts to expand the categories of juristic reasons as circumstances require and to deny recovery where to allow it would be inequitable. As McLachlin J. wrote in Peel , supra , at p. 788, the Court’s approach to unjust enrichment, while informed by traditional categories of recovery, “is capable, however, of going beyond them, allowing the law to develop in a flexible way as required to meet changing perceptions of justice”. But at the same time there must also be guidelines that offer trial judges and others some indication of what the boundaries of the cause of action are. The goal is to avoid guidelines that are so general and subjective that uniformity becomes unattainable. 44        The parties and commentators have pointed out that there is no specific authority that settles this question. But recalling that this is an equitable remedy that will necessarily involve discretion and questions of fairness, I believe that some redefinition and reformulation is required. Consequently, in my view, the proper approach to the juristic reason analysis is in two parts. First, the plaintiff must show that no juristic reason from an established category exists to deny recovery. By closing the list of categories that the plaintiff must canvass in order to show an absence of juristic reason, [Professor] Smith’s objection to the Canadian formulation of the test that it required proof of a negative is answered. The established categories that can constitute juristic reasons include a contract ( Pettkus , supra ), a disposition of law ( Pettkus , supra ), a donative intent ( Peter , supra ), and other valid common law, equitable or statutory obligations ( Peter , supra ). If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis. 45        The prima facie case is rebuttable, however, where the defendant can show that there is another reason to deny recovery. As a result, there is a de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained. This stage of the analysis thus provides for a category of residual defence in which courts can look to all of the circumstances of the transaction in order to determine whether there is another reason to deny recovery. 46        As part of the defendant’s attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, and public policy considerations. It may be that when these factors are considered, the court will find that a new category of juristic reason is established. In other cases, a consideration of these factors will suggest that there was a juristic reason in the particular circumstances of a case which does not give rise to a new category of juristic reason that should be applied in other factual circumstances. In a third group of cases, a consideration of these factors will yield a determination that there was no juristic reason for the enrichment. In the latter cases, recovery should be allowed. The point here is that this area is an evolving one and that further cases will add additional refinements and developments. 47        In my view, this approach to the juristic reason analysis is consistent with the general approach to unjust enrichment endorsed by McLachlin J. in Peel , supra , where she stated that courts must effect a balance between the traditional “category” approach according to which a claim for restitution will succeed only if it falls within an established head of recovery, and the modern “principled” approach according to which relief is determined with reference to broad principles. It is also, as discussed by Professor Smith, supra , generally consistent with the approach to unjust enrichment found in the civil law of Quebec (see, for example, arts. 1493 and 1494 of the Civil Code of Quebec , S.Q. 1991, c. 64). [72] In his summary of conclusions, set out above, the trial judge, at items 3 and 5, concluded that “[t]here was a reasonable expectation [Ms. Skibinski] would receive something for her services despite the absence of agreement” and that “... analysis based on the reasonable expectations of the parties does not provide a juristic reason” to deny recovery. In item 3, he added: “Donative (or gratuitous) intent cannot be inferred.” [73] With respect, the evidence is very clear that Ms. Skibinski could not expect payment if she continued to provide the services to Lynn and that CLBC did not expect that it would have to pay Ms. Skibinski. CLBC took steps to make these matters understood. The wording of Mr. Birdi’s letter of 15 January 2008 is explicit and unambiguous. [74] At para. 196 of his reasons, the trial judge stated that he could “not see how anyone in CLBC’s position could have inferred a donative intent by the plaintiff”. At para. 199, he stated that “the case narrows to whether [CLBC] could infer a donative intent”. The trial judge did not err in finding that CLBC could not infer a donative intent. In my opinion, however, the comment about donative intent does not complete the analysis. In order to defeat a claim for unjust enrichment on the basis of the absence of legitimate expectation of compensation, there is no requirement in the cases for the defendant to reasonably perceive an intention on the part of the plaintiff to make a gift. [75] The extensive analysis by the trial judge which underlay his conclusions in items 3 and 5 fails to adequately take into account many facts that are critical to the application, in this case, of the juristic reason element of the law of unjust enrichment. The reasoning substantially disregards the termination of contract negotiations and the clear and unequivocal position taken by CLBC in the letter of 15 January 2008. There is no mention by the trial judge of Ms. Chalmers’s understanding that another caregiver would have to be found if Ms. Skibinski was unable or unwilling to provide care to Lynn. Nor is there any mention of the significant fact that CLBC had no control over Lynn’s estate or her person. It had no power to intervene or to reverse decisions made by her committee concerning Lynn’s ongoing care. All these matters must have been within Ms. Skibinski’s knowledge. [76] CLBC says that it did not request the ongoing service provided by Ms. Skibinski and did not acquiesce in the provision of that service. Nor could Ms. Skibinski have any legitimate expectation of payment from CLBC. These facts constitute a juristic reason for dismissing the claim for unjust enrichment and for denying the remedy of restitution. [77] I agree with this argument. As I have said, the trial judge, in reaching the opposite conclusion, failed to properly take into account critical aspects of the evidence. [78] I begin with a general opinion. The courts did not develop the law of unjust enrichment to create a remedy for a participant in failed contract negotiations when that participant is free to walk away from the subject matter of the intended contract without suffering a loss or detriment, and chooses not to walk away. [79] Without qualification, this describes the present case. We have been made aware of no authority in which the doctrine of unjust enrichment has been applied in the manner the trial judge applied it here. I expect this is because, in circumstances like those of the present case, it is clear that the court cannot apply the principle without simply creating a contract for the parties where the parties have failed. This the court must not do. Freedom of contract is a fundamental tenet of the common law. It has not been replaced by the law of unjust enrichment. As stated by McLachlin J. in Peel at p. 786, it must be recognized in the law of unjust enrichment that the right to choose can only be impinged by “legitimate expectations”. In the present case, there could have been no such legitimate expectations. [80] It seems that the essence of Ms. Skibinski’s position during contract negotiations was that CLBC was obliged to contract with her (and with no other person) for the care of Lynn, either on Ms. Skibinski’s terms or on terms to be fixed by the court. Such a position was and is legally unsound. This is because when Ms. Skibinski took Lynn back into her home on 27 December 2007 she was about to reject CLBC’s offer and not negotiate further, in the knowledge that CLBC had another caregiver available. Such a position is unsound also because the legal relationship between the parties terminated when Ms. Skibinski received CLBC’s letter dated 15 January 2008. Presumed entitlement thereafter, even if well-intentioned, cannot constitute a foundation for a finding of unjust enrichment. [81] There was nothing to prevent CLBC from entirely severing its legal relationship with Ms. Skibinski so as to disentitle her from any claim in law against CLBC for ongoing services in connection with Lynn’s care. The letter of 15 January 2008, read in light of the contract negotiations prior to that date, clearly severed the legal relationship between the parties. It cannot be said that Ms. Skibinski had any basis for continuing to provide the care in the expectation, based in fact or in law, that CLBC would be liable to compensate her. [82] After she received Mr. Birdi’s letter of 15 January 2008, Ms. Skibinski had three options: (1) to accept CLBC’s contract terms (assuming CLBC could be persuaded to renew its last offer); (2) to look only to Lynn and her committee for payment; or (3) to refuse to provide the care and require the committee to make arrangements, through CLBC or otherwise, for placement of Lynn with another caregiver. [83] As I have said, what Ms. Skibinski could not do was continue to provide care to Lynn in the expectation that CLBC would pay her for her services without a contract. The evidence simply does not support a conclusion that such an expectation was reasonable. On the contrary, the only reasonable expectation, in the circumstances, was that CLBC would not in fact pay and would not in law be required to pay. Ms. Skibinski maintained an intransigent position that was contrary to her best interests. [84] Ms. Skibinski made a unilateral decision to continue to provide care to Lynn. She did not have to take her from the hospital in Abbotsford to her home on 27 December 2007. She chose to do so in the face of a stalemate in the contract negotiations. The next day she rejected CLBC’s contract offer. She made no counter-offer. She knew that she and CLBC were far apart as to remuneration and other significant contractual terms. [85] The juristic reason for denying recovery is that the parties severed their legal relationship; there was no acquiescence by CLBC to Ms. Skibinski’s providing ongoing care to Lynn on its account, and there was no basis on which Ms. Skibinski could have expected payment from CLBC for the ongoing care. I see the above as an established category of juristic reason, the absence of which Ms. Skibinski failed to prove. If this is not properly seen as an established category, I see it as a compelling legal reason to deny recovery. [86] I would vary the order under appeal by setting aside the award of compensation from the date on which the letter of 15 January 2008 took effect. Officiousness [87] The trial judge discussed at some length whether Ms. Skibinski acted in an officious manner so as to create a juristic reason for denying recovery. He determined that she did not so act. As I have observed, he found her conduct on 11 July 2007 was a necessitous intervention and he remarked at para. 207 that a plaintiff cannot be seen to have been a necessitous intervener if she acted in an officious manner. [88] I find it unnecessary to comment on this issue. It appears the judge related his findings to the events of July 2007 and not to the legal positions of the parties in December and January. It is not necessary to find that Ms. Skibinski acted officiously in order to identify a juristic reason for denying recovery. Final ground of appeal [89] As a separate ground of appeal, CLBC raised issues concerning the amount of compensation ordered. It says that the trial judge erred in awarding compensation in an amount higher than it was willing to pay. Although I consider there to be merit in this argument, I find it unnecessary to address it. Nor is there any need to address an ancillary argument that the amount of compensation should have been discounted to take into account the absence of the non-monetary contractual terms to which CLBC would have been entitled. Compensation [90] As I have said, CLBC does not dispute that Ms. Skibinski is entitled to compensation for the period from late October 2007 to mid-January 2008. It says that she is not entitled to compensation for the period from 11 July to late October 2007 because she was not then licensed to provide full-time care for more than two persons. [91] I accept the position of Ms. Skibinski that the letter of 15 January could have had no effect until she received it on 24 January. Compensation should be calculated on this basis of the later date. [92] Ms. Skibinski testified that Mr. Morgan expressly agreed to Lynn going to the Skibinski home in July 2007. Mr. Morgan denied this. At para. 211 of his reasons, the trial judge found that Mr. Morgan did not expressly agree but neither did he object. The judge found that Mr. Morgan’s position was that CLBC could not negotiate a contract with Ms. Skibinski while she had more than two residents receiving care in her home. Mrs. Skibinski’s position in response was that, if necessary, one of the other two residents could be moved. [93] I consider the objection of CLBC to Lynn’s going into Ms. Skibinski’s full-time care without regularization of Ms. Skibinski’s license status to be less than substantive. CLBC recognized that the placement was optimal at least for the short term and that strict compliance with the licensing requirement could be addressed in due course. In these circumstances it must be determined that CLBC acquiesced in the placement and that both parties expected that compensation would be determined by a contract to be negotiated and entered into. [94] I conclude therefore that the compensation period should commence on 11 July 2007 and end on 24 January 2008. [95] For the purpose of this appeal, the parties are agreed that the appropriate amount of compensation for this period of care is $55,800.36. [96] Most of Mr. Birdi’s evidence-in-chief was in the form of an affidavit. He swore that on 19 September 2008, CLBC made a voluntary payment to Ms. Skibinski of $19,498.73 for Lynn’s care prior to 15 January 2008. He swore that she also received payments under the day-care contract that expired on 31 December 2007, the total of the two amounts being $29,797.03. These matters seem to have been taken into account by counsel in determining the final amount expressed in the formal order. I presume they are to be deducted from the compensation amount of $55,800.36. If there is not agreement on this point, counsel should be at liberty to make further written submissions. [97] Counsel advised us that there are also some medical costs that must be added to the award of compensation, in an amount not yet determined. Conclusion [98] I would allow the appeal and reduce the amount of the judgment to $55,800.36 less proper deductions to be agreed upon or to be subject to further submissions. I would add proper medical costs in an amount to be agreed upon or to be determined on a reference to the Registrar of this court. Pre-judgment interest at the Registrar’s rates should be added. “The Honourable Mr. Justice Low” I agree: “The Honourable Mr. Justice Frankel” I agree: “The Honourable Mr. Justice Hinkson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Laidar Holdings Ltd. v. Lindt & Sprungli (Canada) Inc., 2012 BCCA 22 Date: 20120117 Docket: CA038943 Between: Laidar Holdings Ltd. Respondent (Plaintiff) And Lindt & Sprungli (Canada) Ltd. Respondent (Defendant) And DTZ Barnicke Limited Appellant (Third Party) And DTZ Barnicke Vancouver Ltd. and Colliers Macaulay Nickolls Inc. and Warrington PCI Management, A Partnership Respondents (Third Parties) And Blake, Cassels & Graydon LLP Respondent (Respondent) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Frankel The Honourable Madam Justice Bennett On appeal from Supreme Court of British Columbia, March 17, 2011 ( Laidar Holdings Ltd. v. Lindt & Sprungli (Canada) Ltd. 2011 BCSC 325, Vancouver Registry Docket S092249) Counsel for the Appellant: S.R. Andersen Counsel for the Respondent, Blake, Cassels & Graydon LLP: M.G. Armstrong Place and Date of Hearing: Vancouver, British Columbia December 16, 2011 Place and Date of Judgment: Vancouver, British Columbia January 17, 2012 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice Frankel The Honourable Madam Justice Bennett Reasons for Judgment of the Honourable Madam Justice Newbury: [1] This appeal involves a rule that straddles the line between substantive law – the law of contribution between tortfeasors, codified in the Negligence Act – and procedure – the court rules governing third party notices.  The rule has been considered several times and is well settled in this province.  It was described by McLachlin J.A. (as she then was) on behalf of this court in Adams v. Thompson, Berwick, Pratt & Partners (1987) 15 B.C.L.R. (2d) 51 as follows: It thus may be stated with confidence, in my view, that a third party claim will not lie against another person with respect to an obligation belonging to the plaintiff which the defendant can raise directly against the plaintiff by way of defence. Where the only negligence alleged against the third party is attributable to the plaintiff, there is no need for third party proceedings since the defendant has his full remedy against the plaintiff. (I will refer to this as the first branch of the Adams rule.)  The Court continued: On the other hand, where the pleadings and the alleged facts raise the possibility of a claim against the third party for which the plaintiff may not be responsible, the third party claim should be allowed to stand.  [At 55.] (I will refer to this as the second branch of the rule, although it might also be considered an exception to the first branch.) [2] In the case at bar, as in many previous cases, the question of which branch applies arises in the context of a client-solicitor relationship between persons in the positions of plaintiff and third party respectively – although in this case, they are in fact the defendant and a proposed fourth party respectively.  The chambers judge below held that the first branch of Adams applied, and dismissed an application brought by a third party, DTZ Barnicke Ltd. (“DTZ”), to join Blake, Cassels & Graydon LLP (“Blakes”), the solicitors of the defendant (and plaintiff by counterclaim), as a fourth party.  DTZ submits that the Court thereby erred and that the chambers judge should have followed a decision of the Ontario Court of Appeal, 478649 Ontario Ltd. v. Corcoran (1994) 118 D.L.R. (4th) 682.  There the Court ruled that it was not ‘plain and obvious’ that the fault alleged against a proposed third party, the plaintiff’s solicitor, would be attributable under agency principles to the client, and that the first branch of Adams should not be applied. [3] For the reasons that follow, I have concluded that the chambers judge in the case at bar did not err and that the appeal should be dismissed. Relevant Legislation [4] I begin by setting out a helpful explanation of the historical evolution of third party claims and the rules governing them, provided by McLachlin J.A., then of this court, in McNaughton v. Baker (1988) 25 B.C.L.R. 17: Third party proceedings are a form of pleading by which a defendant asserts a claim against someone other than the plaintiff in the event the defendant is found liable to the plaintiff. Originally, the claim was confined to contribution or indemnity: see Australian Newsprint Mills Ltd. v. Canadian Union Line Ltd . (1952) 6 W.W.R. 321 (N.S.), 7 W.W.R. (N.S.) 94 (B.C.S.C.). This type of claim that could be raised by third party proceedings was broadened in 1961 by amendments, confirmed in the present Rule 22(1). In addition to claims for contribution and indemnity, third party proceedings may be brought for claims for relief or a remedy relating to or connected with the original subject matter of the action, and in cases where the proposed third party claim involves a question or issue substantially the same as a question or issue arising in the claim between the plaintiff and defendant: see Webber v. Lowrie (1978), 8 B.C.L.R. 131, 90 D.L.R. (3d) 682 (C.A.). Third party pleadings function as a special type of statement of claim. Indeed, the claim they embody could be brought by separate action. But to avoid a multiplicity of proceedings, the rules permit the claim to be made in the action which has been commenced against the defendant. The object of permitting third party proceedings to be tried with the main action is to provide a single procedure for the resolution of related questions, issues or remedies, in order to avoid multiple actions and inconsistent findings, to provide a mechanism for the third party to defend the plaintiff’s claim, and to ensure the third party claim is decided before a defendant is called upon to pay the full amount of any judgment. The avoidance of a multiplicity of proceedings is fundamental to our rules of civil procedure. This has been the case since the reforms effected by the Judicature Acts in the nineteenth century. As Cotton L.J. stated in Searle v. Choat (1884) 25 Ch. D. 727: “[t]he whole tenor of the Judicature Act is to require all proceedings as far as possible to be taken in one action.” The rules in force in this province before 1976 required the defendant to obtain leave to issue a third party notice. Before a third party notice could be issued, the court was required to decide whether, in the interest of justice and convenience, the defendant should be allowed to join his claim against third parties in the action against him, or whether he should be required to bring it as a separate proceeding. In practice, leave was usually granted, provided the defendant’s proposed pleadings disclosed a reasonable cause of action against the proposed third party. Third party notices were commonplace, separate actions for indemnification and contribution rare.  [At 20-1.] [5] Sections 1 and 4 of the Negligence Act, R.S.B.C. 1996, c. 333, now provide: 1(1)      If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault. (2)      Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally. (3)      Nothing in this section operates to make a person liable for damage or loss to which the person's fault has not contributed. ... 4 (1)      If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person was at fault. (2)      Except as provided in section 5 if 2 or more persons are found at fault (a)        they are jointly and severally liable to the person suffering the damage or loss, and (b)        as between themselves, in the absence of a contract express or implied, they are liable to contribute to and indemnify each other in the degree to which they are respectively found to have been at fault. (Section 5 of the Act may be disregarded for purposes of this case: it is restricted to causes of action arising before April 17, 1985 in respect of bodily injury to or the death of married persons.)  The foregoing provisions are virtually the same as the provisions in force when Adams was decided: see R.S.B.C. 1979, c. 298. [6] Rule 22 of the Supreme Court Rules, also in force when Adams was decided, stated in material part: Issue of third party notice (1)        Where a defendant who has entered an appearance claims against any person, whether or not that person is a party to the action (in these rules called the third party), (a)        that he is entitled to contribution or indemnity, (b)        that he is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff, or (c)        that any question or issue relating to or connected with the original subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party, or between any or either of them, the defendant may issue in the same manner as a writ of summons a third party notice in Form 15 setting out a statement of the defendant’s claim against the third party. ... Third party proceedings not to prejudice plaintiff (12)      A plaintiff should not be prejudiced or unnecessarily delayed by third party proceedings, and the court may impose terms to prevent prejudice or delay. [7] Rule 3-5 of the Civil Rules of the Supreme Court of British Columbia, B.C. Reg. 168/2009, now governs third party notices in substantively similar terms to those of Rule 22.  Rule 3-5 provides in material part: Rule 3-5 ‒ Third Party Claims (1)        A party against whom relief is sought in an action may, if that party is not a plaintiff in the action, pursue a third party claim against any person if the party alleges that (a)        the party is entitled to contribution or indemnity from the person in relation to any relief that is being sought against the party in the action, (b)        the party is entitled to relief against the person and that relief relates to or is connected with the subject matter of the action, or (c)        a question or issue between the party and the person (i)         is substantially the same as a question or issue that relates to or is connected with (A)            relief claimed in the action, or (B)            the subject matter of the action, and (ii)        should properly be determined in the action. ... (2)        A third party claim may be pursued against a person, whether or not that person is a party to the action. ... (14)      The court may impose terms on any third party procedure to limit or avoid any prejudice or unnecessary delay that might otherwise be suffered by a party as a result of that third party procedure. Adams ‒ First Branch [8] In Adams, the plaintiffs had sought to develop certain property as a residential subdivision.  They had retained an engineering firm, the defendant Thompson, Berwick, Pratt & Partners, to carry out the plans and obtain municipal approvals.  They had also retained a firm of solicitors, Messrs. Shrum, Liddle & Hebenton, to provide services and advice with respect to the project.  Various problems with respect to the sewage disposal fields for the subdivision and setback requirements for residential lots arose, causing the plaintiffs to be delayed in marketing their lots.  During the period of delay, the market declined and it appears the project was abandoned. [9] The plaintiffs sued their contractor and the engineering firm, alleging negligent design and delay.  The engineers in turn issued a third party notice against Shrum, Liddle & Hebenton on the ground that in breach of their fiduciary duty owed to the plaintiffs , the law firm had failed to provide appropriate services.  In particular, it was said the law firm had failed to advise the plaintiffs that when the delays first arose, they should have sought to develop ten of the lots separately so that they could have been sold before the market “crashed”. [10] The engineering firm argued that if it and the law firm were found to have been at fault, it should be in a position to seek contribution and indemnity from the law firm, and therefore sought to invoke s. 4 of the Negligence Act , R.S.B.C. 1979, c. 298, and Rule 22.  This court, however, upheld the chambers judge’s order striking out the third party notice.  The Court cited Yemen Salt Mining Corp. v. Rhodes-Vaughan Steel Ltd. (1976) 2 C.P.C. 318 (B.C.S.C.) and Westcoast Transmission Co. v. Interprovincial Steel & Pipe Corp . (1985) 60 B.C.L.R. 368 (S.C.), both of which illustrated that, in the words of McLachlin J.A., “ Where the fault alleged against the proposed third party is in fact the fault of the plaintiff, the defendant can raise the default by way of defence, making third party proceedings unnecessary.”  (At 55.)  After stating the two branches of the rule in the passage I have quoted at para. 1, she explained the distinction between claims for contribution and indemnity between co-defendants under s. 4 of the Negligence Act , and the reduction of damages recoverable by a plaintiff who has contributed to his own loss, under s. 1: The same result arises if one views the matter on the basis of the Negligence Act and the Supreme Court Rules . Where the third party claim can be raised by way of defence, the substance of the matter is that the plaintiff is at fault. That being the case, s. 1 of the Negligence Act , which deals with the situation where fault is alleged, against the plaintiff, is applicable. Section 1 makes no provision for contribution or indemnity between co-defendants . By contrast, s. 4 of the Negligence Act , which deals with cases where the plaintiff is not at fault, provides for contribution and indemnity between those found at fault in causing the plaintiff's loss. Under Supreme Court Rule 22, a third party claim may be brought for “contribution or indemnity”. That remedy is available only where s. 4 of the Negligence Act is applicable. It is not available where the claim is for fault for which the plaintiff is responsible .  [At 55-6; emphasis added.] [11] The Court described two kinds of situations in which a plaintiff will be responsible for the conduct of a proposed third party ‒ where the acts of the third party fall within the scope of an agency relationship between the third party and the plaintiff, and where the claim is that the third party should have advised or assisted the plaintiff to mitigate his damages.  (At 56.)  In applying these principles to the facts in Adams , McLachlin J.A. found it unnecessary to decide whether legal advice given by a solicitor to his or her client – as opposed to the legal representation of one’s client in dealings with others – would fall outside the agency relationship, as the engineers contended.  Even if one assumed that argument was correct, she said, the purported third party claim was “in fact, a claim with respect to an obligation of the plaintiff[s] ” – the obligation to mitigate their losses.  This being so, the engineers would have a “complete remedy by way of reduction of [the plaintiff’s] damages” if the mitigation argument succeeded.  Third party proceedings were unnecessary.  (At 57.) [12] The first branch of Adams has been applied in several cases involving proposed third party notices against solicitors, including Sodican (B.C.) Inc. v. Bancorp Financial Ltd. [1987] B.C.J. No. 2909; Doyle v. Bell Pole Co. (1993) 86 B.C.L.R. (2d) 40 (S.C., Master); TNR Gold Corp. v. MIM Argentina Exploraciones S.A. 2011 BCSC 243; and Zur v. Rogowski, (B.C.S.C. Vancouver Registry, Docket S052676). We were also referred to Alkan Air Ltd. v. Johnson & Higgins [1990] Y.J. No. 122 (S.C.), which concerned an action by the plaintiff “Alkan” against its insurance brokers for failure to place excess insurance coverage.  The broker sought to add the plaintiff’s counsel as a third party, claiming that he had been negligent in his duty to the plaintiff “in not taking steps to have the plaintiff mitigate its loss.”  (Para. 4.)  The Court rejected the defendant’s submission that there was a “possible scenario whereby the sins of the counsel, Mr. Brenner, may not be visited upon the plaintiff, Alkan, and that is if the trial judge finds that Brenner was not acting in his capacity as counsel and agent for the plaintiff, Alkan, when he did something negligently, or negligently omitted to do something.”  Richard J. observed: On an application like this, I am bound by the pleadings. I am not to look beyond the pleadings. All of these pleadings allege a litigant/counsel relationship between Alkan and Brenner . The Statement of Claim states that Brenner was counsel to Alkan. The Statement of Defence filed by the Johnson & Higgins defendants, states that Brenner was counsel to Alkan. The Third Party Notice, that is attacked here, states that Brenner was counsel to Alkan. And for what it is worth, Brenner, in his Statement of Defence and on this application, states he was counsel to Alkan. There is no uncertainty on the issue, as was the situation in the McNaughton and Cardar cases . In summary, any wrongdoing alleged against Brenner, as counsel, is something that can be raised against the plaintiff, Alkan, and there is no need to add Brenner as a third party. In my view, the third party proceedings against Brenner are indeed unnecessary, and to strike these third party proceedings will, in my view, not prejudice the Johnson & Higgins defendants in their defence of this action. In the result, Mr. Brenner's application is granted and there will be an order striking out the Third Party Notice against him.  [At 10-2; emphasis added.] (See also Gelt Holdings Ltd. v. Doane Raymond Pannell [1995] B.C.J. No. 1283 (B.C.S.C.) at paras. 17-19 regarding accounting services.) Adams ‒ Second Branch [13] The “opposing” authorities applying the second branch of Adams involve circumstances where it appears on the pleadings that the breach of duty allegedly committed by the proposed third party might not be owed or attributable only to the plaintiff, but might give rise to an independent cause of action not ‘belonging to’ the plaintiff.  As stated in Adams : At the same time, it must be recognized that a person acting as agent to the plaintiff may undertake duties toward co-contractors and others outside the scope of his agency. To put it another way, the plaintiff's agent may, as a consequence of his relations with other contractors on the project, assume duties toward persons other than the plaintiff, for breach of which the plaintiff would not be vicariously liable. It was the possibility of such claims which led McEachern C.J.S.C. in Quintette, supra, to allow the third party claim to stand.  [At para. 20.] [14] This court’s decision in McNaughton v. Baker, supra, is an example of such a case.  There, a dairy farm had been sold in a transaction that later failed, leading the vendors to foreclose on a mortgage they had taken back from the purchasers.  The vendors sued the lawyers who had assisted in the transaction.  They in turn denied negligence and issued a third party notice alleging negligence on the part of the realtors and accountants who had also assisted the vendors.  The law firm relied on s. 4 of the Negligence Act and sought to plead a breach of duty of care owed by those parties to the law firm . [15] After some unsuccessful attempts were made by the law firm to amend its pleadings, the accountants sought to have the third party notice struck out.  This court held that the application stood to be decided on the basis of the pleadings, which must be considered to be true in connection with a motion to strike out or amend a third party claim.  (At 23.)  The judge below had instead made his decision “on the evidence”, finding no basis for an argument “that the alleged negligence would be applicable outside the scope of the retainer, whatever it may be.” [16] Considering only the pleadings, the Court found that McNaughton was distinguishable from Adams : it could not be said that the allegations against the third party “all necessarily related to acts committed as agents for the plaintiff.”  In McLachlin J.A.’s words: On the contrary, the scope of the retainer between the plaintiff and the accountants appears to be in dispute. In these circumstances, amendments alleging that the accountants owed an independent duty to the defendants of which they were in breach, disclosed a “possible” third party claim against the accountants and should be permitted.  [At 27.] In the result, the law firm’s amended third party notice as against the accountants was permitted to stand. [17] The second branch of Adams has also been applied in cases involving complex contractual and tort relationships among various parties including professional consultants who have interacted in the course of a project of some kind. Quintette Coal Ltd. v. Bow Valley Resource Services Ltd. (1986) 19 C.L.R. 153 (B.C.S.C.) , was one such case.  In Quintette , the plaintiff made various allegations founded in breach of contract, improper design, negligent misstatement, and other causes of action against the defendant, “Bow Valley”.  The plaintiff had contracted with an engineering firm, “Kilborn”, for its provision of project management, engineering, procurement, planning, scheduling, construction contract administration and construction management services.  The contract specified that Kilborn would be an independent contractor in the performance of these services and would perform them “in accordance with its own or agreed upon methods, subject to compliance with the specifications, schedules and drawings approved by the Client ...” [18] The defendant issued a third party notice against Kilborn.  The third party, supported by the plaintiff, applied to have the notice struck out.  McEachern, C.J.S.C., as he then was, formed the preliminary view that the case might be a suitable one for third party proceedings in light of the “independent contractor” clause.  Counsel for Kilborn argued, however, that two decisions of the Supreme Court of Canada, Bilodeau v. A. Bergeron & Fils Lt ée [1975] 2 S.C.R. 345, and Vermont Construction Inc. v. Beatson [1977] 1 S.C.R. 758, implied that Kilborn could have no duty to the defendant, with the result that the third party notice must be set aside.  Upon examination of these cases, and the decision of McLachlin J. (as she then was) in Westcoast Transmission Co. Ltd. v. Interprovincial Steel and Pipe Corp. (1985) 60 B.C.L.R. 368 (B.C.S.C.), the Chief Justice was not persuaded that they stood for the sweeping argument made on behalf of the third party.  He noted that the defendant was relying not only on an alleged breach of contract on the part of Kilborn but “rather its conduct as an actor in this particular construction neighbourhood when Kilborn knew there were other legal neighbours who might be injured by its lack of care, if any.”  (At 169.)  Like the accountant in Candler v. Crane, Christmas & Co . [1951] 2 K.B.164 (C.A.), the banker in Hedley Byrne v. Heller [1964] A.C. 465 (H.L.), the flooring subcontractor in Junior Books Ltd. v. Veitchi Ltd . [1982] 3 All E.R. 201 (H.L.) and even the bottler in Donahue v. Stevenson [1932] A.C. 562 (H.L.), the Chief Justice said, Kilborn might be said to have been “operating in the same milieu with the other actors, and duties to legal neighbours arose out of such circumstances whether there were contemporary breaches of contract to someone else or not.”  (Para. 29.) [19] The Court concluded that the defendant should be permitted to proceed with the third party proceeding.  (See also North Fraser Harbour Commission v. Hardy BBT Ltd. [1992] B.C.J. No. 2748 (S.C.), which involved a complex pollution cleanup project undertaken by various parties at various times; and G.W.L. Properties Ltd. et al. v. W.R. Grace & Company of Canada Ltd. et al., (B.C.S.C., Vancouver Registry, Docket C900884) dated June 10, 1992, which involved an asbestos removal project.) Ontario Cases [20] Counsel for DTZ  in the case at bar, however, referred us to two Ontario cases which distinguished Adams in fairly uncomplicated situations involving professional advisors – Cardar Investments Ltd. v. Thorne Riddell (1989) 71 O.R. (2d) 29 (Div. Ct.) and 478649 Ontario Ltd. Corcoran, supra. In Cardar, the plaintiffs had sued an accounting firm for damages they had allegedly suffered due to negligent advice given to them regarding the amount of scientific research tax credits they needed to buy in order to effect the greatest possible tax savings.  The accounting firm in turn sought to join the plaintiffs’ solicitors, alleging they had negligently ‘failed to make the necessary calculations’ or to advise their client to engage someone else to do so, and might therefore be partly responsible for the plaintiff’s damages within the meaning of s. 6 of the Negligence Act, R.S.O. 1980, c. 315.  It provided: 6.         Wherever it appears that a person not already a party to an action is or may be wholly or partly responsible for the damages claimed, such person may be added as a party defendant to the action upon such terms as are considered just or may be made a third party to the action in the manner prescribed by the rules of practice for adding third parties. [21] The law firm naturally relied on Adams, but the Court concluded that the firm’s conduct might not be attributable to its client on agency principles.  In the Court’s analysis: ... The alleged negligence of the solicitors in failing to calculate the optimum amount of tax credits required by the plaintiffs, can only be attributable to the plaintiffs if the plaintiffs were themselves under an obligation to make such calculation . Whether the plaintiffs were themselves under such an obligation depends on how specific the information was that they gave to the accountant and how specific the advice was that was given by the accountant to the plaintiffs. If, as alleged by the plaintiffs, the accountant advised the plaintiffs that each ought to buy $2,000,000 worth of tax credits, it can scarcely be maintained that the plaintiffs had to satisfy themselves in that regard before acting on it. In any event, since it is at this point uncertain whether the alleged negligence of the solicitors can be attributed to the plaintiffs, the third party notice should issue .  [At 33-4; emphasis added.] [22] Cardar was approved and relied upon by the Ontario Court of Appeal in Corcoran , the facts of which were somewhat similar to those of the instant case.  The plaintiff purchaser was suing the vendor of certain real property, and its real estate agents (“Stellar”), for negligent misrepresentation concerning the value of the property, which depended on its potential for development.  Stellar in turn issued a third party notice against the plaintiff’s solicitor on the ground that he had reviewed the agreement of purchase and sale before it was executed, and failed to give proper advice regarding precautions that could have protected his client.  (Like the allegation made against the solicitors in Cardar, this sounds suspiciously like a ‘last clear chance’ argument.) [23] Speaking for the Court in Corcoran , Laskin J.A. referred to Adams .  He read it as turning on the view that the plaintiffs’ obligation to mitigate their damages (which Laskin J.A. saw as the “substance” of the defendant’s allegation in Adams ) was the plaintiff’s alone, and could not be avoided by delegation to their solicitor.  This had not been the case in Carder and, he reasoned, was not the case in Corcoran, since in his analysis it was possible a plaintiff could shelter behind his or her choice of a reputable law firm as a defence to attributed responsibility as the firm’s principal. In his words: This may not be a case where the fault alleged against the third party is in fact the fault of the plaintiff, but rather a case where the plaintiff may not be responsible for the negligence alleged against its solicitor. While the plaintiff was, as the motions judge points out, responsible for completing the transaction, what has been put against the solicitor is that he was negligent in failing to give proper advice concerning the agreement of purchase and sale and that his negligence contributed to his client’s loss. The plaintiff may be able to say that it acted reasonably in retaining the third party to advise it on the terms of the agreement and accordingly should not be responsible for any negligence on the part of its solicitor .  See Salmond and Heuston on The Law of Torts , 20th ed. (1992) at p. 474 ff. and Jackson & Powell on Professional Negligence , 3rd ed. (1992) at p. 363 ff.  [At 689; emphasis added.] Ultimately, since the Court could not say that the third party claim was “certain to fail”, the plaintiff’s motion to strike out the third party claim was dismissed. The Case at Bar [24] Against this background, I turn at last to the case at bar.  It arises out of a real estate transaction involving a lease of property in Vancouver from the plaintiff “Laidar” to the defendant “Lindt”.  The lease provided that Lindt would be permitted to use the leased premises for the sale and distribution of chocolate – a use that, it later became apparent, was not permitted under the existing zoning of the property. [25] In negotiating the lease, Laidar had been assisted by a property management firm, the third party Warrington PCI Management (“Warrington”) and a leasing agent, the third party Colliers Macaulay Nicolls Inc. (“Colliers”).  Lindt was assisted by its leasing agents, the third parties DTZ and DTZ Barnicke Vancouver Ltd. (“DTZ Vancouver”), and by Blakes as legal counsel.  Because of the zoning difficulties, Lindt ultimately did not take possession of the premises or make any payments under the lease.  On March 24, 2009, Laidar sued Lindt for arrears of rent.  Among other things, Lindt then counterclaimed for breach of the lease and tortious misrepresentation.  Soon thereafter, it filed third party notices against DTZ and DTZ Vancouver.  Laidar filed notices against Warrington and Colliers. [26] In December, DTZ prepared a fourth party notice against DTZ Vancouver, Colliers, Warrington, Blakes and others.  Because more than 42 days had elapsed since it had been served with notice of claim by Lindt, DTZ required leave to file its fourth party notice under R. 3-5.  (See para. 7 above.)  The relevant portions of DTZ’s notice of claim read as follows: The Defendant instructed DTZ Limited to negotiate on its behalf on offer to lease of the subject property, which was prepared and dated February 14, 2009 (the “Offer to Lease”). Paragraph 26 of the Offer to Lease (the “Condition”) provided as follows: Tenant’s Condition #1: Solicitor’s Approval :  “This Offer is conditional for (5) business days from the date of acceptance of this Offer upon the approval of the terms hereof by the Tenant’s solicitor.  Unless the Tenant gives notice in writing delivered to the Landlord’s address as hereinafter indicated not later than the time period stated above, that this condition is fulfilled, this Offer shall be null and void and the deposit shall be returned to the Tenant in full without deduction.  This condition is included for the benefit of the Tenant and may be waived at his sole option by notice in writing to the Landlord within the time period stated herein.” At all relevant times, Blakes acted as legal counsel for the Defendant in regard to negotiation and preparation of the lease of the Property. Blakes failed to confirm that the Defendant’s proposed use of the Property was permitted by the applicable zoning bylaws.  In the alternative, Blakes failed to advise the Defendant that the zoning of the Property did not permit the Defendant’s intended use.  In the further alternative, Blakes failed to make the lease conditional upon a zoning variance or to otherwise ensure that the Defendant would be able to use the Property as intended.  [At paras. 25-8; emphasis added.] [27] With respect to the “Legal Basis” for the notice, DTZ alleged: Blakes owed the Defendant a duty to exercise the reasonable care, skill, and diligence of a reasonably prudent solicitor in connection with its negotiation and preparation of the lease. A reasonably prudent solicitor would have discovered the zoning issue, such that the Offer to Lease would have been voidable at the option of the Defendant. A reasonably prudent solicitor acting for a prospective lessee in such circumstances owes the client a duty to: (a)        confirm that the proposed use complies with the applicable zoning bylaws and if it does not comply to advise the client accordingly; and (b)        make the lease conditional upon a zoning variance or to otherwise ensure that the Defendant would be able to use the property as intended. In the circumstances, Blakes breached the duty of care that it owed to the Defendant : (a)        when it failed to confirm that the Defendant’s proposed use did not comply with the applicable zoning bylaws; (b)        in the alternative, when it failed to advise the Defendant that the zoning of the subject property did not permit the Defendant’s intended use; (c)        in the alternative, when it failed to make the lease conditional upon a zoning variance or to otherwise ensure that the Defendant would be able to use the property as intended.  [At paras. 23-6; emphasis added.] [28] The chambers judge, Madam Justice Maisonville, heard DTZ’s application for leave on February 16, 2011.  The contentious issue was whether leave should be granted to DTZ to bring the fourth party claim against Blakes.  At paras. 10-1 of her reasons, which are indexed as 2011 BCSC 325, the chambers judge stated the issue and her conclusion thus: Accordingly, paraphrasing Rule 3-5 (1) to the facts before the Court could DTZ ... be entitled to contribution or indemnity or relief from [Blakes]?  Is the question between DTZ ... and [Blakes] substantially the same question or issue relating to this matter and should it be properly be determined here? And, more specifically, the question is: Does a third party or fourth party claim lie against another with respect to an obligation belonging to Lindt which the landlord Laidar could raise directly against Lindt by way of defence? I have determined that the answer to that question is no. No third party claim or fourth party claim will lie against another when the defence is one the defendant could raise directly against the plaintiff. Any duty owing in law by [Blakes] to Lindt is to Lindt alone. Further the question between the parties is not the same – while the applicant DTZ ... seeks to characterize it as a simple matter of zoning, and thus “substantially the same question or issue” in the matter, it is clear the real issues will surround the lease. I do not find the issues to be the same. Accordingly the application, insofar as it seeks leave to add [Blakes] as a party to this matter, is to be dismissed for the reasons that follow. [29] At para. 22, Maisonville J. emphasized that the fourth party notice contained no assertion that Blakes had made any representations to DTZ on zoning, that it owed DTZ a duty of care, that it had acted outside the scope of its retainer with Lindt, or that it had committed any independent tort.  Echoing Adams, she continued: A third party (here DTZ ...), may not assert a fourth party claim pursuant to Rule 3-5 (1) in respect of an obligation belonging to a plaintiff, (here Lindt, the plaintiff by counterclaim,) that the defendant, (here Laidar) could raise directly by way of defence, even if the plaintiff by counterclaim contracted with a fourth party (here Lindt retaining [Blakes], the proposed fourth party) to discharge the obligation. Where a plaintiff by counterclaim, such as Lindt, contracts with two separate entities and later sues only one of them, the one sued cannot claim contribution or indemnity from the other on the ground that the other failed to execute its duties properly when there was no relationship between those parties contractual or otherwise . Further, where the only negligence alleged against the third or fourth party is attributable to the plaintiff there is no need for third or fourth party proceedings.  [At para. 24; emphasis added.] Relying as well on Yemen Salt Mining, supra , and College of New Caledonia v. Kraft Construction Co. Ltd. 2007 BCSC 1408, she concluded that the case fell within the first branch of the Adams rule, and that DTZ’s claim did not come within para. (a) of R. 3-5(1). [30] Turning next to paras. (b) and (c) of R. 3-5, the chambers judge noted that as in Alkan Air, supra , the retainer of the solicitors was “not questioned or uncertain”.  In both cases, it was alleged that the relationship between the plaintiff (here, Lindt) and its solicitors was that of litigant and counsel.  That relationship and the duty owed by the lawyer did not constitute the main issue to be tried, which was whether the lease was voidable or rescission should be granted as remedy.  Though not explicitly stated, it appears that the chambers judge thus concluded that neither para. (b) nor (c) of R. 3-5(1) applied. [31] Finally, the chambers judge noted that even if she had found that the application had been properly made, the Court could still deny leave to file a third party notice if the pleadings offended R. 9-5, which permits the Court to strike scandalous, frivolous, or vexatious pleadings.  She observed that generally, “counsel owes no duty to any other party of a proceeding except the client.  A pleading advanced by a non-client does not generally disclose a reasonable claim”.  (Citing Kamahap Enterprises Ltd. v. Chu’s Central Market Ltd . (1989) 64 D.L.R. (4th) 167 (B.C.C.A.), Young v. Borzoni , 2007 BCCA 16, and other cases.).  Alternatively, she said, the addition of Blakes as a fourth party would prejudice Lindt, which would be denied its counsel of choice.  In summary, Maisonville J. held: Since the proposed fourth party pleadings do not fall within Rule 3-5(1), the application to add [Blakes] is denied. There is no assertion that [Blakes] acted outside the scope of its responsibilities in the only relationship it had which was pleaded – that is to Lindt.  DTZ ... can raise by defence the obligations it says are owed to Lindt and consequently the fourth party pleadings are unnecessary. I have found this application did not meet the requirements of Rule 3-5(1) insofar as the applicant seeks to add [Blakes].  In any event, I would have denied the application to add [Blakes] under Rule 9-5 as not disclosing a reasonable cause of action.  [At para. 38.] Accordingly, she dismissed DTZ’s application to add Blakes as a fourth party. On Appeal [32] In this court, DTZ submits that the chambers judge erred in: 1)       finding that a fourth party notice could be brought against Blakes only if Blakes owed a duty of care to [DTZ]; 2)       finding that [DTZ] could not seek contribution or indemnity from Blakes pursuant to the Negligence Act ; 3)       finding that any negligence of Blakes would be attributed to Lindt; 4)       finding that Blakes acted solely as Lindt’s agent; and 5)       distinguishing and not following Corcoran . [33] I must say on the outset that in my view, grounds 3 and 4 rest on a misconception of the chambers judge’s reasoning and the task before her.  She did not find, nor could she find as facts, that Blakes acted solely as Lindt’s agent or that any negligence of Blakes would be attributed to Lindt.  Rather, she found on the pleadings that no “independent” tort, such as a misrepresentation made directly to DTZ, was alleged that would support a claim for contribution or indemnity by DTZ against Blakes.  Similarly, she noted – correctly in my view – that the fourth party notice referred only to duties of contract and care owed by Blakes to its client Lindt.  In other words, she did not find facts but proceeded on the basis of the pleadings, consistent with applicable case law: see, e.g., Baker v. McNaughton, discussed above.  Thus I conclude that grounds 3 and 4 cannot succeed. [34] With respect to the Negligence Act , DTZ submits that s. 4 creates an independent statutory right as between tortfeasors to claim contribution from any other person who may have been at fault.  On this point, DTZ cites The Owners, Strata Plan LMS 1751 v. Scott Management Ltd. 2010 BCCA 192, where the Court stated at para. 57: Section 4(2)(b) of the [ Negligence ] Act creates an independent right of contribution as between the defendants and the respondents since the plaintiff had a cause of action against each of them when the alleged tort occurred. (The respondents in Scott were various sub-trades and consultants who had been retained by the defendants in the construction of an allegedly “leaky condo” owned by the plaintiffs.)  Since DTZ is in the case at bar a third party rather than a defendant, it argues that the statement from Scott may be reformulated as follows: Section 4(2)(b) of the Act creates an independent right of contribution as between the third party and the fourth party since the defendant had a cause of action against each of them when the alleged tort occurred. [35] Apart from the issue of the timing of the ‘alleged torts’, this statement overlooks the fact that on the present pleadings, the only cause of action alleged against Blakes is the breach of a duty owed only to Lindt .  The lesson of Adams is that at least under the Negligence Act of this province, the breach of such a duty does not give DTZ an “independent right of contribution” against Blakes.  If the law firm was negligent in its advice to its client, DTZ would, like the engineers in Adams , “have a complete remedy” by way of reduction of Lindt’s damages for which DTZ could be liable.  A third party claim is unnecessary. [36] In normal circumstances, I would end this already too-long and tedious analysis here, and conclude simply that the first branch of Adams governs.  However, since counsel for DTZ made lengthy submissions based on Corcoran , I turn to explain why ‒ apart from the fact it involved different pleadings and different legislation ‒ in my opinion that case does not, and could not, displace Adams . [37] As we have seen, the Court in Corcoran declined to apply the first branch of Adams because of the possibility that having acted reasonably in retaining reputable solicitors to advise it on the terms of the agreement, the plaintiff might argue successfully that it should not be responsible on agency principles for any negligence on the solicitor’s part.  The Court did not cite any cases in which an argument of this kind has been considered in a comparable situation; nor did counsel for DTZ do so in the case at bar.  Nor have I located such an instance in the case law of this province.  The Court in Corcoran referred to two textbooks, Professional Negligence by Jackson and Powell, and The Law of Torts by Salmond and Heuston.  I do not find the former to be helpful on the point.  In The Law of Torts, however, Salmond and Heuston say this: The normal duty imposed by the law of negligence is no higher than one of reasonable care.  As always, it is a question of fact in each case whether reasonable care has been taken.  But it is certainly material to consider whether what has to be done is something which forms part of the obligor’s ordinary trade or business. If the act or process in question is one which involves technical skill or knowledge, then the ordinary man will discharge his duty by entrusting its performance to an apparently competent contractor. . . . On the other hand the principal may be liable where due care is not taken to see that the agent is properly qualified for the performance of the task so committed to him, or where proper instructions are not given to him in order to enable him to avoid the dangers incidental to the work.  For it is important not to give an undue advantage to the ignorant employer who confides all his affairs to independent contractors.  [At 476-77; emphasis added.] The authors seem to imply, then, that in some circumstances where a party lacks expertise in an area, he or she can avoid liability for the negligent discharge of a duty by relying reasonably on a third party who is competent in the area.  However, the authors provide a number of exceptions to this statement and do not appear to go as far as the proposition suggested in Corcoran . [38] Recently, the limitations of the reasoning in Corcoran have been clarified in two Ontario cases, Macchi s.p.a. v. New Solution Extrusion Inc. [2007] O.J. No. 4392 (S.C.J.), aff’d 2008 ONCA 586, and Davy Estate v. CIBC World Markets 2009 ONCA 763.  Unlike most of the cases considered above involving solicitors, Macchi did not involve only an alleged failure to mitigate on the client’s part, brought about by the solicitor’s negligence.  Rather, it was alleged the (plaintiff’s) solicitor had neglected to register properly a security interest in equipment on his client’s behalf, since he had been misinformed by one ”Simone”, a defendant, as to  the debtor’s name.  By the time the mistake was discovered, another creditor, the defendant New Solutions Financial, had registered a general security agreement under which it obtained a security interest in all of the debtor’s assets, including the equipment. [39] In the ensuing priority contest, the debtor and Simone sought to launch third party claims against the solicitor on the basis that he had been negligent in failing to verify the debtor’s correct name and thus caused loss to the plaintiff.  The Court struck out the debtor’s claim, noting that negligence on the part of the solicitor would not provide the debtor with a defence to the plaintiff’s claim in breach of contract. (Para. 11.)  As for Simone’s claim, he argued that he should be entitled to assert the solicitor’s alleged negligence as a defence to his (Simone’s) own misrepresentation.  Wilton-Siegel J. rejected Simone’s argument based on Corcoran that the plaintiff might succeed in distancing itself from fault on the part of its solicitor despite the agency relationship between them.  In the Court’s analysis: The factual circumstances of the present action are very different from those in Corcoran , which involved legal advice with respect to the terms of an agreement of purchase and sale.  The present action involves the simpler circumstance of registration of a security interest under the PPSA. Under that statute, the consequences of an invalid registration clearly fall on the creditor.  Failure to effect a valid registration has the consequence of subordinating a security interest to various parties.  It is only in this limited sense that it is even possible to speak of the “responsibility” for a valid registration statement resting with the creditor.  As a prudential matter, to protect itself, a creditor will wish to ensure that a registration complies with the requirements under the PPSA , including setting out the correct name of the debtor.  However, the creditor has complete discretion to decide how it wishes to proceed to protect its security interest under the PPSA. In many instances, a creditor uses its own personnel, who are knowledgeable in the requirements of the regulations, to attend to registration on its behalf. In other circumstances, including the present, a creditor will engage a solicitor to attend to a registration on its behalf.  If it does so, however, I think it is clear that the solicitor is simply acting as the creditor’s agent for the purpose of registering a security interest. Such circumstances fall within the circumstances envisaged by McLachlin J.A. (as she then was) in Adams ... [Paras. 17-8; emphasis added.] [40] The Court also considered that the legal relationship between principal and agent in Maachi was very different from that discussed in Corcoran .  First, having retained an agent to carry out the registration, the plaintiff “did not cease to bear the consequence of any negligence on the part of [the solicitor] by engaging him as its agent to attend to the registration. It remained responsible for the consequences of an invalid registration under the PPSA even if it resulted from negligence on the part of [the solicitor].”  (Para. 21.)  Second, Wilton-Siegel J. said: ... a party may only shelter under its engagement of legal counsel if it had a pre-existing duty, the performance of which can be said to be discharged by retaining qualified legal counsel to advise it .  In such circumstances, as Laskin J.A. stated [in Corcoran ], a party may be relieved of responsibility for any negligence of its counsel, with the result that liability for the consequences of the solicitor’s negligence falls entirely on the solicitor. In the present circumstances, however, Macchi had no pre-existing “duty” to effect a valid registration that could be satisfied by engaging qualified counsel to act on its behalf.  It cannot, therefore, distance itself from responsibility for, or the consequences of, any negligence on the part of its counsel as in Corcoran .  [At paras. 22-3; emphasis added.] Accordingly, the Court concluded that because any negligence on the part of the solicitor was attributable to the plaintiff, no third party proceedings were necessary.  Simone had his “full remedy against the plaintiff by virtue of his ability to assert the defence of Macchi’s negligence in its failure to conduct searches to establish the correct name of the party with which it had contracted.”  Simone’s third party claim was struck as failing to disclose a reasonable cause of action.  (The judgment was affirmed by endorsement by the Court of Appeal.) [41] The reasoning in Corcoran was discussed at greater length, and again distinguished in Davy Estate, supra. There the plaintiff, who was the trustee of her father’s estate, was suing for conversion and breach of fiduciary duty, alleging that the defendant financial managers had accepted her father’s instructions to make certain transfers out of his account, despite their knowledge of the father’s mental incapacity.  The defendants denied any knowledge of incapacity on the father’s part and pleaded that they had followed his wife’s instructions pursuant to the terms of a power of attorney she held from him. [42] Following an initial transfer from the father’s account, the plaintiff’s solicitor had written to the defendant “CIBC” to request that the account be frozen.  CIBC replied that a court order would be required for this purpose, but the plaintiff failed to seek such an order before the father’s wife had divested the estate of certain shares.  The plaintiff claimed damages for conversion and breach of fiduciary duty against the managers.  In response, they pleaded that the plaintiff had failed to mitigate the estate’s losses by failing to obtain a court order.  When asked why she had not sought such an order, the plaintiff deposed that she had relied on the advice of her solicitor, the proposed third party Mr. Henry. [43] The Court of Appeal agreed with the motions judge below that (the first branch of) Adams should be applied.  Speaking for himself, Laskin and MacFarland, JJ.A., Mr. Justice Sharpe began his analysis by noting the distinction between a plea of mitigation in defence to a plaintiff’s claim, and a claim against a third party who was “implicated in the initial loss and is thereby jointly and severally liable for the same loss that the plaintiff claims against the defendant.”  In the latter situation, the Court noted, the third party’s fault does not have the effect of reducing the damages that the plaintiff may claim against the defendant: “The defendant and the third party are each liable to the plaintiff for the full amount of the loss”.  (Para. 17.) [44] Where failure to mitigate is claimed, on the other hand, the plea arises “after the loss has been suffered and relates to events or conduct unrelated to the cause of the initial loss.”  The plaintiff’s solicitor owes the defendant “no common law duty of care” ‒ it could only arise under s.1 of the Negligence Act (R.S.O. 1990, c.N.1).  However, the Court said, s. 1 does not embrace a plea of failure to mitigate on the part of a plaintiff, which is a “ defence to the plaintiff’s initial claim that reduces the amount that the plaintiff may recover ... for the wrong to the plaintiff.”  (My emphasis.)  Sharpe J.A. continued: Even if the plaintiff relied upon advice from a solicitor that was negligent or given in breach of the solicitor's fiduciary duty, I fail to see how the solicitor's fault with respect to mitigating the loss can trigger a claim on the part of the defendant under the Negligence Act for having jointly caused the loss. The damages have not been “caused or contributed to by the fault or neglect of two or more persons”. The damages were caused solely by the defendant . The defendant's complaint is that the plaintiff failed to take post-loss steps to reduce the loss. As the fault of the proposed third party related to the reduction of the impact of the loss after it was suffered, and not to causing or failing to avoid the loss when it did occur, the proposed third party is not, in the words of s. 1 of the Negligence Act , “jointly and severally liable to the person suffering loss or damage” and not “liable to make contribution and indemnify” the defendant . Likewise, no claim arises under s. 2. This is not a claim by one tortfeasor who has settled with a plaintiff and, in any event, the solicitor is not a “tortfeasor who is, or could if sued have been, liable in respect of the damage ” (emphasis added) for which the appellants are allegedly liable. Finally, s. 5 is purely procedural in nature and deals with the right to contribution created by s. 1. It does not create a right to contribution and confers no substantive rights : HSBC Securities (Canada) Inc. v. Davies, Ward & Beck (2005), 74 O.R. (3d) 295, at para. 62.  [At paras 20-1; emphasis added.] Cardar and Corcoran were found to be distinguishable (from Davy Estate and from Adams ) on the basis that they had involved claims for contribution and indemnity against parties “alleged to have been implicated in the events giving rise to the initial loss”, as opposed to claims for failing to protect the interests of the plaintiff after the loss had arisen.  (Paras. 22-3.) [45] Finally and most importantly for our purposes, the Court went on to reject the possibility that a plaintiff relying on a solicitor’s advice might be found to have acted reasonably for purposes of satisfying its duty to mitigate, although the solicitor’s advice was negligent.  (Para. 27.)  Even in such circumstances, Sharpe J.A. said, he could for the reasons already given see “no basis in law” for allowing the defendant to assert a claim against the solicitor.  This result, he added, was in accordance with strong underlying policy reasons, including the “obvious mischief” that arises from allowing one party to sue another party’s solicitor: Such claims invade the sanctity of the solicitor-client relationship.  The solicitor’s loyalty to the client is undermined.  Difficult issues regarding solicitor-client privilege are bound to arise in relation to the solicitor’s defence.  These policy reasons cannot prevail in cases like Corcoran where the defendant has a valid legal claim against [the] solicitor for contribution and indemnity, but in a case such as the present one, the policy coincides with the strict letter of the law.  [At para. 28.] Accordingly, the Court applied the first branch of Adams and affirmed the order of the motions judge striking out the third party notice against the plaintiff’s solicitor. Conclusion [46] Returning finally to the instant case, all the threads of argument discussed above lead in my opinion to the conclusion that the chambers judge properly applied the first branch of Adams .  The proposed fourth party notice against Blakes does not disclose “events giving rise to the initial loss”, but simply alleges a failure to protect the interests of Lindt.  The conduct described in the notice clearly falls within the scope of the firm’s retainer, which is not “questioned or uncertain.”  Lindt was not performing a pre-existing obligation or duty; its only responsibility in the circumstances was to act reasonably to protect itself.  In the words of Adams , that was an obligation “belonging to” Lindt, which can be raised by the defendant by way of defence, making third party proceedings unnecessary.  Finally, I respectfully adopt the reasoning in Davy Estate , and conclude that even if one were to assume that in some circumstances, a client might avoid the consequences of an agency relationship by proving that he or she had retained a reputable agent, a defendant would nevertheless have no basis for a claim against the solicitor under the Negligence Act of this province for what remains the client’s failure to mitigate. [47] I would therefore dismiss the appeal. “The Honourable Madam Justice Newbury” I Agree: “The Honourable Mr. Justice Frankel” I Agree: “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Eichen v. Eichen, 2012 BCCA 32 Date: 20120118 Docket: ca038949 Between: Hans Peter Eichen Respondent (Plaintiff) And Rachel Eichen Appellant (Defendant) And Michael Dobres Defendant Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Lowry The Honourable Madam Justice Bennett On appeal from: Supreme Court of British Columbia, March 18, 2011 (Eichen v. Eichen, Vancouver Registry E041040) Oral Reasons for Judgment Counsel for the Appellant: D. Dunn Counsel for the Respondent: J. Fairburn Place and Date of Hearing: Vancouver, British Columbia January 18, 2012 Place and Date of Judgment: Vancouver, British Columbia January 18, 2012 [1] LOWRY J.A. : The question is whether Madam Justice Russell erred in making an order on 18 March 2011 terminating spousal support and cancelling arrears payable by Hans Peter Eichen to his former wife Rachel Eichen pursuant to an order made by Madam Justice Ross in 2007. Ms. Eichen filed no affidavit evidence and, although duly served, did not appear and accordingly did not oppose the application that gave rise to the order she now appeals. Nonetheless, she maintains the judge failed to apply the legal principles that govern applications of that kind. [2] The application was made under s. 17 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), which provides a court may vary spousal support orders. Section 17(4.1) provides: (4.1)  Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. [3] When the application was made, Mr. Eichen was 64 years of age; Ms. Eichen was 63. He filed an affidavit setting out the change in his circumstances. Briefly they are that he was employed and earning $44,637 a year in 2007 when he was ordered to pay $350 a month in support and $100 a month in payment of arrears totalling $5,253. He lost his employment. He became bankrupt in 2009 and has no assets. At the time of the application, his sole source of income was a CPP disability pension amounting annually to $10,176. Mr. Eichen suffers from various physical ailments; he is unable to work in his former occupation; and his medical prognosis is described by his treating physician as “poor”. He lives in subsidized housing. He knew little of Ms. Eichen’s financial situation but deposed he understood she had employment and had received a $30,000 inheritance from her mother over the past two years. [4] In making his application, Mr. Eichen sought no order for costs unless the application was opposed which, as indicated, it was not. [5] The judge granted the order without giving reasons. Ms. Eichen says the judge erred in not satisfying herself that there was a change in circumstances sufficient to justify the termination of support and the cancellation of arrears. But the evidence before her was clear in that regard and it was not challenged. I see no basis on which Ms. Eichen can be heard to say the judge erred. The fact the judge did not see fit to give reasons for the order she made on what she was properly informed was an unopposed application does not mean she did not apply the proper principles in granting the relief sought. She is presumed to know the law. [6] I would dismiss the appeal with costs in this Court and in the trial court. [7] SAUNDERS J.A. : I agree. [8] BENNETT J.A. : I agree. “The Honourable Mr. Justice Lowry”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Enviro West Inc. v. Copper Mountain Mining Corporation, 2012 BCCA 23 Date: 20120118 Docket: CA038580 Between: Enviro West Inc. Respondent (Plaintiff) And Copper Mountain Mining Corporation Similco Mines Ltd. Boundary Electric (1985) Ltd. and 0712603 B.C. Ltd. dba Canyon Electric Appellants (Defendants) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Tysoe On appeal from: Supreme Court of British Columbia, October 15, 2010 ( Enviro West Inc. v. Copper Mountain Mining Corporation, 2010 BCSC 1443, Vancouver Docket No. S088649) Counsel for the Appellants: R. Anderson, Q.C. T. Tomchak Counsel for the Respondent: R. Skolrood L. Cook Place and Date of Hearing: Vancouver, British Columbia June 10, 2011 Place and Date of Judgment: Vancouver, British Columbia January 18, 2012 Written Reasons by: The Honourable Madam Justice Saunders Concurred in by: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Tysoe Reasons for Judgment of the Honourable Madam Justice Saunders: [1] The principle of contributory negligence is concerned solely with the plaintiff’s behaviour and the duty to take care in one’s own interests. This appeal concerns the application of this principle to a collector of waste products, in the relatively new business field of hazardous waste removal. [2] The appeal is brought from the dismissal of a claim of contributory negligence in an action commenced by a waste oil collection firm for clean-up costs it incurred after removing waste oil containing a high level of polychlorinated biphenyls, colloquially referred to as PCBs, from an old transformer at a mine site near Princeton, British Columbia. Enviro West Inc. is the waste oil collector. It was hired by the appellants, collectively, to remove the waste oil. When the removed oil was discovered to be heavily laden with PCBs, Enviro West was required by environmental protection agencies to clean up its facilities and to ensure the contaminated oil was destroyed. Enviro West commenced the action to recover the costs of remediation from those who hired it to perform the service. [3] Ruling on Enviro West’s claim, Madam Justice Boyd found the appellants collectively liable to Enviro West in negligence for damages in the amount of $655,337.81 plus interest of $2,558.89. She apportioned liability 60% to Copper Mountain and Similco Mines Ltd., 20% to Boundary Electric and 20% to Canyon Electric. The learned judge dismissed a third party claim by Copper Mountain and Similco against Canyon Electric, and she dismissed the claim in contributory negligence. [4] Neither the finding of liability against the appellants nor the dismissal of the third party claim is in issue in this appeal. The appeal is directed solely to the appellants’ contention that the judge erred in finding there had been no contributory negligence on the part of Enviro West, that is, that Enviro West bears no legal responsibility for the contamination or the clean-up costs. [5] The appellants contend: 1.       although the judge correctly set out the factors required to be considered in determining the applicable standard of care, she failed to consider all of these factors as they relate to the issue of Enviro West’s contributory negligence, thereby committing an error of law; 2.       the trial judge erred in failing to appreciate relevant evidence and in disregarding relevant evidence; and 3.       the judge erred in finding, on consideration of the evidence as a whole, that Enviro West was not contributorily negligent. They say such a finding was unreasonable and demonstrates a palpable and overriding error. Preliminary Matter [6] Although each of these grounds of appeal is distinct, and contains its own nuances, the general theme is that the judge decided the contributory negligence issue on too narrow a basis, and failed to consider relevant factors pertaining to the posited contributory negligence of Enviro West, as well as evidence relating to the company’s practices and procedures. The latter, they say, is distinct from and should have been considered separate and apart from the direct evidence of the actions and inactions of the employee driver who collected the oil and transported it to Enviro West’s storage tank in Kelowna, British Columbia. [7] At the hearing of the appeal, the respondent contended that all submissions made to us had been made at trial, and that the appellants were asking us, effectively to retry the case, which is beyond our role. Yet the reasons for judgment describe the claim in contributory negligence only in terms of the driver’s conduct: [121]    The defendants have submitted that the plaintiff’s own contributory negligence has contributed to this loss.  In particular they submit that Enviro West’s employee, Costain: (1) failed to heed the verbal warnings of both Bishop and Mehr that he was about to collect and transfer oil with a high PCB content from the Transformer; (2) failed to heed the warning sign at the door of the MCC 1 room as well as the various warning labels on the Transformer itself, warning him that there was PCB-laden waste oil in the Transformer; (3) failed to request production of the PCB Report or conduct his own field test to determine the level of PCBs in the Transformer oil prior to commencing the collection and pumping process; (4) failed to ensure a manifest was properly completed prior to departing the Mine; and (5) failed to test the tanker truck oil to determine the level of PCBs in the waste oil prior to offloading it into Storage Tank 12 at the Enviro West Kelowna facility. [8] As the reasons for judgment do not address the broader theory of contributory negligence asserted in the appeal, we asked counsel whether written submissions made at trial were available, thereby to determine whether the theory of contributory negligence advanced before us was put to the judge. Counsel have since provided us with those submissions. Based upon them, I am confident the issues addressed in the appeal are issues that were part of the trial, and that it is proper for this court to consider the appeal on the basis that the appellants, in contending at trial for a finding of contributory negligence, alleged deficiencies on the part of Enviro West that went beyond the conduct of its driver. I turn now to the case. The Background to the Incident [9] The case arises from the re-starting of a mine near Princeton, British Columbia, owned by Similco which in turn is owned by Copper Mountain. The distinction between these two mining companies is not material to the appeal, and I refer to them together as Copper Mountain or, occasionally, as the mine owners. [10] A number of electrical transformers at the mine dated from the 1970s, an age when hazardous waste, particularly PCBs, was not regulated to the same extent that it is today. A report of the B.C. Ministry of Energy, Mines and Petroleum Resources outlining deficiencies at the mine identified leakage from one of the old transformers. A subsequent report commissioned by Copper Mountain on the nature of the oil that was leaking described the oil as “pure PCB”. Copper Mountain contracted with Canyon Electric to carry out the work required by the Ministry report, and accepted Canyon Electric’s suggestion that it contact Boundary Electric for a cost estimate for disposing of the leaky transformer. Boundary Electric in turn contracted with Enviro West, a waste oil collection firm, to pump the oil contained in the leaky transformer and transport it off the mine site. In the course of contracting with Enviro West for the removal of the waste oil, Boundary Electric informed the office manager in Kelowna that the oil contained PCBs, but did not advise Enviro West of the level of PCB contamination. Enviro West’s licence to transport hazardous waste did not permit it to carry oil containing PCBs in excess of 50 parts per million (ppm) and it had never been asked to pump oil containing PCBs over that level. The waste oil picked up by Enviro West from the mine site contained PCBs far in excess of 50 ppm, resulting in PCB contamination of the truck, a storage tank at Enviro West’s Kelowna facility, and other waste oil contained in the storage tank. The Findings of Negligence [11] Although the appeal concerns only the issue of contributory negligence, to understand that issue, it is useful to review the basis of the trial judge’s finding of negligence against the appellants. [12] In general terms, the finding of negligence against Copper Mountain rested largely on its knowledge of the presence of concentrated PCBs in the waste oil removed from the leaky transformer. As against all appellants, the finding of liability rested on their individual and collective failure to communicate the presence of high PCB levels to Enviro West. Before the judge, the appellants had denied that their actions and inactions in communicating the presence of concentrated PCBs were negligent and had asserted, in a submission that went to the heart of the issues of standard of care and causation, that they had provided sufficient warnings that PCBs were present to avoid responsibility in law for the clean-up costs. In saying this, they relied in part upon the actions and inactions of the Enviro West driver who had made the pick-up. He had received no hazardous waste training and in particular was both unschooled regarding the regulations applicable to PCBs and unaware of the terms of Enviro West’s hazardous waste carriage licence. When the driver attended at the mine site he was met at the gate by the mine superintendent who told him that the oil in the transformer at issue contained PCBs. Further, the door to the room containing the transformer which was set off to the side to allow for removal of the transformer, had a sign that read “WARNING” and “THIS ROOM HAS TRANSFORMER OILS WHICH CONTAIN PCBs”. The judge held that the driver had seen this sign, as well as labels affixed to the transformer that read: ASKAREL (CHLOREXTOL) FILLED CONTAINS PCB POLYCHLORINATED BIPHENYLS A TOXIC ENVIRONMENTAL CONTAMINANT SCHEDULED UNDER THE ENVIRONMENTAL CONTAMINANTS ACT. IN CASE OF ACCIDENT, SPILL OR FOR DISPOSAL INFORMATION CONTACT THE NEAREST OFFICE OF THE ENVIRONMENTAL PROTECTION SERVICE, ENVIRONMENT CANADA. [13] Although this sign meant that the oil present was essentially 100% PCB filled, the driver did not know the sign’s import. While he was in the room, the driver was advised by mine personnel that the oil in the transformer was “hot” or “high in PCBs”, and concern was expressed to him about leakage. The driver, however, took no additional steps, assuming wrongly that appropriate steps had been taken by Enviro West before he was dispatched. In addition, customer signatures are generally required on the manifest describing hazardous waste cargo, to be obtained prior to departure. In this case, the driver did not have mine personnel sign the manifest and the manifest did not describe the PCB content of the waste oil, contrary to legislative requirements. [14] After the driver left the mine, he picked up automotive waste oil from customers at other locations, which oil became contaminated with PCBs from the transformer oil. He then delivered all the accumulated oil to a storage tank at Enviro West’s Kelowna facility, thereby contaminating the waste oil contained in that tank, as well as pump equipment and associated piping. [15] In her analysis of the negligence claim, the judge relied upon the reasons for judgment in Wainwright (Town of) v. G-M Pearson Environmental Management Ltd ., 2007 ABQB 576, aff’d 2009 ABCA 18, leave to appeal ref’d [2009] S.C.C.A. No. 36, as an accurate application of the principles of negligence in the context of a case of environmental contamination. [16] The judge held that all of the defendants owed Enviro West a duty of care based on their knowledge that someone would have to collect the PCB laden oil: [77]      In the case at bar, I find that all of the defendants owed Enviro West a duty of care. There was a sufficiently close relationship between the parties such that all of the defendants should have reasonably contemplated that carelessness on their part might cause damage to Enviro West. While not all of the defendants knew the precise identity of Enviro West, all of the defendants knew the Transformer contained PCB-laden oil and that someone would have to collect, transport and dispose of the PCB waste oil. [17] The judge next addressed the standard of care required of the defendants. In Wainwright the standard of care owed by a waste generator is described at para. 193: ... the standard of care is to create and communicate sufficient accurate information to enable receivers of the waste to handle that waste safely and to minimize the risks related to handling those materials. [18] Applying that standard, the judge observed: [74]      ... The well-established objective, yet contextual, approach to the standard of care means that the standards of care applicable to the parties in the case at bar cannot depend on where each contractor sits in the chain. Rather, the standard of care applicable to each contractor must be determined based on what would be the reasonable actions for each type of contractor in the particular circumstances. [75]      In determining the conduct of a reasonable person in any given circumstances, the Court will consider a variety of factors: the foreseeable risk, the likelihood of damage, the seriousness of threatened harm, the cost of preventative measures, the utility of the defendant’s conduct, any circumstances of emergency, compliance with approved practice or custom, and post-accident precautions. A higher standard of care is applied to those persons who represent themselves as having special skill and knowledge which allows them to perform tasks that are normally beyond the capacity of the ordinary person. And: [79]      Clearly, Copper Mountain was the generator of the waste oil in issue. Wainwright establishes that a waste generator’s standard of care is to:  (1) fully understand the physical and chemical properties of the waste; (2) characterize and summarize the risks arising from those properties; (3) describe the nature of the levels; and (4) advise through a variety of means the difficulty of handling the waste and the risks related to the handling of that waste. And further: [100]    As the Court held in Wainwright , the standard of care requires that the waste generator fully inform the next waste handler and anyone else who might come in contact with the Transformer and the PCB waste oil of the true nature and risks associated with handling such a hazardous waste. ... [19] The judge first examined the actions of Copper Mountain. She found that “no steps were taken by this waste generator to ensure the hazardous material was being properly entrusted to a party experienced and qualified to handle the waste”, or to properly communicate the PCB concentration to Boundary Electric. She observed that “the verbal communication was not only woefully insufficient but it was . . . directed to the wrong individual”. She said: [101]    From the outset, long before the Enviro West oil tanker arrived on site, the critical information concerning the nature of this hazardous waste and the risks associated with the disposal of the PCB waste (both the Transformer itself as well as the oil within) ought to have been adequately communicated by Copper Mountain to Boundary Electric. That verbal communication should have been supported by documentation in the form of a purchase order or work order which detailed this critical information. I find it was unreasonable for Copper Mountain to expect that Costain, the Enviro West truck driver, would be the gatekeeper of this information. I accept that Costain was in no position to weigh or consider this critical information or to assess the associated risks. ... [103]    While perhaps in compliance with the regulatory requirements, I am not persuaded that by virtue of posting the warning sign and affixing the labels, Copper Mountain can be said to have met the standard of care imposed on a waste generator. Given both Costain’s and Enviro West’s history of attending at other sites to collect waste oil with PCBs less than 50 ppm, a label reading “Attention PCBs” was not likely to raise any alarm bells in Costain’s mind. [20] In the result, the judge found that Copper Mountain had failed to meet the standard of care imposed on a waste generator to properly identify the hazardous waste located at the mine and to warn other potential handlers of its nature. [21] The judge likewise found that Canyon Electric and Boundary Electric had failed to meet the standard of care required of them. She concluded that the representative of Canyon Electric, Mr. Leardo, breached the duty of care that was owed to Enviro West, and that his “casual and flagrantly cavalier attitude towards the disposal of the [t]ransformer laid the groundwork for the miscommunications which followed”. Turning to Boundary Electric, she found it had “failed to take any proper steps to establish the nature of the transformer and the waste oil within”. Although Boundary Electric knew there were PCBs in the waste oil and communicated that fact to Enviro West, Canyon Electric had not informed Boundary Electric of the level of PCB contamination. The judge found that Boundary Electric’s principal, Mr. Docksteader, “simply never turned his mind to the risks or hazards associated with bringing a waste oil collection company ... to the site to collect and transport waste oil from the [t]ransformer which Boundary Electric had never taken the time to inspect”. [22] Such was the basis for finding a breach of the duty of care. The judge then addressed causation. Applying the “but for” test, she said: [116]    Overall, Copper Mountain failed to take any steps to ensure the PCB waste in its possession was handled in compliance with the regulatory requirements. Had Copper Mountain been diligent in providing information about the nature of the Transformer oil and the risks associated with this PCB-laden waste oil, Enviro West would have never collected the PCB waste oil from the Transformer, would have never transferred the PCB waste oil into its tanker truck, and would have never offloaded the PCB waste oil into the storage tank at its Kelowna facility. [117]    But for Copper Mountain’s failure to communicate the nature of the Transformer oil in a reasonable manner to Canyon Electric and to ensure that this information was properly communicated to Boundary Electric, Boundary Electric would have never accepted the Transformer [oil] and would have never retained Enviro West to collect, transport and dispose of the Transformer oil. [118]    But for Canyon Electric’s failure to advise Boundary Electric that it either knew this was almost pure PCB-laden oil or alternatively that it did not know the PCB content of the Transformer oil, Boundary Electric would have followed its regular practice of requiring and [ sic ] analytical test report for the waste oil or perform its own field test of the Transformer oil before agreeing to accept this Transformer. Had Boundary Electric had the analytical test report indicating the true PCB content of the Transformer oil, Boundary Electric would not have agreed to accept the Transformer. [119]    But for Boundary Electric’s failure to advise Enviro West that the Transformer oil contained PCBs in excess of 50 ppm, that the PCB Report was available, and that Boundary Electric itself had not verified the PCB level in the Transformer oil, Enviro West would not have collected, transported, stored and disposed of the Transformer oil. [23] In the result, the judge found that Copper Mountain, Canyon Electric and Boundary Electric were liable in negligence for the costs of remediation occasioned by the contaminated waste oil. The Claim of Contributory Negligence at Trial [24] Arguing in the alternative, in the event that the judge were to find liability in negligence, the appellants alleged at trial that in these circumstances Enviro West was contributorily negligent. [25] Similco was the last added defendant, joined some time after the pleadings between the other parties were complete. Its statement of defence contains the most fully developed pleading of contributory negligence. The essential averments are: 12.       ... the Plaintiff was contributorily negligent in failing to observe or act upon the warning signs set out above. Similco pleads and relies on the provisions of the Negligence Act, R.S.B.C. 1996, c. 333, and amendments thereto. 13.       The Plaintiff was also negligent in failing to request test results for the oil in testing the oil prior to pumping. The Plaintiff was also negligent in mixing the oil it had pumped from the Transformer with other oil without testing and despite having been warned of the dangers of such a practice. 14.       The Plaintiff was negligent in failing to properly complete the manifest with respect to the shipment of oil, including the fact that the Plaintiff failed to obtain a signature on the manifest. 15.       The Plaintiff has failed to meet the statutory requirements imposed on it, including the Environmental Management Act, the Hazardous Waste Regulations, the Canadian Environmental Protection Act and the PCB Regulations. 16.       The Plaintiff failed to employ a driver with proper training related to the handling and identification of hazardous wastes. The Plaintiff failed to establish appropriate policies and procedures for hazardous waste identification and handling or procedures for employees to follow to ensure there was proper documentation for dealing with waste. [26] As replicated at para. 7 above, the judge described the defendants’ submissions on contributory negligence as alleging that the Enviro West driver: 1.       failed to heed verbal warnings that he was about to collect and transfer oil with a high PCB content; 2.       failed to heed the warning signs on the door of the room and on the transformer, alerting him to the presence of PCBs; 3.       failed to request production of a PCB report or failed to conduct his own field tests to determine the level of PCBs prior to collecting the transformer oil; 4.       failed to ensure the manifest was complete before departing the mine; and 5.       failed to test the collected oil for PCBs before offloading it into the storage tank. [27] In addressing the allegations listed, the judge rejected the first three submissions for the reasons she had already given on the determination of primary liability. [28] As to the fourth submission concerning the driver’s failure to adequately complete the manifest and have it signed, the judge found it was not unusual for Enviro West to pick up waste oil from a site where there was no one available to sign the manifest. More importantly, she found there was no evidence that events would have taken a different course had the manifest been signed by a representative of the mine as required. In other words, the judge found that causation was not established. She said: [129]    Despite Docksteader’s evidence that his employees would have likely stopped the shipment of waste oil, I am satisfied that even if a Boundary Electric employee had been on site and signed the manifest, no alarms would have been raised. So far as Boundary Electric was concerned the Transformer oil was regular waste oil. Even after attending later and finding the leaky Transformer with the PCB warning labels in place, the Boundary Electric truck driver employee was not concerned, and was apparently content to transport the Transformer carcass to the Boundary Electric yard without ever realizing the nature of the hazardous waste. [130]    As to Copper Mountain, while its employees were acutely aware of the nature and level of PCBs in the Transformer oil, no one at Copper Mountain was apparently aware of the regulatory requirements regarding the transportation of such hazardous waste. No one asked that either Enviro West (at the time of pick-up of the Transformer oil) or Boundary Electric (at the time of the later pick-up of the Transformer carcass) produce a license verifying their authority to transport this hazardous waste. [29] In relation to the issue of the incomplete manifest, the judge concluded: [131]    I therefore find that Costain’s failure to ensure the manifest was signed on site prior to departure was not negligence on his part. [30] The judge next addressed the fifth submission she had listed, namely that Enviro West was contributorily negligent because the driver did not test the oil for PCBs before offloading it into the storage tank. She found that the driver, who had been told by mine personnel on site that there were “high PCBs” in the transformer oil, did not relay that information to Enviro West personnel prior to offloading the collected oil. However, she rejected the various submissions to the effect that Enviro West’s practices were faulty given that the bulk of its business consisted of collecting oil with only low levels of PCBs. She held that the standard of care in the circumstances did not require the testing advocated by the appellants, and said: [138]    While I agree that Enviro West was aware it was assuming some degree of risk in accepting loads of transformer oil at its facility, I am not persuaded that risk translated into a duty to test each of its tanker trucks for PCB content prior to offloading the waste oil into its storage tanks. There is no evidence of any industry standard requiring Enviro West to conduct such testing. Nor is there any regulatory requirement to do so. ... ... [140]    While Boundary Electric has suggested that Enviro West should have at least screened Boundary Electric’s Transformer oil alone, I am satisfied it would have been impossible to do so unless Boundary Electric’s Transformer oil was isolated from other waste oil and presumably carried in a separate tanker or pup trailer and not mixed with other waste oil. I accept that such a practice would have been a non-starter in terms of costs. Nor is the issue satisfactorily addressed by suggesting the testing ought to have been done earlier—that is at the time of pick-up at the Mine, using a field test kit to test for PCB content. The only evidence regarding the reliability of such tests was adduced from Docksteader, who acknowledged that even those field tests are known to yield false positive results. There was no expert evidence before the Court concerning the reliability of such field test kits nor whether it would have been reasonable for Enviro West to have conducted and relied on such tests prior to mixing a transformer oil pick-up with other waste oils in its storage tank. [31] Last, the judge rejected the appellants’ submission that Enviro West’s failure to test the collected oil prior to offloading made the company completely responsible for the ensuing loss: [142]    Finally, I should note that there was some suggestion by the defendants that Enviro West was entirely responsible for this loss by virtue of failing to test the tanker truck oil for PCBs prior to offloading into its storage tanks. The defendants say that had Enviro West conducted such testing prior to offloading the PCB contaminated waste oil, the loss would have been entirely or at least substantially avoided. [32] This proposition, she said, was a version of the last clear chance doctrine, no longer applicable in British Columbia: see Lowe v. Insurance Corp. of British Columbia , 2002 BCCA 514; Lawrence v. Prince Rupert (City), 2005 BCCA 567; and Dyke v. British Columbia Amateur Softball Assn., 2008 BCCA 3. Discussion a) Standard of Review [33] Consideration of a case such as this must begin with recognition of the limited role of this court on appeal. We may only interfere with an order where it is demonstrated that the order was made on a mistake of law or principle, or in respect to a factual matter, there is an obvious (palpable) error that is material to the outcome (overriding): Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235. This high hurdle on issues of fact reflects deference to the trial function, and recognizes the complex role of a trial judge charged with the task of hearing all of the evidence, making findings of credibility and determining the facts on a balance of probabilities. b) General Framework of Contributory Negligence [34] The appellants’ claim of contributory negligence is governed by s. 1(1) of the Negligence Act , R.S.B.C. 1996, c. 333: 1 (1)     If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault. [35] The foundational principle of contributory negligence was laid out by the Privy Council in Nance v. B.C. Electric Railway , [1951] A.C. 601, and applied, for example, by this court in Alberta Wheat Pool v. Northwest Pile , 2000 BCCA 505, 80 B.C.L.R. (3d) 153. Writing for the majority in Alberta Wheat Pool , Mr. Justice Finch (now C.J.B.C.) described the duty of care applicable to a claim of contributory negligence as the duty “to take reasonable care” on one’s own behalf. [36] In Bradley v. Bath , 2010 BCCA 10, 1 B.C.L.R. (5th) 228, Mr. Justice Tysoe for the Court adopted at para. 25 the description of contributory negligence in John G. Fleming, The Law of Torts , 9th ed. (Sydney: LBC Information Services, 1998) at 302 as follows: Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about his injury. The term “contributory negligence” is unfortunately not altogether free from ambiguity. In the first place, “negligence” is here used in a sense different from that which it bears in relation to a defendant’s conduct. It does not necessarily connote conduct fraught with undue risk to others , but rather failure on the part of the person injured to take reasonable care of himself in his own interest. ... Secondly, the term “contributory” might misleadingly suggest that the plaintiff’s negligence, concurring with the defendant’s, must have contributed to the accident in the sense of being instrumental in bringing it about. Actually, it means nothing more than his failure to avoid getting hurt ... [Emphasis in original; footnotes omitted.] c) The Claim of Contributory Negligence Against Enviro West [37] There are, therefore, two questions to be answered in considering a claim of contributory negligence: did the plaintiff fail to take reasonable care in its own interests; and if so, was that failure causally connected to the loss the plaintiff sustained. The submissions of the appellants, analytically, are directed mainly to the first issue. In saying that the judge failed to consider all the relevant factors, and omitted consideration of a body of evidence, the appellants are saying there are fatal flaws in the reasoning process employed by the judge in concluding that Enviro West did not fail to take reasonable care of itself. [38] To some degree the submissions of the parties miss each other, and such was the case with the written submissions at trial. Enviro West was focused on the potential for finding contributory negligence through the actions of the driver and specifically the criticisms levelled at him for pumping the PCB laden oil into his truck, for failing to obtain a signature on the manifest, for mixing other waste oils with the PCB laden oil, and for permitting the collected waste oil to be pumped into the storage tank without prior testing, all in the face of the verbal “warnings” provided by mine personnel and the various labels and warning signs posted and seen by him at the mine. The judge dealt with these criticisms in a comprehensive manner, holding that the impugned actions of the driver did not amount to contributory negligence. In doing so, faced with conflicting evidence as to the content of certain conversations and the timing of events, the judge carefully sorted the evidence and made her findings based on the body of evidence before the Court, as she was bound to do. Her conclusions in this respect are, in my view, unassailable. Without attempting to create an exhaustive list, her treatment of these criticisms includes the following: the judge’s conclusions at para. 129, replicated above, regarding Enviro West’s failure to obtain a completed manifest signed by the customer’s representative; the judge’s conclusion that the incomplete nature of the manifest was not causally connected to the damages sustained by Enviro West; the judge’s treatment of the driver, his knowledge, his actions and inactions, and her acceptance of his explanation for failing to appreciate the significance of the imprecise information given to him and thus not recoiling upon hearing the words “hot” and “PCBs”; and the judge’s conclusion regarding the timing of the driver’s statement to personnel at the Enviro West office that he had been told the waste oil was “hot” or had high PCBs. [39] However, the criticisms of Enviro West advanced by the appellants, and in particular Copper Mountain, went further and were explored by the appellants in the evidentiary phase of the trial. Enviro West witnesses were asked questions at trial about the training provided to Enviro West staff, the breadth of its business, the hazardous waste licensing system and its corporate knowledge of the licensing restrictions constraining its activities, and the response that should have been provided by Enviro West office personnel upon being told that the waste oil contained PCBs. [40] At trial, Enviro West disputed the allegation that Boundary Electric had told Enviro West’s Kelowna officer manager that the oil to be removed from the transformer contained PCBs. The judge, however, found that such information had been provided to Enviro West before the driver was dispatched, although, as everyone agreed, no information was communicated regarding the PCB concentration level. Upon that finding, the evidence of Enviro West’s General Manager that a call from a customer requesting collection of oil containing PCBs should have triggered a question in response regarding the concentration of PCBs, as well as a request for documentation of test results, became relevant. Yet there is no discussion of the General Manager’s expectations in this regard in the reasons for judgment. [41] Similarly, there is no discussion in the reasons for judgment of other evidence relevant to contributory negligence adduced at trial that was not directed to the issue of the driver’s conduct, including: 1)       evidence from the General Manager that the Kelowna office should ensure drivers are aware of the serious implications of transporting oil with PCB concentrations over 50 ppm, and his evidence that, if drivers were not aware of this threshold, someone had “dropped the ball”; 2)       evidence from Enviro West’s founder and Chief Executive Officer, who has extensive experience in the industry, that he expected his employees to be aware of the meaning of labels required by the Federal Government to identify high levels of PCBs, which labels were present at the mine, but which neither the Kelowna Operations Manager nor the driver knew the import of; 3)       the lack of guidelines or written policies in place at Enviro West to ensure employees or middlemen knew their statutory obligations relating to PCBs; and 4)       evidence that Enviro West’s founder and Chief Executive Officer had, in the past, advocated against acting on a presumption of good faith in dealing with waste removal customers and had advocated for testing, which was not performed by Enviro West until immediately after the incident. [42] In my view, this evidence is material to the issue of Enviro West’s fulfillment of its duty to take reasonable care in its own interests, and reasons for judgment on the contributory negligence claim that do not consider Enviro West’s “corporate behaviour”, characterized by the appellants as “systematic”, fail to fully address the content of the requisite standard of care. [43] The judge observed in her reasons for judgment that a finding of contributory negligence risks putting too high a burden on the driver, saying that it could be unreasonable to expect him to act as “the gatekeeper”. This observation reflects an approach to the issue of contributory negligence that focuses solely on the driver’s behaviour, rather than on the behaviour of Enviro West qua a hazardous waste collector and transporter. The observation, however, does fairly measure the responsibility of the driver in these circumstances, given his apparent lack of training on the limitations of his employer’s hazardous waste carriage licence and the import of those limitations, and the apparent lack of information provided to him when he was dispatched to the mine. The latter resulted from the appellants’ negligence, for which they have been held accountable, but the former is a circumstance within the control of Enviro West that received no consideration in the reasons for judgment. [44] The question should be asked whether, with prudent enquiry as to the nature of the cargo to be collected and basic training on hazardous materials and the scope of Enviro West’s licence to transport hazardous waste, a reasonable driver confronted with a similar situation would behave differently. We know that on a daily basis drivers throughout the province safely collect, transport and off-load hazardous materials. Likewise, employees regularly engage in the proper handling of other materials associated with serious risk, such as asbestos. The problem identified by the judge of the driver being asked to act as the gatekeeper may not arise where the corporate organization, in the words of the General Manager, has not “dropped the ball”, but the judge did not advert to this aspect of the appellants’ claim in contributory negligence. [45] In determining whether, on a full consideration of the evidentiary record and the findings of the judge regarding the circumstances of the incident, contributory negligence was established, I am mindful that the judge found that Enviro West had never handled cargo with high levels of PCBs. This finding helps explain why events unfolded as they did, but it does not respond to the testimony of Enviro West’s General Manager that information of PCB content should trigger further enquiry, the evidence that old transformers are a known PCB risk, or the tenor of the evidence from Enviro West’s founder and Chief Executive Officer regarding the dangers of PCB contamination and the components of safe practice. Likewise, I recognize that the judge found there was no evidence of an industry standard of testing. However, this conclusion does not address the evidence from Enviro West’s senior management regarding the need in such situations to gather more information before dispatching a driver to pick up a customer’s waste oil. [46] I should comment, as well, on the judge’s reference to the “doctrine of last clear chance”. She remarked that the appellants’ submission that the collected oil should have been tested before being off-loaded was a version of that doctrine, which is no longer applicable in British Columbia. Although my conclusion rests on the larger issue of the applicable duty in contributory negligence and its application to a hazardous waste collector in this case, I would not agree that the last clear chance doctrine was a spectre here. The abolition of this doctrine, as admirably described in the cases to which the trial judge referred, penned by Mr. Justice Esson ( Lawrence v. Prince Rupert (City), in dissent) and Mr. Justice Donald ( Dyke v. British Columbia Amateur Softball Assn. ), prevents an either/or analysis in the assessment of liability. To use Mr. Justice Donald’s phrasing, the change in the law requires us to view multiple fault situations as a “web” rather than a “chain” of events and actors. I do not understand how the submission that the cargo should have been tested prior to off-loading can be seen as an either/or claim when it is made in the context of a claim of contributory negligence. Indeed, it seems to me that the essence of a claim of contributory negligence is a denial of the last clear chance doctrine. [47] In her reasons for judgment, the judge referred to the regulatory scheme governing hazardous waste, relying upon it in finding a breach of the duty of care owed by each of the appellants to Enviro West: [80]      Legislative standards are a relevant factor in determining the common law standard of care, and a breach of a statute is evidence of negligence ( Ryan v. Victoria (City) , [1999] 1 S.C.R. 201). Here the handling and disposal of hazardous waste is regulated by both the federal and provincial government through several statutes and regulations including, most notably, at the time of the incident, the Environmental Management Act , S.B.C. 2003, c. 53 (“ EMA ”), the Hazardous Waste Regulation , B.C. Reg. 63/88 (“ HWR ”), and the Canadian Environmental Protection Act, 1999 , S.C. 1999, c. 33 (“ CEPA ”). [81]      The EMA and the HWR govern the handling, transport, recycling, and disposal of hazardous waste within British Columbia. [82]      “Hazardous waste” is a defined term in s. 1 of the HWR and includes both PCB wastes and waste oil. As of August 2008, s. 10(1) of the EMA and s. 46(1)(e) of the HWR , prohibited a person who produced or stored a hazardous waste from using or allowing any hazardous waste with 500 g or more of PCB to be transported from the property where he or she produced or stored that hazardous waste, unless the person first completed the part of the manifest that applied to him or her and filed the manifest in the prescribed manner. The person was also required to ensure that the person transporting hazardous waste with 500 g or more of PCBs from the place where it was produced or stored had a licence for that purpose. Finally, the person who produced or stored the hazardous waste containing 500 g or more of PCBs was prohibited from causing or allowing that hazardous waste to be transported to a place unless the place is authorized to store PCBs. [83]      The HWR also defined the term “consignor”. In August 2008, “consignor” was defined as a person to whom s. 10(1) of the EMA applied because the person (a) produced or stored hazardous waste, and (b) caused or allowed more than the quantity of hazardous waste prescribed in this regulation to be transported from the property where it was produced or stored. A consignor was prohibited by s. 44 of the HWR from offering to transport 5 litres of hazardous waste containing PCBs without first obtaining a Provincial Identification Number and writing that number on every manifest the person was required to use under s. 10(1) of the EMA . [84]      In addition, PCBs are regulated by the federal Transportation of Dangerous Goods Act, 1992 , S.C. 1992, c. 32 and the Transportation of Dangerous Goods Regulations , S.O.R./2008-34 (“ TDG Regulations ”). In August 2008, s. 2.2(1) of the TDG Regulations directly placed the responsibility for classification of the dangerous good on the consignor, where “classification” as defined in Part 1 of the TDG Regulations means shipping name, primary class, compatibility group, subsidiary class, UN number, and packing group. [85] The legislative scheme quite properly places the burden on the waste generator and the consignor to classify and identify the hazardous waste . By placing the responsibility on the generator and/or consignor, the legislative scheme is designed to prevent waste from entering the wrong waste stream, as obviously occurred in this case. [Emphasis added] [48] I agree entirely with the judge in her conclusion that the regulatory scheme places a significant burden upon the waste generator. For that reason, a high standard of care in relation to the communication of information will normally be applied to the waste generator, and greater responsibility assigned to it than to others involved in the stream of hazardous waste removal. Yet this conclusion does not answer the question of the content of the hazardous waste collector’s duty to itself, which is the duty in issue here. To put it another way, finding that the waste generator breached its obligation to provide information does not inoculate the waste collector from the requirement that it, too, act with reasonable care. [49] There are, in my view, important questions to be considered in a claim of contributory negligence as between waste generators and a waste collector and transporter. With respect to hazardous waste, the parties are operating within a highly regulated industry, and from generation to the ultimate destruction of the waste, the legislative scheme imposes limits, obligations and penalties on all the parties involved. The factors described in Wainwright as the tools by which compliance with the requisite standard of care is measured, namely the foreseeability of risk; the likelihood of damage; the seriousness of the threatened harm; the cost of preventative measures; the utility of the defendant’s conduct; any circumstances of emergency; compliance with approved practice or custom; and post-accident measures, are useful, although perhaps not exhaustive. It must be borne in mind that Wainwright was a case dealing with primary, rather than contributory, negligence and that the plaintiff in Wainwright had been expressly told that the risk that ultimately materialized, flammability, was not present. Thus Wainwright , while helpful with regard to the standard of care owed by those who generate hazardous waste, is less illuminating on the subject of contributory negligence and the duty of a party situated down the waste stream from the waste generator to be reasonably vigilant in looking out for its own safety. The Wainwright factors, in the least, must be adapted to the party whose conduct is under examination, harkening to the approach described by Professor Fleming. [50] I respectfully conclude, therefore, that there is a portion of the appellants’ claim in contributory negligence, and considerable evidence material to the issue, that is not insignificant and that was not addressed by the judge in her reasons for judgment. In consequence, in my view, the order dismissing the claim in contributory negligence must be set aside. This conclusion leads to two possible courses of action: remitting the claim in contributory negligence to the trial court, or substituting our own order as we are empowered to do under s. 9 of the Court of Appeal Act . [51] On balance, I consider there is much value in remitting the matter to the trial court for determination, including such additional fact finding as may be necessary, consideration of such factors as the trial court considers bears upon compliance of Enviro West, in its role as a waste collector and transporter, with its duty to take care in its own interests, and, in the event there is a finding of contributory negligence, assignment of the respective degrees of fault, which is by s. 6 of the Negligence Act , a question of fact. [52] I therefore would set aside the order dismissing the claim in contributory negligence and remit the matter to the trial court for determination in the manner it considers appropriate. “The Honourable Madam Justice Saunders” I AGREE: “The Honourable Madam Justice Kirkpatrick” I AGREE: “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Van Buskirk, 2012 BCCA 34 Date: 20120118 Docket: CA036409 Between: Regina Respondent And: Brent William Van Buskirk Appellant Before: The Honourable Mr. Justice Tysoe The Honourable Madam Justice Neilson The Honourable Mr. Justice Hinkson On Appeal from: Supreme Court of British Columbia, December 10, 2007 ( R. v. Van Buskirk, 2007 BCSC 1925, Victoria Dockets 130269 & 130270) Oral Reasons for Judgment Counsel for the Appellant: P. M. Fullerton Counsel for the Respondent: M.J. DeWitt-Van Oosten, Q.C. Place and Date of Hearing: Victoria, British Columbia January 18, 2012 Place and Date of Judgment: Victoria, British Columbia January 18, 2012 [1] TYSOE, J.A.: The appellant was found to have committed the offences of contempt of court, murder and two conspiracies to commit murder. He was sentenced as a youth under the Youth Criminal Justice Act , S.C. 2002, c. 1, in respect of the murder, and he was sentenced as an adult in respect of the other three offences. This appeal relates to his sentences for the two conspiracies to commit murder, which the appellant says are unfit as a result of the operation of s. 743.5 of the Criminal Code . [2] The convictions for contempt of court and murder both related to a contract killing of a man outside his home. The appellant shot the man in the back of his head with a .45 calibre handgun in August 2004. At the time, the appellant was a few days away from his eighteenth birthday. [3] Another man, named Mr. Abu-Sharife, was also charged in connection with the murder. The appellant refused to give evidence at the trial of Mr. Abu-Sharife, who was ultimately found not guilty. The appellant was held to have committed contempt of court and, on December 21, 2006, he was sentenced by Mr. Justice Grist to two years’ incarceration (2006 BCSC 1981). [4] Mr. Justice Groberman sentenced the appellant for the murder on November 30, 2007 (2007 BCSC 1924). It was agreed that the appropriate length of the sentence was the maximum youth sentence of 10 years, consisting of up to six year custody and the balance under conditional supervision to be served in the community. [5] Mr. Justice Groberman held that the murder sentence should be consecutive to the contempt sentence and that the appellant should be given a one-to-one credit on the murder sentence for the period of his pre-sentence custody. The result was a sentence of four years and two months’ custody and four years community supervision. [6] The sentencing for the two conspiracies to murder also came before Mr. Justice Groberman, and the sentences imposed by him are the ones that are the subject matter of this appeal. The sentences were imposed on December 10, 2007 (2007 BCSC 1925). [7] The first charge involved a conspiracy to murder competitors of Mr. Abu‑Sharife in the drug trade. It was planned that the appellant would detonate a plastic explosive in a night club, killing the competitors and other people in the club. Efforts were made to obtain the explosive, but it was not procured. Mr. Abu-Sharife was also charged, and he received an effective eight year sentence after pleading guilty. [8] The second charge involved a conspiracy with someone else to kill an unidentified person in Whistler. The planning did not get past the stage of travelling to Whistler to conduct preliminary reconnaissance. The co-conspirator was awaiting trial at the time of the appellant’s sentencing. [9] Mr. Justice Groberman concluded that the appropriate sentences for the two conspiracies were eight years’ and six years’ imprisonment, respectively, to be served concurrently. He disagreed with the defence position that the conspiracy sentence should be concurrent to the murder sentence. Mr. Justice Groberman also concluded that the appellant should be given additional credit in respect of his pre-sentence custody because he had only received one-to-one credit when he was sentenced for the murder, and he gave a further one year credit. The result was concurrent sentences of seven and five years’ imprisonment. [10] The appellant does not say that the sentences for the conspiracy offences are themselves unfit, but contends that the sentences offend the totality principle as a result of the operation of s. 743.5(1) of the Criminal Code , which provides that the youth sentence is to be dealt with as if it had been a sentence imposed under the Criminal Code as a result of the fact that the adult sentences for the conspiracy offences were imposed while the appellant was subject to the youth sentence. Subsection (3) of s. 743.5 states that, for greater certainty, the youth sentence and the adult sentence are deemed to constitute one sentence of imprisonment for the purposes of s. 139 of the Corrections and Conditional Release Act , S.C. 1992, c. 20 (the “ CCRA ”). Section 139 of the CCRA provides that, if a person serving a sentence receives another sentence, the person is deemed to have received one sentence such that the two sentences are merged. [11] The appellant has provided an affidavit sworn by a representative of the Correctional Service of Canada in October 2008 to the effect that in calculating the appellant’s parole eligibility, the full length of the youth sentence, and not just the custodial component of the sentence, is to be taken into account. The appellant says this has the effect of transforming the entire youth sentence into a committal to custody and results in a custodial sentence that is four years longer than Mr. Justice Groberman intended. [12] Our attention has been drawn to a decision of the Federal Court of Appeal that post-dates the affidavit provided by the appellant. In P. (J.) v. Canada (Attorney General) , 2010 FCA 90, 253 C.C.C. (3d) 425, the offender received a youth sentence for second degree murder consisting of a 22 month custodial portion and a 36 month conditional supervision portion. He was over 20 years of age at the time of his sentencing and, as a result of s. 89(1) of the Youth Criminal Justice Act , he was committed to a provincial correctional facility for adults to serve his sentence. The National Parole Board calculated the offender’s parole eligibility in the same fashion as the Correctional Service did in the present case; namely, the length of the sentence for the purpose of the calculation included both the custodial portion and the conditional supervision portion. [13] The offender challenged the calculation of the National Parole Board by way of judicial review, taking the position that the calculation should only be done on the custodial portion of the youth sentence. The judicial review application was successful in the Federal Court, and its ruling was upheld on appeal. The Federal Court of Appeal concluded that the term “sentence” as defined in s. 2 of the CCRA , and as used in sections 119 and 120 of the CCRA to calculate parole eligibility, means only the custodial portion of the youth sentence. [14] The appellant in this case has not sought to judicially review the decision of the Correctional Service and urges us to decide the appeal on the basis that its decision is correct. However, I have difficulty in determining this appeal on that basis because I have reservations as to the correctness of the decision of the Correctional Service. It would seem to me that there is an argument of some substance that the reasoning in P. (J.) applies to the present situation and that the result is not affected by the provisions of s. 743.5 of the Criminal Code . [15] In my view, it would not be appropriate for us to make a definitive decision on the correctness of the Correctional Service’s position. The Federal Crown is not a party to this appeal, and no submissions have been made on its behalf. In addition, a decision by us on the point in this appeal would not be binding on the Correctional Service or the National Parole Board. [16] The situation produces a form of stalemate. I would not be willing to decide the appeal on the assumption that the decision of the Correctional Service is correct, nor am I prepared to make a determination as to whether the decision is correct or not. We cannot force the appellant to seek judicial review of the decision of the Correctional Services. [17] In these circumstances, I have concluded that the appropriate course of action is to stay the appeal, with liberty to apply for a dissolution of the stay in the event of a determination by the Federal Court that the decision of the Correctional Service is correct. [18] NEILSON J.A.: I agree. [19] HINKSON J.A.: I agree. [20] TYSOE J.A.: The appeal is stayed with liberty to apply for a dissolution of the stay in the event of a determination by the Federal Court that the decision of the Correctional Services is correct. “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Cassells v. Ladolcetta, 2012 BCCA 27 Date: 20120119 Docket: CA037506 Between: John Franklin Cassells Respondent (Plaintiff) And Meeyoung Ladolcetta and Adrian Tatsuki Wilding Appellants (Defendants) Before: The Honourable Madam Justice Levine The Honourable Mr. Justice Lowry The Honourable Mr. Justice Frankel On appeal from: Supreme Court of British Columbia, August 25, 2009 ( J.F.C. v. Ladolcetta , 2009 BCSC 1151, New Westminster Docket M102443) Counsel for the Appellants: S. B. Stewart and M. D. Wilhelmson Counsel for the Respondent: D. N. Osborne Place and Date of Hearing: Vancouver, British Columbia November 9, 2011 Place and Date of Judgment: Vancouver, British Columbia January 19, 2012 Written Reasons by: The Honourable Mr. Justice Lowry Concurred in by: The Honourable Madam Justice Levine The Honourable Mr. Justice Frankel Reasons for Judgment of the Honourable Mr. Justice Lowry: [1] In October 2005, when he was a 32-year-old plumbing apprentice, the plaintiff (respondent) was involved in a head-on collision.  In November 2006, he commenced this action for damages to compensate him for the injuries he suffered.  It was tried over the course of three weeks in 2009 before Mr. Justice N. Brown who, on the evidence of 19 witnesses plus 17 expert witnesses, found the named defendants solely responsible for the accident and made a substantial award against them.  His 77-page judgment is indexed as 2009 BCSC 1151. [2] The respondent had for some time suffered from, and been treated for, skin psoriasis.  He was found to have also manifested an early indication of psoriatic arthritis.  After the accident, in time the psoriasis became particularly bad and the psoriatic arthritis became fully developed to the point that the respondent was no longer able to do the physical work of a journeyman plumber for which he had apprenticed.  The primary issue at trial was whether, and if so the extent to which, the accident had served to aggravate the respondent’s pre-existing disease. [3] The defendants now raise three grounds of appeal.  They first contend the judge made an error of fact in finding, as he did, the accident had caused a serious life-altering aggravation of the respondent’s pre-existing medical condition.  They then say that, while the respondent was found to have failed to some extent to mitigate his loss by refusing recommended treatment, the judge erred in principle and in fact in not finding the respondent should have taken the treatment much earlier than the judge suggested and thereby mitigated his loss to a much greater extent.  Finally, they say the award of damages is inordinately high. The Aggravation of Psoriasis and Psoriatic Arthritis [4] While the focus at trial was primarily on the respondent’s psoriasis and psoriatic arthritis, he was otherwise quite badly injured in the accident.  In particular, he suffered extensive soft tissue injury to his neck, thoracic and lumbar spine, right shoulder, elbow, and right knee, as well as a compression fracture in his lumbar spine, all which left him with residual symptoms that it was said he would continue to experience to some degree.  In addition, he sustained a minor frontal lobe brain impact injury and he developed what the judge found to be a subclinical post traumatic stress disorder.  The judge compared his life before the accident with what it was afterward, as follows: [30]      At this time in his life it is clear from the evidence that the plaintiff was functioning well, even without benefit of Willow’s intensive therapy and its usual remissionary effects.  He was happy, optimistic, and looking forward to becoming a journeyman plumber, to making a lot of money, and eventually to marriage and children.  Apart from his psoriasis, he was in good mental and physical health. [31]      It is equally clear that within three years after the accident, his health and psychological state had deteriorated to the extent it led Dr. M. W. Jones, a neurologist who examined him with respect to his concussion, to comment in his report, “It’s rather sad and upsetting to see what has happened to this gentleman over the last 3 years in terms of his overall dramatically decreased Quality of Life.” [5] The defendants contend the change in the respondent may be in large part attributable to the psoriasis and psoriatic arthritis from which he suffers, but say the evidence does not establish that is a consequence of the accident.  They say, in particular, the judge’s conclusion in this regard is based on expert opinion for which there is no empirical medical evidence.  It is, they say, opinion that should have been afforded no weight – it had no evidentiary value – such that the judge made an overriding and palpable error in relying upon it to make the findings of fact he did. [6] The judge described psoriasis and psoriatic arthritis as follows: [15]      The evidence of the medical experts explained that psoriasis is what is thought to be an auto-immune mediated skin disease that can fall anywhere on a graph between a minor nuisance to grave condition.  It is not curable, but in most cases treatment can control it, with varying degrees of success.  Most people with this condition can work and live their lives mostly unimpeded, but in some cases it can be a challenging, even debilitating, and worse, disease to live with.  Dermatologists usually treat psoriasis. [16]      Psoriatic arthritis is a form of arthritis closely connected to psoriasis.  It is also thought to be auto-immune mediated.  Not all people with psoriasis develop psoriatic arthritis, which typically presents itself in some form within 10 years, usually in peripheral joints.  Rheumatologists treat psoriatic arthritis, so psoriatic arthritis patients consult with two specialists, one to treat the skin, the other the joints. [7] The respondent was diagnosed with psoriasis in 1992, when he was 19 or 20.  The psoriasis would wax and wane.  It had on occasion covered as much as 60% of his body.  In 2002, he took a course of phototherapy treatment at the Willow Skin Clinic which was effective in substantially reducing the psoriasis on his skin.  The therapy was repeated perhaps three times before the accident.  It was not a cure but would retard the psoriasis coverage on his body to as little as 6%.  The psoriasis would then return incrementally until he had the next treatment.  He took only one treatment after the accident, in January 2006.  Psoriasis can, over a period of years, lead to psoriatic arthritis, but prior to the accident the respondent had no generalized symptoms in his joints.  The indication he had the disease was a discomfort in his foot (said to have been plantar fasciitis) in 2003 that he overcame using prescribed orthotics. [8] After the accident, the respondent’s psoriasis continued to wax and wane but in time it became worse and the psoriatic arthritis took hold and became symptomatic, apparently beginning with what he described as a “flare” involving his ankles, Achilles tendon at the back of his right foot, his right toe, elbow, the small of his back, and right knee soon after the accident.  The respondent convalesced for four months before returning to work.  It appears that his medical concerns in 2006 were as much or more related to the other injuries he had suffered, and emotional difficulties he was having, as they were to the psoriasis and arthritis, although, as indicated, he underwent treatment at the Willow clinic in January. [9] Things appear to have turned for the worse in the fall of 2006 in respect of his skin condition and, although he was working, he was having great difficulty because of the arthritis in his ankles and feet in particular, and the fatigue the arthritis caused.  The judge followed the course of the respondent’s deterioration thereafter in great detail.  All of his difficulties caused him to stop working in June of 2007 and abandon his hope of becoming a journeyman plumber.  His life from the time of the accident had been one of unending medical attention from many doctors of differing disciplines, as well as seeing a psychologist, a physiotherapist, and a vocation counsellor.  Consistent with the expert opinion he accepted, the judge concluded that all the plaintiff had suffered, physically, psychologically and emotionally, had served to aggravate his psoriasis and psoriatic arthritis.  He concluded as follows: [189]  ... All of the plaintiff’s injuries and associated symptoms, including those from his mild concussive frontal lobe injury, his subclinical PTSD and its symptoms, the stress and anxiety he experienced related to pain from his soft tissue injuries, his incrementally worsening psoriasis and psoriatic arthritis, and his inability to work operated over time to produce a serious depression.  These factors in varying degrees punctuated the plaintiff’s experiences from the time of the accident onwards, and produced the levels of psychological stress that produced the ongoing exacerbation of the plaintiff’s condition that plaintiff experts identified as the cause of the worsening of the plaintiff’s psoriasis and psoriatic arthritis.  Given the extensive evidence heard, I find this consilient view of the evidence and medical opinions removes the need to reduce judicial findings to specific diagnostic categories; at the same time more accurately reflecting the actual subjective experiences of the plaintiff.  These causative stressors were caused directly or indirectly by the accident, subject to consideration of mitigation arguments. [10] To reach that conclusion, the judge had to decide whether psoriasis and psoriatic arthritis could be aggravated by trauma and stress such as the respondent suffered.  Opinion evidence of rheumatologists and dermatologists as well as psychiatrists and other physicians bearing on the point in varying degrees was tendered on both sides.  After thoroughly reviewing all of the expert evidence adduced, the judge concluded: [153]    Given the evidence before me from rheumatologists and dermatologists, as well as Dr. O’Shaughnessy and other experts called, there are sound and substantial reasons for concluding that emotional trauma/stress, as well as physical trauma, may exacerbate both psoriasis and psoriatic arthritis, and I so find. [11] The conclusion is consistent with the opinion of Dr. Dafna Gladman, recognized to be the leading rheumatologist in Canada on psoriatic arthritis, upon which the judge relied.  She wrote: With regards to the relationship between the psoriatic arthritis and the motor vehicle accident, since [the respondent] had evidence of psoriasis and possibly psoriatic arthritis (presence of plantar fasciitis a couple of years before the accident), one could not claim that the accident led to the development of psoriatic arthritis.  However, it is quite possible that the accident precipitated more severe psoriasis and more aggressive psoriatic arthritis.  In [the respondent’s] case, although the trauma did not cause the psoriatic arthritis, it certainly made it worse.  We have seen this response to trauma among our patients with psoriatic arthritis. [12] Dr. Gladman referenced various medical papers written on the subject that she considered supported her opinion to some extent and was cross-examined at length in that regard.  She acknowledged there were shortcomings in much of what she referenced and accepted that the research on the subject of the effect of trauma and stress on psoriasis and psoriatic arthritis is limited.  She explained that is because the cost and time required to undertake a definitive study would be prohibitive.  With respect to this aspect of her evidence in particular, the judge said: [140]    As the trier of fact, I do not see this case turning completely one way or the other on the scientific literature; cases seldom do. From the literature reviewed and the considerable time spent on examination and cross-examination on it, it was obvious that the investigators themselves believe there is a connection between physical and emotional trauma and onset of psoriatic arthritis there to be empirically shown. Some of the (better) studies find supporting data, but not all; all the studies are flawed in various ways, some of the flaws discernible without expert assistance. These are, however, the best studies available. [141]    Scientific literature in given fields may offer widely varying degrees of empirically rich probative information, and no authority is needed to justify say[ing] that even perfectly designed generously endowed ones producing relatively clear findings will not [be] pre-eminently conclusive in the courtroom—especially unless the results are then gathered into a clear consensus within the specialist scientific community. And there also, one would logically still expect clinical experience to play some part in the formation of that consensus. Further, while it is apparent that Dr. Gladman cited research in support of her opinion, as did Dr. Shuckett, it remained an opinion that remained foundationally formed around her knowledge of the disease and thirty years of clinical experience and study. It is obviously appropriate for a specialist to make reference to the best available scientific literature; they might be subject to criticism for not doing so in some cases; but citing it does not necessarily automatically signal that it has become the only foundation for the opinion expressed, which it evidently was not in this case. [13] The defendants challenged reliance on Dr. Gladman’s evidence on essentially the same basis at trial as they do now.  Their contention was and remains that her opinion was based on what they say is novel science: no scientific data established, beyond mere speculation, that her “theory” was valid.  They say that at most the theory is an unproven hypothesis.  They cite the criteria for evaluating the soundness of novel science found in R. v. Mohan , [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402, as drawn from Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786 (1993), and discussed in Taylor v. Liong , 2007 BCSC 231, [2007] 7 W.W.R. 50. [14] The judge said the criteria pertain to the admissibility of expert evidence.  Admissibility requires the weighing of threshold reliability.  No issue had been taken with the admissibility of Dr. Gladman’s opinion which it was evident is consistent with a widely held belief in the scientific community.  Quoting from R. v. Terceira (1998), 38 O.R. (3d) 175, 123 C.C.C. (3d) 1 (C.A.), aff’d [1999] 3 S.C.R. 866, to the effect the threshold test of reliability must adapt to changing circumstances, the judge said that, in the face of studies that did reflect a wide provisional acceptance of Dr. Gladman’s hypothesis, the lack of a conclusive study should not be fatal to either the admissibility or the weight of her opinion. [15] Unlike instances where, as in Taylor , the opinion of an expert which is shown to be no more than uncertain theory has been ruled inadmissible, here, as the judge said, Dr. Gladman expressed her opinion on the basis of what she said she had seen in response to trauma among her patients with psoriatic arthritis.  What is said to be the inconclusive literature she referenced was, as the judge said, not the only foundation for the opinion she held.  It was an opinion based on thirty years of her experience. [16] The judge reached the ultimate conclusion he did concerning the aggravation of the respondent’s psoriasis and psoriatic arthritis relying on the evidence of the various physicians whose opinions he had to consider.  Dr. Gladman’s opinion on the effect of trauma on psoriatic arthritis is consistent with the other opinion evidence which the judge found acceptable, as well as with the evidence of the respondent’s medical condition and, for that matter, the deterioration in his life after the accident.  I do not consider there to be any sound basis on which it can now be said the judge made an overriding and palpable error in concluding the respondent’s psoriasis and psoriatic arthritis were aggravated by trauma and stress attributable to the accident by relying on Dr. Gladman’s opinion. Mitigation [17] The judge reduced the amounts he assessed for the respondent’s non-pecuniary loss and his past income loss by 20% and 30% respectively because he had failed to mitigate those losses by taking medication recommended to him in the spring of 2007.  The judge did so, at least in part, on the basis of what he described as a “modified subjective” approach to determining whether and to what extent a plaintiff has failed to mitigate loss.  The defendants contend the failure to mitigate must be assessed on an objective basis, citing Janiak v. Ippolito , [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1.  They say the reductions in the judge’s awards should have been substantially greater. [18] The respondent commenced a regime of medication (methotrexate) in 2009 not very long before the trial.  He did so on the advice of Dr. Gladman after she explained to him, apparently in no uncertain terms, the risks he faced with respect to the progression of his disease and the benefit he may well derive from taking the medication.  The medication is not a cure but it has a 40% to 50% success rate in controlling psoriasis as well as reducing joint inflammation caused by psoriatic arthritis to some degree.  As the judge noted, Dr. Gladman said the medication may not prevent the progression of joint damage; anti-inflammatory drugs are more effective at controlling joint inflammation and damage.  In assessing the amount he awarded the respondent for his loss in future earning capacity, the judge assumed the treatment would to some extent be successful and be continued. [19] However, the medication was recommended to the respondent by another physician, Dr. Hong, a dermatologist, in January 2005 and, after the accident, in December 2005.  In April of 2007, with the respondent suffering to the point he had to stop working in June, Dr. Hong is said to have again recommended he take the medication.  On my review of Dr. Hong’s testimony, it is less than clear why it is said he recommended the medication in April 2007.  He said he saw the respondent then but did no more than refer him to the Willow clinic and the respondent was unable to be clear as to when Dr. Hong’s advice regarding medication was given.  In the course of submissions, counsel stated the medication was recommended in April 2007, but it is not evident on what basis that statement was made.  In any event, the respondent refused the medication.  He did not want to take it.  He apparently had done his own Internet research and wrongly assessed the risks associated with methotrexate to be substantially greater than they are.  He said Dr. Hong did not explain the risks and benefits of the medication to him in the way that Dr. Gladman did. [20] In October 2007, Dr. Hong mentioned the opportunity of an alternative treatment (biologics) which is said to have a success rate of 70% controlling psoriasis and the progression of joint damage.  That treatment was prohibitively expensive, but it would have been administered on a trial basis at no cost.  The respondent did not pursue it. [21] The judge took the view that, given the deterioration in his condition by the spring of 2007, the respondent should within perhaps six months have commenced the treatment Dr. Hong recommended rather than waiting as he did another year and a half to do so.  He also found the respondent’s failure to address his worsening skin condition in the fall of 2006 with further treatment at the Willow clinic (having had no treatment since January of that year) made a “significant contribution to the mix of stressors that was exacerbating both his skin and joint condition”. [22] With respect to the first year and a half following the accident, to April 2007, the judge said: [203]    Since his condition responded to light therapy in January of 2006 and did improve to some extent in the summer of 2006, I find it was certainly reasonable for the plaintiff to refuse to undergo the medications for at least a year and a half.  In making this finding I note that phototherapy was still being presented to him as a treatment option (albeit his physicians considered methotrexate/biologics the best choice), and also note his increasingly fragile psychological state.  Until that point, I cannot find that the risk-benefit equation obligated him to take medications, especially if his physicians did not fully and clearly explain the risk/benefit equation to him in the way that the plaintiff says (and I accept) Dr. Gladman did in January 2009. [23] With respect to the next six months, to October 2007, the judge considered the plaintiff’s accident-induced psychological state substantially inhibited his capacity to make a rational decision.  He said: There came an earlier point [earlier than January 2009] however, when it should have been sufficiently obvious to the plaintiff that his disease was changing, and that the risk-benefit equation he was facing was now very different from what it had been before the accident; he could no longer just cope with his symptoms and expect them to improve.  This should have at least begun to be apparent to him by [October] 2007, when Dr. Hong offered the plaintiff an opportunity to participate in the free trial of a new form of biologics.  The plaintiff declined then, citing having to cope with too many other problems then, and I note again his fragile psychological state. [204]    I accept witnesses’ testimony about the plaintiff’s state of mind and also the fact that Dr. Gladman’s forceful advice left a strong impression on him.  But I remain unable to find that he was justified in waiting that long to commence treatment, especially considering that his increasingly fragile psychological state was in considerable measure related to his failure to follow earlier treatment advice.  In my view, Janiak and Elloway [ Elloway v. Boomars (1968), 69 D.L.R. (2d) 605 (B.C.S.C.)] lends support to making some allowance for the plaintiff’s accident-induced psychological state where it substantially inhibited his capacity to make the rational decision, as was the case here; only to the extent the evidence justifies, and bearing in mind that his duty to mitigate is a positive one owed to the defendant.  In this case, I find that allowance can be made for the effect of the plaintiff’s accident-induced psychological state on his capacity only to the extent that it excuses some further delays in coming to the decision he ultimately made – a decision that in itself demonstrated that Dr. Gladman was able to reason with the plaintiff; he was ultimately capable of weighing the risks and benefits even though he was in a fragile psychological state then too.  Dr. Hong may have explained the risks and benefits in a less forceful way, but he impressed me as a caring and insightful dermatologist who was genuinely concerned about the plaintiff’s well being.  I find the principles laid out in Janiak , and the evidence, support a finding that within six months or so of the plaintiff’s April 2007 discussion with Dr. Hong, he should have commenced a medication treatment regimen.  This will enter accordingly into my assessment of what is a fair reduction in damages. [24] The judge reasoned he could make the six-month allowance he did in the respondent’s favour following Dr. Hong’s recommendation in April 2007 based on the legal analysis he undertook, quoting from Janiak .  He said: [193]    The difficulty in this case lies in the fact the plaintiff sincerely held strong negative views about taking medications in general and methotrexate in particular.  His negative views about the potential ill-effects of methotrexate were fuelled in part by his own misleading internet research.  In the circumstances of this case, there is no question that based on a pure objective test, the plaintiff ought to have followed his doctors’ advice.  Likewise, if that were all that needed to be considered, the correct result again is obvious because in Canada the law does not excuse objectively unreasonable choices, so long as the plaintiff has the requisite capacity to make them. Janiak v. Ippolito , [1985] 1 S.C.R. 146, is the foundational case for the law of mitigation in Canada.  Wilson J., speaking for the court explains: 24        Non-pathological but distinctive subjective attributes of the plaintiff's personality and mental composition are ignored in favour of an objective assessment of the reasonableness of his choice. So long as he is capable of choice the assumption of tort damages theory must be that he himself assumes the cost of any unreasonable decision. [194]    Wilson J. refers to Morgan v. T. Wallis Ltd. , [1974] 1 Lloyd’s rep. 165 at p. 170 to explain the overarching test regarding mitigation: ...I must apply the objective test, in this sense, would a reasonable man in all the circumstances, receiving the advice which the plaintiff did receive, have refused the operation? I think this question must be considered as at the times when his decision was made and on the basis of the advice he then received... [195]    Another way of putting this is whether the reasonable person would refuse the treatment when faced with the risk-benefit equation before them at the time they are making the decision?  The Court in Janiak summarizes the relevant consideration at paragraph 31: 31.       In making his finding as to the reasonableness or otherwise of a refusal of medical treatment, the trier of fact will also, of course, take into consideration the degree of risk to the plaintiff from the surgery ..., the gravity of the consequences of refusing it ..., and the potential benefits to be derived from it ... [196]    However, the case becomes less obvious when accident-induced injuries take away the capacity to make the objectively rational decision. If the plaintiff’s capacity is reduced completely, that is a straightforward case – but less so when accident-induced injuries have substantially inhibited, though not completely removed the plaintiff’s capacity to think through rationally the risks and benefits of recommended treatment. [25] The judge then quoted further from Janiak to support the proposition that where it is the accident itself that impairs a plaintiff’s ability to make a reasonable decision about treatment, it would appear unjust to limit his recovery because he failed to mitigate the loss claimed.  The judge then said: [199]    Canadian law rejects the wholly subjective analytical approach of U.S. law. Janiak however leaves the door open to a modified subjective approach where the plaintiff’s decision-making capacity has been less than wholly incapacitated by accident-induced injuries.  Where it is found on the evidence that the effect of accident induced injuries has been to inhibit substantially the plaintiff’s capacity to make the objectively reasonable choice, Janiak , in my view, leaves it open to the trier of fact to take that commensurately into account in assessing the degree to which damages should be reduced. [26] I agree that if, by virtue of the injury sustained in an accident, a plaintiff is unable to make a reasonable decision about treatment, the plaintiff is in no different position with respect to mitigating the loss suffered than would be the case if, for other reasons unrelated to the accident, the plaintiff’s capacity to make reasonable decisions about treatment was lacking.  But I cannot accept that means the law prescribes a subjective test, modified or otherwise. Janiak is clear; the test is objective.  I consider that if a plaintiff had the capacity to make the decision about treatment it is said ought to have been made, and the advice was sound, the mitigation question in each instance must be what would be expected of a reasonable person in the circumstances having regard for the plaintiff’s medical condition at the material time and the advice given concerning treatment.  If, through no fault of his own, the plaintiff did not have the capacity to make the decision, or the advice was not sound, the question would not arise. [27] It is not simply a matter of a plaintiff having to follow the advice given in order to mitigate the loss claimed, as the judge appears to suggest at the outset of his legal analysis; rather, it is a matter of considering what a reasonable recipient of such advice would be expected to do in the circumstances having regard for the nature of the advice and any explanation of the risks and benefits given. [28] That said, I see no basis to interfere with the judge’s finding that the respondent could not reasonably have been expected to commence the recommended course of treatment before the spring of 2007 following the deterioration in his condition in the fall of 2006.  No question of any subjective consideration arises.  It was for the judge to assess what was reasonable – what would be expected of a reasonable person in the circumstances – and it is not plain that he made any factual error in that regard such as would warrant the intervention of an appellate court. [29] If, as appears to me, the judge found the respondent did not have the capacity to make a rational decision with respect to commencing the recommended treatment during the following six months, there is no basis to interfere with his conclusion.  If, however, it could be said the respondent had the capacity to make the necessary decision that a reasonable person would in the circumstances have made to take the recommended medication, there would be no justification for him not having done so.  But even if that were the case, it would not, in my view, work any real difference in the mitigation percentages the judge applied to his awards for non-pecuniary loss and past wage loss, particularly when the treatment was said to carry no more than a 50% rate of success. Damages Assessment [30] The judge awarded the respondent $120,000 for his non-pecuniary loss, $108,500 (less some income he earned to be calculated by counsel) for past wage loss, $275,000 for loss of earning capacity, special damages to be calculated, and $2,000 for future counselling costs. [31] The defendants contend the awards are to some extent inordinately high but, for the most part, their contention rests on one or both of the first two grounds of their appeal succeeding.  They do contend the judge failed to take into account the possibility that the respondent’s psoriasis would have worsened and his psoriatic arthritis would have become symptomatic in any event.  They also contend that the judge failed to consider the respondent’s condition may be expected to improve with the treatment he commenced shortly before the trial.  But, as noted, the judge specifically said he was taking the treatment into account in his award for the respondent’s lost earning capacity and there is no reason to consider he did not do the same in respect of his award for non-pecuniary loss.  Further, there is nothing in the amount of the awards to suggest the judge did not take into account what the respondent’s life may have been had he not been injured in the accident in a way that aggravated the disease he had to the extent it did. [32] On the view I take of the first two grounds of appeal, I see no basis on which to interfere with the judge’s award of damages. Disposition [33] I would dismiss the appeal. “The Honourable Mr. Justice Lowry’ I agree: “The Honourable Madam Justice Levine’ I agree: “The Honourable Mr. Justice Frankel’

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Grewal v. Sandhu, 2012 BCCA 26 Date: 20120119 Docket: CA038665 Between: Agyapal Singh Grewal Appellant/Respondent by Cross Appeal (Plaintiff) And Jatinder Singh Sandhu and 676207 B.C. Ltd. Respondents/Appellants by Cross Appeal (Defendants) And: Royal Lepage Westgard Realty Ltd., Lakhvir Kaur Gill and Jaswinder Dhaliwal Respondents (Defendants) And Kuldip Kaur Grewal and South-Slope Enterprises Ltd. Respondents (Plaintiffs) Before: The Honourable Madam Justice Levine The Honourable Mr. Justice Lowry The Honourable Mr. Justice Tysoe On appeal from: Supreme Court of British Columbia, November 18, 2010 ( Grewal v. Sandhu , 2010 BCSC 1627, Vancouver Docket S054086) Counsel for the Appellant: D. Lunny and J. A. Dawson Counsel for the Respondents, Jatinder Singh Sandhu and 676207 B.C. Ltd.: D. G. Cowper, Q.C. Counsel for the Respondent, Lakhvir Kaur Gill: H. S. Nirwan Place and Date of Hearing: Vancouver, British Columbia October 13 and 14, 2011 Place and Date of Judgment: Vancouver, British Columbia January 19, 2012 Written Reasons by: The Honourable Mr. Justice Lowry Concurred in by: The Honourable Madam Justice Levine The Honourable Mr. Justice Tysoe Reasons for Judgment of the Honourable Mr. Justice Lowry: [1] Jatinder Sandhu is a psychiatrist.  Agyapal Grewal worked in farming and then land excavation.  They were friends.  Dr. Sandhu commenced treating Mr. Grewal for clinical depression in March 2002.  He discontinued the treatment in December 2004.  During that time they participated in two real estate transactions which concluded in June 2005.  Mr. Grewal immediately commenced this action alleging Dr. Sandhu had cheated him financially in a manner that seriously impaired his mental and emotional health.  It was tried before Mr. Justice N. Smith five years later.  He awarded damages for breach of trust in respect of the first transaction (the “Farm Property”), and damages as well as a registrar’s reference to assess further damages, essentially for breach of contract, in respect of the second (the “Subdivision Property”).  In addition, he also awarded what he said were general damages based on Dr. Sandhu having breached a fiduciary duty owed to Mr. Grewal.  The judge specifically declined to make an award of punitive damages which Mr. Grewal sought, but he ordered Dr. Sandhu to pay special costs of the action (2010 BCSC 1627). [2] Mr. Grewal appeals, contending on various grounds the damages awarded should be much greater and that an award of punitive damages should be made.  Dr. Sandhu cross appeals on the basis that some of the damages awarded are not supportable either in fact or in law and that no case for special costs was made out. [3] While various individuals and companies are named as parties, the appeal is confined to the action taken by Mr. Grewal, who operated his excavating business through South-Slope Enterprises Ltd., against Dr. Sandhu, a numbered company Dr. Sandhu acquired (676207 B.C. Ltd., referred to as “Holdco”) in respect of the Subdivision Property, and Lakhvir Gill, who is alleged to have committed fraud against Mr. Grewal in respect of the Farm Property. [4] I proceed to consider the case advanced on appeal by each of Mr. Grewal and Dr. Sandhu in respect of first the Farm Property and then the Subdivision Property before turning to the judge’s award of general damages, the claim for punitive damages, and special costs. The Farm Property [5] The judge awarded damages in respect of the Farm Property on the basis that Dr. Sandhu had held Mr. Grewal’s interest in that property in trust and, unknown to Mr. Grewal, had sold it for less than its market value.  Mr. Grewal appeals, raising two grounds.  He first says the judge erred in assessing his loss on the basis of the value of the property at the time it was sold instead of the date of judgment.  He then says the judge erred in dismissing his action for fraud against Ms. Gill who purchased the property from Dr. Sandhu. [6] Mr. Grewal, through South-Slope, had been in the excavating business since 2000.  He had on occasion bought and quickly sold or “flipped” real estate properties.  In June 2003 he borrowed $20,000 from Dr. Sandhu, which he apparently used to make a $16,000 down payment on the 5.5 acre Farm Property, consisting of two lots on one of which was a derelict house occupied by a tenant.  The purchase price was $275,000.  Mr. Grewal did not have the money to complete the purchase and asked Dr. Sandhu to participate in acquiring the property.  The purchase was completed in July.  There were three purchasers, who each took a one-third interest:  Dr. Sandhu, who paid $160,000; Mr. Grewal, who except for the borrowed $16,000 deposit paid nothing; and a business associate of Mr. Grewal who apparently paid the balance of the purchase price.  Dr. Sandhu then lent Mr. Grewal a further $20,000.  Mr. Grewal was to clean up the property and improve it for resale. [7] Based on an appraisal they obtained in July 2003 valuing the property at $300,000, the purchasers borrowed $195,000 which was deposited in Mr. Grewal’s bank account.  Most of it was paid out to South-Slope (apparently to purchase excavating equipment), although $65,000 was paid to Mr. Grewal’s business associate.  Mr. Grewal made some irregular payments totalling $8,300 on the loan between December 2003 and April 2004. [8] In April, Dr. Sandhu assumed responsibility for making all the loan payments.  Mr. Grewal’s associate withdrew from any further involvement in the property and relinquished his one-third interest to Dr. Sandhu.  In May, Dr. Sandhu had Mr. Grewal convey his one-third interest to him.  The property was appraised in June 2004 at $410,000.  In July, Dr. Sandhu had a solicitor draw an agreement, executed by Dr. Sandhu as Trustee and by Mr. Grewal as Beneficiary, which provided that Dr. Sandhu held a one-half interest in the property in trust for Mr. Grewal and a one-half interest for himself.  The arrangement gave Dr. Sandhu certain tax advantages as the sole owner of the property making the payments on the loan.  The evidence appears to be incomplete, and the parties are at odds, with respect to any financial adjustments made between the initial three purchasers with respect to their contributions to the acquisition of the property.  In the end, it appears Mr. Grewal contributed little if anything to what was paid for the property.  The judge made no finding in this regard.  He did, however, suggest “that a one-half interest was out of proportion to anything Mr. Grewal had contributed to the acquisition”, but said the trust agreement had been drawn by Dr. Sandhu’s solicitor and he had executed it. [9] It is unclear how much work Mr. Grewal did on the property.  He solicited some landfill dumping on one of the lots but the municipality put a stop to that.  The house remained largely unaltered. [10] In February 2005, Mr. Grewal and Dr. Sandhu decided to sell the property.  Mr. Grewal signed a promissory note to pay Dr. Sandhu $70,000 out of his share of the proceeds of the sale which the judge saw as Dr. Sandhu’s attempt to recover from Mr. Grewal some or all of various amounts of money Mr. Grewal had received from him.  (As will become evident, Mr. Grewal received money from Dr. Sandhu in respect of the Subdivision Property as well as the Farm Property.)  Dr. Sandhu and Mr. Grewal met with a real estate agent and the property was listed at $550,000.  In April, the price was reduced to $485,000.  The agent testified it was in “terrible shape” and had no development potential because it was in an agricultural land reserve.  Two offers were received, the first for $430,000 and the second for $390,000.  Both were subject to financing and, although accepted, did not complete. [11] The listing agreement expired at the end of May.  About a week later, Dr. Sandhu sold the property to Lakhvir Gill for $290,000.  Ms. Gill is the wife of Iqbal Gill who, years before, had been a patient of Dr. Sandhu and who, in the spring of 2005, had entered into a business arrangement with Dr. Sandhu to construct and sell houses.  Ms. Gill paid a $34,000 deposit.  She obtained a mortgage for $188,500 (essentially the amount required to discharge the existing mortgage) which was guaranteed by Dr. Sandhu’s wife.  She did not, however, have sufficient funds available to complete the transaction so the balance was paid out of a $70,000 bank draft Ms. Gill received from Dr. Sandhu’s wife.  This money was drawn from a bank account maintained by Dr. Sandhu which he said was an advance against shared profits in his and Mr. Gill’s house-building business. [12] The assessed value of the property for tax purposes was then $460,000.  Appraisals prepared for the trial value the property as of June 2005 at $475,000, and as of November 2009 at $725,000. [13] Given the net amount realized from the sale of the property and the amount of Mr. Grewal’s promissory note which Dr. Sandhu held, Dr. Sandhu considered Mr. Grewal was not entitled to any of the sale proceeds for his one-half interest. [14] The judge found Mr. Grewal knew nothing of the sale to Ms. Gill until after it was completed.  He also found the sale was improvident: Dr. Sandhu breached the fiduciary duty he owed as trustee of Mr. Grewal’s half interest to obtain full value for the property.  Despite the evidence of the property’s value that would have been apparent to Dr. Sandhu at the time of the sale to Ms. Gill, the judge determined the highest appraisal ($475,000) – prepared for the trial – to be the best evidence of the property’s market value that Dr. Sandhu had a duty to obtain, and awarded damages to Mr. Grewal against Dr. Sandhu on that basis: $162,500.  The judge said it was necessary to take into account the $70,000 promissory note Mr. Grewal had signed in favour of Dr. Sandhu in February 2005 when they decided to sell the Farm Property but, while no point is taken in this regard by Dr. Sandhu on the appeal, it appears the judge did not account for the note in the award he made. i) The award for the improvident sale [15] At trial, Mr. Grewal sought a much higher award, as he does now.  He maintains that, given there was a breach of trust, damages must be assessed at their highest value.  Citing Guerin v. The Queen , [1984] 2 S.C.R. 335, 59 B.C.L.R. 301; Ruwenzori Enterprises Ltd. v. Walji , 2006 BCCA 448, 274 D.L.R. (4th) 696; and Kostiuk (Re) , 2002 BCCA 410, 215 D.L.R. (4th) 78 at paras. 33-34 in particular, he maintains he is entitled to an award based on the value of the property at the date of judgment such that he should be awarded $342,500. [16] The judge rejected the contention because Mr. Grewal wanted the property sold.  As he recognized, where a trustee wrongfully withholds or disposes of a beneficiary’s proprietary interest, it is clear on the authority cited the beneficiary is entitled to damages for the appreciation of the interest, which will normally be from the date of the breach to judgment.  But here, Dr. Sandhu’s breach of the trust agreement was not in disposing of the property but in failing to obtain what the judge found was the amount for which it ought to have been sold in June 2005.  Had it been sold for that amount, Mr. Grewal would, on the judge’s assessment, have been entitled to receive $162,500 from the net proceeds of the sale.  Dr. Sandhu cannot be liable to compensate Mr. Grewal for the appreciation of an interest with which Mr. Grewal agreed to part.  Mr. Grewal is only entitled to be compensated for the loss he suffered as a consequence of the breach.  I see no error in the judge’s reasoning in this regard. ii) The action against Lakhvir Gill [17] Mr. Grewal sued Ms. Gill on the basis she had participated in a fraud.  At trial, he argued she knew the sale of the property for $290,000 was improvident and that, if she did not know, her husband, who did not testify, knew Dr. Sandhu held Mr. Grewal’s interest in trust and was selling it without Mr. Grewal’s consent in order to deprive Mr. Grewal of the share of the proceeds of the sale to which he would otherwise have been entitled.  The judge recognized that Ms. Gill knew only that she was acquiring the property at a favourable price.  He found no evidence that she knew anything of Mr. Grewal or his trust agreement with Dr. Sandhu, and he determined that any knowledge her husband may have had about Mr. Grewal’s interest in the property was not to be imputed to her.  He dismissed the action against Ms. Gill accordingly. [18] Mr. Grewal contends the judge misunderstood the case against Ms. Gill.  He says it was not a question of imputing her husband’s knowledge to her, because it was her husband who actually purchased the property from Dr. Sandhu or he and his wife purchased it together.  In any event, it was Mr. Gill who committed the fraud.  Ms. Gill’s involvement was no more than nominal.  The allegation of fraud is, at least now, said to rest on two aspects of the evidence in particular.  The first is a statement Dr. Sandhu made in the course of being cross-examined to the effect that he told Mr. Gill about Mr. Grewal’s interest in the property and held nothing back from him, although he was not asked to be specific as to what he actually said to Mr. Gill in that regard.  The second is the improvident nature of the sale and the way it was financed.  The contention, as I understand it, is that although Ms. Gill continued to own the property at the time of the trial five years after she acquired it, and, according to her, had made the mortgage and tax payments during that time, Dr. Sandhu must have maintained some continuing interest in the property, presumably by engaging the Gills to assist him in defrauding Mr. Grewal. [19] While I consider the two aspects of the evidence on which Mr. Grewal relies fall far short of establishing Mr. Gill was engaged in a fraud when his wife acquired the property, I consider the immediate answer to the case Mr. Grewal seeks to advance in this regard is that it is simply not pleaded.  An allegation of fraud must be scrupulously pleaded and fully particularized: Chudy v. Merchant Law Group , 2008 BCCA 484, 300 D.L.R. (4th) 56 at para. 168 and the authority cited there.  (See Rule 19(11) of the Supreme Court Rules , now Rule 3-7(18) of the Supreme Court Civil Rules .)  All of the facts material to an alleged fraud must be pleaded.  Here there is no pleaded allegation that Mr. Gill was a participant in a fraud.  Indeed, there is no reference to him at all in Mr. Grewal’s pleaded allegation against Ms. Gill.  A clear statement of Mr. Gill’s involvement in material respects would be essential to pleading and particularizing the case that is argued on the appeal.  Without a proper pleading, I do not consider it open to Mr. Grewal to seek to establish a case of fraud against Ms. Gill that depends entirely on Mr. Gill’s knowledge and his participation in the purchase of the property.  Ms. Gill represented herself at the trial which made the pleaded case against her particularly important.  She was entitled to the clearest statement of the case she had to meet.  Had the case which Mr. Grewal argues been pleaded, Mr. Gill may well have testified.  I consider the action against Ms. Gill was properly dismissed. The Subdivision Property [20] The judge awarded damages sustained by Mr. Grewal for breach of contract in respect of agreements he found to have been made between Mr. Grewal and Dr. Sandhu with respect to the development of the property acquired for subdivision in the second transaction.  Dr. Sandhu appeals, contending the evidence does not support the judge’s findings concerning the agreements that were made. [21] In the fall of 2003, after the purchase of the farm had been completed, a real estate agent Mr. Grewal knew told him about a property that was available for subdivision.  Mr. Grewal told Dr. Sandhu.  The property consisted of four lots that could be subdivided into nine.  There was a house on one of the lots.  Holdco was a holding company that held an agreement with the owners of the property to purchase it for $920,000 with completion in May 2004.  Completion could be extended.  Dr. Sandhu purchased Holdco from the company’s owners in October 2003.  He paid $60,000 to them for the one issued share of the company, plus $30,000 to be paid to the owners of the property as a deposit.  Holdco completed the purchase of the property in mid-June 2004, having removed the subject clause and increasing the deposit by $45,000 to $75,000.  To fund the balance of the purchase price, Holdco obtained bank financing of $500,000, secured by a mortgage, and Dr. Sandhu paid $361,029 in cash from his own account on completion. [22] Mr. Grewal had no financial participation in the acquisition of Holdco.  He contributed nothing.  Through South-Slope, he undertook to act as the project manager for the subdivision, coordinating the services of engineering consultants, a construction contractor and solicitors as required, and ultimately obtaining subdivision approval. [23] In November 2004, a municipal deposit of $600,000 was required.  Dr. Sandhu had only $300,000 in cash available at the time and borrowed $320,000 from a private lender to which he was introduced by Mr. Grewal.  The loan was secured with a second mortgage on the property.  Mr. Grewal is said to have guaranteed the mortgage, although significantly only an unexecuted copy of a “Covenantor Agreement” was tendered at trial. [24] The subdivision of the property was relatively straightforward, although some rezoning was required.  The subdivided lots were ready to be sold, and were sold, in May 2005.  The judge appears to have understood that Mr. Grewal (South-Slope) was to clear and service the property for subdivision.  That may have been initially expected but it is not what happened.  Mr. Grewal testified South-Slope demolished the house but did nothing more on the property itself.  A consulting firm was engaged at a cost to Holdco of $48,000 to do the engineering, and a construction company did the clearing and servicing of the lots at a cost to Holdco of $330,790.  Solicitors were also engaged to do the legal work at Holdco’s expense.  Mr. Grewal oversaw and managed the work.  Expert evidence adduced (the factual basis of which is challenged) suggests he would, however, have had limited involvement with the land development process because it was handled by the consultants.  It was said it would have taken perhaps one day a week of his time over a 15-month period for upwards of 490 hours.  For that time, a well-qualified project manager would have expected to be paid between $45,000 and $62,000.  The cost of having the house demolished would have been between $5,000 and $7,000. [25] In response to requests for money during March, April, and July 2004, Mr. Grewal received cheques from Dr. Sandhu totalling $52,000 as well as cheques totalling a further $15,000 from Dr. Sandhu’s father and brother. [26] It is then common ground that Dr. Sandhu contributed all of the financing and took all of the risk in respect of acquiring and subdividing the property.  It appears he contributed over $750,000 of his own money in what was more than a $1.5 million investment.  The money he borrowed was secured by two mortgages on which he made the payments.  He alone bore all the expense of developing the property.  Mr. Grewal made no financial contribution.  He had no ownership interest and took virtually no risk.  He was simply the project manager.  His job was largely to coordinate the work of others. [27] The parties divide over how Mr. Grewal was to be remunerated.  He testified that before the property was purchased, he and Dr. Sandhu agreed – verbally – he was to have one-half of all the profit from the sale of the subdivided lots.  Dr. Sandhu testified there was no agreement about sharing profit at all.  He said that, for his services, it was agreed Mr. Grewal was to be sold one of the subdivided lots (Lot 4) at cost but that agreement was ultimately replaced by an agreement to pay South-Slope a $100,000 fee. [28] An agreement of purchase and sale for what was to be Lot 4 of the subdivision was drawn by a realtor in standard form and executed by Mr. Grewal and Holdco in June 2004, two weeks after Holdco completed its purchase of the property.  The sale price was $150,000 to be financed by Dr. Sandhu on Mr. Grewal’s promissory note, the terms of which were to be agreed.  The purchase was to complete “within 10 days of the Seller advising the Buyer that the District is accepting applications for building permits” for the subdivision. [29] The judge said the expectation was that Mr. Grewal would be able to sell the lot for more than the purchase price.  When subdivided, the lots were expected to sell for $200,000 or more.  However, Mr. Grewal sold his home in June 2004 and, while he would have had the option of reselling Lot 4, he said he intended to build a new home on it when the subdivision was completed.  Within a few months, however, he lost interest in building on Lot 4 and, in September, assigned the purchase agreement for a “fee” of $50,000 payable on completion.  In March 2005, the purchase agreement was further assigned for a fee of $76,000 payable on completion. [30] In May 2005, when the subdivision of the property was completed, it appears that two agreements (the second expressly referencing and replacing the first) were drawn by a solicitor and executed by Holdco and South-Slope.  The agreements provide for the payment of $100,000 plus GST to South-Slope as its fee for its (Mr. Grewal’s) services as property development manager, to be paid from the net proceeds of the sale of the lots.  The agreements were both dated for reference June 15, 2004, being the date of the completion of Holdco’s purchase of the property.  The solicitor’s records show the first agreement to have been drawn in the first week of May; the second was drawn during the last week. [31] Significantly, neither makes any direct reference to the agreement for the purchase and sale of Lot 4 to Mr. Grewal that Dr. Sandhu says the fee agreement replaced.  Dr. Sandhu testified that in February 2005, acting on tax advice his accountant testified was given to Dr. Sandhu, and which Dr. Sandhu says he explained to Mr. Grewal, they decided to replace the purchase agreement with a fee agreement for $100,000.  Dr. Sandhu testified Mr. Grewal brought the purchase agreement to him and they “ripped it up, threw it in the garbage”.  Mr. Grewal said there was no such meeting.  The judge did not directly address this aspect of the evidence.  The original document, which would have been a complete answer to Dr. Sandhu if it still existed, was not produced and put to him at trial. [32] After the first fee agreement was executed, Mr. Grewal consulted with the solicitors who had done the legal work for the subdivision.  On May 24, 2005, they filed a claim of lien for South-Slope against all nine lots in the subdivision for $100,000 plus GST, and a caveat against Lot 4 for Mr. Grewal even though he had assigned the agreement to purchase it.  The second fee agreement makes provision for the discharge of the liens.  It also makes provision for two holdbacks of $7,500 each.  The first relates to a holdback by the municipality; the second to a dispute over Lot 4.  Mr. Grewal was subsequently paid $85,000 without any set-off of the money he had received from Dr. Sandhu or his father and brother. [33] The dispute over Lot 4 arose when it became evident in May there were two purchasers, the first being the second assignee of Mr. Grewal’s purchase agreement for the lot, and the second being a purchaser to whom Holdco had, in April, agreed to sell Lot 4 for $228,000.  Dr. Sandhu had listed the lot with a realtor in March.  He said he did that after Mr. Grewal agreed to a fee of $100,000.  The $7,500 holdback was to cover anticipated legal expenses in the event of there being litigation with the second assignee.  Holdco essentially completed the sale of Lot 4 with the second assignee for $226,000 (the total to be paid for the lot including fees under the second assignment).  The purchaser obtained judgment against Holdco for $17,611.  Apparently to avoid a threatened claim by the first assignee, Mr. Grewal paid him $26,000, being the net fee to be received by the first assignee under the second assignment ($76,000 - $50,000). [34] Dr. Sandhu maintained he knew nothing of the assignment until the second assignee sought to complete the purchase of Lot 4 in May.  Mr. Grewal testified he told Dr. Sandhu he had assigned the purchase agreement at the time it was assigned in September 2004.  He says that when he did, Dr. Sandhu became very angry with him.  It is difficult to see why Dr. Sandhu would have listed Lot 4 for sale in March and sold it in April if he knew then the purchase agreement between Holdco and Mr. Grewal remained in effect – that it had not been torn up.  Indeed, while he may well have been upset with Mr. Grewal if he learned about the assignment in May, it is difficult to see why he would have had any cause to be angry with him months earlier.  But, by somewhat the same token, there appears to be no explanation as to why Mr. Grewal would have torn up the purchase agreement for Lot 4 and entered into the $100,000 fee agreement after having assigned the purchase agreement for $50,000.  The judge did not address these conflicts. [35] Mr. Grewal testified that the agreement for the purchase and sale of Lot 4 was an “idea” Dr. Sandhu had after the property was purchased.  It was something Mr. Grewal was to have in addition to his share of the profit from the development of the subdivision.  He said the $100,000 fee agreement did not replace the Lot 4 agreement.  The fee agreement was imposed on him by Dr. Sandhu.  It meant he would not share in the profit.  On what Mr. Grewal said, he agreed to accept a $100,000 fee, payable out of the sale of the subdivided lots, instead of one-half of the whole profit from the development, and he was receiving nothing in return.  In any event, he sues Dr. Sandhu on the profit sharing agreement and the Lot 4 agreement, contending the $100,000 fee agreement is unenforceable because it was obtained by undue influence and conferred no benefit on him. [36] Mr. Grewal testified he consulted the solicitors after executing the first fee agreement to ask what he should do.  That led to the caveat against Lot 4 and the claim of lien against all the lots being filed.  He then executed the second fee agreement under which South-Slope agreed to discharge the lien.  The caveat must have been lifted soon after. [37] The judge found that there was a verbal agreement between Mr. Grewal and Dr. Sandhu for the equal sharing of profit from the sale of the subdivision lots.  He stated his reasons as follows: [33]      I find that the situation that existed in 2004 is not consistent with one in which Mr. Grewal was merely a hired development manager.  One would not expect such a property manager to work without pay merely on the expectation of future profit from the purchase and sale of one lot, or to assume liability as guarantor of the mortgage.  Those facts support Mr. Grewal’s assertion that there was a verbal agreement to share the profits.  In that light, the payments made to Mr. Grewal or South Slope from time to time make sense as an advance against those future profits. [38] Thus, the judge concluded that Mr. Grewal being remunerated out of anticipated profits and his guaranteeing the second mortgage supported his having made a verbal agreement with Dr. Sandhu to share all the profit from the sale of eight lots equally in addition to what Mr. Grewal was to derive from the written agreement to purchase Lot 4. [39] The judge suggested the payments received by Mr. Grewal totalling $52,000 made sense as advances against shared profits as opposed to loans, but it may then be difficult to see why Mr. Grewal signed a promissory note in February 2005 for $70,000 which the judge presumed was Dr. Sandhu’s attempt to recover some or all of the amounts he had paid to him out of the sale of the Farm Property. [40] With respect to Lot 4, the judge recounted Dr. Sandhu’s testimony that he and Mr. Grewal had agreed to tear up the purchase agreement.  Later he said that despite the tax advice he had received, Dr. Sandhu had no right to unilaterally cancel the contract that had been made (which neither Dr. Sandhu nor Mr. Grewal appear to have suggested had happened).  Later still, without giving any further reason, the judge said he “had found” Mr. Grewal had never surrendered his contractual right to acquire one lot.  I find the absence of further explanation renders a proper review of the judge’s resolution of the issues associated with Lot 4 quite difficult. [41] While he did not say so specifically, the judge appears to have determined the $100,000 fee agreement to be unenforceable simply because Mr. Grewal was at a disadvantage when it was executed.  The judge said only that when the agreement was executed, Mr. Grewal’s (South-Slope’s) work was done, and the agreement to share profit for which he contends was not in writing.  Without saying more, the judge then assessed damages in respect of the subdivision based on the equal sharing of profits from the sale of the Subdivision Property, effectively ignoring the fee agreement. [42] In assessing damages based on a breach of the agreement to share profits, the judge said there was no reliable evidence before him of the profit earned by Holdco on the sale of the lots.  While it was not sought by Mr. Grewal (who maintains his case was proven), the judge ordered a reference to the registrar for a report determining, on further evidence to be adduced, the net profit Holdco realized on all but Lot 4.  He found Mr. Grewal entitled to half of what that amount may be, less the $85,000 he was paid when the lots were sold at the end of May 2005 and the $52,000 he received from Dr. Sandhu in 2004 (but not the $15,000 Mr. Grewal received from Dr. Sandhu’s father and brother).  For reasons that are not clear to me, he awarded Mr. Grewal $76,000 in damages against Dr. Sandhu for what the judge said was Mr. Grewal’s lost “opportunity to acquire and resell Lot 4”.  It may be questionable that it was open to the judge to order a reference that the parties did not seek in order to afford one of them the opportunity to adduce further evidence to prove his case, but no point is taken in this regard on the appeal. [43] Dr. Sandhu contends the judge erred in concluding there was, between Mr. Grewal and himself, any verbal agreement to share the profits from the sale of the Subdivision Property.  He maintains that neither of the two reasons the judge gave for accepting what is no more than Mr. Grewal’s bald assertion of an agreement support his conclusion.  Mr. Grewal says the judge’s conclusion is sound and should not be disturbed. [44] In considering sharing of profit, it is important to remember it is Mr. Grewal who makes the assertion, such that he bears the onus of proving that it is more probable than not that the agreement was made.  The judge questioned the veracity of both Mr. Grewal and Dr. Sandhu and indeed preferred the testimony of Dr. Sandhu over that of Mr. Grewal in one important instance: the account each gave concerning which of the two sought to draw the other into the transactions.  Kuldip Grewal, Mr. Grewal’s wife, testified that during 2002 and 2003 Dr. Sandhu told her that he and her husband were partners, one contributing financially and the other sweat equity, and would share profits equally.  But she also said she was never a part of their business dealings.  She was not privy to any agreements that were actually made.  The judge made no mention of her testimony in this regard. [45] To be clear, Mr. Grewal said his arrangement with Dr. Sandhu was to be the same as it was for the Farm Property where they were equal partners.  He had found and introduced Dr. Sandhu to both properties.  But the difference lies in the fact that Mr. Grewal participated in the Farm Property as a documented owner and, after his interest was transferred to Dr. Sandhu, as a documented beneficiary of a trust under which his interest was held.  There was no similar documenting of any interest that would permit him a share of the profit derived from the sale of the subdivision apart from Lot 4.  Virtually all the other agreements said by the parties to have been made between Dr. Sandhu and Mr. Grewal pertaining to both the Farm Property and the Subdivision Property were documented save perhaps for the decision Dr. Sandhu said he and Mr. Grewal took to tear up the purchase agreement for Lot 4 which, in any event, Dr. Sandhu said led to the documented $100,000 fee agreement.  All of the agreements were professionally drawn either by a solicitor or a realtor.  Only the critical and substantive agreement for which Mr. Grewal contends was not committed to writing. [46] But it was, nonetheless, Mr. Grewal’s testimony that he and Dr. Sandhu made the verbal agreement for which the judge found support in two aspects of the evidence.  The question now is whether Mr. Grewal being remunerated out of profits and his guaranteeing the mortgage support the judge’s conclusion.  In my view, they do not. i) Remuneration [47] In stating that one would not expect a project manager to defer his fee, the judge appears to have relied on the evidence of industry practice adduced in cross-examination to which he subsequently referred, saying a project manager would usually be paid as a project went along.  However, while it was accepted that a monthly draw would be usual, the burden of the testimony was that it depends on what is agreed in any given circumstance.  In some instances, project managers do not get paid until the end of the development: “[t]here’s many different ways to deal with it” and “it depends very much on the arrangement”. [48] It may be project managers are usually paid as a development proceeds, but this was not a development that could be said to be usual.  Dr. Sandhu was not an experienced subdivision developer nor was Mr. Grewal an experienced project manager.  He said he had worked with others on developing properties but had never done a development himself.  There was an agreement whereby Mr. Grewal was to purchase one of the nine lots at cost, which was something an employed project manager would not usually do.  Mr. Grewal received $67,000 from Dr. Sandhu (and his father and brother) as the project progressed in any event.  I do not consider the fact that Mr. Grewal was not to be paid until the project was completed necessarily supports there having been a verbal agreement for equal sharing of all the profit from the sale of the subdivided lots.  At best, it is a neutral consideration. ii) Mortgage guarantee [49] Dr. Sandhu was introduced to the private lender by Mr. Grewal through his real estate contacts.  The loan the second mortgage secured was short term at a high rate of interest (15% for four months and 30% after that).  There is no evidence that Mr. Grewal actually executed a guarantee of the mortgage.  He was shown the unsigned copy of the mortgage tendered.  He said it was never explained to him; he was just called to sign it.  But strangely he was not asked if he did.  Dr. Sandhu did not say he ever saw an executed guarantee but accepted both on his discovery and at trial that Mr. Grewal guaranteed the mortgage.  Whether he actually did or not was not established.  All that can be said for certain is that, for some reason, Mr. Grewal was to have guaranteed the mortgage and documentation was prepared by a solicitor for that purpose.  The matter was not one that appears to have been seen as an issue in the course of the trial and becomes important on the appeal only because of the significance the judge attached to it. [50] In stating that one would not expect a project manager to guarantee a mortgage, the judge again appears to have had in mind the cross-examination evidence of industry practice to which he later referred: a project manager would not normally guarantee an owner’s mortgage, although again the evidence is “it depends on the structure of the deal”.  In any event, the judge said nothing about what evidence there is of the reason for Mr. Grewal guaranteeing the second mortgage.  Mr. Grewal gave no explanation in this regard but, on cross-examination, Dr. Sandhu was asked if “he” had Mr. Grewal guarantee the mortgage to make him “feel equal” in the transaction.  The doctor responded he always treated Mr. Grewal as his equal – like a brother – and then twice explained his understanding of the reason for the guarantee.  Dr. Sandhu said he was told by the solicitor who drew the documents essentially that the lender sought Mr. Grewal’s guarantee so that the project manager of the development would to some extent be burdened with completing the subdivision, and having the loan repaid, in a timely manner.  The solicitor later testified but was asked nothing about the mortgage or the guarantee.  The lender did not testify. [51] There can be little in the suggestion Dr. Sandhu sought the guarantee for any reason let alone just to make Mr. Grewal feel his equal in the transaction.  It would normally be the lender, not the borrower, who would seek to have someone guarantee a mortgage.  Apart from what Dr. Sandhu said he was told by the solicitor, there is no evidence as to why the lender would have sought the guarantee of the second mortgage from Mr. Grewal or even what the lender was told about Mr. Grewal’s involvement.  To suggest the lender would have sought the guarantee because Mr. Grewal was, by virtue of a verbal agreement, entitled to one-half of the profit anticipated from the sale of the subdivision lots – or even that the lender was told Mr. Grewal was to share in the profit – can be no more than speculation.  Indeed, if the lender or the solicitor had been told that Mr. Grewal was to share in the profit, it is difficult to see why Mr. Grewal would not have adduced that evidence to support his contention. [52] Having regard for the absence of proper proof that Mr. Grewal did in fact execute the guarantee, I question the extent to which his having done so could properly be relied upon in reaching a conclusion on such a substantial issue as the existence of a verbal agreement to share all the profits equally.  More importantly, however, the judge reached the conclusion he did, finding support in the guarantee, without addressing Dr. Sandhu’s explanation as to why it was to be obtained.  If accepted, his explanation would completely undermine the support the judge saw in the guarantee for his conclusion about there having been a verbal agreement.  Whether the judge overlooked that evidence or discounted it is not clear, but I do not consider the mere fact that Mr. Grewal may have guaranteed the second mortgage, without more, can in the circumstances be said to support the conclusion the judge reached. [53] The standard of review concerning errors of fact has been stated many times by this Court since the series of decisions of the Supreme Court of Canada culminating in Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, perhaps most recently in Basic v. Strata Plan LMS 0304 , 2011 BCCA 231 at para. 2; Susan Heyes Inc. (c.o.b. Hazel & Co.) v. South Coast British Columbia Transportation Authority , 2011 BCCA 77, 329 D.L.R. (4th) 92 at para. 48; and Burdett v. Eidse , 2011 BCCA 191, 334 D.L.R. (4th) 130 at para. 43.  All are consistent with what was said in Fisher v. Fisher , 2009 BCCA 567, 4 B.C.L.R. (5th) 4: [3]   The standard of review on questions of fact is palpable and overriding error.  Palpable error is one that is readily or plainly seen ( Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 5-6); overriding error is one that must have altered the result or may well have altered the result ( Van Mol (Guardian ad litem of) v. Ashmore , 1999 BCCA 6, 58 B.C.L.R. (3d) 305 at para.12).  A trial judge’s findings of fact are to be accorded great deference: Housen at para. 11.  An appellate court may only overturn findings of fact if it is established that the trial judge made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence, or drew erroneous conclusions from the evidence: Van Mol at para. 9.  Absent palpable and overriding error, an appellate court may not substitute its views of the evidence for those of the trial judge and may not interfere with the trial judge’s decision provided there was some evidence upon which the trial judge could have reached his or her decision: Housen at para 1. [54] It appears plain to me the judge misapprehended the only two aspects of the evidence upon which he said his conclusion was based.  His reasons do not reflect his having come to grips with the volume of substantive evidence I have outlined that bears on the issue.  The conclusion is fundamental to the resolution of the dispute concerning the Subdivision Property such that the intervention of this Court is warranted. [55] Dr. Sandhu contends this Court can make its own assessment of the evidence and make such findings as are necessary to reach its own conclusion as to how Mr. Grewal was to be remunerated for his work as the project manager of the subdivision development.  But there is a clear conflict in credibility on a fundamental issue which this Court is not in this case in a position to resolve.  Further, as I have noted, it was the judge’s view there was insufficient evidence adduced at trial to prove the damages Mr. Grewal claims, such that a reference was ordered.  While ordering a new trial is always an unfortunate disposition of an appeal, I see no alternative here.  I consider the issue of what, if any, damages Mr. Grewal may be entitled to have assessed against Dr. Sandhu based on the breach of an agreement or agreements between them (or based on quantum meruit in the absence of agreement) relating to the Subdivision Property including Lot 4, and any accounting in respect thereof, will have to be retried as well as Holdco’s counterclaim in respect of the judgment taken against it by the purchaser of Lot 4. General Damages [56] Mr. Grewal claims that, in addition to the pecuniary losses he sustained by virtue of Dr. Sandhu’s breach of trust and breach of contract, he also suffered a non-pecuniary loss by reason of the mental and emotional impact of Dr. Sandhu’s conduct in respect of the two transactions.  The judge awarded the sum of $125,000 against Dr. Sandhu on the basis that, having been in a fiduciary relationship, he had breached his fiduciary duty seriously enough to warrant condemnation and deterrence.  Mr. Grewal appeals, contending the award should be much greater – perhaps $300,000.  Dr. Sandhu cross appeals, maintaining there is no legal basis for the award at all. [57] Drawing on the frequently referenced dissent of Madam Justice McLachlin, as she then was, in Norberg v. Wynrib , [1992] 2 S.C.R. 226, 68 B.C.L.R. (2d) 29, and what was said in Galambos v. Perez , 2009 SCC 48, [2009] 3 S.C.R. 247, the judge concluded Dr. Sandhu and Mr. Grewal were in a fiduciary relationship from the time Dr. Sandhu began treating Mr. Grewal’s depression in March 2002.  He said the fiduciary relationship ended in December 2004 when Mr. Grewal ceased to be Dr. Sandhu’s patient and it then became adversarial, as evidenced by the claim of lien Mr. Grewal had solicitors file in May 2005. [58] The judge first turned to expert evidence based on the standards as were stated in the 1996 Canadian Medical Association Code of Ethics, Annotated for Psychiatrists .  That Code stated that psychiatrists can hold considerable influence over their patients and must ensure that this does not lead to exploitation for personal advantage, whether it be personal, sexual, or financial.  The opinion expressed, based on the Code, is that the problem a psychiatrist is treating, like Mr. Grewal’s depression, may affect the patient’s judgment such that a psychiatrist should never enter into a business or social relationship with a patient. [59] The judge recognized professional codes of ethics are not binding on the courts and do not necessarily describe legal duties, quoting from Galambos at para. 29.  However, he took the view that the provisions of the 1996 code cited reflected and re-enforced the legal duty inherent in the doctor-patient relationship. [60] Relying on the expert evidence to the effect a psychiatrist should never go into business with his patient, which the judge considered self-evident, he said the “roles of the psychiatrist and business associate are fundamentally irreconcilable and attempts to combine them cannot help but give rise to perceived or actual conflicts of interest”.  He then said: [62]      By virtue of the professional relationship, the psychiatrist will have knowledge of the patient’s affairs, needs and vulnerabilities not normally available to another party in a business transaction.  At the same time, the patient’s trust in the psychiatrist−which is fundamental to the success of the therapeutic relationship−may make the patient more likely to accept the psychiatrist’s assurances and representations at face value and less likely to demand the further information or written contractual protection that he or she might expect and desire in an arms-length business deal. [61] The judge discussed the significance of the power-dependency feature of the psychiatrist-patient relationship, recognizing that the relationship is rendered fiduciary in nature because the doctor implicitly undertakes to act with loyalty to the patient and to exercise any discretionary power in a manner that is consistent with the patient’s interests.  After quoting from both Galambos and Norberg with respect to a fiduciary’s exercise of power he said: [70]      In this case, the discretionary power existed not only in that broader sense, but in the classic sense of a direct legal power: the properties at issue were in the name of Dr. Sandhu or his company, giving him the ability to deal with them without the knowledge or consent of Mr. Grewal. [62] The judge concluded: [73]      For all of those reasons, I find that there was a fiduciary relationship between Dr. Sandhu and Mr. Grewal.  It then becomes necessary to consider if and how there was breach of the fiduciary duty and the impact of any such breach on Mr. Grewal. [63] Dr. Sandhu accepts that, as psychiatrist and patient, he and Mr. Grewal were in a fiduciary relationship. [64] The judge reviewed the relationship.  Dr. Sandhu and Mr. Grewal were at odds as to how long they had known each other.   They were introduced by someone who was one of Dr. Sandhu’s patients who Mr. Grewal called his uncle.  Dr.  Sandhu said that, on reviewing his records, they were introduced in 1998, although on discovery he had said it was later.  Mr. Grewal said it was two or three years later; he was not sure.   The judge specifically noted Dr. Sandhu considered Mr. Grewal to be an “old friend” (Dr. Sandhu actually said “close friend”).  It appears all that can be said now is there was an established friendship for some period of time before March of 2002. [65] Mr. Grewal was referred to Dr. Sandhu then by his family doctor.  Dr. Sandhu explained that Mr. Grewal had returned from what had been an emotionally difficult trip to India attributable to conflict within his family.  Mr. Grewal told Dr. Sandhu he had previously taken antidepressant medication and he wanted a new prescription.  Dr. Sandhu told him to consult his family doctor who then saw fit to make the referral.  Dr. Sandhu diagnosed Mr. Grewal as having a chronic major depressive disorder with anxious features manifesting a lack of self-confidence and low self-esteem.  Medication was prescribed.  Dr. Sandhu then saw Mr. Grewal periodically to assess his progress and monitor his medication until December 2004.  They and their families socialized together throughout that time.  While not cured, Mr. Grewal’s depression was recorded to be in full remission by November 2002. [66] Mr. Grewal was recorded as being stressed and anxious in September and October 2004, although Dr. Sandhu recorded that, when he saw him in November and December, Mr. Grewal was doing well.  He asked to discontinue his medication and Dr. Sandhu explained the risk of relapse.  Dr. Sandhu recorded that Mr. Grewal was not taking his medication in November and December.  At the end of December, Dr. Sandhu told Mr. Grewal it would not be necessary that he see him for any further treatment and he did not see him in a professional capacity again. [67] Mr. Grewal saw his family doctor three weeks later.  He was then taking medication and his doctor increased the dosage.  Mr. Grewal testified to his condition having deteriorated in the fall of 2004 and that he told Dr. Sandhu virtually the opposite of what Dr. Sandhu recorded.  The judge discounted the accuracy of Dr. Sandhu’s records from September 2004 onward because, in the judge’s view, his conflict of interest and breach of professional standards was by then such that his records could not be accepted as accurate.  The judge also said he did not necessarily accept that Mr. Grewal’s condition was as bad as he remembered but, on the evidence of his family doctor, the judge found Mr. Grewal was not doing as well as Dr. Sandhu’s records suggest.  In any event, Mr. Grewal was not then referred back to Dr. Sandhu or to any other psychiatrist for further treatment.  His family doctor testified, but only as a rebuttal witness to establish he saw Mr. Grewal in January 2005 and increased the medication he was taking.  He was not asked about Mr. Grewal’s depression or when he saw him at any time thereafter.  On one occasion in October 2005, Mr. Grewal attended a psychiatric program at a clinic to which he was referred by his family doctor, but he did not attend the program for depression and anxiety that was recommended. [68] There is evidence of an expert witness who is a professor of psychiatry upon whose unchallenged report Mr. Grewal relies.  Rather than being asked to assume certain facts on which to base his opinion, he was given the pleadings, Dr. Sandhu’s records (apparently including those Mr. Grewal challenged as unreliable), and documentation relating to the two transactions.  While the value of his opinion may be questionable from that perspective, he did interview Mr. and Ms. Grewal once in December 2009.  The judge noted the witness considered Mr. Grewal to continue to suffer symptoms that suggest he still has a major depressive disorder, although the witness also said the ongoing stress of the litigation and the unresolved issues with regards to Dr. Sandhu may well be adversely affecting his medical condition.  The judge noted that the witness said Dr. Sandhu’s inappropriate financial dealings with Mr. Grewal (during the period March 2002 to December 2004) would have been detrimental to his medical condition, but the judge dismissed the suggestion regarding it “more as a matter of assumption or informed speculation than a firm medical opinion on causation”. [69] Mr. Grewal’s contention is that his clinical depression, which had been in remission, again became symptomatic after his business relationship with Dr. Sandhu became adversarial. The judge made no clear finding in that regard but said Mr. Grewal testified that, since the breakdown of his professional and business relationship with Dr. Sandhu, he has suffered from prolonged and worsened depression which has affected his ability to work.  His wife testified that he was unable to work for about three years, he had to sell his excavating equipment, they lost their home, and their financial problems put great strain on their marriage.  According to her, Mr. Grewal lost all confidence in doctors and refused to seek treatment for his depression, but the judge said only that, “whether or not that is the reason”, there is a paucity of clinical records documenting Mr. Grewal’s mental and emotional state in the years following his being treated by Dr. Sandhu. [70] Based on this review of the evidence the judge said: [101]    If this were a medical malpractice action based solely on negligent psychiatric treatment, I would have to apply a “but for” test of causation.  On that basis, I would conclude that Dr. Sandhu’s conduct likely contributed to a worsening in Mr. Grewal’s mental and emotional health.  However, it would be very difficult to determine, based on the evidence before me, the extent of that worsening, the contributing role of other factors, and the likelihood that Mr. Grewal’s depression would have relapsed at some point in any event.  On the application of tort principles, Mr. Grewal would only have proved a claim to modest damages for pain and suffering. [71] The judge then expressed the view that, where there has been a breach of a fiduciary duty, the court has a broad range of remedies, quoting first from Todosichuk v. Daviduik , 2004 MBCA 191, 247 D.L.R. (4th) 715 at paras. 22-24, leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 248, and from McLachlin J.’s dissent in Norberg at 295.  He then said: [104]    Those comments do not apply precisely to this case because I have awarded Mr. Grewal what I consider to be his full economic loss.  However, such economic restitution does not fully address the damage done by a professional who abused his position of trust and misused the therapeutic relationship for personal gain.  I accept that there were emotional and social consequences for Mr. Grewal that went well beyond the financial loss, even if all of those consequences cannot be accurately encompassed by a medical or psychiatric diagnosis. [72] He concluded as follows: [107]    There are really no comparable cases guiding an assessment of general damages in this case.  Because this case involves a breach of fiduciary duty, I must consider not only the impact on Mr. Grewal, but also the seriousness of Dr. Sandhu’s conduct and the need to protect the integrity of the doctor-patient relationship by clearly condemning and attempting to deter such conduct.  Taking those matters into account, but also recognizing that Mr. Grewal is being made whole in a financial sense, I conclude that an award of $125,000 is appropriate. [73] Thus, although the judge awarded what he considered to be Mr. Grewal’s full economic or pecuniary loss for breach of trust and breach of contract, he made a substantial additional award against the doctor.  As I understand him, he based the award on Dr. Sandhu having misused the therapeutic relationship in entering into the two transactions with Mr. Grewal, and having breached his obligation to the beneficiary of a trust in respect of the sale of the Farm Property, all for his personal gain, in a manner that required the court’s condemnation and deterrence. i) The appeal and cross appeal [74] In appealing the award, Mr. Grewal relies on what he maintains is the egregious nature of Dr. Sandhu’s conduct and his contention the judge erred in discounting the gravity of the injury to his health and well being. [75] Mr. Grewal relies on Dr. Sandhu acknowledging that he did not have regard for the professional boundaries which he knew to be essential to the psychiatrist-patient relationship and that he failed to do so out of self-interest in the business opportunities Mr. Grewal brought to him, thereby jeopardizing the provision of appropriate medical care and putting his patient’s health at risk.  Mr. Grewal also attaches importance to Dr. Sandhu accepting that he should not have continued to treat his patient in the circumstances but should have had him referred to another psychiatrist and have recorded and properly disclosed their business dealings. [76] However, the question that arises, and to which I will return, is the extent to which what Dr. Sandhu did constitutes a breach of his fiduciary duty to his patient and the extent to which that may have caused any loss Mr. Grewal suffered.  To be clear, there is no suggestion that, because of his mental or emotional state, Mr. Grewal should not have been engaged in business with anyone, but only that it should not have been with Dr. Sandhu.  By the fall of 2004, Mr. Grewal may have been stressed and anxious about financial and business matters as Dr. Sandhu recorded, but that is not uncommon in conducting business.  The evidence is that Mr. Grewal contributed little to the finances of his household for many months; his wife paid the bills out of her modest salary working for a notary public.  They had little money and that was a source of escalating friction between them and escalating pressure on Mr. Grewal.  Once his relationship with Dr. Sandhu became adversarial in the spring of 2005, leading to his commencing this litigation, that pressure would only have escalated further. [77] It appears to me from the passages of the judge’s reasons quoted, that although he was dismissive of the expert opinion on causation, he effectively found there was some injury, beyond financial loss, suffered by Mr. Grewal that was caused by Dr. Sandhu’s conduct in respect of their business dealings.  The loss was some worsening of his mental and emotional health which had some emotional and social consequences.  But, in drawing what I can from what the judge said, he cannot have considered any loss Mr. Grewal suffered that was attributable to Dr. Sandhu’s conduct to have been more than minor.  The judge did not find that Dr. Sandhu’s conduct did in fact contribute to the worsening of Mr. Grewal’s health; the most he was able to say was that if this were a negligence case he would find it likely did.  He made no determination of the extent of the worsening or the contribution to such of Dr. Sandhu’s conduct, saying only that it would be very difficult to determine .  He accepted there were emotional and social consequences but did not say what they were or over what period of time they were experienced.  He suggested that, on tort principles, Mr. Grewal would have proved a claim to only modest damages.  Indeed, on the little he said, I doubt that any meaningful assessment of a non-pecuniary loss could have been made. [78] Mr. Grewal contends the judge was required to give greater effect to his testimony and that of his wife, supporting his contention that his depression, which had been in remission, became symptomatic when his business relationship with Dr. Sandhu turned adversarial, rendering him unable to work and causing him to lose confidence in doctors such that he would not seek treatment and can, in the result, offer little medical evidence pertaining to his health in the years following to support his claim.  As indicated, the medical evidence adduced was only to the effect that in 2009 he manifested symptoms that were suggestive of a major depressive disorder. [79] It was incumbent on the judge to have regard for the accepted fact that Mr. Grewal responded well to the medication Dr. Sandhu prescribed; his depression was not cured but went into full remission within eight months in 2002.  His family doctor prescribed the same medication in 2005, increasing the dosage.  Mr. Grewal was taking what was presumably the same medication when he and his wife were interviewed for the purposes of obtaining expert evidence in 2009, and he was taking the medication at the time of trial. [80] The judge was not satisfied the absence of medical evidence was necessarily attributable to a lost confidence in doctors.  Why Mr. Grewal would have lost confidence in the medical profession’s ability to treat him, given Dr. Sandhu’s success in treating his depression, may be difficult to explain.  It was open to the judge to consider Mr. Grewal may not have thought he had the need of further medical attention: the medication continued to be effective.  Indeed, there is no evidence that would explain why the medication, if properly taken, should not have continued to hold his depression in remission.  The judge was not required to accept that Mr. Grewal’s mental health deteriorated to the extent he and his wife said it did in the same way as he did not accept Mr. Grewal’s condition to necessarily be as bad as Mr. Grewal recalled when his professional relationship with Dr. Sandhu ended in December 2004. [81] Dr. Sandhu cross appeals in broad terms contending there is, in the circumstances, no justification for a compensable award of $125,000 based on breach of fiduciary duty.   It is acknowledged Mr. Grewal was in a somewhat vulnerable position and that it may have been unprofessional of Dr. Sandhu to enter into the two transactions, but it is contended Dr. Sandhu in no way abused the therapeutic relationship such as to cause any loss to Mr. Grewal.  Dr. Sandhu maintains the judge fully compensated Mr. Grewal for his economic loss on breach of trust and breach of contract principles such that no further compensatory award was justified.  Dr. Sandhu relies in particular on a statement of principle in this regard in a decision of the Ontario Court of Appeal in Martin v. Goldfarb (1998), 41 O.R. (3d) 161.  The case concerned the breach of a fiduciary duty owed by a law firm to its client who sustained a substantial loss by reason of the firm’s non-disclosure.  One question that arose was the determination of what damages flowed from the breach and in that regard the trial judge’s thorough analysis of the governing authorities was adopted at 173: The trial judge made a full analysis of three decisions of the Supreme Court of Canada: Air Canada v. M&L Travel Ltd. , [1993] 3 S.C.R. 787, 108 D.L.R. (4th) 592; Canson Enterprises Ltd. v. Boughton & Co. , [1991] 3 S.C.R. 534, 85 D.L.R. (4th) 129; and Hodgkinson v. Simms , [1994] 3 S.C.R. 377, 117 D.L.R. (4th) 161.  I agree with his analysis and adopt his final reconciliation of the opinions expressed by the members of the Supreme Court when he said [at p. 292]: Regardless of the doctrinal underpinning, plaintiffs should not be able to recover higher damage awards merely because their claim is characterized as breach of fiduciary duty, as opposed to breach of contract or tort.  The objective of the expansion of the concept of fiduciary relationship was not to provide plaintiffs with the means to exact higher damages than were already available to them under contract or tort law. ii) The fiduciary duty [82] It appears to me the fiduciary duty Dr. Sandhu owed to Mr. Grewal was, in material respects, the same as the duty the physician was said by McLachlin J. in Norberg (at 283-284) to owe to his patient.  In accepting Mr. Grewal as his patient to be treated for clinical depression, Dr. Sandhu pledged himself to act in Mr. Grewal’s best interests and undertook a duty of loyalty, good faith and avoidance of conflicting interests.  Theirs was a relationship of trust obliging the doctor to exercise the power a psychiatrist holds over his patient solely for the patient’s benefit.  That does not mean Dr. Sandhu assumed any responsibility for giving Mr. Grewal financial advice.  He was his psychiatrist and owed the duty of a psychiatrist to his patient. [83] Mr. Grewal would then be entitled to an equitable remedy for a breach of Dr. Sandhu’s fiduciary duty that, on a common sense view, caused Mr. Grewal to suffer a loss regardless of whether it was foreseeable: Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534 at 556 per McLachlin J. (as she then was) concurring. [84] The applicable equitable remedy would not be damages but rather compensation, although the distinction is said to be slight.  Whether compensation in equity should be awarded where damages as a common law remedy could be awarded appears to be a matter of whether the policy objectives of the two kinds of awards are the same.  Where they are, an additional award is not warranted.  Equitable compensation to punish deserving conduct can, where warranted, be awarded on the same basis as the common law remedy of punitive damages: M.(K.) v. M.(H.), [1992] 3 S.C.R. 6 per La Forest J. for the majority at 81-82.  Where such compensation is awarded in equity a further award of common law punitive damages cannot be made: M.L.H. v. R.G.R., 2007 ONCA 804. [85] The conditions precedent for awarding punitive damages for breach of a fiduciary duty were quoted by McLachlin J. in Norberg at 299, from M. V. Ellis, Fiduciary Duties in Canada (Don Mills, Ontario: Richard DeBoo, 1988): Where the actions of the fiduciary are purposefully repugnant to the beneficiary's best interests, punitive damages are a logical award to be made by the Court.  This award will be particularly applicable where the impugned activity is motivated by the fiduciary's self-interest. [86] I then consider the judge’s award on these principles insofar as it is said to be based first on Dr. Sandhu’s misuse of the therapeutic relationship and then on his abuse of a position of trust, the questions being whether there was any breach of the psychiatrist’s fiduciary duty that caused a loss and, if so, whether the compensatory award is supportable. iii) Misuse of the therapeutic relationship [87] The judge did not say how he considered Dr. Sandhu had misused the therapeutic relationship in a manner that caused Mr. Grewal’s loss, pecuniary or non-pecuniary.  He made no finding in this regard.  On what he found had occurred, I am unable to see any misuse that on a common sense view caused any loss.  The fact is Dr. Sandhu did not use the relationship at all.  He entered into two financial transactions with his friend.  Mr. Grewal’s position when his relationship with Dr. Sandhu became adversarial was no different than it would have been if they had entered into the transactions in the same way but shortly before their therapeutic relationship began. [88] The two transactions were, on any account, clearly beneficial financially to Mr. Grewal.  That does not excuse any lack of professional conduct on Dr. Sandhu’s part but recognizes this is not a case where a psychiatrist induced his patient into financial dealings to benefit himself at his patient’s expense.  Rather, this is a case where two friends, who at the time were in a doctor-patient relationship, entered into two transactions which one – the patient – brought to the attention of the other – the doctor – for the purpose of interesting him in investing for their mutual benefit. [89] As discussed, Mr. Grewal made no financial contribution in respect of the acquisition of the Subdivision Property and little, if any, to acquiring the Farm Property.  Dr. Sandhu clearly could not have entered into the transactions with any expectation of taking Mr. Grewal’s money; he did not have any.  Rather, as between the two of them, it appears to have been virtually all Dr. Sandhu’s money that was invested and at risk, and the amounts were certainly substantial.  In both instances, Mr. Grewal was provided with work (although it is unclear how much he actually did on the Farm Property) at a time when he appears to have had little to do, and an opportunity for significant remuneration.  He is entitled to half of the profit from the sale of the Farm Property (now established to be $162,500) and, apart from whether he is entitled to share in the profit pursuant to the verbal agreement for which he contends, he has been paid $85,000 in respect of the Subdivision Property which is significantly more than the evidence suggests was the value of the work he did there.  Further, Mr. Grewal received tens of thousands of dollars interest free from Dr. Sandhu, and even Dr. Sandhu’s father and brother lent him money at Dr. Sandhu’s request, all because they were friends. [90] There was no conflict of interest during the therapeutic relationship; the interests of the psychiatrist and his patient were the same.  Both wanted to see Mr. Grewal properly treated for his depression and both wanted each other to benefit financially from the transactions.  There may have been a potential for conflict as is not unusual in financial dealings, and that may reflect adversely on Dr. Sandhu’s professional responsibilities in entering into the transactions, but no actual conflict arose until months after the therapeutic relationship had been discontinued. [91] Further, the judge identified no wrongful exercise of whatever power Dr. Sandhu may have derived from the therapeutic relationship over Mr. Grewal in respect of either transaction.  There was no misrepresentation.  There was nothing untoward about the transactions that would suggest any sinister motivation could be attributed to Dr. Sandhu in entering into them.  Certainly the judge did not find otherwise. [92] With respect to the Subdivision Property, the judge did say Mr. Grewal’s acceptance of what is said to have been Dr. Sandhu’s “verbal assurance [to share the profit equally] had been made more likely by the trust inherent in the doctor-patient relationship”.  But the judge did not say why Mr. Grewal would have been any more trusting of Dr. Sandhu because he was treating his depression than he would have been otherwise: Dr. Sandhu was his friend.  There is no evidence to support the distinction.  Mr. Grewal certainly did not testify to placing greater reliance on his friend because he was his doctor. [93] This case can be contrasted with cases like Norberg or J.R.I.G. v. Tyhurst, 2001 BCSC 369, aff’d 2003 BCCA 224 to which the judge referred, where doctors used the therapeutic relationship they had with their patients to obtain sexual favours. In both instances, doctors took advantage of their position of power and influence over a considerable period of time during the course of ongoing treatment in a manner that retarded their patients’ treatment and compromised their health and well-being.  The interests of doctor and patient were in conflict and the doctors clearly exploited their patients to serve their own interests.  It may well be that a doctor could use his position of power in a therapeutic relationship to take financial advantage of a patient, resulting in a breach of his fiduciary duty, but, as this Court has recognized, the fact that a fiduciary relationship exists between a doctor and a patient does not necessarily mean their engaging in a financial transaction during the course of their professional relationship will constitute the breach of the fiduciary duty owed by the one to the other: Freeman v. Pearlman, 1999 BCCA 40, 169 D.L.R. (4th) 133. [94] The case that was pleaded and was sought to be supported largely with Mr. Grewal’s testimony at trial was that Dr. Sandhu had conducted himself in a predatory manner, exerting control and influence over Mr. Grewal, deliberately taking steps to humiliate, degrade and injure him, thereby exploiting him to take financial advantage.  The contention was and remains that Mr. Grewal went to Dr. Sandhu for treatment and what he received was serious injury.  But that is not the factual case the judge accepted had been made out.  On its face, this case would appear to have little to do with the doctor-patient relationship and everything to do with a commercial dispute between friends that arose months after the therapeutic relationship had ended. [95] Dr. Sandhu did not breach the fiduciary duty he owed to Mr. Grewal by using their therapeutic relationship in any way that caused Mr. Grewal’s loss.  It follows no compensatory award in equity can be justified on that basis. iv) Abuse of a position of trust [96] Given that I do not consider a compensatory award in equity could be made against Dr. Sandhu on the basis that he misused the therapeutic relationship in a way that caused Mr. Grewal’s loss, it remains to consider whether the award can be justified on the basis of Dr. Sandhu’s abuse of his position of trust in the sale of the Farm Property. [97] Dr. Sandhu did breach the fiduciary obligation a trustee owes to the beneficiary of a trust by virtue of his improvident sale of the Farm Property.  The breach did cause the financial loss Mr. Grewal suffered.  The question is whether the judge’s compensatory award exceeding Mr. Grewal’s economic loss is supportable. [98] The award of $125,000 does not reflect any compensable loss Mr. Grewal was found to have suffered beyond perhaps a minor non-pecuniary loss.  It can, in the main, then only be a compensatory award that is almost entirely punitive in nature.  As the judge said the award was imposed having regard for what he considered to be the “seriousness of Dr. Sandhu’s conduct and the need to protect the integrity of the doctor-patient relationship by clearly condemning and attempting to deter such conduct”.  Indeed, the judge subsequently expressly declined to award punitive damages per se because he said he had already considered many of the factors to be taken into account in awarding such damages in his assessment of the compensation award (general damages): [108]  ... I have already considered many of those factors, including the nature of the defendant’s conduct and the need for deterrence, in assessing compensatory damage.  A further award for punitive damages would therefore not be appropriate. [99] Dr. Sandhu sold the Farm Property for less than its market value, but it must be remembered that the property was sold for $15,000 more than what was paid to purchase it and Mr. Grewal’s loss attributable to the improvident sale was no greater than that of Dr. Sandhu.  He bore as much of the difference between what the property was found to be worth and the sale price as did Mr. Grewal.  They were joint owners, each with a 50% interest.  The judge did not suggest, nor could it be said, that Dr. Sandhu’s selling the Farm Property was purposefully repugnant to Mr. Grewal’s interests.  Dr. Sandhu appears to have sold the property, financing the sale to Ms. Gill as he and his wife did, after it had been listed for some months, not to injure Mr. Grewal, but essentially to be rid of an investment that had not gone well at a time when his relationship with Mr. Grewal had become adversarial.  It must indeed be an exceptional case of a breach of a trust obligation such as occurred here that would warrant the imposition of a punitive remedy.  It is, in my view, clearly not this case. [100] I see little in Mr. Grewal’s appeal of the $125,000 compensatory award and I consider Dr. Sandhu’s cross appeal to be well founded.  The award cannot be upheld. Punitive Damages [101] Mr. Grewal appeals the judge’s refusal to award punitive damages per se in addition to the other awards he made.  From what I have said, it will be clear I do not consider any award of punitive damages was in order.  Such an award is exceptional.  It is reserved for instances were conduct has been high-handed, malicious, arbitrary, or highly reprehensible and departing to a marked degree from the standards of ordinary behaviour: Whitten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 at para. 94.  The judge certainly did not characterize Dr. Sandhu’s conduct as meeting those criteria nor do I consider he could have done so.  Dr. Sandhu may have been guilty of professional misconduct in having entered into a business relationship with his friend Mr. Grewal while he was treating his depression.  But, in the circumstances, that was an aspect of the matter for the consideration of the association by which his profession is governed. Special Costs [102] Dr. Sandhu appeals the award of special costs against him. [103] In awarding special costs to Mr. Grewal the judge said: [111]    I am satisfied that an award of special costs against Dr. Sandhu is appropriate in this case.  It was his conduct in blatantly and knowingly ignoring his professional and fiduciary duties that gave rise to this action. Mr. Grewal cannot be properly and fully compensated for those breaches of duty unless his remedy includes an award for special costs.  Further, Dr. Sandhu’s conduct in the litigation, up to and including trial, has been characterized by a lack of candour and efforts to conceal evidence. [104] At the end of the trial, counsel for Dr. Sandhu asked to defer his submission on costs pending judgment.  The judge awarded special costs without hearing further from him, although there were subsequent appearances before the judge when nothing was said about what had happened in this regard. [105] The parties divide over whether the award can be upheld, but of course they do so without the benefit of the way the appeal, in which Dr. Sandhu will have been successful, alters the disposition of the action. [106] It does, however, appear to me the judge, to whom deference must of course be shown in the absence of a reversible error, can be said to have erred in principle in awarding special costs in part on the basis it was required to fully compensate Mr. Grewal.  Special costs are not compensatory; they are punitive.  They are awarded to address conduct in the course of litigation that is reprehensible such as to be deserving of censure and rebuke: Leung v. Leung (1993), 77 B.C.L.R. (2d) 314 (S.C.).  There is authority for awarding special costs based on pre-action conduct, but that is seldom done, and I consider it now clear this is not a case to make an award of costs on that basis. [107] The judge considered what he described as Dr. Sandhu’s conduct in the litigation, showing a lack of candour and efforts to conceal evidence, but Dr. Sandhu already had two awards of special costs imposed on him in respect of his pretrial conduct.  Mr. Grewal contends the judge was entitled to take into account instances where the judge found Dr. Sandhu’s credibility impaired having regard for his testimony on discovery and at trial, but special costs are not awarded based on the acceptance or rejection of testimony.  If it were otherwise, instead of being an extraordinary measure, special costs could be imposed whenever credibility was in issue. [108] While I consider Dr. Sandhu should bear Mr. Grewal’s costs of the action to the end of the trial, I consider they should be taxed as party and party costs. Disposition [109] I would dismiss the appeal and allow the cross appeal. [110] I would set aside the judge’s order (except paragraphs 5, 6 and 10) and replace it with an order essentially in the following terms: 1.       Mr. Grewal will have judgment against Dr. Sandhu for breach of trust obligations in respect of the sale of the Farm Property for $162,500 plus pre-judgment interest; 2.       Mr. Grewal’s and South-Slope’s claims against Dr. Sandhu and Holdco for pecuniary losses in respect of the Subdivision Property, as well as Holdco’s counterclaim in respect thereof, are remitted to be retried on the basis stated in these reasons; 3.       Mr. Grewal will have his costs of the action to the conclusion of the trial that was held, to be taxed as between party and party.  Costs of the retrial will be for the presiding judge to award. “The Honourable Mr. Justice Lowry’ I agree: “The Honourable Madam Justice Levine” I agree: “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Peier v. Cressey Whistler Townhomes Limited Partnership, 2012 BCCA 28 Date: 20120119 Docket: CA039151 Between: Michael Peier Respondent (Plaintiff) And Cressey Whistler Townhomes Limited Partnership and 629220 B.C. Ltd. Appellants (Defendants) Before: The Honourable Madam Justice Levine The Honourable Mr. Justice Lowry The Honourable Mr. Justice Frankel On appeal from: Supreme Court of British Columbia, June 14, 2011 ( Peier v. Cressey Whistler Townhomes Limited Partnership , 2011 BCSC 773) Counsel for the Appellants: B. Cramer and A. H. Sabur Counsel for the Respondent: R. J. Kaardal and B. B. Olthuis Place and Date of Hearing: Vancouver, British Columbia December 9, 2011 Place and Date of Judgment: Vancouver, British Columbia January 19, 2012 Written Reasons by: The Honourable Mr. Justice Lowry Concurred in by: The Honourable Madam Justice Levine The Honourable Mr. Justice Frankel Reasons for Judgment of the Honourable Mr. Justice Lowry: [1] This appeal raises a question of whether the following clause in an addendum to a real estate developer’s standard form purchase agreement relieved the purchaser of a newly constructed townhouse in Whistler, British Columbia, from completing the transaction where the subject requirement was not fulfilled until three weeks after the date on which the vendor had said completion was to take place: It is a condition of this contract that the power/hydro lines on Nancy Greene Drive be buried prior to completion.  Should the power lines not be able to be buried, the Purchaser may cancel this contract at their option and have all deposit monies returned including interest. [2] On the date for completion, the purchaser gave notice he was terminating the agreement.  The vendor gave notice that the completion date was delayed.  Five days later, the purchaser commenced this action for the return of his deposit.  The vendor ultimately counterclaimed for damages and the action was tried summarily before Mr. Justice Butler who, for reasons indexed as 2011 BCSC 773, gave judgment in favour of the purchaser.  The vendor appeals on a question of law, contending, in the main, the delay in the requirement being fulfilled served only to suspend the parties’ obligations to complete the transaction; it did not entitle the purchaser to terminate the purchase agreement. The Purchase [3] The purchaser was Michael Peier; the vendor was a partnership, Cressey Whistler Townhomes Limited Partnership and 629220 B.C. Ltd.  Their agreement for the purchase of the townhouse the vendor was to construct was signed in May 2007.  The purchase price was $2.5 million.  The purchaser paid an initial deposit and subsequently made two more payments for a total of $375,000.  The estimated completion date was December 1, 2008.  If the completion date had not occurred by December 1, 2009, referred to as the “Outside Date” (which the vendor could for any reason extend for up to 120 days) the purchase agreement would be terminated. [4] The purchaser raised a concern about BC Hydro overhead power lines along the road where the townhouse was to be built.  He was told by the vendor’s agent they would be buried before completion.  The two of them then agreed on the wording of the clause in the addendum to the purchase agreement. [5] BC Hydro agreed to bury the power lines.  The vendor paid it to do so in July 2008 and thereafter had no control over when the work would be done.  The lines were not buried until December 11, 2009. [6] The construction of the townhouse was delayed.  It was not until October 2009 that it was ready for the purchaser’s pre-completion inspection.  The required municipal certificate of occupancy was issued on October 21.  On November 4, the vendor gave the purchaser an Official Notice of Completion fixing November 18, 2009, as the completion date with possession the following day.  The agreement provides the balance of the purchase price was to be paid by 2:00 p.m. on the completion date. [7] The purchaser inspected the townhouse on two occasions, October 21 and November 16, accompanied by a representative of the vendor.  He identified over 200 deficiencies that had to be rectified.  He maintains he made no mention of the overhead power lines on either occasion.  He says he was told to confine his inspection to the inside of the townhouse. [8] On November 18, the purchaser was ready and able to complete the purchase.  The townhouse may in fact have been unfit for occupancy then because of the work required to rectify two of the deficiencies in particular: a hardwood floor had to be lifted and some drywall had to be replaced.  The purchaser went to the townhouse twice that day.  He photographed the power lines.  He said nothing to the vendor.  He apparently made no inquiry as to when BC Hydro would have the lines buried.  Rather, he instructed his solicitors to give the vendor notice he was terminating the purchase agreement because the power lines had not been buried.  Counsel for the purchaser wrote the vendor at 12:36 p.m., notifying it accordingly and asking for a refund of the purchaser’s deposit with accumulated interest forthwith.  The vendor responded at 1:49 p.m.  It extended the Outside Date to March 1, 2010.  It also said the completion date would be delayed to December 3 because of the work necessary to rectify the deficiencies. [9] The purchase agreement provides the purchaser was required to complete the purchase despite outstanding deficiencies.  It also provides the vendor could delay the completion date if the townhouse was not ready to be occupied, although it would be deemed to be ready to be occupied once the municipality had given its permission, whether temporary, conditional, or final. [10] The purchaser commenced this action on November 23, 2009.  Thereafter the vendor sought to perform the purchase agreement, giving further notices delaying the completion date to accommodate the ongoing rectification of the deficiencies, ultimately to December 21.  The purchaser maintained there was no longer any agreement.  When the purchaser did not complete on December 21, 2009, the vendor gave notice it would pursue its remedies.  The action proceeded to trial in January 2011. [11] With the onset of recession in 2008, the Whistler real estate market declined.  The vendor sold the townhouse in the spring of 2011 (while judgment was reserved).  The sale price was $1.9 million. The Judgment [12] The judge considered the issues to be two: whether the power lines clause permitted the purchaser to terminate the agreement and whether the vendor had the contractual ability to extend the completion date.  He began his analysis by quoting the following from Kingsway General Insurance Co. v. Lougheed Enterprises Ltd. , 2004 BCCA 421 at para. 10, [2004] 11 W.W.R. 427, as the governing principles: It will, I hope, suffice to note that in terms of contractual interpretation, the same principles of construction applicable to other commercial contracts apply to insurance contracts ...; that the “court must search for an interpretation from the whole of the contract which promotes the true intent of the parties at the time they entered into the contract” ...; that the plain meaning of the words used should be given effect unless it would bring about an unrealistic or commercially unreasonable result ...; that evidence of the factual background or setting of the contract known to the parties at or prior to the date of the contract may be considered even in the absence of an ambiguity ...; that at the same time, the words of the contract “must not be overwhelmed by a contextual analysis” ...; and that in cases of true ambiguity or doubt as to the meaning of the words used, the contra proferentem rule of interpretation may be applied ....  [Citations omitted.] [13] With respect to the first issue, the vendor contended the applicable provision of the power lines clause – the first sentence – is not a condition, as stated, but a warranty that did not entitle the purchaser to terminate the agreement: the purchaser was required to complete the transaction on November 18 and could then sue for any loss caused by the warranty having been breached.  The vendor maintained the second sentence of the clause, which provides for the purchaser’s termination of the agreement in the event the power lines could not be buried, would otherwise be redundant.  The focus of the case as argued in this regard appears then to have been on whether the first sentence of the clause is a warranty.  The judge decided it is not. [14] The judge concluded the purchaser was entitled to terminate the agreement based on two considerations: the clear language of the power lines clause and the relationship between the two sentences of the clause. [15] Although he recognized the terminology employed in contractual language is not determinative, he considered the parties having agreed it was to be a “condition” of the contract that the power lines be buried prior to completion was indicative of their intention concerning their obligations if that was not done.  After quoting from this Court’s discussion of what constitutes a fundamental term of an agreement in Gulston v. Aldred , 2011 BCCA 147, he held the burial of the power lines prior to completion to be a condition of the agreement because of its importance to the purchaser: it was fundamental to the agreement.  Further, relying on what was said in dissent in Jorian Properties Ltd. v. Zellenrath (1984), 10 D.L.R. (4th) 458, 46 O.R. (2d) 775 at 780 (C.A.), he added the purchaser would not have entered into the agreement “without assurance of strict performance”.  He stated at para. 45 that because of the significance to the purchaser of the lines being buried, the parties had agreed: a)         the power lines had to be buried prior to completion; and b)         if the power lines were not able to be buried, he did not have to wait until completion to terminate the Contract. He concluded the parties must have intended the failure to bury the power lines would result in the termination of the agreement if the completion date could not be extended. [16] The judge rejected the vendor’s contention that the right to terminate arises only under the second sentence of the clause.  He interpreted the first sentence and the second sentence as affording the purchaser that right; the first sentence applying if the power lines were not buried prior to completion, the second applying if they could not be buried at all.  He first said: [38]      The issue is whether the second sentence, which gives Mr. Peier the right to cancel the Contract at any time in the event that the power lines cannot be buried, should be interpreted in a way which rebuts the presumption that the obligation to bury the power lines prior to completion is a condition.  The question is not straightforward because there are two ways the second sentence can be interpreted.  As Cressey argues, it may be that the parties intended that Mr. Peier had the right to terminate only where the power lines could not be buried at all.  However, the second sentence can also be interpreted as giving an additional remedy to Mr. Peier; in that alternate interpretation, the first sentence creates a condition which gives Mr. Peier the right to terminate if the power lines are not buried prior to completion and the second sentence grants a right to early termination, meaning termination prior to the Completion Date, in the event that the power lines cannot be buried. He then concluded: [50]      Contrary to Cressey’s argument, the two sentences in the Power Lines Condition do not compel a conclusion that the right to terminate is not available if the power lines are not buried at completion.  Instead, I conclude that the two sentences are intended to cover two different situations.  The first sentence establishes Cressey’s obligation to bury the power lines prior to completion and creates a condition.  The second sentence deals with the situation where it is determined that it is not possible to bury the power lines at all.  However, both give Mr. Peier the right to elect to terminate the Contract: 1)         If the power lines are not buried prior to completion, he has the right to elect to terminate the Contract because of Cressey’s breach of a fundamental condition; and 2)         In the event it is determined that the power lines are unable to be buried Mr. Peier has the right to elect to terminate the Contract, prior to the Completion Date. [17] With respect to the second issue, the vendor contended that, even if it was a condition that the power lines be buried prior to completion, the fact the townhouse was not actually ready to be occupied on November 18 entitled the vendor to delay the completion date under the terms of the agreement as it purported to do.  The judge concluded that was not so.  He found it was not open to the vendor to delay the closing date because, for the purposes of the vendor’s right to delay the completion date under the agreement, the townhouse was deemed to be ready to occupy once the municipal approval had been given as it was on October 21. [18] Thus the judge concluded that, because the power lines were not buried at the time the vendor had said the purchase was to be completed (November 18 at 2:00 p.m.), the vendor had by then no right under the agreement to delay the completion date and the purchaser was at no time thereafter required to complete the purchase.  Accepting that the first sentence of the power lines clause is a condition as opposed to a warranty, the question becomes whether the judge was right to conclude the clause entitled the purchaser to terminate the agreement on November 18. Discussion [19] In my view, the answer to the question lies in considering the nature of the condition.  It is a condition precedent to the completion of the purchase of the townhouse but not what in law is a true condition precedent.  A true condition precedent is a condition that is precedent to the existence of any contractual obligation.  It is an external condition dependent upon a future uncertain event, the happening of which depends entirely on the will of a third party: Turney v. Zhilka , [1959] S.C.R. 578, 18 D.L.R. (2d) 447.  A true condition precedent is to be contrasted with other kinds of conditions precedent where the condition is only precedent to the performance of certain contractual obligations.  In his text, The Law of Contract in Canada , 5th ed. (Toronto: Carswell, 2006) at 430, G.H.L Fridman distinguishes a true condition precedent from others as follows: True conditions precedent, in the Turney sense, if they are to be distinguished at all, must be distinguished because their inclusion in an agreement renders that agreement ineffective to bind the parties until the event contemplated by the condition. ... In contrast with such true conditions precedent, other conditions precedent do not affect the validity or binding quality of a contract, but simply suspend performance of the obligations arising under the contract on the part of one, or other, of the parties, or both, until the stipulated condition is fulfilled. [20] The principles for distinguishing between conditions precedent which are not true conditions precedent were articulated in Wiebe v. Bobsien (1984), 59 B.C.L.R. 183 (S.C.), aff’d 64 B.C.L.R. 295 (C.A.).  The action arose out of the sale of a home that was subject to the purchaser selling his home, which he did, by a certain date.  But before he did, the vendor purported to cancel the agreement.  The purchaser sued for specific performance.  The issue was whether the parties had a binding agreement.  On his review of the authorities, the trial judge said at 189: A condition precedent may be of a nature that creates no binding agreement or it may just act as an ingredient which suspends performance of an otherwise complete contract. It all depends upon the intention of the parties as expressed in the contract itself and as shown by surrounding events. and at 191-92: From these English, Canadian and American authorities a general rule is laid down that in a real estate transaction a condition precedent which must be performed by the purchaser will not usually prevent the formation of a contract but will simply suspend the covenant of the vendor to complete until the condition precedent is met by the purchaser. [21] The majority in this Court agreed with the trial judge’s reasoning and upheld the decree he granted the purchaser.  While he disagreed in the result on the basis the subject clause was not sufficiently certain, Mr. Justice Lambert recognized three kinds of conditions precedent at 298-99: Each “condition precedent” case must be considered on its own facts.  As Bouck J. indicated, some conditions precedent are so imprecise, or depend so entirely on the subjective state of mind of the purchaser, that the contract process must still be regarded as at the offer stage.  An example would be “subject to the approval of the president of the corporate purchaser.”  In other cases, the condition precedent is clear, precise and objective.  In those cases, a contract is completed; neither party can withdraw, but performance is held in suspense until the parties know whether the objective condition precedent is fulfilled.  An example would be “subject to John Smith being elected as Mayor in the municipal election on 15 October of this year.” But there is a third class of condition precedent.  Into that class fall the types of conditions which are partly subjective and partly objective.  An example would be “subject to planning department approval of the attached plan of subdivision”.  This looks objective, but it differs from a truly objective condition in that someone has to solicit the approval of the planning department.  Perhaps some persuasion of the planning department will be required.  Can the purchaser prevent the condition from being fulfilled by refusing to present the plan of subdivision to the planning department?  This type of case has been dealt with by implying a term that the purchaser will take all reasonable steps to cause the plan to be presented to the planning department, and will, at the proper time and in the proper way, take all reasonable steps to have the plan approved by the planning department. What he said has been recognized as the most helpful statement of the law on the various kinds of conditions precedent: Mark 7 Development Ltd. v. Peace Holdings Ltd. (1991), 53 B.C.L.R. (2d) 217 (C.A.) at 223-24, leave to appeal refused, [1991] 3 S.C.R. ix. [22] I consider the power lines clause to fall squarely within the third kind of condition precedent.  It was objective to a point.  Burying the lines was something BC Hydro was to do, but the vendor was required to make arrangements and to pay to have it done. [23] Where there is such a condition precedent, the court will imply a term whereby the party responsible for having the condition fulfilled promises to make a bona fide effort to have it done.  Until the condition is fulfilled or waived, the obligations of the parties to complete the transaction will be suspended.  A condition precedent may be waived under s. 54 of the Law and Equity Act , R.S.B.C. 1996, c. 253, by one party if the condition benefits that party alone. [24] In Dynamic Transport Ltd. v. O.K. Detailing Ltd. , [1978] 2 S.C.R. 1072, the Court had to consider an agreement for the purchase of land that was known by both parties to be subject to subdivision approval.  Which party was to apply was not stipulated.  The vendor refused to complete on the date provided for in the agreement.  It maintained there was no agreement.  Writing for the Court, Mr. Justice Dickson held there was a binding agreement subject to a condition precedent.  It was for the vendor to seek the necessary approval.  A promise on its part in that regard was to be implied.  He found the agreement would be enforceable if the approval was given, but would not if, after the vendor’s bona fide application was made, the approval was denied.  In the interim, the parties’ obligations to complete the transaction were said to be suspended.  He said at 1082-83: The parties created a binding agreement.  It is true that the performance of some of the provisions of that agreement was not due unless and until the condition was fulfilled, but that in no way negates or dilutes the force of the obligations imposed by those provisions, in particular, the obligation of the vendor to sell and the obligation of the purchaser to buy.  These obligations were merely in suspense pending the occurrence of the event constituting the condition precedent. The existence of a condition precedent does not preclude the possibility of some provisions of a contract being operative before the condition is fulfilled, as for example, a provision obligating one party to take steps to bring about the event constituting the condition precedent: see, for example, the recent decision of the Appellate Division of the Alberta Supreme Court in Steiner v. E.H.D. Investments Ltd. [(1977), 78 D.L.R. (3d) 449] (leave to appeal to this Court denied December 14, 1977). [25] Dynamic was specifically followed by the majority in this Court in Wiebe stating nothing required any distinction to be drawn.  I regard what was said in Dynamic to be in material respects applicable here. [26] Under the purchase agreement, with the power lines clause, the burial of the lines prior to completion can be said to have been essential to the purchaser but the time of completion was clearly not.  Indeed, the agreement contained no more than an estimated completion date (December 1, 2008) with the choice of the actual date for completion being entirely at the discretion of the vendor.  Though the agreement provided time was of the essence, the date for completion was by no means of the essence.  The only date on which the purchaser could rely was the Outside Date (March 1, 2010 as extended) on which the agreement would be terminated if the completion date had not occurred. [27] What can be seen to have been important to someone in the purchaser’s position was a condition that he did not have to pay the purchase price until the lines were buried, such that his leverage in that regard was preserved.  If they could not be buried, or if they could be buried but were not buried prior to the Outside Date, the purchase price would never have to be paid and the deposit would be returned.  There was a condition precedent that suspended the purchaser’s obligation to pay the purchase price, but the suspension was not open-ended.  The Outside Date served to give certainty to the agreement. [28] Under the first sentence of the clause, the parties agreed the power lines would be buried prior to completion or the purchase agreement would terminate on the Outside Date.  Under the second sentence, they agreed that if the lines could not be buried the purchaser could, at his option, terminate the purchase agreement.  What they did not agree is that the purchaser could terminate the agreement if the lines were not buried until after a date chosen by the vendor for completion.  In my respectful view, that is simply not what the clause provides. [29] The vendor’s Official Notice of Completion setting November 18 as the completion date that was given on November 4, and its subsequent notices of later dates for completion because of the rectification of deficiencies, confused the situation.  I consider those notices to have been of no effect save for the notice that the completion date would be December 21 after the power lines were buried.  The vendor was not entitled to be paid the purchase price before the lines were buried.  Thus, it was not open to it to choose a date for completion to take place before that could occur.  The notice of the November 18 completion date the vendor gave could not have been effective because the obligations of both the purchaser and the vendor to complete the purchase were suspended until the lines were buried.  The vendor was not entitled to choose a date for completion when completion could not occur.  The condition precedent required that the power lines be buried prior to any date chosen.  Only then could there be a completion date. [30] Once the construction of the townhouse was finished, I consider the purchaser was obligated to complete the purchase whenever the power lines were buried providing that was done prior to the extended Outside Date.  He was obligated to complete the purchase on the date the vendor chose after that was done: December 21.  Prior to that, his obligation was suspended, but he was never entitled to terminate the purchase agreement, obtain the return of his deposit, and effectively walk away from his commitment to pay for the townhouse the vendor had constructed for him pursuant to their agreement. [31] Nothing more need be said for the disposition of the appeal.  The vendor does challenge the trial judge’s conclusions in other respects which pertain principally to the question of whether the completion date was properly delayed, but I need not address the submissions made. Disposition [32] I would allow the appeal and dismiss the purchaser’s action.  I would remit the question of the remedies available to the vendor to the trial court to be determined on the existing record. “The Honourable Mr. Justice Lowry’ I agree: “The Honourable Madam Justice Levine” I agree: “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Bader, 2012 BCCA 25 Date: January 19, 2012 Docket:   CA038287 Between: Regina Respondent And Norman Cecil Bader Appellant Before: The Honourable Mr. Justice Low The Honourable Mr. Justice Frankel The Honourable Mr. Justice Hinkson On appeal from:  Provincial Court of British Columbia, March 25, 2010 ( R. v. Bader , 2010 BCPC 168, Dawson Creek Information No. 29334-1) Counsel for the Appellant: M.P. Bussanich Counsel for the Respondent: W.J.S. Bell Place and Date of Hearing: Vancouver, British Columbia November 15, 2011 Place and Date of Judgment: Vancouver, British Columbia January 19, 2012 Written Reasons by: The Honourable Mr. Justice Frankel Concurred in by: The Honourable Mr. Justice Low The Honourable Mr. Justice Hinkson Reasons for Judgment of the Honourable Mr. Justice Frankel: Introduction [1] On a dark January morning, Norman Cecil Bader was driving his pick-up truck behind a tractor-trailer unit on a two-lane secondary highway just outside of Dawson Creek, British Columbia.  He was accompanied by his wife and daughter and the daughter’s boyfriend.  Visibility was poor and snow obscured the lines on the pavement.  As the two vehicles ascended a steep hill, Mr. Bader pulled into the oncoming lane to pass the tractor-trailer.  When Mr. Bader crested that hill and began his descent, he noticed the headlights of an oncoming vehicle.  Mr. Bader turned his truck towards the ditch on his left in an effort to avoid a collision.  The other vehicle, also a pick-up truck, turned towards the same ditch.  The two vehicles collided.  Wade Hubley, the driver and sole occupant of the other vehicle, was killed. [2] Mr. Bader was convicted of dangerous driving causing death by Judge Blaskovits of the Provincial Court of British Columbia.  In appealing that conviction, Mr. Bader submits that this Court should enter an acquittal because the trial judge improperly utilized the audio-track of a DVD containing videos of the route driven by Mr. Bader that was tendered as a defence exhibit.  In addition, Mr. Bader submits that a new trial should be ordered because the trial judge misapprehended or, more accurately, failed to consider, his evidence concerning why he perceived it was safe to pass the tractor-trailer. [3] For the reasons that follow, I would allow this appeal and order a new trial.  I will deal first with the misapprehension of evidence ground and then the ground relating to the use of the audio-track.  As will be seen, I have concluded that Mr. Bader is entitled to a new trial on both grounds. Factual Background [4] The following facts were admitted as part of the Crown’s case: (a)      On January 5, 2008, Mr. Bader left Ft. St. John, travelling south on the Alaska Highway (Highway 97N) towards Dawson Creek.  Shortly before 8:40 a.m., he turned to travel westbound on Braden Road, a two-lane secondary highway.  At about this time, Mr. Hubley was driving eastbound on Braden Road; (b)      There is no artificial lighting on Braden Road.  At the time of the collision the temperature was approximately minus eight degrees centigrade; no snow was falling.  It was dark, visibility was poor, and the road was covered with compacted snow.  There was some fresh snow on the ground from the night before; (c)      The speed limit on Braden Road is 80 kilometres per hour; (d)      Approximately two kilometres west of the intersection of the Alaska Highway and Braden Road, Mr. Bader, while travelling westbound up a steep hill, attempted to pass a slow moving tractor-trailer.  At this point, the two lanes on Braden Road are separated by two solid yellow lines.  Those lines were covered by compacted snow; (e)      There is limited visibility for westbound traffic to view eastbound (i.e., oncoming) traffic approaching the crest of the hill; (f)       Mr. Bader was travelling in the eastbound (i.e., oncoming) lane as he attempted to pass the tractor-trailer.  He crested the hill, still in the eastbound lane, and began his descent.  He collided head-on with the eastbound vehicle driven by Mr. Hubley.  The collision occurred in the eastbound lane; (g)      Both vehicles had their headlights on at the time of the collision; (h)      Mr. Hubley died of blunt trauma injuries to his chest as a result of the collision; and (i)       Both vehicles were examined following the collision and found to be in good working order. [5] No maps, drawings, or measurements of Braden Road were placed in evidence.  The Crown tendered a series of photographs of the road from the Alaska Highway turnoff to the site of the collision.  In addition, during Mr. Bader’s evidence in-chief a DVD containing videos of that route was tendered as evidence.  That DVD was made by Mr. and Mrs. Bader in the fall of 2009.  Mr. Bader drove the route three times with his wife sitting in the back seat pointing a video camera at the front window of the vehicle they were in.  Two of the trips were in the dark; one was during daylight hours.  The daylight video provides a clear view of Braden Road’s topography while travelling westbound from the Alaska Highway:  there is a level stretch leading to a long steep hill, after that hill the road levels out (plateaus) for a short distance and starts to climb again, after a short distance it drops off quickly in a steep descent.  Although there are utility poles and trees alongside the road that could assist a driver in appreciating the topography ahead, they were not visible on the morning of the collision due to lighting and weather conditions.  As well, there were no signs indicating grade changes in the road. [6] Several hours after the collision, Mr. Bader was interviewed by Constable Jackelynn Passarell of the Royal Canadian Mounted Police.  That interview was tape-recorded.  What follows are excerpts from the transcript of that interview: Officer: Okay. Okay. And so, when you decided to pass, could you see down the road? Bader:      Um, well I, I couldn’t see a-around ah, the big load ah, and, and actually my, h- when I pulled out I, I didn’t, hadn’t really decided to pass, I, I was gonna have a look and ah, you know, I could see for a ways but I, I ah, I honestly couldn’t see far enough. Officer:     Okay.  When you pulled out to have a look, what was, what could you see in front of you? Bader: I could see a, just the road.  And ah, (indiscernible) just the road. ... Officer:     Okay.  When you pulled out, could you see any vehicles oncoming? Bader:      No. Officer:     Could you see down the road so that if there were vehicles oncoming, you would’ve seen them? Bader:      Well I thought I could, I didn’t realize that ah, that the hill there was, was that steep or I guess was the problem, like. ... Officer:     Uh hm.  Okay.  So when you pull out to take a look, you can see the crest of the hill? Bader: Um, you know I I’m ah, it’s still dark and, and ah, I, I-ah yeah, I-I I could still see road, I didn’t realize we were startin’ down the hill like that. Officer:     Okay.  Could you see headlights? Bader:      No. Officer:     Okay.  Did the other vehicle have headlights on? Bader:      Yes, he did. ... Officer:     Okay.  And when you pulled out to look ahead, you could not see anything coming towards you? Bader:      No. Officer:     Okay.  And then once you had committed to try, started to make that pass was when you first observed the headlights coming. Bader:      Ah, well ah, well I, yeah I, I had decided to make the pass and then ah, um, as soon as I had actually started-I’m-I'm positive of this, I had started to slow down before I seen the vehicle, um, because I was, I was re-actually quite fast, you know and, and driven trucks, like how fast he accelerated I know, I know they have all kinds of power and everything but, um, like I could see it wasn’t his intention to let us by (indiscernible) it wasn’t my (indiscernible) my family going skiing and, ah.  You know so, so I, I had made, I-I had made the decision to slow down to, to get back in behind him in my lane and, and, and, about that time ah, ah, well somewhere in there the, the vehicle’s headlights appeared and, the truck was gone like there was lots a room for him to go out and around, and you know the truck was already by so, so that’s how face [ sic ] he, he’d been goin’, or picked up his speed, c-‘cause the truck was long gone.  He had time to looked like, get up, to get over into my lane. Y-you know, it was just a move over and, it wasn’t as if he was driving there for a long time, like it, you know, it all happened within you know, a thousand feet, some’in, you know, not very, not very far eh. [Emphasis added.] [7] Rodney Bruce Steiner, the driver of the tractor-trailer, first noticed Mr. Bader attempting to pass him while on the flat (plateau) portion of Braden Road just before the steep descent.  Based on his familiarity with Braden Road, Mr. Steiner described that area as a “non-passing spot”, because of the steep descent after the road crests. [8] When he first noticed Mr. Bader’s vehicle, Mr. Steiner was travelling at 50 to 60 kilometres per hour, having slowed from approximately 70 kilometres per hour at the start of his climb.  He said that while on the plateau one can see the continuation of the hill ahead but cannot see past the crest.  As Mr. Steiner’s vehicle crested the hill its speed began to increase. [9] Brady Eugene Busche, one of the passengers in Mr. Bader’s vehicle, was familiar with Braden Road.  He said that he was “skeptical”/”nervous” when Mr. Bader pulled out to pass because he was aware of the steep drop-off ahead.  He did not say anything as he initially thought Mr. Bader would be able to pass the tractor-trailer before reaching the crest of the hill. [10] Mr. Bader was the only defence witness.  He confirmed that his statement to the police was the truth as he knew it.  He had last driven on Braden Road about eight years before the collision. [11] Mr. Bader testified that he decided to pass the tractor-trailer because it had slowed to 20 to 30 kilometres per hour.  When he pulled out to see if he could pass he believed he was on a portion of the road that had levelled off.  He did not see the hill rising in front of him and did not feel the ascending slope of the road.  Mr. Bader believed he could see a long way down the road and that it was clear ahead. [12] When the tractor-trailer picked up speed, Mr. Bader said he decided not to pass and slowed down intending to move back into the right lane.  As he crested the top of the hill the road “vanished ... and dropped off”.  He then noticed the headlights of an oncoming vehicle.  He tried but failed to avoid colliding with that vehicle. [13] What follows are excerpts from Mr. Bader’s testimony: In Chief Q         Thank you.  And could - - when you [pulled out to pass], could you see the hill rising in front of you. A          The hill, no. Q         Okay.  What could you see in front of you when you pulled out to pass? A          I could see down the road I thought was - - was quite a ways. Q         Why did you think that? A          That’s - - that’s just what it looked like. ... Q         So was there anything in particular that you think you could see down the road? A          I just thought I could see a long way down the road. Q         So, Mr. Bader, your - - just going through the - - you - - the time just prior to the accident. A          Right. Q         You had been going up the hill behind the truck. A          Right. Q         You pulled out to - - to pass, and I think what you’d said to Constable Passarell was that you pulled out, you - - you hadn’t committed yourself when you pulled out. A          No, that’s right. Q         What did you mean by that? A          Well, I - - I wanted to make sure I had a good look, that nobody was coming and - - you know, before you speed up you make sure everything is clear and - - and it was. Q         Okay.  So you looked and everything was clear. A          Right. Q         When did you make the decision to - - to pass the low-bed? A          Well, at that time, yeah. Cross-Examination Q         At some time could it have been in - - in - - moments from approaching Mr. Steiner’s vehicle or it could have been some time after Mr. Steiner’s vehicle, you decided you’re going to peek out and pass, you’re going to peek out and see if it’s safe; is that fair to say at this point? A          Yes. ... Q         Okay. Now, let’s talk about what the grade of the slope is.  You’ve said it’s dark. A          Yes. Q         So you can’t - - you don’t have any landmarks to see. A          No. Q         The vehicle - - Mr. Steiner’s vehicle has slowed to a fairly slow pace because it’s going up a very steep part of the hill; right?  You can feel that hill in your vehicle, presumably your back is driven into the seat. You - - you can feel the slope; right? A          No. Q         You don’t feel the slope as you’re going up the hill?  You don’t recall that. A          Not in a pickup.  No. Q         Can you see the slope of the hill that you’re travelling up? A          Actually no, I didn’t realize it was that - - that steep.  Like it doesn’t look like the same - - same thing you see in the daylight. Q         I can appreciate it’s dark - - A          Right. Q         - - and you don’t have landmarks.  Are you aware that you’re going uphill? A          Yes, I - - I was aware we were going up a - - a bit of a grade. Q         And that’s when Mr. Steiner’s vehicle slows down is when you’re going - - when you’re going up this grade; right?  He’s slowing right down to this very slow speed you recall on the grade, on the uphill grade; right? A          Yes, he was slowing down, yeah. Q         Okay. Now, it is on this grade that you peek out to look past Mr. Steiner’s vehicle to see if it’s safe?  Are you still going uphill when you peek out? A          No, I believe we were on the level on the top. Q         Now, you say you believe.  Could you say with certainty as you just - - you’re not sure where you made that decision; right?  You believe it was on top or you’re not certain? A          You know, it - - it’s - - I’m not certain, no. Q         I know because it’s difficult - - A          Right. Q         - - because it’s a long time ago and a traumatic event at the end.  It ... A          That’s right. Q         Assume as what we know; right? A          Yeah. Q         Okay. You peek out and you look ahead.  Now, what I suggest to you is you can see - - when you look out, you’ve got your headlights, perhaps one headlights is looking past the Steiner vehicle at this time; right, it’s looking past the low-bed.  You can see up the length of the Steiner vehicle; right?  You can see up the length of that low-bed; correct? A          You know, I can’t remember the details like that.  Like it’s been just about two years. Q         And it’s dark; right?  You’ve testified that it’s actually quite dark.  We can’t see much in these videos at all; right? A          Yes, it’s quite dark, yes. Q         So your - - your vision is limited by the distance of your headlights; correct? A          That’s right. Q         So you can’t see - - I take - - we’re just looking at the roadway now.  On the roadway itself, you can’t see much past your - - if anything, past your headlights; right? A          Past my headlights? Q         Yes. A          Yeah, I can’t say that.  He had his headlights on. Q         Mr. Steiner. A          That’s right. Q         So you may have had - - those lights may have illuminated the view ahead of you a bit more? A          That’s possible, yeah. Q         But again it’s possible, but we - - we don’t have - - you don’t have a present recollection of this. A          I don’t, no. Q         The best you recall then is you looked out and you thought you could see far enough ahead; right? A          For - - for the - - for the speed we were travelling, I could see far enough ahead. [Emphasis added.] Trial Judge’s Reasons (2010 BCPC 168, 99 M.V.R. (5th) 305) [14] The trial judge commenced his reasons by setting out the facts that he found had been established by the evidence.  After describing Braden Road and the lighting and weather conditions on the morning of the collision, he continued: [5]        At about two kilometers west of the junction with Highway 97, the grade of the roadway rises to a hill, is level for a short distance and then rises again to a final crest before beginning to drop suddenly.  There was no measurement offered in evidence of the overall length of the hill or the length of the short level portion of roadway.  There was no calculation or estimate of the pitch of the inclination.  Photographs and videos introduced into evidence suggest that the overall length of the grade is in excess of one kilometer, that the level portion is very short and that the pitch of the inclination before and after is relatively steep.  There are double solid lines marked on the pavement along some extent of the incline.  Due to snow on the roadway, the lines were not visible on the morning of January 5, 2008 and there were no signs posted at the time indicating that passing was not permitted. The grade itself should be apparent to a motorist, even in the dark, when a vehicle’s transmission begins to labour.  The audio portion of a video introduced into evidence by the defence demonstrated this. In the dark however, poles alongside the road could not be seen in order to assist a motorist in reckoning the distance remaining of the grade of the roadway ahead or the onset of the sudden declivity after the final rise. [6]        The tractor and trailer were moving slowly and Mr. Bader pulled out on the hill to pass the unit.  According to Mr. Bader he pulled out on the short level portion of the roadway before the final ascent.  According to the driver of the tractor and trailer, Mr. Bader pulled out on the final ascent.  I am prepared to accept Mr. Bader’s evidence of his position on the roadway when he began to pass.  It appears that Mr. Bader may have thought that he reached the crest of the hill when he was on the short level portion, but he did not say so. I infer that because he knew he was on a grade when he caught up to the unit, he must also have known he was on a grade after he pulled out on the short level stretch and began to climb again. In either case, it is important to find, and I do, that Mr. Bader had not yet reached the crest when he pulled out. [Emphasis added.] [15] The trial judge then went on to discuss what happened from the time Mr. Bader’s vehicle crested the hill until it collided with Mr. Hubley’s vehicle. [16] The judge reviewed the evidence given by various witnesses, which he said was “generally consistent about the circumstances leading up to the collision.”  In the course of that review he set out a number of excerpts from Mr. Bader’s statement to the police.  He did not include any excerpts from Mr. Bader’s testimony, including those set out in para. 13 above. [17] The trial judge summarized Mr. Bader’s testimony as follows: [18]      Mr. Bader’s evidence at the trial was substantially the same.  The tractor and trailer were moving slowly and he decided to pass.  The driver of the tractor did not give him an indication that he could pass.  He said that he pulled out without committing to pass in order to make sure it was clear to pass.  It was dark.  He was aware that he was going up a grade but didn’t realize how steep the hill was.  His vehicle and the tractor and trailer were then travelling the same speed.  Mr. Bader said that he looked at the lowbed trailer and then at the roadway and the roadway suddenly dropped off.  By then he said he had decided not to pass and he started to fall back.  The oncoming headlights came into view.  The headlights moved into the westbound lane and back again.  He tried to slow down and move behind the tractor and trailer unit but it had speeded up.  In deciding to pass he said he hadn’t considered this happening.  The collision occurred. [18] Under the heading “LAW”, the trial judge set out the relevant provisions of the Criminal Code , R.S.C. 1985, c. C-46, i.e., ss. 249(1)(a) and (4).  Those were followed by a discussion of R. v. Hundal , [1993] 1 S.C.R. 867 and R. v. Beatty , 2008 SCC 5, [2008] 1 S.C.R. 49, the leading decisions of the Supreme Court of Canada on the elements of the offence of dangerous driving. [19] Under the heading “ANALYSIS”, the judge applied that law to the questions of whether the Crown had proven both the actus reus and mens rea of the offence of dangerous driving.  He concluded—and this is not challenged on appeal—that, viewed objectively, Mr. Bader drove his vehicle in a manner dangerous to the public.  Turning to the mental element of the offence, the trial judge began his discussion as follows: [32]      The second question is whether Mr. Bader had the necessary mens rea for the offence or whether there is a reasonable doubt that he had the necessary mens rea for the offence. I consider his explanation for his manner of driving. [33]      There is no suggestion in the evidence that Mr. Bader was inobservant of the circumstances, as limited as they were, under which he was driving when he pulled out. There is also no suggestion in the evidence that he laboured under a mistake of fact in his perception of the circumstances or that he was incapable of perceiving them. [Emphasis added.] [20] Applying the test set out in Beatty , the judge was satisfied beyond a reasonable doubt that Mr. Bader’s driving amounted to a marked departure from the norm.  Although the judge found that Mr. Bader had not pulled out with the deliberate intention of putting anyone in danger, he found that, having regard to all the circumstances, Mr. Bader would have been aware of the risks created by his attempt to pass when and where he did.  In concluding his analysis, the judge stated: [40]      Mr. Bader cannot point to the increase in the speed of the tractor as an excuse for his conduct.  He was himself a professional driver.  He was already in the opposing lane and when both vehicles reached the crest of the road, he must have known that the slower, heavier vehicle on an incline will pick up speed on the level or decline.  As a professional driver, he must also have known the danger inherent by the driver’s applying the brakes of the tractor and trailer unit on a decline in winter road conditions. [41]      A driver possessed of this information would have been aware of the risks and the danger of Mr. Bader’s manner of driving.  The reasonable driver aware of these risks and with the limited capacity to assess the safety of a passing manoeuvre would not have deliberately entered and remained in the oncoming lane on this roadway.  Mr. Bader’s evidence and the evidence at the trial as a whole do not raise a reasonable doubt that someone in his position would not have been aware of the risks created by this manner of driving. Analysis Misapprehension of the Evidence [21] Mr. Bader’s primary defence at trial was that when he commenced his passing manoeuvre he honestly believed, based on his senses, that the road ahead was level and clear.  In other words, he believed it was safe to pass.  He submits that the trial judge, in addressing the mens rea element of dangerous driving, failed to consider his evidence with respect to that belief and that, as a result, the trial was unfair.  I agree with that submission. [22] Mr. Bader testified that he pulled out from behind the tractor-trailer on a level stretch of road and, having done so, did not realize that the road’s grade had started to rise again.  Further, he said that before cresting the hill he believed he could see far enough down the road to determine that it was safe to pass. [23] A finding of fact important to the trial judge’s ultimate conclusion was that Mr. Bader “must have known” that the road’s grade started to rise again.  The judge expressly made this finding at para. 6 of his reasons.  Although in that paragraph the judge refers to other aspects of Mr. Bader’s evidence, no mention is made of the testimony to which I have just referred.  If the judge rejected Mr. Bader’s testimony regarding what he believed about the grade of the road and what lay ahead, then I would have expected the judge to have explained why he reached that conclusion.  It is noteworthy that when the judge later came to review Mr. Bader’s evidence, he again made no mention of how Mr. Bader said he perceived the circumstances. [24] That the trial judge overlooked this aspect of Mr. Bader’s testimony is further reflected in that portion of his reasons dealing with the mens rea element of the offence.  In para. 32 of those reasons, the judge begins his consideration of Mr. Bader’s “explanation for his manner of driving”.  However, in the following paragraph he states that there is “no suggestion in the evidence that [Mr. Bader] laboured under a mistake of fact in his perception of the circumstances.”  This is a clear indication that the judge misapprehended, or failed to consider, an important aspect of Mr. Bader’s testimony. [25] In response to Mr. Bader’s argument, the Crown points to the fact that it has never been disputed that part of the passing manoeuvre took place while Mr. Bader’s vehicle was proceeding up a hill.  That, however, is not determinative of the issue of what Mr. Bader perceived the grade to be at the relevant time.  Neither is the testimony given by other witnesses with respect to the topography and the road and weather conditions. [26] It is clear from Beatty that a mistake-of-fact defence is open to a person charged with dangerous driving.  In that case, Madam Justice Charron stated that “a reasonably held mistake of fact may provide a complete defence if, based on the accused’s reasonable perception of the facts, the conduct measured up to the requisite standard of care”:  para. 38.  The problem in the case at bar is that the trial judge did not turn his mind to that question.  Accordingly, it cannot be said, as the Crown submits in its factum, that “there was nothing to suggest that [Mr. Bader] had a reasonably based belief in a state of facts that would have led him to mistakenly believe he could see far enough ahead of him to properly assess his ability to pass.” [27] The threshold for establishing a misapprehension of evidence sufficient to overturn the decision of a trial judge is a high one.  It was succinctly stated by Chief Justice Finch in R. v. Peters , 2008 BCCA 446, 262 B.C.A.C. 57: [14]      Material misapprehension of the evidence can justify appellate intervention.  The standard is a stringent one:  the misapprehension of the evidence must go to the substance rather than to the detail; it must be material to the reasoning of the judge and not peripheral; and the errors must play an essential part not only in the narrative of the judgment but in the reasoning process itself.  If this standard is met, appellate intervention is justified, even if the evidence actually does support the conclusion reached:  [citations omitted]. Also apposite is the judgment of Madam Justice Bennett in R. v. Shen , 2010 BCCA 554: [29]      The question, then, is whether the errors, admittedly made by the trial judge, played an essential part in the “reasoning process resulting in a conviction”.  The test is stringent, because it is easy, in a busy trial court or after a long trial, for a judge to misspeak, even when reading from written reasons.  Misspeaking or misapprehending evidence is not an error unless the error or errors go to the core of the reasoning process which resulted in a conviction. [28] In my view, that threshold has been met in the case at bar.  Because the trial judge failed to consider Mr. Bader’s evidence as to why he perceived that it was safe to pass, Mr. Bader did not receive a fair trial: R. v. Lohrer , 2004 SCC 80, [2004] 3 S.C.R. 732 at para. 1, citing R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 221.  As a result, there must be a new trial. Use of the Audio-Track of the DVD [29] As previously mentioned, the defence tendered a DVD containing a video-recording of three trips Mr. and Mrs. Bader made along Braden Road more than a year after the collision.  That recording has an audio-track.  For the most part all that can be heard are sounds made by the vehicle Mr. and Mrs. Bader were in and other vehicles on the road.  There is minimal conversation between Mr. and Mrs. Bader.  Both the video and audio-tracks are part of the trial record. [30] The DVD was played during Mr. Bader’s examination-in-chief and cross-examination and he was questioned about what it depicted.  He was not questioned about the audio-track.  As the transcript filed on the appeal does not contain counsel’s oral submissions, it is not possible to say whether either of them referred to the audio-track in advancing their respective positions.  However, the written submissions counsel provided to the trial judge were filed on the appeal.  Those do not contain any reference to the audio-track. [31] It is, however, clear that the trial judge did have regard to the audio-track.  For ease of reference, I repeat what he said about it in para. 5 of his reasons: The grade itself should be apparent to a motorist, even in the dark, when a vehicle’s transmission begins to labour.  The audio portion of a video introduced into evidence by the defence demonstrated this. In the following paragraph the judge said: I infer that because [Mr. Bader] knew he was on a grade when he caught up to the unit, he must also have known he was on a grade after he pulled out on the short level stretch and began to climb again. [32] It is not disputed that the audio-track indicates that the transmission noise of the vehicle Mr. Bader was driving in the 2009 DVD increased as that vehicle proceeded up the grade to the crest of the hill.  However, there is no evidence that Mr. Bader was aware of that noise.  More importantly, there is no evidence that the transmission of the vehicle Mr. Bader was driving on January 5, 2008, made a similar noise and, even if it did, that such noise would have been apparent to him.  In this regard, I note that there is a dearth of evidence with respect to such matters as whether there was music playing in Mr. Bader’s vehicle on the morning of the collision, or the level of conversation inside the vehicle at that time. [33] Although it is not entirely clear, it appears that the trial judge may have taken the transmission noise into account in deciding that, after Mr. Bader pulled out to pass, he must have known that he was again travelling up a hill because that noise would have been apparent to him.  If the judge did do so, then in my opinion, he erred.  However, it may also be, as submitted by the Crown, that the judge did not use the transmission noise to either bolster the Crown’s case or to negate Mr. Bader’s evidence, but rather, treated it as merely confirmatory of a fact that was not in dispute, i.e., that the grade increased after Mr. Bader pulled out. [34] Given that the reasons leave open the possibility that the transmission-noise evidence was misused, I would give effect to this ground as well.  However, I do not agree with Mr. Bader that this error entitles him to an acquittal because, otherwise at a new trial, the Crown might to able to call additional—perhaps expert—evidence with respect to transmission noise.  The use of a particular piece of evidence to draw an unavailable inference does not lead to an acquittal on appeal when the balance of the evidence could support a conviction.  The only available remedy is a new trial. Conclusion [35] I would allow this appeal, set aside the conviction, and order a new trial. “The Honourable Mr. Justice Frankel” I agree: “The Honourable Mr. Justice Low” I agree: “The Honourable Mr. Justice Hinkson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Chaffey, 2012 BCCA 33 Date: 20120119 Docket: CA038553 Between: Regina Respondent And Ryan James Chaffey Appellant Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Lowry The Honourable Madam Justice Bennett On appeal from: Provincial Court of British Columbia, June 21, 2004 ( R. v. Chaffey , Port Coquitlam Registry 69116-2-C) Oral Reasons for Judgment Counsel for the Appellant: D.C. King Counsel for the Respondent: J. Duncan Place and Date of Hearing: Vancouver, British Columbia January 19, 2012 Place and Date of Judgment: Vancouver, British Columbia January 19, 2012 [1] SAUNDERS J.A. : Mr. Chaffey applies for an extension of time to apply for leave to appeal, if granted, applies for leave to appeal, and if leave be granted, appeals the sentences imposed upon him on June 21, 2004 on two of three counts of robbery set out in Information 69916-2-C. The appeal concerns an illegal sentence, and appropriately, the respondent does not oppose an extension of time, or leave to appeal, and agrees in the circumstances of the case, to the appellant’s proposed disposition. In the circumstances, the extension of time sought is appropriate, in my view, as is leave to appeal. I would extend the time to appeal to November 2, 2010, and give leave to appeal. [2] I turn to the substance of the appeal. Mr. Chaffey was sentenced to 10 months incarceration on one count of robbery, which was Count 3, and a conditional sentence of two years less a day each on the other two counts of robbery. [3] Mr. Chaffey has committed further offences since the ones in issue. In particular on December 7, 2010 he pleaded guilty to five counts of robbery and one count of theft under $5,000. He was sentenced to three years imprisonment on each of the robbery charges, and two years imprisonment on the theft under charge, all sentences to run concurrently. In the course of dealing with corrections officials in the recent past, the matter of the illegal sentence imposed in 2004 was drawn to his attention. This accounts for the late filing of his application for leave to appeal sentence. [4] Simply describing the sentences imposed in 2004 reveals the error – the combination of the sentences, referred to as a blended sentence, results in a sentence that exceeds two years. [5] Section 742.1 permits a conditional sentence to be imposed only where, in the words of the section, “the court imposes a sentence of imprisonment of less than two years”. It is now well accepted that imposition of terms of imprisonment and conditional sentences in which the aggregate sentence exceeds two years is illegal as contrary to s. 742. 1. A useful compilation of the cases on this issue is found in R. v. Lyver , 2007 ABCA 369. [6] The appellant suggests that the problem be rectified by setting aside the conditional sentences of two years less a day and substituting a sentence of imprisonment. Crown counsel, in the circumstances described in which the problem is of long standing and has been uncorrected until now, agrees. [7] In my view, the sentencing solution proposed is appropriate. I would allow the appeal by setting aside the sentences imposed on Counts 4 and 5 of Information 69916-2-C and imposing on each of those counts a sentence of 22 months imprisonment, to run concurrent to each other and to the sentence of 10 months imposed on Count 3. [8] The parties are at liberty to return on this matter if this disposition has unintended consequences. [9] LOWRY J.A. : I agree. [10] BENNETT J.A. : I agree. [11] SAUNDERS J.A. : The appeal is allowed in the terms I have indicated. [12] Since these reasons for judgment were delivered orally, I have located this helpful and clear explanation of the availability of a blended sentence, provided by Chief Justice Finch in R. v. Joe , 2005 YKCA 9: [30]      I am persuaded that it is not an error of principle to order both custodial and conditional sentences for offences arising from the same circumstances, provided that: the global sentence does not exceed two years less a day; the custodial and conditional sentences are not ordered to be served concurrently; and the requirements of s. 742(1)(b) are satisfied in respect of one or more of the offences. “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Jean, 2012 BCCA 29 Date: 20120120 Docket: CA035452 Between: Regina Respondent And Remi Claude Jean Appellant An Order has been made directing that the identity of the complainant and any information that could disclose her identity not be published in any document or broadcast in any way pursuant to Section 486(3) (now Section 486.4(1)) of the Criminal Code . Before: The Honourable Madam Justice Ryan The Honourable Mr. Justice Chiasson The Honourable Madam Justice D. Smith On appeal from the Supreme Court of British Columbia, July 21, 2005 ( R. v. Jean , Terrace Registry, Docket Number 24039-2 & 24039-3) Counsel for the Appellant: R.J. Kincaid Counsel for the Respondent: E.A. Campbell S.E. Lacusta, A/S Place and Date of Hearing: Vancouver, British Columbia February 10, 2011 Place and Date of Judgment: Vancouver, British Columbia January 20, 2012 Written Reasons by : The Honourable Madam Justice Ryan Concurred in by: The Honourable Mr. Justice Chiasson The Honourable Madam Justice D. Smith Reasons for Judgment of the Honourable Madam Justice Ryan Introduction [1] The appellant, Remi Claude Jean, appeals his July 21, 2005 conviction for indecent assault following a trial in the Supreme Court in Terrace before Mr. Justice Bauman (as he then was) and a jury. [2] The one-count indictment alleged an historical sexual assault.  It read: Remi Claude JEAN, between the 1 st day of January, 1972 and the 31 st of December, 1979, all dates inclusive, at or near Delta or Surrey, in the Province of British Columbia, did indecently assault a female person, [Ms. B], contrary to s. 149(1) of the Criminal Code . [3] The appellant says that the trial judge erred in admitting evidence which was highly prejudicial to him, and that, having admitted the evidence, erred in instructing the jury as to its use.  He also says that the trial judge was wrong in allowing the Crown to call evidence of an assault which occurred outside the time-frame of the indictment. Evidence at Trial The Case for the Crown [4] The complainant, Ms. B, was 38 years of age at the time of trial.  She alleged that Mr. Jean assaulted her over a number of years when she was between the ages of five and twelve. [5] When she was three years old, the complainant, along with her older sister and younger brother, went to live with Mr. Jean’s wife’s parents in North Delta. [6] Ms. B testified that Mr. Jean, his wife, and their two children were regular visitors to the foster home and that when she was six years of age, the Jean family lived in the basement of the home for about six months. [7] Ms. B testified that the appellant began to sexually abuse her when she was about five years old.  He would pick her up, put her on his lap, put his hands between her legs, and touch her thighs and rub her vagina.  The touching started before the Jeans moved into the foster home and continued during their stay. [8] Ms. B testified that, once the Jean family was living in the residence, the appellant would often go to her bedroom at night.  He would lie down on her bed, kiss her on the cheek, lift her nightie, and rub her behind and her vagina.  While he was doing that, the appellant would rub his penis.  Sometimes Mr. Jean lay beside her; other times he would lie on top of her and rub his penis against her vagina, ejaculating on her stomach. [9] The complainant testified that she was scared by what was happening to her.  She said that Mr. Jean told her that he loved her, that what was going on was their secret, that no one would understand, and that she would be separated from her sister and her brother if anyone found out. [10] The complainant said that she reported Mr. Jean’s behaviour to her foster mother when she was about five years of age.  She said her foster mother angrily dismissed the complaint. [11] Ms. B testified that she recalled part of an incident where she awoke in the bathtub.  There was blood in the bathtub and she was crying.  Mr. Jean was kneeling beside the tub stroking her hair and telling her “it would be okay”.  She did not go to school the next day because she was sore in her vaginal area.  The complainant testified that she told her foster mother that she was sore and could not get out of bed.  Her foster mother made no further investigation of her illness. [12] The complainant testified that when she was eight or nine years of age, the Jean family had their own home in Surrey.  Ms. B said that she would visit the home at the request of Mr. Jean’s wife.  On such occasions, she would be asked to help with the cleaning and chores.  She said that the sexual abuse continued in Surrey at the Jean home.  The appellant would lie with her on the couch to watch television and Mr. Jean would rub his penis against her behind.  At other times, Mr. Jean would have her lick his penis and put it in her mouth. [13] Ms. B said that she occasionally stayed overnight at the Jeans and when she did so, she slept in Mr. and Mrs. Jean’s bed between them.  While in bed, Mr. Jean would slip his hand under her nightclothes and rub her chest and vagina.  The appellant would have her touch his penis before he rolled over and went to sleep.  Ms. B said that she thought Mrs. Jean was asleep when this happened. [14] Ms. B testified that she did not tell either of her siblings about what Mr. Jean did to her.  She said that sometimes she would wake up frightened in the middle of the night.  When that happened, she would awaken her sister and tell her that she could not breathe.  Her sister would put her head out the window, tell her to breathe deeply, and hold her until she could breathe again. [15] The complainant testified that the incidents ended after she told her foster father about Mr. Jean’s assaults and threats during a car ride to Vancouver.  Ms. B’s foster father told her that no one would separate her from her siblings, drove back home, and confronted the appellant with what Ms. B had told him. [16] Ms. B said that not long after this confrontation, she moved with the foster family to Quesnel.  Matters became difficult between her and her foster mother, who often struck her and her siblings.  When Ms. B was 12 years of age, she ran away with her sister, and they both started living with a different foster family. [17] Ms. B testified that one time after she had moved out, she went to her former foster home for an Easter egg hunt and dinner at the request of her brother, who still lived with the foster family.  The appellant and his family attended the dinner as well, which upset Ms. B.  She decided to leave.  Her former foster mother said that Mr. Jean would drive her back to her new home. [18] Ms. B continued her testimony: And I said, “No, that’s okay, I’ll walk.”  And where they lived from town where I lived, it was like probably a two-hour walk, and it was already dark and it was like the country, so it was -- there was lots of woods.  So she wouldn’t let me walk and I agreed to have them let Remi drive me home.  And on the way home he was trying to put his hands on my legs and pulling me in to hug him, and I kept swearing at him and telling him to leave me alone.  And then when we got down to Marlene’s house where I was staying, he said that he’d give me a hundred dollars because that’s how much he gave my sister to sleep with him .  [Emphasis added.] [19] This was the only mention of this last incident in the Crown’s case.  Defence counsel left it alone in cross-examination. [20] Ms. B’s sister testified.  She confirmed that Mr. Jean and his family had lived at the foster home for less than a year.  She described herself as being like Ms. B’s mother.  She recounted how Ms. B would come to her during the night complaining that she could not breathe.  Ms. B’s sister said that she would put her head out the window and tell her to breathe.  She would hold and support Ms. B. [21] Ms. B’s sister said that Mr. Jean called her sister names and would often ask her to sit on his lap and give him a kiss.  She said that she knew that Mr. Jean made her sister uncomfortable and that she would cry, but back then she knew nothing of the sexual abuse.  Ms. B’s sister said that she liked Mr. Jean’s wife very much and could not understand back then why her sister did not want to visit the Jean family home in Surrey. [22] Ms. B’s sister recalled an incident when her foster father was angry with Mr. Jean.  She said that her foster mother was also very angry and called the two girls “homewreckers”.  She did not know the reason for this outburst. [23] Ms. B’s sister was not questioned in direct or cross-examination about whether Mr. Jean had paid her for sex or otherwise directed any inappropriate behaviour toward her. The Case for the Defence [24] Mr. Jean’s wife testified on behalf of her husband.  She said that Ms. B never visited their Surrey home alone.  She did not recall Ms. B staying overnight and, if she had, she would not have slept in the same bed as Mrs. Jean and her husband.  Mrs. Jean said that she and her husband lived with her parents in Vancouver when they were first married, but not afterward.  Mrs. Jean had undergone recent surgery at the time of trial.  After being unable to recall the layout of her parents’ home, or when her mother had died, Mrs. Jean agreed with Crown counsel that she did not have a good memory.  She said, “Right now I’m just ‒ um, confused, sir, ‘cause I’m not well.  My memory’s not very good right at this moment”. [25] Mr. Jean testified.  He too had difficulties with his memory which he attributed to heart attacks and medication.  He denied any inappropriate behaviour with Ms. B.  He said that he had no memories of the complainant beyond the fact that she was a foster child of his in-laws. [26] Mr. Jean was asked by defence counsel (not counsel on this appeal) about each of the incidents to which Ms. B had testified.  He specifically denied each kind of abuse to which the complainant testified.  Elaborating, he said that Ms. B only visited his home with her foster parents and never stayed overnight.  He also said that the incidents alleged to have occurred in his bed beside his sleeping wife could not have happened because his wife was a light sleeper. [27] When counsel for the defence reached the last incident, these questions and answers took place: Q [Defence counsel]   Now, she said lastly sir, that there was a time when -- after the family moved to Quesnel, when she was -- had run away from home, I believe she said, with her -- with her sister, or at least was not living in the [original foster home] in Quesnel and was there at Easter for an Easter egg hunt and for dinner, and you -- you and [your wife] were there -- A [Mr. Jean]     Yes. Q         -- do you recall that?  Do your recall her being there? A          Yes. Q         You remember that? A          Vaguely, but yes. Q         All right.  And that you gave her a ride home -- A          Yes. Q         -- or back to where she was living, at least? A          Yes. Q         And that you -- just be sure of this.  Give me a moment. You tried to put your hands on her and she was swearing at you, and that you said to her that you would give her $100 to sleep with her; that’s how much you gave her sister. A          Um, I never touched her.  I did offer her $100, and I never offered her sister anything. [28] On cross-examination, Mr. Jean was asked about each of the incidents (with the exception of the last).  He agreed that he had a bad memory and could not say whether or not each incident happened.  This exchange occurred between the prosecutor and Mr. Jean: Q         ... Do you actually have any memory of her sitting on your lap at all? A          Not really. Q         “Not really,” actually means “no,” doesn’t it, Mr. Jean? A          Well, it’s not in my mem -- not in my knowledge. Q         Okay.  Let’s start with -- let’s try -- I’m not trying to be difficult here, but I don’t want to -- I want to be clear and -- and I want to really understand what you’re saying, and the jury really has to understand what you’re saying, okay. When you say “not to your knowledge,” does that mean you have no memory of her ever being on your lap? A          That’s right. Q         So you have -- you couldn’t say whether it happened, and you can’t say whether it didn’t happen? A          That’s true. Q         And, Mr. Jean, you can’t say whether you touched her on her vagina or you didn’t touch her, because you don’t know -- A          That’s right. ... Q         Mr. Jean, the -- there was the -- what we might call the bathtub incident -- you know, where [Ms. B] talked about waking up and being in the bathtub and having her head scrubbed and you helping her clean up.  That whole description that she gave of something going on there, you don’t know whether that happened or not, is that fair? A          Well, truthfully, no. Q         And she talked about some times when you made her lick your penis; you put your penis in her mouth.  You don’t know whether that happened or not either, do you -- A          No, I don’t. Q         And the visits at your house after you moved out from [your in-laws’] place, there was a comment -- there was an accusation and she -- [Ms. B] told us about lying on the couch and about you rubbing your penis on her behind.  You can’t say whether that happened or not, can you? A          No. Q         And she also makes some -- she told us about some things that she said happened when she slept in the bed between you and your wife.  You can’t say whether that happened or not, can you? A          I know she wouldn’t be sleeping in the bed with me and my wife. Q         Why is that? A          Because she wakes up so easy. Q         “She” your wife, “wakes up so easy.” A          She wakes up really easy. Q         Okay.  Has she always? A          Yes.  As far as I know Q         Oh.  Because we’ve got a memory problem there, right, so if you -- A          Well, as far as I can remember. Q         Okay. A          You know, I’m going by [the] last 10 years or so, that I can vaguely remember that she just -- if I turn over, she’s awake, and ... Q         Okay.  Just one moment, please. Okay -- sorry.  Mr. Jean, when you were -- when Mr. Crampton was asking you questions a few minutes ago and you were telling him, “No, that didn’t happen,” you weren’t really sure when you were giving those answers -- A          No, I wasn’t sure.  Defensive answers. Q         Okay.  Can you think of any other defensive answers you’ve given today? A          No. [29] Ms. B’s foster father testified by video conference.  He was 84 years of age at the time of trial.  He denied that the Jeans lived with his family after they were married.  He said that his daughter and her husband would visit the home about once a week when they lived in Surrey.  He denied being told by Ms. B that Mr. Jean had assaulted her and confronting Mr. Jean with such an allegation.  The foster father testified that he had a serious diabetic problem which affected his memory, but that he felt fine during his testimony. The Judge’s Instructions to the Jury regarding “the $100 incident” [30] No objection was made by the appellant’s trial counsel when Ms. B testified that “[Mr. Jean] said that he’d give me a hundred dollars because that’s how much he gave my sister to sleep with him”.  Trial counsel referred to this as “the $100 incident”. [31] Shortly after counsel for Mr. Jean began his cross-examination of Ms. B, the court adjourned for the lunch break.  When the trial resumed after the break, the trial judge spoke to counsel in the absence of the jury.  The trial judge said that he was concerned that the statement about the $100 incident might lead the jury to reason from propensity and advised counsel that he proposed to warn the jury against that.  Both counsel expressed content with this course of action.  As a result, the trial judge said this to the jury: Members of the jury, just one item before we continue.  I’ll refer you to this morning to the evidence where [Ms. B] indicated she was 12 and she says that the accused offered her a hundred dollars to sleep with him, and indicated that that’s what he had paid her sister.  That was allegedly said. I just want to warn you that the fact, if you accept it, that that happened and that the accused might have done something inappropriate with Ms. [B’s] sister should not be taken as evidence that he would more likely do something with Ms. [B].  We call that propensity evidence and it wouldn’t be fair to an accused person if we used evidence like that in another incident to prove the incident before the court. Thank you.  [Emphasis added.] [32] After the jury addresses, in which both counsel had made references to the $100 incident and the judge’s warning about it, counsel made submissions to the trial judge as to what he should include in his jury charge.  By this time, counsel for Mr. Jean was suggesting that the statement about the $100 incident ought to have been the subject of a voir dire to determine its admissibility because it amounted to similar fact evidence.  Defence counsel agreed that the judge’s propensity warning had been appropriate.  That said, defence counsel ventured the opinion that the evidence probably should have been excluded because its prejudicial value outweighed its probative value.  Counsel for the Crown took the position that the statement was an inextricable part of the indecent assault narrative and admissible on that basis. [33] In the end, the trial judge told the jury this: Now let me say something about what we are calling the hundred dollar incident, just to clarify my instruction to you on that. The reference to Mr. Jean offering a hundred dollars to [Ms. B’s] sister, which was also part of [Ms. B’s] evidence, should not be used by you to decide that because of that, because he might have done something with respect to [Ms. B’s] sister, that Mr. Jean is more likely to have done these things to [Ms. B].  But you can of course consider this incident, and the fact that Mr. Jean admits it took place, although he was not totally clear on the purpose of it, in assessing [Ms. B’s] credibility.  You may view it as a bit of corroboration.  In itself, simply offering $100 in those circumstances in itself, although it may be distasteful, is not an indecent assault, but it is a piece of evidence for you to consider. The Grounds of Appeal [34] The appellant’s position was that the trial judge erred: a) in admitting, without a voir dire , the complainant’s testimony about the $100 incident; b) in failing to tell the jury that they could not use the statement as proof that the complainant’s sister had sex with the appellant; c) in failing to advise the jury that they could make no use of the statement that the appellant had sex with the complainant’s sister; and d) in incorrectly charging the jury with respect to corroboration. [35] At the hearing of the appeal, counsel for the appellant also took the position that the evidence of the last assault (the $100 incident) was inadmissible as it occurred beyond the date set out in the indictment. Discussion The Grounds of Appeal Relating to the Charge to the Jury [36] The first step in the analysis must be whether the evidence of the $100 incident was admissible at all. [37] When defence counsel questioned its admissibility prior to the jury charge, Crown counsel took the position that the evidence was admissible because it was part of the res gestae , and “[spoke] to the intention in his mind ... the sexual intention”.  It seems Ms. B’s comment about her sister had surprised Crown counsel.  He said to the trial judge: “I was concerned and tried to be so careful after my witness mentioned about the sister business, and that’s why I stayed very carefully away from that”. [38] It was the “sister business” that concerned the defence.  Defence counsel described it as similar fact evidence or evidence of propensity and expressed doubt that it should have been admitted. [39] Crown counsel on this appeal (who was not counsel at trial) accepts that the statement was not admissible to prove that Mr. Jean offered $100 to Ms. B’s sister for sex.  Nor was Mr. Jean’s interest in Ms. B’s sister, if he was ever interested, a part of the Crown’s theory. [40] The Crown’s position on appeal is that had the issue been aired at trial, the statement would inevitably have been admitted in its entirety.  Ms. Campbell, counsel for the Crown on this appeal, argues, correctly in my view, that Ms. B’s testimony about what Mr. Jean said to her was an integral part of the last instance of indecent assault.  It was powerful evidence of Mr. Jean’s indecent intent in touching the complainant and showed the lengths to which he would go to overcome her resistance.  As Ms. Campbell puts it in her factum: [Ms. B] testified that the abuse escalated and continued for years but she remained silent because of the Appellant’s threats.  He frequently told her that it was their secret, and that if she told anyone then her brother and sister would be taken away.  By the time of the last incident, when [Ms. B] was twelve years old, the family had separated and she was in a different foster home.  When the Appellant drove her home that time and tried to touch her legs and pull her towards him, his prior means of control no longer had any effect because the family had separated.  Rather than allowing the abuse to continue out of fear, [Ms. B] said she told him to leave her alone and swore at him.  The Appellant tried a different approach to gain her compliance – he offered her money and, to make it appear more palatable, he said that her older sister had accepted the same offer previously.  Accordingly, the statement demonstrated the Appellant’s intent at the time of the alleged touching in the vehicle and was an integral part of the incident.  The statement was triggered by [Ms. B’s] resistance and was a means to overcome that resistance. [41] The Crown suggests other bases for admissibility, but it is unnecessary to discuss them here.  It is enough to say, for purposes of this appeal, that the evidence was admissible.  In my view, it was properly admitted at trial.  The probative value was high, and the prejudicial value could be overcome with a proper warning to the jury. [42] The question becomes whether the trial judge erred in his instructions to the jury as to the use they could make of the statement.  To repeat, the trial judge told the jury: [t]he reference to Mr. Jean offering a hundred dollars to [Ms. B’s] sister, which was also part of [Ms. B’s] evidence, should not be used by you to decide that because of that, because he might have done something with respect to [Ms. B’s] sister, that Mr. Jean is more likely to have done these things to [Ms. B]. [43] Mr. Kincaid, counsel for Mr. Jean on this appeal, argues on behalf of the appellant that the trial judge should have warned the jury that they could not use the statement as proof that the complainant’s sister had sex with the appellant, and that they could make no use at all of the statement that the appellant had sex with the complainant’s sister.  I agree with Mr. Kincaid that it would have been better if the trial judge had told the jury that the complainant’s recitation of what the appellant said to her was not evidence that the appellant had, in fact, offered her sister money for sex.  But I also agree with Ms. Campbell that this failure made no impact on the essential instruction which was that the jury must not use the statement to infer that, because Mr. Jean had had sex with the complainant’s sister, he likely had sex with the complainant as well.  Whether sex with the sister was proven or not, it was not probative as to whether he had sex with the complainant.  In my view, the trial judge correctly conveyed to the jury the essential point: that it could not use this evidence for propensity reasoning. [44] The trial judge also instructed the jury that they could use the fact that Mr. Jean had admitted to offering the complainant money in assessing Ms. B’s credibility, as “a bit of corroboration”.  Again, to repeat, the trial judge said: [b]ut you can of course consider this incident, and the fact that Mr. Jean admits it took place, although he was not totally clear on the purpose of it, in assessing [Ms. B’s] credibility.  You may view it as a bit of corroboration.  In itself, simply offering $100 in those circumstances in itself, although it may be distasteful, is not an indecent assault, but it is a piece of evidence for you to consider. [45] The appellant’s counsel argues that this instruction fails to clearly indicate to what part of the statement the trial judge was referring as evidence the jury could use as corroboration.  I disagree.  It is clear from the instruction that the trial judge is referring here to Mr. Jean’s admission that he offered the complainant money when he was driving her home. [46] Next, counsel for the appellant submits that the trial judge should have avoided the use of the term “corroboration” altogether.  However, if he was going to talk about corroboration, he should have referred to evidence that tended to corroborate the appellant’s testimony. [47] I agree with counsel for the appellant that the trial judge should have avoided the use of the word “corroboration”, which has become a term of art.  I agree that, without further instruction, the term can be confusing.  However, in the context of this case, I am of the view that no harm was done by using that term. [48] As counsel for the Crown points out, it was Mr. Jean’s trial counsel who first referred to the concept of corroboration in his address to the jury.  He began by telling the jury that before the law was changed, cases such as this required corroboration, whereas now they do not.  He suggested that, in searching for the truth, the jury might nonetheless look for corroboration when it came to assessing the complainant’s evidence.  Crown counsel followed suit, arguing that if the jury was to look for corroboration, there was much evidence supporting the complainant’s version of events. [49] It was in this context that the trial judge made the impugned remarks.  I cannot say that he was wrong to do so. [50] I am also of the view that no unfairness to the appellant resulted from the trial judge’s omission to instruct the jury on the pieces of evidence that might corroborate Mr. Jean’s version of events.  It is hard to say what they could be.  Mr. Jean’s credibility had been so badly damaged during the course of his testimony that his counsel’s address to the jury focussed on the weaknesses of the evidence of the complainant, rather than the strengths of the appellant’s testimony. [51] I would not accede to the grounds of appeal related to the admissibility of the $100 incident or the trial judge’s instructions to the jury with respect to it. The Dates on the Indictment [52] The indictment alleged a continuing assault from January 1, 1972 to December 31, 1979.  Ms. B testified that the last incident occurred when she was 12 years old.  Her birth date was in May of 1967.  If the incident she spoke of occurred at Easter when Ms. B was 12, then the incident occurred in 1980, shortly before the complainant’s 13 th birthday. [53] Counsel for the defence submitted that, as the incident occurred outside the dates of the indictment, it should not have been admitted at trial as part of the continuing assault.  However, the date of the last incident was not raised as an issue by the defence at trial.  It was first raised in this Court.  Time was not an essential element of the offence, nor was the appellant prejudiced by this mistake.  This ground of appeal should be dismissed.  (See R. v. S.D ., 2011 SCC 14, [2011] 1 S.C.R. 527.) Conclusion [54] Although every accused is entitled to a fair trial, no trial is perfect.  Examining Mr. Jean’s trial as a whole, I conclude that it was fair. [55] I would not accede to any of Mr. Jean’s grounds of appeal.  In the result, I would dismiss the appeal. “The Honourable Madam Justice Ryan’ I Agree: “The Honourable Mr. Justice Chiasson” I Agree: “The Honourable Madam Justice D. Smith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Preymann v. Ayus Technology Corporation, 2012 BCCA 30 Date: 20120123 Docket: CA039214 Between: Hans-Christian Preymann Appellant (Plaintiff) And Ayus Technology Corporation Respondent (Defendant) Before: The Honourable Madam Justice Ryan The Honourable Mr. Justice Donald The Honourable Madam Justice Garson On appeal from:  Supreme Court of British Columbia, July 11, 2011 ( Preymann v. Ayus Technology Corporation , Vancouver Docket No. S110770) Counsel for the Appellant: J.D. Shields Counsel for the Respondent: T.S. Kent Place and Date of Hearing: Vancouver, British Columbia November 30, 2011 Place and Date of Judgment: Vancouver, British Columbia January 23, 2012 Written Reasons by: The Honourable Madam Justice Garson Concurred in by: The Honourable Madam Justice Ryan The Honourable Mr. Justice Donald Introduction [1] Mr. Preymann, the plaintiff in this proceeding, appeals a judgment of Mr. Justice Leask which stayed this action on the ground that, although the British Columbia Supreme Court has territorial competence over the proceeding, jurisdiction should be declined in favour of the courts of Austria.  In so ordering, the chambers judge relied on the fact that the contract between the parties contained a forum selection clause in which the parties chose Austria as the forum in which to resolve any disputes arising from the agreement between them. [2] The appellant says the forum selection clause contained in the agreement is ambiguous and ought not to be enforced.  He also contends that, because the Court Jurisdiction and Proceedings Transfer Act , S.B.C. 2003, c. 27 [the CJPTA or the Act ], governs questions of territorial competence and is silent on the effect of a forum selection clause, the forum selection clause ought not to be a factor in a court’s consideration of territorial competence. [3] The respondent contends that the chambers judge did not err in his reliance on the forum selection clause. Reasons for Judgment [4] The chambers judge found that the British Columbia Supreme Court did have territorial competence over the proceeding.  However he determined that he should nevertheless decline jurisdiction on account of the forum selection clause and stayed the action.  He relied on this Court’s judgment in Viroforce Systems Inc. v. R&D Capital Inc., 2011 BCCA 260, 336 D.L.R. (4th) 570.  The chambers judge’s reasons for declining jurisdiction are set out at paras. 3 – 6 of his reasons: [3]        The plaintiff's position is that the facts support jurisdiction in British Columbia:  first, the defendant is a British Columbia company; second, the defendant has its registered and records office in British Columbia; third, the plaintiff is a shareholder of the defendant company and has rights pursuant to the B.C. Business Corporations Act .  The plaintiff has British Columbia counsel.  The defendant has British Columbia counsel.  The business office of the defendant is in British Columbia.  The president of the defendant is located in Vernon, British Columbia, and he signed two of the documents in issue.  Execution would be in British Columbia. [4]        I think the plaintiff's position is summed up in these two sentences: This is a simple debt collection matter.  The plaintiff is entitled to get paid back the funds he lent to the defendant here in British Columbia. [5]        The Court heard argument on the jurisdiction of the B.C. courts and forum non conveniens on May 13 of this year and reserved and requested further written submissions from the parties, which both provided.  Following the written submissions being received by the Court, a decision was made by the B.C. Court of Appeal - Viroforce Systems Inc. v. R&D Capital Inc. , 2011 BCCA 260.  In that decision, Mr. Justice Tysoe, speaking for the Court, said this at paragraph 14: In my opinion, the Act does not alter the general approach to be taken when the parties agree to a forum selection clause. If it is determined or assumed that the British Columbia court has territorial competence, the issue is whether the court should decline jurisdiction, either because the forum selection clause ought to be enforced or a consideration of the factors contained in s. 11 of the Act leads to the conclusion that a court in another jurisdiction is a more appropriate forum. The existence of a forum selection clause can, by itself, be sufficient reason for a court to decline jurisdiction, and it is not simply one of the factors to consider in making a determination under s. 11. It will not be necessary in all cases to first determine whether there is territorial competence because it may be clear that the forum selection clause will govern the outcome of the matter. The conclusion of the Court is at paragraph 18: The chambers judge was correct in her conclusion that the action should be stayed because even if the Supreme Court of British Columbia has territorial competence, it should decline to exercise the jurisdiction because the forum selection clause ought to be enforced. [6]        It is my view that despite the careful submissions of counsel for the plaintiff, who has politely suggested that the Court of Appeal is wrong and also pointed out that it is possible for its decision to be distinguished, I am of the view that on the facts of this case, I am bound by the decision of the Court of Appeal and, for that reason, I echo the decision of the chambers judge in Viroforce and I order that the action brought by the plaintiff should be stayed. Relevant Provisions of the CJPTA [5] The pertinent sections of the CJPTA are ss. 2, 3, and 11: Application of this Part 2 (1) In this Part, “court” means a court of British Columbia. (2) The territorial competence of a court is to be determined solely by reference to this Part. Proceedings against a person 3 A court has territorial competence in a proceeding that is brought against a person only if (a) that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim, (b) during the course of the proceeding that person submits to the court's jurisdiction, (c) there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding, (d) that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or (e) there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based. Discretion as to the exercise of territorial competence 11 (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding. (2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including (a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum, (b) the law to be applied to issues in the proceeding, (c) the desirability of avoiding multiplicity of legal proceedings, (d) the desirability of avoiding conflicting decisions in different courts, (e) the enforcement of an eventual judgment, and (f) the fair and efficient working of the Canadian legal system as a whole. Facts [6] The appellant, Hans-Christian Preymann, is a resident of Salzburg, Austria. [7] Joseph Reschreiter, the president of the respondent, resides in Vernon, British Columbia, but regularly visits Austria. [8] The respondent, Ayus Technology Corporation is, according to the pleadings, a British Columbia company with a registered office in Kelowna, British Columbia. [9] It is pleaded that the parties entered into an agreement dated May 26, 2008, in which the appellant agreed to lend the respondent one million Euros (the “Agreement”). The Agreement was amended on May 26, 2010 (the “Amended Agreement”).  The agreements between the parties are in German and in the first instance were translated (presumably in anticipation of this proceeding) by the respondent. [10] The Agreement contains what is both here and commonly referred to as a forum selection clause, as follows: Any disputes between AYUS and/or one of its shareholders as one party and the investors or an investor as the other party shall be subject to the laws of the Republic of Austria.  Venue is the factually competent court of the City of Salzburg. [11] An Amended Agreement altered the terms of the loan and contained the following different forum selection clause: The contractual parties agree that any disputes arising from this agreement shall be subject to the exclusive jurisdiction of the factually competent court in the City of Salzburg, Austria. This agreement is governed solely by the laws of the Republic of Austria excluding UN Commercial Law. [12] The appellant says the word “exclusive” in the first sentence of the translated version of the agreement is not found in the original text of the Amended Agreement.  Owing to its concern about the accuracy of the translation, the appellant obtained and tendered into evidence two additional translations of the forum selection clause.  The first translation provides as follows: For possible disputes resulting from this agreement, the contractual parties agree that the City of Salzburg, Austria shall be the competent jurisdiction.  This agreement is subject exclusively to Austrian law with the exception of the United Nations Convention on Contracts for the International Sale of Goods. [13] The second translation, which the respondent says should not be accepted as accurate, provides: The parties to this contract agree that any disputes arising from it shall be subject to the jurisdiction of the factually competent court in the City of Salzburg, Austria.  This agreement is governed exclusively by the laws of the Republic of Austria, excluding UN Commercial Law. [14] The chambers judge did not make any finding of fact as to which of these is a correct translation. [15] It is alleged that the respondent defaulted on the loan after August 1, 2010. [16] The appellant commenced proceedings in British Columbia on February 7, 2011. Positions of the Parties [17] The respondent concedes that the British Columbia Supreme Court has territorial competence over this proceeding. [18] The appellant argues that forum selection clauses are not relevant to territorial competence because the CJPTA , a complete code on questions of jurisdiction, is silent as to forum selection clauses.  He argues that the CJPTA requires a court to first determine whether territorial competence is established pursuant to ss. 3, 7 and 10 and then to conduct a s. 11 analysis, considering all of the mandatory factors listed therein in order to determine whether the court should decline to exercise its territorial competence.  He argues that s. 11’s list of mandatory considerations does not mention forum selection clauses and that the Act does not elsewhere provide that forum selection clauses, selecting a jurisdiction other than British Columbia, preclude or weigh against the exercise of territorial competence by British Columbia courts.  The appellant concludes that, as a result, such clauses should not be considered.  He also notes that, as per s. 2(2) of the CJPTA , Part 2 solely determines questions of the territorial competence of British Columbia courts. [19] In support of his submission that forum selection clauses selecting jurisdictions other than British Columbia are not relevant to the question of territorial competence, the appellant submits that this Court’s decision in Viroforce is wrongly decided as it contradicts authority from the Supreme Court of Canada: Teck Cominco Metals Ltd. v. Lloyd’s Underwriters , 2009 SCC 11, [2009] 1 S.C.R. 321.  He argues that Teck was not considered or referred to in Viroforce , or alternatively, he argues that Viroforce can be distinguished. [20] The thrust of the appellant’s second argument appears to be that, upon consideration of the factors enumerated in s. 11(2) of the CJPTA , the chambers judge should have found that a stay was not merited.  He also makes the related argument that, in this case, consideration of the factors listed in s.11(2) shows that there is “strong cause” which justifies declining to enforce a forum selection clause (see Z.I. Pompey Industrie v. ECU-Line N.V. , 2003 SCC 27, [2003] 1 S.C.R. 450 at paras. 25 – 27). [21] Finally, he argues that, in any event, the amended forum selection clause in question does not contain the exclusive language that is necessary to render it enforceable.  He relies on this Court’s decision in Old North State Brewing Company v. Newlands (1998), 58 B.C.L.R. (3d) 144, which states at para. 35 that “[a]n ambiguous choice of jurisdiction clause will not be construed to grant exclusive jurisdiction.” [22] The respondent counters that whatever translation of the forum selection clause is used, the clause speaks in mandatory language, if not the language of exclusivity, and should be enforced.  It says that it does not matter that the chambers judge did not make a specific finding of fact as to which translation was correct as the parties clearly intended to resolve disputes in Austria according to Austrian law. [23] The respondent submits that Viroforce is not inconsistent with the CJPTA because the CJPTA does not preclude application of the common law pertaining to forum selection clauses.  The respondent submits that Teck held that the Act is a codification of the common law test for forum non conveniens .  It submits that this does not preclude a court from considering other relevant issues that may arise in the course of identifying the appropriate forum for a proceeding, such as when to enforce forum selection clauses. Analysis [24] On the facts of this case, there is no question that British Columbia has territorial competence over the proceeding. [25] I agree with the respondent that, whichever version of the forum selection clause is considered, the language is clear that the parties intended Austrian law to govern and that, in the event of a dispute, Austrian courts would have jurisdiction over the dispute. [26] As already noted, the chambers judge considered this Court’s judgment in Viroforce to be determinative of the question before him.  The appellant argues that this Court is not bound by, and ought not to follow Viroforce . [27] Below I refer to two recent Saskatchewan Court of Appeal judgments that cite Viroforce with approval.  It follows that the appellant argues that we ought not to follow the Saskatchewan decisions either. [28] I would not, for the reasons explained below, grant the appeal. [29] Before turning specifically to Viroforce and the Saskatchewan cases, I will review Teck . Teck is pertinent to the question of the correct interpretation of s. 11 of the CJPTA and was not cited in Viroforce .  At paras. 21 – 22 of Teck , the Chief Justice speaking for a unanimous court held that s. 11 was a complete codification of the common law test for forum non conveniens .  She held: [21]      The first argument is that s. 11 of the CJPTA does not apply where a foreign court has asserted jurisdiction.  I cannot agree.  The CJPTA creates a comprehensive regime that applies to all cases where a stay of proceedings is sought on the ground that the action should be pursued in a different jurisdiction ( forum non conveniens ).  It requires that in every case, including cases where a foreign judge has asserted jurisdiction in parallel proceedings, all the relevant factors listed in s. 11 be considered in order to determine if a stay of proceedings is warranted.  This includes the desirability of avoiding multiplicity of legal proceedings.  But the prior assertion of jurisdiction by a foreign court does not oust the s. 11 inquiry. [22] Section 11 of the CJPTA was intended to codify the forum non conveniens test, not to supplement it. The CJPTA is the product of the Uniform Law Conference of Canada.  In its introductory comments, the Conference identified the main purposes of the proposed Act, which included bringing “Canadian jurisdictional rules into line with the principles laid down by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye , [1990] 3 S.C.R. 1077, and Amchem Products Inc. v. British Columbia (Workers’ Compensation Board) , [1993] 1 S.C.R. 897” ( Uniform Law Conference of Canada — Commercial Law Strategy (loose-leaf), at p. 3).  Further, the drafters of the model Act confirmed that s. 11 of the CJPTA was intended to codify the common law forum non conveniens principles in “comments to section 11”: 11.1 Section 11 is meant to codify the doctrine of forum non conveniens, which was most recently confirmed by the Supreme Court of Canada in Amchem Products Inc. v. British Columbia (1993).  The language of subsection 11(1) is taken from Amchem and the earlier cases on which it was based.  The factors listed in subsection 11(2) as relevant to the court’s discretion are all factors that have been expressly or implicitly considered by courts in the past. [p. 11] Section 11 of the CJPTA thus constitutes a complete codification of the common law test for forum non conveniens .  It admits of no exceptions. [Emphasis added.] [30] I now turn to Viroforce .  The appellant argues that Viroforce , at paras. 13 – 14, conflicts with Teck .  Tysoe J.A. explained how a forum selection clause fits into the jurisdictional analysis: [13]      The decision in Momentus.ca Corp. v. Canadian American Assn. of Professional Baseball Ltd. , 2010 ONCA 722 at paras. 35 to 39, 325 D.L.R. (4th) 685, leave to appeal granted [2010] S.C.C.A. No. 473, contains a useful discussion of the manner in which forum selection clauses fit into the jurisdictional analysis. It is first determined whether the court in question has or can assume jurisdiction. If so, the question becomes whether the court should take jurisdiction. In this regard, the court will decline jurisdiction for one of two reasons - the enforcement of a forum selection clause or a determination of forum non conveniens . [14]      In my opinion, the Act does not alter the general approach to be taken when the parties agree to a forum selection clause. If it is determined or assumed that the British Columbia court has territorial competence, the issue is whether the court should decline jurisdiction, either because the forum selection clause ought to be enforced or a consideration of the factors contained in s. 11 of the Act leads to the conclusion that a court in another jurisdiction is a more appropriate forum. The existence of a forum selection clause can, by itself, be sufficient reason for a court to decline jurisdiction, and it is not simply one of the factors to consider in making a determination under s. 11. It will not be necessary in all cases to first determine whether there is territorial competence because it may be clear that the forum selection clause will govern the outcome of the matter. [31] Two decisions of the Saskatchewan Court of Appeal were released on November 15, 2011: Microcell Communications Inc. v. Frey , 2011 SKCA 136, and Hudye Farms Inc. v. Canadian Wheat Board , 2011 SKCA 137.  Speaking for unanimous divisions of the court in both cases, Jackson J.A. held that, “[t]he validity and effect of a forum selection clause arise as part of the determination of whether the territory should decline territorial competence and not as part of the determination of whether the territory has competence at all” ( Hudye at para. 8).  Further, she held that the presence of a forum selection clause is a weighty factor speaking in favour of declining to exercise territorial competence unless the plaintiff can establish strong cause for refusing to enforce such a clause.  ( Hudye at paras. 8 – 11 and Microcell at paras. 106 – 115). [32] In both judgments, Jackson J.A. indicated her agreement with this Court’s decision in Viroforce and rejected the notion that, because the CJPTA is silent on the question of the effect of a forum selection clause selecting a jurisdiction other than British Columbia, such a clause ought not be considered in a court’s decision as to whether to decline to exercise territorial competence (see: Hudye at paras. 8 – 11 and Microcell at paras. 106 – 115).  She held that forum selection clauses are relevant to that inquiry.  (I note that she was considering s. 10 of Saskatchewan’s Court Jurisdiction and Proceedings Transfer Act , S.S. 1997, c. C-41.1, which corresponds to s. 11 of British Columbia’s CJPTA .) [33] At paras. 112 – 114 of Microcell , Jackson J.A. explained how, in her view, consideration of a forum selection clause fits within the forum conveniens analysis: [112]    The effect of a forum selection clause arises as part of the determination as to whether the territory should decline territorial competence. Declining territorial competence occurs according to the framework of s. 10 of the CJPTA , which I repeat here for ease of reference: 10(1)  After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to try the proceeding. (2)  A court, in deciding the question of whether it or a court outside Saskatchewan is the more appropriate forum in which to try a proceeding, shall consider the circumstances relevant to the proceeding, including: (a)        the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (b)        the law to be applied to issues in the proceeding; (c)        the desirability of avoiding multiplicity of legal proceedings; (d)        the desirability of avoiding conflicting decisions in different courts; (e)        the enforcement of an eventual judgment; and (f)         the fair and efficient working of the Canadian legal system as a whole. Not found among this list is reference to a forum selection clause, which raises the question whether the presence of a forum selection clause is but one general factor among many to be considered as part of clause 10(2)(f). This question, as well, has been answered by the Court in Viroforce : [14]      ... If it is determined or assumed that the British Columbia court has territorial competence, the issue is whether the court should decline jurisdiction, either because the forum selection clause ought to be enforced or a consideration of the factors contained in s. 11 [Saskatchewan's s. 10] of the Act leads to the conclusion that a court in another jurisdiction is a more appropriate forum. The existence of a forum selection clause can, by itself, be sufficient reason for a court to decline jurisdiction, and it is not simply one of the factors to consider in making a determination under s. 11. It will not be necessary in all cases to first determine whether there is territorial competence because it may be clear that the forum selection clause will govern the outcome of the matter. [Emphasis added by Jackson J.A.] The Court of Appeal noted Hudye Farms Inc. v. Canada Wheat Board , 2011 SKQB 29, [2011] 5 W.W.R. 506 as one example of this approach and Hans v. Volvo Trucks North America Inc ., 2010 BCSC 1700 as another. In both of these lower court decisions, the Courts followed the approach of determining whether territorial competence should be declined under s. 10 of the CJPTA by applying Pompey . This Court affirmed Hudye in a judgment being released today (see: 2011 SKCA 137). [113] While there is no specific reference to a forum selection clause in s. 10 of the CJPTA , the effect of a valid forum selection clause must be considered in the context of a consideration of the "fair and efficient working of the Canadian legal system as a whole" (see s. 10(2)(f)). For all the reasons that were articulated in Pompey , great weight should be given to the parties' contractual choice of the appropriate forum. The way to give sufficient recognition to the forum selection clause is to place the burden on the person who asserts that the contract should be ignored and further, to give predominance to the “strong cause” test, as defined in Pompey . [114]    I agree with Tysoe J.A. that there is no reason to interpret the CJPTA on the question of the effectiveness of a forum selection clause any differently than the common law as represented by Pompey . Notwithstanding the enactment of the CJPTA , in the face of a valid, enforceable forum selection clause, the traditional burden of proof, which is normally on the defendant to convince the Court that competence should be declined, is on the plaintiff to demonstrate why the forum selection clause should not be enforced. If it is determined that the Court should not give effect to the forum selection clause, it is possible to go on to consider whether territorial competence should be declined on some other basis. While it is difficult to conceive of a fact situation where that would be so, it is nonetheless theoretically possible (see: Viroforce at para. 14). [34] And at para. 12 of Hudye , Jackson J.A. summarized the analytical steps a court should undertake in determining if it ought to enforce a forum selection clause: When a defendant applies pursuant to the CJPTA for an order that the Court decline competence over an action, the framework for analysis takes this general form: 1.         Does the Province have territorial competence over the matter? If no, the action cannot continue. It may be appropriate in a given case to bypass this issue and proceed to the next step. 2.         If the Province has territorial competence or assuming territorial competence, has the defendant/applicant established that the forum selection clause is valid, clear and enforceable and that it applies to a cause of action before the Court? If no, the application fails. 3.         If the forum selection clause is valid, clear and enforceable, and it applies to a cause of action before the Court, has the plaintiff/respondent shown strong cause why the Court should not give effect to the forum selection clause? 4.         If the plaintiff/respondent has not shown strong cause why the Court should not give effect to the forum selection clause, the Court should consider, according to the application before it, whether it is appropriate to transfer the proceeding to some other territory pursuant to Part III of the CJPTA . If the answer to the third question is yes, it remains at least theoretically possible that the defendant may be able to demonstrate some other basis for the Court to decline competence pursuant to s. 10 (see: Viroforce at para. 14). [35] I note that in Microcell at para. 89, Jackson J.A. notes that the Supreme Court of Canada in Teck describes s. 10 (s. 11 in British Columbia) as providing a complete code of relevant considerations in a forum non conveniens analysis.  It is therefore clear that she was aware of both decisions: Teck and Viroforce .  She did not find that the cases conflict. [36] The Saskatchewan cases and Viroforce are united on the point that the CJPTA does not oust consideration of common law principles pertaining to forum selection clauses. [37] Pompey was relied on by Tysoe J.A. in Viroforce and by Jackson J.A. in the Saskatchewan decisions.  It is important to note that the Court held in Pompey at paras. 20 – 21, that applications considering forum conveniens and forum selection clauses should be separate inquiries; therefore, the Court’s statements in Teck pertaining to forum conveniens do not mean that the CJPTA obviates common law principles pertaining to forum selection clauses.  In other words, based on Pompey , it could be argued that while s. 11 codifies the common law pertaining to forum conveniens , it did not similarly codify the forum selection clause analysis. [38] In Pompey , the Court held that: [21]  There is a similarity between the factors which are to be taken into account when considering an application for a stay based on a forum selection clause and those factors which are weighed by a court considering whether to stay proceedings in “ordinary” cases applying the forum non conveniens doctrine...In the latter inquiry, the burden is normally on the defendant to show why a stay should be granted, but the presence of a forum selection clause in the former is, in my view, sufficiently important to warrant a different test , one where the starting point is that parties should be held to their bargain, and where the plaintiff has the burden of showing why a stay should not be granted. I am not convinced that a unified approach to forum non conveniens , where a choice of jurisdiction clause constitutes but one factor to be considered, is preferable .  As Peel , supra , notes, at p. 190, I fear that such an approach would not ensure that full weight is given to the jurisdiction clause since not only should the clause itself be taken into account, but also the effect which it has on the factors which are relevant to the determination of the natural forum.  Factors which may otherwise be decisive may be less so if one takes into account that the parties agreed in advance to a hearing in a particular forum and must be deemed to have done so fully aware of the consequences which that might have on, for example, the transportation of witnesses and evidence, or compliance with foreign procedure etc. In my view, a separate approach to applications for a stay of proceedings involving forum selection clauses in bills of lading ensures that these considerations are properly taken into account and that the parties’ agreement is given effect in all but exceptional circumstances. See also M. P. Michell, “Forum Selection Clauses and Fundamental Breach: Z.I. Pompey Industrie v. ECU-Line N.V., The Canmar Fortune ” (2002), 36 Can. Bus. L.J. 453, at pp. 471-72. [Emphasis added.] [39] Tysoe J.A. clearly had this distinction in mind, in holding that the forum selection clause analysis remains a common law inquiry.  If forum non conveniens is exhaustively codified in s. 11 ( Teck ) but forum selection clauses trigger a separate inquiry ( Pompey ), there is no concern that Teck and Viroforce conflict.  The appellant urges us to disregard Viroforce because it was decided without consideration of binding authority ( Teck ).  I do not agree. Viroforce holds that consideration of the enforcement of a forum selection clause is outside the Act , not just one of the s. 11 factors.  This ratio is in conformity with Pompey . [40] In this case, I note that in any event, whether one follows the route taken by Jackson J.A. or the common law analysis followed in Viroforce, the result is the same. [41] Having concluded this analysis of the applicable common law and statutory principles in mind, I return to the facts of this case. [42] First, it is clear that British Columbia has territorial competence over the dispute. [43] The second question is whether the respondent established that the forum selection clause is valid, clear and enforceable and that it applies to the cause of action before the court.  I note that the chambers judge made no explicit finding in this regard, but, as I have already stated, on any of the translations tendered in evidence, the intent and meaning of the clause is clear.  The parties clearly intended that Salzburg, Austria, be the chosen forum.  Indeed, I cannot see how the clauses, however translated, could be interpreted in any other manner. [44] The third question is whether the appellant has shown strong cause as to why the court should not give effect to the forum selection clause.  The chambers judge did not undertake this analysis.  The respondent addresses this issue by noting that in the court below, there was no evidence from the appellant to support the contention that Austria was not the most convenient forum. [45] The pertinent evidence on the question of forum conveniens consisted of the first and second affidavit of Mr. Reschreiter, president of the respondent, and the affidavit of Ms. Gordon, assistant to counsel for the appellant.  Ms. Gordon’s evidence primarily relates to the result of an Internet search of the respondent’s website, stating that its “international head office” is located in Vernon, British Columbia.  The appellant did not adduce any further evidence on the convenient forum question.  By contrast, Mr. Reschreiter tendered a detailed account of the circumstances of the parties’ dealings, most of which, according to him, took place in Austria.  He noted that both parties had Austrian counsel who were actively engaged on the file and that most of the potential witnesses are located in Austria. [46] There is no question on this evidence that the appellant failed to show strong cause as to why the court should not enforce the forum selection clause.  Although the chambers judge did not explicitly consider this evidence, I am persuaded that he could have reached no other conclusion on the evidence. [47] As to the fourth question, neither party applied for an order that the proceedings be transferred to another jurisdiction. Conclusion [48] I would summarize this analysis in the following manner: · In Teck, the Court held that s. 11 of the CJPTA was intended to codify the forum conveniens common law analysis and admits of no exceptions. · Viroforce and the Saskatchewan cases are united on the point that the Act does not oust consideration of common law principles pertaining to forum selection clauses. · At common law, Pompey decided that applications for a stay of proceedings based on forum selection clauses constitute a different inquiry than forum non conveniens applications, and that in the case of the former, strong cause must be shown before the clause will not be enforced.  Both Viroforce and the Saskatchewan cases incorporate the “strong cause” analysis into their decisions, albeit in different capacities. · The Saskatchewan decisions state that consideration of a forum selection clause is part of the s. 10 analysis in Saskatchewan (s. 11 in British Columbia). · As I have concluded Viroforce is not in conflict with Teck, it is binding on us. Viroforce adheres to the common law analysis, as described in Pompey , which operates independently of s. 11 and forum conveniens . · In this case consideration of the forum selection clause on a common law analysis, or as one of the s. 11 factors, leads to the same result. [49] In conclusion, the chambers judge did not err in enforcing the forum selection clause.  If a dispute involves a contract with a forum selection clause, once a court has determined that it has territorial competence, it must consider whether the forum selection clause is clear, unambiguous and enforceable.  If the clause is clear, then the court must determine if the plaintiff has discharged the burden of proving that there is strong cause meriting refusal to give effect to it.  The CJPTA scheme recognizes the importance of facilitating interprovincial and international commerce.  To interpret the legislation in the manner contended for by the appellant, that is, to give no effect to private agreements, would frustrate pursuit of that goal.  I decline to adopt such an interpretation of the Act . Disposition [50] I would dismiss the appeal. “The Honourable Madam Justice Garson’ I agree: “The Honourable Madam Justice Ryan” I agree: “The Honourable Mr. Justice Donald”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. B.S., 2012 BCCA 36 Date: 20120123 Docket: CA039358 Between: Regina Respondent And B.S. ( Youth Criminal Justice Act ) Appellant Before: The Honourable Mr. Justice Lowry The Honourable Madam Justice Neilson The Honourable Mr. Justice Groberman On appeal from: Provincial Court of British Columbia, November 9, 2009 ( R. v. B.S. , Kamloops Registry 8166-2) Oral Reasons for Judgment Counsel for the Appellant: P.M. Fullerton Counsel for the Respondent: W.J.S. Bell Place and Date of Hearing: Vancouver, British Columbia January 23, 2012 Place and Date of Judgment: Vancouver, British Columbia January 23, 2012 [1] LOWRY J.A. : At age 16 the appellant pleaded guilty to four counts of sexual assault. The offences were serious. The Crown sought, and he was sentenced, to two years on a youth custody and supervision order, and three years’ probation under the Youth Criminal Justice Act ( YCJA ), S.C. 2002, c. 1. An order was made under the Sex Offender Information Registration Act , S.C. 2004, c. 10, requiring him to be registered. [2] He seeks an extension of time and applies for leave to appeal and, if leave is granted, appeals the sentence on the ground that it is an illegal sentence. Under s. 42(15) of the YCJA the permissible length of a youth sentence for different offences is three years. Section 490.011 (2) of the Criminal Code , R.S.C. 1985, c. C046, precludes the order made under the Sex Offender Information Registration Act because the appellant was not given an adult sentence. [3] With the Crown’s consent the time for applying for leave to appeal is extended to 9 November 2011. Leave to appeal is granted and the appeal is allowed as follows: a) The period of probation is reduced to one year; b) The order made under the Sex Offender Information Registration Act is set aside. Further, any information in the Kamloops court registry relating to the order made under the Sex Offender Information Registration Act , including the order itself, shall be deleted from the registry files and destroyed forthwith, the appellant’s name and any information relating to him collected pursuant to the order and the provisions of the Act and placed on a national sex offender database and files shall be deleted from the database and filed forthwith, any information relating to the appellant collected pursuant to the order including the order itself in the possession of the RCMP shall be deleted from police files and destroyed forthwith. [4] NEILSON J.A. : I agree. [5] GROBERMAN J.A. : I agree. “The Honourable Mr. Justice Lowry”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Westergard v. Buttress, 2012 BCCA 38 Date: 20120123 Docket: CA038547 Between: Diane Betty Westergard Respondent (Claimant) And Sidney William Buttress Appellant (Respondent) Before: The Honourable Mr. Justice Lowry The Honourable Madam Justice Neilson The Honourable Mr. Justice Groberman On appeal from: Supreme Court of British Columbia, October 7, 2010 ( Westergard v. Buttress , Prince George Registry 0422747) Oral Reasons for Judgment Counsel for the Appellant: C.G. Fletcher Counsel for the Respondent: G.A. Petrisor Place and Date of Hearing: Vancouver, British Columbia January 23, 2012 Place and Date of Judgment: Vancouver, British Columbia January 23, 2012 [1] GROBERMAN J.A. : This is an appeal from a chambers judgment on an application for termination of child support in respect of the parties’ daughter, and for review of spousal support. Factual Background [2] The parties entered into a common-law relationship in 1989, which lasted until they separated in 2004. They had two children together – a daughter born in 1991 and a son born in 1997. [3] Following the birth of the couple’s daughter, Ms. Westergard left the workforce temporarily. She returned to part-time work when the daughter was 1½  years old. Later, when she became pregnant with the couple’s son, she took less demanding employment. After his birth, Ms. Westergard left the workforce completely to care for her children. She did not return to part-time employment until 2003, and commenced full-time employment only shortly before the couple separated in 2004. [4] A one-week trial was held in 2005 to deal with custody and access, child and spousal support, and a claim for unjust enrichment; the judgment is indexed as 2005 BCSC 622. With respect to spousal support, the judge recognized that Ms. Westergard should receive support in order to become self-sufficient. Support was ordered in the amount of $450 per month. With respect to duration, the trial judge said: [74]      Ms. Westergard wishes to be economically self-sufficient. If she pursues her plan successfully she will achieve that goal in three to four year’s time. I will, therefore, order that she receive support payments for four years. On the fourth anniversary of this order the spousal support order shall be reviewed. Upon review, Ms. Westergard will bear the onus of showing that spousal support should continue. The parties may in the meantime make application to vary, suspend, or terminate this order due to a change of circumstance. [5] The terms of the judgment were somewhat modified when they were put into a formal order. The relevant provisions were recorded as follows: 10.       The defendant shall pay to the plaintiff spousal support of $450.00 per month commencing May 1, 2005 and continuing on the first day of every month thereafter until and including April 1, 2009. 11.       The spousal support provisions of this Order may be reviewed after May 1, 2009. For the purposes of the review, the plaintiff shall bear the onus of establishing that spousal support should continue. [6] Thus, the mandatory review was transformed into an optional one, and the “soft” termination date of spousal support transformed into a definite one, subject only to an application for variation or review. [7] A consent order in October 2008 changed the end date for the support order to February 1, 2009. It is common ground that this change was made in order to account for Ms. Westergard’s obligation to pay costs to Mr. Buttress in respect of a court application, and was not intended to reflect any genuine change in the spousal support regime per se. [8] It is common ground that at the time of the trial, Ms. Westergard was attempting to obtain a mortgage broker’s licence, and that it was her expectation that once she secured such a licence, she would be able to become self-sufficient. She did succeed in obtaining a licence, and worked, for a time, as a mortgage broker. Ultimately, however, she was unable to make a go of that profession, and had to search for other work. She is now employed in part-time work as an administrative receptionist in a medical office, making $17,225 per annum. In October 2010, she applied for the review of the 2005 spousal support order contemplated by that order. [9] At the same time, she applied for a change in child support payments. She continued to be entitled to child support in respect to the couple’s son, who was in her custody. The couple’s daughter had been residing with Mr. Buttress until June 2010, when she moved out on her own. She had reached the age of 19 in January, 2010, and had ceased to be a full-time student shortly before her birthday. It was common ground between the parties that the set-off of child support that had existed was no longer appropriate, but the parties disagreed with respect to the date that the set-off should be discontinued. Mr. Buttress contended it should be at the date that she ceased to reside with him, while Ms. Westergard contended it should be the date of the daughter’s 19th birthday. The Chambers Judgment [10] The chambers judge who heard the applications provided a compromise solution in respect of child support, saying: [12]      In the circumstances, I conclude that a most fair outcome requires a midpoint to be taken. The former arrangement, that is whereby the respondent pays $347 per month, will be in effect up to March 31, 2010. As of April 1, 2010 the respondent shall pay $691 per month going forward. [11] With respect to spousal support, the judge noted that “there was a real expectation that the claimant would be able to achieve economic self-sufficiency within three to four years.” He noted, however, that: [24]      The claimant's career as a mortgage broker has not worked out, partly due, I expect, to the general economic malaise. She testifies that she continues to look for full-time career employment, primarily by online checking. She says she has been unsuccessful to date. She observes that most administrative jobs, those to which she aspires, require a business degree, which she does not have. She also says that she has made inquiries about upgrading her qualifications to enhance her employability. [12] With respect to the review provision of the order, he said: [28]      I commence by observing that the claimant's right to claim spousal support from the respondent has not been extinguished, if that somehow might be thought to be the situation. The order of Mr. Justice Rogers did not stipulate that the spousal support obligation ended after four years. Rather, it established a structure for the first 48 months, and left open what might follow. The mechanism provided was the review. [13] The judge appears to have been of the view that he should approach the issue of spousal support afresh, though he acknowledged that he would “take into account the findings and conclusions of Mr. Justice Rogers as to the structural underpinnings of the relationship of these parties.” [14] The judge considered the efforts made by Ms. Westergard to obtain more remunerative employment. He made the following observations: [34]      In terms of the claimant's efforts to achieve self-sufficiency through appropriately remunerative employment, it is regrettable that she has not managed to attain that. Undoubtedly, the current economic doldrums and the somewhat limited scope of her qualifications are factors. That said, while the evidence provides some support for a contention that she has been looking for work, I would think it not unreasonable to expect that her efforts can and should be improved. [35]      The search should be active. It should certainly extend to banking-type jobs, an area where she has previous experience, and it may be that a second part-time job to complement her current part-time situation should be considered. [36]      As well, it may be that, if she feels upgrades to her skill package are required, she should be pursuing that while she is working in her current part-time arrangement. [37]      In short, the claimant is obliged to make reasonable efforts to achieve self-sufficiency. In the present case, that entails bringing a serious determination to the business of finding a job. [15] Crucially, he reached the following conclusion: [38]      As for the claimant’s application, I have concluded that the circumstances at bar warrant the Court making an order for spousal support. Entitlement has been established. [16] The judge then turned to quantum, apparently uninfluenced by the original support order. He made an order for spousal support at the rate of $800 per month. He did not stipulate an end date, saying “That will be informed by events as they develop”. He provided that the support issue “may be reviewed at any time after January 1, 2013”, and said “For the purposes of that review, the claimant has the onus of establishing that spousal support should continue”. Analysis [17] I find no error in the judge’s reasons with respect to the issue of child support. Section 87 of the Family Relations Act , R.S.B.C. 1996, c. 128 provides that “‘child’ includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.” The chambers judge recognized that the daughter required at least a brief transition period after leaving school in order to be capable of obtaining the necessaries of life on her own. In my view, the period of two months that the chambers judge applied was a transition period that was not unreasonable on the evidence in this case. I find no error on the part of the judge in choosing that period. [18] With respect to spousal support, while I agree with the appellant that the evidence provided by Ms. Westergard with respect to her efforts to obtain more remunerative work was not particularly impressive, I do not agree that the evidence was such that the chambers judge was compelled to find that she no longer required spousal support, or that she had reached a stage where she should have been self-sufficient. It was open to the chambers judge to find that, despite her efforts at re-training, Ms. Westergard had not succeeded in attaining self-sufficiency, and continued to be entitled to spousal support. [19] The difficulty that I have with the chambers judge’s reasons is that he seems to have considered his jurisdiction on review to be unlimited, and to include a fresh evaluation of the appropriate quantum of support. [20] In general, review provisions of support orders should be tightly circumscribed, to indicate the precise issue that is being reviewed – Leskun v. Leskun , [2006] 1 S.C.R. 920, 2006 SCC 25. While Leskun arose under the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), it’s dicta concerning review orders have been applied by this court to review orders under the Family Relations Act , as well: Uren v. Reambeault , 2010 BCCA 332. [21] As I read the trial judgment in this matter, and particularly para. 74, the judge did circumscribe the review. His purpose in providing for a review was to allow a determination to be made as to whether Ms. Westergard had realized her goal of achieving self-sufficiency and whether she continued to be entitled to support. To the extent that any review of quantum was contemplated, it could only be a consequence of Ms. Westergard’s partial achievement of self-sufficiency, or her failure to comply with the requirements of s. 96(4) of the Family Relations Act to make reasonable efforts to achieve self-sufficiency. Any change to quantum of support that was not related to efforts to achieve self-sufficiency could only be accomplished through a variation application under s. 96(1) of the Family Relations Act . [22] In the result, I would hold that the chambers judge erred in treating his jurisdiction as including a de novo assessment of the appropriate quantum of support. Having found that Ms. Westergard continued to be entitled to support, he should simply have reinstated support at the rate provided for in the original trial order. This does not, of course, leave Ms. Westergard without a remedy if she considers that there has been a material change in circumstances – she can bring a proper application for variation, if she wishes, under s. 96(1) of the Family Relations Act. [23] The judge’s decision to provide for a further review of the support order is not fully in keeping with the general rule that judges should, where possible, fully and finally determine support obligations, subject only to variation for material changes in circumstances (see Leskun ). This said, his decision to do so was understandable given the limited evidence before him and the continuing uncertainty as to Ms. Westergard’s employment prospects. Given these factors, I would amend the conditions of review to ensure that they are more tightly circumscribed. In my view, the sole issue to be reviewed should be Ms. Westergard’s continued entitlement to spousal support in light of her progress toward self-sufficiency. To this end, she will have the onus of demonstrating continued entitlement to support. She should be prepared to provide detailed evidence to show that she is making reasonable efforts to become self-sufficient. Conclusion [24] In summary, I would vary the order of the chambers judge by changing the monthly spousal support amount back to $450 per month. I would amend the review provision by limiting it to the issue of Ms. Westergard’s continued entitlement to spousal support in light of her progress toward self-sufficiency. In all other respects, I would dismiss the appeal. [25] LOWRY J.A. : I agree. [26] NEILSON J.A. : I agree. [27] LOWRY J.A. : The appeal is allowed to the extent of varying the order of Mr. Justice Williams to reinstate the original order of Mr. Justice Rogers providing for spousal support of $450 a month. The parties will be at liberty to apply for a review of the order for spousal support after 1 January 2013, such review being limited to the issue of Ms. Westergard’s entitlement to continuing support in light of her progress toward self-sufficiency. (discussion with counsel re. costs) [28] LOWRY J.A. : Given the success, there has been overall on both sides, we are not disposed disturb the order for costs in the trial court and we would order that there be no costs in this Court with each party bearing their own. “The Honourable Mr. Justice Groberman” “The Honourable Mr. Justice Lowry”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Ferris, 2013 BCCA 30 Date: 20130125 Docket:  CA039002 Between: Regina Respondent And Daniel Carl Ferris Appellant Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Frankel The Honourable Madam Justice Garson On appeal from:  Provincial Court of British Columbia, February 14, 2011 ( R. v. Ferris , 2011 BCPC 52, Port Coquitlam Information No. 83926-3C) Counsel for the Appellant: B.V. Bagnall Counsel for the Respondent: T.C. Gerhart Place and Date of Hearing: Vancouver, British Columbia September 11, 2012 Further Material Received: November 7 and 21, 2012 Place and Date of Judgment: Vancouver, British Columbia January 25, 2013 Written Reasons by: The Honourable Mr. Justice Frankel Concurred in by: The Honourable Madam Justice Newbury The Honourable Madam Justice Garson Reasons for Judgment of the Honourable Mr. Justice Frankel: Introduction [1] Daniel Carl Ferris was convicted by Judge Dyer of the Provincial Court of British Columbia on charges of production of marihuana and possession of marihuana for the purpose of trafficking.  He appeals those convictions solely on the basis that the trial judge erred in dismissing his application for a stay of proceedings.  In that application Mr. Ferris asserted that his rights had been violated because he was not charged immediately following his arrest but, rather, some 12 months later.  His position was, and remains, that the police and Crown deliberately held back proceeding against him in British Columbia until a charge in New Brunswick had been dealt with, and that by doing so, they deprived him of the opportunity to have the charges here resolved sooner. [2] For the reasons that follow, I would dismiss this appeal. General Background [3] On April 8, 2009, members of the Royal Canadian Mounted Police Coquitlam Drug Section executed a search warrant at a residence in Coquitlam.  Mr. Ferris, who was the only person in the residence, was arrested.  During the search of the residence the police discovered a marihuana grow-operation in excess of 1500 plants, two firearms, and some money suspected to be counterfeit. [4] Shortly after his arrest, Mr. Ferris told the police that a warrant for his arrest had been issued in New Brunswick.  The police determined that the warrant related to an outstanding charge of aggravated assault. [5] On April 9, 2009, Mr. Ferris appeared before a Provincial Court judge and was remanded in custody to await transportation to New Brunswick.  He returned to New Brunswick on April 14, 2009. [6] Constable Mick White, the lead investigator on the drug investigation, began preparing a Report to Crown Counsel on April 8, 2009.  In early June, he received certificates of analysis confirming that the plants in the residence were marihuana. [7] On June 9, 2009, Mr. Ferris was committed to stand trial in New Brunswick following a preliminary inquiry. [8] On July 6, 2009, Constable White requested an analysis of the firearms and on July 29th he submitted the suspected counterfeit money for analysis.  He delivered the firearms to the laboratory on August 6th. [9] Constable White was transferred to another investigative section in early September 2009, but retained responsibility for preparing the Report to Crown Counsel with respect to Mr. Ferris. [10] Also in September 2009, counsel then acting for Mr. Ferris twice wrote to a lawyer at a law firm that acts as an agent for federal prosecutions in the Coquitlam area, expressing his concern with respect to the fact that the police had yet to forward a report to the Crown for the purpose of charge approval.  He stated that he believed the police were delaying submitting a report to await the outcome of the matter in New Brunswick.  He further indicated that if charges were laid in British Columbia, he intended to argue that such pre-charge delay amounts to an abuse of process.  Constable White received copies of those letters. [11] On October 7, 2009, Constable White gave his report to Corporal Raymond Stanford for review, even though he had not received any information with respect to the examination of the firearms and suspected counterfeit money.  On October 18th, that report was forwarded to the federal prosecution agent for charge approval. [12] The police received a firearms report on November 11, 2009.  No report was ever received with respect to the suspected counterfeit money. [13] In November and December of 2009, the federal agent sent the police a number of requests for additional information.  The record is silent as to the nature of those requests or how the police responded to them. [14] In February 2010, Mr. Ferris’s trial before a jury in New Brunswick ended in a mistrial.  Also that month, Mr. Ferris’s Coquitlam file was transferred to another law firm that acts as an agent for federal prosecutions.  On March 17th, a lawyer with that firm had discussions with the police to obtain information about the file.  The record is silent as to the specific nature of those discussions. [15] On March 29, 2010, the federal agent approved two drug-related charges, five firearms-related charges, a charge of theft of electricity, and a charge of possession of counterfeit money.  An information charging Mr. Ferris with those offences was sworn on April 6th and a warrant issued for his arrest. [16] On June 7, 2010, Mr. Ferris was acquitted in New Brunswick.  He was then arrested on the British Columbia warrant.  He was transported here on June 11th.  At a bail hearing on July 22nd, a Provincial Court judge ordered him detained in custody. [17] Mr. Ferris’s case came on for trial on November 22, 2010.  At the outset of the proceedings, Crown counsel directed stays of proceedings with respect to the theft of electricity and counterfeit money charges and Mr. Ferris pleaded not guilty to the remaining seven charges. [18] Counsel for Mr. Ferris then advised the trial judge that Mr. Ferris was seeking a judicial stay for abuse of process.  After hearing extensive submissions from both Mr. Ferris’s counsel and Crown counsel, the trial judge decided that the entirety of the Crown’s case would be called on a voir dire and that during that voir dire the witnesses called by the Crown could be cross-examined with respect to the stay application.  Mr. Ferris was entitled to call evidence on the voir dire in support of his stay application.  During the voir dire an issue arose as to the admissibility of a statement made by Mr. Ferris and the trial judge agreed to determine that issue as well without conducting a separate voir dire . [19] The Crown called several police officers to give evidence directed to proving the charges.  During cross-examination of some of those officers—in particular, Constable White and Corporal Stanford—Mr. Ferris’s counsel sought to elicit evidence in support of the abuse of process application.  In addition, the Crown presented for cross-examination an officer who had been involved in arranging for Mr. Ferris to be brought back from New Brunswick.  Mr. Ferris did not call evidence on the voir dire . [20] On December 21, 2010, the trial judge dismissed the abuse of process application.  His reasons are indexed as 2010 BCPC 365.  On February 14, 2011, the judge convicted Mr. Ferris on the drug-related charges but acquitted him on the firearms-related charges.  Those reasons are indexed as 2011 BCPC 52. [21] Mr. Ferris was sentenced on April 6, 2011.  After determining that 14 months on each charge (concurrent) would be a fit custodial sentence, the trial judge turned to the issue of what credit should be given for pre-sentence custody.  He held that “in the peculiar, unusual and unique circumstances of [the] case” the starting date for that credit should be May 1, 2010 (i.e., approximately six weeks before Mr. Ferris was arrested on the British Columbia warrant).  Calculating pre-sentence custody on a 1.5:1 basis, the judge credited Mr. Ferris with 17 months in custody.  As that credit exceeded 14 months, the trial judge sentenced Mr. Ferris to one day in custody to be followed by probation for one year. Voir Dire Ruling [22] The trial judge began his reasons with an extensive review of the evidence relating to how Mr. Ferris’s file had been dealt with up to and including when he was brought back from New Brunswick.  He referred to evidence given by Constable White that it was the intention of the police to await developments in New Brunswick before deciding what to do with potential charges in British Columbia.  The judge noted, however, that Constable White acknowledged that a decision whether to proceed here was not his to make.  The judge also referred to testimony from Constable White to the effect that Mr. Ferris would have been charged sooner in British Columbia had there been no charge outstanding in New Brunswick and that he could have submitted his report for charge approval sooner than he did, albeit with some information missing. [23] After reviewing the evidence, the trial judge discussed the legal principles applicable to abuse of process both at common law and under the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act , 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.  In the course of that review he referred to the fact that in British Columbia, unlike in some other Canadian jurisdictions, the Crown must approve charges before they can be laid by the police.  He noted that there was no evidence before him to suggest that the charge-approval process followed with respect to Mr. Ferris’s file was other than routine, or that anything done by the police or the Crown had been “unnecessary or unwarranted”.  After stating that he “would have found such evidence helpful”, the judge continued: [110]    Where the conduct of certainly the Crown and I expect the RCMP is called into question as in this case, evidence as to whether alternative courses of action can be and are regularly or ordinarily followed in B.C. courts or in the process leading up to trials could give a yardstick of sorts against which to consider the conduct in issue. [24] The judge then summarized the positions of the parties.  In the course of reviewing the submissions made by Mr. Ferris’s counsel that his client could and should have been charged immediately following his arrest, the trial judge said this: [142]    Constable White said the Report to Crown Counsel in such cases usually takes three to four months.  The evidence on the voir dire suggests this is the first step in B.C. for the laying of charges, namely, the preparation of a comprehensive Report to Crown Counsel.  The next step is having the charges reviewed and approved, as occurred here, by federal Crown counsel engaged by the federal government in drug prosecutions.  The evidence in this case is that this is the ordinary course for a grow op drug prosecution. [143] I find that the procedure the police used in this case at bar relating both to their investigation and seeking charge approval is what they typically do in the ordinary course of their business relating to grow operation prosecutions. They did not follow some special or different procedure.  I think in essence Mr. Bagnall’s argument below in paras. 60 to 63 might be seen as a proposal that Mr. Ferris ought to have been due to his circumstances treated differently by the police and that their investigation should have been done in some extraordinary way. [Emphasis added.] [25] Later, under the heading “Discussion”, the trial judge found that there had been no undue delay in processing Mr. Ferris’s file.  He said, in part: [172]    I find that this Report to Crown Counsel, which I have not seen but which has been described to me in the evidence at the voir dire , was a reasonably detailed and sophisticated piece of work which would have taken some time to author and indeed review.  White said it was created over a number of months and of course had to be done when he was not engaged in performing other police duties. [173] All in all, I do not find that there was any unreasonable delay in the preparation of this Report to Crown Counsel including the wait from early August to early October 2009 when White was awaiting two reports and no doubt performing other police duties on other cases.  Nor do I find the short period of time that Corporal Stanford had this report during the above review process to have been a delay at all and certainly not an unreasonable one.  Two dates were given by White as to when the Report to Crown Counsel first got to Ms. Seto namely on October 18th or 20th, 2009. [174]    I do not find in the circumstances of this case that there was an inordinate delay unreasonably caused by Corporal Stanford in his review or one of unreasonable duration.  I assume review of the Ferris Report to Crown Counsel was not the only task with which this police officer concerned himself within the period of time October 7th to 20th, 2009. [175]    It was suggested by Mr. Bagnall in argument that the police might have been negligent in for example failing to get the exhibits to the appropriate location for analysis (see para. 53 of his written argument).  Implicit in this argument is that there was such delay as to amount to neglect of his duties as an investigator in so doing. [176]    I am not prepared to make this finding of fact in the circumstances of this case nor accede to this argument substantially for the reasons above set out. [Emphasis added.] [26] The judge further found that there was no undue delay attributable to the Crown’s handling of the file.  He noted there was no evidence before him with respect to the content of the communications that took place between the Crown and the police after Mr. Ferris’s file was forwarded for charge-approval consideration:  paras. 181 – 184.  However, he did find that after the information was sworn on April 6, 2010, steps could have been taken to serve that warrant on Mr. Ferris in New Brunswick before June 7th.  The judge opined that the warrant could have been served by May 1st, which would have brought the charges to Mr. Ferris’s attention as of that date:  para. 190. [27] The trial judge rejected Mr. Ferris’s argument that the police and Crown deliberately delayed charging him in British Columbia—what Mr. Ferris referred to as “gating”—and found that his ability to make full answer and defence had not been prejudiced by any delay: [192] I do not find that either the Crown or the police in the period of time from April 8th, 2009 to June 7th, 2010 acted in such a way so as to deliberately delay or create delay so as to prejudice or deprive Mr. Ferris of his rights in any way, including his right to make full answer and defence to the charges before me or to have a fair trial. [193] I do not find in this period either that the Crown or police acted with some ulterior or improper motive. On the contrary, unlike the situation in some cases placed before me, for example, R. v. Joudrey [2010 NSSC 230, 211 C.R.R. (2d) 298], I do not find their actions have prejudiced Mr. Ferris’s ability to make full answer and defence to these charges at trial. There is no evidence offered or argument made for example that as a result of the effluxion of time due to their actions alone, a witness for example has died or gone missing, or that evidence is lost.  In this sense, the fairness of Mr. Ferris’s trial has not been prejudiced in this fashion. [194] I am not of the view that it has been shown on the voir dire that what the police and Crown counsel did either alone or acting in concert was done with a view to “gating” the accused or to purposely evade a responsibility to bring charges laid to his attention in a timely way so that all such known charges could be disposed of in a timely way (see R. v. Parisien [(1971), 3 C.C.C. (2d) 433 (B.C.C.A.)], at p. 437). [Emphasis added.] [28] Lastly, the trial judge held that even if Mr. Ferris had been able to establish an abuse of process, either at common law or by reason of a breach of the Charter , he would not have found a stay to be an appropriate remedy:  paras. 200 – 202. Analysis [29] Mr. Ferris does not contend that either the police or the Crown acted with mala fides towards him or that they deliberately attempted to interfere with his rights.  Rather, he submits that because of the New Brunswick charge, the police and the Crown made a conscious decision to delay processing his file in British Columbia.  He says that he was prejudiced by that delay because it precluded him from dealing with the charges here sooner.  For example, he says that he was deprived of the opportunity to serve his sentence on the British Columbia charges while awaiting trial on the New Brunswick charge. [30] Mr. Ferris points to extracts of the evidence, particularly that of Constable White, which he says support his position.  In response, the Crown points to other extracts.  No useful purpose would be served by setting out that evidence in detail.  Suffice it to say that the evidence can be parsed in ways favourable to each party. [31] My principal difficulty with Mr. Ferris’s argument is that he is asking this Court to review and reassess the evidence and to make findings of fact that the trial judge was not prepared to make.  In particular, he is asking this Court to find facts which he bears the burden of proving on a balance of probabilities. [32] A trial judge’s findings of fact and the inferences drawn from those findings are entitled to considerable deference on appeal.  The standard of review is a high one.  I had occasion to discuss that standard in R. v. Caron , 2011 BCCA 56, 269 C.C.C. (3d) 15: [26]      In both the Charter and non- Charter contexts a trial judge’s findings of fact are entitled to considerable deference on appeal.  As Chief Justice McLachlin and Madam Justice Charron stated in [ R.v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353], in considering whether evidence has been properly admitted under s. 24(2), “the trial judge’s underlying factual findings must be respected, absent palpable and overriding error”:  para. 129.  In discussing this restraint on appellate intervention, Mr. Justice Fish summarized the governing principles in R. v. Clark , 2005 SCC 2, [2005] 1 S.C.R. 6: 9          ... Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable.  The imputed error must, moreover, be plainly identified.  And it must be shown to have affected the result. ... [33] In the case at bar, the trial judge heard from the police officers with respect to how they processed Mr. Ferris’s file and why they did what they did.  However, there was no specific evidence with respect to Crown counsel’s involvement in the charge-approval process.  In particular, there was no evidence concerning the additional information Crown counsel required before approving charges against Mr. Ferris. [34] Also absent is any evidence to support Mr. Ferris’s contention that, in the normal course of how matters of this nature are handled, the charges would have been approved earlier than they were, i.e., what the trial judge referred to in para. 110 of his reasons as evidence establishing a “yardstick”.  In other words, Mr. Ferris did not call evidence to establish that the police could and should have forwarded a report to the Crown prior to October 18, 2009, or that the Crown could and should have approved charges prior to March 29, 2010. [35] Based on the evidentiary record before him, it was open to the trial judge to make the findings that he did.  It is, therefore, not open to this Court to come to a different conclusion with respect to how and why events unfolded.  The facts as found by the judge fully support his conclusion that Mr. Ferris’s file was not deliberately held back because of the charge outstanding in New Brunswick. Disposition [36] I would dismiss this appeal. “The Honourable Mr. Justice Frankel” I agree: “The Honourable Madam Justice Newbury” I agree: “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Woodhouse v. Canada (Correctional Service), 2012 BCCA 45 Date: 20120125 Docket: CA038246 Between: John Woodhouse Respondent (Petitioner) And The Warden, William Head Institution, a Penitentiary operated by the Correctional Service of Canada Appellant (Respondent) Before: The Honourable Mr. Justice Lowry The Honourable Madam Justice Neilson The Honourable Mr. Justice Groberman On appeal from: Supreme Court of British Columbia, May 27, 2010 ( Woodhouse v. Canada (Correctional Service) , 2010 BCSC 754, Victoria Registry 09-2543 Oral Reasons for Judgment Counsel for the Appellant: B. Sokhansanj and L.M.C. Bell Counsel for the Respondent: M. Redgwell Place and Date of Hearing: Vancouver, British Columbia January 25, 2012 Place and Date of Judgment: Vancouver, British Columbia January 25, 2012 [1] LOWRY J.A. : These appeals arise out of habeas corpus proceedings in the Supreme Court of British Columbia which led to two orders being made for reasons indexed as 2010 BCSC 754 and 2010 BCSC 1897. The proceedings were initiated by Allan Woodhouse, who commenced serving a life sentence for murder in 1974. He was an inmate at William Head Institution. He was granted full parole in 1990. It was twice suspended in 2009. The first of the two orders granted Woodhouse habeas corpus relief in respect of his parole for the first suspension; the second granted him leave to amend his petition to seek relief in respect of the second suspension. The Warden appeals. [2] Woodhouse’s parole was suspended in March 2009 after he appeared to have breached the terms of his parole by consuming alcohol. He was taken into custody. His case was referred to the National Parole Board (the “Board”) within the 30-day period required by s. 135(3)(b) of the Corrections and Conditional Release Act , S.C. 1992, c. 20. On June 4, 2009, the Board revoked his parole. [3] Woodhouse challenged the Board’s decision in two ways: he commenced the habeas corpus proceeding in the Supreme Court and he appealed the decision to the Appeal Division of the Board. The hearing of his petition in the Supreme Court began before Mr. Justice Walker in September 2009 but was adjourned. Before the hearing was concluded, the Appeal Division of the Board allowed his appeal and ordered a new hearing before a new panel of the Board. The new hearing took place in November 2009. The Board cancelled the suspension of parole and released Woodhouse on full parole. He had been in custody for seven months. [4] Within a few days, still in November 2009, Woodhouse’s parole was again suspended for reasons similar to the initial suspension. The suspension was, however, cancelled soon after by his parole officer’s supervisor. He has since then remained on full parole. [5] The hearing of the petition in the Supreme Court nonetheless continued. Judgment was rendered in May 2010. The judge’s reasons run to almost 100 pages. [6] As a preliminary issue, the judge was required to decide whether it was appropriate for a provincial superior court to exercise its habeas corpus jurisdiction. In this regard, he assessed whether the provisions of the Act provide for a complete, comprehensive and expert procedure for the administration and review of decisions made by parole officers to suspend parole. He did so because, in May v. Ferndale Institution , 2005 SCC 82, [2005] 3 S.C.R. 809 at para. 44, the Supreme Court of Canada directed provincial superior courts to decline to exercise habeas corpus jurisdiction “where there is in place a complete, comprehensive and expert procedure for review of an administrative decision”. [7] The judge concluded the Act did not provide a complete and comprehensive procedure because an offender’s parole can be suspended for a considerable period of time while the parole officer’s supervisor, the Board, and the Appeal Division deal with the matter. He pointed to the fact that Woodhouse remained in custody for seven months before the suspension of his parole was cancelled. He expressed the view that the statutory procedure was less advantageous than the availability of the habeas corpus remedy in provincial superior courts. [8] The judge then decided that it was appropriate to address the merits of the petition even though Woodhouse being on full parole rendered the issue of whether he was entitled to habeas corpus relief moot. I do not consider it necessary to outline the judge’s reasoning in this regard. [9] Although the petition had been restricted to the first suspension of parole, arguments were also made with respect to the second suspension. The judge said it was necessary there be an amendment to the petition in order to deal with the latter suspension and, on further application made in November 2010, the judge granted leave for the amendments to be made. [10] The Warden raises four grounds of appeal. I consider it necessary to address only the first:  the judge erred in deciding to exercise the court’s habeas corpus jurisdiction. [11] There have been several appellate court decisions on the issue of whether the provisions of the Act contain a complete, comprehensive, expert procedure for the review of decisions to suspend parole. This Court, among others, has determined they do: John v. Canada (National Parole Board) , 2011 BCCA 188, 270 C.C.C. (3d) 355, leave to appeal refused, [2011] S.C.C.A. No. 256. In John , after quoting from the Saskatchewan Court of Appeal’s decision in R. v. Latham , 2009 SKCA 26, 244 C.C.C. (3d) 196, and the Ontario Court of Appeal’s decision in R. v. Graham , 2011 ONCA 138, 268 C.C.C. (3d) 517, in this regard, I said: [21]      In addition to Latham and Graham , the conclusion that the CCRA [ Corrections and Conditional Release Act , S.C. 1992, c. 20] provides a complete, comprehensive and expert procedure for the review of NPB [National Parole Board] decisions is also to be found in the decisions of the Quebec Court of Appeal in Lena v. Donnacona Prison , 2011 QCCA 140; the Saskatchewan Court of Appeal in R. v. Ross , 2009 SKCA 24 (heard and released with Latham ); the Nova Scotia Court of Appeal in L.R.F. v. Canada (National Parole Board) , 2008 NSCA 56; as well as the decision of the Ontario Superior Court of Justice in Elguindy v. Canada (Attorney General) , 2010 ONSC 1757. Before May was decided, the exercise of habeas corpus jurisdiction was declined, because of the nature of the NPB procedure in place, by the Alberta Court of Appeal in Armaly v. Canada (Parole Service) , 2001 ABCA 280, 299 A.R. 188, and by the Ontario Superior Court of Justice in McGrayne v. Canada (Attorney General) , [2002] O.T.C. 191, where Armaly was followed. [12] I addressed the concern about the time the administrative process can take as follows: [42]      This is not to say that incarceration without timely judicial intervention where warranted is not always a concern. It is important to keep in mind, however, that, similar to a detainee in the immigration context, an inmate such as the appellant whose full parole has been suspended is not simply incarcerated and his liberty denied for many months. He is engaged in a legislated procedure of review, the purpose of which is to determine whether the suspension is justified. It consists of an interview, shortly after the suspension, with the parole officer involved, followed by a mandatory review by the NPB which is designed to ensure the suspension is promptly quashed if it is not justified. Thereafter, if it is not quashed and the inmate has the legislated grounds, there may be an appeal to the Appeal Division and beyond that an application for judicial review in the Federal Court. An appeal or judicial review may then lead to a further NPB review. The procedure, like most of its kind, can, given the demand on resources, be expected to take some considerable time. But that of itself cannot mean it is to be short-circuited, so to speak, by affording the inmate the option of seeking habeas corpus relief in a provincial superior court at any time during the administrative process or, as the appellant contends, once that process is completed. [13] In Graham , the appellant relied on the decision that is the subject of this appeal. The judge’s reasoning was articulated and specifically rejected (paras. 11-12). The provisions of the Act were said to constitute “the very type of statutory regime envisioned in the habeas corpus exception articulated in May v. Ferndale Institution ” (para. 16). [14] The contention now is that the legislated regime is not complete and comprehensive with respect to a suspension by a parole officer. This is said to be so because the review is limited to the considerations set out in s. 135(5)(a) of the Act. This contention was addressed directly in Graham as follows: [13]      With respect to a suspension of parole, the statutory scheme works as follows. “A person designated by name or by position, by the Chairperson of the Board or by the Commissioner” may, by warrant, suspend the parole, authorize the apprehension of the offender, and authorize the recommitment of the offender until the suspension is cancelled, the parole is revoked or the sentence has expired: s. 135(1). A parole officer supervisor is such a person: Commissioner’s Directive No. 718: Designation of Persons With Authority for Suspension Under s. 135 of the Corrections and Conditional Release Act , s. 10, June 16, 2008 (available at http://www.csc-scc.gc.ca/text/plcy/cdshtm/ 718-cd-eng.shtml. Section 107(1) grants the NPB exclusive jurisdiction and absolute discretion to grant, terminate or revoke parole, or to cancel a suspension, termination or revocation of parole. Where the offender is recommitted, the parole officer supervisor must forthwith review the offender’s case and either cancel the suspension or refer the matter to the NPB for review within a tight statutorily defined time frame (within 14 days if the offender is serving a sentence of less than two years; within 30 days in any other case): s. 135(3). The NPB must then review the case (“the Board”, for review purposes) and, within the 90-day period prescribed by the regulations, either cancel the suspension or terminate or revoke the parole: s. 135(4) and (5). [14]      During this review process, where the offender is serving a sentence of two years or more - as the appellant is - the Board will take into account the offender’s conduct since his or her release, including whether the possibility of re-offending will pose an undue risk to society: s. 135(5). The process, then, is not simply point-in-time. It involves more than a review of whether the parole officer supervisor’s decision betrays an error of law or is otherwise wrong on its merits. But s. 135 is not to be read so narrowly as to preclude the Board from considering those factors, for - as the application judge noted - the decision of the parole officer supervisor is itself a part of the process transpiring since the offender’s release. The Board will undoubtedly take into account the substantive reasons for suspending parole as part of the overall review. I respectfully endorse what was said there. [15] Here, the judge erred when he concluded the provisions of the Act do not constitute a complete, comprehensive and expert procedure for the review of parole decisions. The judge should have declined jurisdiction and should not have granted Mr. Woodhouse leave to amend his petition. [16] I would allow the appeals, set aside the orders the judge made and dismiss the petition. [17] NEILSON J.A. : I agree. [18] GROBERMAN J.A. : I agree [19] LOWRY J.A. : There will be an order accordingly. “The Honourable Mr. Justice Lowry”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Holdyk v. Adolph, 2012 BCCA 37 Date: 20120126 Docket: CA038534 Between: William Johannes Holdyk and Jason Lorraine Appellants (Petitioners) And Lauretta Adolphina Adolph and William Marshall Burgess Respondents (Respondents) Before: The Honourable Madam Justice D. Smith The Honourable Madam Justice Garson The Honourable Mr. Justice Hinkson On appeal from:  Supreme Court of British Columbia, October 6, 2010 ( Holdyk v. Adolph , 2010 BCSC 1411, Smithers Docket 15639) Counsel for the Appellant: T. R. Buri, Q.C. Counsel for the Respondent: A. Aguilar Place and Date of Hearing: Vancouver, British Columbia November 23, 2011 Place and Date of Judgment: Vancouver, British Columbia January 26, 2012 Written Reasons by: The Honourable Mr. Justice Hinkson Concurred in by: The Honourable Madam Justice D. Smith The Honourable Madam Justice Garson Introduction [1] This is an appeal from the dismissal of an application by the appellants for leave to commence a derivative action in the name of Aurora Peace Contracting Inc. against the respondents. The reasons for judgment of the Chambers Judge dismissing the application are indexed as 2010 BCSC 1411. Background [2] Aurora Peace Contracting Inc. (the “Company”) is involved in the silviculture and forestry business. The appellants and the respondents were the sole shareholders and directors of the Company. The Chambers Judge found that on June 30, 2008, the respondents opened an account in the name of the Company at the Chetwynd branch of TD Canada Trust. The proposed claim would assert that the account was opened by the use of documents that were forged to indicate that all four of the parties authorized its opening and subsequently, the respondents deposited and then removed approximately $340,000 of Company funds from the account in the space of approximately two months. [3] The appellants contend that they did not authorize the opening of the account, and were unaware of it until October, 2008. Once aware, they commenced an oppression action on October 15, 2008 against the respondents and the Company in the Vernon Registry of the Supreme Court of British Columbia (the “Vernon action”). [4] In the Vernon action the appellants are seeking, amongst other relief, an accounting of all profits, income and sales of the Company within Canada, alleging, amongst other things, that: In or about the month of May, 2008, the Defendants Adolph and Burgess, opened, without authority and for no proper purpose, a bank account with the TD Canada Trust Branch in Chetwynd, British Columbia. The Defendants thereafter wrongfully and without colour of right, diverted considerable funds due and owing to the Defendant, Aurora, to their own benefit. The Defendants Adolph and Burgess, deposited the funds in the approximate amount of $360,000.00 into the account without the knowledge or authorization of the Plaintiffs. The particulars of the diversion of funds, including the dates, times, and amounts are within the knowledge of the Defendants. The Defendants have refused to provide access to the account and to provide the Plaintiffs with details of the amounts wrongfully diverted from the Defendant, Aurora. [5] The respondents in these proceedings have filed a statement of defence and counterclaim in the Vernon action on their own behalf and as well on the Company’s behalf. The Vernon action remains unresolved. [6] The appellants then brought a petition in the Smithers Registry of the British Columbia Supreme Court on May 5, 2010, seeking orders for leave to commence the proceedings that are the subject of this appeal, and for leave to commence proceedings in the name of the Company against TD Canada Trust, pursuant to ss. 232 and 233 of the Business Corporations Act , S.B.C. 2002, c. 57 [ BCA ] for damage and loss that they allege that the Company suffered as a result of TD Canada Trust’s negligence in allowing the respondents to open an unauthorized account in the name of the Company. Due to potential limitation issues, the application for leave to commence proceedings against TD Canada Trust was heard, and allowed, on June 24, 2010, but the application for leave to commence proceedings in the name of the Company against the respondents was not resolved at that time. [7] Although the pleadings in the action against TD Canada Trust were not before us, it is common ground that those proceedings are underway, and that TD Canada Trust has taken third party proceedings against the respondents for contribution and indemnity in the event that the action succeeds against it. [8] The appellants’ application for leave to bring a derivative action in the Company’s name against the respondents was heard by a second Chambers Judge on September 16, 2010, and his decision is the subject of the appeal before us. [9] At paras. 24–28 of his reasons, that Chambers Judge found: [24]      In the present matter, it is evident that the petitioners no longer view the Company as a legitimate going concern. For example, in the prayer for relief in the statement of claim, the petitioners have specifically requested an order that "the Defendant, Aurora, be liquidated and dissolved pursuant to Section 324 of the Business Corporations Act ." This is an indication that, unlike the petitioner in Primex , [ Primex Investments Ltd. v. Northwest Sports Enterprises Ltd. [1996] 4 W.W.R. 54, (1995), 13 B.C.L.R. (3d) 300, (S.C.); varied, [1997] 2 W.W.R. 129, 26 B.C.L.R. (3d) 357 (C.A.); leave to appeal ref’d [1997] S.C.C.A. No. 4] the petitioners here are not interested in the best interests of the Company. [25]      Another indication that the petitioners are pursuing this action in bad faith is found in the notice of motion of the Vernon Action. There, the petitioners request security for costs against the Company based on the argument that the Company does not have the resources to pay legal costs if unsuccessful in its counterclaim. If the Company succeeds in the proposed action, the Company may be in a better position to fund its pursuits in the Vernon Action, which could ultimately benefit the petitioners. This tends towards a finding that the petitioners are likely pursuing the claim on their own behalf rather than on behalf of the Company. [26]      It is apparent that there was a delay in the bringing of the derivative action. The respondents submit that the petitioners took no action in the Vernon Action for almost a full year, but have now revived an application for security for costs to force the respondents to respond on two separate fronts. [27]      Delay in bringing this application can be an indicator of bad faith: Bennett [ Bennett v. Rudek , 2008 BCSC 1278, 51 B.L.R. (4th) 207], at para. 61. The petitioners submit that "no derivative application was made because the respondents had removed the petitioners as directors shortly before the Vernon Action commenced." However, the petitioners were not barred from pursuing a derivative action in 2008. The BCA permits "a shareholder or director of the company" to apply under s. 233 to pursue a derivative action on behalf of a company. If the petitioners had the best interests of the Company in mind then a derivative action should have been brought around the time of the Vernon Action. The primary difference between 2008 and the present is the petitioners' financial situation. In my opinion, this is an indication that the petitioners' primary motivation in advancing the claim is their own self-interest. [28]      In my opinion, the evidence presented by the petitioners on this hearing is not sufficient to clearly establish that this application is brought in good faith. [10] The Chambers Judge recognized that the matter is essentially a dispute between the four individual shareholders, and that if the proposed derivative action were to be successful, the funds that were alleged to have been taken from the Company by the respondents would be returned to a company that the appellants intend to see wound up. He also considered that if the funds were returned to the Company and it were wound up, its secured creditors would take priority over the shareholders when the Company's assets are distributed. [11] The Chambers Judge found the evidence indicates that the appellants have a vested interest in Backwoods Contracting Ltd. ("Backwoods"). He reasoned that if the funds in issue were returned to the Company, and if Backwoods is the Company’s single largest creditor, then Backwoods would benefit ahead of the Company if the funds were returned. He thus concluded that the appellants hold a personal interest in the success of the proposed action that outweighs the best interests of the Company. [12] Despite his view that the appellants’ allegations are believable enough to be arguable and that there is evidence upon which an arguable case for fraudulent conversion can be shown to exist, he concluded it is not in the best interests of the Company for the derivative action to proceed. Issue on Appeal [13] The appellants contend that the Chambers Judge drew inferences of fact that he used as the basis for finding a lack of good faith in the proposal for the derivative action without an evidentiary basis for those inferences, and that those inferences led him to err in the exercise of his discretion in refusing the application. [14] In addition, the appellants contend that the Chambers Judge erred in concluding that the proposed derivative action was not in the best interests of the Company. Discussion [15] The parties agree that an order denying leave to commence a derivative action is a final order. In the absence of a palpable or overriding error on the part of the Chambers Judge, his order cannot be overturned; see British Columbia (Minister of Forests) v. Okanagan Indian Band , 2003 SCC 71, [2003] 3 S.C.R. 371 at para. 43. As I observed in R. v. Regan , [2002] 1 S.C.R. 297, 2002 SCC 12, however, discretionary decisions are not completely insulated from review (para. 118). An appellate court may and should intervene where it finds that the trial judge has misdirected himself as to the applicable law or made a palpable error in his assessment of the facts. As this Court held in Pelech v. Pelech , [1987] 1 S.C.R. 801, at p. 814-15, the criteria for the exercise of a judicial discretion are legal criteria, and their definition as well as a failure to apply them or a misapplication of them raise questions of law which are subject to appellate review. [16] The relevant parts of ss. 232 and 233 of the BCA set out the criteria for leave to bring a derivative action on behalf of a company and provide: 232(1)  In this section and section 233, "complainant" means, in relation to a company, a shareholder or director of the company; "shareholder" has the same meaning as in section 1 (1) and includes a beneficial owner of a share of the company and any other person whom the court considers to be an appropriate person to make an application under this section. (2)  A complainant may, with leave of the court, prosecute a legal proceeding in the name and on behalf of a company (a) to enforce a right, duty or obligation owed to the company that could be enforced by the company itself, or (b) to obtain damages for any breach of a right, duty or obligation referred to in paragraph (a) of this subsection. (3) Subsection (2) applies whether the right, duty or obligation arises under this Act or otherwise. ... 233(1) The court may grant leave under section 232(2) or (4), on terms it considers appropriate, if (a) the complainant has made reasonable efforts to cause the directors of the company to prosecute or defend the legal proceeding, (b) notice of the application for leave has been given to the company and to any other person the court may order, (c) the complainant is acting in good faith, and (d) it appears to the court that it is in the best interests of the company for the legal proceeding to be prosecuted or defended. [17] It is apparent that the respondents did not raise the criterion in s. 233(1)(a) of the BCA as a basis for the dismissal of the appellants’ application. Understandably, with the directors split into two opposing camps, they were deadlocked and the respondents could not be expected to approve the prosecution of a claim against themselves. [18] No issue was taken with regard to the notice of the application. It is unclear from the material before us whether the Company was served with the appellants’ applications as required by s. 233(1)(b) of the BCA , but no issue was taken that it was not, and in any event, as all directors and shareholders were parties to the applications, the Company can be taken to have been given notice of the applications. [19] It was upon the requirements in s. 233(1)(c) and (d) that the application failed before the Chambers Judge. The applicable legal principles and authorities relied upon are not disputed by the appellants. The Chambers Judge referred, among others, to the following authorities listed at paras. 9 and 15 of his reasons: [9]        In Bennett , Smith J. summarizes the law regarding the good faith requirement under s. 233(1)(c) of the BCA: [45]      The applicant for derivative leave bears the onus to show positively that the application is brought in good faith: Primex Investments Ltd. v. Northwest Sports Enterprises Ltd. , [1996] 4 W.W.R. 54, 13 B.C.L.R. (3d) 300 (S.C.) at para. 32, varied, [1997] 2 W.W.R. 129, 26 B.C.L.R. (3d) 357 (C.A.); Tkatch v. Heide (1996), 29 B.L.R. (2d) 266, [1996] B.C.W.L.D. 1481 (S.C.) at para. 24. Good faith is ultimately a question of fact to be determined on all of the evidence and with attention to the particular circumstances of the case. [46]      The test for good faith is whether the action is primarily for the purposes of pursuing a claim on the company's behalf, and factors to be considered in applying this test include the applicant's belief in the merits of the proposed claim, existing disputes between the parties, and alleged ulterior motives: Discovery Enterprises Inc. v. Ebco Industries Ltd. (1998), 50 B.C.L.R. (3d) 195 (C.A.), 177 W.A.C. 255 at para. 5; Gartenberg v. Raymond , 2005 BCCA 462, 8 B.L.R. (4th) 227 at para. 25. ... [15]      Tysoe J. (as he then was) enunciated the interests of the company test in Primex . At para. 39, he referred to an extract from Re Marc-Jay Investments Inc. and Levy (1974), 50 D.L.R. (3d) 45 at 47 (Ont. H.C.): It is obvious that a Judge hearing an application for leave to commence an action, cannot try the action. I believe it is my function to deny the application if it appears that the intended action is frivolous or vexatious or is bound to be unsuccessful. Where the applicant is acting in good faith and otherwise has the status to commence the action, and where the intended action does not appear frivolous or vexatious and could reasonably succeed; and where such action is in the interest of the shareholders, then leave to bring the action should be given. Tysoe J. continued at para. 41: [T]he Court should not attempt to try the case when deciding whether the requirement in s. 225(3)(c) has been satisfied. The Court should determine whether the proposed action has a reasonable prospect of success or is bound to fail. If it is asserted that the proposed defendants in the derivative action have a defence to the claim, the Court must decide whether such a defence is bound to be accepted by a trial judge following the completion of the trial of the derivative action. It is not necessary for the applicant to show that the action will be more likely to succeed than not. As noted in the Dickerson Report, the Court should also be satisfied that the potential relief in the proposed action is sufficient to justify the inconvenience to the company of being involved in the action. [20] The chartered accountant and chartered business evaluator retained on behalf of all of the Company’s shareholders to consider issues of concern between them reported his conclusions in a letter dated February 20, 2010. The conclusions included: a)       That the account in question was opened based upon a director’s resolution that purported to be signed by all four directors as the result of a meeting of June 19, 2008 that the appellants and the respondent Ms. Adolph deny attending; b)       That handwriting experts who have examined the director’s resolution have concluded that the appellants did not sign the document; c)       That total funds of $340,115.42 were deposited into the account; d)       That at least $302,396.98 of the funds deposited were withdrawn to the accounts of the respondents, but not for the day-to-day requirements of the Company; e)       That the Company’s cash flow was significantly impaired as a result of the diversion of funds to the account; and f)        That as a result of the significant and negative effect of the diversion of funds from the Company’s cash flow, Backwoods has paid out some $249,322 to cover the Company’s bills to enable it to continue as a going concern. [21] The same consultant also recognized that the respondents raised a concern that perhaps “excess profits” were unduly transferred from the Company to Backwoods during the years 2004–2008, but concluded that the Company, not Backwoods, received “excess profits” of $28,766. [22] In light of these conclusions, it is not surprising that the Chambers Judge found that there is evidence upon which an arguable case for fraudulent conversion can be shown to exist, and that the petitioner's allegations are believable enough to be arguable. On this basis, it is difficult to contend that the applicants did not believe in the merits of the proposed claim. Thus, that factor in the test for good faith can be taken to have been met. [23] There was, of course, an existing dispute between the parties, but the Chambers Judge accepted that the proposed claim was capable of standing alone from the other proceedings. [24] The first indicium upon which the Chambers Judge drew an inference of bad faith was the fact that the appellants, in the pleadings in the Vernon action, seek to have the Company liquidated and dissolved. [25] With respect, I am unable to accept that such an inference can reasonably be drawn from the mere fact that the liquidation and dissolution of the Company was sought. Such an ultimate goal is not inconsistent with also wanting to advance the interests of the Company before it is wound up. [26] It is abundantly clear from the pleadings in the Vernon action that the Company can no longer operate in any effective manner. It is therefore in the interests of all of its shareholders that the Company’s interests be maximized and that it then be liquidated and dissolved, to avoid any further operating expenses, and to provide its shareholders with the highest possible return on their investment. [27] The second indicium of bad faith identified by the Chambers Judge was the appellants’ request in the Vernon action, for the Company to pay security for costs. The Chambers Judge described this request as tending to show that the petitioners are likely pursuing the claim on their own behalf rather than on behalf of the Company. [28] The appellants contend that the Chambers Judge erred in considering this issue at all, as there was no evidence of the application before him, and his source of this information could only have come from the submissions of counsel for the respondents. I see no difficulty with the reliance on the statements of counsel on this fact by the Chambers Judge. The application was a matter of record. Reliance on the statements of counsel for a matter of this nature is permitted; see, for example, Nichols v. Gray (1978), 9 B.C.L.R. 5 (C.A.) at para. 11 and Astels v. Canada Life Insurance Co., 2006 BCCA 110, 223 B.C.A.C. 138 at para. 27 . [29] I am unable to find that the reliance of the Chambers Judge on the application in the Vernon action for the Company to pay security for costs was incorrect, or that it could not be regarded, as he found, as some attempt by the appellants to prefer the interests of a creditor of the Company, in which they had a vested interest, over the interests of the Company. [30] With respect, however, I am unable to understand how the Company cannot be better off with more resources than less if it is already embroiled in another “stand alone” action, and thus I do not consider that the second indicium of bad faith identified by the Chambers Judge can reasonably be so construed. [31] The third indicium of bad faith identified by the Chambers Judge is the delay in seeking leave to bring the proposed action. He concluded that, as no derivative action was pursued when the applicants were removed as directors of the Company, this is an indication that the petitioners' primary motivation in advancing the claim is their own self-interest. [32] The Chambers Judge addressed this matter in paras. 26–27 of his reasons for judgment, as set out above. [33] With respect, it does not appear to me that the Chambers Judge considered the reason offered by the appellants for the delay. Their explanation was that it was not until they received the report of the chartered accountant and chartered business evaluator that they were in a position to responsibly seek leave to commence the derivative action that they wished to pursue on the Company’s behalf against the respondents. As I have already said, the report was dated February 20, 2010 and the petition seeking leave to commence the proposed proceedings was brought May 5, 2010. [34] It is my view that, had the Chambers Judge considered this explanation, he would not have found that the delay in bringing the application for leave to bring the derivative action indicated bad faith on the part of the appellants. [35] The failure of the Chambers Judge to consider relevant evidence is justification for appellate intervention; see Housen v. Nikolaisen, [2002] 2 S.C.R. 235; 2002 SCC 33. I would therefore accede to the appellants’ first ground of appeal. [36] That, however, is not dispositive of the appeal itself. To succeed on the appeal the appellants must also overcome the finding of the Chambers Judge at para. 30 of his reasons that “... it is not in the best interests of the Company for the derivative action to proceed”. [37] Regrettably, the Chambers Judge did not explain the basis upon which he arrived at that finding. [38] While it is doubtless the case that the appellants hope and intend to benefit from any derivative action, one must not lose sight of whether such an action is truly in the best interests of the Company. Clearly the Company stands to gain considerably if it succeeds in showing that the respondents fraudulently converted some $340,000 to their own use and so recovers those funds. Even if these monies are used to pay creditors or to fund the Company’s defence in the Vernon action, the Company will be better off with more resources than less. [39] In the Vernon action, the Company is a co-defendant along with the respondents. The Company’s defence in that action is being directed by the respondents, and the Company has no claim against them. [40] In the derivative action by the Company presently against only TD Canada Trust, the respondents are third parties, but the Company has no direct means, through that action, of recovery against the respondents, if indeed they have wrongfully diverted funds belonging to the Company. [41] At paras. 18–19 of his reasons for judgment, the Chambers Judge found: [18]      The respondents submit that this application seeks to litigate the same issues as the Vernon Action, but without the counterclaim for the wrongful conversion of funds. In the Vernon Action, the Company is named as a defendant in the action and the petitioners do not seek to recover any funds on behalf of the Company. In the present matter, the Company seeks the return of $340,000 fraudulently converted by the respondents for their own use; damages and loss suffered as a result of the wrongful conversion of funds; and, costs and all other ancillary relief. [19]      In my opinion, these are not the same issues and the Company's claim for fraudulent conversion as against the respondents could be determined as a stand-alone from the Vernon Action. [42] In Johnston v. West Fraser Timber Co . (1982), 37 B.C.L.R. 360 (C.A.), leave to appeal ref’d (1982), 45 N.R. 538 n; 40 B.C.L.R. xxx, as it was the Company that was wronged, the Court concluded that a derivative action was best suited to resolve the issue (as opposed to an oppression remedy). Writing for the Court, Bull J.A. found: [77]      In my opinion, like that of the trial judge, any wrong done, if it was done, would not be the proper subject of relief under sec. 224 [an “oppression” claim] ... the real complaint here is not for oppression or unfair dealing of a shareholder but for West Fraser to recover any excessive commissions or brokerage paid over a four year period to the associated or allied United States corporation Dimension Lumber Co. Inc. [78]      I think that any relief to be granted, if relief be justified, would be to and for West Fraser. Should the Company refuse to pursue the matter to recover that to which it may be entitled, a derivative action or proceedings under sec. 225 of the Company Act would appear available. [43] In Furry Creek Timber Corp. v. Laad Ventures Ltd . (1992), 75 B.C.L.R. (2d) 246 (S.C.) at p. 254, Newbury J. (as she then was) found breach of a duty owed to the corporation can give rise to both a derivative action and an oppression claim if the breach results in the unfair treatment of a shareholder. Newbury J. concluded that, in addition to a derivative action, an oppression action could also be brought on the same breach: ... provided the complaining shareholder has been affected by the breach in a manner different from or in addition to the indirect effect on the value of all shareholders’ shares generally. (See also Discovery Enterprises Inc. v. Ebco Industries Ltd. (1998), 50 B.C.L.R. (3d) 195 at para. 21 and Pasnak v. Chura , 2004 BCCA 221 at para. 33, 27 B.C.L.R. (4th) 50.) [44] In the oppression action the appellants ask for an accounting of all profits, income and sales within Canada and damages based on the business affairs of the Company having been conducted in a way oppressive to them or unfairly prejudicial as a result of the alleged fraudulent conversion, and seek to recover as shareholders qua individuals in that action. [45] The reasoning in Furry Creek is consonant with that of Mr. Justice LaForest in Hercules Managements Ltd. v. Ernst & Young , [1997] 2 S.C.R. 165 at para. 62 where he concluded: 62        One final point should be made here.  Referring to the case of Goldex Mines Ltd. v. Revill (1974), 7 O.R. (2d) 216 (C.A.), the appellants submit that where a shareholder has been directly and individually harmed, that shareholder may have a personal cause of action even though the corporation may also have a separate and distinct cause of action.  Nothing in the foregoing paragraphs should be understood to detract from this principle.  In finding that claims in respect of losses stemming from an alleged inability to oversee or supervise management are really derivative and not personal in nature, I have found only that shareholders cannot raise individual claims in respect of a wrong done to the corporation .  Indeed, this is the limit of the rule in Foss v. Harbottle .  Where, however, a separate and distinct claim (say, in tort) can be raised with respect to a wrong done to a shareholder qua individual, a personal action may well lie, assuming that all the requisite elements of a cause of action can be made out. [Emphasis in original.] [46] A derivative action for what the Chambers Judge described as the “stand alone issue” of the Company’s claim for fraudulent conversion can thus be viewed as the most appropriate remedy as, taken in isolation it does not appear that the alleged conversion has affected the appellants in a “manner different from or in addition to the indirect effect on the value of all the shareholders’ shares generally”: Furry Creek , at p. 254. Conclusion [47] I would allow the appeal, set aside the order of the Chambers Judge and substitute therefore an order granting leave to prosecute the proposed derivative action in the name of and on behalf of the Company against the respondents. [48] I would therefore grant leave to the appellants to apply to the Supreme Court of British Columbia under 233(3)(b) of the BCA to have the interim costs in the derivative action paid for by the Company. After the final disposition of the action, further orders for costs may be made by the Supreme Court under 233(4) of the BCA as and if appropriate. “The Honourable Mr. Justice Hinkson” I agree: “The Honourable Madam Justice D. Smith” I agree: “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Cocks, 2012 BCCA 39 Date: 20120126 Docket: CA039593 Between: Regina Respondent And Norman Robert Cocks Applicant Direction of the Chief Justice on an Application for Review Pursuant to Section 680 of the Criminal Code Counsel for the Applicant: Joseph J. Blazina Counsel for the Respondent: Joseph C. Bellows, Q.C. Written Submissions of the Applicant  filed: December 28 th , 2011 Written Submissions of the Respondent filed: January 19 th , 2012 Place and Date of Judgment: Vancouver, British Columbia January 26 th , 2012 Reasons for Judgment of the Honourable Chief Justice Finch: [1] This is an application under s. 680(1) of the Criminal Code for a direction that a division of this Court review the decision of the Supreme Court of British Columbia to deny bail to the applicant under s. 515(10) of the Code . The learned chambers judge held that the applicant had failed to show that his continued detention was not necessary under the secondary and tertiary grounds of s. 515: namely, the protection or safety of the public, and the maintenance of public confidence in the administration of justice. [2] The applicant is charged with the second degree murder of Dain Phillips on or about 12 June 2011. The Crown’s case is that the applicant was one of seven men who swarmed the deceased in broad daylight and beat him to death with various weapons. [3] The chambers judge reviewed the evidence adduced by the Crown as to the circumstances of the offence and the alleged offenders. They are described in paras. 4 through 15 of his reasons, and it is not necessary here to repeat the detail. In short, there was a simmering dispute between the deceased and his family on the one hand, and the applicant and his friends on the other. The deceased, together with his sons and friends, met by arrangement with the applicant and his co-accused at a predetermined location. [4] The evidence was that the deceased was swarmed in an unprovoked attack by three assailants, including the applicant, wielding baseball bats, a hammer and other weapons, knocked to the ground and beaten to death. The applicant later bragged about his role in the attack in an intercepted telephone call. Police had been carrying out surveillance on the applicant, and intercepting his phone calls, in connection with other offences. [5] The applicant has no criminal record, and at the bail hearing two sureties were presented, each willing to provide security in the sum of $100,000 to supervise the applicant’s compliance if released on bail. [6] The judge held that the applicant had failed to show that his detention was not necessary on the secondary ground. In his reasons he said in part: [25]      ... I conclude that the Crown case is strong. There are eyewitnesses to what occurred, but most telling is the intercepted message which provides a chilling account of what happened. The motivation for the attack was to dissuade the Phillips’ from passing themselves off as members of the Hells Angels and to send a message that it was an organization not to be meddled with. That message was delivered with dispatch and efficiency. [26]      Mr. Cocks has no criminal record. He has been steadily employed. He has the support of his employer and his family. That stands in his favour. [27]      However, Mr. Cocks knew that he was being watched and that he was the subject of a telephone intercept. In spite of those constraints, he was part of a group that intended to send a message to other members of the community. That message was designed to be delivered through violent means with little, if any, regard for the consequences. [7] And further: [36]      I have concluded that there are no release provisions that will reduce to an acceptable level the risk that Mr. Cocks poses. There is a substantial likelihood, particularly in light of the open and brazen attack on Mr. Phillips, that Mr. Cocks has little, if any, regard for the law. It would be a genuine concern that the administration of justice would be interfered with. [8] The judge also held the applicant’s detention was justified on the tertiary ground. He found that the prosecution case was strong, the offence was serious, and “the attack was planned, it was deliberate, and it was ruthlessly efficient”. [9] It appears to me that all of those conclusions are fully justified on the evidence. The judge was satisfied that the public would lose confidence in the justice system if bail were granted. [10] The threshold for a direction under s. 680 is low. The test is whether there is any reasonable prospect of success on a review of the order refusing bail. [11] In my opinion, there is no possibility that a division of this Court would conclude that the order for the applicant’s continued detention was made in error. The judge directed himself correctly on the law, applied the correct principles, and reached his conclusions on an ample evidentiary base. [12] The applicant submits that five of his co-accused have already been released on bail, suggesting that the circumstances of the offence were less egregious than alleged. This argument ignores evidence that the applicant played a substantially more serious role in the attack than did the five accused who were granted bail. Indeed, the Crown conceded that none of these five numbered among the “principal people that were involved in the murder of Mr. Phillips.”  The applicant, conversely, is alleged to have played a central role in the incident. [13] The applicant also argues that the chambers judge disregarded a number of decisions where bail was granted, including two which he argued “contained strikingly similar facts to the present case”: R. v. Brotherston , 2009 BCCA 431, [2009] B.C.J. No. 2294 and R v. Patko , 2003 BCCA 262, [2003] B.C.J. No. 1012. [14] Both Brotherston and Patko are distinguishable from the present case in important respects. The judge in this case placed considerable weight on the evidence that the applicant acted in order to send a terrifying message to the community. He also emphasized evidence as to the significance of the applicant’s decision to attack Mr. Phillips, and to boast about the incident over the telephone, when he was aware that the police had him under surveillance and were monitoring his phone lines. The reasons in Brotherston and Patko do not disclose any such aggravating factors; indeed, the two accused in Brotherston actually turned themselves in to the police. There is nothing to show that the judge’s decision in the present case was inconsistent with prior jurisprudence on applications for bail. [15] The application for a direction under s. 680 is dismissed. “The Honourable Chief Justice Finch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Tymiak, 2012 BCCA 40 Date: 20120126 Docket: CA033573 Between: Regina Respondent And Gregory Glen Tymiak Appellant Before: The Honourable Chief Justice Finch The Honourable Mr. Justice Hall The Honourable Mr. Justice Hinkson On appeal from:  Supreme Court of British Columbia, 24 November 2005 ( R. v. Tymiak , Penticton Docket No. 31330) The Appellant appeared in person Counsel for the Respondent: M.J. Brundrett Counsel for the Intervenor, Attorney General of Canada: K. J. Elvin-Jensen Place and Date of Hearing: Vancouver, British Columbia January 12 th and 13 th , 2012 Place and Date of Judgment: Vancouver, British Columbia January 26 th , 2012 Written Reasons by: The Honourable Chief Justice Finch Concurred in by: The Honourable Mr. Justice Hall The Honourable Mr. Justice Hinkson Reasons for Judgment of the Honourable Chief Justice Finch: I. [1] Mr. Tymiak applies to reopen his sentence appeal which was dismissed as abandoned by a division of this Court on 14 July 2009.  If the application is granted, he seeks additional orders for the appointment of counsel and other relief.  Mr. Tymiak was self-represented on this application, appearing by videoconference from his place of detention. [2] The principal ground put forward for reopening the appeal is that the sentencing judge did not consider, or consider adequately, Mr. Tymiak’s Aboriginal heritage as required by s. 718.2(e) of the Criminal Code .  In his oral submissions, Mr. Tymiak advanced other grounds as well.  The Crown opposes the application to reopen. [3] The applicant was convicted in British Columbia Supreme Court on 3 December 2004, of a number of offences committed in January 2003, relating to the “home invasion” of a residence in Penticton, involving an assault on one of its occupants.  An appeal from conviction was dismissed by this Court in reasons pronounced 5 March 2009 ( R. v. Tymiak , 2009 BCCA 98, [2009] B.C.J. No. 465). [4] Following Mr. Tymiak’s conviction, the Crown applied for an order declaring him to be a long-term offender.  In written reasons pronounced 24 November 2005, the sentencing judge made that declaration.  The judge then imposed a custodial sentence of 12 years, to run concurrently with a sentence of ten years which the applicant was already serving for offences committed in Alberta, of which he was convicted on 24 April 2003. [5] In addition to the 12-year custodial sentence, the Supreme Court also imposed a ten year term of supervision in the community, in accordance with s. 753.2 of the Corrections and Conditional Release Act . [6] Counsel, on behalf of the applicant, filed a notice of appeal against sentence.  On 11 June 2009, Mr. Tymiak filed a Notice of Abandonment of the sentence appeal, and on 14 July 2009, this Court dismissed the sentence appeal as abandoned. [7] As indicated, the basis of this application is that the sentencing judge did not consider, or consider adequately, the applicant’s Aboriginal heritage. II. [8] Mr. Tymiak was born on 30 November 1981, and he was 23 years old at the time the B.C. sentence was imposed. [9] There is nothing in the sentencing judge’s reasons of 24 November 2005, to suggest that the question of Aboriginal heritage was raised in the hearing of the long-term offender application.  Mr. Tymiak testified on that hearing, and it does not appear that he was asked to answer any questions concerning his Aboriginal heritage.  There is nothing in the transcript of counsel’s submissions on that hearing which addresses the matter. [10] The Crown points out that Mr. Tymiak has filed no material explaining why the matter of his Aboriginal heritage was not relied on either at the sentencing hearing or as a basis of a sentence appeal. [11] Mr. Tymiak has now filed an affidavit of his mother, Judith Mary Beaudry, in which she deposes that her father was “part Saulteau”, her mother was “part Cree”, that she considers herself Métis, and that (as of 3 October 2011) she was in the process of applying for her Métis status card. [12] Appended to Mr. Tymiak’s affidavit of 19 July 2011 is a “Program Performance Report” on his completion of a program for persons of Aboriginal descent who are in custody (“In Search of Your Warrior Program” (“ISOYWP”)), in which there are references to the applicant’s childhood, his experiences as a victim of bullying, and conflicts with his family. [13] Mr. Tymiak draws attention to this passage in the report: Mr. TYMIAK explored racism and it’s impact on violence, and wrote in his journal; “This was a good session, I looked back at racism as an adolescent and how this affected the way I felt about my ethnic identity.  I knew I could hide behind the colour of my skin, and did not want to get picked on so I hid part of my identity.  I was ashamed then, and this played a role at lashing out on other ethnic groups.  I addressed the issue before coming in (jail) because I respect all ethnic cultures.” [14] In his submissions to us, Mr. Tymiak said that the references to his “ethnic identity” and to knowledge that he “could hide behind the colour of my skin”, meant that he knew as a teenager he had Aboriginal ancestry, but that that was not apparent from his skin colour, and he kept that ancestry hidden to avoid being bullied. [15] Mr. Tymiak was interviewed prior to his admission into the ISOYWP program, and the report says this concerning the interview: Gregory, at the time, was limited in his knowledge of culture, tradition and Aboriginal Spirituality.  He has been following the teachings of the sweat at Mission.  He wants to continue to learn about the teachings and of the ceremonies.  He also wants to research his Aboriginal background, this is one of the teachings Elders speak about in our longhouse, identity.  Knowing who you are, your roots, this is part of healing and change. [16] During his time in custody, Mr. Tymiak has also participated in and completed a program for “Aboriginal Offender Substance Abuse”.  It records that he began to use drugs at age 13, and began to consume alcohol at age 11. [17] However, as was the case before the sentencing judge, there is nothing before us as to what effect, if any, the applicant’s claimed Aboriginal heritage had on his education, development, antisocial behaviour, or life experience in general. III. [18] This Court has jurisdiction to set aside an order dismissing an appeal that has not been decided on its merits.  The test is whether, in all the circumstances, it is in the interests of justice that the order be set aside or varied:  see R. v. Henry , 2009 BCCA 12, [2009] B.C.J. No. 46 and R. v. Clymore , 1999 BCCA 225, [1999] B.C.J. No. 800. [19] Section 718.2(e) of the Code is in mandatory terms.  It reads: A Court that imposes a sentence shall also take into consideration the following principles: .... (e)  all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [20] It seems clear from the sentencing judge’s reasons at paras. 32-34, where he refers in part to ss. 718.1 and 718.2, that the applicant’s Aboriginal heritage was not brought to his attention, because s. 718.2(e) is not mentioned. [21] The leading case on the application of s. 718.2(e) is R. v. Gladue , [1999] 1 S.C.R. 688, 133 CCC (3d) 385.  Passages relevant for the purposes of this appeal include the following: [69]      ... While background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts . ... .... [75]      ... Section 718.2(e) requires that sentencing determinations take into account the unique circumstances of aboriginal peoples. ... [79]      ... Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [80]      As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis : for this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ? ... [83]      ... for each particular offence and offender it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fit sentence. .... [84]      However, even where counsel do not adduce this evidence, where for example the offender is unrepresented, it is incumbent upon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an aboriginal person. Whether the offender resides in a rural area, on a reserve or in an urban centre, the sentencing judge must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community of the particular offender. ... [85]      Similarly, where a sentencing judge at the trial level has not engaged in the duty imposed by s. 718.2(e) as fully as required, it is incumbent upon a court of appeal in considering an appeal against sentence on this basis to consider any fresh evidence which is relevant and admissible on sentencing. ... [Emphasis added.] [22] In its summary, the Court stated: [93]  11.  Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area.  In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term “community” must be defined broadly so as to include any network of support and interaction that might be available, including in an urban centre.  At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment. [Emphasis added.] [23] What is clear from this discussion is that while the terms of s. 718.2(e) are mandatory, the purpose of the provision is to direct sentencing courts to find alternatives to imprisonment, where possible, especially in cases where the offender is of Aboriginal heritage. [24] On the record in this case, in the circumstances of this offender, and these offences, it is very difficult to see any real alternative to imprisonment.  As noted at para. 79 of Gladue , “Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.” [25] The question on this application, therefore, is whether, in all the circumstances, it is in the interests of justice to reopen the sentence appeal so that consideration might be given to the appellant’s asserted Aboriginal history.  I will assume for this purpose that the appellant’s mother is Métis, and that the appellant is similarly entitled to be considered as a person of Aboriginal heritage. [26] On the evidence before us on this application, we are left to speculate as to what effects, if any, that heritage may have had on the applicant, which might differentiate him from the non-Aboriginal population.  We do not know whether any such effects would require the Court to reconsider the long-term offender declaration, and to impose a custodial sentence of lesser duration. [27] There is nothing before us to show that “unique background and systemic factors ... may have played a part in bringing [Mr. Tymiak] before the courts.”  What does emerge from this record, and from the reports on Mr. Tymiak’s participation in the prison programs, is that the factors that may have led Mr. Tymiak into a criminal lifestyle are common to many offenders, both Aboriginal and non-Aboriginal.  Those factors include family discord and eventual separation of his parents, early abuse of drugs and alcohol, disinterest in and difficulty at school, early association with other young people engaged in an anti-social lifestyle, a tendency to be easily led, and impulsive behaviour without regard for consequences. [28] Section 718.2(e) is directed to reducing the incarceration of Aboriginal persons, by finding other appropriate sentences.  It is difficult at this point to consider that any sentence other than significant jail time would have been appropriate.  While it is conceivable that there are circumstances in Mr. Tymiak’s past that could serve to mitigate this sentence, there is presently no evidence of what they might be. [29] Mr. Tymiak put forward a number of other grounds of appeal which, in his submission, might be arguable if his sentence appeal were reopened.  He referred to the 10 programs he has completed while in custody, to his relative youth, and to the emphasis that the sentencing judge placed on his prospects for rehabilitation.  He also referred to indicia suggesting that he is a substantially reformed person, and that it would be useless for him to continue “wasting” his life in prison when he could be out and doing something useful. [30] There appear to be some reasons to believe that Mr. Tymiak has made considerable progress towards his ultimate rehabilitation, and that he is developing a more mature and responsible understanding of himself in relation to others.  However, these are matters that are properly left to the consideration of the correctional authorities.  They may be factors in determining the timing of his ultimate release from custody, and any conditions that may apply upon that release.  They are not matters that this Court could properly consider on an appeal from sentence:  see R. v. Jimmie , 2009 BCCA 215, [2009] B.C.J. No. 969 and R. v. K.R.H., 2002 BCCA 575, [2002] B.C.J. No. 2364. [31] Mr. Tymiak also suggested that he was not fully advised when he abandoned his sentence appeal, and that he did not understand the legal consequences of taking that step.  His former counsel has filed an affidavit, upon Mr. Tymiak having waived solicitor-client privilege, as to the circumstances in which Mr. Tymiak instructed her to abandon the sentence appeal.  I am not satisfied that Mr. Tymiak was not properly advised, or that the assistance of his then counsel was ineffective. [32] Mr. Tymiak directed the Court to consider the Ontario Court of Appeal decision of R. v. Kakekagamick , 214 O.A.C. 127, 211 C.C.C. (3d) 289.  Given the particular circumstances of Mr. Tymiak’s application, this judgment does not assist him. [33] I am therefore of the view that it would not be in the interests of justice to reopen the sentence appeal.  I would not foreclose that possibility in the future, if the sort of evidence referred to in Gladue became available.  At this time, however, the possibility of a variation in the sentence imposed is only hypothetical. [34] I would dismiss the application to reopen the appeal against sentence. “The Honourable Chief Justice Finch” I AGREE: “The Honourable Mr. Justice Hall” I AGREE: “The Honourable Mr. Justice Hinkson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Baldwin v. Baldwin, 2012 BCCA 116 Date: 20120127 Docket: CA39361 Between: Janet Kelly Baldwin Appellant (Petitioner) And Wesley Warren Baldwin Respondent (Respondent) Before: The Honourable Madam Justice Bennett (In Chambers) On appeal from: Supreme Court of British Columbia, September 12, 2011 ( Baldwin v. Baldwin , Fort St. John Registry 20560) Oral Reasons for Judgment Appellant appearing In Person via teleconference: No One appearing on behalf of the Respondent: Place and Date of Hearing: Vancouver, British Columbia January 27, 2012 Place and Date of Judgment: Vancouver, British Columbia January 27, 2012 [1] BENNETT J.A. : The applicant, Janet Baldwin, applies for an extension of time to file the appeal record. She anticipates that Wesley Baldwin, the respondent, does not oppose the application. It appears that counsel for Mr. Baldwin was served with the application but has not appeared. The Court of Appeal Registry left a message with his office and the matter was stood down until 2:30. It is now 2:30 and counsel has not appeared. [2] The underlying appeal is from Madam Justice Loo’s judgment, pronounced on September 12, 2011, dismissing the applicant’s petition for judicial review. BACKGROUND FACTS AND PROCEEDINGS BELOW [3] Janet and Wesley Baldwin are siblings. Their parents, Jerry and Doris Baldwin, own real property with a bus and a trailer on-site. Janet and her partner, Paul Williams, resided on her parents’ property as tenants at one time. Janet and Paul developed an acrimonious relationship with the respondent Wesley and his family, their sister Lorrie and her family, and Jerry and Doris, all of whom obtained a restraining order in April 2008 in the Alberta Court of Queen’s Bench against Janet and Paul. (I should add I am using first names not out of any disrespect for the parties or the people involved, but because everyone with the exception of Mr. Williams is a Baldwin.) [4] Jerry Baldwin sought to evict Janet Baldwin and Paul Williams from his property. On April 15, 2008, a dispute resolution hearing was held under the Residential Tenancy Act , S.B.C. 2002, c. 78. The dispute resolution officer found that the tenancy was contingent upon an employment contract between Doris and Paul that had terminated on January 1, 2008. There was no signed tenancy agreement and no rent was ever paid. Paul Williams agreed to vacate with two months’ notice. Accordingly, the officer ordered Mr. Williams to deliver full and vacant possession of the rental unit on the property to Doris and Jerry Baldwin no later than 1:00 p.m. on June 30, 2008. The officer also found that Janet Baldwin was not a party to the application as she was not a signatory to the employment contract. Her submission that she had signed a greater-than-20-year lease with her mother was rejected. [5] Janet then brought three proceedings in Provincial Court. The first was initiated on March 18, 2009 and dismissed by the judge. In dismissing the second proceeding at a settlement conference on March 29, 2010, the judge identified the subject matter as identical to that of the previous litigation. In dismissing the third Provincial Court action at a settlement conference on December 9, 2010, the judge noted that Janet Baldwin was raising issues addressed in the April 15, 2008 dispute resolution hearing, but now against a different party. The judge also noted that Janet Baldwin had yet to produce the lease she claimed to have signed with her mother. Her claim was dismissed as frivolous and an abuse of process. [6] Next, Janet filed a petition for judicial review under the Judicial Review Procedure Act , R.S.BC. 1996, c. 241. Madam Justice Loo dismissed the petition, noting that it was out of time and, in any event, an appeal in substance. She noted that Janet Baldwin did not produce any written lease. [7] Justice Loo awarded costs of $1,200 to Wesley Baldwin. She discussed s. 18 of the Supreme Court Act , R.S.B.C. 1996, c. 443, which authorizes a Supreme Court judge to make a vexatious litigant order. She was inclined to make the order but did not do so as no s. 18 application was before her. [8] Janet Baldwin is late in filing her appeal record because she did not receive the Reasons for Judgment from the Supreme Court in a timely way, although she apparently ordered them promptly. It appears that through no fault of her own, Ms. Baldwin was unable to file her appeal record. LEGAL TEST – EXTENSION OF TIME [9] The five criteria to be considered in an application for an extension of time to take a necessary step in the prosecution of an appeal were set out in Davies v. C.l.B.C. (1987), 15 B.C.L.R. (2d) 256 (C.A.) at 259-260: 1) Was there a bona fide intention to appeal? 2) When were the respondents informed of the intention? 3) Would the respondents be unduly prejudiced by an extension of time? 4) Is there merit in the appeal? 5) Is it in the interests of justice that an extension be granted? See also Sekhon v. Armstrong , 2003 BCCA 318 at para. 17; Dadashzadeh v. British Columbia (Motor Carrier Commission) , 2003 BCCA 463 (Chambers) at para. 7. [10] The first four criteria inform and serve as guides for determination of the fifth and decisive “interests of justice” factor ( Davies at 260; Perren v. Lalari , 2009 BCCA 564 at para. 33; Haldorson v. Coquitlam (City) , 2000 BCCA 672 at para. 9). [11] There is a question as to whether a single justice in chambers has jurisdiction to deny an extension of time for further prosecutorial steps solely on the basis of lack of merit. [12] In Barta v. Canaccord Capital Corp (1997), 36 B.C.L.R. (3d) 81, 90 B.C.A.C. 282 (C.A.) McEachern C.J.B.C. referred to the “anomaly in practice” at paras. 6-7 (B.C.L.R.): [6]        ...There is an obvious anomaly in the practice since an application to dismiss an appeal on the ground that it is bound to fail must be heard by the Court whereas an application to extend time may be refused by a single judge on the ground that the appeal is bound to fail. [7]        I do not say that a judge can never determine that an appeal is absolutely bound to fail without an examination of the transcript which was not available at the time of the application in this case, but the practice has certainly been not to do so upon such an application in these circumstances. [13] Esson J.A., concurring, held at para. 12: [12]      ...That anomaly, I suggest, is more apparent [than] real in that it is one thing to take the lack of merit into account as one circumstance, it is another to refuse the extension of time on the sole ground that the case lacked merit. I would hold that, as a general matter, an extension of time should not be refused simply on the basis of lack of merit. [14] In Dadashzadeh , Rowles J.A. stated at para. 10: [10]      In my opinion, when an appeal is brought within the time limited for bringing an appeal, a single justice has no jurisdiction to refuse an extension of time to take a step in the prosecution of the appeal if the sole ground for refusing the extension is that the appeal has no merit. [15] See also Sekhon , in which Rowles J.A., for the majority, stated: [28]      It is my respectful view that the refusal to extend the time for filing the Appeal Record, Appeal Book and factum on the ground that the appeal had no hope of success was wrong in principle and must be set aside. The effect of the order dismissing the application to extend the time is, of course, to bring the appeal to an end without the appeal having been determined by a panel on its merits. [16] However, in Carstensen v. Arbutus Management Ltd. , 2003 BCCA 88 (Chambers) and G. Avtar Plaster & Stucco Ltd. v. J.M.J. Developments Ltd. , 2011 BCCA 456 (Chambers), single justices dismissed applications to extend time for taking prosecutorial steps based solely on the absence of merit, without mentioning the above-noted authorities. [17] Single justices sitting in chambers apparently retain discretion to refuse an extension of time to take prosecutorial steps if the absence of merit renders the continuation of the appeal contrary to the interests of justice. In Seiler v. Mutual Fire Insurance Co. of B.C ., 2003 BCCA 696 (Chambers), Chief Justice Finch held that an extension of time for service was not in the interests of justice since the appeal was doomed to fail: [18]      While refusal to extend the time for service in these circumstances may seem like a harsh result, the fact is that there is no prospect of the plaintiffs succeeding on their appeal. Extending the time for service of notice for an appeal that is doomed to fail would put all parties to unnecessary expense, and clearly would not be in the interests of justice. [18] Similarly, in Rotzetter v. Rotzetter , 2003 BCCA 12 (Chambers), Southin J.A. refused an application for extension of time to file a factum and transcript extracts, stating: [7]        But, on all applications to extend time, the overriding consideration must be the interests of justice. Justice is not a concept which lends itself to scientific analysis. Among the considerations is the effect on the parties of litigation. The applicant, an intelligent man, is enjoying representing himself in this appeal. What the respondent thinks of it all, I do not know, but it was plain to me that Ms. Hyslop, her counsel, considers this appeal an exercise in irritating futility. ... [11]      It is in the interests of the parties to this appeal and their children that this litigation should end. In so remarking, I appreciate that the applicant may well consider that what is in his best interests is for him to say and not for me. It is also, however, in the best interests of society that a pointless appeal shall not further take up the time of this Court which has many litigants knocking at its doors with appeals of merit. PROPOSED DISPOSITION [19] Ms. Baldwin has met the first three Davies criteria. The only outstanding issue is merit. This is not a case where I should weigh in on whether an application to extend time to file an appeal record can be dismissed solely for want of merit. In the unusual circumstances of this case, I will grant the extension of time despite the fact that there is little merit to the appeal. The interests of justice so require, given that it was through no fault of Ms. Baldwin that she was unable to comply with the time limit. [20] Ms. Baldwin has until February 3, 2012, to file and serve her appeal record. (discussion with appellant) “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Gichuru v. Law Society of BC, 2012 BCCA 159 Date: 20120127 Docket: CA039613 Between: Mokua Gichuru Appellant (Petitioner) And Law Society of British Columbia and The BC Human Rights Tribunal Respondents (Respondents) Before: The Honourable Madam Justice Bennett (In Chambers) On appeal from: Supreme Court of British Columbia, December 12, 2011 ( Gichuru v. Law Society of British Columbia , Vancouver Registry S116065) Oral Reasons for Judgment Appellant appearing In Person Counsel for the Respondent, Law Society of British Columbia: G.B. Gomery, Q.C. Place and Date of Hearing: Vancouver, British Columbia January 27, 2012 Place and Date of Judgment: Vancouver, British Columbia January 27, 2012 [1] BENNETT J.A. : The applicant, Mr. Gichuru, seeks leave to appeal the order of a case planning conference judge, although Mr. Gichuru does not characterize the judge in this way for reasons I will explain in a moment. The order under appeal, pronounced by Mr. Justice Harris on December 12, 2011: 1. reduced the time set aside for the hearing from eight days to five days, 2. established a schedule for the delivery of the parties’ written materials in advance of the hearing, and 3. provided that another case planning conference will be held following the exchange of the materials to re-evaluate the estimate of five days required for hearing [2] The Law Society of British Columbia (the “Law Society”) opposes the application for leave to appeal. The BC Human Rights Tribunal (the “Tribunal”) did not appear and takes no position on the application. BACKGROUND FACTS AND PROCEEDINGS BELOW [3] Relatively little of the extensive factual and procedural background of the underlying action is material to this application. Mr. Gichuru has succinctly set out the relevant procedural history in his leave application materials. [4] In 2004, Mr. Gichuru filed a complaint alleging that the Law Society discriminated against him on the basis of mental disability or perceived mental disability, contrary to s. 14 of the Human Rights Code , R.S.B.C. 1996, c. 210. The Tribunal determined that Mr. Gichuru’s claim was well-founded, releasing separate reasons for liability and remedy on October 30, 2009 and July 15, 2011. Mr. Gichuru has petitioned for judicial review of the remedy decision. His amended petition discloses 18 grounds of review. [5] On September 19, 2011, Mr. Gichuru scheduled eight days for hearing of the petition between April 16 and April 25, 2012. On September 22, 2011, the Law Society filed an application to, among other things, reduce the length of hearing to three days. Mr. Justice Abrioux adjourned that aspect of the application to a case planning conference which was subsequently scheduled for December 12, 2011 at 11:30 a.m. No judge was available until 12:00 p.m., at which time Mr. Justice Harris heard the application. After hearing submissions first from the Law Society and then from Mr. Gichuru, the case planning conference judge made the order under appeal, fixing the length of hearing at five days, subject to re-evaluation closer to the hearing dates. [6] Mr. Gichuru points out that Mr. Justice Harris had only received the material just before the application, and he advised counsel and Mr. Gichuru that he had not had an opportunity to read the material. Therefore, Mr. Gichuru submits, Mr. Justice Harris was not a case planning conference judge in the true sense of the word as he had just become acquainted with the material. [7] Between December 14, 2011 and December 15, 2011, Mr. Gichuru and counsel for the Law Society exchanged emails in which Mr. Gichuru expressed his desire to adjourn the April hearing dates generally on account of his health problems. The Law Society consented to an adjournment to a fixed date in October 2012, and Mr. Gichuru booked dates in October 2012. Mr. Gichuru mentioned the possibility that continued health problems might necessitate the need for further adjournment past October 2012; counsel for the Law Society responded that his client would be opposed to further adjournments. ERRORS ALLEGED [8] Mr. Gichuru argues that the case planning conference judge did not have jurisdiction to decide the application before him as it was supported by affidavit evidence. He relies on Rule 5-3(2)(a) of the Supreme Court Civil Rules , BC Reg 168/2009 [the Rules ] for this proposition. [9] Mr. Gichuru further argues that the case planning conference judge erred in considering neither affidavit material he submitted nor his written response to the Law Society’s application. He had filed his materials for the conference with Abrioux J., and he discovered partway through the conference with Harris J. that the Law Society had not re-filed his materials. [10] Mr. Gichuru also submits that a breach of the principles of natural justice ensued from the abbreviation of time he was given to make oral submissions. He says that, prior to the conference, he confirmed with counsel for the Law Society their joint time estimate was one hour for the application. At the beginning of the Law Society’s submissions, Harris J. asked whether the application might be heard in 30 minutes, and counsel for the Law Society agreed that it could. When Mr. Gichuru began his submissions, he was instructed to condense them and focus on the essential points. As a result of this and of interjections from the case planning conference judge, Mr. Gichuru says his submissions were disjointed and scattered. [11] He also submits that the applicable legal test and upon whom the burden rests to satisfy that test, in the context of an application to reduce time for the hearing of a petition, are important questions requiring consideration of this Court. [12] Mr. Gichuru argues that the term of Harris J.’s order providing for reassessment of the five-day time estimate unfairly places the onus on him to prove that five days will be insufficient to hear the petition. Furthermore, because the reassessment case planning conference is to take place less than four weeks before the scheduled hearing dates, the parties will incur delay in booking any additional hearing days that might be ordered because the court requires months of advance notice to book lengthy hearing dates. This delay will be prejudicial to Mr. Gichuru’s health problems, which take the form of insomnia, fatigue, and concentration issues. These are exacerbated by his belief that the respondents are trying to avoid a hearing of his petition for judicial review on its merits. [13] Mr. Gichuru also states there was an inadequate evidentiary foundation for the order under appeal in the absence of the record of proceedings before the Tribunal and the latest amendments to the pleadings. LEGAL TEST – LEAVE TO APPEAL [14] Rule 5-3(1)(q) gives a case planning conference judge discretion to make the order under appeal. Section 7(1)(b) of the Court of Appeal Act , R.S.B.C. 1996, c. 77 (the “ Act ”) renders this order interlocutory, and leave to appeal is required by s. 7(2)(a) of the Act . [15] In Barker v. Hayes , 2007 BCCA 51 (Chambers), Mr. Justice Smith stated at para. 14 that the purpose of requiring leave to appeal is “to weed out cases that do not warrant the time and attention of the Court” (see also Johal v. Virdi , 2011 BCCA 412 (Chambers) at para. 5). [16] The onus is on the applicant to satisfy the following four criteria: 1. the point on appeal is of significance to the practice; 2. the point on appeal is of significance to the action itself; 3. the appeal is prima facie meritorious and not frivolous; and 4. the appeal will not unduly hinder the progress of the action. (See Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment Corp. (1988), 19 C.P.C. (3d) 396 (C.A. Chambers); Goldman, Sachs & Co. v. Sessions , 2000 BCCA 326 (Chambers); Smith v. Global Plastics , 2001 BCCA 152 (Chambers); Hanlon v. Nanaimo (Regional District) , 2007 BCCA 538 (Chambers); Vancouver (City) v. Zhang , 2007 BCCA 280 (Chambers); Right Business Ltd. v. Affluent Public Ltd. , 2011 BCCA 496 (Chambers), Johal v. Virdi , 2011 BCCA 412 (Chambers).`) [17] In V.F. v. E.B. , 2011 BCCA 238 (Chambers), the chambers judge noted that leave to appeal is much less readily granted from discretionary orders: [22]      Leave to appeal will rarely be granted from discretionary orders: Silver Standard Resources Inc. v. Joint Stock Co. Geolog , [1998] B.C.J. No. 2298 (C.A.), per Rowles J.A. (in chambers), quoting McLachlin J.A. (as she then was) in British Columbia Teachers’ Federation v. British Columbia (Attorney General) (1986), 4 B.C.L.R. (2d) 8 (C.A.) at 11: Generally speaking, barring error in the decision below, a justice will be reluctant to grant leave where the decision constitutes the exercise of a discretion conferred on the chambers judge. The party seeking leave to appeal bears the onus of establishing that the conditions for leave have been met. [23]      Leave to appeal a discretionary order will only be granted where the order is clearly wrong or serious injustice will occur, or where discretion was not exercised judiciously or was exercised on a wrong principle: Strata Plan LMS 2019 v. Green , 2001 BCCA 286, 152 B.C.A.C. 174, per Proudfoot J.A. (in chambers): [6] ... This court is slow to grant leave from a discretionary order unless the order is clearly wrong or a serious injustice will occur: Watson v. Imperial Financial Services Ltd. (1992), 65 B.C.L.R. (2d) 281 (C.A. [in chambers]). [18] The onus on a leave applicant is even heavier when the judgment he or she seeks to appeal arises from case management ( Robak Industries Ltd. v. Gardner , 2006 BCCA 395 (Chambers) at paras. 11-12; Bronson v. Hewitt , 2008 BCCA 46 (Chambers) at para. 8; Luu v. Wang , 2009 BCCA 414 (Chambers) at para. 17). [19] However, there are, of course, cases where leave to appeal has been granted from case management orders. Although this Court is less likely to grant leave, this does not mean leave is never granted. i         Significance to the practice [20] This element requires consideration of whether the practice could use clarification or instruction on the point on appeal or whether, by contrast, it is well-settled. Orders that are very specific to the action will not generally suffice. ( Re Canadian Petcetera Limited Partnership , 2009 BCCA 255 (Chambers); Lougheed v. Wilson , 2009 BCCA 399 (Chambers); Gulamani v. Chandra , 2009 BCCA 206 (Chambers).) ii         Importance of the appeal to the parties [21] While the significance of the appeal to the proposed parties is a consideration (see West Bay SonShip Yachts Ltd. (Re) , 2007 BCCA 419 (Chambers) at para. 12), a point significant to a party but not of significance in the action might not satisfy this criterion ( Columbia National Investments Ltd. v. Abbotsford (City) , 2007 BCCA 368 (Chambers) at para. 24). iii        Merits of the proposed appeal [22] An arguable case with some prospect of success will satisfy this branch. A vexatious, frivolous, or unnecessary case or one with no reasonable chance of success will not meet the requisite threshold under this branch ( Teck Cominco Metals Ltd. v. British Columbia , 2009 BCCA 3 (Chambers) at paras. 19-20). iv        Undue hindrance of the action [23] Under this branch, a chambers judge might consider whether an appeal could interfere with upcoming trial dates, settlement negotiations, or time-sensitive aspects of the litigation ( Smith v. Global Plastics Ltd. , 2001 BCCA 152 (Chambers)). PROPOSED DISPOSITION [24] In my opinion, the application fails on every branch of the test for leave to appeal. None of the errors Mr. Gichuru propounds raises a point of significance to the practice. All of these issues are well-settled. As I stated earlier, Rule 5- 3(1)(q) gives the case planning conference judge jurisdiction to make the order he did, and it is trite to say that justices of the Supreme Court have a broad discretion to regulate practice and procedure in their own court. [25] I accept that the grounds of complaint Mr. Gichuru raises are of significance to him, but they are of significance neither to the other parties nor to the action itself. If leave were granted, little would turn on whether the appeal is allowed or dismissed. [26] The proposed appeal is bound to fail. The jurisprudence of this Court clearly indicates that Mr. Gichuru faces a very heavy burden in showing that the decision under appeal perpetuates injustice, or is clearly wrong or based upon an error in principle. Given that Rule 5-3(1)(q) specifically confers jurisdiction on the case planning conference judge to make the impugned order, no division of this Court would find that he exceeded his jurisdiction in doing so. Mr. Gichuru’s argument that Harris J. erred in failing to consider his affidavit material is belied by his other submission that Rule 5-3(2)(a) prohibits a case planning conference judge from determining an application supported by affidavit evidence. Mr. Gichuru’s contention that Harris J. offended natural justice in limiting the submissions on the application to 30 minutes instead of one hour is without merit. It is commonplace for a judge hearing submissions to limit the time parties have to make them; in these particular circumstances, Rule 5-3(1)(n) conferred jurisdiction upon Harris J. to determine the appropriate amount of time for submissions on the application. Mr. Gichuru submits that this Court should formulate a test for applications to reduce the length of time set for trial, but to do so would be inimical to the discretion underlying these kinds of decisions. As long as the case planning conference judge exercises his or her discretion judiciously and not arbitrarily, and no clear wrong or serious injustice results, this Court should not and will not interfere. [27] As mentioned above, Mr. Gichuru contends that any further adjournment past October 2012 necessary to schedule additional hearing dates the parties might obtain would have adverse consequences for his health. This is the converse position Mr. Gichuru takes in his December 2011 emails advising the Law Society that his ill health might necessitate adjournments past October 2012. I do not give weight to this aspect of Mr. Gichuru’s argument. I do not think a division of this Court would see the matter differently. [28] In short, Mr. Gichuru cannot establish any reasonable possibility that a division of this Court will accede to any of his arguments. [29] In addition, Harris J.’s order requires the parties to hold another case planning conference to reassess the five-day time estimate after exchanging written materials. If Mr. Gichuru’s present concerns are still material at that time, he can raise them then. Any relief the proposed appeal could offer Mr. Gichuru is already available to him in the trial court. Accordingly, the proposed appeal would unduly delay the progress of the underlying petition for judicial review. The respondents seem eager to get on with the underlying petition. The prospect that Mr. Gichuru’s health could worsen also favours a speedy resolution. [30] The application is dismissed. [31] The costs will be in the cause. “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Harding, 2012 BCCA 52 Date: 20120127 Docket: CA034706 Between: Regina Respondent And Mark Anthony Harding Appellant Before: The Honourable Mr. Justice Lowry The Honourable Madam Justice Neilson The Honourable Mr. Justice Groberman On appeal from: Supreme Court of British Columbia, July 26, 2006 ( R. v. Harding et al , 2006 BCSC 1309, Powell River Registry No. 13359-4) Oral Reasons for Judgment Counsel for the Appellant: M.G. Scott Counsel for the (Crown) Respondent: A. Budlovsky, Q.C. Place and Date of Hearing: Vancouver, British Columbia January 27, 2012 Place and Date of Judgment: Vancouver, British Columbia January 27, 2012 [1] LOWRY J.A. : The appellant was convicted of second degree murder before Mr. Justice Barrow: 2006 BCSC 1309. He has been sentenced to life in prison and, for reasons indexed as 2006 BCSC 1971, will not be eligible for parole for 12 years. He seeks leave and if granted appeals his ineligibility for parole contending that to be fit it should be 10 years. [2] James Moss was beaten to death by the appellant late at night in his rundown home in a somewhat remote location. He was 52 years of age, living on a disability pension, and was not in good health. He was alone. The appellant, who was in his early twenties, and another young man, Richard Peers, went there to get some marihuana, which Moss was selling to supplement his income. A confrontation developed between Moss and the appellant which became physical. Moss struck the appellant with the butt end of a shotgun on his head perhaps twice. The appellant then overpowered Moss. He proceeded to beat Moss’s head and virtually every part of his body severely and ultimately left him to die. Moss was not found for several days. When he was, his face was unrecognizable. [3] The appellant and Peers were tried together. The appellant was convicted of murder with his defence of self-defence being rejected. Peers was convicted of manslaughter. [4] At the sentence hearing, with respect to the appellant the Crown contended for a period of ineligibility at what was said to be the upper end of the range: 12 to 15 years. The defence conceded there were some features of the offence that would warrant an increase in the parole ineligibility period but said any increase should be minimal: 11 or 12 years. [5] After reviewing the circumstances and considering the authority to which he was referred, the judge concluded as follows: [44]      I am satisfied, based on the criteria set out in s. 745 and the authorities noted, that it is appropriate to increase the period of parole ineligibility. In particular, Mr. Harding's criminal record; the circumstances of the killing, that is, a prolonged and vicious beating; and the fact that it occurred in Mr. Moss’s own home are matters which warrant this conclusion. I am not persuaded, however, that a period of parole ineligibility at the upper end of the range identified by the Crown is appropriate. I reach that conclusion based on the distinctions between the cases to which counsel have referred and the circumstances of this case. I conclude that a period of parole ineligibility of 12 years is appropriate, and that is the period I impose. [6] Thus, the judge identified three aspects of Moss’s murder that warranted increasing the period of ineligibility, although he did not accept it ought to be increased to the extent the Crown sought. The first was the appellant’s criminal record, the second was the way he had killed Moss, and the third was the fact Moss had been killed in the privacy of his own home. The appellant’s criminal record is extensive. The judge summarized it as follows: [20]      Mr. Harding has a criminal record which, while lengthy, contains no convictions for violence. As a youth, he was convicted of break and enter in November 1998; possession of stolen property and drugs in May of 2003; and possession of stolen property in August of 2000. For all of these offences, he received periods of probation. In May of 2003, while still a youth, he was convicted of break and enter. He was sentenced to four months of open custody to be followed by two years’ probation. As an adult, he was convicted of break and enter in January 2002 and sentenced to 30 days in jail. In April of that year, he was convicted of break and enter, possession of stolen property, and failing to stop for a police officer. He was given a 12-month conditional sentence. Finally, in December of 2003, he was convicted of dangerous driving causing death. The deceased in that matter was a passenger in a stolen vehicle that Mr. Harding was operating and was a good friend of Mr. Harding's. For that offence, Mr. Harding was sentenced to a year in jail. He was released from jail in August 2004. From then until his arrest on the offence before the court, he supported himself largely through selling cocaine and other drugs. [7] The question now is whether the sentence imposed with the increased period of parole ineligibility is demonstrably unfit: R. v. Shropshire , [1995] 4 S.C.R. 227 at 46. [8] The appellant contends the judge erred in principle because he based his determination of the ineligibility period on three factual errors, although none of them are reflected in the three aspects of the murder the judge identified as warranting the 12 year period. The errors are said to have led the judge to take a more aggravated view of the appellant’s culpability than was warranted and the deference to be accorded to the judge’s view of what he considered to be a fit sentence is not what it otherwise would have been: R. v. Johnson (1996), 112 C.C.C. (3d) 225, paras. 36 – 37). [9] The appellant first says he was sentenced on the basis he went to Moss’s house to rob him, using “overwhelming” violence if necessary when he should have been sentenced as someone who went there to buy marihuana with no intention to commit robbery. This appears to be so, although the judge did not say anything about using overwhelming violence. The point is the judge concluded the appellant and Peers planned to rob Moss, employing violence if necessary, but on their conviction appeals this Court found there was no evidence to support the judge’s finding of any plan to rob Moss: R. v. Peers , 2009 BCCA 74, and R. v. Harding , 2011 BCCA 282. Peers’s conviction for manslaughter was for that reason set aside. The appellant says he should have been sentenced on the basis he and Peers had gone to Moss’s home to buy marihuana, not to rob Moss. [10] The appellant next says he was sentenced on the basis he “attacked” Moss who, in resisting him, obtained a shotgun. With respect to Moss having struck the appellant with the butt end of the gun, the judge said he was satisfied that occurred at “sometime during the altercation” but it was not clear when or under what circumstances. He said he was “not prepared to assume those blows or that blow had started the altercation”. He said “I am satisfied that [the blows] were delivered by Mr. Moss in an unsuccessful effort to defend himself”. The appellant says this is at odds with what the judge said in convicting him when the judge stated he was satisfied Moss struck the appellant with the shotgun and that “may have been the event which precipitated the altercation that followed”. Later he said “I have not overlooked the fact that Harding was assaulted by Moss”. The appellant says he should have been sentenced on the basis that he was attacked by a shotgun-wielding Moss such that he was to a point entitled to defend himself. [11] Finally the appellant says he was sentenced as someone who denied responsibility for his actions maintaining he had never intended to kill Moss, although in open court he had apologized to the victim’s family and the judge accepted his apology as genuine. What the appellant maintained was taken from a pre-sentence report that recorded the appellant as saying he never intended to kill anybody and might be guilty of manslaughter at worst; he tried to knock Moss out; he wanted to get away; he did not go to Moss’s home intending what happened. He says he should have been sentenced as someone who had taken responsibility for having caused Moss’s death. [12] I consider that, in view of this Court’s conclusions, the judge’s statement to the effect the appellant and Peers had formed the intention to go to Moss’s home and employ violence as necessary to rob him had no place in the reasons for the sentence imposed on the appellant which the judge gave. It is, however, significant that the appellant and Peers were sentenced together and, while planning to employ violence to rob Moss was essential to Peers’s conviction for manslaughter, the judge did not suggest it was in any way the basis of the appellant’s conviction for murder. [13] While there may be some inconsistency in what the judge said with respect to the appellant being struck with the shotgun initiating the altercation, I do not consider the judge can be said to have sentenced the appellant on the basis that he attacked Moss, at least not before Moss had struck the appellant with the butt of the shotgun. It is not clear what it was that prompted Moss to retrieve the shotgun and strike the appellant as he did, but it cannot be said that he committed an unprovoked attack on the appellant. He was after all faced with two uninvited young men who had come to his rural home where he was alone late at night looking for marihuana. [14] Further, I see little in the contention the judge was wrong in the view he took of the appellant accepting the culpability of his actions. The appellant was convicted of either meaning to kill Moss or meaning to cause him harm that he knew would likely cause his death and was reckless as to whether death ensued ( Criminal Code s. 229). The judge did not find it necessary to say which. The appellant’s culpability is essentially the same in any event: R. v. Nygaard, [1989] 2 S.C.R. 1074 at para. 58. The judge properly took the view that on what was recorded in the pre-sentence report the appellant did not accept the full measure of what he had done in murdering Moss despite the apology he expressed. [15] The judge undertook a comprehensive review of the authorities. Allowing for his error in finding the appellant and Peers had planned to rob Moss using such force as necessary, I do not consider that, on the authorities he reviewed, his increasing the period of parole eligibility to 12 years can be said to render the appellant’s sentence for murdering Moss as he did demonstrably unfit. The judge quoted the following from R. v. Cerra, 2004 BCCA 594 at para. 17: I have discerned a pattern from decisions of this Court suggesting, in broad terms, the following: parole eligibility greater than 10 years is justified when there is some particularly aggravating feature; for a penalty of greater than 15 years, egregious circumstances of a higher order of moral culpability are present. [16] The judge identified three factors which he regarded as particularly aggravating features quite apart from any plan to rob Moss. Perhaps the most significant was the way the appellant killed Moss. He suffered a prolonged vicious beating and was then left to die. The judge imposed a sentence that was not inconsistent with what the defence appeared to accept could be warranted. [17] I would grant leave but dismiss the appeal. [18] NEILSON J.A. : I agree. [19] GROBERMAN J.A. : I agree. [20] LOWRY J.A. : The appeal is dismissed. “The Honourable Mr. Justice Lowry”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Shebib v. Victoria (City), 2012 BCCA 42 Date: 20120127 Docket: CA038771 Between: David Michael Shebib Appellant (Appellant) And The Corporation of the City of Victoria Respondent (Respondent) Corrected Judgment: The text of the judgment was corrected at paragraphs 14 and 15 where changes were made on May 14, 2012 Before: The Honourable Mr. Justice Chiasson (In Chambers) On appeal from:  Supreme Court of British Columbia, November 30, 2010 ( Johnston v. Victoria (City) , 2010 BCSC 1707, Victoria Docket 145835-1) Appellant: In person Counsel for the Respondent: K. Morley Place and Date of Hearing: Victoria, British Columbia January 9, 2012 Place and Date of Judgment: Vancouver, British Columbia January 27, 2012 Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] This case illustrates the tension that often develops among the aspirations of self-represented parties, the interests of parties who are represented and the responsibilities of the court in overseeing the orderly administration of litigation. Background [2] Mr. Shebib and Mr. Johnston were convicted in Provincial Court of violating a by-law of the respondent City of Victoria by erecting temporary daytime shelters on municipal property ( R. v. Johnston and Shebib (12 February 2009), Victoria 145835-1).  They appealed to the Supreme Court.  Their appeal was dismissed on November 30, 2010 ( Johnston v. Victoria (City) , 2010 BCSC 1707). [3] Messrs. Johnston and Shebib separately applied for leave to appeal to this Court and, because their applications were out of time, each applied to extend the time. [4] Mr. Johnston’s appeal progressed and was dismissed by this Court on October 18, 2011 ( Johnston v. Victoria (City) , 2011 BCCA 400). [5] Mr. Shebib’s appeal did not progress.  On September 12, 2011, he appeared before Mr. Justice Frankel pursuant to notice given by the Registrar of this Court, in accordance with Rule 13(3) of the Criminal Appeal Rules, 1986 , B.C. Reg. 145/86, advising Mr. Shebib that his appeal might be referred to a division of this Court for possible dismissal.  At that time Mr. Shebib expressed his concern with the proceedings in the Supreme Court.  In particular, he was and remains concerned with the absence of a trial de novo in that Court. [6] Justice Frankel explained that Mr. Shebib first had to deal with the requirement that he obtain an extension of time and then had to address his application for leave to appeal because his proposed appeal was from the dismissal of an appeal from a Provincial Court summary conviction proceeding.  Nothing had been filed by way of evidence or argument to support either of Mr. Shebib’s applications.  On September 12, 2011, the decision of this Court on the Johnston appeal was pending. [7] Justice Frankel ordered that Mr. Shebib’s application for an extension of time be heard on January 9, 2012, and that he apply for leave to appeal on that date if this Court were to allow Mr. Johnston’s appeal before then. [8] Mr. Shebib filed no material in advance of January 9, 2012.  At the chambers hearing he gave me a written submission that essentially set out his concerns with the proceedings in the Supreme Court, that is, the same information provided to Frankel J.A., which he had identified as not helpful at this stage of the proceedings.  Mr. Shebib also gave me copies of three orders made by the Supreme Court.  This meant that I had nothing other than this material and his applications for leave to appeal and to extend the time to do so. [9] Counsel for the respondent proposed that Mr. Shebib’s applications should be dismissed. [10] Subsequent to the hearing, Mr. Shebib filed two transcripts of hearings before the Supreme Court.  I directed the Registry to advise and make copies available to the respondent. Discussion [11] Court rules, procedures and provisions governing appeals are designed to achieve an effective appellate process.  Their objective is to facilitate, not obstruct, the achievement of a correct legal result.  Appellate procedural rules protect and promote the interests of parties, including Mr. Shebib.  When rules and procedures are not followed, it is difficult for this Court to administer appeals effectively.  Parties who do not follow the appropriate rules and procedures often obscure their legitimate positions, making it hard for this Court to address their concerns.  Failure to comply with the appropriate rules and procedures also may unfairly compound the difficulties of the opposing party’s task of presenting its position and resisting the position of the defaulting party. [12] At the hearing on January 9, 2012, I had three choices for the disposition of Mr. Shebib’s applications: dismiss them because he had not filed material, contrary to the order of Frankel J.A.; adjourn the matter; deal with the applications based on the material I had.  I discussed his position with Mr. Shebib.  In my view, the interests of justice are best served by addressing Mr. Shebib’s applications on the available material. [13] An appeal lies to this Court, with leave, from a decision of a Supreme Court judge on appeal from a decision of the Provincial Court, but only on a point of law ( Criminal Code, R.S.C., 1985, c. C-46, s. 839).  The application for leave to appeal must be filed within 30 days of the pronouncement of the Supreme Court decision, as required by s. 14(1) of the Court of Appeal Act , R.S.B.C. 1996, c. 77.  Mr. Shebib filed his application for leave to appeal and his application to extend time on January 31, 2011.  The appeal decision of Mr. Justice Bracken was pronounced on November 30, 2010.  Mr. Shebib requires an order extending the time for applying for leave to appeal. [14] The test for granting an extension of time was stated in R. v. Smith (1990), 11 W.C.B (2d) 445 (C.A.) at paras. 4 and 5, by Mr. Justice Macfarlane, for the Court: [4]        The appellant in order to obtain an extension of time must satisfy certain rules. The governing principle on which this Court acts on applications to extend time for doing an act is that the applicant must establish special circumstances. [5]        In considering whether there are special circumstances this Court has always taken into account such factors as whether: (1) the applicant had a bona fide intention to appeal before the expiration date of the appeal date; (2) informed the respondent either expressly or impliedly of his intention; (3) the respondent would not be unduly prejudiced by an extension of time; (4) there is merit in the appeal in the sense that there is a reasonably arguable ground; (5) it is in the interest of justice, that is the interest of the parties, that an extension be granted. How much weight will be given to any of these factors in determining whether there are special circumstances will depend on the circumstances of each case. [15] In this case, the first three factors are of less significance than the fourth, the merits of the proposed appeal, which, of course, is key to whether leave to appeal should be granted.  Considering all of the circumstances of the proposed appeal, I conclude that it is not in the interests of justice that an extension be granted. [16] The test for leave was stated succinctly in R. v. Winfield, 2009 YKCA 9, 273 B.C.A.C. 152 at para. 13: To obtain leave to appeal from the decision of a summary conviction appeal court, the applicant must establish that (a) the ground of appeal involves a question of law alone, (b) the issue is one of importance, and (c) there is sufficient merit in the proposed appeal that it has a reasonable possibility of success.  The overriding consideration in the exercise of the discretion to grant or refuse leave is the interests of justice: R. v. Cai , 2008 BCCA 332, 258 B.C.A.C. 235 at para. 26 (Chambers); R. v. Gill , 2008 BCCA 259 at para. 3 (Chambers). Leave is to be granted sparingly ( R. v. Gaudaur , 2010 BCCA 157, 286 B.C.A.C. 41 at para. 3). [17] I question whether Mr. Shebib’s ground of appeal involves a question of law alone.  He may be attacking the exercise of discretion of the appeal judge or he may be claiming a denial of natural justice.  Depending on the characterization of the ground of appeal, it could be a question of importance.  I need not resolve these issues on the view I have of this case. [18] I have reviewed the three-page submission that Mr. Shebib presented on January 9, 2012.  It is apparent that his principal concern is that he was not afforded a trial de novo .  The court is empowered to order such a proceeding under s. 822(4) of the Criminal Code , which states: Despite subsections (1) to (3), if an appeal is taken under section 813 and because of the condition of the record of the trial in the summary conviction court or for any other reason, the appeal court, on application of the defendant, the informant, the Attorney General or the Attorney General’s agent, is of the opinion that the interests of justice would be better served by hearing and determining the appeal by holding a trial de novo , the appeal court may order that the appeal shall be heard by way of trial de novo in accordance with any rules that may be made under section 482 or 482.1, and for that purpose the provisions of sections 793 to 809 apply, with any modifications that the circumstances require. [19] A trial de novo may consist of repeating the oral evidence adduced at trial or of a consideration of the evidentiary record in the Provincial Court as supplemented by additional evidence (s. 822(5)). [20] Mr. Shebib points to three orders of the Supreme Court: 1.       May 27, 2009 – Madam Justice Gerow granted an application “for a trial de novo … as evidence relating to the availability of daytime shelters may be relevant to this proceeding”; 2.       November 25, 2009 – Mr. Justice Punnett ordered that “[t]he action can proceed by way of an appeal of the decision of the Honourable Judge Blake and evidence related to the availability of daytime shelter in the City of Vicotria can proceed by way of Affidavits”; 3.       July 7, 2010 – Mr. Justice Metzger adjourned Mr. Shebib’s application for a trial de novo “to the presiding Judge at the appeal hearing” which then was scheduled for July 19, 2010. [21] In all, there appear to have been eight interlocutory proceedings before the Supreme Court appeal was heard.  Mr. Shebib refers to transcripts of proceedings on October 14, 2009, which adjourned the hearing of the appeal and to the transcript of the November 25, 2009 proceedings before Punnett J.  I have reviewed these transcripts.  They suggest the source of some possible confusion by Mr. Shebib because counsel for the respondent appears to have suggested that there was no issue concerning the availability of daytime shelter in Victoria and because there was an apparent change to the mode of proceeding on the appeal.  That said, I see no substantive difference between the orders of Gerow and Punnett JJ. [22] Although there was some discussion before Punnett J. about not proceeding with a trial de novo , the substantive effect of his order did not dispense with that mode of trial.  It merely specified how evidence of daytime shelter would be adduced, which was the basis on which Gerow J. had ordered a trial de novo . [23] Regardless of the comments of counsel, it always was clear that the factual issue which was to be addressed was the availability of daytime shelter.  I read the order of Metzger J. as leaving to the appeal judge the task of clarifying any misunderstanding Mr. Shebib may have had about the nature of the proceeding. [24] Evidence as to the availability of daytime shelter in Victoria was what courts characterize as “fresh evidence”, that is, evidence that existed at the time the original proceeding took place, but which was not placed before the tribunal.  There are special rules governing the admissibility of such evidence, which is not received readily.  As noted, s. 822 of the Criminal Code permits the court to order a trial de novo .  Pursuant to s. 822(5), the evidence adduced at the trial may be read at the trial de novo .  That is, the trial de novo may consist of the record of the original trial proceedings supplemented by fresh evidence.  This possibility has caused some courts to conclude that trials de novo should be ordered sparingly. [25] Judicial caution in ordering trials de novo derives from two considerations: one, the fact that prior to the enactment of s. 822(4) in 1976, appeals from summary conviction matters to a superior court was always by way of trial de novo , which indicates that trials de novo now are the exception rather than the rule; two, fresh evidence may be admitted on a trial de novo without the need to meet the usual criteria for such admission.  In R. v. Faulkner (1977), 37 C.C.C. (2d) 26 (N.S.Co.Ct.); R. v. Leung, [1998] 2 W.W.R. 178, 54 Alta. L.R. (3d) 1; and Toralta Construction (1988) Ltd. v. Hankewich Homes Ltd. (1992), 130 A.R. 156 (Q.B.) the courts have taken a quite restrictive approach. [26] These concerns appear not to have held sway in this Province. This Court in R. v. Winters , [1981] 4 W.W.R. 128, 27 B.C.L.R. 385 held that a reviewing court has a broad discretion whether to order a trial de novo . [27] In this case, it does not appear that the evidence concerning daytime shelter in Victoria was considered as fresh evidence.  The absence of such evidence at trial was the basis on which a trial de novo was ordered and on which it was ordered that the evidence could be adduced by affidavit.  No appeal was taken from either of these orders, but it is not clear on what basis it was considered appropriate to proceed by way of trial de novo in this case, that is, to allow the parties to adduce evidence on the appeal that could have been, but which was not, adduced at the Provincial Court trial. [28] It may be that Mr. Shebib was confused by the orders of Gerow and Punnett JJ., but legally and practically these orders gave him what he wanted: the opportunity to adduce evidence concerning the availability of daytime shelter in Victoria.  The respondent adduced evidence on this issue.  Mr. Shebib decided not to do so. [29] In effect, a trial de novo took place.  In the Johnston appeal, this Court confirmed that the Supreme Court appeal was a trial de novo .  The respondent adduced evidence of the availability of daytime shelter in Victoria.  Messrs. Shebib and Johnston appear not to have done so, although in para. 26, Bracken J. refers to a Mayor’s Task Force Report and states that “[a] copy of that report is attached to Mr. Johnston’s affidavit in this matter”.  No such affidavit is found in the Supreme Court appeal file or the record filed in this Court on the Johnston appeal.  In any event, it is common ground that Mr. Shebib did not adduce evidence on the appeal. [30] Mr. Shebib advised me that he decided to rely on the evidence adduced in Victoria (City) v. Adams, 2008 BCSC 1363, 299 D.L.R. (4th) 193, aff’d 2009 BCCA 563, 313 D.L.R. (4th) 29, in which the respondent’s by-law was struck insofar as it prohibited temporary nighttime shelters.  An examination of the reasons of Bracken J. confirms that Messrs. Shebib and Johnston took this approach and, as noted, also relied on the Mayor’s Task Force Report, which was relied on in Adams , to establish the absence of sufficient daytime shelter in Victoria and to discredit the evidence adduced by the respondent (paras. 13, 14, 26, 31 and 32).  Mr. Shebib now questions the evidence and submissions of the respondent and wants to introduce his own evidence concerning the availability of daytime shelter in Victoria. [31] Mr. Shebib’s appeal seeks to overturn the decision of the Supreme Court to obtain what he was given: a trial de novo .  His objective is to adduce evidence that he could have adduced before the Supreme Court and before the Provincial Court. [32] This Court is a court of error.  That is, it reviews decision of other tribunals to determine whether they have erred.  If they have not, this Court does not interfere.  It particularly does not do so where the alleged error involves a matter of discretion, such as determining the mode of conducting a proceeding, unless the decision is clearly wrong or serious injustice will occur or where discretion was not exercised judiciously or was exercised on a wrong principle: Strata Plan LMS 2019 v. Green , 2001 BCCA 286 , 152 B.C.A.C. 174, per Proudfoot J.A. (in Chambers) and Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4th) 203, leave to appeal ref’d [2009] S.C.C.A. No. 364, at para. 94). No such error has been shown in this case. [33] In addition to concerns about allowing parties to prolong litigation by waiting for a proceeding’s outcome to determine the extent to which they want to participate in it, to allow this matter to continue, to effectively start afresh, would be manifestly unfair to the respondent.  It may be that Mr. Shebib disagrees with the approach the respondent takes to people in his circumstances, but, in this Court, the clash is between the parties’ legal rights.  These rights must be determined in accordance with the law.  It is as important to Mr. Shebib as it is to the respondent that this be so.  Equally important is the ability of each protagonist to pursue his or its position in accordance with the rules and procedures of this and other courts.  Causing chaos in the processes of the court and leaving the court unclear as to positions being advanced does not serve the best interests of any litigant. [34] In my view, there is little likelihood that a division of this Court would overturn the decision of the Supreme Court appeal judge to allow Mr. Shebib to now introduce evidence he could have, but chose not to, adduce at the hearing of his appeal. [35] An additional difficulty faced by Mr. Shebib emerges from this Court’s decision in the Johnston appeal.  In part, he argues that Bracken J. misapplied the test for justification under s. 1 of the Charter of Rights and Freedoms, Constitution Act, 1982 as articulated in R. v. Oakes, [1986] 1 S.C.R. 103.  In Johnston , this Court made it clear that justification was not engaged because a breach of s. 7 of the Charter had not been established.  It was not established because the evidence did not establish a need for the erection of temporary daytime shelters on municipal land, that is, that there was an insufficiency of daytime shelter in Victoria.  The burden of doing so was on Mr. Shebib. [36] Mr. Shebib’s application to extend the time to bring an application for leave to appeal is dismissed.  It follows that the application for leave to appeal cannot proceed, which in any event, in my view, would have no prospect of success. “The Honourable Mr. Justice Chiasson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Stark v. Board of School Trustees of School District No. 39 (Vancouver), 2012 BCCA 41 Date: 20120127 Docket: CA033181 Between: Robert Allen Stark Appellant (Petitioner) And Board of School Trustees of the School District No. 39 Vancouver, International Union of Operating Engineers Local 963 and James E. Dorsey, Q.C. Respondents (Defendants) Before: The Honourable Mr. Justice Chiasson (In Chambers) On appeal from:  Supreme Court of British Columbia, June 23, 2005 ( Stark v. Board of School Trustees of School District No. 39 (Vancouver) , 2005 BCSC 931, Vancouver No. L033177) Appellant: In person Counsel for the Respondent, School Board: R.P. Fairweather Place and Date of Hearing: Vancouver, British Columbia January 13, 2012 Place and Date of Judgment: Vancouver, British Columbia January 27, 2012 Reasons for Judgment of the Honourable Mr. Justice Chiasson : Introduction [1] This appeal illustrates the tension that often develops between the role of this Court and the focus of self-represented litigants on establishing a position that has been advanced and rejected in proceedings previous to an appeal.  Where it is feasible to do so, it is incumbent on this Court to communicate to litigants in practical terms why decisions adverse to their interests were made.  It is necessary for self-represented litigants to understand and appreciate not only the role of this Court, but the processes available to address their interests. [2] Mr. Stark’s employment with the Vancouver School Board was terminated on July 19, 2002.  He considered and still considers the termination to have been improper.  He states that his quest has been and remains to have a fair hearing of his position. Background [3] On August 31, 2002, an arbitrator appointed pursuant to the provisions of the collective agreement that governed Mr. Stark’s relationship with his employer upheld his dismissal.  In February 2003, Mr. Stark sought a review by the Labour Relations Board of the arbitrator’s award under s. 99 of the Labour Relations Code , R.S.B.C. 1996, c. 244.  The Board dismissed Mr. Stark’s application and upheld his dismissal.  Pursuant to s. 141 of the Code , in April 2003 Mr. Stark sought leave for a reconsideration of the Board’s decision.  Leave was refused. [4] Mr. Stark then brought judicial review proceedings in which he sought various forms of relief.  Madam Justice Ballance described the situation at para. 32 of her reasons dismissing the judicial review ( Stark v. Board of School Trustees of School District No. 39 (Vancouver) et al. , 2005 BCSC 931): In his Petition Mr. Stark asks that the Settlement Agreement, the June Award and the August Award be set aside and that the matter of his dismissal be referred back to the tribunal pursuant to the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241. He does not explicitly seek relief in relation to the three decisions of the Labour Board, however he criticizes them in the body of his Petition and throughout his written submissions. Recognizing that the Petition and accompanying written materials were drawn by a layperson, I think it reasonable to interpret the Petition as seeking review of the decisions of the Labour Board. Indeed, in their respective submissions, the Union, School Board and Labour Board proceeded on that footing as did Mr. Stark in his submissions. Accordingly, I consider the prudent course is to approach the Petition on the basis that it seeks judicial review of the Settlement Agreement, the two arbitration awards as well as the three decisions of the Labour Board. Justice Ballance dismissed the judicial review of the Board’s decisions on the basis they were not patently unreasonable. [5] Mr. Stark’s appeal to this Court raised two issues: first, whether the Supreme Court has the jurisdiction on judicial review to quash the award of an arbitrator appointed pursuant to the terms of a collective agreement; second, whether Ballance J. was correct in holding that the decisions of the Board were not patently unreasonable. [6] The judgment of this Court was short and dealt mainly with the jurisdictional issue.  Justice Ballance had considered the arbitration award and found it acceptable.  This Court held that there is no judicial review of a labour arbitrator’s award concurrent with Board review under s. 99 of the Code .  It also upheld the judge’s determination that the Board’s decisions were not patently unreasonable, stating that she was correct in reaching that conclusion.  Mr Stark’s appeal was dismissed ( Stark v. Vancouver School District No. 39 , 2006 BCCA 124). [7] Mr. Stark did not apply for leave to appeal to the Supreme Court of Canada from the dismissal of this appeal.  It was and remains his view that redress lies with this Court. [8] On October 27, 2011, Mr. Stark attempted to file a notice of motion, the operative portion of which I reproduce: 1.         That the Court of Appeal review the award of James E. Dorsey made the 31st of August, 2002, for errors of general law not included in section 99(1) of the Labour Relations Code. 2.         That the Appellant's Factum filed herein on November 18, 2005, be considered as the statement of arguments on the application. 3.         That the Respondent be granted 30 days to file a factum or argument in reply. 4.         That the Appellant be granted 15 days to file any rebuttal argument. The Appellant will rely upon the following rules or enactments: 1.         The Labour Relations Code, 1996, RSBC, c. 244, section, 100. 2.         The Law and Equity Act, 1996 RSBC, c. 253, sections, 4, 9, 10, 24, and 44. 3.         Court of Appeal Civil Rules, rule 33(1). The Registry refused to accept the application. [9] There followed a series of correspondences between Mr. Stark and representatives of this Court which culminated in the application before me.  The substance of the application is set out in a notice of motion filed December 20, 2011, which states in operative part: 1.         That under section 10 (2) (d) of the Act, the presiding justice extend any time constraints that are applicable and provided for in the Court of Appeal rules for the filing and service of this Notice of Motion and supporting affidavit so as to permit the application herein to proceed and be heard in its merits. 2.         That a justice of the Court of Appeal review the order or direction of the registrar of the Court of Appeal set out in the Registrar's letter of December 13, 2011, and, after reviewing said order, vary the order or direction by directing that the Registrar direct the court registry staff to accept for filing the Notice of Motion of the Appellant and his supporting affidavit , copies of which as appended to the affidavit of the Appellant sworn December 20, 2011, and filed herein and that the registrar set down a convenient date for the hearing of the Appellant's application before a justice. The Applicants will rely upon the following rules or enactments: 1.         Court of Appeal Civil Rules 35 (and 52 if necessary). 2.         Court of Appeal Act section 10 (3). 3.         The Law and Equity Act, 1996 RSBC, c. 253, sections, 4, 9, 10, 24, and 44. 4.         Court of Appeal Civil Rules, rule 33(1). 5.         The Labour Relations Code, 1996, RSBC, c. 244, section, 100. [10] The December 13, 2011 letter of the Registrar of this Court stated: I am in receipt of your letters of November 1, 2011 and December 7, 2011. With respect to both of these letters, there is nothing further to add to the comments you have already received from the Court of Appeal staff. As discussed in the letter from Timothy Outerbridge on 15 September 2011, the above appeal has been heard by a division of the Court and an order has been issued. This matter is concluded in the Court of Appeal. If you seek further remedies, I suggest that you contact a lawyer for further advice. The registry staff is not in a position to offer you legal advice. They are also not permitted to accept material that is not properly before the Court. A lawyer may advise you as to the merits and methods of any further litigation.   If you cannot afford a lawyer at this stage, then you may seek assistance from agencies such as the Access Pro Bono Society of British Columbia or the Canadian Bar Association, B.C. Branch, who can help you find a lawyer who might assist you for a reduced or no fee. You may call Access Pro Bono at 604-878-7400 or the Canadian Bar Association at 604-687-3221. Discussion [11] This application raises a number of issues, some legal and some practical.  I begin by addressing Mr. Stark’s understanding of what this Court said on his appeal. [12] In the hearing before me on January 13, 2012, Mr. Stark pointed to comments of Madam Justice Southin at para. 10 of her reasons for judgment, which he quotes as stating, “the result is that the record for this court is deficient” and “a deficient record is not a sound basis for this court to consider issues of law”.  He asserts that these comments show that through no fault of his own, he was denied his day in court.  This assertion is based on a misunderstanding of what this Court said. [13] I quote paras. 9 and 10 of Southin J.A.’s reasons: With respect, the learned judge should have put it to the petitioner below that if he wanted to seek Judicial Review of the decisions of the Labour Relations Board, he must first seek an amendment to his petition and should have refused to address the Labour Relations Board decisions unless and until the petition was amended. Her approach was kindly meant, but the result is that the record for this Court is deficient. A deficient record is not a sound basis for this Court to consider issues of law. [14] Placed in context, the comments of Southin J.A. were directed at the inclusion of the decisions of the Board in the judicial review proceedings before Ballance J.  Justice Southin considered the review procedure to have been flawed, but went on to state at para. 11 that, “[f]ortunately, this case is so simple that we are able to do so”, that is, able to consider the necessary issues.  This Court did go on to consider the judicial review of the Board’s decisions and upheld the decision of Ballance J.  The observations of Southin J.A. at para. 10 did not in any way deprive Mr. Stark of any aspect of his appeal hearing. [15] The jurisdictional aspect of this Court’s decision helps put Mr. Stark’s concerns into legal context.  There are two streams for the review of labour arbitration awards, set out respectively in ss. 99 and 100 of the Code . [16] The former section provides for the process that was followed in this case.  It allows the review of arbitral awards by the Board, with potential judicial review by the Supreme Court of the Board’s final decision ( Northstar Lumber v. United Steelworkers of America, Local No. 1-424, 2009 BCCA 173, 308 D.L.R. (4th) 22; United Steelworkers, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union, Local 2009 v. Auyeung , 2011 BCCA 527).  Section 100 provides for review by this Court “if the basis of the decision or award is a matter or issue of the general law not included in s. 99 (1)”. [17] In this case, Mr. Stark followed the process made available to him under s. 99.  His position has been considered by an arbitrator, twice by the Board, by the Supreme Court and by this Court.  By the scheme of the legislation and the mandate of the courts, the scope of review narrows as the process progresses.  This is because the Legislature has established the Board as a specialized tribunal and the legislation recognizes the specialized nature of labour arbitration.  That being said, Mr. Stark’s position has been considered to the full extent of the law in the process he followed. [18] That process ended when this Court gave its judgment, which was entered on May 23, 2006.  The Registrar’s December 13, 2011 letter accurately describes Mr. Stark’s position and options. [19] In his letter to the Registrar and in his notices of motion, Mr. Stark refers to s. 100 of the Code .  He asks that I direct the Registry to accept for filing his October 27, 2011 notice of motion which seeks a s. 100 review in the appeal proceedings that were brought to an end in 2006.  In my view, it is not possible for me to do so.  That appeal is over.  This Court’s jurisdiction on that appeal is spent. [20] There is no proceeding in this Court in which Mr. Stark may pursue relief pursuant to s. 100 of the Code .  He is, of course, long out of time for the initiation of such proceedings.  In addition, Mr. Stark asks that his factum on the 2006 appeal be used to support his application to review the arbitral award for errors of general law.  I have looked at that factum and question whether it identifies any errors of general law. [21] It is my hope that with a better understanding of the process that was available to and followed by Mr. Stark and with a more clear appreciation of what this Court did and did not decide on his appeal, Mr. Stark will put this unfortunate situation behind him and move forward with his life. [22] Mr. Stark’s application to file his October 27, 2011 notice of motion is dismissed. “The Honourable Mr. Justice Chiasson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: William v. British Columbia, 2013 BCCA 1 Date: 20130103 Nos.: CA035617; CA035618; CA035620 Docket: CA035617 Between: Roger William, on his own behalf and on behalf of all other members of the Xeni Gwet’in First Nations Government and on behalf of all other members of the Tsilhqot’in Nation Respondent (Plaintiff) And Her Majesty the Queen in Right of the Province of British Columbia and the Regional Manager of the Cariboo Forest Region Appellants (Defendants) And The Attorney General of Canada Respondent (Defendant) And B.C. Wildlife Federation and B.C. Seafood Alliance, Treaty 8 First Nations, Chief Wilson and Chief Jules, First Nations Summit and Te’mexw Treaty Association Intervenors --------------------------------------------------------------------------------- Docket: CA035618 Between: Roger William, on his own behalf and on behalf of all other members of the Xeni Gwet’in First Nations Government and on behalf of all other members of the Tsilhqot’in Nation Respondent (Plaintiff) And The Attorney General of Canada Appellant (Defendant) And Her Majesty the Queen in Right of the Province of British Columbia and the Regional Manager of the Cariboo Forest Region Respondents (Defendants) And B.C. Wildlife Federation and B.C. Seafood Alliance, Chief Wilson and Chief Jules, First Nations Summit and Te’mexw Treaty Association Intervenors --------------------------------------------------------------------------------- Docket: CA035620 Between: Roger William, on his own behalf and on behalf of all other members of the Xeni Gwet’in First Nations Government and on behalf of all other members of the Tsilhqot’in Nation Appellant (Plaintiff) And Her Majesty the Queen in Right of the Province of British Columbia and the Regional Manager of the Cariboo Forest Region and The Attorney General of Canada Respondents (Defendants) And B.C. Wildlife Federation and B.C. Seafood Alliance, Chief Wilson and Chief Jules, First Nations Summit and Te’mexw Treaty Association Intervenors Before: The Honourable Madam Justice Levine The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Groberman Supplementary Reasons to: Court of Appeal for British Columbia, June 27, 2012 ( William v. British Columbia , 2012 BCCA 285, Docket Nos. CA035617, CA035618 and CA035620) Counsel for the Plaintiffs: P.S. Rosenberg J.C. Nelson Counsel for the British Columbia Defendants: P.G. Foy, Q.C. Counsel for the Attorney General of Canada: B.A. McLaughlin Written Submissions Received: October 25, November 22, November 23 and December 6, 2012 Place and Date of Judgment: Vancouver, British Columbia January 3, 2013 Supplementary Reasons of the Court Supplementary Reasons for Judgment of the Court: [1] On June 27, 2012, we released the judgment in these appeals. Subsequently, the parties sought to make submissions as to the appropriate costs order. We agreed to accept such submissions in writing, and have now received and reviewed the parties’ representations. Synopsis of the Appeals [2] The appeals concerned claims of the Xeni Gwet’in First Nations Government and the Tsilhqot’in Nation to Aboriginal title and other Aboriginal rights in areas described as “Tachelach’ed” (or the “Brittany Triangle”) and the “Trapline Territory” in the Chilcotin region of the west central interior of British Columbia. [3] The trial judge found that Aboriginal title had been established over part of the claim area, but held that he could not make a declaration of title because the pleadings sought only a declaration to the whole of the area, and not to any portion less than the whole. He dismissed the title claim without prejudice to the Tsilhqot’in Nation’s right to commence a new action seeking a declaration of title. The judge also declared that the Tsilhqot’in Nation has certain rights to trap and hunt birds and animals in the claimed area and to trade skins and pelts taken from it. Finally, he declared that forestry activities in the claimed area had unjustifiably infringed the Tsilhqot’in Nation’s Aboriginal rights. [4] Three appeals were taken. The plaintiff appealed from the dismissal of the claim to title. Both British Columbia and Canada opposed his appeal. British Columbia appealed from parts of the declarations of hunting, trapping and trading rights and from the declaration that forestry activities had infringed Aboriginal rights. The plaintiff opposed that appeal, and Canada played only a very minor role in it. Canada appealed from the declaration that the dismissal of the title claim was without prejudice to a renewed title claim by the Tsilhqot’in. That appeal was opposed by both the plaintiff and by British Columbia. [5] We dismissed all three appeals. In respect of the plaintiff’s appeal, we upheld the judge’s order, dismissing the claim to Aboriginal title, although our reasons differed substantially from his. We held that the pleadings would have permitted a declaration of Aboriginal title over a part of the claimed area. We also found, however, that the judge had applied an incorrect test in determining whether title was established, leading him to accept a “territorial” claim rather than requiring that a claim to definite tracts of land be established. We held that if he had applied the correct test, he would have dismissed the title claim on the merits. [6] In respect of British Columbia’s appeal, we found no reversible error in the trial judge’s reasoning, and upheld his order. [7] We dismissed Canada’s appeal, ruling that, given the nature of the action that was pleaded, cause of action estoppel would not bar any future site-specific title claim that might be brought by the Tsilhqot’in. The Ordinary Costs Order [8] Section 23 of the Court of Appeal Act , R.S.B.C. 1996, c. 77, sets out the ordinary rule as to costs. It provides that a party who succeeds on an appeal is entitled to costs. As the appeals were all dismissed, the ordinary rule would make each appellant responsible for paying the party and party costs of those who opposed their appeals. [9] Both the plaintiff and British Columbia contend that they were partially successful on their appeals. While it might be said that certain of their arguments were accepted, it cannot, in our view, be said that their appeals were in any sense successful. [10] Accordingly, we are of the view that, absent extraordinary considerations, the appropriate orders for costs would be as follows: a) In the plaintiff’s appeal, the plaintiff would be responsible for British Columbia’s and Canada’s costs; b) In British Columbia’s appeal, British Columbia would be responsible for the plaintiff’s costs; and c) In Canada’s appeal, Canada would be responsible for the plaintiff’s and British Columbia’s costs. [11] It is common ground that certain modifications should be made to this ordinary order. First, British Columbia and Canada have paid certain substantial disbursements in respect of the appeals, and do not seek reimbursement for those disbursements. Thus, they should not be included in any costs order. [12] Second, British Columbia does not seek costs in respect of Canada’s appeal, and so the order should not award it costs in that appeal. [13] Beyond these uncontroversial modifications to the usual order, however, the parties are not in agreement. British Columbia and Canada both say that given the global result of the appeals, it would be most efficient and fair to simply order that each party bear his or its own costs in the appeals. The plaintiff, on the other hand, contends that he should be awarded special costs on all three appeals, either as a result of bad conduct that he alleges against British Columbia, or because of the public interest aspects of the appeals. The Conduct of the Parties [14] Rule 61 of the Court of Appeal Rules allows the Court to award special costs. An award of special costs is unusual. Typically, such costs are awarded where a party has engaged in reprehensible conduct in the litigation, or, more rarely, in the circumstances giving rise to the litigation (see Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9, [2004] 1 S.C.R. 303; Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740, 9 B.C.L.R. (3d) 242 (C.A.)). The plaintiff alleges that British Columbia engaged in such conduct in respect of forestry practices within the claimed area. British Columbia disputes that characterization. [15] We do not consider it necessary to analyse the extensive record to determine whether the plaintiff’s characterization of events is a just one. If reprehensible conduct gave rise to the litigation, the argument with respect to its effect on costs ought to have been made before the trial judge. Even if the appellant’s contention that the original litigation was precipitated by inappropriate conduct on the part of British Columbia were true, it would have little bearing on the issue of the costs of these appeals. The appeals were based on legitimate legal differences between the parties arising out of the decision at trial. There was nothing reprehensible in the events giving rise to the appeals, nor in the conduct of them. Special Costs and Public Interest Litigation [16] This Court has stated that, in exceptional circumstances, special costs may be awarded to a successful party in public interest litigation even in the absence of reprehensible conduct on the part of the unsuccessful party. In Victoria (City) v. Adams , 2009 BCCA 563, 313 D.L.R. (4th) 29, this Court discussed the considerations and circumstances in which such an award may be made: [188]    ... the following may be identified as the most relevant factors to determining whether special costs should be awarded to a successful public interest litigant: (a)        The case involves matters of public importance that transcend the immediate interests of the named parties, and which have not been previously resolved; (b)        The successful party has no personal, proprietary or pecuniary interest in the outcome of the litigation that would justify the proceeding economically; (c)        As between the parties, the unsuccessful party has a superior capacity to bear the costs of the proceeding; and (d)        The successful party has not conducted the litigation in an abusive, vexatious or frivolous manner. [189]    The basic question underlying these factors is whether the public interest in resolving a legal issue of broad importance, which would otherwise not be resolved, justifies the exceptional measure of awarding special costs to a successful litigant. [190]    While similar, or even identical, factors may apply to various forms of departure from the normal rule, that is not to suggest that all forms of departure are of equal magnitude. The justification necessary to grant an exceptional cost award is, in part, related to the magnitude of derogation from the usual cost structure of the award being considered. An award of interim costs requires one party to incur liability for the other’s costs before the case has been heard and irrespective of the outcome. These are truly exceptional orders. Likewise, as this Court observed in Barclay [ Barclay (Guardian ad litem of) v. British Columbia (Attorney General), 2006 BCCA 434] at para. 37, an award of costs to an unsuccessful party represents a more significant departure than an order that each side bear their own costs. In terms of this spectrum, an award of special costs to a successful public interest litigant involves only the level of costs. As a result, such an award, albeit financially very significant, would be less of a departure from the normal rule than orders awarding interim costs or costs to an unsuccessful party. [191]    Nor should we be taken to suggest that a successful public interest litigant will automatically be entitled to special costs. On the contrary, just as the discretion to award interim costs or costs to an unsuccessful public interest litigant is limited to cases involving matters of public importance that are highly exceptional, special costs (even for successful public interest litigants) must be the exception rather than the norm: see Finney [ Finney v. Barreau du Qu é bec , 2004 SCC 36, [2004] 2 S.C.R. 17] at para. 48. Each case must be considered on its merits, and access to justice considerations must be balanced against other important factors: see Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue) , 2007 SCC 2, [2007] 1 S.C.R. 38 at para. 35. [17] In our view, the plaintiff should not be awarded special costs on any of the appeals. [18] At least three factors distinguish the plaintiff’s appeal from Adams . First, the plaintiff, unlike the respondents in Adams , was unsuccessful on the appeal. The Court in Adams clearly considered that factor to be important, remarking that an award of costs to an unsuccessful litigant is even more exceptional than an award of special costs to a successful one. [19] Second, the First Nations in this case cannot be said to have “no personal, proprietary or pecuniary interest in the outcome of the litigation”.  A claim to Aboriginal title is a proprietary claim. This claim was brought in the expectation or hope that a genuine proprietary or pecuniary benefit would be gained in the event of success. [20] Finally, this litigation has not been taken on by counsel on a pro bono basis, as was the claim in Adams . One purpose served by awarding special costs in cases of exceptional public interest is to encourage counsel to take on meritorious causes on a pro bono basis. This purpose is absent in the current litigation. [21] While we recognize that the plaintiff’s appeal raised matters of high public importance, we are not persuaded that it fits within the exceptional class of cases where special costs should be awarded. [22] In the appeals by British Columbia and by Canada, the plaintiff has been successful, but the other considerations we have mentioned do apply and militate against the awarding of special costs. As well, it is our view that the public interest aspects of those appeals were not such as would justify an award of special costs. [23] In our view, the issues that arose in Canada’s appeal were of limited significance other than to the parties. The appeal did not raise significant issues of principle, nor was it particularly difficult to defend. [24] While greater public importance attached to British Columbia’s appeal, and while the appeal was more complex, it remained an appeal that was concerned with applying fairly well-settled law to specific facts. As this Court indicated in Ahousaht Indian Band and Nation v. Canada (Attorney General) , 2011 BCCA 425, 312 B.C.A.C. 122, an award of special costs on public interest grounds will ordinarily depend on the case being one that breaks novel ground or establishes new legal principles. The arguments in British Columbia’s appeal, like the arguments in Ahousaht , did not meet that threshold. Increased Costs [25] This Court has the ability to award “increased costs” under Rule 60 (1): 60 (1)   If, because an offer to settle is made or for any other reason, the court or a justice determines that there would be an unjust result if costs were assessed under Scales 1 to 3 of section 3 (1) of Appendix B, the court or justice, at any time before the assessment has been completed, may order that costs be assessed as increased costs. [26] In its written submissions, British Columbia stated that “[t]he legal and factual issues in the Plaintiff’s appeal and British Columbia’s appeal warrant increased costs, but ... not special costs”. It is clear from the context of the argument, however, that British Columbia was referring to costs on a higher scale than Scale 1, the scale for matters of ordinary difficulty, rather than “increased costs” as those costs are defined in s. 60(2) of the Rules: (2)        If costs are ordered to be assessed as increased costs, the registrar must fix the fees that would have been allowed if an order for special costs had been made under Rule 61 (1), and must then allow 1/2 of those fees, or a higher or lower proportion as the court or justice may order. [27] The plaintiff notes that the costs order at trial was, effectively, an order for increased costs. In his reply argument, he says that, in the event the court does not award him special costs, it should award increased costs. [28] The history of the costs award at trial is complicated. On November 27, 2001, the Supreme Court of British Columbia made an advance costs order requiring Canada and British Columbia to pay the plaintiff’s legal fees at the rate of 50% of special costs as well as 100% of his reasonable disbursements ( William v. Riverside Forest Products Ltd. , 2001 BCSC 1641, 95 B.C.L.R. (3d) 371). This Court dismissed an appeal from that order ( Xeni Gwet’in First Nations v. British Columbia , 2002 BCCA 434, 3 B.C.L.R. (4th) 231) and later also dismissed a cross-appeal seeking advance special costs ( Xeni Gwet’in First Nations v. British Columbia , 2004 BCCA 106, 237 D.L.R. (4th) 754). The Supreme Court of Canada granted leave to appeal from this Court’s 2002 decision ([2002] S.C.C.A. No. 295), but remanded the case back to the trial court to be dealt with in accordance with its judgment in British Columbia (Minister of Forests) v. Okanagan Indian Band , 2003 SCC 71, [2003] 3 S.C.R. 371. The trial judge, on reconsidering the matter, affirmed his original order ( William v. British Columbia , 2004 BCSC 610, 240 D.L.R. (4th) 547). [29] Approximately two months later, the trial judge granted an order increasing the advance costs award to an award for special costs in advance ( William v. British Columbia , 2004 BCSC 963). This Court overturned that order on appeal ( Tsilhqot’in Nation v. British Columbia , 2006 BCCA 2, [2006] 4 W.W.R. 48). Madam Justice Southin, dissenting, would have replaced the trial judge’s order with an order for advance costs on Scale 5 under the former Rules of Court , B.C. Reg. 221/90. The other two judges considered that it was appropriate to reinstate the trial judge’s earlier order for advance increased costs. Mr. Justice Thackray, however, indicated that he considered the order proposed by Southin J.A. to have considerable merit: [125]    Were the case at bar about to be opened at trial, or indeed if it was in its early stages, I would agree with the result adopted by Madam Justice Southin. However, this trial has now been underway for three years and defence costs have been funded through generous court orders and agreements. To at this stage cut this back to party and party costs would be dramatic and might affect the balance that Mr. Justice LeBel spoke of in Okanagan Indian Band [ British Columbia (Minister of Forests) v. Okanagan Indian Band , 2003 SCC 71, [2003] 3 S.C.R. 371] . [30] In the circumstances, it cannot be said that this Court unreservedly endorsed the order for advance increased costs, and the fact that such an order was in place for the trial should not be treated as establishing that increased costs are appropriate for the appeal. [31] In our view, the plaintiff has not established that it would be an unjust result if costs were assessed under Scales 1 to 3 in these appeals. In saying this, we note that the plaintiff has already had the benefit of increased costs for the entirety of the trial (and, indeed, of special costs for a portion of the trial) and that those costs are not in jeopardy in the appeal process. It is also noteworthy that the plaintiff has not had to fund the major disbursements necessary for the appeal, and is not being asked to do so. In the circumstances, we are of the view that a just result can be reached without granting an order for increased costs. Accordingly, the threshold for an increased costs award has not been made out. Award of Costs to an Unsuccessful Litigant [32] We are satisfied, in the circumstances, that it is appropriate that the plaintiff have his costs in both British Columbia’s and Canada’s appeals. [33] The situation with respect to the plaintiff’s appeal is more complicated. While, for the reasons given, the plaintiff’s application for special or increased costs is rejected, we do consider that the appeal was of exceptional public importance, and that consideration must be given to awarding the plaintiff costs even though he was unsuccessful. [34] While it is very rare for a court to award costs to a losing party, the jurisdiction to do so does exist: Okanagan Indian Band at para. 30, citing B.(R.) v. Children’s Aid Society of Metropolitan Toronto , [1995] 1 S.C.R. 315. [35] In the case before us, the public interest in having the issue of Aboriginal title determined by the Court was high. The need for jurisprudential development in this area was adverted to in the Court’s judgment on appeal: [159]    In accordance with the common law tradition, the courts have proceeded to develop the law relating to Aboriginal title incrementally on a case-by-case basis. It is a particularly daunting task because the issues involved are unique. In developing rules for the proof of rights and title, the courts have had to develop, as well, an entire philosophical and jurisprudential framework for the recognition of traditional rights that came into being before the reception of the common law. [160]    Even, however, taking into account the difficulties inherent in this area of the law, jurisprudential development has been slow. While several full-scale claims for title to large areas of land have been advanced to the level of the Supreme Court of Canada, none has succeeded, and considerable areas of uncertainty subsist. [161]    To some degree, the apparent reluctance of the courts to go beyond what is needed to resolve the specific cases is understandable. I have already noted that that is the traditional manner in which the common law has developed. Further, the stakes in Aboriginal title claims have been high – cases such as Calder [ Calder v. Attorney-General of British Columbia , [1973] S.C.R. 313], Delgamuukw [ Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 ], and Marshall; Bernard [ R. v. Marshall; R. v Bernard , 2005 SCC 43, [2005] 2 S.C.R. 220] involved vast areas of land. The resolution of such claims can be critical to the future of both the First Nation involved and the broader Canadian population. [162]    The technical difficulty of this area of law has exacerbated the problem, and has led to considerable frustration. The efforts of the Nisga’a in Calder , the Gitksan and Wet’suwet’en in Delgamuukw , and the Tsilhqot’in in this case (to this point) all consumed enormous amounts of resources, only to have the cases end inconclusively due to problems with the way they were commenced or pleaded. [163]    The courts have frequently emphasized the need for resolution of Aboriginal rights and title issues through negotiated agreements where possible. The trial judge in this case went beyond the ordinary role of the court in attempting to set the stage for a negotiated resolution. Negotiated resolution of issues, however, is not facilitated by uncertainty in the law. [164]    It is apparent that all sides have attempted to resolve the issues in this case, but without success. That is not surprising, given that the theories of Aboriginal title espoused by the plaintiff, on the one hand, and the defendants, on the other, are as far apart as they are. The trial judge’s decision to provide a non-binding opinion as to the title area did not, in the end, assist the parties in finding common ground. [165] The present case has been an extraordinary one, both in terms of the resources mustered by the parties to present their cases and in terms of the court resources that have been devoted to it. It is in many respects a test case on the issue of Aboriginal title. It presents a suitable vehicle for development of the law. [36] The decision of the trial judge, affirmed by this Court, that advance costs be ordered, is a strong indication of the exceptional importance of the case from a public interest standpoint. Given the extensive record and comprehensive reasons of the trial judge, this case provided an ideal foundation for appellate consideration of issues of Aboriginal title. [37] The extent to which Aboriginal title exists is of fundamental importance to British Columbians. The issue is, of course, of particular interest to First Nations and to governments. It is also, however, of particular importance to the economy of the Province, given the continued importance of resource industries, which operate, for the most part, on lands that are subject to title claims by First Nations. [38] British Columbia and Canada contend that the issues in this case were not novel and did not break new legal ground. They contend that it merely required the application of the Supreme Court of Canada’s decision in R. v. Marshall ; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220. While this Court found that the principles in Marshall and Bernard did govern this case, we are not convinced that that diminishes the importance of the appeal. The trial judge was referred to the judgment in Marshall and Bernard , but interpreted it rather differently than did this Court. It is apparent that further consideration of the reasons in Marshall and Bernard was required. [39] Quite apart from the need for clarification of the jurisprudence on Aboriginal title generally, there were special reasons why an appeal in this case was in the public interest. The trial judge’s decision, which indicated that title had been established, but which denied a declaration of title, created particular problems. Neither British Columbia nor Canada could appeal the judge’s decision on title, which was technically in their favour. Nonetheless, absent an appeal, the judge’s reasoning might well have been followed in the British Columbia Supreme Court. In that regard, it was in the Crown’s interest that the matter be appealed, so that it could argue that the test for title applied by the trial judge was incorrect. [40] In the unique circumstances of this case, the plaintiff ought not to bear all of his costs of his appeal. An order that he be awarded party and party costs on his unsuccessful appeal is justified. [41] In making this order, we recognize that this case is highly unusual, and that orders that an unsuccessful appellant be granted costs will be extraordinarily rare. Such an order will not be made simply because it is perceived to be in the public interest that jurisprudence develop in a particular area of law. It must, at the very least, be shown that the development of jurisprudence in the area is of critical public importance. We are satisfied that in the unique circumstances of this case, the Court is justified in taking the extraordinary step of awarding costs to an unsuccessful litigant. The Scale of Costs [42] Appendix B of the Court of Appeal Rules deals with party and party costs. Section 2(1) provides that costs are ordinarily assessed under Scale 1, the scale for matters of ordinary difficulty. Section 2(2) allows the court to instead order costs on Scale 2 (for matters of more than ordinary difficulty or importance) or on Scale 3 (for matters of unusual difficulty or importance). [43] Only British Columbia has addressed the scale of costs in this matter. It says that the scale should be Scale 3 in the plaintiff’s appeal and in British Columbia’s appeal, and Scale 1 in Canada’s appeal. We are in agreement that the appeals by the plaintiff and by British Columbia raised matters of unusual difficulty and importance, and that Canada’s appeal was in respect of matters of ordinary difficulty and importance. Accordingly, the plaintiff will have his costs on Scale 3 in his appeal and in British Columbia’s appeal, and on Scale 1 in Canada’s appeal. Disposition [44] In the result, we make the following orders as to costs: a)  In the plaintiff’s appeal, the plaintiff will have his costs on Scale 3, payable jointly by British Columbia and by Canada; b)  In British Columbia’s appeal, the plaintiff will have his costs on Scale 3, payable by British Columbia; and c)  In Canada’s appeal, the plaintiff will have his costs on Scale 1, payable by Canada. “The Honourable Madam Justice Levine” “The Honourable Mr. Justice Tysoe” “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Gallagher, 2013 BCCA 5 Date: 20130107 Docket: CA039883 Between: Regina Respondent And Robert John Gallagher Appellant Before: The Honourable Mr. Justice Low The Honourable Madam Justice D. Smith The Honourable Madam Justice A. MacKenzie On appeal from British Columbia Provincial Court, April 18, 2011 ( R. v. Gallagher , Vancouver Registry 212421-4-C) Oral Reasons for Judgment Counsel for the Appellant: S.G. Vyas Counsel for the Respondent: E. Campbell Place and Date of Hearing: Vancouver, British Columbia January 7, 2013 Place and Date of Judgment: Vancouver, British Columbia January 7, 2013 [1] A. MACKENZIE J.A. : On April 18, 2011, Robert John Gallagher was convicted in Vancouver Provincial Court of breaking and entering a dwelling house and committing an indictable offence therein, contrary to s. 348(1)(d) of the Criminal Code . He committed the offence on April 19, 2010. [2] At the time of sentencing, Mr. Gallagher was serving an effective sentence of three years and seven months’ imprisonment (an actual sentence of three years after credit for seven months of pre-sentence custody), imposed on November 9, 2010, for a similar offence committed on February 9, 2010. [3] The sentencing judge concluded an effective sentence of six years for the two break and enter offences was appropriate. However, rather than imposing a two-and-a-half year consecutive sentence to Mr. Gallagher’s previous three-and-a-half year sentence, the judge imposed a concurrent sentence of six years to reflect the seriousness of Mr. Gallagher’s criminal record. The judge stated that a concurrent sentence of six years would “add roughly two-and-a-half years to the sentence that Mr. Gallagher is presently serving.” [4] Mr. Gallagher seeks an extension of time to appeal and leave to appeal the six-year concurrent sentence on the basis the judge made an error in calculation which resulted in a sentence that is 12 months longer than the judge intended. He asks this Court to reduce the sentence by 12 months to reflect the original intention of the sentencing judge. [5] The Crown concedes the judge made the alleged calculation error and agrees the sentence should be reduced from six years to five years to reflect the intention of the sentencing judge. [6] Mr. Gallagher and Crown counsel are correct that the concurrent sentence of six years imposed an additional sentence of approximately three-and-a-half years, resulting in a total effective sentence of seven years for the two offences, rather than a total effective sentence of six years as the judge intended. It appears the sentencing judge’s calculation did not take into account the fact that Mr. Gallagher’s first sentence was an actual sentence of three years (after credit for seven months of pre-sentence custody) and that Mr. Gallagher had already served five months of that sentence. [7] In order to achieve the intended effect of adding two-and-a-half years to the sentence being served, the sentencing judge would have had to impose a sentence of five years and 21 days, rather than six years. [8] On that basis, I would grant the extension of time and leave to appeal, allow the appeal, and reduce the sentence to five years’ imprisonment concurrent to the sentence being served. [9] LOW J.A. : I agree. [10] D. SMITH J.A. : I agree. [11] LOW J.A. : The extension of time to appeal is granted. Leave to appeal is granted. The appeal is allowed and the sentence is reduced to five years imprisonment concurrent. “The Honourable Madam Justice MacKenzie”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Vesuna v. Drysdale, 2013 BCCA 10 Date: 20130108 Docket: CA039247 Between: Rumi Vesuna Appellant (Plaintiff) And Alec Drysdale, Her Majesty the Queen in Right of The Province of British Columbia, Sea-Mait Investments Ltd. and M.L. & H. Holdings Ltd. Respondents (Defendants) Before: The Honourable Mr. Justice Low The Honourable Madam Justice D. Smith The Honourable Madam Justice A. MacKenzie On appeal from: Supreme Court of British Columbia, July 13, 2011 ( Vensuna v. British Columbia (Transportation) , 2011 BCSC 941, Powell River Docket S1992) Oral Reasons for Judgment Appellant appearing In Person: Counsel for the Respondents, A. Drysdale & the Province of British Columbia: K. Wolfe and A. Davies Counsel for the Respondent: I. Fleming Place and Date of Hearing: Vancouver, British Columbia January 8, 2013 Place and Date of Judgment: Vancouver, British Columbia January 8, 2013 [1] LOW J.A. : In 2005, the appellant purchased a fifty-acre land-locked parcel of property near Powell River, B. C. for $90,000, well below the list price of $175,000. There was no road access to the property but there was a dedicated road allowance on adjacent property to the south connecting the property with Highway 101 that runs east and west. Title to the road allowance by law vests in the Province of British Columbia. Before purchase, the appellant saw a 1996 plan indicating the location of the road allowance but it was apparent to the appellant that no road had been built. [2] The appellant took steps after purchase to obtain the necessary governmental approval for construction of a road on the allowance to give him road access to his property. A government representative suggested that there were some environmental difficulties with the approval he sought because of federal fisheries law. This arose because the road allowance intersects a salmon-spawning creek near Highway 101. The government representative suggested to the appellant that he attempt to obtain an easement over the property to the east to gain the access he required. That property is owned by the two corporate respondents, whom for convenience I will describe jointly as” Sea-Mait”. [3] The appellant was unable to negotiate an easement with Sea-Mait so he brought this action against Sea-Mait, the Province and Alex Drysdale who is the Provincial Approving Officer. [4] The appeal is from an order made by Madam Justice Griffin dismissing his action against all the respondents following a nine-day trial. Her reasons are indexed at 2011 BCSC 941. [5] The trial judge described the broad issues at trial thus: [11]      Mr. Vesuna asserts a variety of allegations, from which emerge two key issues which I will first address: 1.         Is the road or driveway that runs diagonally across the southwest corner of Lot 3836, from the south border of Lot 3836 to the west border of Lot 3836, intersecting with the road allowance, a public or a private road?  For ease of reference, I will refer to this as the “Disputed Road”; 2.         Was the Crown negligent in approving the subdivision that led to the creation of the plaintiff’s parcel of property in 1960, because it is impossible to build a road on the road allowance? [6] In a rambling factum, the appellant purports to identify, by my count, some 37 legal and factual errors he says were made by the trial judge. Many of these are merely observations unsupported by analysis that would permit us to identify arguable error. With considerable validity, both pairs of respondents contend that the arguments made by the appellant are no more than re-argument of the case he attempted to make at trial, accompanied by some mischaracterization of the evidence and assertions of primary facts or inferences of fact not accepted by the trial judge. They say the appellant’s argument is based on the case as he sees it, not as objectively viewed by the trial judge, and without identification of error by the trial judge. [7] The appellant brought an application for this court to receive fresh evidence consisting mainly of government documents to add to numerous such documents put into evidence at trial. This proposed new evidence was available before trial, it adds nothing of significance to an understanding of the recorded history of the development and use of the two properties in question and, if received into evidence, would be incapable of having affected the outcome of this case at trial. This proposed fresh evidence does not meet the test set out in R. v. Palmer , [1980] 1 S.C.R. 759. [8] The appellant owns District Lot 3504 less Block A that was subdivided out of the lot in 1960. Highway 101 runs east to west at the south end of Block A and Block A abuts District Lot 3836 to the east. Sea-Mait owns District Lot 3836. The road allowance extends north from the highway on the eastern side of Block A to the appellant’s property. The eastern edge of the allowance is the western boundary of District Lot 3836. Sea-Mait is not interested in the allowance and is not affected by its development or use. [9] Access to Sea-Mait’s property is gained by an existing road located entirely on District Lot 3836. It begins at Highway 101 near the southwest corner of the lot. . It goes northwest from the highway to a point where it abuts the road allowance on Block A. It is this section of road for which the appellant sought an easement from Sea-Mait. The trial judge referred to this section of road as “the Disputed Road”, as will I. From where it abuts the road allowance, the road turns to the east and extends deep into District Lot 3836. There is no dispute that this second section of the road is private. [10] As against Sea-Mait, the appellant claimed that the Disputed Road is a public road available for regular use by him and by other members of the public. [11] The trial judge cited Brady v. Zirnhelt (1998), 57 B.C.L.R. (3d) 144 (C.A.) in which it was held as follows: A highway can come into being in four ways: 1.         exemption from a Crown grant (now Highway Act , R.S.B.C. 1996, c. 188, s. 2 and Land Act , R.S.B.C. 1996, c. 245, ss. 13 and 57); 2.         expenditure of public money on a travelled road (now Highway Act , R.S.B.C. 1996, c. 188, s. 4) or entry on lands by the Minister of Highways and Public Works for the purpose of establishing a highway (now Highway Act , R.S.B.C. 1996, c. 188, s. 5(1)); 3.         common law dedication of a road by owner, whether a private owner or the Crown; 4.         dedication by deposit of a subdivision plan showing a portion of the land as a highway (now Land Title Act , R.S.B.C. 1996, c. 250, s. 107). [12] The appellant claimed that the road in question became a public road under each of the first three of these ways. [13] The trial judge found that there was no exemption from the Crown grant of District Lot 3504 in 1913 because a survey sketch attached to the grant did not show any roads on it. [14] District Lot 3836 was Crown granted in 1949. The trial judge described the evidence on which the appellant relied to support an argument that there was a common law dedication of the Disputed Road: [23]      The key piece of evidence the plaintiff relies on was found in copies of archival documents that set out an affidavit by Henry Rhodes, a qualified land surveyor for the Province of British Columbia, sworn January 6, 1912. His affidavit states that he conducted a survey of Lot 3504 on December 9-10, 1911. His affidavit attaches his survey notes and drawing. [24]      The Henry Rhodes 1911 survey notes and drawing illustrate two short roughly parallel dotted line skid roads crossing from the southwest corner of what became Lot 3836 into Lot 3504 on the eastern boundary of Lot 3504, just east of Jefferd Creek, which runs through Lot 3504. The most southerly of these two skid road markings is noted as being 5.60 chains from the south boundary of the lot. [25]      The plaintiff claims that the southerly skid road marking on Henry Rhodes’ survey is in the same location as the Disputed Road. [15] The trial judge then found as a fact that the skid roads did not extend south on District Lot 3836 far enough to intersect with what is now Highway 101. She then referred to the records of a survey done in 1960 by a qualified land surveyor, Victor Cecchi, now deceased. His work was explained to the court by Rick Rae, a qualified land surveyor with the same firm. The trial judge described this evidence: [29]      Mr. Cecchi’s survey identifies a “logging road” with a gate on it, which is the Disputed Road, running diagonally from Highway 101, at the southern boundary of Lot 3836, across Lot 3836 to the road allowance on the west boundary of Lot 3836, where it borders Lot 3504. Mr. Rae visited the site and checked and confirmed the measurements of the logging road. He concluded that point where the logging road intersected with the road allowance, north of the southeast corner of Lot 3504, was approximately the same distance and location where the southern skid road shown in Henry Rhodes’ survey intersected at the same boundary of Lot 3504 and Lot 3836. The location was not exact but was within a couple of metres of Mr. Rhodes’ 5.60 chains. [16] The judge rejected the argument of the appellant that because the skid roads apparently were created on public land prior to either Crown grant, they became and remained public roads. The trial judge in the Brady case ([1996] B.C.J. No. 969) rejected this argument and this court agreed, at para. 20. [17] The Brady case turned on the use of public funds to build the road in question and the purpose for which it was built. It was built “not only to benefit the Crown as owner and the pre-emptor, but all those who wished to use the road, including those who used the old west side road to gain access to properties beyond”. [18] The trial judge found the evidence in the case at bar to fall well short of establishing what had been established in Brady . She said this: [40]      In contrast, in this case there is no evidence as to what was the basis for the two skid roads noted on Mr. Rhodes’ 1911 survey. There was no evidence that the purpose of the skid roads was to provide access to owners of properties beyond. [41]      There was also no evidence as to general practices with respect to skid roads on Crown lands in or around the same period as the Crown grant for Lot 3504. It is possible that skid roads were for the sole purpose of skidding logs harvested from Crown lands, and a private party paid for the use of that Crown land as part of a licence from the Crown. In other words, skid roads could have been for the purpose of facilitating timber harvesting, but that commercial purpose might not have amounted to dedication of the road as a public road. [42]      There was some evidence called as to more recent practice regarding skid roads. Essentially, a skid road is an area which is only partially cleared and through which felled timber is dragged to take it out of the woods and ultimately to market. The limited evidence at trial suggested that such a road is more aptly described as a rough trail to permit skidding and logging equipment to pass through. [19] The trial judge discussed at some length the history of the use of District Lot 3836 before and since it was Crown granted in 1949. This discussion was based on various Forestry Department documents and other documents relating to the property, as well as evidence from a couple of witnesses who had been involved in logging in the area. All this evidence pointed to the lack of use of the skid roads as a road for members of the public to cross the lot to get elsewhere. The judge concluded this part of her analysis as follows: [68]      As I have mentioned above, the 1911 survey notes of Henry Rhodes do not show the skid road to run continuously from Lot 3504 across the corner of Lot 3836, down to the boundary of Lot 1521 (or present day Highway 101). [69]      While it is likely that some roads in this province that started out as skid roads became cleared more extensively, used over time by the public, and became public roads, that does not mean that every skid road pre-Crown grant became a public road. Yet this is really the effect of the plaintiff’s argument, without the evidence to support it. [70]      The Court requires evidence before coming to the conclusion that a skid road shown on pre-Crown grant land is a public road. Given the extensive logging history of this province, concluding that a historical survey showing a skid road is proof that the road is a public road, without more evidence, could adversely affect many private property owners on whose lands were once skid roads. [71]      I conclude that there is insufficient evidence for me to find that there was a public road existing across the southwest corner of Lot 3836 into Lot 3504, in the same area as the Disputed Road, at the time of the Crown grant of either lot. [20] The appellant has shown no basis for this court to interfere with the above conclusion. There was a paucity of evidence capable of supporting the conclusion that the skid roads were used for anything but the removal of logs. There is no evidence that they were used by anybody for access across District Lot 3836 to any other property, including District Lot 3504. [21] The trial judge turned to the question of whether any owner after the date of the Crown grant of District Lot 3836 dedicated the Disputed Road. The evidence was that one owner, Mr. Henninger, used the road for access to his house on the property, kept a wire cable across it to block access and required that permission be obtained for use of the road for logging on District Lot 3504. A subsequent owner replaced the wire with a steel gate that has remained in place since then. [22] The appellant claimed that members of the public, such as occasional pickers of salal or mushrooms, used the road. But the judge found that this evidence was “extremely weak” and, in any event, such use was at best extremely rare. At para. 77, the judge concluded: “The greater weight of the evidence was that if anyone sought to use the Disputed Road, they recognized it as a private road and sought and obtained the permission of the owner ... first”. There was no common law dedication of the road to public use. [23] In this court the appellant simply repeats the weak arguments he made at trial without demonstrating any misapprehension of the evidence or any other error by the trial judge. [24] The next topic for the trial judge was the expenditure of public money on the Disputed Road. Section 42(1) of the Transportation Act , S.B.C. 2004, c. 44 provides: “... if public money is spent on a travelled road that is not a highway, the travelled road is deemed and declared to be a highway”. [25] In 2006, Sea-Mait granted the Province, represented by the Minister of Forests and Range a right-of-way over existing roads on District Lot 3836 to construct certain works on the property as necessary for “the operation and maintenance of an undertaking of the Forest Service”. This was accompanied by a road maintenance agreement, the terms of which included road maintenance by forestry, the provision to forestry of keys to the gate and the maintenance by Sea-Mait of drainage structures along the roadway unless damage thereto was caused by the “Ministry of Forests” or its agents. [26] The contract price to be paid to Sea-Mait was $3,500 annually. The trial judge concluded that it was likely that public monies “were expended on the Disputed Road”. [27] The argument of the appellant that this expenditure of public monies for maintenance of the Disputed Road made the road a highway and, therefore, a public road under s. 42(1) of the Transportation Act is fully answered by s. 24 of the Forest and Range Practices Act , S.B.C. 2002, c. 69. That section reads: 24        Despite section 42 of the Transportation Act , a road constructed or maintained under this Act, the Forest Act , the former Act as defined in section 1 of the Forest Act or the Forest Practices Code of British Columbia Act is not a public highway unless the Lieutenant Governor in Council declares it to be by an order in council that he or she may make under this Act. [28] There was no evidence of an order in council having been passed to make the section inapplicable. [29] The trial judge analysed the agreements between the Province and Sea-Mait. She concluded that the parties clearly intended that the forestry legislation would apply and not the Transportation Act . She said this: [112]    It was clear by the terms of the Right of Way Agreement that the Crown considered that the road remained a private road, and not open to public use. The access to the Disputed Road was gated and locked. Also, the annual fees associated with the Right of Way Agreement were nominal and not of great benefit to the owner. In light of these circumstances, I find that the Crown’s use of the Disputed Road did not result in the road being “travelled” within the intended meaning of s. 42 (1) of the Transportation Act . ... [116]    In the case at bar, there is a contract demonstrating an intention as between the Crown and corporate defendants to keep the road private. Failure to give effect to such intention would tread closely to sanctioning an expropriation without compensation. I find that the effect of the Right of Way Agreement is to acknowledge that the Crown use of the private road does not, in and of itself, make the road a “travelled road” for the purposes of s. 42(1) of the Transportation Act . Conclusion - Crown Expenditures on Disputed Road [117]    On the whole of the evidence, I find that any expenditures on the Disputed Road by the Crown were pursuant to s. 24 of the Forest and Range Practices Act , and that therefore s. 42(1) of the Transportation Act does not apply to deem the road a public highway. [118]    Further, in the circumstances of this case, where the Crown has expressly agreed with the private property owner that its expenditures and use do not transform an otherwise private road into a public highway, and where there is no evidence that the road has been generally used by the public, I find that the Disputed Road is not a “travelled road” pursuant to s. 42(1) of the Transportation Act , and so that section does not apply to deem the road a public highway. [30] The appellant has presented no argument that calls into question the conclusion at trial that he failed to prove that the Disputed Road was a public road on the basis of public expenditure. [31] The appellant alleged that the Crown was negligent in approving the subdivision of District Lot 3504 in 1960 to create Block A with reservation of the road allowance. On that issue, the judge said this: [178]    I conclude that the plaintiff has failed to call evidence that would support a finding that the Crown’s approving officer was negligent in approving the 1960 subdivision plan concerning Lot 3504. [32] The appellant again has not presented any argument that would allow for appellate interference with this conclusion. There was no evidence of such negligence. In any event, as the judge found, the appellant led no evidence to establish that the property, without easy road access, was worth any less than the amount he paid for it. He paid considerably less than the list price and property assessments subsequent to the purchase were considerably more than the amount the appellant paid for the property. [33] It should be noted also that the appellant is not without opportunity to secure access by development of the road allowance. In that regard, the trial judge made this observation: [171]    Secondly, the plaintiff has adduced no evidence to establish that it would be impossible, from an engineering design perspective, to have constructed a road at the site of the road allowance in 1960. There has been no expert opinion provided on this point. In the absence of such evidence, I am unable to accept the plaintiff’s argument that it would be practically impossible or highly dangerous to build a road at the junction of Highway 101 and the road allowance. [34] The trial judge discussed other issues raised by the appellant as follows: [179]    In addition to the two key issues I have addressed, the plaintiff raised a number of additional issues, for which the factual foundation to a large degree overlapped with the facts I have already reviewed, as follows: 1.         If the Disputed Road is not public but instead is a private road, does the plaintiff have any enforceable agreement with the corporate defendants to allow him to use the Disputed Road, and if so, did the corporate defendants breach that agreement, causing the plaintiff damages? 2.         Does the Plaintiff have any kind of easement which would allow him to use the Disputed Road? 3.         Did the corporate defendants commit an actionable tort, such as nuisance, by locking their gate across the Disputed Road, preventing the plaintiff from accessing his property via that road in January 2006? 4.         Did the Crown negligently misrepresent to the plaintiff that the road allowance provided access to Lot 3504? 5.         Did an employee of the Crown, Mr. Drysdale, make and then breach an agreement with the plaintiff that the Crown would engage in a land swap to solve the problem of the use of the Disputed Road? and, 6.         Did the Crown breach a fiduciary duty owed to the plaintiff, or did the conduct of its employee, Mr. Drysdale, in dealing with the plaintiff amount to bad faith or an abuse of public office? [180]    The evidence was clear that the plaintiff did not reach any agreement with the corporate defendants to allow him to use the Disputed Road. He admitted this in his correspondence with the Crown and in his evidence at trial. [181]    The plaintiff’s argument that an easement exists over the Disputed Road appeared to be based on the same factual allegations he advanced with respect to common law road dedication, or, the existence of an enforceable agreement with the corporate defendants. These allegations were not proven. [182]    There was no evidence to support any duty on the part of the corporate defendants to have the gate access on their private property, across the Disputed Road, unlocked so as to allow the plaintiff to use it in January 2006. [183]    There were no negligent representations by the Crown relied upon by the plaintiff to his detriment. [184]    Mr. Drysdale did not make any agreement with the plaintiff. There is also no evidence to support any allegation that Mr. Drysdale dealt with the plaintiff any way that might found a cause of action. There is no basis in the evidence for any claim by the plaintiff that the Crown owed a fiduciary duty to him and then breached that duty. [35] No basis has been shown for appellate interference with any of these conclusions. [36] There was evidence that after negotiations with Sea-Mait for an easement failed, the approving officer invited the appellant to commission an engineering plan for the building of a road on the road allowance that would address the environmental problem. It is clear that the appellant is far from exhausting all administrative options for obtaining physical as well as dedicated road access to his property. Instead of following up on the approving officer’s suggestion, the appellant chose to bring this action based on extremely weak evidence. He can still explore engineering options for developing the road allowance. [37] The trial judge received written submissions from the parties with respect to costs. She ordered that the successful defendants recover ordinary costs from the appellant at Scale B. She also gave certain directions with respect to the recoverability of certain disbursements. Her costs judgment is indexed at 2011 BCSC 1618. [38] Although the costs judgment led to a second order, the appellant did not file a separate notice of appeal. He did file an amended notice of appeal to raise an issue with respect to the costs ordered. The provincial respondents objected to this approach as being procedurally defective. I do not find it necessary to address the procedural concern because I find no merit in the appellant’s argument with respect to costs. [39] The appellant says the trial judge erred in approving certain fairly substantial disbursements presented by the provincial respondents. In that regard, the judge said this: [37]      The Crown defendants claim the travel costs for one lawyer on their legal team to attend the various interlocutory and trial court proceedings. I find that the costs claimed in this regard are reasonable. The proceeding by the plaintiff advanced complicated legal arguments and delved into the distant historical past. The Crown defendants were entitled to use the lawyers they considered most suitable to defend the proceeding, even if that meant that counsel for the Crown defendants had to travel from Victoria to Powell River to attend court. [38]      I also note that the Crown has claimed for only one lawyer’s travel expenses, even though the complexity of the matter required the assistance of additional counsel, as well as a legal assistant. [39]      Pursuant to Rule 14-1(7), I direct that these travel costs as claimed in the draft Bill of Costs submitted to me by the Crown be allowed. [40]      The Crown also claims for the cost of reports prepared by Mike Hansen, surveyor, and Otto Langer, fisheries biologist. These reports were served upon the plaintiff before trial. Mr. Hansen’s report was introduced into evidence. Mr. Langer’s report was not. However, the Crown advises as to the nature of his expert opinion, namely that it concerned whether or not, at the time the plaintiff’s property was subdivided in 1960, existing fisheries statutes and regulations would have provided a practical impediment to construction of a driveway on the plaintiff’s property. [41]      I find, based on the claims advanced by the plaintiff, that it was entirely reasonable for the Crown defendants to seek an opinion on this issue. Given that the plaintiff’s own evidence fell short, it is not surprising that in the end the Crown defendants elected not to call this expert evidence. I find that the disbursements incurred by the Crown defendants in retaining these experts and obtaining their reports, as set out in the draft bill of costs, are reasonable, and I direct that these costs be allowed. [42]      In addition, the Crown defendants claim the tariff item cost of retaining and consulting three experts, Mr. Langer and Mr. Hansen as aforesaid, and Sharon Goddart. Since Ms. Goddart is an employee of the Provincial Government, there was no extra disbursement incurred in retaining her. However, she is an engineer employed by the Ministry of Transportation and Highways, and she provided an expert opinion on the issue of whether there were any engineering design impediments to constructing a driveway from Highway 101 to the plaintiff’s property. I find that this was relevant evidence for the Crown defendants to obtain in light of the plaintiff’s allegations in the case. I find that it was reasonable for the Crown to retain and consult with these experts, and therefore I direct that the tariff item 17 costs of doing so be allowed. [40] The trial judge was in a much better position than we are to determine reasonable disbursements in the context of the entire case and I am not persuaded that there is any basis on which we can set aside the determinations she made in the above paragraphs. [41] In my opinion, this appeal is without merit and I would dismiss it with costs to both pairs of respondents. [42] D. SMITH J.A.: I agree. [43] A. MACKENZIE J.A. : I agree. [44] LOW J.A. : The appeal is dismissed with costs to both pairs of respondents. “The Honourable Mr. Justice Low”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Bosworth v. Jurock, 2013 BCCA 4 Date: 20130110 Docket: CA039541 Between: Gregory Bosworth Respondent (Plaintiff) And Oswald Jurock, David Barnes, Ralph Case, Standard Apartments Ltd., Proper Tee Investments Ltd., and Greenwich Holdings Ltd. Appellants (Defendants) Corrected Judgment: The text of the judgment was corrected at page 1 where a change was made on January 10, 2013; Before: The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Frankel The Honourable Mr. Justice Hinkson On appeal from:  Supreme Court of British Columbia, November 24, 2011 ( Bosworth v. Jurock , 2011 BCSC 1583, Vancouver Docket S101830) Counsel for the Appellants: W. Branch and K.E. Saunders Counsel for the Respondent: R.W. Millen and J.R. Goheen Place and Date of Hearing: Vancouver, British Columbia December 10, 2012 Place and Date of Judgment: Vancouver, British Columbia January 10, 2013 Written Reasons by: The Honourable Mr. Justice Hinkson Concurred in by: The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Frankel Reasons for Judgment of the Honourable Mr. Justice Hinkson: [1] This is an appeal from the order of a chambers judge certifying the respondent Mr. Bosworth’s action as a class action, pursuant to the provisions of the Class Proceedings Act , R.S.B.C. 1996, c. 50 [ CPA ]. The reasons for judgment of the chambers judge are indexed at 2011 BCSC 1583. Background [2] Seal Cove Properties Ltd. entered into an agreement with a developer to sell to it the property and premises of an existing building to be called the Roosevelt Apartments, once the property had been subdivided into individual lots by registration and a strata plan had been filed. Those steps were subsequently taken. [3] The developer is a joint venture in Prince Rupert initially held by the corporate appellants, Standard Apartments Ltd., Proper Tee Investments Ltd., and Greenwich Holdings Ltd. The principals of the developer are the appellants Oswald Jurock, David Barnes, and Ralph Case. [4] The appellants marketed the units of proposed stratified apartments in the Roosevelt Apartments to members of the public in 2006 and 2007. Mr. Bosworth and his wife purchased a unit in the Roosevelt Apartments on February 22, 2007. The condominium development is referred to as Strata Corporation BCS 2210 and has 45 units. [5] It is alleged that the developer was required to and did provide prospective purchasers with a disclosure statement, pursuant to the Real Estate Development and Marketing Act , S.B.C. 2004, c. 41 [ REDMA ]. That statement included an assertion that Seal Cove Properties Ltd. and the developer had commissioned an engineer's report that would be available at the developer's office and that, according to the report, the Strata Corporation BCS 2210 buildings were "free from material defect". [6] Mr. Bosworth alleges the disclosure statement does not refer to a field review done by an engineer in June 2005, or to the problems highlighted in that review. He also alleges the disclosure statement did not indicate that the field review was only a quick assessment of the building and that, while it did include an estimated interim budget for the operation of the proposed strata plan, it did not forecast any significant maintenance repairs or capital expenditures. [7] After the sale of a number of the strata units, the strata council of Strata Corporation BCS 2210 confirmed deficiencies in the development that required the removal of the building's siding, building paper that had been installed improperly around the windows, and some of the building’s sheathing in order to visually inspect for mould. The anticipated repair costs are said to be $1,579,922, or $35,109 per unit. The latter is an assessment only, because the problem only affects the common property. [8] Mr. Bosworth asserts that he has a right of action against the developer, its directors and anyone who signed or authorized the filing of the disclosure statement, and seeks to bring his action on behalf of all persons who acquired a strata unit in Strata Corporation BCS 2210 in the Roosevelt Apartments. His claims are for misrepresentation pursuant to REDMA , and for negligent and fraudulent misrepresentation. [9] The chambers judge found that the pleadings filed by Mr. Bosworth met the requirements of s. 4(1) of the CPA as they disclose a cause of action, there is an identifiable class of two or more persons, the claims of the class members offer common issues to be determined, and Mr. Bosworth is a representative plaintiff who would fairly and adequately represent the interest of the proposed class. He described the key issues before him as whether the representative claim proposed for the class action might be brought under another statute and whether a proceeding under the CPA is not the preferable proceeding. [10] The chambers judge rejected the appellants’ argument that s. 41(a) of the CPA , which provides that the CPA does not apply to a proceeding that may be brought in a representative capacity under another Act, precludes certification in this case because ss. 171 and 172 of the Strata Property Act , S.B.C. 1998, c. 43 [ SPA ] provide for an action for damages to be brought by the strata corporation on behalf of and as a representative of others. He concluded that s. 41(a) of the CPA did not bar certification, as Mr. Bosworth himself could not bring a representative proceeding under s. 171 of the SPA . [11] Finally, the chambers judge found at para. 79 that the proposed class proceeding is the preferable proceeding, as “the strata representative proceeding, if it could be brought, would not be more practical, fair, efficient, or manageable” than the class action proposed by Mr. Bosworth. Issue on Appeal [12] The sole issue in this appeal is whether s. 41(a) of the CPA is a bar to proceedings by a strata owner on behalf of other owners of strata units in the same strata development. Legislative Provisions [13] The appellants contend, as they did before the chambers judge, that s. 41(a) of the CPA together with ss. 171 and 172 of the SPA prevent Mr. Bosworth from pursuing a class proceeding against them. [14] Section 41(a) of the CPA provides: 41 This Act does not apply to (a) a proceeding that may be brought in a representative capacity under another Act [15] The relevant parts of ss. 171 and 172 of the SPA provide: 171(1) The strata corporation may sue as representative of all owners, except any who are being sued, about any matter affecting the strata corporation, including any of the following matters: ... (b) the common property or common assets; (c) the use or enjoyment of a strata lot; ... (2) Before the strata corporation sues under this section, the suit must be authorized by a resolution passed by a 3/4 vote at an annual or special general meeting. ... 172(1) The strata corporation may sue on behalf of one or more owners about matters affecting only their strata lots if, before beginning the suit, (a) it obtains the written consent of those owners, and (b) the suit is authorized by a resolution passed by a 3/4 vote at an annual or special general meeting. Standard of Review [16] As this appeal involves the interpretation of statutory wording, the appropriate standard of review is that of correctness: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235 at 247. Discussion [17] The chambers judge accepted that all of the purchasers of the strata lots in Strata Corporation BCS 2210 remain owners of their strata units in the Roosevelt Apartments. Mr. Bosworth’s action is brought on behalf of all of the original strata unit purchasers. There are no former strata lot owners and all potential class members remain as owners of the strata lots. The action relates to deficiencies in the common property and common assets of Strata Corporation BSC 2210. [18] The appellants contend that the Legislature has made structural choices under the CPA , where one plaintiff alone is needed and court approval is required both to opt out or to proceed, whereas under the SPA , only a 3/4 vote of all members is required and no court approval or opt out provision applies. They contend that because the SPA provides for an action for damages to be brought by Strata Corporation BCS 2210 "on behalf of one or more of the owners" or as a "representative of all owners", the action is barred from being brought as a class proceeding by s. 41 of the CPA. [19] Mr. Bosworth contends that to bar an action under s. 41 of the CPA , the proposed cause of action must be available under another statute, and he must be entitled to pursue his cause of action in a representative capacity under that other statute. He contends that although the damage upon which his claim is based is manifested in the common property of the strata corporation, his claim is not for damage to common property but rather for misrepresentations allegedly made to each individual investor. He further contends that whether Strata Corporation BCS 2210 has standing to bring such a claim is unclear. [20] The chambers judge found that the SPA did not authorize anyone other than the strata council to bring an action in a representative capacity, and that s. 41(a) of the CPA applied only if Mr. Bosworth could bring a representative proceeding under another statute. The basis for his finding is found at para. 66 of his reasons: ... I think the weight of the authority supports the position that for s. 41 to operate as a bar to certification of a class proceeding such as this, another Act must authorize the plaintiff to bring the action in a representative capacity. In Knight , the Court of Appeal found that although s. 41(a) barred the TPA claims, it held that s. 41(a) did not bar the BPCPA claim because the TPA allowed any person including the plaintiff Knight to sue on behalf of others, whereas the BPCPA had no such provision. Similarly, in Seidel , because Ms. Seidel could not bring a representative action, only the Director, s. 41(a) of the Class Proceedings Act was not a bar to certification. As well, Crawford supports the interpretation that for s. 41 to be a bar to this class proceeding, Mr. Bosworth must be able to bring a representative proceeding under another statute. [21] I respectfully agree with the finding of the chambers judge, and with the basis for his finding. Regardless of the appellants’ argument that the history of the development of the legislation must be examined in order to properly interpret the relevant provisions, the chambers judge properly based his finding on the jurisprudence that has interpreted the legislation. The authorities that he relied upon applied a purposive and contextual approach to the statutory wording in issue and, despite the appellants’ contention to the contrary, are consistent with the intended purpose of the bar against competing actions found in s. 41(a) of the CPA. [22] I am not persuaded by the appellants’ submission that the fact that there are no former strata lot owners and that all potential class members remain as owners of the strata lots is a factor that diminishes the applicability of the reasoning in Crawford v. London (City) (2000), 47 OR (3d) 784 (S.C.J.), leave to appeal ref’d [2000] O.J. No. 2088 (S.C.J.). Moreover, while former owners were in the class proposed in that case, they were not in the other cases relied upon by the chambers judge. [23] The chambers judge relied on Knight v. Imperial Tobacco Canada Ltd . 2006 BCCA 235, 267 D.L.R. (4th) 579, in which this Court considered s. 41 of the CPA in connection with purported class actions brought against cigarette manufacturers under the Trade Practices Act , R.S.B.C. 1996, c. 457 and its successor legislation, the Business Practices and Consumer Protection Act , S.B.C. 2004, c. 2 [ BPCPA ], and ruled that a proceeding contemplated by s. 172 of the BPCPA could not properly be described as the type of action that could be brought in a representative capacity. [24] At para. 10 in Knight , Mr. Justice Hall wrote: ... There is no provision in this section that is similar in effect to s. 18(3) of the [ Trade Practices Act ]. While an individual may bring an action under s. 172 without having a special interest or indeed any interest under the statute, I do not consider that the section provides for the individual bringing the action to act as a representative of anyone else. Section 172 merely provides that the individual bringing the action does not have to have a specific interest in the consumer transaction that might give rise to an action. [25] Madam Justice Newbury summarized aspects of Knight at para. 13 in Jellema v. American Bullion Minerals Ltd. , 2010 BCCA 495: ... Section 18 of the earlier statute (" TPA ") provided in ss. 1 that an action could be brought by a person whether or not that person had a special or any interest under the Act or was affected by a consumer transaction. Subsection 3 permitted any person to sue on his or her own behalf and on behalf of consumers generally or a designated class of consumers in British Columbia. The Court found in Knight that this was "legislation of the sort that would preclude a claim brought under it from certification because of the provisions of s. 41 of the [ Class Proceedings Act ]". [26] The chambers judge recognized that in Jellema , this Court held that an oppression action codified in s. 227(2) of the Business Corporations Act [ BCA ] was not a proceeding that may be brought in a representative capacity, and thus was not a bar to a proceeding under the CPA . He referred to paras. 23–24 of the reasons of Newbury J.A., where she wrote: ... Like Hall J.A. in Knight , I do not consider that the section by its terms provides for the applicant to act as the representative of anyone else. In other words, nothing in the wording of s. 227 contemplates a "declaration made expressly by the court, or implicitly by the statute, at the front end of the proceeding that the complainant's action will govern the rights and obligations of the members of [a] specifically-defined representative class." ( Stern , para. 68.) ... Given also that the Class Proceedings Act is to be interpreted in a broad and remedial manner, I agree with the plaintiffs that the case at bar is exactly the type of case in which the benefits and protections of a class action are appropriate... [27] The chambers judge also referred to the decision of the Supreme Court of Canada in Seidel v. TELUS Communications Inc ., 2011 SCC 15, [2011] 1 S.C.R. 531, where the lines drawn by the repealed Trade Practices Act and the BPCPA that were considered in Knight was discussed with respect to s. 41 of the CPA . He referred to the reasons of Binnie J. for the majority who said, at 567–568: Reference was made to s. 41(a) of the CPA which provides that no class action can be instituted where a representative action is available. However, under the BPCPA , only the Director may bring a representative action. Ms. Seidel may not do so. While consumer activists may bring actions despite the fact that they have not personally suffered any damage, such actions cannot be brought as representative actions under the BPCPA. This is to be contrasted with the situation under the now repealed TPA , where s. 18(3) allowed consumer-brought representative actions. Accordingly, s. 41(a) of the CPA is not a bar to Ms. Seidel's application for certification. [28] In the case before us, Mr. Bosworth cannot personally bring an action against the appellants as a representative action. His inability to do so places his claim in the same context as the claims of Mr. Knight and Ms. Seidel under the BPCPA , and Mr.Jellema under the BCA. [29] I therefore conclude that the chambers judge was correct in finding that, because Mr. Bosworth was unable to bring a representative proceeding under another statute, s. 41(a) of the CPA is not a bar to certification of his action as a class action, and I would dismiss the appeal. [30] The standing of a strata corporation to bring representative claims on behalf of strata unit owners based upon allegations of misrepresentation in a disclosure statement was described simply as “arguable” in Strata Plan LMS 1564 v. Lark Odyssey Project Ltd ., 2008 BCCA 509 at para. 12. Given my view that Mr. Bosworth’s claim is not barred by s. 41(a) of the CPA , it is unnecessary to resolve this interesting question. Conclusion [31] I would dismiss the appeal. “The Honourable Mr. Justice Hinkson” I agree: “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Camaso Estate v. Saanich (District), 2013 BCCA 6 Date: 20130110 Docket: CA038998 Between: The Estate of Majencio Camaso, Deceased, Maria Teresa Camaso and Christine Kate Camaso, an infant by her guardian Ad Litem, Maria Teresa Camaso Respondents (Plaintiffs) And The Corporation of the District of Saanich, Kristopher Dukeshire Appellants (Defendants) Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Low The Honourable Madam Justice D. Smith On appeal from:  Supreme Court of British Columbia, April 13, 2011 ( Camaso v. Egan , 2011 BCSC 456, Victoria Docket No. 06 0184) Counsel for the Appellants: M.J. Hargreaves, D.C. Windsor-Doyle Counsel for the Respondent Estate: A.C. Ward, N.M.G. Chantler Counsel for the Respondents, H.M.T.Q. & D. Morris T.S. Saunders Counsel for the Intervenors, Cdn. Police Association and B.C. Police Association: S.M. Coristine Place and Date of Hearing: Vancouver, British Columbia September 5 and 6, 2012 Place and Date of Judgment: Vancouver, British Columbia January 10, 2013 Written Reasons by: The Honourable Mr. Justice Low Concurred in by: The Honourable Madam Justice Saunders The Honourable Madam Justice D. Smith Reasons for Judgment of the Honourable Mr. Justice Low: [1] Majencio Camaso was 33 years old when he died on 11 July 2004 after being shot by the appellant Kristopher Dukeshire, a police constable employed by the appellant municipality, The Corporation of the District of Saanich.  The widow of the deceased man, Maria Teresa Camaso, and their infant daughter brought an action against the appellants and others for damages for wrongful death under the Families Compensation Act , R.S.B.C. 1996, c. 126.  They were successful at trial as against the appellants and were awarded damages totalling $235,000.  The trial judgment can be found at 2011 BCSC 456. [2] The action was dismissed as against three other police officers employed by Saanich – Cst. Tara McNeil, Cst. Kathleen Murphy and the Chief Constable, Derek Egan – as well as against Derek Morris, a paramedic, and the Province of British Columbia, his employer. [3] Not all claims pleaded against Cst. Dukeshire and Saanich were successful.  The trial judge rejected assertions of a breach of duty of care by Saanich (and Chief Constable Egan) relating to training of officers and failure to provide them with certain equipment.  He found that the investigation of the shooting was deficient in many respects and therefore negligent but concluded that Saanich and its police officers did not owe a duty of care to the plaintiffs in that respect.  In any event, the plaintiffs failed to prove damages flowing from that negligence.  Finally, the judge found a claim against Cst. Dukeshire (and against the other two constables and Chief Constable Egan) for misfeasance in public office to be unproven. [4] None of the dismissed claims is the subject of appeal or cross appeal. [5] The appellants contend the trial judge erred in finding Cst. Dukeshire negligent in causing the death of Mr. Camaso.  They seek an order dismissing the action as against them or, in the alternative, an order for a new trial.  They also say the judge erred in awarding general damages to the respondents.  Finally, they say the judge erred in awarding special costs against them and in ordering that they reimburse the respondents for costs awarded against the respondents in favour of those defendants against whom no liability was found (a “Sanderson” order). [6] The respondents cross appeal on the issue of damages.  They say the amounts awarded were inordinately low. [7] It is my opinion that the trial judge erred in law in his assessment of the body of evidence before him and that the appropriate remedy is a new trial rather than dismissal of the action as against the appellants.  Because I have reached this conclusion, I will confine my recitation of the facts to matters that do not appear to be in dispute.  I will also refer to evidence not mentioned by the trial judge in his reasons.  In doing these things, I do not intend to bind the judge presiding at a new trial to any findings of fact. [8] It is not necessary to determine the damages or costs issues raised by the appellants or to consider the cross appeal. Facts [9] On the morning of 11 July 2004, a Sunday, Mr. Camaso, who had a history of mental illness, was acting strangely.  He told his wife that a piece of red balloon taped on the wall of their apartment was some kind of “high-tech watching device” and “they” were using it to watch him.  He told his wife that she was not to touch it. [10] Mr. Camaso used a rolling pin to destroy a television set, a computer and light fixtures.  Ms. Camaso dressed her daughter so they could leave the apartment.  She saw Mr. Camaso in the kitchen holding a container of gasoline and a lighter.  He told her to take their daughter out of the apartment because “I don’t want to hurt you”. [11] At some point, Ms. Camaso called 911 from the apartment.  She reported that her husband was losing control of himself.  She said she needed police assistance.  The operator asked if it involved medical issues and Ms. Camaso said it did. [12] Ms. Camaso testified that her husband had been off his medication for about two weeks.  The night before the 911 call, he did not sleep but walked around the apartment.  Around 2:00 a.m., he stated, as noted by the trial judge at para. 23, “that everyone in Canada was a ‘terrorist’, he was not afraid to die, he was talking about things that he had read in the Bible, and that the world was going to end soon because of all of the terrorists”. [13] At 9:01 a.m. there was a dispatch of an ambulance to the sprawling apartment complex that contained the Camaso residence.  Constables Dukeshire, McNeil and Murphy were also sent to the scene by a police dispatcher.  Constable Dukeshire was the assigned officer.  He was told that a female caller had reported that her husband was out of control; that there was a medical problem; that the 911 call had been abandoned; that on a call back both the female and a male answered and it appeared the female couldn’t talk; and that the dispatcher did not know what the problem was. [14] The three constables traveled to the scene separately.  In later dispatches each was advised that it appeared the man was “off his meds” and was throwing things around.  They were further advised that it was assumed (correctly, as it turned out) that the man was the person named in 2001 records as having been admitted to hospital for observation because he was deranged and felt people were out to hurt him. [15] The trial judge described what the police officers observed at the Camaso apartment: [29]      It became apparent to the three ambulance attendants and the three Constables that there had been a fire in the Camaso suite.  There was a strong smell of gasoline outside the building and there was damage within the apartment.  The damage included a scorched floor and a broken screen on the television set.  The apartment was not occupied when Constables Dukeshire, McNeil and Murphy entered it.  The Saanich Fire Department was called and dispatched.  Despite the fact that there was no one at the scene who required treatment, the ambulance attendants waited until the Saanich Fire Department arrived. [16] As the result of another 911 call made by Ms. Camaso from a neighbour’s residence, Cst. McNeil learned from the police dispatcher that Ms. Camaso believed her husband left in a green vehicle and the dispatcher was having somebody search the licence plate.  The dispatcher also provided the address in the apartment complex to which Ms. Camaso had gone.  The three constables returned to their vehicles intending to go to meet Ms. Camaso. [17] Mr. Camaso returned to the apartment building where he was refused entrance by Danny Carlson, an ambulance service trainee who had accompanied the paramedic defendant, Derek Morris, to the scene.  Mr. Carlson asked Mr. Camaso if he was hurt but the man said he was fine.  Mr. Camaso continued toward the door but the building manager told him he could not enter.  Mr. Morris was present and testified that Mr. Camaso “reluctantly” complied with the manager’s direction. [18] Mr. Morris reported Mr. Camaso’s location to his dispatcher so the police officers could be informed.  Upon being so advised, the three officers ran from their vehicles to the apartment building. [19] In the meantime, Mr. Camaso began to walk away and Mr. Morris followed him.  He informed dispatch that Mr. Camaso was running northbound.  Mr. Morris ran after him.  Mr. Camaso stopped and Mr. Morris engaged him in a conversation that he thought, after initial verbal resistance from Mr. Camaso, began to have a calming effect on the man.  Then Mr. Camaso tensed up and ran off quickly.  Mr. Morris pursued him. [20] Constable Dukeshire caught up to Mr. Morris and yelled “Stop, Police, stop”.  Mr. Morris identified Mr. Camaso as the man the constable was pursuing.  Both of them continued the pursuit with the constable eventually in the lead. [21] Mr. Camaso arrived at an elementary school parking lot where his car sat.  The front of the vehicle faced Cst. Dukeshire as he arrived at the parking lot.  Mr. Camaso opened the trunk of the car and reached inside.  The constable stopped and drew his firearm.  Mr. Camaso emerged with a long, thin object in his hand.  Mr. Morris ran across the street to take shelter by a church. [22] Constable Dukeshire uttered loud commands to Mr. Camaso to drop the item and get down on the ground.  Mr. Camaso moved to the back of the car and came back to the side of the car with his hands, both empty, in the air.  He bent down as if he was complying with the constable’s order. [23] Constable Dukeshire was relieved and took several steps forward to get a better view of Mr. Camaso.  However, Mr. Camaso straightened his body, ran to the rear of the vehicle, reached into the trunk and emerged again holding a crowbar, a metal pipe, or both.  He ran at the constable who continued to yell commands.  There was evidence from eyewitnesses, including Mr. Morris, that Mr. Camaso said “kill me, kill me” or “so you kill me now, you kill me now” as he ran toward Cst. Dukeshire. [24] The constable backed up quickly as Mr. Camaso bore down on him.  The trial judge made no finding of fact as to Mr. Camaso’s speed but it seems to emerge from the whole of the evidence that he was moving fast while brandishing a potentially lethal weapon, perhaps two. [25] Constable Dukeshire fired three shots.  The judge made no specific finding in this regard, but it appears that two of the bullets struck Mr. Camaso while the third struck a crowbar he was brandishing with that bullet fragmenting and pieces of it striking him.  The crowbar had a mark on it and there was a serious injury to Mr. Camaso’s finger. [26] Mr. Camaso was pronounced dead at hospital. [27] At trial, each party filed a report of a police expert with respect to the conduct of Cst. Dukeshire, including the shooting.  Each expert was cross examined at length. [28] The respondents’ expert was Professor R. Paul McCauley, a criminology professor from the Indiana University of Pennsylvania and a former Pennsylvania municipal police officer.  His two reports totalled over 30 pages, though they also discussed matters other than Cst. Dukeshire’s actions, such as the police investigation of the shooting.  Professor McCauley stated that if one examines the “snap-shot” in time when Cst. Dukeshire fired at Mr. Camaso, the use of deadly force was reasonable and justified; however, the situation that made the shooting necessary “was created by Cst. Dukeshire”.  The constable knew Mr. Camaso was emotionally disturbed and off his medication.  He “created the fear and danger” that led to Mr. Camaso’s death.  Cst. Dukeshire failed to de-escalate the pursuit and  continued to pursue and yell at Mr. Camaso; failed to coordinate a field plan for apprehending Mr. Camaso with the other officers; and created fear by “yelling, pointing his weapon, and walking toward” Mr. Camaso. [29] There was a dispute as to the extent to which the court should receive the opinion evidence of Professor McCauley.  At a pretrial hearing, the trial judge ruled that Professor McCauley’s evidence would be confined to police practices in the United States.  At trial, the judge held that some of his opinions were relevant but failed to clarify which of them were admissible on that basis.  In this court, the appellants say this put them in the position of having to cross examine an expert who, in the pretrial ruling, had been determined to lack qualification to provide opinions as to Canadian policing standards.  The appellants say they were further hampered in their cross examination of the witness because they did not know which of his opinions had been received by the court as being relevant.  I do not understand the appellants to raise this as a discreet ground of appeal, but they and this court are left with an incomplete understanding of the extent to which the opinions of Professor McCauley were admitted into evidence at trial. [30] The appellants’ expert was Vancouver Police Department Sergeant Mark Horsley, an officer with 22 years’ experience and a qualified expert in use of force.  His report was 27 pages and was focused on the actions of Cst. Dukeshire and the other officers.  In Sgt. Horsley’s opinion, Cst. Dukeshire appropriately responded to the situation and met his duty to attempt to apprehend Mr. Camaso.  He used presence and loud commands to attempt to subdue Mr. Camaso.  Cst. Dukeshire appropriately drew his gun, in a further attempt to secure compliance, after Mr. Camaso escalated the situation by moving to the rear of the vehicle and opening the trunk.  In Sgt. Horsley’s opinion, Cst. Dukeshire was justified in drawing his gun and shooting Mr. Camaso, who repeatedly refused to comply with demands and who demonstrated “persistent and sustained intent” to attack Cst. Dukeshire.  His performance was “text book.”  Confronted with “deadly force,” Cst. Dukeshire had “no choice but to shoot” Mr. Camaso.  In the face of a person wielding a crowbar and a pipe, it would not have been reasonable for a police officer to expose himself to threat of injury or death by first using empty-hand control, pepper spray, a baton, or a Taser.  (Constable Dukeshire had a baton and pepper spray but not a Taser.) [31] The trial judge did not refer at all to the opinions of Professor McCauley and referred to those of Sgt. Horsley only with respect to some minor points.  If the opinion of either (or both) of these experts had been accepted by the court with respect to justification for the shooting (as opposed to the conduct of Cst. Dukeshire up to the point Mr. Camaso attacked him), the respondents’ case would have rested solely on whether Cst. Dukeshire was negligent during the pursuit and, if he was, whether that negligence caused Mr. Camaso to mount his attack of the constable in the school parking lot. [32] It should also be noted that, if the court accepted the overall opinions of Sgt. Horsley, the negligence claims with which we are concerned in this appeal, as well as the action itself, would have been dismissed.  However, although the parties on both sides focused substantially on the opinions of the two experts, we do not know the extent to which the expert evidence was accepted or rejected.  Nor do we know the reasons for reliance or lack of reliance on this important evidence. Grounds of appeal [33] The appellants contend the trial judge erred as follows: (1)      in depriving Cst. Dukeshire of the applicable statutory defences; (2)      in finding that Cst. Dukeshire was negligent in his conduct both before and at the time of the shooting; (3)      in failing to address adequately, or at all, the issue of causation; (4)      in the alternative, in finding that Cst. Dukeshire was grossly negligent . [34] The first and second grounds of appeal can be discussed together. [35] Under s. 21(3)(a) of the Police Act , R.S.B.C. 1996, c. 367, a police officer is personally liable only if gross negligence is proven but his or her employer is liable for the officer’s ordinary negligence.  It will not be necessary to discuss the fourth ground of appeal. Trial judgment [36] Citing Prior v. McNab (1976), 16 O.R. (2d) 380 (Ont. H.C.), the trial judge correctly observed that the onus was on the appellants to prove that the force used by Cst. Dukeshire was not excessive.  It should be noted, however, that this did not relieve the plaintiffs from proving, as they had pleaded, that Cst. Dukeshire was negligent in the manner he dealt with Mr. Camaso during the pursuit.  Nor were they relieved of the onus of establishing that such negligence, if proven, caused the death of Mr. Camaso, to the extent the case rested on that theory of liability. [37] The judge referred to the statutory provisions relied upon by the appellants in support of their position that Cst. Dukeshire did not use excessive force in the circumstances. [38] Section 25 of the Criminal Code , R.S.C. 1985, c. C-46 reads (my emphasis): (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law ( a ) as a private person, ( b ) as a peace officer or public officer, ( c ) in aid of a peace officer or public officer, or ( d ) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose . ... (3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm. (4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if ( a ) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested; ( b ) the offence for which the person is to be arrested is one for which that person may be arrested without warrant; ( c ) the person to be arrested takes flight to avoid arrest; ( d ) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm ; and ( e ) the flight cannot be prevented by reasonable means in a less violent manner. [39] Sections 16 and 28 of the Mental Health Act , R.S.B.C. 1996, c. 288 provide (my emphasis): 16   A person is not liable in damages as the result of doing any of the following in good faith and with reasonable care:  ... (f.1)      if a police officer or constable, apprehending a person under section 28 (1); 28  (1) A police officer or constable may apprehend and immediately take a person to a physician for examination if satisfied from personal observations, or information received, that the person (a) is acting in a manner likely to endanger that person’s own safety or the safety of others, and (b) is apparently a person with a mental disorder . [40] I understand the respondents concede that the apprehension of Mr. Camaso under s. 28 of the Mental Health Act was necessary.  Although it was not so stated by the trial judge, it appears to me that Mr. Camaso’s apprehension was necessary because he was acting in such a way that he was a danger to others as well as to himself.  The trial judge seems to have overlooked the fact that Mr. Camaso had put the safety of many people at risk by starting a fire in his apartment. [41] The trial judge found that Cst. Dukeshire was negligent during the pursuit of Mr. Camaso and in shooting Mr. Camaso while under attack from him. [42] As to the events preceding the physical attack initiated by Mr. Camaso, the trial judge reached the following general conclusion: [280]    From the nature of the advice that he received, Constable Dukeshire knew that Mr. Camaso on a previous occasion had exhibited paranoid tendencies as he “felt people were out to hurt him”.  Constable Dukeshire also knew that Mr. Camaso was a person that needed to be apprehended under s. 28 of the Mental Health Act .  From the 2001 entry, Constable Dukeshire knew that Mr. Camaso had no criminal record.  From the advice that he had received from Police Dispatch, he knew that Mr. Camaso was “off his meds”, and that he was “throwing things around”.  While Constable Dukeshire may well have assumed that it was Mr. Camaso who had started the fire in the apartment, it was not reasonable for Constable Dukeshire to assume that he was pursuing an arsonist.  Instead of pursuing Mr. Camaso as a person with a mental disorder so that he should be apprehended and taken to a physician for examination pursuant to s. 28 of the Mental Health Act , Constable Dukeshire pursued Mr. Camaso as if Mr. Camaso had committed the most egregious of crimes. [43] I have some difficulty finding in the evidentiary record any basis for this criticism of Cst. Dukeshire.  In the interests of public safety, the apprehension of a person under the Mental Health Act might be just as urgent as the apprehension of a criminal.  It was apparent that Mr. Camaso had earlier done the act of arson and taking him into custody was lawful and necessary whether or not he had actually committed the criminal offence of arson.  In finding that the constable treated Mr. Camaso as though he “had committed the most egregious of crimes”, the trial judge did not refer to any evidence from the constable that would support the conclusion.  The constable pursued Mr. Camaso in the exercise of his duty and for reasons that are unimpeachable.  Whether he performed his duty negligently is another matter. [44] In finding that Cst. Dukeshire negligently handled the situation prior to the attack upon him by Mr. Camaso, the judge said: [281]    Once Constable Dukeshire had Mr. Camaso in sight, he took a number of steps which led inevitably to the shooting of Mr. Camaso, with those steps being other than in accordance with the Policy of the Saanich Police Department and good police practice, and other than in accordance with the duty of care that was owed by Constable Dukeshire to Mr. Camaso.  Constable Dukeshire failed to stop to obtain the advice of Mr. Morris about the state of mind of Mr. Camaso as soon as he was advised by Mr. Morris that Mr. Camaso was the “subject of the complaint”.  Therefore, Constable Dukeshire was not in the position to receive the advice that Mr. Camaso’s command of the English language might make it difficult for him to understand or make himself understood, that Mr. Camaso was agitated but otherwise alert, and that Mr. Camaso had shown no signs of being violent.  Because Constable Dukeshire did not take the time to ascertain the language abilities of Mr. Camaso, his pursuit of Mr. Camaso virtually ruled out the appropriate stage of “communication” which should have been his preferred avenue of dealing with Mr. Camaso. [45] In the ensuing paragraphs, the trial judge particularized what he considered to be additional acts of negligence during the pursuit, which I now set out in chronological order: (1) Cst. Dukeshire failed to co-ordinate the apprehension of Mr. Camaso with the other two constables and without knowing where they were; (2) he failed to engage the assistance of a supervisor; (3) he pursued Mr. Camaso without waiting for backup; (4) knowing that Mr. Camaso had a mental disorder, he shouted commands in a loud voice instead of using calming tones “to assure Mr. Camaso that he was not there to harm him” (para. 286); (5) after hearing Mr. Camaso yell something he could not understand, he failed to obtain translation assistance or to take account of the possibility that Mr. Camaso might not understand what he, the constable, was saying; (6) although concerned that Mr. Camaso might drive away, the constable did not use his radio to request a police vehicle to block the parking lot exit; (7) the officer drew his firearm too early without going through a prescribed continuum; (8) when Mr. Camaso moved toward the ground beside his car, the officer should have re-holstered his service revolver; (9) the officer advanced on Mr. Camaso with his revolver drawn instead of maintaining his distance and waiting for the arrival of his fellow officers; (10) the officer advanced with the intention of handcuffing Mr. Camaso. [46] As to the shooting itself, the judge found the negligence of Cst. Dukeshire to consist of:  (1) failing to take a quick look to see where the other two constables and Mr. Morris were located; (2) failing to fire a warning shot; (3) failing to account for the fact that he substantially outweighed Mr. Camaso in forming the unreasonable belief that “it was necessary to shoot Mr. Camaso for his own preservation” (para. 295); (4) backing up quickly rather than turning and running; (5) failing to consider seeking cover in a jungle gym in the nearby school playground; (6) failing to use his baton instead of his revolver to defend himself. [47] The trial judge reiterated some of these particulars of negligence in the following paragraphs: [299]    Putting myself in the position of Constable Dukeshire or putting a reasonable officer in the position of Constable Dukeshire, it is not reasonable to conclude that it is part of the responsibility of Constable Dukeshire to shoot Mr. Camaso three times and it is not possible on reasonable grounds to conclude that the force he used was necessary for the purpose of protecting himself and others from imminent or grievous bodily harm.  Putting myself in the position of Constable Dukeshire or putting even an inexperienced officer in the position of Constable Dukeshire, it is not possible on reasonable grounds to conclude that the force that was used was necessary.  Constable Dukeshire did not act on reasonable grounds when he shot Mr. Camaso. [300]    I find that Constable Dukeshire breached the duty of care owed to Mr. Camaso when he did not use the least amount of force necessary to carry out his duties, when he failed to remain a safe distance away from Mr. Camaso, when he failed to properly assess the situation before approaching Mr. Camaso, when he failed to plan an appropriate method to deal with the situation, when he advanced on Mr. Camaso thereby failing to deescalate the situation once it appeared that Mr. Camaso was beginning to comply with his commands, and when he failed to wait for backup support.  Constable Dukeshire breached his duty owed to Mr. Camaso to use only so much force as was reasonably necessary to carry out his legal duties. [301]    In the circumstances, I find Constable Dukeshire liable in negligence because I find that there was duty of care owed to Mr. Camaso, that there was a breach of that duty of care, and that the breach of the duty of care caused the death of Mr. Camaso. [302]    At the same time, Constable Dukeshire has failed to establish that the shooting was justified and that the force that he used was not excessive.  In fact, the Plaintiffs have shown on the balance of probabilities that the force that was used was excessive.  I find that Constable Dukeshire cannot rely on s. 25 of the Criminal Code of Canada or the provisions of ss. 16 and 28 of the Mental Health Act .  His use of force was not justified.  I cannot find that Constable Dukeshire believed on reasonable grounds that it was necessary for his self-preservation to use the force that he did.  I have reached the conclusion that Constable Dukeshire is liable in damages as a result of his failure to act in good faith and with reasonable care. Findings of negligence [48] With respect to the first two grounds of appeal, the appellants say the trial judge made four errors in finding negligence: (1)      He misapprehended critical evidence; (2)      He ignored expert opinion evidence as to the standard of care; (3)      He imposed his own standard of care with respect to matters about which either no evidence was adduced or contrary evidence was adduced; and (4)      He imposed liability for conduct not particularized by the respondents in their pleadings or in their submissions, thereby depriving the appellants of the ability to adduce specific evidence and to make specific submissions with respect to such conduct. [49] In my opinion, there is merit in these submissions to such an extent that the reasons for judgment cannot be said to support the order under appeal. [50] A finding of negligence is a question of mixed fact and law.  Unless there is an extricable legal error in the analysis (which would be subject to review on the standard of correctness), the appellate court must not interfere in the absence of palpable and overriding error: see Housen v. Nikolaisen , [2002] 2 S.C.R. 235 at paras. 29 and 36.  Of course, if there is palpable and overriding error in the trial judgment that is capable of affecting the outcome, the appellate court must intervene. [51] Public safety required the apprehension and restraint of Mr. Camaso.  He posed a danger to himself and others.  He could not have been left at large in the community.  At the hearing of this appeal, counsel for the respondents agreed that Cst. Dukeshire had a duty to apprehend Mr. Camaso under the Mental Health Act , although he had to do so with reasonable care.  He agreed that the officer also had a duty to protect the community by preventing Mr. Camaso from doing harm to others.  At para. 287 of his reasons, the trial judge noted that Cst. Dukeshire “was concerned that Mr. Camaso might get into his vehicle and drive away”.  The judge did not say whether he considered this to be a reasonable concern.  It seems to me he might well have concluded, and perhaps should have concluded, that in his mental state the operation of a motor vehicle by Mr. Camaso presented a significant risk to public safety that needed to be prevented.  The judge might have concluded that preventing Mr. Camaso from driving away was reasonably Cst. Dukeshire’s primary concern. [52] In my opinion, the trial judge failed to adequately consider the conduct of the constable during the pursuit in the above context. [53] I find it necessary to address the specific arguments made by the appellants concerning the negligence particularized in the reasons for judgment. [54] The first of these is the question of Mr. Camaso’s ability to understand the English language, English not being his first language.  It was suggested that had the constable taken more time to talk to Mr. Morris after Mr. Morris had talked to Mr. Camaso, the constable would have learned of Mr. Camaso’s limited capacity to use English.  However, Mr. Morris testified that Mr. Camaso appeared to respond when he spoke to him in English.  Mr. Camaso also appeared to understand simple English when he spoke to Mr. Carlson and the building manager at the entrance to the apartment building.  Thus it is clear that nothing was to be gained by Cst. Dukeshire having further discussion with Mr. Morris.  In addition, several witnesses testified that Mr. Camaso routinely spoke English.  The failure attributed to Cst. Dukeshire in this respect is contrary to the evidence and cannot stand as a particular of negligence. [55] It follows that the criticism of the constable for not obtaining the assistance of a translator lacks cogency.  There was no time to take that step.  In addition, there was no pleading, expert evidence or argument on this point.  With some validity, the appellants say that the first time they were aware that this was a matter in issue was when they read the reasons for judgment. [56] The assertion that the constable ought to have learned from Mr. Morris that Mr. Camaso was not violent and ought to have approached him as if he were a non-violent individual cannot stand.  Although the officer did not know Mr. Camaso to have been physically violent, he was aware that he had committed a dangerous act.  Although his evidence on this point might have been superfluous to the obvious, the respondents’ expert witness, Professor McCauley, agreed that it was reasonable for Cst. Dukeshire to see Mr. Camaso as a danger to himself and to the community. [57] There was no opinion evidence that Cst. Dukeshire should have waited for additional backup.  He knew that all radio communications were being monitored by a supervisor at the police station.  As the trial judge correctly found, a supervisor was already on her way to the scene of the incident.  If, as might have been found by the court, it was necessary to prevent Mr. Camaso from driving away, it would have been impractical to await additional police assistance or supervision at the parking lot.  There was no evidence that such assistance could have been on the scene in time to prevent the attack of the constable by Mr. Camaso.  In the circumstances, it is difficult to see how waiting for the assistance suggested could have properly addressed the urgency of the situation. [58] In addition, there is an inconsistency in the findings made with respect to supervision by a more senior officer.  The trial judge found that there was no causal connection between the failure of either Cst. McNeil or Cst. Murphy to call for a supervisor and the shooting.  I will discuss causation under a separate heading, but on this particular of negligence it seems to me that it cannot be said that this failure by the other two constables was not causative but the same failure by Cst. Dukeshire was causative. [59] The trial judge said that a Saanich Police Department policy required Cst. Dukeshire to co-ordinate the pursuit of Mr. Camaso with the other two constables.  There was no such policy in evidence and no expert opinion to like effect.  Nor was there any policy or opinion to support the assertion that, at some point not identified in the trial judgment, Cst. Dukeshire should have waited for the other two officers to catch up to him.  This particular of negligence again fails to take into account the defence position that it was reasonable for Cst Dukeshire to act on his own because of the risk to public safety that arose out of the concern that Mr. Camaso was likely to drive away. [60] There was a conflict in the opinion evidence as to the use of loud commands in dealing with a person in Mr. Camaso’s state.  As noted above, this was a factor in the opinion of Professor McCauley that Cst. Dukeshire created the situation that made the shooting necessary.  On the other hand, it was the opinion of Sgt. Horsley that police officers are trained to resort to simple, loud commands in the circumstances the constable faced.  Although it was of limited value in determining the standard of care, there was also evidence from Mr. Morris that he had frequently witnessed police officers dealing with mentally disturbed people in this manner.  In my opinion, the trial judge could not have properly resolved this important issue without weighing the conflicting evidence and explaining why he chose one opinion over the other.  He referred to neither opinion in making his finding on this important point. [61] The finding of negligence in failing to call for a backup police vehicle to block the parking lot entrance in my opinion was not significant and could have had nothing to do with Mr. Camaso’s decision to attack Cst. Dukeshire. [62] The finding that the constable drew his firearm prematurely, in my opinion, clearly ignored evidence on the point.  Constable Dukeshire testified that he drew his weapon because he was concerned that Mr. Camaso might be reaching for a weapon.  He was not challenged on this assertion in cross examination and it turns out that his concern was justified.  Professor McCauley opined that the officer acted reasonably in drawing his firearm when he did.  I agree with the appellants that the trial judge simply imposed his own standard of care on this point without an evidentiary basis for so doing. [63] The finding that Cst. Dukeshire was negligent because he failed to return his firearm to its holster when Mr. Camaso bent toward the ground was contrary to the opinion of Sgt. Horsley.  The sergeant said that it would have been wrong for the officer to re-holster his weapon.  How the officer should have handled his weapon in the circumstances is not a matter of common experience.  Sergeant Horsley was the only witness in a position to express an opinion about this matter and, at the very least, the trial judge should not have reached the conclusion he did without giving reasons for rejecting the opinion of this witness. [64] Without referring to Cst. Dukeshire’s evidence, the trial judge concluded that he was negligent in advancing on Mr. Camaso with his firearm drawn instead of waiting for the other two officers to arrive.  The judge also stated that it was the constable’s intention to put handcuffs on Mr. Camaso. [65] With respect, these findings are not in accord with the constable’s evidence.  He testified that he was about 50 feet from Mr. Camaso when the man started to bend down as though he was being compliant with the firm order the constable had given to him.  He said that he moved ten feet closer to get a better view.  He did not testify that he got or intended to get any closer than that.  Nor did he testify that he intended to handcuff Mr. Camaso before help arrived.  To the contrary, his evidence was that he was “maintaining cover” on Mr. Camaso so that “ once the next officer arrives ... we would have him handcuffed and under our control as safely as possible ”. [66] Sergeant Horsley testified that police officers in such situations are trained to “maintain their mobility” and he saw nothing wrong with Cst. Dukeshire moving closer as he did. [67] It remains to discuss the acts of negligence the trial judge found to have been committed by Cst. Dukeshire after Mr. Camaso mounted his attack. [68] I have some difficulty understanding how a failure by Cst. Dukeshire to look around for the location of others made it unnecessary for the officer to shoot the man attacking him.  This finding fails to take into account the rapidity involved in the situation, from an attempt by the officer to control Mr. Camaso and apprehend him to a violent attack of the officer, as well as the speed of the attack itself.  In these circumstances, the court would have to consider whether it would have been wise for Cst. Dukeshire to have taken his eyes off his attacker for even a split second.  In addition, this was a suggestion of negligence that emerged only out of questions posed by the court to the constable.  It was neither in the pleadings of the respondents nor in their concluding submissions to the court. [69] In finding negligence for the failure to fire a warning shot, the trial judge failed to consider whether the officer had time to do so, how it would have effectively deterred Mr. Camaso, the danger it might have posed to people in the vicinity and the absence of any expert opinion about recommended police practice as to when, if ever, a police officer might fire a warning shot.  Indeed, Professor McCauley testified that it was reasonable for Cst. Dukeshire not to fire a warning shot. [70] None of the findings of the trial judge as to the failure of the constable to run away, to seek cover behind the jungle gym or elsewhere, or to use his baton instead of his firearm seem to have a basis in the evidence.  These conclusions could not be properly reached without consideration of the expert evidence.  In particular, neither expert testified that it would have been acceptable for the constable to turn and run as the trial judge suggested he should have done.  As I understand the opinions of both experts, because of the nature of the attack upon him by a man wielding a lethal weapon or weapons, Cst. Dukeshire had no alternative but to shoot for self-preservation.  Sergeant Horsley went further and said that the constable should have shot sooner than he did.  The above three findings by the trial judge cannot stand without an explanation for them in face of the expert evidence. [71] This court has said that in police negligence cases expert evidence is not required to establish the standard of care: see Burbank v. R.T.B. , 2007 BCCA 215.  However, the present case was concerned with a police officer’s conduct in performing his duty by lawfully pursuing on foot and lawfully attempting to apprehend a person who was a danger to public safety.  It also, of course, was concerned with the police officer’s use of his firearm with unfortunate and tragic results.  These are not matters of ordinary or everyday experience: see the reasons of Madam Justice Southin in Roy v. British Columbia , 2005 BCCA 88 (at para. 3, 251 D.L.R. (4th) 233.  In my opinion, the court needed expert evidence to properly adjudicate the claims that became the subject of this appeal.  On those claims, the expert evidence was of primary importance and central to the submissions of the parties. [72] By excluding the police expert evidence from almost all the analysis leading to his findings of negligence, the trial judge was not responsive to the case as presented in evidence and as argued by the parties.  Together with the other evidentiary errors I have identified, this amounts to palpable and overriding error that requires appellate intervention. Causation [73] The causation issue raised in the third ground of appeal relates only to the conduct of Cst. Dukeshire prior to Mr. Camaso attacking the constable. [74] As noted above, at para. 281 of his reasons, the trial judge concluded the constable “took a number of steps which led inevitably to the shooting of Mr. Camaso”. [75] With respect, the analysis at para. 281 is incomplete.  There is no discussion of the evidentiary link between the negligent conduct and the shooting of Mr. Camaso.  Further, the judge did not answer the correct question.  Any negligence on the part of Cst. Dukeshire prior to the attack by Mr. Camaso could have caused the death only if it was proven that such negligence caused Mr. Camaso to attack the constable with a weapon or weapons.  In my opinion, because the judge notionally posed the wrong question about causation on this aspect of the case, he did not provide a reasoned analysis to show a connection between Cst. Dukeshire’s conduct during the pursuit and the death of Mr. Camaso.  The causation analysis was incomplete and therefore defective as a matter of law. [76] In any event, in determining causation with respect to negligence prior to the attack by Mr. Camaso, the trial judge did not discuss a psychiatric opinion that had been put into evidence by the respondents.  A consulting psychiatrist, Dr. Anthony Barale, saw Mr. Camaso in February 2001 at the psychiatric intensive care unit at Royal Jubilee Hospital in Victoria.  This was more than three years before the death of Mr. Camaso. [77] In a report dated 5 February 2009, Dr. Barale stated that “there was insufficient evidence to make a diagnosis of a psychosis” in 2001 and “the only specific psychiatric diagnosis that could [then] be made was an adjustment disorder with anxiety”. [78] Dr. Barale apparently was asked to review the notes subsequently made by Mr. Camaso’s family physician and he also must have been given some sort of summary of Mr. Camaso’s conduct on the day of his death.  The doctor thought the family physician over time had properly prescribed an anti-psychotic drug as well as mood-stabilizing medication.  Dr. Barale gave the opinion that “Mr. Camaso had developed a psychotic illness and his condition had deteriorated following the discontinuation of Risperidone, the anti-psychotic”.  I presume this latter point was in response to information from Ms. Camaso that her husband had been off his medication for a couple of weeks.  The doctor did not testify. [79] Dr. Barale concluded his report with the following opinion as to Mr. Camaso’s mental state on the day of his death (my emphasis): Patients in this state may exhibit delusions of persecution and these delusions, in turn, generate marked anxiety and erratic, illogical behavior. As an immigrant with limited English, he would have been pre-disposed to a psychotic illness and the psychiatric literature contains numerous studies demonstrating that new immigrants are at a significantly higher risk of developing psychosis. It is further my opinion that Mr. Camaso's behavior on the day he was shot supports a diagnosis of disorganized behavior which was probably driven by a psychotic process. Patients in such a state are usually very fearful, and depending on circumstances, will respond either by fleeing or acting aggressively towards their perceived assailants. The mental state of such individuals is such that they are not logically processing any commands or, indeed, their environment in general. They are responding to internal, illogical imperatives to defend themselves. Given Mr. Camaso's highly variable and abnormal mental status over the preceding years, it is my opinion that his behavior on the day of his death was driven by a psychotic state. [80] I consider this to be evidence that had to be weighed and discussed before the court could determined whether any acts of negligence by Cst. Dukeshire caused Mr. Camaso to attack the constable.  Because this evidence is not discussed in the trial judgment, the judgment is not sufficiently responsive to important, vigorous submissions made several times on behalf of the appellants.  This is a significant error in law and is sufficient by itself for this court to impugn the finding of causation. Appellate remedy [81] The appellants contend that this court should make two findings.  First, the psychiatric evidence rules out any reasonable possibility that any acts of negligence by Cst. Dukeshire during the pursuit caused Mr. Camaso to attack the constable and thus caused his death.  Second, the expert reports establish that the shooting was justified so that the defence under s. 25 of the Criminal Code is made out.  The appellants say these conclusions should lead us to dismiss the action. [82] I am not prepared to go as far as the appellants suggest.  As I have indicated above, I would allow the appeal mainly on the basis that the trial judge failed in his reasons to consider and discuss important evidence.  I do not think this court should weigh that evidence, together with all the other evidence, in the first instance.  The entire body of evidence has to be taken into account in the context of a trial before this case can be properly judicially resolved. Conclusion [83] I would allow the appeal, set aside the order of the trial judge and order a new trial, limited to the claims of negligence against the appellants that have been the subject of this appeal.  I would also order that the costs of the first trial be determined by the judge presiding at the second trial. “The Honourable Mr. Justice Low” I agree: “The Honourable Madam Justice Saunders” I agree: “The Honourable Madam Justice D. Smith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: United States of America v. Johnstone, 2013 BCCA 2 Date: 20130110 Docket: CA036370 In the Matter of the Extradition Act , S.C. 1999, c. 18, as amended Between: The Attorney General of Canada on behalf of the United States of America Respondent And Jay Cameron Johnstone Applicant Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Neilson The Honourable Madam Justice Bennett On judicial review from: the Minister of Justice, October 6, 2011 and March 23, 2012 (Vancouver Docket Number 24602) Counsel for the Appellant: P. Edelmann Counsel for the Respondent: D. Strachan D. Majzub Place and Date of Hearing: Vancouver, British Columbia September 18, 2012 Place and Date of Judgment: Vancouver, British Columbia January 10, 2013 Written Reasons by: The Honourable Madam Justice Neilson Concurred in by: The Honourable Madam Justice Saunders The Honourable Madam Justice Bennett Reasons for Judgment of the Honourable Madam Justice Neilson: [1] On October 6, 2011, the Attorney General of Canada, to whom I will refer as the Minister, ordered that the applicant, Jay Cameron Johnstone, be surrendered to the United States pursuant to s. 40 of the Extradition Act , S.C. 1999, c. 18 (the “ Act ”), to face a charge of child-luring in Maricopa County, Arizona. On March 23, 2012, the Minister declined Mr. Johnstone’s application for reconsideration of that order. Mr. Johnstone now applies for judicial review of each of those decisions, pursuant to s. 57 of the Act . He argues his surrender is unjust and oppressive, and violates his rights under s. 7 of the Charter , because the United States earlier deported him to Canada with full knowledge he was facing this charge, and the prolonged proceedings to return him for trial have led to untenable delay and prejudice to his defence. As well, he maintains the Minister failed to sufficiently consider the cruel and inhumane conditions he will face in the custodial facilities of Maricopa County, Arizona. Finally, he says the Minister, in declining to reconsider his decision, has unreasonably rejected new and critical evidence of misrepresentations made by the United States in the extradition proceedings. Background [2] In February 2006, Mr. Johnstone was arrested in Maricopa County for child-luring. It is alleged he contacted an undercover officer over the Internet who was posing as a 13-year-old girl, and discussed engaging in various sexual acts with her. He purportedly arranged to meet with her for that purpose on February 6, 2006, and was arrested upon his arrival at the meeting place. He admitted to police he had been in contact with the fictitious teenager, but said he had abandoned his intention to have sex with her on his way to their meeting. [3] Mr. Johnstone was released on bail and assigned a Public Defender. A trial date was scheduled for July 27, 2006. On May 1, 2006, however, he was detained by the United States Immigration and Naturalization Service (the “I.N.S.”) because his visa had expired. Following a deportation hearing, Mr. Johnstone was deported to Canada on June 12, 2006. [4] On October 12, 2007, the United States requested Mr. Johnstone’s extradition on the child-luring charge. An authority to proceed was issued on March 19, 2008, and he was arrested on a warrant issued under the Act on May 27, 2008. On August 12, 2008, a Supreme Court judge ordered his committal. [5] On September 10, 2008, Mr. Johnstone made written submissions to the Minister objecting to surrender on two grounds. First, he argued his potential sentence in the United States would be substantially more severe than that for the same crime in Canada, and maintained this disparity represented a violation of his rights under s. 7 of the Charter . Second, he alleged the State of Arizona had been aware of his pending deportation, and the ensuing delay in seeking his extradition violated his right to be tried within a reasonable time pursuant to s. 11(b) of the Charter . [6] On January 7, 2009, the Minister ordered Mr. Johnstone’s surrender to the United States. After the first sentence he found imposition of a more severe sentence did not justify a refusal to surrender. As to the argument founded on delay, the Minister observed Mr. Johnstone attributed the delay to the United States, and s. 11 of the Charter did not apply to the actions of a foreign State. Further, he noted Mr. Johnstone could raise the issue of delay at his trial. With respect to Mr. Johnstone’s allegation that the State had been aware of the I.N.S. proceedings, the Minister stated: The Authorities in the United States have advised that the State is not notified by I.N.S. when a person is arrested for a visa violation unless there is a warrant for that person’s arrest. As there was no warrant for Mr. Johnstone’s arrest I.N.S. had no way to know that he had criminal proceedings pending, and the State had no way to know that Mr. Johnstone was being deported. Mr. Johnstone was deported without the State’s knowledge and before the warrant was issued for failing to appear at his July trial date. I note that in his letter to me, Mr. Johnstone’s father indicates that the prosecutor on the deportation matter indicated that the Maricopa prosecutor’s office knew that Mr. Johnstone was detained by INS. It is not clear to me how Mr. Johnstone senior is in possession of this information. In any event, I am not in a position to choose between competing versions of events occurring in the United States. In my view, to the extent that the knowledge of the prosecutor with respect to the deportation hearing is relevant, this matter can be raised in the trial court in the United States. [7] On March 24, 2009, Mr. Johnstone applied to the Minister for reconsideration of the surrender order. He provided a certified recording of his deportation hearing that demonstrated the I.N.S. had been aware of his pending charge, and argued the request for his extradition a year and a half after his deportation was an abuse of process and contravened his right to be tried within a reasonable time. As well, he submitted it was inappropriate to order surrender based on the “false or erroneous evidence” the United States had earlier provided as to the authorities’ knowledge of his outstanding charge. [8] On April 1, 2009, the Minister agreed to reconsider the surrender order. Mr. Johnstone provided further submissions on April 15, 2009, November 2, 2009, February 3, 2010, and September 26 and 27, 2011, expanding on his arguments of delay and misrepresentations by the United States, and raising a new allegation that conditions in the Maricopa County detention facilities were so egregious that they amounted to cruel and unusual punishment. [9] The recording of the I.N.S. hearing submitted by Mr. Johnstone included this exchange: Immigration Judge [J]: Well, that brings up another question Mr. [Slalom]. If he is due to show up in Court, are you sure that the government wants to deport him. S: Well, if he is deported it doesn’t necessarily mean that he is going to be leaving, he could be under departure controls, he can very well be turned over to the state. J: Just checking, just checking Mr. [Slalom]. I don’t want to go forward and deport a man that you then later some Sheriff’s office or somebody is going to come back to the government and say why did you deport him when you knew that he had a court date. S: Well, it could very well be that we will turn him over to the Maricopa Sheriff’s department to ensure his appearance at his Court hearing. J: I just want to get that on the record so that ... S: OK J: ... it doesn’t come back to bite me. Well sir, with that arrest, I am going to deny voluntary departure. I will order you removed from the United States to Canada [...] [10] Mr. Johnstone and his father also provided affidavits stating that, following his arrest by the I.N.S., Mr. Johnstone’s electronic monitoring ankle bracelet, required by his bail conditions, had to be removed and Mr. Johnstone had contacted the Pre-trial Services Coordinator and made arrangements for his father to return it to that office in May 2006. As well, Mr. Johnstone swore that during the I.N.S. hearing, while the courtroom was cleared due to the nature of his charges, the federal prosecutor stated he had spoken to the Maricopa County Attorney’s Office to obtain details of the case. [11] Mr. Johnstone submitted this evidence demonstrated that both the I.N.S. and the County Attorney’s Office had been fully aware he was being deported while facing an outstanding charge in Maricopa County, and established that the earlier information from the United States on this point had been false. He maintained this cast doubt on the reliability of all information and assurances provided by the requesting state, and reiterated his position that to extradite him on the same charge three years later condoned unacceptable delay, was fundamentally unfair, and amounted to an abuse of process. [12] As to the custodial conditions in Maricopa County, Mr. Johnstone argued that deplorable and inhumane conditions had persisted there for many years, and his surrender to those conditions would be unjust and oppressive, and a violation of his rights under s. 7 of the Charter . He provided an affidavit describing the overcrowding, threats of violence and unwanted sexual advances from other inmates, unacceptable food and hygiene, and constant fear he had experienced during the eight days he spent in custody there before his release on bail. He submitted these conditions would be particularly oppressive for him as the medical facilities for inmates were inadequate and he had a history of serious cardiac problems, which had led to a six-vessel coronary bypass on April 28, 2009. [13] As well, Mr. Johnstone provided over 100 pages of media reports and court documents dealing with detention facilities in Maricopa County. These included a 1997 report from Amnesty International about the use of excessive force on inmates in Maricopa County; media reports on cases of inmate abuse there between 1997 and 2008; and a 2008 report from the Goldwater Institute on “The Misplaced Priorities of the Maricopa County Sheriff’s Office”, which focussed on the expenses arising from a large number of successful lawsuits involving abuse of inmates, as well as the revocation in 2008 of the accreditation for the County’s custodial health care facilities by the National Commission on Correctional Health Care (the “N.C.C.H.C.”). As well, the material described the following developments arising from a 1977 class action, Graves v. Arpaio , brought by pre-trial detainees in Maricopa County for violations of their civil rights. The action was settled in 1980 by a consent judgment that established custodial standards for Maricopa County jails and ongoing monitoring to ensure compliance with those standards. Sheriff Arpaio has since brought several unsuccessful applications to be relieved from those terms. Most recently, a 2008 hearing led to the termination of some monitoring requirements, but a number remain in place. Finally, Mr. Johnstone’s father provided a letter enclosing media reports to support his allegation that the United States was providing misleading statements about improvements in the Maricopa County custodial health care facilities. [14] The Minister sought further information from the United States in response to Mr. Johnstone’s submissions and materials. On October 6, 2011, he issued a decision rejecting Mr. Johnstone’s arguments and affirming the order for his surrender. [15] With respect to Mr. Johnstone’s allegation that the United States had provided false and misleading information, the Minister stated he accepted further representations from the United States that the Maricopa County Attorney’s Office had not been aware of Mr. Johnstone’s deportation until April 28, 2009 and, had they known of the I.N.S. proceedings, would have opposed his removal. As to the return of the electronic monitoring bracelet, the Minister accepted the United States’ advice that Pre-trial Services did not have a relationship with the County or United States Attorney, and would have reported this event solely to the court. Finally, the Minister indicated he was not prepared to accept Mr. Johnstone’s allegation that an I.N.S. representative had been in contact with the County Attorney, as there was nothing to support this statement. While the Minister agreed the United States had been mistaken in initially advising that the I.N.S. had no knowledge of Mr. Johnstone’s pending charges, he did not find this error provided a basis for questioning the reliability of other information from the requesting state. The Minister also observed that if this error was relevant to Mr. Johnstone’s defence, he would have an opportunity to raise it at his trial. He attributed the inconsistency in the information from the United States to a “miscommunication”, stating: The Maricopa County Attorney’s Office is the authority responsible for the prosecution against Mr. Johnstone, and they confirm that they were not aware of the decision to deport Mr. Johnstone until after his deportation. In my view, the U.S. prosecutor would have had nothing to gain in allowing Mr. Johnstone’s deportation to take effect prior to the completion of the U.S. criminal proceedings and I accept that the deportation occurred due to a lack of communication between U.S. government departments. [16] As to Mr. Johnstone’s claim of abuse of process, the Minister said he detected nothing in the material before him suggesting bad faith, malicious purpose, or other misconduct integral to establishing such a claim. [17] With respect to Mr. Johnstone’s allegation of unreasonable delay amounting to a violation of s. 11(b) of the Charter , the Minister stated he found nothing that would alter the views he set out in the first surrender decision. [18] Turning to Mr. Johnstone’s argument about the conditions in Maricopa County detention facilities, the Minister listed Mr. Johnstone’s specific concerns, noting Sheriff Arpaio was one of the most feared and controversial law enforcement figures in North America. He acknowledged Mr. Johnstone’s account of his custodial experience and his cardiac condition, and discussed the N.C.C.H.C.’s revocation of Maricopa County’s accreditation for failure to provide adequate health care to inmates. He also referred to the materials provided by Mr. Johnstone and his father. [19] The Minister advised that the United States authorities had provided him with additional information that indicated numerous efforts were being made to improve the situation in the Maricopa County detention facilities. He referred to ongoing discussions between the N.C.C.H.C. and Correctional Health Services (“C.H.S.”) in Maricopa County, regarding recertification of the detention facilities, and a N.C.C.H.C. report of December 22, 2010 indicating the system was ready for a full accreditation survey that would be conducted in the fall of 2011. The United States also advised that, in the meantime, C.H.S. continued to adhere to correctional health standards. [20] The Minister also reviewed developments in the Graves v. Arpaio class action. He said that since 1995 the monitoring of the Maricopa County detention facilities and related health care services had been reduced by court order due to increased compliance by the Maricopa County Sheriff’s Office, although there remained areas in which the facilities failed to meet constitutional standards. The Minister indicated that a team of medical and mental health consultants was currently reviewing conditions and issuing reports every 120 days, which had been sent to Mr. Johnstone. He further noted that the United States had provided a copy of a “ Graves Notice” that is posted in the Maricopa County detention facilities, and sets out the standards the Maricopa County Sheriff’s Office must meet, and contact numbers for inmates to report complaints. [21] After referring to relevant jurisprudence, the Minister affirmed that surrender should not be ordered if it would violate principles of fundamental justice or be unjust or oppressive. He concluded: Having reviewed all of the materials before me, I am satisfied that, while conditions in the correctional facilities in Maricopa County may be difficult, the Maricopa County Sheriff’s Office is making serious efforts to improve their facilities by addressing the issues set out in the Graves v. Arpaio judgment, adhering to the recommendations of health consultants, and correctional health standards. In that regard, I note that the NCCHC will be conducting an accreditation survey very shortly to determine whether the Maricopa County jail system will receive its re-accreditation. Furthermore, through the “ Graves Notice”, inmates are made aware of the standards the Maricopa County Sheriff’s Office must meet and are provided with a mechanism through which to lodge complaints if these standards are not met. Canada has entered into an extradition treaty with the United States and has therefore recognized that the United States has a fair and fundamentally just judicial system. Persons who choose to commit offences in the United States cannot expect to escape prosecution because the conditions of their incarceration may be difficult. In my view, in the circumstances of this case, Mr. Johnstone’s surrender would not be unjust or oppressive, or violate his rights under the Charter on the basis that the custodial situation in the Maricopa County Sheriff’s Office may be harsh. [22] The Minister referred to decisions of the Supreme Court of Canada that had upheld surrender orders for persons who faced lengthy sentences under harsh conditions in the requesting state. He addressed Mr. Johnstone’s medical concerns, set out information from the United States demonstrating the facilities of the Maricopa County jail system could deal with them, and decided that an order for surrender “would not be shocking to the Canadian conscience, or be unjust or oppressive notwithstanding [Mr. Johnstone’s] health concerns”. The Minister concluded by stating he had considered all of Mr. Johnstone’s submissions, and remained of the view his surrender was warranted and would not be unjust or oppressive, or contrary to either the Charter or the Act . [23] On October 7, 2011, Mr. Johnstone applied to this Court for judicial review of that decision, and a hearing was scheduled for March 28, 2012. On March 20, 2012, however, Mr. Johnstone’s counsel wrote to the Minister’s representative advising he had recently received a copy of a new document that directly contradicted the representations made to the Minister that the County Attorney had not been aware of Mr. Johnstone’s deportation until April 2009. He requested the Minister again reconsider his surrender due to the “ongoing lack of reliability of representations by the Requesting State and the fact that the Minister has made his decision on clearly erroneous information”. [24] The new document, titled “Motion to Revoke Bond and Exonerate Bond”, is signed by Eric G. Crocker, Deputy Public Defender, and dated May 9, 2006. It is styled “In the Superior Court of the State of Arizona in and for the County of Maricopa”, and names the State of Arizona as plaintiff and J. Johnstone as defendant. The document states: Defendant was out on release having posted bond in the above-captioned matter. Defendant was subsequently picked up by federal authorities on an alleged immigration violation. Defendant now has a federal immigration hold on him that prevents him from being out on the bond posted in the instant matter. Wherefore, defendant requests the bond posted be revoked and the assets used to post said bond be exonerated to the party posting same so that defendant can get credit for time being served towards the instant matter. The document indicates the case is assigned to the Honourable Teresa A. Sanders, a judge of the Superior Court, and states the original was filed with the Clerk of the Court of Maricopa County on May 9, 2006. It also states copies of the document were mailed or delivered to Judge Sanders and to Keith Manning, Deputy County Attorney, on the same date. [25] On March 23, 2012, the Minister’s representative wrote to Mr. Johnstone’s counsel to advise the Minister did not consider it appropriate to accept this late submission. She pointed out the Minister had earlier reconsidered his decision on surrender and confirmed his previous surrender order, and the judicial review was imminent. [26] On March 28, 2012, following submissions from Mr. Johnstone’s counsel, this Court adjourned the judicial review of the Minister’s second surrender order to permit Mr. Johnstone to bring an application for judicial review of the Minister’s May 23, 2012 decision, refusing to reconsider his decision to order surrender. [27] At the conclusion of his argument before us, Mr. Johnstone’s counsel advised he had just received a further document that supported his position. The State Attorney had been aware of Mr. Johnstone’s pending deportation. We decided it would be inappropriate to consider this information on these judicial reviews, and Mr. Johnstone may approach the Minister directly with that information should he chose to do so. Issues on Appeal [28] Mr. Johnstone raises three issues on the first judicial review: 1)       Was the Minister’s conclusion that Mr. Johnstone’s surrender was not contrary to s. 44(1)(a) of the Act or s. 7 of the Charter as a result of his deportation reasonable? 2)       Was the Minister’s conclusion that Mr. Johnstone’s surrender was not contrary to s. 44(1)(a) of the Act or s. 7 of the Charter based on his allegations of cruel and unusual punishment reasonable? 3)       Did the Minister sufficiently respond to Mr. Johnstone’s submissions? [29] With respect to the second judicial review, Mr. Johnstone says the Minister unreasonably refused to reconsider his order for surrender in the face of new and relevant evidence. Analysis A.       The First Judicial Review [30] Under s. 44(1)(a) of the Act, the Minister must refuse to make a surrender order if satisfied that it would be “unjust or oppressive having regard to all the relevant circumstances”. There is significant overlap between that test and the criteria for establishing a violation of a subject’s s. 7 Charter rights. If surrender is contrary to the principles of fundamental justice protected by s. 7, it will in all probability also be unjust or oppressive, and shock the Canadian conscience: Fischbacher v. Canada (Minister of Justice) , 2009 SCC 46 at paras. 38-39, [2009] 3 S.C.R. 170; Lake v. Canada (Minister of Justice) , 2008 SCC 23 at paras. 24, 32, [2008] 1 S.C.R. 761. [31] Under s. 57 of the Act , a person subject to a surrender order may apply to the Court of Appeal of the province in which he was committed for judicial review of that order. Section 57(7) sets out the grounds for such a review by reference to s. 18.1(4) of the Federal Courts Act , R.S.C. 1985, c. F-7. Mr. Johnstone’s arguments on this review fall within s. 18.1(4)(d), which provides this Court may grant relief if the Minister based the order of surrender “on an erroneous finding of fact that [he] made in a perverse or capricious manner or without regard for the material before [him]”. [32] Review of a surrender order is governed by a standard of reasonableness, whether the alleged error relates to the application of the test in s. 44(1)(a) or to a failure to find a violation of the subject’s s. 7 Charter rights. This deferential standard recognizes the complexity of the Minister’s task, which requires a balancing of multiple competing factors, some of which import political and international considerations that lie within the Minister’s particular expertise. Appellate review therefore does not extend to an independent assessment of the relevant factors, but simply addresses whether the Minister considered them and reached a defensible decision that falls within a range of reasonable outcomes: Lake at paras. 34, 41. [33] The central question is whether surrender is in accord with the principles of fundamental justice. Here, the Minister properly framed his decision in those terms, finding the surrender order was not unjust or oppressive, or contrary to the Charter . The issue is whether that conclusion was unreasonable, either because of the consequences arising from Mr. Johnstone’s earlier deportation, or because his surrender will consign him to custodial conditions that are fundamentally unjust and oppressive. 1.       Was the Minister’s conclusion that Mr. Johnstone’s surrender was not contrary to s. 44(1)(a) of the Act or s. 7 of the Charter as a result of his deportation reasonable? [34] Mr. Johnstone acknowledges that this Court in United States of America v. Gillingham , 2004 BCCA 226 at para. 139, 184 C.C.C. (3d) 97, affirmed that a requesting state is not precluded from obtaining extradition of a person whom it earlier deported. His case therefore does not rest on his deportation alone, but on its consequences, in particular the delay it has caused, and what he characterizes as “the misrepresentations and falsehoods” offered by the United States in an attempt to explain it. [35] Mr. Johnstone submits it was unreasonable to order his surrender when, six years previously, the United States deported him in full knowledge that he was facing a criminal charge there. He says the Minister erred in accepting a conflicting and unreliable explanation for this from the United States, and in failing to give proper weight to his own evidence, which he says clearly demonstrates two false statements by the American authorities. First, contrary to their initial representations,  the I.N.S. knew about his pending criminal charge when it deported him. Second, the County Attorney’s Office was aware of the I.N.S. proceeding before he left the country. In the result, Mr. Johnstone argues no satisfactory explanation has been provided by the United States for his deportation, for the untenable delay in seeking his return, and for the false information initially provided by the requesting state, which contributed to further delay. He maintains this demonstrates a fundamental lapse in the obligations of the United States as an extradition partner, and militates against surrender. [36] Mr. Johnstone further argues the delay has been compounded by the Minister’s unexplained and significant delay in conducting the reconsideration. He says that in simply affirming his initial views on delay in the first surrender order, the Minister erred by giving no consideration to the further two-and-a-half years occupied in reconsidering that order. While Mr. Johnstone stops short of claiming the Minister’s delay constitutes an abuse of process, he submits it must be considered in assessing whether his surrender shocks the conscience. He maintains the cumulative delay has irretrievably compromised trial fairness, and says it was unreasonable for the Minister to conclude these circumstances, taken as a whole, did not create fundamental unfairness and render it unfair and oppressive to surrender him. [37] I am unable to agree. It is apparent from the Minister’s decision that he considered all of the evidence before him, including that proffered by Mr. Johnstone and his father. It was for him to assess the weight of that evidence, and the import of any inconsistencies in it. He found no substance to Mr. Johnstone’s contention that the I.N.S. and the County Attorney’s Office had been in direct communication before his deportation. While he accepted the initial statement by the United States that the I.N.S. did not know about Mr. Johnstone’s charges before his deportation was erroneous, he attributed this to a miscommunication that was not of sufficient magnitude to cast doubt on the reliability of other information from the United States. The Minister was not convinced the County Attorney was aware of the I.N.S. proceedings before Mr. Johnstone was removed. He observed the United States authorities had nothing to gain by permitting Mr. Johnstone’s deportation prior to dealing with his criminal charge. As well, he found nothing to suggest deliberate falsehood or collusion that would add force to Mr. Johnstone’s allegation of bad faith and abuse of process. Finally, the Minister indicated Mr. Johnstone could raise these circumstances at his trial in the United States to the extent they were relevant. [38] I find no reviewable error in these findings and observations. I am satisfied they are reasonable conclusions, supported by the evidence before the Minister. It is not for this Court to re-weigh that evidence and substitute our view of it. [39] As to the impact of delay, two types of delay may have a bearing on whether it will be oppressive and fundamentally unjust to surrender a person to a foreign state. The first is delay that has compromised the fairness of the extradition proceedings. The second is delay so egregious that it is simply unacceptable and shocks the conscience of Canadians or, alternatively, constitutes an abuse of process and amounts to violation of the person’s rights under s. 7 of the Charter : Gillingham at paras. 91-94. [40] Mr. Johnstone’s argument relies on the second residual type of delay. He does not allege unfairness in the extradition proceedings. Further, although he maintains trial fairness has been compromised, he provides no details of any specific prejudice he faces due to delay. Even had he done so, the Minister correctly observed this issue is best raised at his trial in the United States, where the sixth amendment to the United States Constitution guarantees the right to a speedy trial: Argentina v. Mellino , [1987] 1 S.C.R. 536 at 549, 33 C.C.C. (3d) 334. [41] Dealing first with the 16-month delay between Mr. Johnstone’s deportation and the extradition request, the Minister properly concluded in his first surrender decision that Mr. Johnstone cannot invoke s. 11(b) of the Charter as it does not apply to the activities of a foreign country: United States of America v. Allard , [1987] 1 S.C.R. 564 at 571, 33 C.C.C. (3d) 501; Mellino at 547-548. Moreover, delay preceding an extradition request is analogous to pre-charge delay in Canada, and will only be considered in exceptional circumstances where there is evidence of prejudice: Garz v. United States of America , 2006 QCCA 222 at paras. 97-99, 215 C.C.C. (3d) 429. As set out above, Mr. Johnstone has produced no such evidence. [42] The balance of the delay is comprised of the two-and-a-half years between Mr. Johnstone’s request for reconsideration and the second order for surrender. While the Minister did not expressly consider this delay, for the following reasons I am satisfied it cannot provide a foundation for setting aside that order. [43] While Mr. Johnstone claims this delay was caused primarily by the need to clarify erroneous information from the United States, the Minister’s findings that those errors were not deliberate and were effectively insignificant reduces the force of this argument. Furthermore, it cannot be ignored that the manner in which Mr. Johnstone has presented his case has contributed substantially to the delay. Instead of providing all of his arguments and evidence as submissions on the first surrender order, new issues and evidence have been submitted in a piecemeal manner, without explanation. This has required the Minister to make repeated requests for further information from the United States. The last response was received in August 2011, two months before the second order for surrender. Mr. Johnstone’s approach led to an adjournment of this judicial review due to late production of new evidence. As observed by Madam Justice Ryan in Canada (Minister of Justice) v. Reumayr , 2005 BCCA 391 at para. 129, 199 C.C.C. (3d) 1, a person facing extradition is entitled to take these steps, but cannot then lay the blame for the resulting delay at the feet of the Minister or the requesting state. [44] Finally, it is noteworthy that cases involving much longer delays have resulted in extradition. In Turchin v. Étas-Unis d’Am érique, 2007 QCCA 136 at paras. 56-60, 219 C.C.C. (3d) 214, leave to appeal ref’d [2007] C.S.C.R. No. 104, Mr. Turchin was extradited to the United States after a 20-year delay between his deportation to Canada and the extradition request. See also Hungary v. Dascalu , 2009 BCCA 132 at paras. 24-25, 244 C.C.C. (3d) 98, in which there was a five-year delay between an extradition request and the issue of the authority to proceed. [45] In my view, the Minister reasonably concluded nothing in the proceedings to date provide a foundation for a finding of unacceptable delay that constitutes an abuse of process or would shock the Canadian conscience. I would not accede to this ground of appeal. 2.       Was the Minister’s conclusion that Mr. Johnstone’s surrender was not contrary to s. 44(1)(a) of the Act or s. 7 of the Charter based on his allegations of cruel and unusual punishment reasonable? [46] Mr. Johnstone reiterates the arguments he made to the Minister, maintaining the conditions in Maricopa County detention facilities are oppressive and inhumane as evidenced by his own experience, and the body of independent evidence he submitted to the Minister. Relying on Suresh v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 at para. 56, [2002]1 S.C.R. 3, he says this evidence establishes he faces a substantial risk of cruel and unusual punishment to a degree that shocks the conscience and renders his surrender contrary to the principles of fundamental justice enshrined in s. 7 of the Charter and in Canada’s international treaty obligations. He says that, in ordering surrender, the Minister unreasonably ignored reliable independent evidence and placed unjustified weight on assurances by the United States that substandard custodial conditions in Maricopa County were being addressed. He submits these assurances were not credible given the County’s appalling record of inmate abuse and the pattern of misrepresentations by the United States. [47] I earlier summarized the evidence presented by Mr. Johnstone, the responsive material provided by the United States, and the Minister’s decision on this point at paras. 12-13 and 18-22 of this judgment. In essence, the Minister accepted that while conditions in Maricopa County detention facilities were difficult, surrender orders had been upheld in other cases in which the person sought faced a lengthy sentence under harsh conditions. As well, he was satisfied that recent information indicated serious efforts were underway to impede custodial conditions in Maricopa County. He also observed that Canada has an extradition treaty with the United States and thus recognizes the American justice system is fundamentally fair and just. He concluded that surrendering Mr. Johnstone to that system would not shock the conscience or be contrary to s. 7. [48] I am satisfied that was a reasonable decision on the jurisprudence and the evidence available to the Minister. It is clear he was aware of the widespread criticism of conditions in Maricopa County jails. The Minister was not required to expressly refer to each document submitted by Mr. Johnstone, some of which described events occurring over 15 years ago. He properly chose to rely on the most recent information, which came from credible and independent sources and described initiatives and improvements since Mr. Johnstone’s incarceration in Maricopa County in 2006. [49] As to the authorities, the Minister correctly noted that the Supreme Court in United States of America v. Burns , 2001 SCC 7 at paras. 60, 67-69, [2001] 1 S.C.R. 283, affirmed that the potential punishment reasonably anticipated in the requesting state was relevant to whether surrender would shock the conscience or violate the principles of fundamental justice. The Court also observed, however, that the term “shocks the conscience” emphasizes the exceptional nature of circumstances that will constrain the Minister’s discretion to order surrender, and refers to punishment so extreme that it becomes the controlling factor in the extradition analysis. [50] I note that other Canadian authorities to which the Minister referred have described torture, the death penalty, stoning an individual to death, and extrajudicial punishment unsanctioned by a law of general application as examples of exceptional circumstances that would shock the Canadian conscience: Kindler v. Canada (Minister of Justice) , [1991] 2 S.C.R. 779 at 832, 67 C.C.C. (3d) 1; Gwynne v. Canada (Minister of Justice) (1998), 103 B.C.A.C. 1 at paras. 34-37, 50 C.R.R. (2d) 250, leave to appeal ref’d, [1998] SCCA No. 95; Burns at paras. 67-69. In my view, the Minister could reasonably conclude on the evidence before him that the conditions in Maricopa County detention facilities did not reach that level of inhumanity. [51] The Minister’s decision is supported by two decisions of this Court that found harsh custodial conditions in the requesting state did not justify refusing surrender. In Gwynne , Mr. Gwynne had escaped from a prison in Alabama where he was serving a 120-year sentence, and the United States sought his extradition to serve the remainder of that sentence. The Court considered whether the harsh sentence faced by Mr. Gwynne in the “degrading, dangerous, and apparently endemic” prison conditions in Alabama demonstrated his extradition would shock the conscience and be contrary to principles of fundamental justice. Mr. Justice Goldie, writing for the majority, was not persuaded surrender was unreasonable. He concluded that while the conditions Mr. Gwynne described were subjectively shocking, safeguards of his constitutional rights in the United States were in place, albeit working fitfully. As well, Mr. Justice Goldie observed that Mr. Gwynne’s argument invited the Court to examine and condemn the criminal justice system of the United States, a prospect that he found to be a “singularly unsuitable task” for the Court. He accordingly concluded that although the evidence presented “subjectively abhorrent” custodial conditions, these were not contrary to the principles of fundamental justice. Southin J.A. dissented, holding the Alabama prison conditions, combined with the harsh sentence, were unacceptable. [52] In United States of America v. Reumayr , 2003 BCCA 375, 176 C.C.C. (3d) 377, leave to appeal ref’d, [2005] S.C.C.A. No. 474, the person sought relied on reports from human rights organizations to argue the degrading and dehumanizing conditions in United States federal prisons would violate Canadian principles of fundamental justice. Mr. Justice Mackenzie, writing for the Court, referred to Gwynne and, while accepting custodial conditions in American federal prisons could be criticized, observed that a decision by the Minister that they were so shocking as to be unacceptable would have profound implications for the extradition relationship between Canada and the United States. He found the Minister’s analysis appropriate, and declined to set aside the order for surrender. [53] I would not give effect to this argument. 3.       Did the Minister sufficiently respond to Mr. Johnstone’s submissions? [54] Under this heading Mr. Johnstone seeks to advance a stand-alone complaint that the reasons for surrender given by the Minister were inadequate. Relying on Baker v. Canada (Minister of Citizenship and Immigration) , [1999] 2 S.C.R. 817 at para. 43, 174 D.L.R. (4th) 193, and United States of America v. Taylor , 2003 BCCA 250 at paras. 15-16, 175 C.C.C. (3d) 185, he submits his surrender was clearly a significant decision and the Minister was obliged to provide reasons that were responsive to his submissions, explain why he rejected them, and demonstrate that he had considered “all relevant circumstances” as required by s. 44(1)(a) of the Act . Mr. Johnstone says the Minister’s decision fails to meet these criteria and is simply conclusory. The order for surrender was thus made “without regard to the material before [him]”, contrary to s. 18.1(4)(d) of the Federal Courts Act , and the matter must be remitted to the Minister for further consideration. [55] I am unable to agree. First, the Supreme Court’s decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62, [2011] 3 S.C.R. 708 [ N.L.N.U. ], has shed significant doubt as to whether adequacy of reasons is a stand-alone basis for setting aside a decision on a judicial review undertaken on a standard of reasonableness. Instead, Justice Abella, writing for the Court, held at para. 14 that, rather than conducting two discrete inquiries, the reviewing court should adopt a “more organic exercise” and review the reasonableness of the outcome and the adequacy of the reasons together. [56] Here, the link between these two issues is evident in my analysis on the first two issues raised by Mr. Johnstone, which, of necessity, involved an examination of the Minister’s reasons to ensure he had addressed all relevant circumstances as required by s. 44(1)(a). I am satisfied that examination revealed the Minister’s decision met the standard affirmed by Justice Abella at para. 16 of N.L.N.U. : his reasons are sufficient to allow this Court to understand why he made his decision to surrender Mr. Johnstone, and to determine whether that decision fell within the range of reasonable outcomes. [57] In Lake at para. 46, Justice LeBel affirmed the Minister must provide reasons sufficient to allow the person to understand why he is being surrendered, and to permit appellate review. The reasons need not be comprehensive or analyze every factor, but they must demonstrate the Minister considered the individual’s submissions, and explain why he rejected them. The Minister’s reasons unquestionably met this standard. [58] I am satisfied the Minister considered all of the material provided to him, and reasonably concluded that surrender was justified. I would therefore dismiss Mr. Johnstone’s application for judicial review of the second order of surrender. B.       The Second Judicial Review [59] Mr. Johnstone maintains it was unreasonable for the Minister to refuse reconsideration in the face of the Motion to Revoke Bond and Exonerate Bond that he sent to the Minister on March 20, 2012. Mr. Johnstone says this document clearly contradicts earlier statements from the United States to the effect the County Attorney was unaware of his deportation proceedings, and adds to the continuing pattern of misleading representations made by the requesting state. He says the Minister’s refusal to reconsider his decision in light of this new information exemplifies his unreasonable approach. [60] Section 43(1) of the Act states the general rule that the Minister may accept submissions from the person sought for 30 days after committal. Section 43(2), however, gives the Minister broad discretion to receive later submissions “in circumstances that the Minister considers appropriate”. [61] The order committing Mr. Johnstone was made four years ago. The Minister earlier exercised his discretion in Mr. Johnstone’s favour by agreeing to reconsider the first surrender order. This led to a prolonged exchange of submissions and responses. Further, the Minister did not strongly oppose Mr. Johnstone’s application to adjourn the hearing of the first judicial review on March 28, 2012 to enable Mr. Johnstone to apply for further reconsideration. [62] Given this history, I am not persuaded it was unreasonable for the Minister to refuse further reconsideration on March 23, 2012. Mr. Johnstone has had ample opportunity to put forward his case over the last four years but, as mentioned previously, he has done this in a piecemeal and incomplete manner without any explanation for this approach. Moreover, the bond document by itself is not conclusive. It simply states Mr. Johnstone is on an “immigration hold”. There is nothing to say what transpired in the proceeding thereafter and what, if any, role the County Attorney’s Office played in it. It is a reasonable inference that the bond holder was someone known to Mr. Johnstone who might have provided this information but, without explanation, failed to do so. [63] Finally, as earlier described, the alleged misrepresentations as to the County Attorney’s knowledge of Mr. Johnstone’s deportation do not go to a question of substance in this proceeding. As the Minister observed, that office had nothing to gain by permitting his deportation, and any errors and miscommunications by the United States authorities in trying to explain why it happened do not appear to be rooted in malice or bad faith. To the extent these communications, and the bond document, are relevant, Mr. Johnstone may raise them at his criminal trial in Arizona. [64] I would accordingly dismiss the second judicial review. Conclusion [65] The judicial review of the second order for surrender, and the judicial review of the decision declining reconsideration, are both dismissed. “The Honourable Madam Justice Neilson” I Agree: “The Honourable Madam Justice Saunders” I Agree: “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Hiscott v. Canaccord Capital Corporation, 2013 BCCA 23 Date: 20130111 Docket: CA038974 Between: Mark Hiscott Appellant (Plaintiff) And Canaccord Capital Corporation and Alan Ferguson Hackett Respondents (Defendants) (Correction: On the front page the correct date 20130111 was inserted on January 24, 2013.) Before: The Honourable Chief Justice Finch The Honourable Madam Justice Saunders The Honourable Mr. Justice Groberman On appeal from: Supreme Court of British Columbia, March 25, 2011 ( Hiscott v. Canaccord Capital Corporation , 2011 BCSC 369, Vancouver No. M083758 ) Oral Reasons for Judgment Counsel for the Appellant: J.P. Gustafson Counsel for the Respondent: D. Mitchell Place and Date of Hearing: Vancouver, British Columbia January 10, 2013 Place and Date of Judgment: Vancouver, British Columbia January 11, 2013 [1] GROBERMAN J.A. : Mr. Hiscott appeals from a trial judgment of the Supreme Court dismissing his claim as against Canaccord Capital Corporation. Mr. Hiscott’s claim concerned the actions of Mr. Hackett, who acted as his investment advisor. He claimed that Mr. Hackett had acted improperly in managing Mr. Hiscott’s investments. He contended that Canaccord was liable either vicariously, as Mr. Hackett’s employer, or on the basis of negligence in failing to properly supervise Mr. Hackett’s activities. [2] The trial judge found that while Mr. Hackett had breached his duties to Mr. Hiscott , Mr. Hiscott had suffered no damage as a result of the breaches. She found, further, that Canaccord would not have been liable for Mr. Hackett’s breaches of fiduciary duty because he was not acting in his capacity as an employee of Canaccord at material times. Finally, she rejected the claim that any failure on the part of Canaccord to supervise Mr. Hackett caused damage to Mr. Hiscott . [3] Both Canaccord and Mr. Hackett were named as respondents in this appeal. After the appeal was brought, however, a consent order was made in the court below finding Mr. Hackett liable to Mr. Hiscott for $5,000,000 on a promissory note. In the result, Mr. Hiscott is no longer pursuing the appeal as against Mr. Hackett, who, we are advised, died last year. Factual Background [4] The trial judge had significant reservations in respect of the evidence of Mr. Hiscott . Although she summarized his evidence in order to provide the background of the case, she declined to make clear findings of fact except where they were essential to her reasons. I will attempt to summarize the facts that appear to have formed the basis of her judgment. [5] In 1973, when he was about 18, Mr. Hiscott began working in the back shop at a golf club of which Mr. Hackett was a member. The two developed a friendship, and Mr. Hackett helped Mr. Hiscott obtain a scholarship to attend the University of British Columbia. Mr. Hiscott graduated with a degree in physical education in 1980, and moved to California. In 1988, he returned to British Columbia and attempted to start an athletic centre in Whistler. When that venture did not succeed, Mr. Hackett put him in touch with a company called Sportsight , which hired Mr. Hiscott to market its technology. Mr. Hiscott worked for Sportsight in the United States from 1990 to 1992, when his employment was terminated. [6] Mr. Hiscott alleges that, as part of his termination package, he was given 300,000 shares in Sportsight . He also claims to have received an additional 30,000 shares to reimburse him for certain business expenses. Some doubt was cast on Mr. Hiscott’s assertions that he had acquired Sportsight shares. The judge did not find it necessary to resolve that issue. Her analysis proceeded on the assumption that Mr. Hiscott did, in fact, acquire them. It appears that the Sportsight shares were worth approximately $0.50 each at the date when Mr. Hiscott purports to have received them. [7] Mr. Hiscott sought advice from Mr. Hackett, who was an investment advisor. Mr. Hackett had recently taken up employment with Canaccord Capital Corporation. According to Mr. Hiscott , his initial plan was to retain the Sportsight shares until they reached a value between $2.50 and $3.00 per share. [8] Mr. Hiscott and Mr. Hackett testified to the effect that Mr. Hackett proposed that they open a joint investment account, with Mr. Hiscott depositing his shares, and Mr. Hackett contributing assets of equal value to the account. Mr. Hackett and Mr. Hiscott would then jointly manage the account. According to Mr. Hiscott , the idea was that he would assist in finding investment opportunities through his acquaintances (particularly in baseball) and Mr. Hackett would, in his discretion, manage the fund on a day-to-day basis using his professional expertise. [9] The two testified that they agreed to open a joint investment account. Initially, they say, the agreement was verbal, but in 2006, it was reduced to writing in a document entitled “Agreement and Declaration of Trust”. The written agreement indicates that it is “made effective February 1, 1993”. [10] It appears that Mr. Hiscott met frequently with Mr. Hackett, particularly between 1993 and 1996. He says he attended at Mr. Hackett’s office an average of two to three times per week, and estimates that he attended at that office at Canaccord up to 200 times between 1993 and 2006. [11] The two men gave evidence that during their meetings, they would discuss trades, and Mr. Hiscott would provide information about companies that he was familiar with. Mr. Hackett would go over stock charts with Mr. Hiscott . From time to time, Mr. Hackett would give Mr. Hiscott lists showing the stocks they purportedly held in their joint account, a list of assets bought and sold, and an account balance. [12] Mr. Hackett purported to have added significant assets to the fund, the value of which far exceeded the value of the shares deposited by Mr. Hiscott . Despite the fact that Mr. Hiscott had no source of income, Mr. Hackett is said to have accepted promissory notes from him to account for the additions to the fund. The total amount represented by the notes exceeded $600,000. Eventually, Mr. Hackett cancelled each of the notes, apparently on the basis that the growth in the investment fund covered them, though it does not appear that any detailed accounting was provided. [13] Mr. Hackett represented to Mr. Hiscott that the funds were growing at an incredible rate. As early as 1993, and continuing until 2006, Mr. Hackett paid Mr. Hiscott amounts purporting to represent income from the fund. The total of the payments was about $1.4 million. Even so, in 2006, when Mr. Hiscott sought to be paid out a large portion of his purported stake in the fund, Mr. Hackett advised him that his share was $5,000,000, and he provided Mr. Hiscott with a promissory note in that amount. [14] In 2007, on learning that at least one of Mr. Hackett’s former clients was suing him, Mr. Hiscott became concerned, and contacted Canaccord , seeking to be paid by the company. The company denied having any record of Mr. Hiscott being a client, or of any account in his name. [15] Eventually, Mr. Hackett told Mr. Hiscott that he had not invested the joint fund with Canaccord , but instead had invested the money offshore with mysterious characters named “James” and “John” in order to obtain higher returns. [16] The trial judge made the following findings with respect to the investment fund: [31]      In my view, the investment is a chimera, a shared fantasy, or a delusion of Mr. Hackett and Mr. Hiscott . I accept Mr. Hackett’s evidence that as soon as, or very shortly after, he received the shares in Sportsight from Mr. Hiscott , the funds, whatever they may have been, were invested offshore with two gentlemen known as “James” and “John”. [33]      Mr. Hackett has for several years maintained the belief that the investment exists and that he will be paid by James and John. Remarkably, he continues to maintain this belief even after numerous deadlines have passed without payment from James and John. The only rational conclusion is that James and John have disposed of whatever was invested. [34]      The lists of shareholdings that Mr. Hiscott prepared are simply lists of shares. There is no documentary evidence and no rational basis to believe that those shares were held in the fund. Accordingly, I have concluded that the fund is a fiction. Whatever Mr. Hiscott gave to Mr. Hackett to invest was lost in 1992 or 1993 when it was sent to James and John to invest. [17] It appears that the judge may have intended to refer to “Mr. Hackett” rather than “Mr. Hiscott ” in the first line of paragraph 34. In particular, it would appear that the judge was referring to a document prepared by Mr. Hackett in 2007, for the purposes of the litigation, entitled “Stocks that A. Hackett agreed to purchase and was authorized to purchase for M. Hiscott .” Did Mr. Hiscott Suffer Loss as a Result of Mr. Hackett’s Breaches of Duty? [18] The judge had no difficulty in finding that Mr. Hackett had breached his fiduciary obligations to Mr. Hiscott as a financial advisor, and also breached the provisions of the trust agreement that the two had entered into. She found, however, that Mr. Hiscott had suffered no damages in the result. [19] The judge was sceptical with respect to the amount invested by Mr. Hiscott . She noted that there was no documentary evidence that he received more than 30,000 shares. For the purposes of her analysis, however, she assumed that the investment was as much as suggested by Mr. Hiscott – 330,000 shares in Sportsight . The total value of that investment in 1993 would have been $165,000. [20] In the judge’s view, Mr. Hackett unwisely and improperly invested the money offshore shortly after Mr. Hiscott deposited his shares. The money was lost almost immediately. [21] In attempting to quantify any loss to Mr. Hiscott , the trial judge noted that the increase in the Toronto Stock Exchange index between 1993 and 2007 would have made the value of a $165,000 investment in 1993 approximately $577,500 in 2007. Instead, Mr. Hackett had paid Mr. Hiscott in excess of $1.4 million over the years. [22] The judge also noted that assuming that Mr. Hiscott had kept the Sportsight shares, and sold them when they reached $3.00/share (a value which they reached only briefly), he would have realized only $990,000. Canaccord notes, in its factum, that Mr. Hiscott’s Sportsight shares had, in fact, declined in the first year of the investment, and that at the end of 1994, 330,000 shares would have been worth only about $100,000. By that time, Mr. Hackett had paid Mr. Hiscott $125,000 from the purported investment fund. [23] I find no error in the judge’s finding that Mr. Hiscott suffered no damages as a result of Mr. Hackett’s breaches of trust and fiduciary duty. Mr. Hiscott received an outstanding return on his investment, as Mr. Hackett paid him over $1.4 million over the course of 12 years on an investment that did not exceed $165,000. [24] Mr. Hiscott bases his claim that he suffered damage on the proposition that he is entitled to be paid one half of the value of the fund that Mr. Hackett claimed existed in 2006. The trial judge, however, unequivocally found that the fund did not exist, and was a “chimera, a shared fantasy, or a delusion”. In my view, the evidence amply supported the trial judge’s view. It is inconceivable that Mr. Hiscott’s investment, even if it had been as high as $165,000 in 1993, would have grown beyond $1.4 million had it been properly invested according to the alleged Agreement and Declaration of Trust. [25] Accordingly, I would not interfere with the judge’s determination that Mr. Hiscott suffered no loss as a result of Mr. Hackett’s breaches of duty. Would Canaccord be Vicariously Liable for Damages? [26] I would also uphold the judge’s determination that even if Mr. Hiscott had suffered a loss, Canaccord would not have been vicariously liable to Mr. Hiscott for Mr. Hackett’s breaches of duty. [27] The judge found that Mr. Hackett, in entering into an agreement to invest jointly with Mr. Hiscott , was acting outside the scope of his employment. It is apparent from the evidence that Mr. Hackett was not allowed, in the course of his employment, to enter into arrangements such as the one he is alleged to have entered into with Mr. Hiscott . [28] As Mr. Hiscott points out, however, the mere fact that Mr. Hackett was not authorized to act as he did does not exclude the possibility of vicarious liability. Mr. Hiscott relies particularly on the case of Bazley v. Curry , [1999] 2 S.C.R. 534. In that case, the Supreme Court of Canada was dealing with a claim brought by a person who, as a child, had been sexually abused at a residential care facility by an employee of the facility. The Court found that the foundation that operated the facility could be vicariously liable for the tort of its employee in the circumstances. The plaintiff relies, particularly, on paragraph 41 of the judgment of McLachlin J. (as she then was) speaking for a unanimous Court: [41] Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an employer is vicariously liable for an employee’s unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles: (1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of “scope of employment” and “mode of conduct”. (2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom , even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer. (3) In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case.  When related to intentional torts, the relevant factors may include, but are not limited to, the following: (a) the opportunity that the enterprise afforded the employee to abuse his or her power; (b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee); (c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; (d) the extent of power conferred on the employee in relation to the victim; (e) the vulnerability of potential victims to wrongful exercise of the employee’s power. [29] Mr. Hiscott claims that he believed at all material times that Mr. Hackett was acting in his capacity as an employee of Canaccord , and that he was investing with Canaccord . The trial judge, however, did not accept Mr. Hiscott’s assertions: [41]      Mr. Hiscott says that he was a naive investor. He says that he genuinely believed that his investment was with Canaccord , and that his account was opened and operated in a perfectly normal fashion. I do not accept this evidence. Mr. Hiscott has a university degree and business experience. He was the general manager of two fitness facilities in California, and the general manager and part owner of a large fitness and recreation facility in Whistler. He was a part owner with his brother of Planet Ice in Coquitlam. He started a business called All Star Baseball Academy. He promoted Sportsight . [42]      Yet, despite all of this, Mr. Hiscott says that he was not concerned that he received no account opening documents and no statements for the account which he thought that he had with Canaccord . He signed promissory notes in favour of Mr. Hackett, and Mr. Hackett signed promissory notes in favour of Mr. Hiscott , apparently to record their investment. Moreover, although Mr. Hiscott received funds from time to time from Mr. Hackett, he did not file a tax return since at least 1993. The payments that he received came directly from Mr. Hackett rather than from Canaccord . Mr. Hiscott maintains that he saw nothing unusual in all of this. In light of this evidence, I do not accept that Mr. Hiscott thought that this was a normal investment. [43]      Mr. Hackett quite candidly said that he did not disclose his activities to Canaccord and that he did not open an account at Canaccord because there was “no way” that Canaccord would permit him to have a joint account or to invest with a client. Mr. Hackett acknowledged that, had Mr. Hiscott thought that the account was at Canaccord , he may not have disabused Mr. Hiscott of that mistaken belief. He thought that he might have told Mr. Hiscott as early as 1999 that the account was offshore. [44]      In my view, Mr. Hiscott was not at all concerned about whether he had an account at Canaccord until 2006 or 2007, which is when he realized that Mr. Hackett was in difficulty. At that point, he turned to Canaccord with the hope that it would accept some responsibility. Mr. Hackett and Mr. Hiscott apparently documented their agreement in a document entitled “Agreement and Declaration of Trust”, which was signed in June 2006. In 2007, they signed a document entitled “Acknowledgement”, which was incorrectly dated January 23, 2006.  Neither of these documents suggests that the investment was made through Canaccord . [45]      In light of all of the evidence, it is my view that Mr. Hiscott was not a client of Canaccord . Accordingly, it does not owe him the duties that it owes to a client. [30] On this appeal, Mr. Hiscott attempts to persuade the court that he was more naïve than the trial judge found. In my view, the trial judge’s assessment of his level of sophistication as a businessman and investor was one that was open to her on the evidence. [31] Mr. Hiscott also emphasizes that certain pieces of evidence from which he might reasonably have drawn the inference that Mr. Hackett was acting in the course of his employment in accepting his investment. He emphasizes that his meetings with Mr. Hackett were at his office, and that employees of Canaccord witnessed certain documents. The trial judge did not ignore that evidence, but assessed it in light of the totality of the circumstances. [32] The judge evidently considered that Mr. Hiscott was, at material times, unconcerned with the question of whether Mr. Hackett was acting as an employee of Canaccord at the time of the investments. Further, she found that had Mr. Hiscott been at all concerned with the question, there was ample evidence from which he could have discerned that the investments that he was making were not being made in the normal course of Mr. Hackett’s business, and that he was not acting in the course of his employment with Canaccord . These findings were in accordance with the evidence, and were open to the trial judge. [33] Given the trial judge’s findings of fact, it cannot be said that Mr. Hackett’s employment with Canaccord created or enhanced the risk that he would engage in irregular practices in relation to Mr. Hiscott’s investments. Mr. Hiscott knew, or should have known, that Mr. Hackett was not acting as an employee of Canaccord when he entered into a joint investment scheme with him. Nothing that Canaccord did compelled or encouraged Mr. Hiscott to engage in investment relations with Mr. Hackett. [34] At its highest, Mr. Hiscott’s argument is that his estimation of Mr. Hackett’s business acumen was enhanced by the knowledge that he was employed with Canaccord . Standing alone, that is an insufficient basis on which to found vicarious liability. Was there a Failure to Supervise Mr. Hackett [35] Mr. Hiscott finally argues that Canaccord is liable to him for its failure to supervise Mr. Hackett. I need not address this contention at any length. The judge analyzed the various alleged failures by Canaccord to supervise Mr. Hackett. She found each of the alleged failures to have been unproven, non-negligent, or unconnected to the investment scheme entered into by Mr. Hiscott and Mr. Hackett. Mr. Hiscott has not succeeded in persuading me that the trial judge made any reversible error in respect of her analyses. Disposition [36] As acknowledged by the appellant, the appeal as against Mr. Hackett should be dismissed as abandoned. I would also dismiss the appeal as against Canaccord . [37] FINCH C.J.B.C. : I agree. [38] SAUNDERS J.A. : I agree. [39] FINCH C.J.B.C. : The appeal is dismissed. “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Khosah v. Canada Life Assurance Company, 2013 BCCA 25 Date: 20130111 Docket: CA039442 Between: Surinderjeet Khosah Appellant (Plaintiff) And The Canada Life Insurance Company and in French, La Compagnie D’Assurance du Canada Sur La Vie Respondent (Defendant) Before: The Honourable Mr. Justice Low The Honourable Madam Justice D. Smith The Honourable Madam Justice A. MacKenzie On appeal from: Supreme Court of British Columbia, September 29, 2011 ( Khosah v. Canada Life Assurance Company , Vancouver Registry No. S083168) Oral Reasons for Judgment Counsel for the Appellant: G.J. Collette and N.W. Peterson Counsel for the Respondent: E.B. Lyall, Q.C. and T.J. Gilmor Place and Date of Hearing: Vancouver, British Columbia January 11, 2013 Place and Date of Judgment: Vancouver, British Columbia January 11, 2013 [1] A. MACKENZIE J.A. :  The issue on this appeal is whether the appellant’s deceased husband, Mr. Khosah, obtained temporary insurance coverage from the respondent, the Canada Life Assurance Company (“Canada Life”), while it processed Mr. Khosah’s application for reinstatement of a term life insurance policy that had lapsed due to non-payment of premiums. [2] Canada Life denied Mr. Khosah’s application for reinstatement of his life insurance policy. However, Mr. Khosah died shortly before Canada Life informed Ms. Khosah of this decision and Canada Life refused Ms. Khosah’s claim for the proceeds of the lapsed policy. Ms. Khosah then sued Canada Life, arguing that she was entitled to benefit under a policy of temporary life insurance and seeking an order that the proceeds be paid to her. In an oral decision after a summary trial, Mr. Justice Sewell dismissed her action: Khosah v. Canada Life Assurance Company (29 September 2011), Vancouver S083168 (B.C.S.C.). [3] Ms. Khosah appeals essentially on the ground the trial judge erred in his identification and application of principles of contract law as applied to contracts of insurance. [4] For the reasons below, I would dismiss the appeal on the basis there was no offer and acceptance as required to create a contract for temporary insurance. Background [5] In March 2003, Mr. Khosah applied to Canada Life for term life insurance. His insurance broker, Jaswinder Singh Parmar, assisted him with this application. Mr. Khosah did not apply for temporary insurance at that time. The judge noted Mr. Parmar did not suggest Mr. Khosah apply for temporary insurance because Mr. Khosah was dealing with other insurers and would not have wanted to pay the one month’s premium in advance in order to obtain temporary insurance. [6] In April 2003, Canada Life issued a life insurance policy to Mr. Khosah for $1,000,000 (the “Policy”), under which Ms. Khosah was a beneficiary. The monthly premiums of $146.70 were automatically debited from Mr. Khosah’s business bank account pursuant to a preauthorized payment plan with Canada Life. [7] In June 2005, without informing Mr. Khosah, Mr. Khosah’s business partner cancelled the preauthorized payment plan while Mr. Khosah was on a prolonged trip to India. In a letter dated July 7, 2005, Canada Life informed Mr. Khosah his bank had returned his preauthorized payment for June 29, 2005. Canada Life requested a replacement cheque by July 30, 2005. As Mr. Khosah was out of the country, he did not receive this letter, did not send a replacement premium to Canada Life, and the Policy lapsed. [8] The Policy provided the following with respect to reinstatement: If this policy has lapsed, you may apply to reinstate it within three years after the first unpaid premium was due, provided application is made before the Final Expiry Date [April 29, 2048] of the policy. To reinstate this policy you will have to: (1)        Provide us with a reinstatement application and proof, satisfactory to us, of the life insured’s continued insurability on the same Health and Rate Class basis in effect for this policy on the date of lapse. (2)        Pay all overdue premiums together with compound interest at an appropriate rate then set by us. The reinstated policy will come into force at the date on which we have approved the application for reinstatement and all of the preceding terms of this provision have been satisfied. [9] On August 4, 2005, Canada Life sent a “notice of lapse” to Mr. Khosah, notifying him that the Policy had lapsed. It advised that if payment of $586 was received by August 22, 2005, Canada Life would reinstate the Policy without evidence of insurability. The notice of lapse also informed Mr. Khosah of the option of paying $1,357.59 to keep the Policy in force until its next anniversary date, rather than making payments on a monthly basis. Canada Life did not receive any payments by August 22, 2005. [10] When Mr. Khosah returned from India and learned of the lapsed Policy, his wife provided Mr. Parmar with a new preauthorized payment form and a cheque payable to Canada Life for $1,941.59. The parties agree this was likely intended to be the sum of the two payment amounts set out in the notice of lapse, with a discrepancy of $2. This total amount was substantially greater than what Mr. Khosah owed Canada Life for the outstanding arrears. [11] On October 18, 2005, Canada Life received the cheque and put the funds into a “suspense account”. However, it did not inform Mr. Khosah or Ms. Khosah it was simply holding the funds, rather than applying them to Mr. Khosah’s debt. [12] The judge found that Canada Life treated the receipt of the cheque and the preauthorized payment form as a request to reinstate the lapsed Policy. On October 26, 2005, Canada Life sent Mr. Khosah a letter enclosing a contract change form entitled “Individual Life Insurance Application for Policy Change” (the “Application”). The judge described the Application as “an omnibus form” designed to be used to cover a variety of changes to an account, including reinstatement of a policy. The instructions in the Application specify which sections of the Application the applicant is required to complete for different types of policy changes. With respect to reinstatement of a policy lapsed between 54 days and 6 months, the instructions direct the applicant to complete sections 1 (1.1, 1.2, 1.3), 2 (2.1), 6, 12 and 13. While some policy changes require the applicant to fill out the Temporary Insurance Agreement section (the “TIA”), this is not required for an application for reinstatement. [13] Canada Life’s letter to Mr. Khosah instructed him to complete sections 1, 2, 6, 7, 11 and 12 of the Application. Section 7.11 sets out the conditions to qualify for temporary insurance and states that temporary insurance is not applicable to a group conversion, to the exercise of guaranteed insurability options, if the total underwriting risk is $5,000,000 or greater, or if the actual age of the proposed insured is 71 or over. It then contains three health questions and states temporary insurance is not available if the applicant answers “yes” to any of the questions. Section 7.11 also asks the applicant to refer to the “Date coverage begins” section of the TIA for the conditions that must be met for temporary insurance coverage to come into effect. Among other conditions, the TIA provides that coverage is not in effect until payment of the first monthly premium has been received. Finally, section 7.11 states, “Always complete the Temporary insurance agreement and give it to the owner.” [14] Mr. Khosah, with the assistance of Mr. Parmar, filled out what he thought to be the relevant sections of the Application, including section 7, and returned the Application to Canada Life. He did not forward any further payment to Canada Life. [15] In January 2006, Mr. Khosah forwarded the necessary medical documentation for the reinstatement application. Canada Life processed the application and on February 8, 2006, decided to deny reinstatement. Canada Life informed Mr. Khosah of its decision by a letter sent to him on February 16, 2006; unfortunately, Mr. Khosah had died on February 13, 2006. [16] Ms. Khosah brought a claim against Canada Life, arguing Mr. Khosah was covered by a temporary insurance policy of $1,000,000 and seeking an order that it be paid to her. The parties proceeded by way of summary trial. Judgment at Trial [17] The sole issue at trial was whether Mr. Khosah was insured under a temporary insurance agreement. [18] The judge found the critical question was one of contract formation, rather than the interpretation of an existing contract. Specifically, the issue was whether Mr. Khosah had entered into a contract with Canada Life for temporary insurance. [19] The judge noted the creation of a contract requires offer and acceptance and whether there has been offer and acceptance must be determined objectively. He concluded there was no offer or acceptance in this case. [20] The judge first explained what would constitute offer and acceptance of a temporary insurance agreement: [39]      In my view, the plaintiff has established neither offer nor acceptance in this case. I do note that there is one unique characteristic of a temporary insurance agreement that distinguishes it from the other types of insurance contemplated in the Application. It seems quite clear that a temporary insurance agreement would come into existence upon compliance with the requirements of the temporary insurance agreement section of the Application by a person who qualified for temporary insurance. One such requirement was that the person answered no to the three questions posed in section 7 of the Application. [40]      Therefore the Application, in my view, constitutes an offer by Canada Life to provide temporary insurance to qualified persons. The completion of the Application, including the temporary insurance agreement section, and compliance with the other conditions to obtain temporary insurance by a qualified applicant would have constituted acceptance of that offer. [21] The judge found that while the Application constitutes an offer to provide temporary insurance to qualified persons, it did not constitute an offer of temporary insurance to Mr. Khosah because he was applying for reinstatement of a lapsed policy and the Application’s instructions do not contemplate completion of the TIA section on such an application. [22] The judge also noted that the October 26, 2005, letter from Canada Life to Mr. Khosah directed Mr. Khosah to complete section 7 of the Application and, read alone, section 7.11 seems to suggest the only condition to the creation of a temporary insurance agreement is a negative answer to the three health questions contained in that section. However, the judge found that because section 7.11 is phrased in the negative, it sets out the circumstances in which temporary insurance is not available; it does not make an offer to provide temporary insurance. Further, the judge noted section 7.11 directs the insurance broker to complete the TIA and provide it to the owner, indicating something more than answering “no” to the three health questions is required to qualify for temporary insurance. [23] In the event he was wrong that Canada Life made no offer of temporary insurance to Mr. Khosah, the judge considered whether Mr. Khosah accepted any offer of temporary insurance. He concluded there was no acceptance in this case because Mr. Khosah did not fill out the TIA section of the Application and he did not pay the required first monthly premium of the policy for which he was applying. Although Ms. Khosah sent $1,941.59 to Canada Life in October 2005, the judge found there was no evidence that this payment was intended to be made, or later designated, as payment of the first monthly premium. [24] Finally, the judge found Mr. Khosah did not have a reasonable expectation that he was covered by $1,000,000 in temporary life insurance as there was no evidence Mr. Khosah ever intended to obtain temporary insurance. He did not complete the TIA section of the Application and did not indicate his earlier payment of arrears was meant to constitute the payment of the premium required to obtain temporary insurance. [25] The judge referred to Elite Builders Ltd. v. Maritime Life Assurance Co ., [1986] 3 W.W.R. 32, 68 B.C.L.R. 273 (C.A.), leave to appeal ref’d, [1986] 1 S.C.R. viii, citing Smith v. Westland Life Ins. Co. , 539 P.2d 433, 123 Cal. Rptr. 649 (S.C. 1975). In Smith , the California Supreme Court held that a person has a reasonable expectation of temporary insurance if he or she pays the premium at the time he or she applies for insurance and receives a receipt in return which states the coverage is to be effective as of the date of the application. The judge distinguished Smith from the present case on the basis there was no evidence Canada Life requested that Mr. Khosah pay any premium in connection with the Application and did not issue a receipt. [26] As there was no insurance agreement in place, the judge dismissed Ms. Khosah’s claim under a policy for temporary insurance. Issues on Appeal [27] Ms. Khosah alleges the trial judge erred: (1)        in finding that the fundamental issue in this case concerns a question of offer and acceptance and not interpretation of a binding agreement; (2)        in failing to apply the correct principles of interpretation applicable to contracts of insurance; (3)        in his formulation and application of the doctrine of reasonable expectations; and (4)        in his identification and application of the principles governing offer and acceptance. Ms. Khosah seeks judgment for $1,000,000 and prejudgment interest. Discussion [28] Ms. Khosah’s first and fourth grounds of appeal relate to the judge’s conclusion that no temporary insurance agreement came into existence, so I will address those grounds together. Did the judge err in finding there was no offer and acceptance? [29] Ms. Khosah first submits the critical issue in this case involves contractual interpretation, not contract formation, as a contract between the parties clearly existed. Thus, she says the judge erred in applying principles of contract formation, rather than principles of contractual interpretation in the context of insurance contracts. [30] Ms. Khosah advances three arguments in support of this position: 1) the parties were in a continuing contractual relationship under the original Policy and Mr. Khosah was simply executing a contractual right under the Policy in completing and signing the Application; 2) under the Policy, a reinstatement application is part of the contract between the parties; and 3) even if the Application could be viewed as an offer to enter into a new and separate contract from the original Policy, Canada Life’s sending of the Application to Mr. Khosah and Mr. Khosah’s completion and signing of the Application constituted a binding agreement between the parties. [31] I agree with Canada Life that coverage under the original Policy, and any accompanying obligations, terminated in accordance with its own terms because Mr. Khosah failed to pay outstanding premiums within the grace period. The relevant clause in the Policy states: If you do not pay a premium on or before its due date, we will keep your policy in force for thirty-one days beyond that date. This is the grace period. If you do not pay the premium by the end of the grace period, your policy lapses and all insurance coverage terminates. [32] As coverage was terminated, the judge properly considered whether a new contract of temporary insurance came into existence: see Paul v. CUMIS Life Insurance Company, 2012 BCCA 35 at paras. 11, 17, 29 B.C.L.R. (5th) 225. [33] Ms. Khosah’s alternative submission is that if the judge did not err in proceeding under a contract formation analysis, a valid offer and acceptance were made out. She argues the rules of contract construction apply to the issue of contract formation and thus, if an offer is ambiguous, the ambiguity should be resolved against the party who made the offer. Applying this principle, Ms. Khosah says Canada Life’s letter of October 26, 2005, and the accompanying Application constituted an offer for temporary insurance. [34] Ms. Khosah further submits Mr. Khosah unequivocally accepted the offer for temporary insurance when he signed the Application and returned it to Canada Life. [35] In my view, basic principles of contract formation dispose of this argument. The critical features of a contract of insurance, as with any contract, are an offer and an acceptance. In Redfern Resources Ltd. (Re) , 2012 BCCA 189, 32 B.C.L.R. (5th) 303, this Court adopted this summary of the principles governing the formation of a contract: [72]      The creation of a contractual relationship is described by G.H.L. Fridman in The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011) at 25 as follows: the common law requires a clear manifestation of agreement. The mechanism of that agreement is contained in the notions of offer and acceptance. Without an offer and its acceptance, there is no contract. If either or both is missing, there is no proof that the parties were ever ad idem , that is, had reached a stage in their negotiations in respect of which it could be said that they had shown not only an intent to be bound together, but the nature, extent, and manner of their being bound so as to give rise to a legally recognizable and enforceable contract. The parties will not be bound unless they intend to be bound, nor will they be bound until they intend to be bound. Their intentions in these respects are indicated by the features of offer and acceptance. [Footnotes omitted; emphasis in original.] Canada Life is correct that the evidence does not support a finding that a reasonable person in Mr. Khosah’s position would have understood he had been offered a contract for temporary insurance. As Canada Life points out, there was no evidence to suggest Mr. Khosah believed he qualified for temporary insurance, Canada Life’s letter to Mr. Khosah did not mention temporary insurance, the instruction section of the Application does not instruct applicants for reinstatement to complete the TIA, and Mr. Khosah and Mr. Parmar never discussed temporary insurance. [36] As Canada Life also says, the judge correctly noted that s. 7.11 is not, on its own, an offer of temporary insurance as it refers to the TIA for other conditions to be met before temporary insurance coverage can come into effect, including payment of a premium, and it directs the insurance broker to sign the TIA and provide it to the owner. Thus, merely answering “no” to the three health questions in section 7.11 is not enough for an applicant to qualify for temporary life insurance. Canada Life’s receipt of the earlier cheque from Ms. Khosah did not give rise to an offer of temporary insurance as that cheque was intended to cover payments required to reinstate the lapsed Policy. With respect to s. 11, the application was not accompanied by any premium payment as required. Mr. Khosah’s earlier payment was not clearly designated to satisfy the requirement for temporary insurance. [37] With respect to acceptance, in my view, the judge also correctly concluded there was no unequivocal acceptance as Mr. Khosah did not complete the TIA and no premium was paid. As Canada Life says, the cheque forwarded by Mr. Khosah in October 2005 was sent for the purpose of paying the amount required to reinstate the policy; there was no evidence to suggest it was intended to represent a premium for temporary insurance. [38] I agree with Canada Life that the result is the same if the completed Application is viewed as an offer by Mr. Khosah to purchase insurance. Canada Life correctly submits it cannot be interpreted as an offer to purchase temporary insurance as Mr. Khosah did not request temporary insurance and did not pay the required premium. Nor did Canada Life accept any offer to purchase temporary insurance as the TIA was not completed or provided to Mr. Khosah and Canada Life did not give Mr. Khosah a receipt. [39] Ms. Khosah relies on the principle of contra proferentem, but it is not relevant here because there is no ambiguity that cannot be resolved by the application of basic principles of contract law. Without ambiguity, contra proferentem does not apply: Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245 at para. 24. [40] I would conclude the trial judge did not err in finding no offer and acceptance as required to create a contract of temporary insurance. In my view, his conclusion is well supported by the law of contract as applied to the evidence before him. The Application was simply a request to reinstate the expired Policy which Canada Life declined for medical reasons. [41] I would agree with Canada Life that Ms. Khosah’s case is essentially founded upon Mr. Parmar’s mistake in filling out three boxes in s. 7.11 of the Application. It is also based on Canada Life’s October 26, 2005 letter which mistakenly requested completion of s. 7. However, as the judge pointed out, s. 7 is not the TIA (para. 46). The cover letter did not instruct Mr. Khosah to complete the TIA section, and did not ask for a premium for temporary insurance . A temporary insurance agreement was never requested, offered, accepted, paid for, completed or delivered. Thus, the trial judge correctly dismissed Ms. Khosah’s action. [42] For the reasons above, I find it unnecessary to address the other grounds of appeal. In particular, I would observe that the doctrine of reasonable expectations, on which Ms. Khosah also relies, has no application in the absence of an insurance contract: Elite Builders Ltd. v. Maritime Life Assurance Co. at 280. [43] It follows that I would dismiss Ms. Khosah’s appeal. [44] LOW J.A. : I agree. [45] D. SMITH J.A. : I agree. [46] LOW J.A. : The appeal is dismissed. “The Honourable Madam Justice MacKenzie”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. James, 2013 BCCA 11 Date: 20130111 Docket: CA039510 Between: Regina Respondent And Jean Ann James Appellant RESTRICTION ON PUBLICATION: An order has been made under s. 486.5 of the Criminal Code directing that any information that could identify a justice system participant involved in these proceedings shall not be published, broadcast, or transmitted in any manner. Before: The Honourable Chief Justice Finch The Honourable Mr. Justice Lowry The Honourable Madam Justice D. Smith On appeal from: Supreme Court of British Columbia, November 4, 2011 ( R. v. James , Vancouver Registry 24796) Counsel for the Appellant: R. Hira, Q.C. & S. Conroy Counsel for the Respondent: J. Gordon, Q.C. & J. Horneland Place and Date of Hearing: Vancouver, British Columbia November 21, 2012 Place and Date of Judgment: Vancouver, British Columbia January 11, 2013 Written Reasons by: The Honourable Chief Justice Finch Concurred in by: The Honourable Mr. Justice Lowry The Honourable Madam Justice D. Smith Reasons for Judgment of the Honourable Chief Justice Finch: I. [1] The appellant appeals her conviction on 4 November 2011, on one count of first degree murder for the killing of Gladys Wakabayashi on 24 June 1992.  Ms. Wakabayashi’s murder was an unsolved crime in Vancouver for many years.  In 2007, a renewed investigation was undertaken, in which the appellant was the target of an undercover operation.  On 27 November 2008, the appellant confessed to murdering Ms. Wakabayashi to an undercover police officer posing as the boss of a fictitious crime organization, in which the appellant had been induced to become involved. [2] The confession was essentially the whole of the Crown’s case at trial, and its reliability was a critical issue.  The defence attacked the confession as unreliable, asserting that none of the usual safeguards to ensure reliability were present.  In particular, the defence pointed to the absence of any “holdback evidence”, that is evidence concerning the crime that had not been published, and which could be known only to the killer; and to the absence of any corroborating physical evidence linking the appellant to the crime scene that was consistent with the confession. [3] The appellant did not testify at trial. [4] On appeal from conviction the appellant raises two grounds.  First, she says the trial judge erred in admitting the opinions of police officers concerning a partial shoe print found at the scene, and in failing to warn the jury that the opinions should be given no weight.  Secondly, the appellant contends that the trial judge failed to give the jury a specific instruction warning them against propensity reasoning based on highly prejudicial statements showing evidence of bad character made by the appellant during the course of the undercover operation. [5] The appellant says that these errors, either singly or in combination, could have influenced the jury to regard the confession as reliable, and she seeks to have the conviction quashed and a new trial ordered. [6] The Crown contends that the learned trial judge did not err in either of the ways alleged.  Alternatively, the Crown relies on the curative proviso in s. 686(1)(b)(iii) of the Criminal Code . [7] For the reasons that follow I would dismiss the appeal. II.  Background [8] In 1992 the appellant was fifty-three years of age, married and the mother of a young son.  She had been trained as a nurse in England, but worked in Canada for many years in the airline industry.  Her husband was an air traffic controller.  The family lived in Richmond. [9] The appellant and Ms. Wakabayashi met in 1985 as a result of their children attending the same school.  The Jameses and the Wakabayashies became friends. [10] By 1992 the appellant was a close friend of the deceased.  Ms. Wakabayashi was the daughter of a wealthy Taiwanese family, and had married Shimji Wakabayashi, a man of Japanese descent.  The Wakabayashies had separated a year or so earlier, and their young daughter, Elisa, lived with the deceased.  They lived in the family home on Selkirk Street in Vancouver. [11] On the morning of 24 June 1992, Ms. Wakabayashi drove Elisa to school between 8:45 a.m. and 9:00 a.m.  A woman fitting Ms. Wakabayashi’s description was seen in the garage of the Wakabayashi residence at about 9:00 a.m. [12] Ms. Wakabayashi was supposed to attend at her piano teacher’s home for a lesson at 10:30 a.m. that morning, but she did not arrive.  The teacher called her home and got a recorded message. [13] At about 4:40 in the afternoon Elisa phoned her father at work to say she had been waiting for her mother to pick her up for two hours and was unable to contact her. [14] Mr. Wakabayashi picked Elisa up from school and took her home, arriving at about 5:30 p.m.  They found the back door of the house unlocked, which was unusual.  Mr. Wakabayashi went to the master bedroom where he found the deceased lying on her back in front of the dressing area, in a hallway between a bathroom and the master bedroom, facing upwards with a big cut on her neck. The Crime Scene and Police Investigation [15] Ms. Wakabayashi bled to death.  Her injuries included a number of deep lacerations around a large part of her neck, apparently made by a sharp-bladed instrument.  The neck injuries suggested the perpetrator had tried to decapitate her.  In addition there were numerous cuts and wounds to her arms, legs, chest or upper abdomen, as well as defensive injuries to her hands. [16] The nature and extent of the injuries suggested that the killer likely acted in a violent rage.  Her body was covered in blood and there was blood on the adjacent walls and on the carpet where she lay. [17] Two police officers, Detective B. Peters and Detective M. MacLennan examined the scene.  Detective MacLennan, who was first to arrive, testified that he found a partial shoe print apparently left in blood, in the bathroom adjacent to the crime scene.  He said the print appeared to have been left by a woman’s high-heeled shoe, with a pointed toe, and a honeycomb pattern on the sole. [18] Detective Peters also testified that he saw a distinct shoe print in the bathroom adjacent to the main bedroom which had a honeycomb pattern, and which appeared to have been made by a high-heeled shoe. [19] Two weeks later, on 10 July 1992, Detective Peters executed a search warrant at the appellant’s residence.  One object of the search was to find a shoe that would match the shoe print in the bathroom.  No such shoe was ever found.  The police also seized a carpet from the appellant’s vehicle for testing, but nothing came of that. [20] A former RCMP officer, Jack Mellis, was qualified at trial to give expert opinion evidence as a bloodstain pattern analyst, and crime scene examiner.  He described the shoe print as a “partial shoe impression”. [21] The police found a knife in the kitchen sink of the residence.  The forensic pathologist, Dr. Ferris, wrote a report in 1992 concluding that the murder weapon was sturdy and heavy, with a long cutting edge. [22] The police were unable to match fingerprints from the crime scene to any potential suspects.  No fingerprints from the crime scene could be matched to the appellant. [23] The Wakabayashies had separated in April 1991, and planned to divorce in July 1992.  In this period of time, the appellant began to doubt her husband’s fidelity.  She mentioned her concern to the custodian of her son’s school.  She borrowed the custodian’s car so she could follow her husband undetected. [24] In May or June 1992, the appellant made enquiries as to her husband’s whereabouts while he was out of town on business with a colleague, Gary Harris.  Mr. Harris testified that Mr. James said he was having an affair with a woman who lived in Hull, Québec.  He planned to visit her on the weekend during the out-of-town trip.  He asked Mr. Harris to tell the appellant, if she should telephone, that he had gone to Toronto.  The appellant did in fact telephone, and Mr. Harris gave the message as requested by Mr. James. [25] On 15 June 1992, the appellant had a friend, Brendan Carver, who worked as a subcontractor for a research company, obtain telephone records for her husband for the weekend he was said to have been in Toronto (Mr. Carver is referred to in some of the evidence as “the gay guy”). [26] Mr. Carver obtained a copy of the bill from the hotel where Mr. James had been staying, which included a list of the telephone numbers of calls made and received from Mr. James’ hotel room.  The Wakabayashies’ home phone number appeared twice on Mr. James’ hotel bill. [27] Detective MacLennan subsequently made further enquiries and obtained a copy of Mr. James’ telephone records from Transport Canada for the period 25 May to 14 June 1992.  These showed that Mr. James had been charged for six calls to the Wakabayashi home between 26 May and 14 June 1992, ranging in duration from eight to 42 minutes. [28] After the appellant learned of the two calls on the hotel bill found by Mr. Carver, she tried to find out who Mr. James had spoken to at the Wakabayashi residence.  Mr. Wakabayashi testified that before the appellant could make this enquiry, Ms. Wakabayashi requested that, if the appellant asked, he tell her that he had spoken to Mr. James.  Mr. Wakabayashi agreed, and when the appellant did in fact ask Mr. Wakabayashi on 22 June 1992, if he had spoken to her husband, he told her he had. [29] After searching the appellant’s home as noted above, and after conducting surveillance on the appellant for some time, the police arrested and questioned her in July 1992. [30] The police released details of the crime to various media, and reports were made in both the press and on the radio disclosing details surrounding Ms. Wakabayashi’s death, the nature of her injuries, the likelihood that the killer was known to the deceased because of the unlocked back door, and that the deceased had a secret lover who was a married man.  One radio broadcast quoted a police officer as stating that the murder weapon was a knife. [31] No further witnesses or evidence were located and in October 1992 the police concluded their investigation without sufficient information to recommend the laying of charges against any person. The Undercover Operation [32] In 2007 the Integrated Unsolved Homicide Unit reviewed the case and consideration was given to an undercover operation to try to determine the nature of the appellant’s involvement, if any, in Ms. Wakabayashi’s death. [33] The police conducted surveillance on the appellant to discover her habits and interests.  Various scenarios were designed by the police with a view to inducing the appellant to participate in a fictitious criminal organization.  The undercover operation commenced in December 2007, and in January of 2008 the appellant was introduced to Detective A.  The two became friends and by April 2008 the appellant began helping Detective A in the business of the crime organization.  Undercover police officers testified as to the appellant’s participation in various criminal activities, including money laundering, negotiating for fraudulent credit cards, transporting vehicles, and a kidnapping.  In the course of these events the appellant made a number of statements to the undercover officers indicating her willingness to injure, kill, and engage in various forms of violence and torture. [34] The undercover plan was to encourage the appellant to disclose that there were no limitations on what she was prepared to do, or that in the language of the operatives, she was an “A to Z person”.  If the undercover operatives were satisfied that she was such a person, they would introduce her to the boss of the organization, ‘Mr. Big’, who would have to satisfy himself that she was suitable for acceptance into the organization.  The role of Mr. Big was played by Sergeant B. [35] The incentives for the appellant to engage in this criminal conduct were financial, as well as the promise of opportunities for her son in an acting career, and the security of her new friends, the undercover officers, who supported her admission to the criminal organization.  The interview with Mr. Big took place at a hotel in Montréal on 27 November 2008.  The officer who designed the undercover operation, RCMP Corporal C, testified as to the safeguards which may be used to avoid obtaining a false confession.  Those safeguards include:  “the mantra”, or a repetitive theme of trust, honesty and loyalty impressed upon members of the criminal organization; the existence of corroborating physical evidence; the use of “holdback evidence”, that is, details known to the police, and which could not be known by anyone other than the perpetrator; and the electronic recording of scenarios either with video, or audio, or both. [36] In this case there was no apparent physical evidence to corroborate the confession, and no holdback evidence, as a result of the media coverage in 1992.  In this case the police relied on “the mantra” as a safeguard, and on the video recording of the appellant’s confession to Sergeant B, as well as the audio recording of some of her statements in the various scenarios used to entice her into the criminal enterprise. [37] Corporal C agreed in his testimony that the disclosure of holdback evidence by the target was the best reliability safeguard. [38] The appellant’s interview with Sergeant B took about one hour and 40 minutes.  Sergeant B produced one of the newspaper articles from 1992 and indicated he had some information concerning the appellant’s involvement in Ms. Wakabayashi’s death. [39] Over the course of the interview, the appellant told Sergeant B: a) that she found out her husband was “screwing around” with the deceased; b) that as a result she was furious and killed Ms. Wakabayashi; c) she caught Ms. Wakabayashi by checking her husband’s telephone calls on a hotel bill; d) that Ms. Wakabayashi laughed in her face, so she slit her throat; e) she made a few other cuts on the deceased before she cut her throat; f) she left the deceased lying in the house on Selkirk; g) she did not use a knife, but rather a “box cutter”; h) she destroyed the clothes she was wearing in an incinerator; i) she had parked her car a few blocks from the Selkirk house and walked there by back alleys; j) she got rid of the box cutter shortly after the murder and later sold her car; k) she had been to the Wakabayashi house on the weekend before because she had some wine stored there; l) she wore gloves and was “very sneaky” so that there was no DNA left at the scene, including washing a coffee cup she used while having coffee with the deceased; m) she pretended to put a necklace around the deceased’s neck while she was sitting on a stool, and cut her throat at that time; n) she did not go into the bathroom; o) she also inflicted cuts on the deceased’s legs; p) the killing occurred about 9:00 a.m. or 9:30 a.m.; q) no one saw her leave the house; r) the necklace was later stolen from the James’ home in 1996; s) the person who obtained the telephone numbers called by her husband from the hotel was a “gay guy” she knew; t) she knew the deceased would bleed out quickly from the cut throat, as the wound had cut through the deceased’s jugular vein; u) when she left, the deceased was laying outside her closet, in a hallway between the ensuite bathroom and master bedroom. III.  Counsel’s Submissions and the Charge [40] The conversation between the appellant and Sergeant B is characterized differently by counsel for the appellant and counsel for the Crown.  The appellant’s counsel contends that she changed her story a number of times during the course of the interview, and that her statements are inconsistent and unreliable.  The Crown contends that the appellant’s confession contains no conflicts, was consistent both internally and with known facts, and that it was open to the jury to believe that the confession was both truthful and reliable. [41] With respect to the shoe print evidence, counsel for the appellant at trial said this: Moving on to the shoe imprint and the cast-off blood splatter in the master bathroom.  You’ve heard evidence and seen photographs depicting the blood drops in the bathroom, as well as a bloody shoeprint that was found in the bathroom, and I believe Mr. Jack Mellis, who was qualified as an expert in blood splatter, discussed those specific observations as well. Now, through cross-examination of Sergeant [D] who was the lead investigator in this case, it was confirmed that the FBI had done an analysis on the shoeprint and it was determined that one of the possibilities was that it could’ve been a cowboy boot.  That was what Sergeant [D] had learned at one point. But what is most significant about the shoe imprint and the blood drops in the bathroom of the master bathroom – master bedroom’s bathroom is that at page 78 – or 73, lines 80 to 82, is the conversation where Mrs. James indicates to Mr. Big: I didn’t go ... in her bathroom, anything. And this shows that Mrs. James did not know that the real killer went into the bathroom.  That’s what it shows.  And if Ms. James was, in fact, the real killer and she was – and if she was focused on telling the truth to Mr. Big, then you’d think she would’ve admitted she went into the bathroom that day instead of clearly saying she didn’t go in the bathroom, especially if Mr. Big purportedly has the ability to find everything out, to find the truth out, to get police documents, to get information from the police through his sources in Vancouver.  That’s an important consideration. [42] On the same issue, counsel for the Crown said: But the police performed a pretty diligent investigation, forensic investigation.  Some of you may have seen CSI.  Well, they looked for fingerprints.  They looked to see if the footprint could be matched.  They compared the footprint with Gladys Wakabayashi’s shoes, they compared the footprints with Mrs. James’ shoes, but they couldn’t come up with a match.  But the killing of Gladys Wakabayashi happened on June 24 th and it wasn’t until, I think, July the 10 th that the search of Mrs. James’ residence was conducted and police looked for a match for the shoes. But Mrs. James had already said that she threw out the box cutter, she had been wearing gloves, she disposed of her clothing.  It’s quite likely also that if she had been wearing the shoes that created the shoe impression at the entrance to the bathroom – now, that didn’t go in very far.  It was just the very entrance to the bathroom that shoe impression was.  Maybe those shoes were thrown out, too, before the search of her residence.  It would be compatible with the other items that she said she threw out. ... And further: Now, one thing she says is she says she didn’t go into the bathroom. Well, if you look at the photographs, you’ll find that the shoe impression of the pointed toe and the high heel, which was a small shoe like a woman’s shoe, you might find that that was hers .  But if she went all the way into the bathroom and she went up to the sink, you’d surely see far more bloody shoe impressions in the bathroom as well.  And if she started to go in and then backed off and went back and decided to leave, then it’s not really inconsistent with what she told the crime boss here. [Emphasis added.] [43] In her charge to the jury, with respect to the shoe print evidence, the learned trial judge said: Detective Mellis concluded there was a struggle between the attacker and the deceased in a confined space in the hall between the two walk-in closets due to the pooling of blood and the blood stain patterns observed.  He also opined that during the struggle there were castoff blood drops into the bathroom and a person stepped into the bathroom leaving a shoeprint in the blood stains.  The shoeprint was described as pointed and showing the front of the shoe rather than the heel. ... ... The 1992 investigation, as described in evidence by officers Peters, Strikwerda, MacLennan, and Pearcey produced no fingerprints that could be matched to Ms. James.  The officers also investigated the shoeprint found in the bathroom of the deceased’s residence and found no matching shoe in the deceased’s residence or in Ms. James’ residence. [44] In her summary of counsel’s submissions, the judge said: The Defence says there are a number of significant inconsistencies between the known facts and what Ms. James told Sergeant [B].  She lied about her finances being rosy; there was no incinerator at the Tyee School where Adam attended in 1992 contrary to Ms. James’ statement that she burned her clothes in an incinerator at the school; there was a shoeprint and blood splatter in the bathroom of the deceased’s residence, but Ms. James said she did not go into the bathroom; ... [45] The judge did not refer to or comment upon Crown counsel’s submission that the jury might find that the shoe impression was left by the appellant. [46] Defence counsel did not object to nor comment upon the judge’s failure to address Crown counsel’s submission on the shoe impression. [47] With respect to prejudicial evidence of the appellant’s bad character, and the danger of propensity reasoning, it does not appear that either counsel addressed any remarks to the jury on this subject. [48] In her charge to the jury, the judge said this: You heard evidence that Ms. James participated in what she was led to believe was criminal conduct orchestrated by the undercover team during their investigation of Ms. James.  I will now explain how you may and may not use this evidence. You heard this evidence because it would have been impossible for the Crown’s case or the case for the Defence to be presented in an understandable way without it.  The evidence simply would not have made any sense.  You can use this evidence to put the events in context and to help you understand what happened in this case.  You may also use the evidence surrounding her involvement in the undercover operation and their activities to decide whether or not you find the confession reliable.  You cannot use it for any other purpose. There is good reason for this.  Ordinarily in a criminal trial the Crown cannot lead evidence of an accused’s prior wrongdoing as evidence that the accused committed the crime with which she is charged.  This is because judges and juries are not permitted to conclude that because an accused has engaged in prior wrongdoing, she is the kind of person who could have or would have committed this crime.  Judges and juries cannot use evidence of wrongdoing as evidence of guilt in that way.  We must rely on evidence that relates to the crime with which the accused has been charged.  We must not rely on evidence that the accused committed some other crime or did something else that was wrong to reason that because she did that, she must have committed this crime. More specifically, you must not engage in a chain of reasoning that goes like this:  looked at alone or together, the evidence of other wrongdoing, or bad acts, by the accused, apart from the bad acts alleged in the indictment, shows that the accused is a bad woman, a person of bad character, a person with a propensity to commit crime in general or a particular sort of crime, and therefore it is more likely that she committed the offence alleged against her in the indictment.  That chain of reasoning is forbidden to you at law. Despite this rule, I permitted this kind of evidence to be presented in this trial only for the purposes I just mentioned; to put the evidence in context and to help you decide whether or not you find Ms. James’ confession to be reliable.  You must not use this evidence for any other purposes.  You must not use this evidence to punish Ms. James for past misconduct by finding her guilty of this charge. [49] Later on the judge said: I wish to remind you again that you cannot use the fact that the undercover operators induced Ms. James to participate in a number of staged criminal activities as a base from which to infer that because she was prepared to commit those illegal acts she must have committed the offence charged.  You can only use the evidence of her involvement in the undercover operator – with the undercover operators to assess the reliability or truthfulness of what she said to Sergeant [B]. You should examine Ms. James’ overall relationship with Sergeant [A] and Sergeant [E] and the manner in which they engaged Ms. James in the various illegal ventures of the criminal organization, the manner in which she participated in the activities of the criminal organization, and how she responded to questions, requests and instructions in order to assess whether you find the statement she made to Sergeant [B] about her involvement in the murder of Ms. Wakabayashi to be true and reliable. [Emphasis added.] [50] At the conclusion of the charge, neither counsel objected to, nor raised any question concerning, the judge’s instruction on the shoe print evidence, or on her instructions against propensity reasoning based on evidence of bad character. IV.  Issues and the Parties’ Positions on Appeal [51] First, the appellant says the judge erred in admitting opinion evidence concerning the shoe print, and in failing to warn the jury that those opinions should not be given any weight. [52] Second, the appellant says the judge erred in failing to give a specific instruction to the jury against propensity reasoning from the highly prejudicial statements made by the appellant during the course of the undercover operation. [53] The Crown says the judge did not err in either regard, and that if there was error, the provisions of the curative proviso in s. 686(1)(b)(iii) should be applied. The Shoe Print [54] The appellant emphasizes that physical evidence can be an important test or safeguard for the reliability of an undercover confession.  Here, the appellant says, the Crown attempted to use the shoe print evidence as a link between the appellant and the crime scene. [55] The appellant points to evidence elicited by Crown counsel that the appellant frequently wore high-heeled shoes, and that several of the undercover officers were asked to comment on her footwear saying:  she wore “two, two-and-a-half inch heels”; changed from her high-heeled shoes into winter boots; her “usual high-heeled shoes” and “her usual attire of a nice dress, high-heeled shoes, purse”. [56] The appellant concedes that the observation of a shoe print at the scene was admissible, but contends that the opinions of Detective MacLennan, Detective Peters and Sergeant Mellis were not admissible because none of them was qualified to give expert evidence and, in any event, their opinions were not probative of any issue in the case.  Counsel points out that despite a search of the appellant’s residence, no shoe was ever found that matched the shoe print observed at the scene, and there was no evidence to connect the appellant to the shoe print. [57] The appellant says that the error in admitting the police officers’ opinions, together with the evidence adduced by the Crown that the appellant frequently wore high-heeled shoes, was compounded by Crown counsel’s submission in his closing address, quoted above, where he said: ... you’ll find that the shoe impression of the pointed toe and the high heel, which was a small shoe like a woman’s shoe, you might find that was hers. [Emphasis added.] [58] The appellant says the shoe print evidence, such as it was, called for a clear instruction from the judge to disregard, or to give no weight to it, as having no probative value. [59] Crown counsel says that the opinions expressed by the two police detectives were not in the nature of “expert” opinions, but were rather lay observations within the realm of common, ordinary knowledge and human experience.  The Crown says the officers’ “opinions” were properly admitted, and it was up to the jury to give them whatever weight they considered appropriate. [60] The Crown says it is entirely speculative to suggest that the jury would reason from the appellant’s regular wearing of high-heeled shoes, and the Crown’s comments in closing, to make a link between the appellant and the commission of the murder. Evidence of Bad Character [61] Counsel for the appellant draws a distinction between evidence of the appellant’s conduct , on the one hand, and the appellant’s statements during the course of the undercover operation, on the other, from which the jury might engage in prohibited propensity reasoning, and for which a clear limiting instruction was required. [62] Counsel concedes that with respect to the appellant’s bad conduct during the undercover operation – her participation in money laundering, false credit cards, the kidnapping, etc. – the judge’s instructions to the jury warning against propensity reasoning were adequate. [63] However, with respect to the many statements the appellant made to the undercover police officers that showed evidence of her bad character, the judge gave no warning or limiting instruction whatever.  Counsel says her graphic and colourful statements as to her willingness to maim, torture, kill and engage in violent, savage behaviour were highly prejudicial because they imply a propensity for violent behaviour and criminal activity, and show evidence of the appellant’s bad character. [64] The appellant acknowledges that the judge gave a proper limiting instruction when warning the jury against propensity reasoning from the appellant’s “criminal conduct”, “prior wrongdoing”, “past misconduct” and “criminal activities”, etc.  However, the appellant says there is nothing in the charge concerning bad character evidence that refers to her many prejudicial statements during the undercover operation. [65] Counsel also says this omission was exacerbated by the trial judge’s general instruction on hearsay evidence, and the appellant’s out of court statements, in which the judge instructed the jury to decide whether the appellant made the statement, if so whether it was true, and to give it such weight as the jury thought fit.  Counsel says the jury would have understood this instruction as applying to all out of court statements made by the appellant, including the prejudicial statements showing evidence of her bad character. [66] Counsel says that “by lumping” all of the appellant’s out of court statements together the judge erroneously instructed the jury to consider the appellant’s prejudicial statements for the truth of their contents.  So, for example, the appellant says the jury would have understood that the appellant’s statement in the undercover operation that she was an “A to Z” person could be used by the jury for the truth of its content. [67] Counsel for the Crown says the jury would not have drawn a distinction between conduct showing evidence of bad character, and words showing evidence of bad character, and no one at trial invited the jury to do so.  Moreover, the Crown says such a distinction is not viable.  The judge’s warning against propensity reasoning refers to both conduct and speech.  There was only one body of evidence showing the appellant’s bad character, and it all came during the undercover operation.  The statements made by the appellant were simply “tough talk”, not criminal in nature, and did not require a separate instruction. [68] The Crown says the statements are not “highly” prejudicial, and relate mainly to hypothetical responses to staged criminal activities. [69] The Crown says that while these statements reveal a tendency to talk tough, the propensity they demonstrate is a propensity to make such claims, not to act in accordance with them.  The statements demonstrate the appellant’s relationship to the undercover police officers, her eagerness to impress them, and her “willingness to participate in future criminal activities of the organization, including violent activities.”  As expressed in the Respondent’s Factum at para. 70: So characterized, the impugned statements fall squarely within the body of evidence that the trial judge instructed the jury was highly relevant to and had probative value in respect of, the critical issue of the truthfulness and reliability of her confession to Sergeant [B]. [70] The Crown observes that the defence took no objection at trial to the adequacy of the trial judge’s instruction against propensity reasoning based on evidence of bad character. V.  Discussion A. Shoe Print Evidence [71] The defence took no objection at trial to admission of opinions from the police officers who described what they saw as a shoe print, or footprint, left by a high-heeled shoe.  Nor do I think such an objection could have been sustained.  Those opinions do not require any special expertise or qualification, and they fall within the realm of lay opinion evidence.  They are opinions that could as well be expressed by any astute observer, of ordinary experience: R. v. Powell , 2006 ABCA 267, [2006] A.W.L.D. 2953; R. v. Lee , 2010 SCC 52, [2010] 3 S.C.R. 99; R. v. Graat , [1982] 2 S.C.R. 819, 144 D.L.R. (3d) 267.  So, in my view, the evidence was not inadmissible for that reason. [72] The question is, to what issue before the jury, if any, was such evidence relevant.  The central issue at trial was the identity of the perpetrator.  There was no match between the shoe print found at the scene and any footwear connected specifically to the appellant.  The evidence that the appellant usually wore high-heeled shoes does not distinguish her from a large proportion of the adult female population.  If that is where the matter rested, in my view, the jury would not have used the evidence in an impermissible way as evidence of the appellant’s identity as the killer. [73] However, the matter did not rest there.  In his address to the jury, Crown counsel said that the jury might find that the high-heeled shoe impression “was hers”, i.e., the appellant’s.  This was an invitation to the jury to use the evidence for an impermissible purpose, and to engage in speculative reasoning for which there was no foundation in the evidence. [74] The central issue in the case was the reliability of the appellant’s undercover confession.  The presence of physical evidence tending to corroborate the confession is accepted as being an important safeguard for the reliability of undercover confessions.  The judge instructed the jury on the importance of safeguards in such circumstances, but did not correct the erroneous submission made by Crown counsel inviting the jury to find that the shoe print was left by the appellant. [75] The Crown points out that the defence relied on the shoe print evidence as being inconsistent with the appellant’s confession, and therefore as a reason for regarding the confession as unreliable.  Crown says it is inconsistent for the defence to rely on this evidence for one purpose, and at the same time to contend that it is inadmissible. [76] I have already concluded that the police officers’ evidence concerning the shoe print was admissible.  The question is its relevance, and the purpose or purposes for which it might properly be used.  In my view there was no reason why the defence could not point to the evidence of the shoe print being found in the bathroom as inconsistent with the statement in the appellant’s confession that she never went into the bathroom, and that this inconsistency was evidence of the confession’s unreliability. [77] However, the relevance of the evidence for that purpose does not render it relevant for all purposes.  As physical evidence on the issue of the killer’s identity, the shoe print evidence had no probative value whatever.  Crown counsel should not have suggested that it did, and the judge should have corrected this misstatement in her charge. [78] Her failure to do so was an error. B. The Charge on Bad Character Evidence [79] The appellant’s prejudicial statements showing a willingness to engage in violent and criminal behaviour were properly admitted as part of the narrative, and for the purpose of showing the appellant’s apparent eagerness to be accepted into the fictitious criminal organization.  In addition, however, and apart from their permissible uses, the statements could also be treated as showing the appellant to be a person of bad character.  The question is whether the possible risk of the use of those statements for such an improper purpose was sufficiently great as to require a separate and distinct instruction from the judge warning them against such improper usage. [80] The judge gave a full and careful warning about the prohibited use of propensity reasoning from evidence of prior criminal conduct under the heading “Character Evidence Regarding Ms. James”, quoted above at paras. 48 and 49.  The warning is directed to evidence of prior wrongdoing or bad acts.  The only reference to her statements was, as quoted above at para. 49 “… how she responded to questions, requests and instructions …”. [81] In my view, a reasonable juror would regard prior conduct as better evidence of bad character than prior statements.  Reasonable persons tend to judge others more by what they do than by what they say – “actions speak louder than words”.  Assuming, as we must, that the jury would follow the judge’s instructions, and not engage in propensity reasoning based on prior bad conduct, it seems to me that the jury would similarly not engage in propensity reasoning based on the appellant’s prejudicial statements. [82] One cannot entirely foreclose that possibility, and a perfect charge might have included an express warning against such reasoning.  It is, however, well-settled that an accused is entitled to a properly instructed jury, and not a perfectly instructed jury ( R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R. 523).  In my view the charge as given was sufficient to guard against the improper line of reasoning the appellant’s counsel posits. [83] The appellant’s second point with respect to the appellant’s prejudicial statements is that the jury would treat them as other out of court statements made by the appellant, and so accept them for the truth of their content. [84] The judge gave separate instructions on the following matters: 1)       Out of court statements by the appellant; 2)       Statements made by the appellant to undercover officers; 3)       Character evidence concerning the appellant; and 4)       Out of court statements by persons who did not testify. [85] The jury were provided with written copies of the judge’s instructions.  It seems most unlikely to me that, in these circumstances, a juror would transfer the instructions on hearsay evidence, to the use of evidence tending to show bad character. [86] In my view, any imperfection in failing to give a separate instruction to the jury against propensity reasoning from the appellant’s prejudicial statements, is not one that calls for the intervention of this Court. C. The Application of s. 686(1)(b)(iii) (the Curative Proviso) [87] Having concluded that the trial judge’s failure to correct the misstatement of Crown counsel concerning the shoe print evidence was potentially harmful to the appellant’s defence, the question is whether it can be cured by the application of the curative proviso. [88] The curative proviso can apply in two situations: where the error was harmless such that it had no impact on the verdict, or, if the error was a serious one, where the evidence was so overwhelming that there was no substantial wrong or miscarriage of justice: R. v. Khan , 2001 SCC 86, [2001] 3 S.C.R. 823, para. 26. [89] In R. v. Khan, Justice Arbour further provided examples of harmless errors which relate to a jury charge, at para. 30: Errors in the charge to the jury respecting a very minor aspect of the case that could not have had any effect on the outcome or concerning issues that the jury was otherwise necessarily aware of were also cured by the application of the proviso (citations omitted). [Emphasis added.] [90] The error in the Crown’s closing in this case cannot be said to concern a minor aspect of the case.  The suggestion made by the Crown went to the identity of the murderer, which was central to the case.  Nonetheless, it may concern an issue that the jury was otherwise aware of.  Identifying an error as such is assisted by looking at the jury charge, and counsel’s closings, as a whole: R. v. Feil , 2012 BCCA 110, [2012] 282 C.C.C. (3d) 289, para. 86.  It is also appropriate to consider the error in the context of the entire case to determine whether or not it related to an issue the jury was aware of: R. v. White , 2011 SCC 13, [2011] 1 S.C.R. 433, para. 93. [91] In this case, I am satisfied that the error regarding the shoe print was a harmless one that concerned an issue that the jury was otherwise necessarily aware of.  In suggesting that the jury might find the shoe print was made by the appellant, Crown counsel asked the jury to make a finding for which there was no evidence.  It was not a point stressed by counsel, but rather an unfortunate misstatement made while attempting to resolve a potential inconsistency in the confession.  Crown counsel acknowledged, elsewhere in his closing submissions, that the shoe print had not been connected to the appellant.  The lack of a match was acknowledged by Detective Mellis in his examination in chief at trial.  Further, the charge to the jury included the following points about the shoe print: The Defence says there are a number of significant inconsistencies between the known facts and what Ms. James told Sergeant [B]. ... [T]here was a shoeprint and blood splatter in the bathroom of the deceased's residence, but Ms. James said she did not go into the bathroom... ... The officers also investigated the shoeprint found in the bathroom of the deceased's residence and found no matching shoe in the deceased's residence or in Ms. James' residence. [92] In the absence of any evidence connecting the shoe print to the appellant, the jury would have had to engage in speculative reasoning to make the finding suggested by Crown counsel. Yet, the trial judge gave clear instructions against engaging in speculation: Before reaching a verdict of guilty based on circumstantial evidence you must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the facts that you find have been proven. I also remind you that an inference is much stronger than a belief based on speculation or conjecture. If there are no proven facts from which an inference can be logically drawn, it is not possible to draw an inference .  You would be just guessing and a guess is not sufficient as a basis for convicting an accused no matter how shrewd the guess might be. ... I repeat that your decision to accept or reject Ms. James' statement regarding her involvement in the death of Ms. Wakabayashi cannot be based on speculation or conjecture. [Emphasis added.] [93] Where a closing submission invites the jury to engage in speculation, the error may nonetheless be harmless where the charge to the jury includes a sufficient warning against such speculation.  In R. v. Nguyen , [2002] 57 O.R. (3d) 589, 2002 CanLII 44910 (ON CA), the Court concluded that the failure of a trial judge to correct a similar invitation to speculate in the Crown’s closing address was a harmless error.  In that case, as here, the jury charge included a warning against such speculation.  I similarly conclude that the statement by the Crown in this case was sufficiently addressed by the general warning against speculation in the jury charge.  The jury knew that there was no evidence to make the finding suggested by the Crown, they knew that to make a finding without evidence was to speculate, and they knew that they were not permitted to speculate.  The error relates to an issue of which the jury was otherwise necessarily aware. [94] In addition to being an error on a matter of which the jury was aware, the error was also one which defence counsel did not object to or seek a correction of in the charge to the jury.  While not determinative, a failure to object can be a factor in assessing whether or not an error was harmless.  As stated by Bastarache J. in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, para. 58: While not decisive, failure of counsel to object is a factor in appellate review.  The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation . [Emphasis added.] [95] Based on all the above, I am persuaded that the error can properly be characterized as harmless and that the curative proviso of s. 686(1)(b)(iii) should apply.  The jury was aware that there was no evidence to connect the appellant to the shoe print.  The jury was also aware that they were not to engage in speculative reasoning, and must base their findings only on the evidence.  Finally, the conclusion that the misstatement was relatively insignificant is supported by the fact that no objection was raised at trial. [96] While the above is a sufficient basis on which to dismiss this appeal, I would also make the following observations about the overall impact of the Crown’s case against the appellant.  On my review of the evidence, I am satisfied that even if the identified error were regarded as a serious one, the evidence was so overwhelming that the conviction was inevitable. [97] The appellant’s confession to Sergeant B, and its reliability, was central to the Crown’s case.  The confession contained numerous details about the murder, and the crime scene, which, taken as a whole, provided compelling evidence on which the jury could conclude that the confession was reliable. [98] For example, the appellant stated that the deceased was “sitting in her closet” when attacked. Later in the confession she more specifically stated that the deceased was “sitting on a stool” in the closet when attacked.  Photos of the crime scene show an overturned stool in the closet, near the deceased’s body.  Expert evidence was led by the Crown that suggested the deceased was seated on the stool when the attack began.  On cross-examination, that expert conceded that it is possible that the stool was knocked over during a struggle.  Nonetheless, the appellant’s knowledge that the struggle involved a stool inside the closet supported the reliability of the confession, as did her statement that the deceased was seated on that stool, even if the latter could not be strictly confirmed as having occurred. [99] The appellant’s confession indicated that the wounds to the deceased occurred either while the deceased was seated or lying on the ground.  She indicated that after being cut on her neck while seated, the deceased “fell to the ground.”  She cut the deceased on the arms and legs while the deceased kicked and grabbed at her.  Blood spatter analysis from the scene indicated that all of the wounds to the deceased occurred while she was seated or lying on the ground.  The cuts to the legs were considered to have occurred while the deceased was alive, consistent with the appellant’s description.  The wounds to the deceased’s arms were considered to be defensive wounds, again consistent with the appellant’s description. [100] The appellant stated that when she left, the deceased’s body was laying on the floor, in “a small hallway... coming into the room...”  At other points, the appellant indicates that this location was near the bathroom and bedroom.  Photos of the crime scene show that the deceased was laying outside the walk-in closet, in a hallway leading from the bathroom into her bedroom. [101] The appellant stated that she and the deceased “had coffee, so I washed the cup.”  A photo of the kitchen shows a pot of coffee and a coffee cup next to the sink.  While there is no evidence that the coffee cup was the one the appellant was referring to, it nonetheless tends to support the version of events provided in the confession as an accurate account of what happened that day. [102] The appellant indicated that the wound to the neck was the fatal one.  She described the wound as one which there was “no way you can survive.”  At another point, she stated that “it was just a matter of minutes, because I, I cut her along the jugular vein, she’s not gonna last long...”  Medical evidence described the wound to the neck as cutting through the jugular veins, and as one that would have been “rapidly incapacitating and fatal.”  It is conceivable the appellant could have invented this detail based on her experience as a nurse, but again, the appellant’s ability to present accurate details of the events that led to the deceased’s death make that possibility unlikely. [103] It is possible that some details in the appellant’s confession might have come from media accounts of the murder.  For example, Ms. James states that the incident occurred around 9:30 in the morning, a time that was stated in one of the newspaper stories on the record.  Similarly, the fact that the deceased’s throat was slit was mentioned in one story, though not with anything near the level of detail that the appellant offered. [104] As a whole, however, the news stories simply did not contain the degree of detail necessary for the appellant to have fabricated such an accurate account of the murder.  Further, the media stories contained details which the appellant did not adopt, making it doubtful that she was basing her account on media information rather than the truth.  For example, one story described the murderer as parking at the deceased’s house.  The appellant said that she parked five blocks away from the house.  Another story describes the body as being found in the dressing room, while the appellant, as noted above, more precisely described the area as not simply a dressing room, but a hallway outside the walk-in closet.  The appellant did not adopt the media statement that the murder weapon was a knife, insisting that in fact it was a box cutter.  The appellant’s certainty on this point further supports a conclusion that she was not recounting a story based on media reports, but rather stating the truth to her best recollections. [105] Alternatively, it was suggested at trial that the appellant based her story on a conversation with the deceased’s husband, who found the body.  He informed the appellant about the wound to the neck, but did not recall telling her about any other wounds, such as to the arms or legs.  The conversation, as recalled by the deceased’s husband, did not contain the detail necessary for the appellant to construct such an accurate account of the murder. [106] There may have been inconsistencies within the appellant’s confession.  The defence contended that the appellant gave at least three different versions of the killing, and that her statement of not going into the bathroom was inconsistent with the location of the shoe print.  It is fair to say that the appellant’s account of the killing may not have come out in an orderly and chronological sequence.  That, however, might also be viewed as a natural consequence of trying to recall details of an event which occurred some 16 years earlier.  It was for the jury to decide whether this gave credibility to the statement, or whether it showed that the statement was contrived. [107] As to whether the shoe print evidence was inconsistent with the confession, the police evidence is that the impression was seen near the entrance to the bathroom which may well not be inconsistent with the appellant’s statement that she did not go into the bathroom.  Again, the jury heard the police evidence, saw the pictures, and saw and heard the appellant’s confession, and it was for them to decide if there was an inconsistency, and if so what effect it had on the reliability of the confession. [108] The reliability of the confession was supported by the undercover officers subjecting the appellant to “the mantra” of trust, honesty and loyalty, expected of all members of the fictitious criminal organization.  Throughout the confession, the appellant acknowledged the importance of telling the truth, and at numerous points, when asked, indicated that she was being truthful about the murder. [109] The confession was videotaped, and that is a further safeguard in the weighing of all out of court statements, as it assists the trier of fact in assessing the confession, including its trustworthiness: R. v. Oickle , 2000 SCC 38, [2000] 2 S.C.R. 3, para. 46. [110] There was evidence that the appellant had a motive.  Whether her husband was in fact engaging in an affair with the deceased, or not, there was evidence which could cause the appellant to believe that he was so engaged.  And there was evidence that she believed that he was.  She borrowed the school custodian’s car to follow her husband.  And she had someone check on her husband’s telephone calls while he was out of town to the deceased’s home telephone number. [111] As well, there was evidence that the appellant had opportunity to commit the killing.  She had become close friends with the deceased.  She and her husband had wine stored in the deceased’s home.  The fact that, unusually, the deceased’s back door was unlocked was evidence from which one could infer that the killer was known to the deceased and that the deceased had let him or her into the house.  That inference was also supported by the fact that the killing took place in the deceased’s bedroom and dressing area. [112] The evidence of motive and opportunity, together with the detailed confession, formed an overwhelming foundation on which a conviction could be based.  When weighed against that body of evidence, it seems unlikely that the judge’s failure to correct Crown counsel’s passing statement that the jury might find the shoe print to be hers, could have had any effect on the verdict.  In these circumstances, in my view, the verdict of guilt would necessarily have been entered even if the error concerning Crown counsel’s statement had not been made.  Accordingly, even if the error were a serious one, the curative proviso would still apply. [113] I conclude that s. 686(1)(b)(iii) applies.  I would affirm the verdict of guilt and dismiss the appeal. “The Honourable Chief Justice Finch” I Agree: “The Honourable Mr. Justice Lowry” I Agree: “The Honourable Madam Justice Smith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Schlenker v. Torgrimson, 2013 BCCA 9 Date: 20130111 Docket: CA039685 Between: Norbert Fred Schlenker, Ted Bartrim, Alison Mary Cunningham, Harold Derek Hill, Malcolm George Legg, Dietrich Luth, Victoria Linda Mihalyi and Mark Lyster Toole Appellants (Petitioners) And Christine Torgrimson and George Ehring Respondents (Respondents) Before: The Honourable Mr. Justice Donald The Honourable Madam Justice Newbury The Honourable Mr. Justice Hinkson On appeal from: Supreme Court of British Columbia, January 13, 2012 ( Schlenker v. Torgrimson , 2012 BCSC 41, Victoria Docket 11-4036) Counsel for the Appellants: L. J. Alexander and A. L. Faulkner-Killam Counsel for the Respondents: F. V. Marzari Place and Date of Hearing: Victoria, British Columbia November 26, 2012 Place and Date of Judgment: Vancouver, British Columbia January 11, 2013 Written Reasons by: The Honourable Mr. Justice Donald Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Hinkson Reasons for Judgment of the Honourable Mr. Justice Donald: [1] Elected officials must avoid conflicts of interest.  The question on appeal is whether the respondents were in a conflict when they voted to award two service contracts to societies of which they were directors.  In the words of s. 101(1) of the Community Charter , S.B.C. 2003, c. 26, did they have “a direct or indirect pecuniary interest in the matter[s]”? [2] The chambers judge found they did not have such an interest because they derived no personal financial benefit from the contracts. [3] With respect, I disagree with the judge’s opinion.  His view of the matter comes from too narrow a construction of the enactment.  In my judgment, the pecuniary interest of the respondents lies in the fulfillment of their fiduciary obligation to their societies.  When they voted for the expenditure of public money on the two contracts, which master were they serving, the public or the societies?  In these circumstances, a reasonable, fair-minded member of the public might well wonder who got the better bargain. [4] The respondents brought preliminary motions to quash the appeal for mootness and lack of standing of the appellants to maintain the appeal.  I would not accede to either motion. [5] The penalty for conflict is disqualification until the next election.  While disqualification from office is in this case no longer a practical remedy because of the passage of time, the issues on appeal affect the public interest generally and should be decided.  On the standing motion, fewer than ten electors, the minimum number required to support a petition alleging a conflict of interest, participated in the appeal.  The petition, however, was brought by the requisite number of electors.  There is no rule requiring the same number to bring a valid appeal. [6] I would allow the appeal and declare that the respondents violated the Community Charter . Factual Background [7] In November 2008, the respondents were elected as trustees for the Salt Spring Island Local Trust Area.  They, and a resident from another Gulf Island, comprised the Local Trust Committee (LTC) for Salt Spring Island.  An LTC is a statutory corporation within the scheme of the Islands Trust Act , R.S.B.C. 1996, c. 239, having local government responsibility for land use planning and regulation for the particular island in question. [8] The respondents were active in environmental issues: the respondent Torgrimson with the Water Council, and the respondent Ehring with the Climate Action Council.  Both unincorporated bodies received funds from the LTC for various activities associated with their environmental causes.  No issue is taken with the LTC resolutions authorizing those expenditures. [9] On 20 April 2011, the respondents, along with three others, incorporated the Salt Spring Island Water Council Society.  On 4 July 2011, the respondents, with three others, incorporated the Salt Spring Island Climate Action Council Society.  The respondents were directors of the Societies at the material time. [10] The appellants are Salt Spring Island electors who brought a petition contesting the behaviour of the respondents in respect of two resolutions of the LTC authorizing payments to the Societies for services related to their fields of interest.  The chambers judge summarized the events in this way (2012 BCSC 41): [16]      The incident that was the catalyst for the petition against Ms. Torgrimson and Mr. Ehring occurred on September 1, 2011.  The LTC held a meeting at which Ms. Torgrimson and Mr. Ehring were present along with the third trustee, Ms. Malcolmson. [17]      At the time of the vote on September 1, 2011, both respondent trustees were directors of the newly incorporated Water Council Society. [18]      On September 1, 2011, Ms. Torgrimson moved and voted in favour of a resolution to “dedicate” $4,000 to fund a project by which the Water Council Society would organize and run a workshop to raise awareness of water issues on Salt Spring Island.  Mr. Ehring was present and voted in favour of the resolution as did the third trustee. [19]      During the discussion and eventual vote on the matter, neither Ms. Torgrimson nor Mr. Ehring disclosed that they were now directors of the newly incorporated societies. * * * [23]      There was another meeting of the LTC on October 6, 2011.  Again Ms. Torgrimson and Mr. Ehring were present with the third trustee.  At this time Ms. Torgrimson made a motion to dedicate $4,000 to the Climate Action Society for the purpose of providing a progress report on greenhouse gases.  Again, there was no mention that both respondents are directors of the Climate Action Society.  As on September 1, 2011, the motion was not on the agenda.  Given the similar conduct of the respondents on October 6, 2011, whatever decision I make with respect to what occurred September 1, 2011, would be the same decision for the October 6, 2011, transaction. [11] At the hearing of the petition, no contract for services in relation to either expenditure had been executed.  However, counsel agreed: That the Court of Appeal panel be advised at the hearing of the appeal that the Court below accepted that the resolutions in question would lead to the contracts being let, and the money actually expended, which is in fact what happened. [12] The appellants filed a motion to adduce new evidence relating to the contracts.  This was in response to the respondents’ argument that there was no evidence before the chambers judge that any money changed hands.  The evidence is new in the sense that it arose after the hearing.  It supports the appellants’ contention that the transactions were for service contracts and were paid for.  Given the agreed statement above, I see no need to consider other details of the new evidence. [13] The hearing of the petition occurred on the eve of the election in November 2011 at the expiry of the respondents’ terms of office.  As will be seen, the conflict legislation provides disqualification from office until the next election as its primary remedy.  The respondents did not run again in November 2011 and say they have no intention of standing for office in the future. Decision Under Appeal [14] The chambers judge dismissed the petition on the ground that the evidence did not disclose a “personal pecuniary interest”.  He found that the respondents’ duties as directors of the Societies failed to satisfy this test.  After reviewing case law, he ruled as follows: [39]      In this case, the petitioners invite the court to draw the inference that these trustees have an indirect pecuniary interest based upon the fact of their being directors simpliciter . [40]      I am not satisfied this is an appropriate inference to be drawn given the court’s comments in Fairbrass BCCA [ Fairbrass v. Hansma , 2010 BCCA 319, 5 B.C.L.R. (5th) 349].  Granted, directors are the operating minds of a society.  However, the society exists as a separate legal person from the individuals who in this case work for no remuneration to guide it. [41]      In my opinion, Fairbrass BCCA supports the respondents’ position: the fact that they are directors of societies that received the funds, in the absence of sufficient evidence to establish a personal pecuniary interest between themselves and the societies, does not permit the inference to be drawn that they have an indirect pecuniary interest in the dedication of funds to the societies. [42]      Again, as I decided in the Hendren judgment [ Schlenker v. Hendren (18 November 2011), Victoria 11-4036 (S.C.)], the law in British Columbia cannot be read in the spirit of the Ontario legislation.  The Ontario statute raised by counsel for the petitioners, the Municipal Conflict of Interest Act , R.S.O. 1990, Chapter M.50, ss. 2(a)(iii), 4(k), and 5, sets a low threshold for indirect pecuniary interest.  It includes within the category of indirect pecuniary interest situations where an individual is a member of a body that in turn has a pecuniary interest in the matter (s. 2(a)(iii)). [43]      I am satisfied that in British Columbia, disqualification on the grounds of indirect pecuniary interest requires evidence sufficient that there can be “a readily recognizable pecuniary incentive to vote other than for planning reasons.”  (See Re McCaghren and Lindsay (1983), 144 D.L.R. (3d) 503 at 510 (Alta. C.A.).) In our circumstances, reason to vote without conflict would not be “for planning” but for public education on water issues. [44]      Moreover, even though the society depends to a certain extent on grants it receives from the LTC, as well as other sources, to advance its goals and objectives and to assist in the viability of the society, I do not conclude that Ms. Torgrimson and Mr. Ehring had an indirect pecuniary interest in the issue that was before the LTC on September 1, 2011.  The petitioners need not show an actual pecuniary interest being affected, yet there still must be evidence of the potential “to affect the member’s financial interest.”  (See [ Mondoux v. Tuchenhagen , 2010 ONSC 6536, 79 M.P.L.R. (4th) 1], para. 46; and Tolnai v. Downey (2003), 40 M.P.L.R. (3d) 243 (Ont. Sup. Ct.) at para. 25.)  Therefore, the fact that the respondents are directors is not sufficient to establish an indirect pecuniary interest. [45]      I am fully cognizant of the classic statement made by the court in Re Moll and Fisher et al . (1979), 96 D.L.R. (3d) 506 at 509, 23 O.R. (2d) 609 (H.C.), that “no man can serve two masters,” and that the conflict of interest rules and enactments recognize that even if elected officials are well-meaning, their judgment may be impaired “when their personal financial interests are affected.”  Yet I underline that it is personal economic self-interest that must be in conflict with the official’s public duty.  While the vote on September 1, 2011, would provide the Water Council Society with funds to set up a workshop in order to pursue its objectives and educate the community with respect to water issues, the evidence does not establish that the grants had the potential to affect the personal financial interests of Ms. Torgrimson or Mr. Ehring.  Indeed, there is possibly less pecuniary connection between a non-profit society and its directors as private individuals than there was between the mayor and his sons in Fairbrass . [46]      Given the totality of the evidence, I am not able to conclude that the petitioners have established that Ms. Torgrimson and Mr. Ehring had an indirect personal pecuniary interest when they voted for the dedication of money to the Water Council Society on September 1, 2011. [47]      As a result, where the petition seeks a declaration that Ms. Torgrimson and Mr. Ehring have violated s. 101 and s. 107 of the Community Charter because of a failure to disclose a direct or indirect pecuniary interest, the petition is dismissed. Relevant Enactments [15] The relevant sections of the legislation are as follows: Community Charter , S.B.C. 2003, c. 26 – 100 (1) ... (2)        If a council member attending a meeting considers that he or she is not entitled to participate in the discussion of a matter, or to vote on a question in respect of a matter, because the member has (a)  a direct or indirect pecuniary interest in the matter, ... the member must declare this and state in general terms the reason why the member considers this to be the case. (3)        After making a declaration under subsection (2), the council member must not do anything referred to in section 101 (2) [ restrictions on participation ]. * * * 101 (1) This section applies if a council member has a direct or indirect pecuniary interest in a matter, whether or not the member has made a declaration under section 100. (2)        The council member must not (a)     remain or attend at any part of a meeting referred to in section 100 (1) during which the matter is under consideration, (b)     participate in any discussion of the matter at such a meeting, (c)     vote on a question in respect of the matter at such a meeting, or (d)     attempt in any way, whether before, during or after such a meeting, to influence the voting on any question in respect of the matter. (3)        A person who contravenes this section is disqualified from holding an office described in, and for the period established by, section 110 (2), unless the contravention was done inadvertently or because of an error in judgment made in good faith. * * * 111 (1) If it appears that a person is disqualified under section 110 and is continuing to act in office, (a)     10 or more electors of the municipality, ... may apply to the Supreme Court for an order under this section. * * * (4)        An application under this section may only be made within 45 days after the alleged basis of the disqualification comes to the attention of (a)     any of the electors bringing the application, in the case of an application under subsection (1) (a), ... (6)        On the hearing of the application, the court may declare ... (b)     that the person is disqualified from holding office, ... * * * 191 (1) A council member who votes for a bylaw or resolution authorizing the expenditure, investment or other use of money contrary to this Act or the Local Government Act is personally liable to the municipality for the amount. * * * (4)        Money owed to a municipality under this section may be recovered for the municipality by ... (b)     an elector or taxpayer of the municipality, ... Society Act , R.S.B.C. 1996, c. 433 – 24 (1)   The members of a society may, in accordance with the bylaws, nominate, elect or appoint directors. (2)        Subject to this Act and the constitution and bylaws of the society, the directors (a)     must manage, or supervise the management of, the affairs of the society, and (b)     may exercise all of the powers of the society. * * * 25 (1)   A director of a society must (a)     act honestly and in good faith and in the best interests of the society, and (b)     exercise the care, diligence and skill of a reasonably prudent person, in exercising the powers and performing the functions as a director. (2)        The requirements of this section are in addition to, and not in derogation of, an enactment or rule of law or equity relating to the duties or liabilities of directors of a society. * * * 27        A director of a society who is, directly or indirectly, interested in a proposed contract or transaction with the society must disclose fully and promptly the nature and extent of the interest to each of the other directors. 28  (1) .... (2)        Unless the bylaws otherwise provide, a director referred to in section 27 must not be counted in the quorum at a meeting of the directors at which the proposed contract or transaction is approved. Business Corporations Act , S.B.C. 2002, c. 57 – 1  (1)    In this Act: * * * “company” means (a)     a corporation, recognized as a company under this Act or a former Companies Act , that has not, since the corporation’s most recent recognition or restoration as a company, ceased to be a company * * * “corporation” means a company, a body corporate, a body politic and corporate, an incorporated association or a society, however and wherever incorporated, but does not include a municipality or a corporation sole; * * * 136 (1) The directors of a company must, subject to this Act, the regulations and the memorandum and articles of the company, manage or supervise the management of the business and affairs of the company. * * * 142 (1) A director or officer of a company, when exercising the powers and performing the functions of a director or officer of the company, as the case may be, must (a)     act honestly and in good faith with a view to the best interests of the company, ... Canada Business Corporations Act , R.S.C. 1985, c. C-44 – 102. (1)  Subject to any unanimous shareholder agreement, the directors shall manage, or supervise the management of, the business and affairs of a corporation. * * * 122. (1)  Every director and officer of a corporation in exercising their powers and discharging their duties shall (a)     act honestly and in good faith with a view to the best interests of the corporation; ... Issues [16] I will discuss the following issues: 1.       Standing:  Can less than ten electors bring a valid appeal from dismissal of a conflict of interest petition under the Community Charter ? 2.       Mootness:  Is the case moot and if it is should it nevertheless be decided? 3.       Statutory interpretation of the phrase “a direct or indirect pecuniary interest in the matter”:  Is it limited to personal financial gain of the councillor or does it extend to a non-profit society of which the councillor is a director? Discussion Standing [17] The petition in this case was brought by 15 electors, more than the minimum number (10) prescribed by s. 111(1)(a) of the Community Charter .  The respondents contest the validity of the appeal on the basis that the eight appellants lacked standing as they form a group less than the requisite number. [18] This argument has no support in the legislation.  The respondents argue for a restriction on the right to appeal yet there is nothing in the Community Charter or related enactments which extends the minimum requirement in s. 111(1)(a) to an appeal. [19] The jurisdiction of the Court is set out in the Court of Appeal Act , R.S.B.C. 1996, c. 77: 6 (1)     An appeal lies to the court (a)     from an order of the Supreme Court or an order of a judge of that court, and (b)     in any matter where jurisdiction is given to it under an enactment of British Columbia or Canada. (2)        If another enactment of British Columbia or Canada provides that there is no appeal, or a limited right of appeal, from an order referred to in subsection (1), that enactment prevails. [20] Each petitioner must join with at least nine others to launch a valid petition.  Once they have done so, each becomes a party to the proceeding.  Their status as a party remains throughout the proceeding and enables them to invoke the jurisdiction of this Court whether or not the original petitioning group remains intact.  It would, in my opinion, take very specific language in the relevant legislation to restrict access to this Court in the manner suggested by the respondents. [21] I would not give effect to the preliminary objection based on standing. Mootness [22] The respondents’ other preliminary objection is that there is no practical purpose to be served by deciding the appeal.  Since the respondents did not run in the 2011 election, the primary remedy for voting while in a conflict of interest, namely, disqualification from office until the next election, has no application; all that is left is a declaratory remedy, a purely academic exercise which this Court should not engage in.  The respondents submit that the problem will probably come up again and can and should be decided on a live issue rather than on a moot case. [23] The appellants respond in several ways.  First, they say that there is a practical remedy available in that this Court could order the respondents to repay the money for the contracts under s. 191 of the Community Charter .  Second, the Court could order the respondents disqualified from holding office for a period running from the date of the Court’s judgment to the next election.  Third, the prayer for relief in the petition expressly sought a declaration as a remedy and nothing that has transpired since has affected the soundness of that remedy.  Fourth, even if s. 191 is not available and it is seen that there is no practical sanction against the respondents, there is nevertheless a strong public interest in settling the law on the substantive issue in the case. [24] I do not find it necessary to deal with the appellants’ first two points.  In my opinion, the third and fourth points meet the mootness objection. [25] The events giving rise to the dispute occurred within a short time of the November 2011 election.  The respondents’ terms of office were about to expire when they voted to approve the expenditures in question.  The Community Charter prescribes a 45-day limit to bring a conflict challenge by way of petition.  Since the procedures must be taken in such a compressed timeframe and the terms of office can be shorter than the time it takes for a case to make its way through to an appeal, it will often be difficult to apply the disqualification sanction if it is not ordered at first instance.  Timing was one of the factors that influenced this Court in Fairbrass v. Hansma , 2010 BCCA 319, to proceed with the appeal despite the lapse of the disqualification period: [9]        Section 110(2) referred to in s. 101(3) sets the period of disqualification as commencing at the time of the contravention of s. 101 and ending on the date of the next general local election. [10]      The potential period of disqualification in this case has long since lapsed, there having been a general local election in November 2008.  Nonetheless, the petitioners brought the petition promptly.  It raises a serious issue which was considered by the Supreme Court of British Columbia.  Were we to refuse to hear the appeal as moot, it would be a rare case that could be advanced through the court process, given the election cycle in municipal governance.  The issue in this case is serious, the allegations are of consequence, in particular to the respondent, and the issue has the potential to arise again in another guise.  Upon these considerations we determined this appeal should be resolved on its merits. [26] The first two orders sought in the amended petition are expressed in this way: 1.         A declaration that Trustee Christine Torgrimson, Trustee George Ehring ... have failed to disclose a direct, or indirect, pecuniary conflict of interest contrary to section 101 and section 107 of the Community Charter, SBC 2003, c 26 ; 2.         A declaration that Trustee Christine Torgrimson, Trustee George Ehring ... have attended a meeting, participated in discussions, attempted to influence voting, and voted on a question contrary to section 101 and section 107 of the Community Charter . [27] No objection could have been taken to the petition had it claimed only a declaration as relief.  Rule 20-4 of the Supreme Court Civil Rules provides: (1)        A proceeding is not open to objection on the ground that only a declaratory order is sought, and the court may make binding declarations of right whether or not consequential relief is or could be claimed. [28] This appears to be a case of first impression.  None of the authorities cited to us deals squarely with the position of a councillor voting on a money resolution authorizing payment to a non-profit society of which the councillor is a director. [29] Finally, and regardless of whether the case is moot, a resolution of the issue will have practical utility.  As counsel for the appellants explained, elected officials often seek legal guidance on whether they are in a conflict of interest.  If they act on such advice, they have available to them a good faith defence under s. 101(3) of the Community Charter : (3)        A person who contravenes this section is disqualified from holding an office described in, and for the period established by, section 110 (2), unless the contravention was done inadvertently or because of an error in judgment made in good faith. [30] So the respondents are concerned that unless the decision under appeal is reviewed, it will remain the basis of legal advice to councillors throughout the province and because of the good-faith defence, no one will be motivated to challenge their conduct.  The argument is that if the decision is wrong and left uncorrected, it will have a deleterious long-term effect. [31] I agree with this argument.  I am not satisfied the case is moot, but even if it is, it falls within the class of cases that should be decided in the public interest. Construction of the Phrase “a direct or indirect pecuniary interest in the matter” [32] As mentioned, my principal difference of opinion with the judge is in what I consider to be his too narrow construction of the phrase “a direct or indirect pecuniary interest”. [33] By limiting the interest to personal financial gain, the chambers judge’s interpretation missed an indirect interest, pecuniary in nature, in the fulfillment of the respondents’ fiduciary duty as directors.  The result of applying that narrow interpretation to the facts was to defeat the purpose and object of the conflict of interest legislation. [34] The object of the legislation is to prevent elected officials from having divided loyalties in deciding how to spend the public’s money.  One’s own financial advantage can be a powerful motive for putting the public interest second but the same could also be said for the advancement of the cause of the non-profit entity, especially by committed believers in the cause, like the respondents, who as directors were under a legal obligation to put the entity first. Liberal vs. Strict Interpretation [35] My starting point in the interpretive process is to recall the directive in the Interpretation Act , R.S.B.C. 1996, c. 238: 8          Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. [36] I then move to the classic statement of the “modern principle” enunciated by Elmer Driedger in the second edition of Construction of Statutes and adopted by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27: [21]      Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “ Construction of Statutes ”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely.  He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone.  At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [37] The context of the questioned phrase can be seen from its placement in Part 4 of the Community Charter entitled “Public Participation and Council Accountability” and Division 6 of that Part, entitled “Conflict of Interest”.  The phrase appears in that part of the Community Charter addressing the problem of divided loyalties, particularly in money matters. [38] The purpose of such legislation was eloquently described by Robins J. (later J.A.) speaking for the Ontario Divisional Court in Re Moll and Fisher (1979), 96 D.L.R. (3d) 506 at 509: This enactment, like all conflict-of-interest rules, is based on the moral principle, long embodied in our jurisprudence, that no man can serve two masters.  It recognizes the fact that the judgment of even the most well-meaning men and women may be impaired when their personal financial interests are affected.  Public office is a trust conferred by public authority for public purpose.  And the Act, by its broad proscription, enjoins holders of public offices within its ambit from any participation in matters in which their economic self-interest may be in conflict with their public duty.  The public’s confidence in its elected representatives demands no less. Legislation of this nature must, it is clear, be construed broadly and in a manner consistent with its purpose . [Emphasis added.] [39] In The Queen v. Wheeler , [1979] 2 S.C.R. 650, the Court referred to the New Brunswick equivalent of s. 8 of our Interpretation Act , quoted earlier, in adopting at 659 a broad approach to the interpretation of the conflict provision involved in that case. [40] In Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) , [1990] 3 S.C.R. 1170, Sopinka J. commented generally on conflict of interest legislation for local government at 1196-97: I would distinguish between a case of partiality by reason of pre-judgment on the one hand and by reason of personal interest on the other.  It is apparent from the facts of this case, for example, that some degree of pre-judgment is inherent in the role of a councillor.  That is not the case in respect of interest.  There is nothing inherent in the hybrid functions, political, legislative or otherwise, of municipal councillors that would make it mandatory or desirable to excuse them from the requirement that they refrain from dealing with matters in respect of which they have a personal or other interest. It is not part of the job description that municipal councillors be personally interested in matters that come before them beyond the interest that they have in common with the other citizens in the municipality.  Where such an interest is found, both at common law and by statute, a member of Council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty.  This is commonly referred to as a conflict of interest .  See Re Blustein and Borough of North York , [1967] 1 O.R. 604 (H.C.); Re Moll and Fisher (1979), 23 O.R. (2d) 609 (Div. Ct.); Committee for Justice and Liberty v. National Energy Board , [[1978] 1 S.C.R. 369]; and Valente v. The Queen , [1985] 2 S.C.R. 673. Statutory provisions in various provincial Municipal Acts tend to parallel the common law but typically provide a definition of the kind of interest which will give rise to a conflict of interest.  See Blustein and Moll , supra . [Emphasis added.] [41] I think a reasonably well-informed elector on Salt Spring Island would conclude that the respondents’ interest as directors would influence their decision to authorize and pay for contracts with their Societies.  The respondents themselves initiated the resolutions that directly benefitted their Societies, and then voted in favour of those resolutions, without disclosing that they were directors of the very Societies that were obtaining the benefit. [42] If, in the present case, the chambers judge approached the interpretation narrowly because of the penalties for engaging in a conflict, he erred in my opinion.  In Tuchenhagen v. Mondoux , 2011 ONSC 5398, 107 O.R. (3d) 675, the Divisional Court held: [26]      The MCIA [ Municipal Conflict of Interest Act ] s. 10 does provide for the penalties to be imposed if a member of council is found to have breached the legislation.  The seat of the member is to be declared vacant, he or she may be disqualified from being a member for a period of time not exceeding seven years and, where the contravention has resulted in financial gain, ordered to pay restitution.  As such, the MCIA is penal in nature. This does not mean that it should be interpreted narrowly, in favour of the member, in case of ambiguity.  “Even with penal statutes, the real intention of the legislature must be sought, and the meaning compatible with its goals applied” (see: R. v. Hasselwander , [1993] 2 S.C.R. 398 at para. 30 as referred to in Ruffolo v. Jackson , [2010] O.J. No. 2840 (C.A.) at para. 9) . [Emphasis added.] Directors’ Duties [43] In most cases of conflict of interest, the conflict examined is between the personal interests of the individual and his or her duty to the corporate entity.  At bar, the question is whether the respondents took on conflicting responsibilities as local councillors and Society directors such that they could not participate in decisions awarding contracts to the Societies. [44] There is little difference in the duties of a director of a business corporation and a society. [45] Directors of societies have a fiduciary duty of loyalty to “act honestly and in good faith and in the best interests of the society”: s. 25(1)(a) of the Society Act .  This fiduciary duty is the same duty that directors owe to corporations under the Business Corporations Act at s. 142(1)(a), which provides that directors of a company (defined as a corporation recognized as a company under that Act), when exercising the powers and performing the functions of a director of the company must act honestly and in good faith with a view to the best interests of the company , as well as the federal Canada Business Corporations Act under s. 122(1)(a), which provides that every director of a corporation in exercising their powers and discharging their duties shall act honestly and in good faith with a view to the best interests of the corporation .  Therefore, case law relating to the fiduciary duty of directors of corporations is analogous to the fiduciary duty of directors of societies. [46] As the Supreme Court of Canada noted in Peoples Department Stores Inc. (Trustee of) v. Wise , 2004 SCC 68, [2004] 3 S.C.R. 461, the duty of loyalty imposes several duties on directors: [35]      The statutory fiduciary duty requires directors and officers to act honestly and in good faith vis-à-vis the corporation.  They must respect the trust and confidence that have been reposed in them to manage the assets of the corporation in pursuit of the realization of the objects of the corporation.  They must avoid conflicts of interest with the corporation.  They must avoid abusing their position to gain personal benefit.  They must maintain the confidentiality of information they acquire by virtue of their position.  Directors and officers must serve the corporation selflessly, honestly and loyally: see K. P. McGuinness, The Law and Practice of Canadian Business Corporations (1999), at p. 715. [47] In Alberta v. Elder Advocates of Alberta Society , 2011 SCC 24, [2011] 2 S.C.R. 261, Chief Justice McLachlin, for the Court, wrote of the fiduciary principle in general as follows: [43]      The duty is one of utmost loyalty to the beneficiary.  As Finn states, the fiduciary principle’s function “ is not to mediate between interests . It is to secure the paramountcy of one side’s interests . . . . The beneficiary’s interests are to be protected. This is achieved through a regime designed to secure loyal service of those interests” (P. D. Finn, “The Fiduciary Principle”, in T. G. Youdan, ed., Equity, Fiduciaries and Trusts (1989), 1, at p. 27 (underlining added [by McLachlin C.J.]); see also [ Hodgkinson v. Simms , [1994] 3 S.C.R. 377], at p. 468, per Sopinka J. and McLachlin J. (as she then was), dissenting). [Emphasis in text.] [48] The case of Wheeler involved a mayor and a business corporation but the following remarks at 659-60 I think are apposite: A director , and particularly one who is also a president, owes a continuous, day-to-day duty to the legal entity, the company , as well as to the shareholders, to prosecute the company’s affairs in an efficient, profitable, and entirely lawful manner . Applying the broad principle enunciated by Duff C.J. in [ J.B. Arthur Angrignon v. J. Arsène Bonnier , [1935] S.C.R. 38], such an officer is most certainly “interested” in his company entering into profitable contracts . In a service company or in the construction business, that may well be his only real interest in conducting the affairs of the company. * * * It should not, however, be assumed that the Legislature has thereby expressed an intention to reduce the meaning and application of the expression “indirect interest” .  It is unrealistic to believe that as a general principle of human conduct a director or officer of a contracting company does not have at least an indirect interest in the company’s contracts.  On the facts before this Court, the provision has an even clearer impact. A director or officer of a construction company or of a service company must, in ordinary parlance and understanding, have an interest, albeit indirect, in the welfare of the company as it relates to or results from ‘contracts’ . [Emphasis added.] Pecuniary Interest [49] In several ways in the course of these reasons, I have endeavoured to make the point that so long as the “matter” involves the expenditure of public funds and the respondents have “an interest” in the matter which a well-informed elector would conclude conflicts with their duty as councillors, it makes no difference that they put no money into their own pockets. [50] As directors of the Societies, the respondents were under a fiduciary duty to put the Society’s interests first.  Directors of societies, by virtue of their position, have an indirect interest in any contract a society is awarded.  When the respondents moved and voted in favour of resolutions that benefitted their Societies through the granting of contracts, arguably contracts the Societies might not have been awarded had the councillors not also been directors, their duties as directors to put the Society’s interests first were in direct conflict with their duties as councillors to put the public’s interests first.  These circumstances encompass the mischief the legislation was aimed at, namely, a conflict of interest in deciding money resolutions.  The public is disadvantaged by the conflict, whether the respondents derived any personal gain or not, because the public did not have the undivided loyalty of their elected officials. Case Law [51] This Court has twice considered pecuniary interest conflict.  In Fairbrass , the Mayor of Spallumcheen voted on a bylaw to amend the Official Community Plan allegedly to the potential benefit of his two sons.  In King v. Nanaimo (City) , 2001 BCCA 610, 94 B.C.L.R. (3d) 51, a city councillor voted in favour of matters benefitting his largest campaign contributor.  This Court upheld the dismissal of the petition in Fairbrass and reversed the finding of pecuniary conflict in King . [52] The decisions have a common rationale.  The proof requirement establishing a link between the matter voted on and a pecuniary interest of the councillor was lacking in each case. [53] In King , Mr. Justice Esson, for the Court, wrote: [12]      That conclusion, in my respectful view, is wrong in law. What was prohibited by s. 201(5) is participation in the discussion or vote on a question in respect of “... a matter in which the member has a direct or indirect pecuniary interest. ”  The “matter” (or matters) in respect of which questions arose before Council were, in this case, the various applications by Northridge Village and its associates. Nothing in the facts established in this proceeding could justify the conclusion that Mr. King had a pecuniary interest, direct or indirect, in any of those matters.  The mere fact that Northridge made campaign contributions could not, in and of itself, establish any such interest.  There could, of course, be circumstances in which the contribution and the “matter” could be so linked as to justify a conclusion that the contribution created a pecuniary interest in the matter .  Indeed, the learned chambers judge took note of an example of such a situation when he said in his reasons: There is no evidence of a direct pecuniary interest in the sense that he agreed to vote for these projects in return for their campaign contribution of $1,000.00. [13] It would not be useful to speculate as to what circumstances could create an indirect pecuniary interest .  It is enough to say that the mere fact of the applicant having made a campaign contribution is not enough.  In the absence of any factual basis for finding that Mr. King had a pecuniary interest in the matter, the finding based on s. 201(5) is wrong in law and must be set aside. [Emphasis added.] [54] Madam Justice Saunders gave the judgment of the Court in Fairbrass and wrote: [21]      I see no error in the approach of the judge to the petition before him. In the circumstances disclosed to him in the evidence, the case fell to be resolved by considering whether there could be enhancement of the respondent’s financial position directly, or through the fact his sons owned adjacent property. The judge recognized the sons had a direct pecuniary interest because the proposal would make it easier for them to sub-divide their property. There were, then, only two questions: did the respondent have a direct interest, and did the sons’ direct interest create such potential for enhancement of the respondent’s financial circumstances as to be a pecuniary interest that was indirect . [22] The proposition that the person asserting a fact has the burden of proving it, is fundamental. Here the petitioners alleged a pecuniary interest, either direct or indirect. Yet they adduced no evidence to the effect that the bylaw, were it to pass, would make the respondent’s four acre but still un-subdividable property more valuable. Whether the change in set-back requirements would have this effect is speculation . So too, as the judge said, is the possibility of the respondent acquiring land, thereby to sub-divide the property. Even more speculative is the possibility of accretion making the four acre parcel more valuable now. [Emphasis added.] [55] In the present case, however, proof of a pecuniary conflict does not depend on a remote and tenuous connection as in King or on speculation like Fairbrass , but on the solid footing of a fiduciary duty as discussed. [56] It was contended by the petitioners in Fairbrass that the filial relationship between the father and the sons was enough to establish an indirect interest.  That proposition was rejected at both levels as an unsupported inference.  I see no parallel to the case at bar.  Parents may or may not be concerned with the business affairs of their children; it all depends on the facts of each case.  But there is no doubt about the duty of a director in fostering the business of his or her society; it inheres in the nature of the relationship. [57] When, at para. 41 of his reasons, the chambers judge requires some personal pecuniary benefit to flow to the respondents from their societies before declaring a conflict, he in my opinion erred in principle and in law by misconstruing the effect of Fairbrass . Remedies [58] As mentioned, the declaratory order should be made because of the public importance of the issue.  But the appellants also ask for an order pursuant to s. 191(1) of the Community Charter requiring the respondents to repay the money expended on the contracts. [59] In my opinion, s. 191(1) has no application to this case.  As I read the provision, it addresses itself to the subject matter of the expenditure rather than to the qualification of the councillor voting on the expenditure.  The phrase “contrary to this Act or the Local Government Act ” refers to the “expenditure, investment or other use of money”, not to the council member who casts the vote.  The focus is on the impropriety of the expenditure. [60] Thus, s. 191(1) is placed in a separate part of the Community Charter under “Part 6 – Financial Management, Division 5 – Restrictions on Use of Municipal Funds”, apart from those provisions dealing with improper voting by council members who are disqualified by reason of conflict of interest. [61] It is not alleged in this case that the projects covered by the contracts let by the LTC were in themselves improper subjects for expenditure.  The attack was directed at the respondents’ conflict of interest.  There is, therefore, no basis for an order of repayment under s. 191(1). Conclusion [62] For these reasons, I would allow the appeal and declare that the respondents voted on questions contrary to s. 101 of the Community Charter . “The Honourable Mr. Justice Donald” I agree: “The Honourable Madam Justice Newbury” I agree: “The Honourable Mr. Justice Hinkson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Timberwolf Log Trading Ltd. v. British Columbia (Forests, Lands and Natural Resources Operations) , 2013 BCCA 24 Date: 20130111 Docket: CA039909 Between: Timberwolf Log Trading Ltd. Respondent (Plaintiff) And Her Majesty the Queen in Right of the Province of British Columbia and Daniel Smallacombe Appellants (Defendants) Before: The Honourable Mr. Justice Low The Honourable Madam Justice D. Smith The Honourable Madam Justice A. MacKenzie On appeal from: Supreme Court of British Columbia, April 10, 2012 ( Timberwolf Log Trading Ltd. v. British Columbia (Forests, Lands and Natural Resource Operations) , 2012 BCSC 690, Vancouver Registry No. S110508) Oral Reasons for Judgment Counsel for the Appellant: A.K. Fraser B. Naylor Counsel for the Respondent: A. Wade A. Mizrahi Place and Date of Hearing: Vancouver, British Columbia January 10, 2013 Place and Date of Judgment: Vancouver, British Columbia January 11, 2013 [1] D. SMITH J.A.: The provincial Crown and Daniel Smallacombe (collectively the “Province”) appeal, with leave, an order dismissing their application made pursuant to Rule 9-5(1)(d) of the Supreme Court Civil Rules to strike out all, or parts of, a Notice of Civil Claim filed by the respondent, Timberwolf Log Trading Ltd. (“Timberwolf”) against the Ministry of Forests, Mines and Lands [now the Ministry of Forests and Range] (the “Ministry”) and Mr. Smallacombe, an enforcement officer employed with the Ministry. The claims advanced by Timberwolf in the Notice of Civil Claim include misfeasance in public office and defamation (the parties have proceeded on the understanding that this includes both libel and slander). [2] The Province also appeals, with leave, a further order dismissing Timberwolf’s claim for injunctive relief but granting them leave to amend that relief to a declaration restraining the Crown and its officers from doing various things. On appeal, Timberwolf concedes that the amended pleading, as with the injunctive relief originally sought, contravenes the prohibition in s. 11(2) and (4) of the Crown Proceeding Act, R.S.B.C. 1996, c. 89, and accordingly agrees that this second ground of appeal should be allowed. I would accede to this ground of appeal and would strike para. 7 of the order under appeal. [3] In its application, the Province had also sought an order striking Timberwolf’s claim of misfeasance in public office. However, leave to appeal the order dismissing that application was denied. Therefore, at this time the claims being advanced for trial by Timberwolf include misfeasance of public office, slander and libel (the latter pending this Court’s decision on appeal). Background [4] The pleadings allege, in part, that in 2008 Mr. Smallacombe slandered Timberwolf during an interview between Mr. Smallacombe and Mr. Good. Mr. Good is an independent logging contractor whose company, BC Log Inventory Service Ltd. (“BC Log”), had been retained by Timberwolf to do its scaling. [5] The impugned statement, it is claimed, was made to Mr. Good during an investigation by Mr. Smallacombe into whether Timberwolf was underreporting the quality and grade of its timber in order to reduce stumpage payable to the Province. In its Notice of Civil Claim, Timberwolf pleaded (at para. 15) that during the interview, Mr. Smallacombe slandered Timberwolf when he stated: Maybe it’s not about wood at all. It’s on the surplus list as “X” and “I” [grade logs] and pass the surplus test and gets approved for export and goes to the major drug trafficking routes in the world South Korea, China, Washington. Who cares what wood is in it. All that wood goes into a container. [6] Timberwolf further pleaded (at para. 16) that these words were meant and intended to suggest that it “deliberately misreported the grades of harvested logs to provide it with access to legal export containers in order to distribute and traffic illegal drugs.” [7] The Province has conceded that they have no evidence to support the suggestion made by Mr. Smallacombe (cited in para. 5 above) that Timberwolf was using its timber shipments as a cover for participation in illegal drug trafficking to the United States and Asia. [8] During the course of the investigation, Mr. Smallacombe obtained Criminal Code search warrants for the seizure of records and personal property from Timberwolf. The investigation resulted in an assessment against Timberwolf of $3.5 million of underpaid stumpage. Timberwolf’s appeal of that assessment to the Minister was dismissed; however, we are advised that a statutory appeal of that decision to the Supreme Court of British Columbia is scheduled for hearing in September 2013. Petition to Quash Warrants [9] In 2010, in relation to the disputed assessment, Timberwolf commenced a petition to quash the search warrants obtained and executed by Mr. Smallacombe (the “Warrant Proceedings”). Counsel for Timberwolf and counsel for the Province were in attendance at the hearing of the petition. Mr. Good was also in attendance as an observer and requested that he be provided with a copy of the audio recording of his interview with Mr. Smallacombe in order to check the accuracy of parts of the transcribed interview that had been included in the Information to Obtain the search warrants. (The audio recording was not in evidence at the hearing although an incomplete transcript of the interview was before the court). In response to Mr. Good’s request, counsel for the Province advised the court that he would provide a copy of the audio recording to Mr. Good. The chambers judge accepted counsel’s offer, stating that “your undertaking will be sufficient”. [10] Several days later, counsel for the Province forwarded to Mr. Good an email attaching a digital copy of the audio recording. In the email he wrote: “I have not provided these to Mr. Spencer [counsel for Timberwolf]. I have no objection to your releasing the recording of the interview.” The parties disagree as to the objective meaning of that statement. [11] Several weeks later, in February 2011, the judge delivered her reasons in the Warrant Proceedings in which she granted Timberwolf’s application to quash the search warrants. In January 2012, Timberwolf commenced the within civil claims against the Province. Motion to Strike Pleadings with Respect to Libel [12] The parties have proceeded in the litigation on the understanding that the pleading of “defamation” includes libel and that the alleged libel arose out of the republication during the Warrant Proceedings of the alleged slanderous statement (i.e. when the audio recording was produced to Mr. Good). There are two bases for this understanding. First, ostensibly the libel claim is being advanced to avoid a limitation period defence to the claim of slander. The second basis is from evidence (not material facts) that is pleaded in the following highlighted passages of paragraphs 13 to 15 of the notice of civil claim: 13. Throughout the investigation and following the issued Assessments, Timberwolf through its counsel, made repeated requests for disclosure of the investigation report and interviews. Smallacombe and MOFR, purposefully and deliberately withheld disclosure of the requested documents and materials. 14. On December 1, 2010, during a related court proceeding, a judge of the Supreme Court of British Columbia requested counsel for the Defendants to ensure that certain investigative material be disclosed to Timberwolf and Good. 15. Subsequent to the Court appearance of December 1, 2010, an audio recording of an interview of Good by Smallacombe was disclosed. In that interview Smallacombe slandered Timberwolf. He stated: [the words as reproduced in para. 5 above] [Emphasis added]. [13] The central issue before the chambers judge, in regard to the orders for which leave to appeal has been granted, was whether it was plain and obvious that Timberwolf’s claim in libel was bound to fail. In dismissing the appellants’ application to strike that claim, and in particular paras. 14 and 15 of the pleadings, the chambers judge stated: [65]      The defendants seek to strike the plaintiff's pleadings on the basis that the tape recording in question cannot be advanced in support of claims in the underlying action because it was produced by counsel for the defendants under the compulsion of discovery procedures or a court order in other litigation. As such, say the defendants, the plaintiff is bound by the implied undertaking of confidentiality. ... [71]      ... I have difficulty accepting the submission of the defendants in this application that an implied undertaking of confidentiality attaches to the tape’s production. First, the recording was voluntarily released to a non-party to the application to quash the search warrant. It was not released pursuant to any discovery obligation. The application to quash has, in any event, long since concluded. [72]      Second, counsel advised Mr. Good that the recording had not been produced to the plaintiff in any proceeding, and he expressly advised Good that he could release it to whomever he pleased. [73]      For these reasons, it is not plain and obvious that the plaintiff cannot claim in defamation against the defendants. Accordingly, the application to strike that pleading is also dismissed. On Appeal [14] On appeal, the Province submits that the trial judge erred in failing to find that it was plain and obvious that the claim in libel would fail. They contend that the audio recording was delivered by counsel for the Province to Mr. Good pursuant to an express undertaking given by counsel for the Province under compulsion by the court and that Mr. Good, although a non-party to the Warrant Proceedings, thereby became subject to an implied undertaking of confidentiality not to use the audio recording for any collateral purpose to the proceeding. Relying on Goodman v. Rossi (1995), 125 D.L.R. (4 th ) 613 (O.N.C.A.) at paras. 24 and 26, and Doucette (Litigation Guardian of) v. Wee Watch Daycare Systems Inc., 2008 SCC 8, [2008] 1 S.C.R. 157, the Province says that Mr. Good breached that undertaking when he delivered the information to Timberwolf or its counsel, who then relied on the audio recording as the basis for its claim in libel. The Province submits that this use of the audio recording for a purpose collateral to the Warrant Proceedings is an abuse of process entitling it to an order striking paragraphs 14 and 15 of the Notice of Civil Claim. [15] The Province further contends (citing Hung v. Gardiner, 2003 BCCA 257, 13 B.C.L.R. (4 th ) 298) that the chambers judge erred in failing to find that the claim in libel was bound to fail based on the doctrine of absolute privilege. They submit that the republication of the audio recording, when counsel for the Province delivered it to Mr. Good, occurred on an occasion of absolute privilege in the course of the Warrant Proceedings and therefore the Province was subject to absolute immunity. [16] Timberwolf’s position (also relying on Doucette ) is that Mr. Good was not subject to an implied undertaking of confidentiality because counsel for the Province in the Warrant Proceedings was not under compulsion by the court to disclose the recording, rather he did so voluntarily, and Mr. Good was a non-party to those proceedings. It further submits that the occasion on which Mr. Good received the audio recording was not one of absolute privilege as the audio recording was not evidence in the Warrant Proceedings and therefore its disclosure to Mr. Good was made outside the scope of those proceedings. [17] Common to both submissions is Mr. Good’s status as a non-party to the Warrent Proceedings and the absence of any clear link between the disclosed audio recording and the Warrant Proceedings. While the chambers judge did not expressly address the Province’s second argument on absolute privilege, my reading of her reasons suggest that her conclusions on the first issue would support a similar finding on the second issue. Discussion [18] The test for striking a pleading under R. 9-5(1) is well established: it must be “plain and obvious” that the pleading, assuming the facts pleaded to be true, discloses no triable issue: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; and R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 17. [19] It should also be noted that an order under R. 9-5(1) is a discretionary order for which deference must be given absent an error of law or principle or a failure of the judge to consider or weigh all of the relevant circumstances. The standard of review for discretionary orders was summarized by Chief Justice Finch in Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4 th ) 203, leave to appeal ref’d [2009] S.C.C.A. No. 364 in this manner: [94]      Discretionary powers must be exercised in accordance with what the judge thinks the justice of the situation requires. Judicial discretion is constrained by factors or principles that must be weighed and balanced as between the competing interests, but no rule of law dictates the result. Accordingly, an appellate court will not interfere with an exercise of judicial discretion unless it can come to the clear conclusion that it was wrongly exercised in that no weight or insufficient weight has been given to relevant considerations ( Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at 76-77, 88 D.L.R. (4 th ) 1, [1992] 2 W.W.R. 193) or that on other grounds it appears that the decision may result in injustice ( Taylor v. Vancouver General Hospital, [1945] 4 D.L.R. 737 at 743, [1945] 3 W.W.R. 510, 62 B.C.R. 42 at 50 (C.A.)). [20] As previously noted, where an application is brought pursuant to R. 9-5(1)(d), evidence may be tendered as the R. 9-5(2) prohibition against admitting evidence is restricted to applications brought under R. 9-5(1)(a), where only the pleadings are considered. In this case, the Province submitted two affidavits in support of its application to strike. That evidence, when considered with the pleadings, does not in my view meet the stringent “plain and obvious” test for an abuse of process if Timberwolf were permitted to advance its claim in libel to trial. [21] First, the Province’s submission that the implied undertaking of confidentiality should extend to a non-party does not appear to be have been adopted in Doucette, where the scope of the implied undertaking rule was expressly limited to parties in the litigation: [1] The principal issue raised on this appeal is the scope of the “implied undertaking rule” under which evidence compelled during pre-trial discovery from a party to civil litigation can be used by the parties only for the purpose of the litigation in which it was obtained. ... [4] Thus the rule is that both documentary and oral information obtained on discovery, including information thought by one of the parties to disclose some sort of criminal conduct, is subject to the implied undertaking. It is not to be used by the other parties except for the purpose of that litigation , unless and until the scope of the undertaking is varied by a court order or other judicial order or a situation of immediate and serious danger emerges. ... [27] For good reason, therefore, the law imposes on the parties to civil litigation an undertaking to the court not to use the documents or answers for any purpose other than securing justice in the civil proceedings in which the answers were compelled (whether or not such documents or answers were in their origin confidential or incriminatory in nature). ... [Emphasis added.] [22] Furthermore, the doctrine of absolute privilege would appear to be limited to occasions where the making of a statement (e.g. the publication of the audio recording in this case) occurs in the course of proceedings before the court (see Lincoln v. Daniels, [1962] 1 Q.B. 237 (C.A.), and Gutstadt v. Reininger (1995), 27 O.R. (3d) 152 (Ont. General Division). [23] In the circumstances of this case, I am of the view that the factual matrix in which both of these submissions are advanced must be fully explored in order to arrive at a fair determination of this claim. [24] The claim in defamation (both slander and libel) advanced by Timberwolf is a serious one. It is conceded that Mr. Smallacombe had no evidence to support the comments he made, albeit the Province will argue that the comments are not actionable because they were made on an occasion of qualified privilege and, in any event, the claim in slander is subject to a two-year limitation period which has passed (this defence is not yet pleaded by the Province). These potential impediments to Timberwolf’s claim in slander make it all the more important to fully canvass the circumstances that gave rise to the alleged claim in libel. [25] In my opinion, the significant factual and legal issues in this case can only be determined fairly on the basis of a complete evidentiary record that is not limited to a pleadings context. The remaining claims proceeding to trial (misfeasance in public office and slander) will undoubtedly involve the tendering of much of the same evidence that would be tendered in the libel claim. In my view, to foreclose Timberwolf from advancing its claim in libel at trial would, in these circumstances, result in an injustice. [26] The words of Chief Justice McEachern in Bow Valley Resource Services v. Kansa General Insurance Co. (B.C.C.A.) (1991), 56 B.C.L.R. (2d) 337 are apposite in these circumstances: In my view it is not always appropriate to confine complicated litigation, as this clearly is, within labels or general statements of principle arising out of one or more authorities. My view is that the recent jurisprudence particularly, Hunt v. Carey-Canada Inc. (1991), 74 D.L.R. (4 th ) 321, leave us with a clear message particularly in a case of this kind. ... In my judgment there is no rational chance that a division of this Court would depart from that practice [set out in Hunt ] and embark upon and attempt to resolve the novel and difficult questions which arise in this case just on the pleadings. Pleadings have a way of being amended as cases proceed towards trial and sometimes, indeed, even at trial. In my view, it is inevitable that these pleadings will be amended and I do not believe that this Court would purport to decide these vital questions of law without a full investigation of the factual matrix out of which these issues arise. I think the Court would inevitably defer to the trial process as the place where these novel and difficult questions should be first considered. [27] During submissions on appeal, it became apparent that amendments to the pleadings would likely be necessary before the claims reached trial. Factual issues were raised as to the objective meaning of the email attaching the digital copy of the audio recording that counsel for the Province forwarded to Mr. Good as well as the content and scope of counsel for the Province’s undertaking to the court. Legal issues on the application of the implied undertaking rule to a non-party and of the application doctrine of absolute privilege beyond the parameters of the legal proceedings before the court were also raised. I agree with the comments in Bow Valley that in such circumstances the trial process is the place where these issues should be first determined and that Timberwolf should not be “driven from the judgment seat” on a motion to strike. Conclusion [28] I am not persuaded that the chambers judge erred in the exercise of her discretion in finding that it was not plain and obvious that an abuse of process would arise, specifically on the basis of the doctrines of implied undertaking and absolute privilege, if Timberwolf were permitted to pursue its claim in libel. I agree with her conclusion that these important factual and legal issues should not be determined on a R. 9-5(1)(d) application. [29] In the result, except for the setting aside of para. 7 of the order under appeal as conceded by the respondent, I would dismiss the appeal. [30] LOW J.A.: I agree. [31] A. MACKENZIE J.A.: I agree. [32] LOW J.A.: The appeal is allowed only to the extent of setting aside para. 7 of the order under appeal, otherwise the appeal is dismissed. “The Honourable Madam Justice D. Smith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Woo v. Onni Ioco Road Five Development Limited Partnership, 2013 BCCA 18 Date: 20130111 Docket: CA040002 Between: Ju Hee Woo, Susan-Lynn Siwasch, Marcel Rainville, Mahmood Amin also known as Mahmood Amin Darolzarbi, Bahareh Bahman-Zadeh, Madjid Razi, Parham Razi, Mohammad Bagher Dasht-Kian also known as Mohammad Bagher Dashtakian, Tahereh Bozorgi, and Behrooz Dasht-Kian also known as Behrooz Dashtakian Respondent (Plaintiffs) And Onni Ioco Road Five Development Limited Partnership, ONNI Development (Ioco Road Five) Corp. and Rossano De Cotiis Appellants (Defendants) Before: The Honourable Chief Justice Finch The Honourable Madam Justice Saunders The Honourable Mr. Justice Groberman On appeal from Supreme Court of British Columbia, May 23, 2012 ( Woo v. ONNI Ioco Road Five Development Limited Partnership, 2012 BCSC 764, Vancouver Registry No. S103493) Oral Reasons for Judgment Counsel for the Appellant: S.H. Stephens Counsel for the Respondents (except M.& P. Razi): B.G. Baynham, Q.C. J.E. Shragge Place and Date of Hearing: Vancouver, British Columbia January 11, 2013 Place and Date of Judgment: Vancouver, British Columbia January 11, 2013 [1] FINCH C.J.B.C. : On 4 October 2012, A. MacKenzie J.A., in chambers, granted orders, inter alia , that the appellants Onni post security for the costs of the appeal and that the appeal be stayed pending the posting of that security. Madam Justice MacKenzie further ordered that the respondents’ application for security for the judgments awarded in their favour in the court below be dismissed. [2] On this application to review, the respondents seek to discharge or vary the order dismissing their application for security for the judgments. [3] The appellants’ appeal is from the judgment of the Supreme Court of British Columbia pronounced 23 May 2012. In the action giving rise to that judgment, the respondents as purchasers claimed rescission of contracts made with the appellant developers for the purchase and sale of five strata title lots. [4] The appellants counterclaimed for an order that the respondents’ account to them for occupational rent for the period of time from when the contracts of purchase and sale closed to the date they give up possession of their units in the event that the Court granted an order for rescission. [5] The Court granted orders that the respondents were entitled to rescind their respective purchase agreements, according to the Real Estate Development Marketing Act , S.B.C. 2004, c. 41, s. 21(3) (“ REDMA ”). It also ordered repayment of certain sums to the respondents in exchange for the transfer of individual titles to the appellants. [6] In chambers, MacKenzie J.A. outlined the security for judgment sought by the respondents as follows: [55]      The Respondents also seek security for the judgments awarded in favour of the Respondents in the court below. They seek amounts of the difference between the judgment at summary trial and the present appraised market value of each unit plus a ten percent amount of present market value to account for potential decline in the real estate market, costs of sale, and pre-judgment interest. That would amount to: · $271,974.69 in favour of Ju Hee Woo; · $147,978.50 in favour of Susan-Lynn Siwasch and Marcel Rainville; · $173,439.17 in favour of Mahmood Amin and Bahereh Bahman-Zadeh; · $213,072.44 in favour of Mohammad Dasht-kian and Tahereh Bozorgi; and · $168,399.96 in favour of Madjid Razi and Parham Razi. [7] In dismissing the respondents’ application for security for the judgments MacKenzie J.A. held that the respondents had failed to meet the onus of showing that it was in the interests of justice to so order, because the respondents had failed to show that they cannot recover on at least most of the judgment. She said: [75]      I agree with the Appellants that the Respondents will suffer no additional prejudice if this Court does not order the posting of the security for the amount sought of the trial judgment. There is nothing precluding them from executing on their judgments. Indeed, the Razis have sought and obtained the order for sale from Pearlman J. and the other Respondents are free to do so. The Appellants will not seek a stay of execution of the judgment, nor will they oppose other applications for sale. [76]      I agree the Respondents have substantial security for the judgment already; they remain the registered owners of the strata lots and are free to return or dispose of the strata lots as they see fit. [77]      It is true there may be a shortfall between the amount of the judgment and the sale proceeds from the units and the additional costs, some of which I find somewhat speculative. That is not additional prejudice arising from the appeal itself. Instead, that situation would exist even without an appeal. I am also advised the Razis have registered their judgment against other properties besides the one they own. [78]      I agree the interests of justice would not be served by ordering security for the portion sought of the trial judgment. Such an order would stifle a meritorious and important appeal as the Respondents accept the Appellants have no assets. It cannot be said that the appeal has no merit. [79]      The Respondents’ application for security for costs of the appeal is granted to the extent stated, $10,000. The application for security for the trial judgment, trial costs and pre-judgment interest is dismissed. [80]      The appeal will be stayed until the security ordered is deposited with the Registrar in a form acceptable to the Registry. It is to be deposited within fourteen days. [8] On this application to vary, the respondents say that MacKenzie J.A. erred in holding that they were “free to return or to dispose of [their strata lots] as they saw fit”, and in holding that as a result the respondents had failed to show they could not recover on most of their judgments. As expressed by their Memorandum of Argument, the respondents say: [28]      From monetary perspective, all that Mr. Justice Pearlman’s judgment provides the respondents is the difference between the purchase price and present market value of their respective units. Because the respondents were free to list their respective units and retain the proceeds of sale prior to rescinding, the fruits of the litigation (the “judgment debt” as it were) must necessarily exclude the present market value. [9] The respondents say they will suffer real prejudice in absence of security, because the appellants have no money with which to satisfy the monetary components of their judgments. Hence, if the appeal fails, the appellants are effectively judgment-proof. If the appeal succeeds, the notices of rescission would be vacated and the respondents would be in the same position as they are today. [10] In response, the appellants say the order for security for the judgment was discretionary. The judge considered all the relevant factors including prejudice to the respondents if the order were not made, the merits of the appeal, the effects on the ability of the appellants to continue the appeal if security were ordered, and the interests of justice. [11] The appellants point out that the chambers judge held that an order for security would stifle a meritorious appeal, that there is no additional prejudice to the respondents from a denial of security, and that the order sought would not prevent prejudice. [12] The appellants say that the respondents’ holding of title to their strata lots constitutes security for a significant portion of the monetary judgments. The appellants argue that the premise of the respondents’ position is that they only sought the difference between the value of the strata lots and the purchase price paid. In their Memorandum of Argument, the appellants put it this way: 28.       ... The respondents could have but did not sue for damages for misrepresentation at common law or pursuant to s. 22 of REDMA , the measure of which would have been the difference between the value of the units at the time of trial and the purchase prices paid. The respondents sought and obtained monetary judgments for the whole of the purchase prices paid. The strata lots constitute, at least, substantial security for those judgments. Discussion [13] A discretionary decision of a Court of Appeal judge in chambers is not to be interfered with unless the chambers judge was wrong in law, principle, or based her decision upon misconstrued facts; it is insufficient to show that she exercised her discretion incorrectly. As stated in Haldorson v. Coquitlam (City) , 2000 BCCA 672, para. 7: It comes to this: that the review hearing is not a hearing of the original application as if it were a new application brought to a division of the court rather than to a chambers judge, but is instead a review of what the chambers judge did against the test encompassed by asking:  was the chambers judge wrong in law, or wrong in principle, or did the chambers judge misconceive the facts. If the chambers judge did not commit any of those errors, then the division of the court in review should not change the order of the chambers judge. [14] So, the question here is whether or not the decision of MacKenzie J.A. was wrong in law, principle, or based upon misconceived facts. The respondents argue that the chambers judge committed an error by interpreting the ‘judgment’ as including the current fair market value of the strata lots. On their view, as they were always entitled to sell their respective strata lots and retain the proceeds, the judgment should be interpreted to be only the difference between the current market value and the purchase price. Accordingly, MacKenzie J.A. erred by considering that the respondents could sell their strata lots in order to collect on most of the judgment. [15] Respectfully, this interpretation of ‘judgment’ cannot be supported on a reading of the decision of Pearlman J. In that decision, the order sought by the respondents was summarized, at para. 1, as one seeking “the return of monies paid under the contracts of purchase and sale, together with interest, and the costs of this action.” Indeed, in seeking a rescission of the purchase agreement under s. 21(3) of REDMA , the respondents cannot be said to be seeking a payment of the difference in current market value and their purchase price; rescission means that the agreement was to be undone, with the respondents returning the title to the strata lots, and the appellants returning the purchase price. This is exactly what Pearlman J. granted to the respondents, as summarized at para. 134: The plaintiffs will provide the defendants with vacant possession of their respective Strata Lots by no later than 12 noon on July 16, 2012. If for any reason the parties anticipate that they will not be able to fulfill their respective obligations to repay the purchase monies and transfer title to the Strata Lots by July 16, 2012, they are at liberty to apply for further directions or orders. [Emphasis added.] [16] In this case, the respondents always had the option to sell their strata lot and retain the proceeds. The respondents submit that this means the fruits of the litigation, or the real effect of the judgment of Pearlman J., was to grant them the difference between this market value and the purchase price. While that may be the case, it does not change the character of the ‘judgment’ as being for the entire purchase price. Indeed, their submissions would have greater weight if the respondents had sued the appellants for that difference, as opposed to seeking a rescission of the purchase agreements. With the respondents having chosen to pursue a judgment for the entirety of the purchase price via a rescission, MacKenzie J.A. cannot be faulted for using that amount as a basis for determining whether or not the respondents could collect most of the judgment by selling their strata lots. Her decision was entirely within her discretion. It was not wrong in law, principle, or based upon any misconstrued facts. Conclusion [17] Accordingly, I would dismiss the application to vary. [18] SAUNDERS J.A. : I agree [19] GROBERMAN J.A. : I agree. [20] FINCH C.J.B.C. : The application is dismissed. “The Honourable Chief Justice Finch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Skinner , 2013 BCCA 27 Date: 20130114 Docket: CA040347 Between: Regina Appellant And: Joshua Augustine Victor Skinner Respondent Before: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Frankel The Honourable Mr. Justice Hinkson On Appeal from:  Provincial Court of British Columbia, October 2, 2012 ( R. v. Skinner , Victoria Docket No. 153985-1) Oral Reasons for Judgment Counsel for the (Crown) Appellant: J. Duncan, Q.C. Counsel for the Respondent: D. J. McKay Place and Date of Hearing: Victoria, British Columbia January 14, 2013 Place and Date of Judgment: Victoria, British Columbia January 14, 2013 [1] HINKSON J.A.: On June 15, 2012, Mr. Skinner pleaded guilty in the Provincial Court to one count of aggravated assault and on September 14, 2012 he pleaded guilty to one count of assault. He was sentenced on both offences on October 2, 2012 and given nine months in custody for the aggravated assault, and 60 days concurrent for the assault. [2] The Crown appeals the sentence, contending that the sentence fails to give adequate weight to the principle of general deterrence, is disproportionate to the gravity of the offences and the degree of Mr. Skinner’s responsibility, and/or is clearly unreasonable. [3] For the reasons that follow, I would dismiss the appeal. Background [4] There was evidence before the sentencing judge, to which she referred, that Mr. Skinner had advised others prior to February 20, 2011, that he did not, as a rule, abuse alcohol or drink to the point of blackouts. The judge found that on February 20, 2012, Mr. Skinner purchased two bottles of wine, and took them to Holland Point Park, within the greater Beacon Hill Park, in Victoria, drinking at least one of them before he encountered 79 year old Mr. Prior, standing at the edge of an embankment along the beachside, enjoying the view. [5] The judge accepted that by the time he encountered Mr. Prior, Mr. Skinner was extremely intoxicated, and for reasons that remain inexplicable, even with the assistance of psychiatric and pre-sentence reports, he pushed Mr. Prior over the embankment, lost his own balance and tumbled down the embankment behind Mr. Prior, ultimately falling on top of him. [6] Mr. Prior sustained serious injuries; a suspected concussion and a fractured pelvis, and damaged his eyeglasses and the clothes that he was wearing. He has described his life as ruined because he lost his faith in his own capacity to take care of himself, and, despite counselling, has become somewhat of a hermit. [7] These events were witnessed by Mr. Easton, who was walking along the beach with his seven year old son. Mr. Easton tried to intercede to protect Mr. Prior, but was himself assaulted by Mr. Skinner. Mr. Easton moved down the beach, followed by Mr. Skinner, staggering and yelling profanities. The police were summoned, and Mr. Skinner was arrested. Mr. Easton has a history of concussions, and while he was being assaulted by Mr. Skinner, Mr. Skinner was attempting to bash his head against a log. Mr. Easton sustained a mild concussion as a result of the assault, and both he and his son have sought and received counselling for the trauma caused by the assault. [8] At his sentencing, Mr. Skinner denied any memory of committing the offences, and said his only memory was of waking up in a jail cell and then proceeding off to visit friends. [9] The judge recounted the evidence before her as disclosing that Mr. Skinner was a stable, supportive, conscientious citizen. Mr. Skinner’s mother reported violence was not tolerated by his family who described him as a good man, whose conduct on the day of the assaults, in their view, and in the view of a co-worker was completely out of character for him. [10] The judge noted that Mr. Skinner had a good employment record, and an employer who would be happy to continue his employment, despite the events of February 20, 2012. [11] The sentencing judge instructed herself on the purposes and principles of sentencing set out in s. 718 of the Criminal Code , and identified the objectives of sentencing as denunciation, general deterrence, specific deterrence, separation of the offender from society, rehabilitation, the making of reparations, and the promotion of a degree of responsibility in the offender. Next, she referred to fundamental principle of sentencing of proportionality between the gravity of the offence and the degree of responsibility of the offender. [12] The sentencing judge focused her sentence primarily on the objective of denunciation, relating it to the principle of proportionality and the gravity of Mr. Skinner’s offences, and the aggravating and mitigating factors established on the evidence before her, including Mr. Skinner’s guilty pleas. She also referred to general deterrence, but questioned its potential effect on those who might commit acts similar to those committed by Mr. Skinner. She concluded that Mr. Skinner was remorseful, and had written letters of apology to Mr. Prior and Mr. Easton. She referred to Mr. Skinner’s resolution to abstain from the use of alcohol in future. She found that he had shown he was on the way to rehabilitating himself as evidenced by his remorsefulness and willingness to accept responsibility for the consequences of his conduct, leaving specific deterrence of no concern to her. Discussion [13] The Crown accepts that sentencing involves the exercise of discretion by the sentencing judge and that a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit: R. v. M. (C.A.) , [1996] 1 S.C.R. 500, at p. 565, or if the sentencing judge commits an error in principle by failing to give sufficient weight to a relevant factor or over-emphasizing a relevant factor: R. v. Nasogaluak , 2010 SCC 6, [2010] 1 S.C.R. 206, at pp. 233-234. [14] The Crown concedes that the sentencing judge “was alive to the facets of Mr. Skinner’s behaviour that was properly the subject of general deterrence” - drinking to the point of blacking out, but contends she dispensed with that factor on the basis that it would be an ineffective effort for conduct of the nature for which she was sentencing Mr. Skinner. [15] I agree with counsel for Mr. Skinner that the sentencing judge did not dismiss general deterrence as a principle of sentencing that she did not have to follow, but rather, she concluded, as in my view she was entitled to do, Mr. Skinner’s sentence would have a limited effect on offences of the nature of those for which she sentenced Mr. Skinner. I would not accede to the submission that the sentencing judge failed to give adequate weight to the principle of general deterrence. [16] In terms of proportionality, the Crown properly contends that the sentence imposed must be broadly commensurate with the gravity of the offence committed, see R. v. M. (C.A.) , at p. 529. The Crown contends that that range, was set out in the decision of this Court in R. v. Biln , 1999 BCCA 369, and more recently confirmed in R. v. Grassick , 2012 BCCA 432, and is two years less a day to six years imprisonment. [17] The Crown concedes that sentencing ranges are not determinative, but contends that the sentence imposed for the offence of aggravated assault in this case was below the range for such an offence. [18] As this Court clarified in R. v. Bernier , 2003 BCCA 134, the range of sentence does not preclude a sentence below the lower end of the range if such a sentence is warranted by the other principles of sentencing set out in the Criminal Code . [19] The sentencing judge demonstrated that she was aware of the gravity of Mr. Skinner’s offences, and the location where they occurred. She referred specifically to that part of para. 9 in R. v. Wallin , 2003 BCSC 809, where Madam Justice Dillon wrote: While I accept that the offence was not pre-meditated or continuous ... It was a motiveless, unprovoked, savage attack ... in a public park relied upon by all citizens of Vancouver as expressive of the physical and spiritual virtue of the city. [20] The sentencing judge did not accede to Mr. Skinner’s submission that he be given a 90 day intermittent sentence to permit him to maintain his employment. Despite the gravity of Mr. Skinner’s offences, the sentencing judge imposed a sentence that was less than the lower end of the range described in Biln and Grassick . I am unable to say that in so doing, she committed an error in principle by failing to give sufficient weight to a relevant factor or by over emphasizing a relevant factor and would not accede to the submission that she erred in imposing a sentence that is less than lower end of the range established in Biln and Grassick . [21] Finally, the Crown contends that the sentence imposed was clearly unreasonable, but in support of this submission simply reiterates its submissions on the first two alleged errors. The reframing of the other submissions does nothing to advance this submission, and I would not accede to it. [22] I would grant the Crown leave to appeal but dismiss the appeal. [23] KIRKPATRICK J.A.: I agree. [24] FRANKEL J.A.: I agree. [25] KIRKPATRICK J.A.: The appeal is dismissed. “The Honourable Mr. Justice Hinkson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, 2013 BCCA 13 Date: 20130115 Docket: CA039340 Between: Downs Construction Ltd. and Jerry Webster Appellants (Petitioners) And The Workers’ Compensation Appeal Tribunal and Vicki Lynn Christianson Respondents (Respondents) Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Chiasson The Honourable Madam Justice Garson Supplementary Reasons to: Court of Appeal for British Columbia, October 4, 2012 ( Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, 2012 BCCA 392, Vancouver Registry No. CA039340) Counsel for the Appellant, Downs Construction Ltd.: L.A. Slater Counsel for the Appellant, Webster: H.F. Turnham Counsel for the Respondent, Workers’ Compensation Appeal Tribunal: J.T. Lovell Counsel for the Respondent, Christianson: M.N. Hillard Place and Date of Hearing: Victoria, British Columbia September 18, 2012 Place and Date of Judgment: Vancouver, British Columbia October 4, 2012 Written Submissions Received: December 14, 2012 Date of Supplementary Judgment: January 15, 2013 Written Reasons by: The Honourable Mr. Justice Chiasson Concurred in by: The Honourable Mr. Justice Lowry The Honourable Madam Justice Garson Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] This decision considers a number of costs issues: whether to award costs against an administrative tribunal; whether costs should be awarded against an unsuccessful party who has acted reasonably; and, whether successful parties who have different legal interests and who are represented by different counsel, but who file a single factum, each should recover costs. Background [2] Ms. Christianson and Mr. Webster worked for Downs Construction (“Downs”).  In January 2006, Ms. Christianson suffered a stress-related injury as a result of conduct of the appellant, Mr. Webster, while they were performing their duties for Downs.  In January 2008, Ms. Christianson sued Downs and Mr. Webster.  In their defence, they pleaded s. 10 of the Workers Compensation Act , R.S.B.C. 1996, c. 492.  In short, s. 10 bars an action in lieu of a possible claim under the Act where the injury arose out of and in the course of employment. [3] Compensation for stress-related injury is available if the injury arose out of and in the course of employment and the event giving rise to the injury was not unexpected. [4] Ms. Christianson initiated a claim for compensation pursuant to s. 5.1 of the Act .  She was unsuccessful.  The Board concluded that the event giving rise to her injury was not unexpected.  The Workers’ Compensation Appeal Tribunal (“WCAT”) upheld the decision of the Board. [5] Pursuant to s. 257 of the Act , WCAT issued a certificate to the court stating, among other things, that t he mental stress injury suffered by Ms. Christianson “did not arise out of and in the course of her employment”. [6] Downs and Mr. Webster sought judicial review of WCAT’s decision to refuse compensation and to issue the above-stated portion of the certificate.  They were unsuccessful.  On October 4, 2012, this Court allowed their appeal (reasons indexed at 2012 BCCA 392).  The appeal was limited to the certificate. This Court ordered WCAT to issue a certificate stating: The mental stress injury suffered by the plaintiff Vicki Lynn Christianson arose out of and in the course of her employment within Part 1 of the Workers Compensation Act , but she is not entitled to compensation because the event giving rise to the injury was not unexpected as required by s. 5.1 of the Act . [7] WCAT and Ms. Christianson seek an order for no costs.  Mr. Webster and Downs individually claim costs against WCAT and Ms. Christianson.  WCAT and Ms. Christianson, in turn, contend that if this Court awards costs, only one set of costs should be allowed. Positions of the parties [8] WCAT relies on Lang v. British Columbia (Superintendent of Motor Vehicles) , 2005 BCCA 244, 43 B.C.L.R. (4th) 65, for the proposition that generally costs are not awarded against an administrative tribunal on a judicial review subject to two exceptions: (1) misconduct or perversity in proceedings before the tribunal; or (2) the tribunal agues the merits of the judicial review application rather than merely addresses its jurisdiction.  Downs and Mr. Webster do not dispute this proposition. [9] Recognizing limitations that have been placed on the ability of an administrative tribunal to defend its decision in court, WCAT asserts that it was entitled to address the reasonableness of its determination.  Downs and Mr. Webster contend WCAT went beyond its limited right to participate and argued the merits of the appeal. [10] Ms. Christianson resists an award of costs against her.  She states that the appeal concerned an important point of public law and that her participation was reasonable. [11] Downs and Mr. Webster each seek costs on the basis that their interests differed and, in some respects, were in conflict, which required them to be represented by separate counsel.  WCAT and Ms. Christianson oppose this. Discussion [12] In Lang , Mr. Justice Donald addressed the role of an administrative tribunal in court proceedings and associated costs implications.  He began by observing that the general rule is that an administrative tribunal is neither entitled to costs nor liable for them.  He stated in paras. 48-50: [48]      For the purposes of this case it is enough to identify two exceptions: 1.         misconduct or perversity in the proceedings before the tribunal; or 2.         the tribunal argues the merits of a judicial review application rather than its own jurisdiction. [49]      Applying the second exception may not always be clear cut.  There are at least two reasons for this.  First, the review by the adjudicator under the scheme in question does not conform to the classic adversarial model where opposing parties argue for and against the decision in question.  The peace officer's report is the case, so to speak, for the prohibition, and there is no argumentation back and forth before the adjudicator as there would be in a conventional hearing.  This feature may create a tendency on the part of the tribunal, or the Attorney General on its behalf, to argue the case for the prohibition at judicial review.  The tendency should be resisted, otherwise costs may be awarded. [50]      Secondly, the traditional restriction against the tribunal's arguing the merits of its own decision, articulated clearly and emphatically in cases like Canada Labour Relations Board v. Transair , [1977] 1 S.C.R. 722, 67 D.L.R. (3d) 421, and Northwestern Utilities Ltd. v. Edmonton (City) , [1979] 1 S.C.R. 684, 89 D.L.R. (3d) 161, has been relaxed somewhat by the decision in CAIMAW v. Paccar of Canada Ltd ., [1989] 2 S.C.R. 983, 62 D.L.R. (4th) 437. Paccar permits the tribunal to demonstrate that its decision was not patently unreasonable. [13] Donald J.A. then referred to Northwestern Utilities Ltd. v. Edmonton (City) , [1979] 1 S.C.R. 684, 89 D.L.R. (3d) 161 and CAIMAW v. Paccar of Canada Ltd ., [1989] 2 S.C.R. 983, 62 D.L.R. (4th) 437, in which Mr. Justice La Forest quoted with approval a passage of the judgment of Mr. Justice Taggart in British Columbia Government Employees' Union v. Industrial Relations Council (1988), 26 B.C.L.R. (2d) 145 at 153, 32 Admin L.R. 78 (C.A.): The traditional basis for holding that a tribunal should not appear to defend the correctness of its decision has been the feeling that it is unseemly and inappropriate for it to put itself in that position.  But when the issue becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable, there is a powerful policy reason in favour of permitting the tribunal to make submissions.  That is, the tribunal is in the best position to draw the attention of the court to those considerations, rooted in the specialized jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area .  In some cases, the parties to the dispute may not adequately place those considerations before the court, either because the parties do not perceive them or do not regard it as being in their interest to stress them. [Emphasis added by Donald J.A.] [14] Donald J.A. continued in para. 54: [54]      When read closely, the passage adopted by La Forest J. does not in my view provide the tribunal a broad opportunity to argue the merits.  The matters before the adjudicator, breathalyzer analysis and refusing a breath sample demand, are hardly unfamiliar to the regular courts and so it will seldom be necessary for the tribunal to expose some arcane or esoteric feature of the case in order to understand why it arrived at its decision.  While the line between arguing the merits and explaining the record is somewhat blurry when the test is patent unreasonableness, there remains a boundary which must be observed.  It will be up to the judgment of the reviewing judge in each case to determine if the tribunal, or the Attorney General on its behalf, has gone too far. [15] I have reviewed the factums on appeal.  While WCAT did address policy issues underlying workers’ compensation legislation and its theory of determining whether an injury occurs out of and in the course of employment, i t is clear, in my view, that WCAT argued the merits of the appeal.  It dealt with the implications of the appeal for Ms. Christianson and defended the approach taken by the Board and by WCAT.  In the unusual circumstances of this case, I do not criticize WCAT for doing so, but Downs and Mr. Webster were required to address WCAT’s contentions.  I would order WCAT to pay costs. [16] While Ms. Christianson was a reluctant participant in that she was content to have her claim for compensation rejected as a foundation for the certificate advising the court that her injury did not occur out of and in the course of employment, the source of the dispute was her underlying litigation against Downs and Mr. Webster. This obliged them to support her subsequent application for workers’ compensation and, later, to resist the certificate issued by WCAT, both in the Supreme Court and in this Court.  She clearly had a significant interest in the outcome of the appeal.  She sought and was awarded costs in the court below.  I also would order her to pay costs. [17] I would order that Downs and Mr. Webster are entitled to one set of costs only.  They filed a joint factum.  While their interest in the underlying litigation may differ and be in conflict, I do not think that was the case on the appeal which concerned only the certificate. Conclusion [18] Downs and Mr. Webster are entitled to one set of costs against each of WCAT and Ms. Christianson.  I would order that each party bear its own costs of the proceedings in the Supreme Court. “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Mr. Justice Lowry” I agree: “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Law Society of British Columbia v. Chiang, 2013 BCCA 8 Date: 20130115 Docket: CA038749 Between: Law Society of British Columbia Respondent (Defendant) And Vivian Chiang Appellant (Plaintiff) Before: The Honourable Chief Justice Finch The Honourable Madam Justice Neilson The Honourable Mr. Justice Harris On appeal from:  Law Society’s Review Panel decision of September 30, 2010 The Appellant appeared in person: V. Chiang Counsel for the Respondent: H. Wood Place and Date of Hearing: Vancouver, British Columbia December 12, 2012 Place and Date of Judgment: Vancouver, British Columbia January 15, 2013 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Chief Justice Finch The Honourable Madam Justice Neilson Reasons for Judgment of the Honourable Mr. Justice Harris: Introduction [1] This is an appeal brought by a part-time lawyer from a bencher review, pursuant to s. 48 of the Legal Profession Act , S.B.C. 1998, c. 9.  A seven person Bencher Panel reversed a majority decision of an initial three person Hearing Panel, which had dismissed a citation against the lawyer for professional misconduct, amongst other allegations.  The citation for professional misconduct centred on an allegation that the lawyer had misled the court about the issues in respect of which short leave had been granted.  The initial decision included a dissenting minority opinion.  On review, the Bencher Panel unanimously agreed with the dissent, and substituted a finding of professional misconduct, but confirmed the Hearing Panel’s dismissal of all other allegations. [2] The appellant seeks a declaration that the proceedings were ultra vires , that the decision of the Review Panel be quashed and the original majority Hearing Panel’s decision be restored, that the restrictions placed upon her be removed, that her record be restored, and that she be paid restitution.  Alternatively, she seeks court assisted mediation.  In support of her appeal, the appellant argues that the Review Panel had no jurisdiction to rehear the original complaint, and if they did, they misapprehended the facts.  She suggests also that the underlying complaint regarding professional misconduct was a collateral attack intended to discredit her before the courts, and further, that the Law Society’s intervention in the dispute was an abuse of process.  She submits that the Law Society was biased against her, that the proceedings amounted to misfeasance of public office, malicious prosecution, and the improper exercise of authority. [3] The respondent Law Society submits that the appellant has ignored the true issue on appeal, namely, whether the Review Panel decision was reasonable, and instead identifies a number of grounds of appeal which are, for the most part, new and not properly supported with admissible evidence.  Where the appellant has asserted that the Review Panel misapprehended the facts, the respondents submit that the assertion is unsupported. [4] In my view, the only issue properly before this Court on this appeal is whether the decision of the Review Panel was reasonable.  I am satisfied that it was.  For the reasons that follow, I would dismiss the appeal. Background [5] Ms. Chiang is a part time member of the Law Society.  She does not actively practise.  In 2004, Ms. Chiang was the president of Freshway Specialty Foods Ltd. (“Freshway”), a wholesale marketer of fruits and vegetables.  Freshway was a member of the Fruit and Vegetable Dispute Resolution Corporation (“DRC”).  The DRC is an industry group that provides dispute resolution support to its members.  Following a dispute with a supplier, DRC ordered Freshway to pay approximately $13,000 US to the supplier.  Freshway did not comply, resulting in DRC suspending its membership.  DRC notified its members of the suspension. [6] Ms. Chiang, on behalf of Freshway, sought assistance from the Supreme Court to set aside the suspension and procure other relief.  Ms. Chiang’s conduct during a series of appearances on behalf of Freshway became the source of two complaints to the Law Society from opposing counsel.  The complaints led to a citation on 11 May 2007, listing four incidents which may have amounted to professional misconduct by misleading the court. [7] The facts giving rise to the complaints occurred when Ms. Chiang appeared ex parte before Madam Justice Gill in chambers on 11 March 2005, on her application seeking three claims for relief.  Madam Justice Gill refused the ex parte application, but granted short leave with respect to a claim for injunctive relief only and not the other relief.  The order, which appears to have been prepared in chambers with the assistance of the chambers judge, did not expressly identify the relief in respect of which short leave had been refused or the one ground in respect of which it had been granted. [8] On 15 March 2005, Ms. Chiang appeared before Madam Justice L. Smith in chambers on a Notice of Motion seeking relief on three grounds.  She did not inform L. Smith J. that Gill J. had only granted leave on one ground and refused it on two.  Ms. Chiang attempted to obtain relief on Freshway’s behalf on all three grounds, contrary to the terms of the order for short leave granted by Gill J. [9] Freshway’s application was dismissed by L. Smith J.  Further litigation ensued, aspects of which also formed the subject matter of the Law Society disciplinary proceedings.  Eventually, in January 2006, two counsel involved in the litigation with Freshway made complaints to the Law Society.  The matter, which involved four allegations, was heard by a Hearing Panel of the Law Society on 7-8 October 2008.  At the hearing, the Law Society withdrew one allegation.  The Hearing Panel issued a majority decision on 17 June 2009 dismissing the other three allegations. [10] The allegation which ultimately was upheld by the Review Panel, and which is the subject of this appeal, is in the following terms, as amended by the initial Hearing Panel: [1]        ... Your conduct on March 15, 2005, when you appeared before Madam Justice Smith in Supreme Court Chambers in Vancouver Registry Action No. S051013 on behalf of Freshway Specialty Foods Inc. in respect of its Notice of Motion dated March 11, 2005 and did not inform her that on March 11, 2005 short leave had been granted only with respect to the claim for injunctive relief, and further made submissions with respect to all three claims for relief set out in the Notice of Motion, contrary to the leave granted by Madam Justice Gill on March 11, 2005. This conduct was contrary to your duty as an officer of the court, in breach of the terms of the short leave order, or may or did have the effect of misleading the court, or both. [11] The majority of the Hearing Panel were of the view that the allegation of misconduct was explained by Ms. Chiang’s lack of experience and stress, and did not amount to professional misconduct.  One of the benchers, Mr. Alexander, agreed with the dismissal of two allegations, but dissented on the allegation set out immediately above. [12] In Mr. Alexander’s view, Ms. Chiang intentionally sought an order from L. Smith J. which she knew she did not have approval to seek.  He found that Ms. Chiang was motivated by her financial interest in Freshway, and allowed this to overcome her professional judgment.  He viewed this as a marked departure from the professional conduct expected of Law Society members and constituted professional misconduct. [13] The Law Society sought a review of the Hearing Panel’s decision, under s. 47 of the Legal Profession Act .  The Review Panel issued its decision on 30 September 2010.  The Review Panel agreed with the dismissal of the two allegations, but adopted Mr. Alexander’s dissent, finding that Ms. Chiang’s conduct did amount to professional misconduct.  The Review Panel referred the matter back to the Hearing Panel to consider appropriate sanctions. [14] Ms. Chiang appeals from this decision. The Appellant’s position [15] On the issue properly before this Court, Ms. Chiang submits that the Review Panel’s decision should be reviewed on a standard of correctness, not reasonableness, as asserted by the Law Society.  She contends, in any event, that the Review Panel’s decision was unreasonable.  Specifically, she argues that the Review Panel ought to have adopted the reasoning of the majority of the Hearing Panel, because the Hearing Panel made findings of fact after listening to the evidence, assessing the witnesses, and assessing her credibility.  Therefore, she asserts, the Review Panel erred in not deferring to the findings made by the majority of the Hearing Panel and instead adopting the findings of the dissenting opinion.  In doing so, it misapprehended the evidence.  Much of her oral argument, therefore, centred on persuading this Court that the majority decision of the Hearing Panel was correct, and the dissent wrong. The Law Society’s position [16] The Law Society submits that this is an appeal from the decision of the Review Panel, not the Hearing Panel, and is to be reviewed against a standard of reasonableness.  It argues that Ms. Chiang has not identified any basis to conclude that the Review Panel erred in principle or acted unreasonably in adopting, after reviewing the evidence, Mr. Alexander’s dissent.  Rather, Ms. Chiang has reargued the merits and not addressed the issue that should engage this Court on an appeal. Discussion [17] In her factum, Ms. Chiang raised a large number of issues that are not relevant to the issue which is properly before this Court, therefore it is unnecessary to address those issues. [18] The issue which is properly before this Court is an appeal from the decision of the Review Panel.  That appeal is brought by way of a statutory right of appeal under s. 48 of the Legal Profession Act. [19] It is convenient briefly to outline the statutory framework relevant to this appeal.  Section 47 of the Legal Profession Act provides that either party to a decision of a hearing panel may, within 30 days, “apply in writing to the benchers for a review on the record”; s. 47(1).  In this case the Law Society exercised its right to apply for a review.  Section 47(5) provides: After a hearing under this section, the benchers may (a) confirm the decision of the panel, or (b) substitute a decision the panel could have made under this Act. [20] It is apparent that the Review Panel exercised its authority under s. 47(5)(b) when it adopted Mr. Alexander’s dissent, because his decision is one the panel could have made under the Legal Profession Act . [21] Section 48 of the Act provides a person, such as Ms. Chiang, with a right of appeal of a decision, determination or order of a panel of the benchers.  The standard of review to be applied by this Court is well settled.  As Mr. Justice Mackenzie reiterated in Christie v. The Law Society of British Columbia , 2010 BCCA 195, 288 B.C.A.C. 53: [9]        The standard of review generally applicable to discipline decisions of the Law Society is reasonableness: Goldberg v. Law Society of British Columbia , 2009 BCCA 147, 92 B.C.L.R.(4th) 18, at para 36, quoting Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59. The facts found by the Panel are entitled to deference unless they are based on a material misapprehension of the evidence or are otherwise clearly wrong. [22] In Goldberg , Mr. Justice Donald articulated the standard of reasonableness as follows: [36] Dunsmuir v. New Brunswick , 2008 SCC 9, 291 D.L.R. (4th) 577, merged the concepts of reasonableness simpliciter and patently unreasonable into a single test, reasonableness.  The Supreme Court of Canada recently described this test in Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12: [59]      Reasonableness is a single standard that takes its colour from the context.  One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism.  Where the reasonableness standard applies, it requires deference.  Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” ( Dunsmuir , at para. 47).  There might be more than one reasonable outcome.  However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. [23] The question before us is whether the adoption by the Review Panel of Mr. Alexander’s dissent was unreasonable.  To answer that question it is necessary to undertake some analysis of the proceedings before both panels. [24] After reviewing the evidence, the majority of the Hearing Panel reached the following conclusions: Second and Fourth Allegations [42]  Nor is there any evidence that has sufficient clarity or cogency with respect to the other allegations upon which professional misconduct might be successfully advanced. While the Order granted by Madam Justice Gill was limited to one aspect of the motion requested to be heard, the Order made by the Court and endorsed on the Short Leave Requisition form contained no limitation at all except as to service and required the Respondent to serve all materials with the Requisition essentially forthwith. The evidence of the Respondent, which was not successfully challenged in cross-examination, explained that her actions thereafter were taken as a result of her perceived need for haste, her high anxiety consequent upon her involvement in a process substantially unfamiliar to her, her lack of experience, the impact of the emotions arising from circumstances of having a very ill parent in Taiwan and upon whom she wished to quickly attend, and most importantly, her attempt to advance in a matter that was misconceived from the outset. All the foregoing was consistent from the material and the Respondent's concessions. [43]  As proper practice, the Respondent should have addressed Madam Justice Smith outlining first the relief requested of the Court on this occasion, but mistakenly she did not and instead embarked on the underpinning facts of the case. All of the facts that the Respondent recited to the Court were relevant as background for injunctive relief and were therefore properly before the Court. The Respondent went wrong, however, in not ensuring that the limitation of the Short Leave Order was clear. This should have been done at the outset of the hearing. This she did not do, and that is the nub of allegation 2 brought against her. However, we can find no instance in the transcript that the Respondent did not respond otherwise than truthfully when asked a question by the Court. [25] Mr. Alexander dissented from these conclusions.  His reasons for doing so are detailed and involve a careful assessment of the evidence.  Mr. Alexander accepted that a finding of professional misconduct required clear and cogent evidence to prove the facts on a balance of probabilities.  He defined professional misconduct as involving a marked departure from the conduct the Law Society expects of its members. [26] Mr. Alexander noted that there was no issue that L. Smith J. was misled about what relief Freshway was entitled to seek on its application.  Ms. Chiang admitted that she understood that she had only been granted leave in respect of one ground of relief.  Mr. Alexander’s findings are set out at paragraphs 99–103 of his reasons: [99]      I must reject the explanations offered by the Respondent for her failure to observe the limitations imposed by Madam Justice Gill. None of the explanations offered demonstrate an honest attempt to comply with the Order. [100]    Her explanation to the Law Society for not complying was that she was forced to spend the whole night preparing for the application that she could not adjourn because of the urgency of the matter. She was concerned with the several hundreds of thousands of dollars of perishable produce in inventory and each day's delay had severe consequences. It must be noted, at the same time, that there was no urgency about preventing the DRC from further negative publications -the DRC had not indicated any inclination to publish further and in fact, had nothing more to say about F Inc. When Madam Justice Gill denied the application to have the DRC suspension lifted, the urgency of all remaining issues disappeared. [101]    By the morning of March 15, the only Order that would have provided relief to F Inc. was an order setting aside the suspension of F Inc. by the DRC. Despite the specific refusal of Madam Justice Gill to permit that application on short leave, the Respondent proceeded to seek that relief. In my opinion, all available evidence points overwhelmingly to the fact that the Respondent proceeded to seek relief on all grounds set out in her Notice of Motion in an attempt to save her company from the consequences of losing the warehouse full of deteriorating produce. In doing so, I am of the view that the Respondent acted wilfully and knowingly and without regard for her professional responsibilities to the Court and the Law Society. [102]    I would find that the Respondent intentionally, and in the face of the specific Order of Madam Justice Gill to the contrary, proceeded to seek relief in respect of a portion of the Notice of Motion for which short leave had not been granted. With the exception of her stated desire to respond to the urgent need to preserve the inventory of produce, all explanations offered by the Respondent are inadequate to explain the behaviour. [103]    It is my view that the Respondent allowed her personal financial interest in F Inc. to overcome her professional judgment and in the result of that lapse she attempted to obtain an Order from Madam Justice Smith which she knew she did not have approval to seek. Misleading the Court in this manner represents a marked departure from behaviour that the Law Society expects of its members, and so, in that regard, I would have found that the Respondent has committed professional misconduct. [27] In reaching these conclusions, Mr. Alexander supported his analysis by comprehensive reference to the transcript of the proceedings before Gill J. in which the chambers judge explained in detail the scope of the order for short leave and the reasons why the other relief could not be granted on an interlocutory basis.  He also referred to the reasons for judgment of Mr. Justice Macaulay in Freshway Specialty Foods v. Map Produce LLC, et al, 2005 BCSC 1485, 143 A.C.W.S. (3d) 668, criticizing the conduct of Ms. Chiang in relation to the matters forming the subject of the citation.  Mr. Alexander then examined correspondence between the Law Society and Ms. Chiang in which she gave inconsistent explanations of her conduct, but which referred to the urgency of the financial situation facing the company.  Mr. Alexander placed weight on the fact that Ms. Chiang was concerned about the urgency involved in the deteriorating inventory in support of his conclusion that she deliberately attempted to get relief that would address that problem: relief she was not entitled to seek before L. Smith J. [28] Mr. Alexander also analyzed Ms. Chiang’s evidence at the hearing before the Panel.  In that evidence, she claimed that by the time the motion came on the hearing before L. Smith J. she had forgotten the restriction on the relief she was entitled to seek.  Mr. Alexander rejected that explanation as not credible.  He also rejected the explanation that she did not abide by the restrictions imposed on the application by Gill J. because she was preoccupied with the service of documents. [29] Finally, based on an examination of the transcript at the hearing of the motion before L. Smith J., Mr. Alexander concluded that Ms. Chiang was reciting facts in support of her application to retract the suspension order which was what was creating the urgency surrounding the deteriorating inventory.  Indeed, Mr. Alexander quoted portions of the transcript before L. Smith J. which he concluded demonstrated that Ms. Chiang was deliberately seeking relief that she knew she was not entitled to. [30] The Review Panel, after reconsidering the Hearing Panel’s decision, stated its conclusions in the following terms: [13]  On this aspect of the matter, a majority of the Hearing Panel concluded that the evidence did not justify a finding of professional misconduct. Mr. Alexander delivered a vigorous dissent. [14]  We have examined with some care not only the reasons of the majority and of Mr. Alexander but also the underlying evidence, including that reviewed by Mr. Alexander. We have come to the conclusion, respectfully, that on a proper analysis of all of the evidence the decision of the majority of the Hearing Panel to reject a finding of professional misconduct on the evidence was wrong. [15]  Mr. Alexander’s conclusion is set out in paragraphs [102] and [103] of his dissenting reasons: [102]    I would find that the Respondent intentionally, and in the face of the specific Order of Madam Justice Gill to the contrary, proceeded to seek relief in respect of a portion of the Notice of Motion for which short leave had not been granted. With the exception of her stated desire to respond to the urgent need to preserve the inventory of produce, all explanations offered by the Respondent are inadequate to explain the behaviour. [103]    It is my view that the Respondent allowed her personal financial interest in F Inc. to overcome her professional judgment and in the result of that lapse she attempted to obtain an Order from Madam Justice Smith which she knew she did not have approval to seek. Misleading the Court in this manner represents a marked departure from behaviour that the Law Society expects of its members, and so, in that regard, I would have found that the Respondent has committed professional misconduct. [16]  We agree not only with these conclusions but also with the analysis that led Mr. Alexander to them. In our view, his analysis is comprehensive, balanced and careful. We have found it completely persuasive. We do not think that there is anything that we can usefully add to it. [17]  Our decision is that the complaint reflected in allegation 2 of the citation has been made out. Accordingly, under section 47(5)(b) of the Legal Profession Act , we determine that the Respondent committed professional misconduct, and we refer the matter back to the Hearing Panel to consider appropriate sanctions. [31] To reiterate, the Review Panel is entitled to substitute a decision the panel could have made under the Legal Profession Act .  The decision reached by Mr. Alexander is one the Hearing Panel could have reached although it did not.  In my view, there is nothing unreasonable in the Review Panel adopting as its own both Mr. Alexander’s conclusions and his analysis.  As the Review Panel stated, Mr. Alexander's analysis is comprehensive, balanced and careful.  The Review Panel made that assessment after reviewing both the majority and minority reasons, as well as the underlying evidence.  It is clear that the Review Panel assessed the majority and minority reasons according to a standard of correctness in concluding that “on a proper analysis of all of the evidence the decision of the majority of the Hearing Panel to reject a finding of professional misconduct on the evidence was wrong.” [32] In my view, the Review Panel cannot be said to have misapprehended the evidence in reaching its conclusion.  The Review Panel was entitled to reach the conclusion that the majority of the Hearing Panel was wrong in accepting Ms. Chiang’s explanations for her behaviour such as her lack of experience, business and personal distractions, anxiety, lack of sleep and conduct to support the view that her conduct was an isolated lapse.  The Review Panel’s conclusion was based on a review of the evidence on the record.  The conclusions reached by Mr. Alexander and affirmed by the Review Panel are based on the evidence and involved inferences that were open to be drawn from the evidence.  None of the facts found were unsupported by evidence. [33] Ms. Chiang was not able, in her written or oral argument before us, to identify any errors in principle committed by the Review Panel.  Her argument was reduced to the proposition that the dissent and the Review Panel were wrong in rejecting her explanations to exculpate her conduct.  But it is clear in my view that the Review Panel is not bound by the majority’s conclusions that inexperience or stress, in this case, excuse misconduct, even when issues of credibility may be involved.  Moreover, the Review Panel did not commit any error in disagreeing with the conclusions of the majority, even allowing for the fact that the Hearing Panel had the benefit of hearing some part of the evidence. [34] The Review Panel accepted that the evidence established that Ms. Chiang had intentionally sought relief that she admitted that she was not entitled to seek.  It concluded from that evidence that it was wrong for the majority of the Hearing Panel to treat her explanations for her conduct as an adequate answer to the allegation of professional misconduct.  Ms. Chiang alleged that the Review Panel misapprehended the facts, but in my view, they accepted the facts as found by the Hearing Panel, but determined, as they were entitled to do, that in Ms. Chiang’s circumstance, stress and inexperience did not excuse deliberate and misleading conduct.  In my view, this is a reasonable conclusion to reach in the circumstances of this case. [35] In brief, Ms. Chiang had admitted that she knew that she had been granted short leave only with respect to one ground of relief and not the others.  She admitted that she did not advise Madam Justice Smith of that fact when the motion came on for hearing.  There is no question that Madam Justice Smith was, in fact, misled by the nondisclosure.  It was open, on the evidence, for the Review Panel to conclude that Ms. Chiang intentionally misled the court, even if there were mitigating circumstances.  It is for the Law Society to determine whether such conduct is professional misconduct.  Ms. Chiang did not allege that such conduct would not be professional misconduct.  Rather she put her appeal on the basis that she had not intentionally misled the court by failing to advise it of limited grounds properly at issue in the application. Conclusion [36] Ms. Chiang has not persuaded me that the decision of the Review Panel was unreasonable.  As a result, I would dismiss the appeal. “The Honourable Mr. Justice Harris” I agree: “The Honourable Chief Justice Finch” I agree: “The Honourable Madam Justice Neilson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Larose, 2013 BCCA 12 Date: 20130115 Docket: CA039487 Between: Regina Respondent And Anthony Andrew Larose Appellant Before: The Honourable Mr. Justice Chiasson The Honourable Madam Justice Neilson The Honourable Madam Justice Garson On appeal from:  Supreme Court of British Columbia, March 1, 2011 ( R. v. Larose , 2011 BCSC 693, New Westminster Docket No. 73890) Counsel for the Appellant: D.T. Redekopp Counsel for the Respondent: M.J. Brundrett Place and Date of Hearing: Vancouver, British Columbia November 14, 2012 Place and Date of Judgment: Vancouver, British Columbia January 15, 2013 Written Reasons by: The Honourable Mr. Justice Chiasson Concurred in by: The Honourable Madam Justice Neilson The Honourable Madam Justice Garson Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] This appeal examines circumstances where a trial judge determines not to put a defence of self-defence to a jury when an accused is charged with aggravated assault and possession of a weapon dangerous to the public peace. Background [2] The incident giving rise to this appeal occurred on April 3, 2010. The appellant, Anthony Larose, and a young woman (his friend) were waiting for a bus.  The appellant became angry and threw a rock through a glass portion of the bus shelter.  Mr. Hanna, who was intoxicated, crossed the street and confronted the appellant about breaking the glass.  During the ensuring verbal exchange, without warning, Mr. Hanna punched the appellant in the face.  The appellant dropped to his knees.  Although he was not hurt significantly, the blow caused considerable discomfort because his nose was sensitive due to a previous drug addiction. [3] The appellant testified that while he was on the ground, the young woman handed him a 20-centimeter knife.  He rose and saw that Mr. Hanna had been joined by Mr. Marshall.  He testified they rushed him.  The appellant stabbed Mr. Hanna twice in the chest and once in the abdomen.  Messrs. Hanna and Marshall moved away. [4] During the altercation, the knife was either knocked away or thrown away by the appellant.  It was in the middle of the street.  The appellant went to retrieve it.  As he did so, Messrs. Hanna and Marshall turned and started towards the appellant.  He testified at trial that he was surprised and thought they were stupid, saying “you don’t come back for more”. [5] The group met again at the bus shelter.  The appellant stated that Messrs. Hanna and Marshall rushed him again.  He slashed Mr. Hanna’s face and sliced Mr. Marshall’s neck.  The injuries sustained by Messrs. Hanna and Marshall were life threatening. [6] The appellant fled the scene; police apprehended him shortly thereafter. [7] The appellant was charged with two counts of aggravated assault, two counts of assault with a weapon and one count of possession of a weapon dangerous to the public peace.  His defence at trial was self-defence.  The judge refused to put that defence to the jury on the basis it did not have an air of reality.  The jury convicted the appellant on all counts. Reasons of the trial judge on air of reality [8] In para. 2, the judge outlined the principles applicable to considering whether a defence has an air of reality from R. v. Cinous , 2002 SCC 29, [2002] 2 S.C.R. 3: [2] R. v. Cinous , 2002 SCC 29 [ Cinous ], at paras. 50 and 51 states: 50        The principle that a defence should be put to a jury if and only if there is an evidential foundation for it has long been recognized by the common law. This venerable rule reflects the practical concern that allowing a defence to go to the jury in the absence of an evidential foundation would invite verdicts not supported by the evidence, serving only to confuse the jury and get in the way of a fair trial and true verdict. Following Pappajohn , supra , the inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test. See Park , supra , at para. 11. 51        ...[A] trial judge has a positive duty to keep from the jury defences lacking an evidential foundation. A defence that lacks an air of reality should be kept from the jury. [References removed] This is so even when the defence lacking an air of reality represents the accused's only chance for an acquittal, as illustrated by R. v. Latimer , [2001] 1 S.C.R. 3 , 2001 SCC 1 . [9] After referring to R. v. Tran , 2010 SCC 58, [2010] 3 S.C.R. 350, which “stated the test in a slightly different way”, the judge returned to Cinous , noting that he had to look at the evidence as a whole and was required to assume “as true the evidence of the accused”.  He continued in paras. 8 and 9: [8]        Judges and juries have different duties to discharge when considering a defence raised by the defendant. The Judge says whether the evidence establishes any facts from which [the matter in issue] may be reasonably inferred; the jurors say whether, from those facts ... [the matter in issue] ought to be inferred: R. v. Arcuri , 2001 SCC 54, para 24 quoting Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193 (H.L.). [9]        In summary, a judge who fails to place before the jury all defences arising from the evidence errs in law; but no less errs in law by placing before the jury a defence lacking an air of reality. A trial judge should be very slow to take a defence away from a jury, the more so where the defence taken away takes with it an accused’s sole remaining defence. However, where a defence does not possess an air of reality, the law requires the judge to instruct the jury to not consider it. No exercise of judicial discretion is permitted. [10] At issue were ss. 34(1) and 34(2) of the Criminal Code , R.S.C. 1985, c. C-46, which state: 34(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. 34(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if ( a ) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and ( b ) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [11] The judge noted that the Crown had the burden to establish the absence of at least one of the essential elements of the sections.  The judge first turned to s. 34(2).  He stated in paras. 16, 17 and 19: [16]      In R. v. Pétel , [1994] 1 S.C.R. 3 [ Petel ], Chief Justice Lamer stated at para. 19, in a case involving the accused killing of the victim, that the three constituent elements of self-defence under s. 34(2): ... (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary. [17]      Both subjective and objective components of each of the elements must be present before a judge can find the defence has an air of reality. The accused's perception of the situation is the subjective part of the test. However, the accused's subjective belief based on the situation he perceives must be objectively reasonable. ... [19]      Excessive force is not an aspect of s. 34(2): R. v. Hebert , [1996] 2 S.C.R. 272. Section 34(2) does not require that proportionate force be used before the defence is “in play:” R. v. Brar , 2009 BCCA 585. [12] The Crown conceded that the first element, the existence of an unlawful assault, was present.  As to the other elements, the judge discussed his approach in para. 22: [22]      What follows is a recounting of Mr. Larose’s relevant evidence, including the most favourable portions of it, taking it as true. When discussing specific elements of s. 34(1) and 34(2), I will again refer to specific portions of the evidence. This evidence takes into account other favourable evidence and no contrary or unfavourable evidence from the complainants or other witnesses. [13] The judge reviewed the evidence through to para. 42 and then turned to the second element of s. 34(2): a reasonable apprehension of death or grievous bodily harm.  The judge again reviewed some of the facts: neither of Messrs. Hanna nor Marshall were armed; the appellant was larger than Mr. Hanna; the appellant took the knife intending to confront Mr. Hanna; Messrs. Hanna and Marshall did not attack the appellant when he was on the ground after the assault by Mr. Hanna; objectively, the assault could not cause the appellant serious bodily harm or death; at the time of the second altercation, Mr. Hanna previously had been stabbed three times and any reasonable person would know he was weakened; Mr. Marshall engaged the appellant after Mr. Hanna was out of commission from the slash to his face; Mr. Marshall was unarmed; the appellant did not state he retrieved the knife from the road because he feared grievous bodily harm or death, but because he thought it was unwise  to leave it there. [14] In para. 59, the judge concluded that on the totality of the evidence there was “... no air of reality to the second element of the defence of self-defence under 34(2)”.  He then addressed whether the appellant “could not otherwise preserve himself from death or grievous bodily harm”. [15] In para. 61, the judge stated that the appellant was required to “rule out other possible courses of action to preserve himself from grievous bodily harm” to justify stabbing and slashing Messrs. Hanna and Marshall.  The appellant need not weigh his options with nicety.  The judge stated in para. 62: [62]      In the circumstances of this case, use of such a dangerous and lethal weapon as the 20 cm knife Mr. Larose held could be only a last resort, not the first, as Mr. Larose had made it. Mr. Larose’s evidence, accepted as true, and with all available buttressing from the totality of the evidence, comes nowhere near to depositing sufficient evidence he had no alternative in the circumstances. [16] The judge observed that the appellant could have left the scene after he was struck by Mr. Hanna.  The judge continued in paras. 64-66: [64]      Most importantly, he could have spurned the knife he said Marissa handed him. There were no emergent circumstances facing Larose. No reasonable grounds for believing that a 6’, 195 pound male could not otherwise preserve himself from death or grievous harm except by using such extreme means in the circumstances. When Larose decided to use the knife to confront Hanna he had many different options. Further, when Hanna and Marshall had walked away, Larose also could have walked away. Larose agreed he should have, and nothing prevented him and Marissa from doing so. [65]      Larose testified he felt uncomfortable turning his back on Hanna and Marshall, who were creating more space between them. Feeling uncomfortable is not a reasonable basis for believing he could not otherwise preserve himself, except by his slicing of a person’s neck, face, and torso. [66]      Considering the totality of the evidence, I find no air of reality to the third element of the defence of self-defence under s. 34(2). [17] The judge then turned to his analysis of s. 34(1) in para. 67: [67]      Under s. 34(1) of the Code , the same principles as laid out under s. 34(2) apply. The four constitutive elements of self-defence under s. 34(1) are that: 1.         The accused was unlawfully assaulted; 2.         The accused did not provoke the assault; 3.         The repelling force used was not intended to cause death or grievous bodily harm; and 4.         The force used was no more than necessary. The Crown conceded the first three elements. [18] The judge stated in para. 76: [76]      It is important to keep in mind, when conducting such an analysis, the focus is not on the consequences of the stabbing and slashing or the extent of the injuries in terms of hospitalization and blood loss. Rather, the trial judge must look at the force used in the circumstance, and its proportionality. [19] In paras. 78-87, the judge reviewed the evidence concerning the appellant’s use of the knife.  He observed that the appellant testified that he intended to confront Mr. Hanna and scare him away.  The appellant stabbed Mr. Hanna three times, twice in the chest and once in the abdomen.  After being so injured, Mr. Hanna apparently attempted to assault the appellant a second time.  It was at this point when the appellant inflicted the final injury on Mr. Hanna. The appellant asserted he did not know what he was swinging at when he stabbed Mr. Marshall.  The blow sliced Mr. Marshall from his left ear to the mid-line of his neck. The judge noted that the appellant agreed “it was dangerous swinging at Marshall with a 20 cm knife if he did not know what he was swinging at”. [20] In para. 88, the judge stated that “[c]onsidering the totality of the evidence, I find no air of reality to the fourth element of the defence of self-defence under s. 34(1)”.  He summarized in paras. 90-91: [90]      In summary, I find Mr. Larose’s evidence, taken for the purposes of analysis under the ‘air of reality’ test to be true, is not objectively reasonable in light of the all the evidence presented to this court. [91]      I find a properly instructed jury acting reasonably could not possibly find the objective elements the law requires were present in the case at bar. Consequently, I conclude my placing before the jury the defence of self-defence, either under s. 31(1) or s. 34(2), in this case would amount to an error of law. Positions of the parties [21] In his factum, the appellant asserts the following errors by the trial judge: 16.       In his March 1, 2011 ruling that there was no air of reality to…allow the jury to consider the defence of self-defence, regarding counts 1, 2,4 and 5, pursuant to section 34 of the Criminal Code of Canada, the Learned Trial Judge made specific errors in law by: a) Making inappropriate and erroneous findings of fact ; b) Failing to apply the proper “modified objective” test in finding the accused’s subjective perceptions were not objectively reasonable; c) Improperly placing a duty to retreat on the accused; and d) Failing to give appropriate weight to the fact that Mr. Larose was facing two attackers. 17.       In his charge to the jury, the learned trial judge erred in law by failing to advise the jury on the relevance of self-defence in determining Mr. Larose’s purpose for possessing a weapon with respect to count 3. [22] The Crown contends that the judge did not err.  In the alternative, it states that if the judge did err, the curative provision in s. 686(1)(b)(iii) of the Criminal Code should be applied. [23] The organization of these reasons will correspond to the alleged errors raised by the appellant in his factum.  For the reasons that follow, I would dismiss this appeal. Discussion Air of reality [24] In my view, the Crown correctly summarizes in its factum the legal framework to be followed by a trial judge when considering whether a defence has an air of reality: 48.       In R. v. Cinous , 2002 SCC 29 , [2002] 2 S.C.R. 3, the Court stated that the “core elements” of the air of reality test had already been “clearly and authoritatively set out” in R. v. Park , [1995] 2 S.C.R. 836, 99 C.C.C. (3d) 1.  In R. v. Park , L’Heureux-Dube J. set out the starting point for an analysis of “air of reality”: The common law has long recognized that a trial judge need not put to the jury defences for which there is no real factual basis or evidentiary foundation. Courts must filter out irrelevant or specious defences, since their primary effect would not be to advance the quest for truth in the trial, but rather to confuse finders of fact and divert their attention from factual determinations that are pertinent to the issue of innocence or guilt. [at pp. 9,10] 49. R. v. Park also made clear that in assessing air of reality, the trial judge must not look at isolated bits of evidence: This line can sometimes be a fine one, however, for although we urge trial judges not to descend into the arena of facts, we nonetheless require that they consider nothing less that the “totality of the circumstances” in deciding whether an air of reality exists to found a particular defence. [at p. 11] 50.       The trial judge had a duty to conduct a limited weighing of the facts to determine whether an air of reality existed on the issue of self-defence: R. v. Cinous , at ¶¶90-91; R. v. Arcuri , 2001 SCC 54, [2001] 2 S.C.R. 828, at ¶23.  In R. v. C.(S.F.), 2001 BCCA 17, 147 B.C.A.C. 125 , this Court quoted from R. v. Pintar (1996), 110 C.C.C. (3d) 402 (Ont. C.A.), in which the Ontario Court of Appeal summarized the “functional approach” of the Supreme Court of Canada in focusing on the self-defence provision most clearly applicable to the circumstances of the specific case as follows: Hebert ([1996] 2 S.C.R. 272, 107 C.C.C. (3d) 42) admonishes trial judges to separate the wheat from the chaff when assessing the applicability of the various self-defence provisions. It invites trial judges to take a hard look at the evidence with a view to determining the essence of the claim to self-defence and the Code provision(s) realistically available to that claim. It advocates a careful and considered culling of the self-defence provisions to avoid unnecessary, inappropriate and irrelevant legal instruction of a kind that might well divert the jury’s attention from the real basis upon which the claim to self-defence rests. [p. 344] [25] I would add that the air of reality test must be applied to each element of the defence before it can be put to the jury ( Cinous at paras. 93-95). [26] An application to remove a defence from a jury because the defence lacks an air of reality is not a no-evidence motion.  It proceeds on the basis that there is evidence, but, as was stated in Tran (at para. 41) and quoted by the trial judge, “the evidence must be reasonably capable of supporting the inferences necessary to make out the defence....”  It is for this reason and in this context that a trial judge undertakes a limited weighing of the evidence.   The Supreme Court of Canada recently restated this point and the general approach to evidence in an air of reality analysis in R. v. Mayuran , 2012 SCC 31, 234 C.C.C. (3d) 1 at para. 21: [21]        In determining whether a defence has an air of reality, there must be an examination into the sufficiency of the evidence.  It is not enough for there to be “some evidence” supporting the defence ( Cinous , at para. 83).  The test is “whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true” ( Cinous , at para. 65).  For defences that rely on indirect evidence or defences like provocation that include an objective reasonableness component, the trial judge must examine the “field of factual inferences” that can reasonably be drawn from the evidence ( Cinous , at para. 91). [27] Several times in his factum, the appellant asserts that it is for the jury to decide what weight, if any, to give to the inferences drawn from the evidence.  In absolute terms, that is correct, but it does not detract from the trial judge’s obligation to perform a limited weighing of the evidence. [28] In my view, when undertaking the limited review of the evidence, a trial judge is entitled to exercise common sense.  That surely is at the core of determining whether there is an air of reality. [29] With these thoughts in mind, I turn to the specific contentions of the appellant the first of which is advanced under the broad heading: “The Learned Trial Judge made numerous inappropriate determinate factual inferences”. [30] Under this heading, the appellant lists individual inferences from the trial judge that he submits were inappropriate. I will address each in turn. Mr. Hanna was much smaller than the appellant. [31] The appellant concedes that the jury would have been entitled to consider the difference in size between the two men, but asserts that it was up to the jury to decide what weight to give to that and other factors. [32] The judge referred to the relative sizes of the men in paras. 47, 48 and 78: [47]      Hanna was a much smaller man than Larose, who was at least 6 feet, 195 pounds and had been working out daily in prison before his release 18 days prior to the incident. Larose said Hanna had been “beaking off at” him for a minute and half with nothing happening except that Larose was feeling annoyed. Larose said he was talking calmly to Hanna, said by Larose to be upset about the damage to the bus shelter. [48]      When Larose received the knife from Marissa (I should note here she did not testify and this evidence is not supported by other witnesses, but is accepted as true for the purpose of this analysis), he said he intended to use it not because he was in fear of grievous bodily harm or death from Hanna, a much smaller man, but to confront Hanna, one on one, and scare him. ... [78]      When Larose received the knife from Marissa (I should again note that she did not testify and this evidence is not supported by other witnesses, but is accepted as true for the purpose of this analysis), he said he intended to use it to confront Hanna one on one and scare him, not because he was in fear of grievous bodily harm or death from Hanna, a much smaller man. [33] In my view, the judge’s comments were merely descriptive. In any event, these were appropriate facts to be taken into account in a limited weighing of the evidence.  The size of the men was not a controversial fact; it was not a determinate finding of fact. Mr. Hanna was weakened due to the wounds he received during the first stabbing incident [34] The appellant refers to the judge’s comment in para. 52: [52]      ...Any reasonable person would know their assailant would be weakened as a result of such a wounding, reducing their capacity to inflict significant harm of any kind. ... [35] He asserts there was no evidence “to suggest that effects of the first stabbing would have reduced Mr. Hanna’s ‘capability to inflict significant harm of any kind’” and notes that the appellant testified that Mr. Hanna was walking around as if nothing had happened. [36] At this point in his reasons, the judge was considering whether the appellant reasonably apprehended a risk of death or grievous bodily harm.  The fact that Mr. Hanna likely was not capable of inflicting such harm was fully consistent with the appellant’s testimony that he stabbed Mr. Hanna twice and fully consistent with the agreed statement of facts that the appellant stabbed Mr. Hanna three times.  It was open to the trial judge to make the common sense inference that Mr. Hanna had a diminished physical ability to harm the appellant.  It was but one of a number of factors the judge took into account when considering whether there was an air of reality to the appellant reasonably apprehending a risk of death or grievous bodily harm. The appellant intended to “confront” Mr. Hanna with the knife [37] The appellant asserts that the judge equated the word “confront” with the word “attack”.  I do not agree. [38] In para. 28, the judge stated that the appellant intended “to use [the knife] to scare Hanna and confront him one on one”.  In para. 48, he stated that the appellant “intended to use [the knife] not because he was in fear of grievous bodily harm or death from Hanna, a much smaller man, but to confront Hanna, one on one, and scare him”.  This comment was repeated in para. 78.  The word “confront” is used in a few other paragraphs of the reasons.  The judge’s observation was based on the appellant’s testimony.  I do not see it being equated with attack.  The simple fact is that to scare Mr. Hanna, the appellant had to confront him. [39] The appellant asserts that it was “for the jury to decide the degree and nature of [the appellant’s] intent to confront Mr. Hanna”.  That was not the objective of the judge’s examination of the evidence.  He was concerned with whether there was any air of reality to the proposition that the appellant reasonably believed he had a risk of death or grievous bodily harm and that he took the knife for that reason.  The fact is that, according to his testimony, he took the knife for a different reason: to scare and to intimidate.  The judge was not considering whether the appellant took the knife for the purpose of attacking Mr. Hanna. The appellant could have “spurned’ the knife [40] The appellant refers to the first sentence of para. 64 of the trial judge’s reasons.  I quote the full paragraph: [64]      Most importantly, he could have spurned the knife he said Marissa handed him. There were no emergent circumstances facing Larose. No reasonable grounds for believing that a 6’, 195 pound male could not otherwise preserve himself from death or grievous harm except by using such extreme means in the circumstances. When Larose decided to use the knife to confront Hanna he had many different options. Further, when Hanna and Marshall had walked away, Larose also could have walked away. Larose agreed he should have, and nothing prevented him and Marissa from doing so. [41] He submits that a jury could have come to a different conclusion: the appellant armed himself to defend against another attack. [42] The judge was examining all of the circumstances, one of which is the reasonable proposition that the appellant did not need a 20 centimeter knife to deal with the situation he faced.  The judge stated in para. 61 that while the appellant did not have to “weigh his options to a nicety”, it was necessary to rule out other options.  On the evidence, the judge identified not taking the knife as an available option along with others, like walking away. The appellant’s injuries from Mr. Hanna’s punch played no significant role [43] The appellant refers to the judge’s comments in paras. 41, 50 and 58: [41]      Larose’s only injuries were a scratch on his neck and a small bruise on the left check. ... [50]      ... Hanna’s original uppercut was objectively incapable of causing serious bodily harm or death to Larose and indeed caused no significant injury to him.... ... [58]      Throughout the entirety of the altercations on the evening in question, Larose sustained the most minor of injuries. [44] The appellant submits that it would be reasonable to conclude the blow to his head was significant, particularly because it was “very painful” due to his sensitive nose. [45] The statements in paras. 41 and 58 are merely descriptive; they also are completely accurate.  The observation in para. 50 is correct and is merely one of the factors considered by the judge in determining whether there was any air of reality to the proposition the appellant reasonably believed he faced a risk of death or grievous bodily harm. Mr. Hanna did not attack the appellant while he was “disadvantaged” by Mr. Hanna’s punch [46] The appellant asserts that the jury might have concluded that Mr. Hanna was waiting for Mr. Marshall to join him so they jointly could attack the appellant.  First, that proposition is pure speculation.  Second, the judge merely noted the fact that Mr. Hanna did not attack the appellant at that time.  That fact was relevant to whether the appellant reasonably feared death or grievous bodily harm.  Mr. Hanna’s reason for not attacking was irrelevant. Messrs. Hanna and Marshall walked away from the first confrontation with no purpose other than to withdraw [47] The appellant asserts that the judge found that Messrs Hanna and Marshall walked away with no purpose other than to withdraw.  He contends this may have been reasonable had they continued, but they turned back when the appellant retrieved the knife.  The appellant refers to para. 56 of the judge’s reasons, which I quote: [56]      Hanna and Marshall’s walking away from the scene after the initial contact, in the direction they had come from, conveys the opposite message of an intention to pursue any other purpose but to withdraw; and certainly not to pursue any purpose to inflict grievous bodily harm or death on Larose. [48] The judge did not find that Messrs. Hanna and Marshall had no other purpose.  He stated their action conveyed that message to the appellant and did not convey to him the message that they intended to inflict on him death or grievous bodily harm at that point in time; a point in time when the appellant could have left the area. Feeling “uncomfortable” is not a reasonable basis for the appellant believing he could not preserve himself from attack [49] The appellant refers to paras. 65 and 89, which I quote: [65]      Larose testified he felt uncomfortable turning his back on Hanna and Marshall, who were creating more space between them. Feeling uncomfortable is not a reasonable basis for believing he could not otherwise preserve himself, except by his slicing of a person’s neck, face, and torso. ... [89]      Crown counsel, in his submissions, urged me to consider the act of stabbing Chris Hanna in the torso three times and slashing him in the face, and severely cutting Mr. Marshall’s neck. He submitted this was not force that was no more than necessary to repel any assault made on Mr. Larose. I agree, especially in the light of Mr. Larose’s ability to have walked away from the conflict at any point. The fact that he may have felt uncomfortable turning his back to Mr. Hanna and Mr. Marshall, while accepted, is not sufficient to overcome Mr. Larose’s testimony he could have left at any point, particularly when Mr. Hanna and Mr. Marshall were walking away. [50] The appellant states that the judge used the least significant meaning of the word “uncomfortable” and that the word can connote “the feeling of extreme fear”.  He contends that it was “for the jury to decide the degree and nature of [the appellant’s] discomfort”.  The appellant’s proposition accords neither with the dictionary definition of uncomfortable (“not physically comfortable”: Concise Oxford English Dictionary , 11 th ed. (Oxford: Oxford University Press, 2004)), nor with the common understanding of the word.  The appellant did not testify that he had extreme fear or that he could not preserve himself without slashing Messrs. Hanna and Marshall or that this played any part in him not walking away when Messrs. Hanna and Marshall did so. Summary on judge’s inferences [51] Although I have addressed each of the appellant’s contentions concerning the judge’s factual findings, the exercise illustrates the basic error of the appellant’s approach.  It is wrong to analyze each of these findings in isolation.  Most of those identified by the appellant were but one factor in the judge’s consideration of the various elements of s. 34(1) and (2) of the Criminal Code .  Cumulatively, together with many other factors, these findings led the judge to conclude that the defence of self-defence did not have an air of reality in this case. [52] In my view, the judge did not err in his articulation or application of the principles which guide the air of reality analysis in his limited weighing of the evidence. [53] I turn now to address the appellant’s other contentions concerning the air of reality analysis raised in his factum. Inappropriate weight on the appellant’s failure to retreat or call for help [54] The appellant again relies on paras. 64 and 89 of the judge’s reasons.  He contends that the jury reasonably could infer that the appellant’s failure to leave was explainable in that he believed he had to use the knife to protect himself.  In his factum, the appellant lists a number of propositions to support his contention: a)         Mr. Larose could not reasonably be expected to retreat from the surprise uppercut from Mr. Hanna. b)         Mr. Larose could not reasonably be expected to retreat from the surprise, simultaneous attack from both Mr. Marshall and Mr. Hanna immediately prior to the first knifing incident. c)         Mr. Larose was acting reasonably in retrieving the knife, from the street, in order to ensure that his attackers would not arm themselves with it.  Doing so was a reasonable act in self-preservation. d)         Mr. Larose was acting reasonably in remaining at the scene so as not to abandon Marissa, even if he was in fear for his own safety. e)         Mr. Larose’s fear subsided when he observed Mr. Hanna and Mr. Marshall walking away from the area. He believed the conflict was over.  That is why he did not take the opportunity to leave and instead went to retrieve the knife. f)          Mr. Larose did reasonably regain his fear when Mr. Hanna and Mr. Marshall approached and surrounded him before the second knifing incident. g)         Mr. Larose could not reasonably be expected to retreat from Mr. Marshall and Mr. Hanna when they surrounded him just prior to the second knifing incident. [55] Paragraph 64 of the trial judge’s reasons addresses the third element of s. 34(2), reasonable apprehension of death or grievous bodily harm; para. 89 deals with the fourth element of s. 34(1), no more force than reasonable.  The appellant acknowledges that available avenues of retreat and failure to seek help are relevant to a consideration of these elements.  He acknowledges that the Supreme Court of Canada in Cinous gave considerable weight to these factors, but distinguishes that case on the basis that the appellant was under attack, while Mr. Cinous struck pre-emptively.  He states in para. 64 of his factum: In the case at bar the jury could reasonably conclude that Mr. Larose’s failure to call for help was reasonable in that Mr. Larose only felt the requisite fear for his safety at the instants he was attacked just prior to both stabbing incidents.  The jury may reasonably conclude that Mr. Larose’s concentration was fully on defending himself from multiple attackers and/or he believed that calling for help would be a futile endeavor in the heat of the moment. [56] The judge’s task was to determine whether this contention had an air of reality.  In my view, he did not err concluding it did not.  I examine propositions (a)-(g) above. [57] I accept proposition (a).  Proposition (b) is an open question.  I am not aware of evidence that the appellant retrieved the knife from the street to ensure his attackers would not arm themselves with it as stated in proposition (c).  In fact, Messrs. Hanna and Marshall were heading in the opposite direction.  The assertion also does not accord with proposition (e), which states the appellant believed the conflict was over and that is why he retrieved the knife.  We were not directed to evidence that the appellant remained at the scene to protect the young woman as contended in proposition (d).  Similarly, we were not directed to evidence that he regained his fear when Messrs. Hanna and Marshall approached him as alleged in proposition (f).  In fact, he testified that he thought they were stupid coming back for more.  I think proposition (g) makes some sense: the appellant could not be expected to retreat when surrounded by the others. [58] After examining the propositions advanced by the appellant, I am not satisfied that the judge erred concluding there was no air of reality to the contentions that the appellant acted out of a reasonable apprehension of death or grievous harm or that he used no more force than reasonably was necessary. Failure to apply the appropriate test in finding there were “no objective indicators [the appellant] was, at any time, in fear of grievous bodily harm or death” [59] The appellant asserts that in assessing objectively the reasonableness of his conduct, the judge was obliged to take into account the appellant’s particular circumstances.  Again, the appellant sets out a number of factors supporting his contention the judge erred: a) Mr. Larose’s experience in jail conditioned him to fear that any attack             could lead to grievous bodily harm or death. b) Mr. Larose described the blow from Mr. Hanna to be very painful.  The jury may conclude that his reasoning was impaired by the pain. c) Mr. Larose was hit in the head with sufficient force to knock him to             one knee for ten seconds.  The jury may conclude that his reasoning             was impaired due to the blow to his head. d) Mr. Larose has a sensitive nose that will cause him to be incapacitated for a significant period of time, if he it is hit.  This makes Mr. Larose particularly vulnerable to attack. [60] It is clear that the judge recognized that the conduct of the appellant had to be considered subjectively and objectively.  He repeatedly noted this in his reasons. [61] We were not directed to evidence that supported a number of the factors advanced by the appellant.  Others are pure speculation.  I would not accede to the appellant’s contention that the judge erred in his consideration of the objective indicators that the appellant did not fear grievous bodily harm or death. Failure to consider properly the fact that the appellant faced two attackers [62] In his factum, the appellant summarizes his position on this issue: The appellant submits that the fact that Mr. Larose was simultaneously       attacked by Mr. Hanna and Mr. Marshall is a factor that, in and of itself,       provides an air of reality that: a) The force Mr. Larose used was no more than necessary to repel Mr. Marshall and Mr. Hanna; b) Mr. Larose had a reasonable apprehension of death or grievous bodily harm from the attack by Mr. Hanna and Mr. Marshall; and c) That it was not possible for Mr. Larose to preserve himself from harm except by inflicting grievous bodily harm on his adversaries. [63] The judge obviously was aware that the appellant faced two attackers.  He considered and rejected each of the propositions advanced by the appellant based on the evidence overall.  I previously have alluded to much of it.  In my view, the judge did not fail properly to take into account the fact that the appellant faced two attackers. Summary on air of reality [64] I would not accede to the appellant’s ground of appeal that the judge erred concluding his defence of self-defence lacked an air of reality. Failure to instruct the jury on self-defence on the charge of possession of a weapon dangerous to the public peace [65] The weapon’s charge was laid pursuant to s. 88 of the Criminal Code, which states: 88 . (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence. Punishment (2) Every person who commits an offence under subsection (1) ( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or ( b ) is guilty of an offence punishable on summary conviction. [66] The appellant’s position is stated in paras. 39 and 40 of his factum: When a person anticipates being attacked and the attack is completely inescapable, then possession of a weapon to thwart the attack is not possession for a purpose dangerous to the public peace. In the case at bar, the jury should have been instructed that, if they found that Mr. Larose took the knife from Marrisa, exclusively for the purpose of thwarting an attack from Mr. Hanna and that said attack was inescapable at that time, Mr. Larose is not guilty of an offence under section 88 of the Criminal Code of Canada. [67] Counsel for the appellant at trial spoke to the jury about the appellant’s state of mind when he took the knife from the young woman.  In his charge on the weapon’s offence, the judge reminded the jury that they should consider what counsel stated about the state of mind of the appellant. [68] In my view, the judge did not err by not addressing self-defence in the context of the weapon’s charge.  He had concluded there was no air of reality to self-defence on the basis the appellant did not pick up the knife to defend himself.  The appellant testified he did so to scare Mr. Hanna. [69] The issue under s. 88 is this: why did the accused have the weapon and what was his purpose.  Self-defence could be a purpose, but an accused may not need to go that far.  In that context, the judge was not obliged to discuss self-defence with the jury.  He clearly advised the jury that they had to decide the appellant’s purpose in possessing the knife.  He told them they must do so considering all the circumstances.  In my view, quite apart from the fact the judge had concluded the defence of self-defence had no air of reality, he properly directed the jury to what they had to consider. [70] I would not accede to the appellant’s ground of appeal concerning the judge’s instruction on the weapon’s charge. Conclusion [71] I would dismiss this appeal. “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Madam Justice Neilson” I agree: “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Ahmed v. Vancouver (City), 2013 BCCA 26 Date: 20130116 Docket: CA039795 Between: Mohamed Ahmed Appellant (Plaintiff And The City of Vancouver, Mayor Gregor Robertson, City Councilors David Cadman, Geroge Chow, Heather Deal, Kerry Jang, Ramond Louie, Geoff Meggs, Tim Stevenson, Ellen Woodworth, Blue Sky Properties Inc., Dale Bosa, Robert Bosa Respondents (Defendants Before: The Honourable Chief Justice Finch The Honourable Mr. Justice Chiasson The Honourable Madam Justice A. MacKenzie On appeal from: Supreme Court of British Columbia, February 29, 2012 (Ahmed v. Vancouver (City), 2012 BCSC 301, Vancouver Registry S108515) Oral Reasons for Judgment Appellant appearing In Person Counsel for the Respondent, City of Vancouver B. Jordan Counsel for the Respondents. Blue Sky Properties, D. Bosa, R. Bosa G.S. McAlister Place and Date of Hearing: Vancouver, British Columbia January 16, 2013 Place and Date of Judgment: Vancouver, British Columbia January 16, 2013 [1] FINCH C.J.B.C. : This is an appeal from the order of the Supreme Court of British Columbia pronounced by Mr. Justice Sewell on 29 February 2012. In his fully reasoned judgment, the learned judge dismissed the plaintiff’s action against all defendants as an abuse of process. He made an order that the plaintiff commence no further actions without leave of the court. [2] In my view, the order dismissing the action as an abuse of process was fully justified on the material before the judge and I can see no basis on which this Court could interfere with it. Similarly, I think his order with respect to the commencement of no further actions without leave was also justified. [3] I would dismiss the appeal. [4] CHIASSON J.A. : I agree. [5] A. MACKENZIE J.A. : I agree. [discussion with counsel re. costs] [6] FINCH C.J.B.C. : The respondents Bosa will have an order for special costs of the appeal. The respondent Vancouver and related respondents will have an order for ordinary costs. “The Honourable Chief Justice Finch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Aliperti v. Dhalla, 2013 BCCA 16 Date: 20130116 Docket: CA040352 Between: Arezoo Aliperti Respondent (Plaintiff) And Fatehali Dhalla Appellant (Defendant) Before: The Honourable Mr. Justice Harris (In Chambers) On appeal from:  Supreme Court of British Columbia, October 5, 2012 ( Aliperti v. Dhalla , Vancouver Registry C963127) Counsel for the Appellant: M. Tatchell The Respondent appeared in person: Acting as respondent’s agent: A. Aliperti I. Taher Place and Date of Hearing: Vancouver, British Columbia December 20, 2012 and January 4, 2013 Place and Date of Judgment: Vancouver, British Columbia January 16, 2013 Reasons for Judgment of the Honourable Mr. Justice Harris: [1]      The central issue in this series of applications is whether leave to appeal an order denying a successful litigant his costs of an action and also requiring him to pay special costs of the costs proceeding should be granted.  The matter is complicated by the procedural route that brings the substantive matter to court. [1] On November 5, 2009, the chambers judge granted an application by a defendant, Mr. Dhalla, to dismiss an action against him for want of prosecution.  Those reasons are indexed at 2009 BCSC 1774.  The action had started more than 13 years before the successful application to dismiss it for want of prosecution.  The judge ruled that if the parties could not reach an agreement on costs, either party was at liberty to make further submissions. [2] No agreement was reached on costs.  Mr. Dhalla applied for costs.  His application was resisted.  During the course of the costs application, the chambers judge adjourned the application to permit cross-examination on affidavits.  The point in issue had to do with whether Mr. Dhalla may have misconducted himself in the litigation by attempting in 2005 to evade, in a dangerous manner, personal service of a notice of intention to proceed.  The reasons adjourning the hearing to permit adjudication of this issue are indexed at 2010 BCSC 1909. [3] The matter came back before the chambers judge on nine occasions before judgment was rendered on October 5, 2012.  The reasons at issue in these applications are indexed at 2012 BCSC 1466.  The chambers judge concluded that Mr. Dhalla had indeed misconducted himself not only in attempting to evade service but also in the evidence he gave about that matter during the course of the costs application.  In the result, Mr. Dhalla was denied his costs of the action and was ordered to pay special costs in respect of the costs hearing. [4] The findings of fact relied on by the judge to support his order are set out at paragraph 33 of his reasons: [33]      From all of the evidence, I find that Mr. Dhalla is guilty of misconduct of the type spoken of in the cases I have discussed in the next section of my reasons for judgment. I find that Mr. Dhalla: (a)        was aware that Mr. Zainescu was trying to serve a legal document on him; (b)        knew or suspected that the document was connected to this proceeding; (c)        was aware of Mr. Zainescu’s previous attempts to contact and serve him; (d)        intended to and took steps to avoid being served by Mr. Zainescu; (e)        tried to evade service by rushing out of the rear of the building and then by driving away as quickly as he could in the circumstances; (f)         knew that the person he saw in the driveway of the parking lot area was the process server; (g)        failed to slow down or take evasive action to avoid hitting Mr. Zainescu; (h)        was reckless in continuing to drive and in failing to stop his vehicle or  take evasive action to avoid hitting Mr. Zainescu; (i)         would have struck Mr. Zainescu with his vehicle if he had not jumped out of the way; (j)         was careless as to the truth and, in some instances, was intentionally untruthful when providing his account of his dealings with Mr. Zainescu and the incident in the parking lot; and (k)        was argumentative and evasive when giving evidence and made up answers that were convenient for him at the moment, all in an inappropriate attempt to deflect the cross-examiner and to advance his case for costs. [5] The chambers judge identified the legal principles relevant to the exercise of his discretion and referred to a number of cases illustrating the application of those principles in circumstances where a successful litigant was penalized in costs because of his or her misconduct in the litigation.  The judge summarized the basis of his conclusions as follows: [43]      Mr. Dhalla should be denied his costs because he has engaged in serious misconduct in these proceedings that should be chastised. He sought to evade service in a dangerous manner and then showed disdain for the judicial process when he provided his untruthful account of what had occurred. ... [50]      I do not view this to be an appropriate case where each party should bear their own costs. I found Mr. Dhalla deliberately sought to evade service in egregious circumstances and then provided a dishonest account of his dealings with Mr. Zainescu. His evidence was inconsistent and in some instances deliberately untruthful, all in order to deflect the cross examiner and to further his pursuit of an award of costs against Ms. Aliperti. His conduct is worthy of rebuke; it is conduct that courts must seek to disassociate themselves from. He should pay special costs to Ms. Aliperti in respect of the costs hearing. To do otherwise, i.e., to order that the parties bear their own costs, would overlook the highly reprehensible nature of Mr. Dhalla’s misconduct that began in March 2005. [6] The issue before me has been complicated by the fact that Mr. Dhalla chose to file a Notice of Appeal, rather than an application for leave to appeal.  The Notice of Appeal was filed within time, thereby evincing an intention to appeal.  The respondent took the position that leave was required.  The matter came before Mr. Justice Low in chambers on November 28, 2012.  Ms. Aliperti’s application to strike out the appeal as a nullity was adjourned in order to allow Mr. Dhalla to bring the necessary applications to extend time to apply for leave to appeal and to file the necessary evidence explaining the delay. [7] In substance, albeit marginally late, Mr. Dhalla has complied with the basis upon which the application to strike the appeal was adjourned.  He has before me an application for short leave, an application to convert the Notice of Appeal to an application for leave to appeal nunc pro tunc , and an application to extend time.  Ms. Aliperti opposes these applications, seeks an order that the Notice of Appeal is a nullity and the appeal be dismissed, and in any event opposes granting leave to appeal. [8] I propose to deal directly with whether this is a matter in respect of which leave should be granted.  In my view, the procedural irregularities which have complicated this matter are simply procedural irregularities.  They do not provide a basis to treat the appeal as a nullity.  Mr. Dhalla had, there is no doubt, an intention to appeal.  His Notice of Appeal was filed and served within time.  His counsel took an incorrect view that leave to appeal was not required.  I find no merit in the suggestion that the decision to file a Notice of Appeal rather than an application for leave to appeal was a tactical decision gone awry, as Ms. Aliperti argued.  I am satisfied, moreover, that there is no prejudice to the respondent in dealing with the substantive matter at hand.  As Mr. Dhalla pointed out, had an application for leave to appeal been filed in the first instance, the hearing of the application would have occurred only a very short time before this came before the court in any event.  The minor delay occasioned by the procedural errors has not prejudiced Ms. Aliperti. [9] I am satisfied that, subject only to the issue of the merits of the appeal, the test to extend time has been met.  There was a bona fide intention to appeal.  The respondent was informed of the intention.   There is no prejudice to extend time.  It is in the interests of justice to consider the leave application on its merits. [10] I acknowledge that whether an appeal has merit is a factor to be considered in considering whether to extend time.  I propose, however, to deal with the merits in the context of my consideration of whether leave should be granted. [11] The test for leave to appeal is well settled.  It is conveniently summarized, as that test relates to costs issues, by Mr. Justice Hinkson (in Chambers) in Bradshaw v. Stenner , 2012 BCCA 481: [27]      The factors to be considered on an application for leave to appeal were conveniently summarized by Madam Justice Saunders, in chambers, in Goldman Sachs & Co. v. Sessions , 2000 BCCA 326 at para. 10: (1)        whether the point on appeal is of significance to the practice; (2)        whether the point raised is of significance to the action itself; (3)        whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and (4)        whether the appeal will unduly hinder the progress of the action. [31]      Insofar as the third factor is concerned, an appeal from an award of costs is often a challenge for an appellant, given the discretionary nature of such an award. The threshold for the third factor of merit for leave to appeal from an order for costs is more nuanced than that for an appeal in general. It was discussed by Madam Justice D.M. Smith, in chambers, in Yung v. Jade Flower Investments Ltd. , 2012 BCCA 168, 319 B.C.A.C. 265 at paras. 18–20: [18]      The test for leave to appeal an order of costs includes an added criteria that is addressed in Neufeld v. Foster , 2000 BCCA 485 (Chambers) per Rowles J.A.: [14]      Under s. 7(2)(b) of the Court of Appeal Act , R.S.B.C. 1996, c. 77, leave is required to appeal an order of costs only. As an award of costs generally involves the exercise of discretion, the award is subject to limited appellate review. Generally, leave is not granted unless a question of principle is involved : Raffele v. Janzen , [1989] B.C.J. No. 1733 (B.C.C.A.). [15]      The factors that are generally taken into account on an application for leave to appeal are the importance of the proposed appeal generally and to the parties, the utility of the proposed appeal in the circumstances of the parties, and the prospects of success of the proposed appeal. [Emphasis added by D.M. Smith J.A.] [19]      This test creates a more onerous burden on applicants seeking leave to appeal an order for costs which flows from the highly discretionary nature of such an order. Mr. Justice Low summarized the highly deferential standard of review for costs orders in Seminoff v. Seminoff , 2007 BCCA 403 (Chambers): [2]        ... This Court should not interfere with the trial judge’s exercise of discretion on the issue of costs unless persuaded that the trial judge misdirected himself or herself on a matter of legal principle, or that the trial judge’s decision is so clearly wrong as to amount to an injustice : see Elsom v. Elsom , [1989] 1 S.C.R. 1367 at 1377. ... [4]        In the absence of an identified error in principle it is difficult for a litigant to obtain leave to appeal a costs order. The awarding of costs is a matter of discretion and the trial judge is in a much better position than this Court to appreciate the course of the proceedings and to ascribe responsibility for duration of the trial. The trial judge is also in a much better position to assess the length of time each issue occupied at trial. These matters and others go into the exercise of discretion. [Emphasis added by D.M. Smith J.A.] [20]      The court will not interfere with the exercise of judicial discretion in awarding costs “if there was a sound basis for its exercise”: Currie v. Thomas Estate (1985), 19 D.L.R. (4th) 594 (B.C.C.A.), quoted in Oliviera v. McIntyre , [1998] B.C.J. No. 1682 (C.A.) per Donald J.A. (in Chambers) at para. 9. Given this deferential standard of review, the merit requirement in the test for leave to appeal of a costs order takes on a more prominent role and generally includes the additional requirement, discussed above, that there be some issue involving a matter of legal principle before leave will be granted. [12] Mr. Dhalla submits that the chambers judge made a number of errors.  First, that he failed to observe tenets of procedural fairness and permitted prejudicial and unfair questioning as well as protracted and badgering questioning, all of which resulted in a miscarriage of justice.  Secondly, that the chambers judge committed palpable and overriding errors by making findings of fact that were based on no evidence, evidence which did not meet the burden of proof, or was based on discredited and inadmissible evidence.  Thirdly, that the chambers judge erred in the exercise of his discretion by failing to exercise his discretion judicially and based on grounds connected to the case. [13] Mr. Dhalla submits that his proposed appeal satisfies the test for leave.  The points raised are significant to the action itself because they are determinative of it.  An appeal would not unduly hinder the progress of the action as the appeal is the last step in it.  He argues that the errors alleged involve errors of legal principle.  The appeal is sufficiently meritorious to merit review by a division of this Court.  Beyond the significance of the appeal to the parties, it does, he argues, raise issues that are significant to the practice generally because it raises important questions regarding the discretion of judges in awarding or denying costs generally and the basis on which special costs ought to be awarded – in particular, the importance of exercising their discretion judicially, proportionately and on a basis connected to the litigation. [14] In my opinion, whether leave should be granted in this case turns on whether the chambers judge erred in principle in making his orders or whether his orders are so clearly wrong as to amount to an injustice.  I will deal with each of the alleged errors in turn. [15] I have not been provided with a transcript of the cross-examination of Mr. Dhalla.  The record does include an affidavit from Mr. Dhalla and some extracts of questions and answers on various topics transcribed by counsel or Mr. Taher for Ms. Aliperti from the recording of the proceedings.  Mr. Dhalla says in his affidavit that his cross-examination was protracted, took days and days (in fact, it appears to have taken just over 5 hours of court time), and involved extensive liberties on collateral facts, compound questions, splitting hairs on semantics, asking the same question repeatedly and badgering.  Mr. Dhalla says that the chambers judge did not control the process and, he believes, had prejudged the issues adversely to him. [16] Mr. Dhalla has not, in my view, identified any legal error justifying review by a division of this Court.  Mr. Dhalla’s perception, standing alone, that the cross-examination was procedurally unfair or that the chambers judge was not impartial is not a sufficient basis to warrant leave being granted.  There must be some objective basis on which to evaluate those claims and none has been provided.  Decisions about whether to adjourn a hearing in order to permit cross-examination fall within the discretion of the chambers judge.  The applicant has not been able to point to any error in principle in the decision to permit cross-examination on the evidentiary point that concerned the chambers judge.  Moreover, without the transcript of the cross-examination of Mr. Dhalla, I cannot reach any conclusions about whether the chambers judge permitted the cross-examination to be conducted in a manner that was fundamentally unfair, and more particularly, in a manner that gave rise to an issue of principle.  In the absence of some demonstrated error in principle, controlling the conduct of cross-examinations is a matter falling within the discretion of the chambers judge. [17] No error warranting the granting of leave has been demonstrated in respect of this ground of appeal. [18] Mr. Dhalla argues that there is sufficient evidence in the record to demonstrate that there is a meritorious appeal on the question whether the chambers judge made palpable and overriding errors in finding the facts that underlay his exercise of discretion.  In particular, he says that the errors are illustrated in paragraph 6 of the reasons, particularly when those findings are viewed in the context of admissions made by the process server in his cross-examination. Paragraph 6 reads as follows: [6]        I found that Mr. Dhalla was evasive when giving his evidence. He gave inconsistent evidence and was, in some instances, deliberately untruthful when being cross-examined on his affidavit in order to distract the cross-examiner and to advance his claim for costs. His attempt to evade service nearly caused him to contact Mr. Zainescu with his vehicle. As a result, I have determined that Mr. Dhalla should be chastised for his misconduct. He should be denied his costs and Ms. Aliperti should be awarded special costs in respect of the costs hearing. [19] Mr. Dhalla submits that the basis of a meritorious appeal exists because these findings were made in the face of an affidavit from the process server that contained false evidence about seeing Mr. Dhalla fleeing to his car to avoid service.  Further, there was evidence from the process server that was in fact consistent with Mr. Dhalla’s, particularly in relation to the circumstances of Mr. Dhalla driving away and the reasons why the manner in which the process server approached Mr. Dhalla’s vehicle would reasonably have been frightening.  Further there was, he argues, no evidence that connected the process server to serving documents related to this proceeding. [20] Mr. Dhalla submitted that he was not, for the purposes of the leave application at least, challenging the chambers judge’s assessment of his evidence standing alone.  His primary focus was on the findings of fact that were based on that evidence in the context of the evidence from the process server.  The process server, for example, admitted that the evidence about Mr. Dhalla fleeing out of his building to his car was not based on his own observations, but were those of his wife.  Nonetheless, the chambers judge referred to them in his analysis, commenting at paragraph 13 of his reasons, that “it is noteworthy that Mr. Zainescu’s evidence concerning the substance of his wife’s observations of Mr. Dhalla was not challenged.”  Mr. Dhalla points out, rightly, that the evidence was inadmissible hearsay, at best, and, accordingly, there was no need to challenge it. [21] I have concluded, nevertheless, that Mr. Dhalla has not demonstrated a meritorious argument that the chambers judge committed errors of principle in reaching his conclusions of fact.  As I read his reasons, his findings are based directly on his rejection of Mr. Dhalla’s evidence (see paras. 16-32).  The chambers judge explains in detail why he found Mr. Dhalla not to be a credible witness.  Those reasons are based almost entirely on the deficiencies the chambers judge identified in that evidence, particularly inconsistencies in his evidence. [22] Most importantly, the chambers judge’s findings do not depend on his preferring the evidence of the process server to Mr. Dhalla’s evidence where they conflict, although he does accept the process server endeavoured to be truthful on points other than the observations made by his wife.  So, for example, although the chambers judge did point out that the substance of the process server’s wife’s observations were not challenged, that appears to have been commentary only.  The critical point was that Mr. Dhalla admitted to those observations.  The chambers judge also rejected Mr. Dhalla’s evidence that he did not take evasive action as he drove from the parking garage because he was frightened.  That finding was based on inconsistencies in Mr. Dhalla’s evidence.  The chambers judge was entitled to make that finding, even though the process server admitted that he behaved in a way that could have been frightening to someone in Mr. Dhalla’s position. [23] In brief, Mr. Dhalla has not made out a case worthy of review that the chambers judge may have made legal errors in reaching his findings of fact.  In my opinion, the proposed appeal goes no further than inviting a division of the court to revisit the findings of fact of the chambers judge.  That is not a task for this Court. [24] Finally, I do not think Mr. Dhalla has identified any error of principle in how the chambers judge exercised his discretion given the findings of fact he made.  First, the chambers judge correctly articulated the legal principles governing both the circumstances in which a successful party may be denied costs and the circumstances in which a party may be required to pay special costs.  It cannot be said that the chambers judge proceeded on the basis of an incorrect understanding of the legal principles governing the exercise of his discretion. [25] The real complaint here is that the costs orders are disproportionate to the conduct giving rise to them and that the conduct is not adequately connected to the litigation. [26] I will deal with the second point, that is whether the misconduct was adequately connected to this litigation, first.  The chambers judge based his orders on two grounds.  The first was the conduct associated with the incident in 2005.    The chambers judge made a finding of fact that Mr. Dhalla knew that an attempt was being made to serve him with legal documents that he knew or suspected were connected to this litigation.  That finding is one for the judge to make.  No legal error underlying it has been identified.  In my view, moreover, what matters is that the attempted service was in fact connected to this litigation.  I do not think the relevant question is one of subjective knowledge that the service relates to this rather than some other legal proceeding.  The second was the manner in which Mr. Dhalla gave evidence.  This second ground is obviously connected to this litigation. [27] Finally, I do not think any error of principle has been identified based on the disproportionate effect of the orders.  How to weigh and balance the significance of misconduct and to craft appropriate remedies is a discretionary matter, the exercise of which falls to the trial court.  In the absence of legal error in weighing the relevant discretionary factors, it does not matter that a division of this Court might have reached a different result on these particular facts.  After a comprehensive review of cases dealing with denying successful litigants their costs and awarding special costs arising from misconduct in respect of specific parts of a proceeding, the chambers judge summarized the reasons for exercising his discretion as he did at paragraphs 43 and 50 of his reasons, set out above.  No error in those reasons has been identified, nor can it be said that his decision is so clearly wrong as to amount to a miscarriage of justice. [28] In College of New Caledonia v. Kraft Construction Company Ltd. , 2011 BCCA 172, 305 B.C.A.C. 48, per Chiasson J.A. (in Chambers), leave to appeal special costs was not granted because the case did not raise issues of general significance to the practice and the analytical framework for awarding special costs had already been established by the court in Garcia v. Crestbrook Forest Industries Ltd. (1994) , 119 D.L.R. (4th) 740 . In New Caledonia, Chiasson J.A. in said this: [30]      I agree with the submissions of the respondents that this case presents no point of general significance to the practice because the analytical framework was established by this Court in Garcia . It is left to trial judges to determine whether conduct is worthy of rebuke. Whether this is so, is case specific. In part, that is illustrated by the College’s position in this case. It contends the judge erred by awarding special costs because the College pursued a hopeless claim. In deciding whether the judge did so, this Court would not be providing guidance as to what constitutes conduct worthy of rebuke. It merely would be considering whether the alleged factual matrix is based on nothing more than the weakness of the College’s claim, a question of fact. [29] I find those statements to be applicable to this case. [30] I order short leave be granted, time be extended for filing an application for leave to appeal, the Notice of Appeal be converted to an application for leave to appeal nunc pro tunc , but leave to appeal is denied.  The application for a declaration that the appeal be dismissed as a nullity is dismissed. “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Hlatky v. Royal Bank of Canada, 2013 BCCA 7 Date: 20130116 Docket: CA040072 Between: Kerry Norman Hlatky, Roberta Phyllis Martin, Angelique May Hlatky, The Attorney General of Canada, representing the interests of Her Majesty the Queen in the right of Canada Appellants (Plaintiffs) And Royal Bank of Canada and the Department of Indian and Northern Affairs Respondents (Defendants) Before: The Honourable Madam Justice Bennett (In Chambers) On appeal from:  Supreme Court of British Columbia, November 30, 2011 ( Hlatky v. Royal Bank of Canada , Vancouver Registry H090886) Appellant Appearing in Person: K.N. Hlatky Counsel for the Respondent Royal Bank of Canada: K.L. Carteri Counsel for the Respondent Attorney General of Canada: B. Reilly Place and Date of Hearing: Vancouver, British Columbia December 19, 2012 Place and Date of Judgment: Vancouver, British Columbia January 16, 2013 Reasons for Judgment of the Honourable Madam Justice Bennett: 1.       Nature of the application [1] This is an application by Kerry Norman Hlatky, Roberta Phyllis Martin and Angelique May Hlatky (the “Applicants”) for an extension of time to bring an application to review the Order of Madam Justice MacKenzie dated October 25, 2012, pursuant to s. 9(6) of the Court of Appeal Act, R.S.B.C. 1996, c. 77 and Rule 34(1) of the Court of Appeal Rules, B.C. Reg. 297/2001.  MacKenzie J.A. dismissed their application for an extension of time to apply for leave to appeal of the Order of Mr. Justice McEwan made on November 30, 2011. [2] In other words, this is an application for an extension of time to file a review of an Order denying an extension of time to appeal the Order of McEwan J., who himself denied an extension of time to appeal the original substantive order. [3] An application for review must be filed within seven days of the decision.  This application was filed on November 23, 2012, several weeks out of time. [4] The Attorney General of Canada seeks to have “the Department of Indian and Northern Affairs” (the “Department”) removed as a respondent in this appeal.  The Applicants apparently added the Department as a party unilaterally at the appeal stage. 2.       Background and procedural history [5] These proceedings relate to a foreclosure matter started by the Royal Bank of Canada (“RBC”) in 2009.  The Applicants mortgaged the property at issue to RBC (the “Property”).  On September 17, 2009, Master Taylor issued an Order Nisi of Foreclosure against the Property.  On April 8, 2010, Master Tokarek made an Order granting conduct of sale to RBC.  The Applicants appealed this Order.  This appeal was dismissed on April 20, 2010 by Mr. Justice Groves. [6] RBC ran into considerable difficulty accessing the Property as the Applicants refused to vacate it.  When removed by police, the Applicants would return.  RBC required a number of appearances in the Supreme Court to effect the sale of the Property, which was sold to a third party by the Order of Master Scarth made September 15, 2011. [7] Mr. Hlatky applied on October 26, 2011 for an extension of time to appeal the original Order Nisi of Foreclosure.  McEwan J. heard and dismissed that application on November 30, 2011.  On September 18, 2012, the Applicants filed a motion in this Court to extend time to appeal the Order of McEwan J. [8] On October 25, 2012, MacKenzie J.A. delivered oral reasons dismissing the application to extend time.  In those reasons, she stated the following: [1]        I have read the history of this matter. All I can say on this matter is that in relation to an extension of time to file an appeal of Mr. Justice McEwan’s order pronounced November 30, 2011, there is no merit to the application. The reason for that is the property has been sold. The appeal is moot. The dispute is over and there is nothing more to argue about. [2]        In terms of your claim that the Royal Bank of Canada could only be the mortgagee for the house and not the land, the dispute is over. The mortgage contract is over. It has been carried out. Mr. Hlatky was the mortgagor. He applied for the mortgage, signed a contract and the mortgage went into default. It was foreclosed upon and then by court order, the property was sold. [3]        If you have a claim that says the mortgage was invalid because it was made on Native or Indian land, and the contract could only have involved the house, this Court cannot deal with the matter now. I have no jurisdiction to deal with it. This is a statutory court that deals with appeals. You will have to make a separate land claim in another court. It is unlikely that you would be successful with respect to that piece of property because a mortgage contract is very specific. [9] On November 23, 2012, the Applicants filed a motion for extension of time to vary or discharge the Order of MacKenzie J.A. [10] Shortly after the decision of MacKenzie J.A., the Applicants attempted to file an application for leave to appeal against her Order in the Supreme Court of Canada.  They were advised by the Registrar of that Court that they needed to exhaust all remedies in this Court first.  This meant they needed to seek a review of MacKenzie J.A.’s Order by a division of this Court. 3.       Position of the parties [11] Mr. Hlatky filed one affidavit in support of his application.  It was not sworn by him, but apparently sworn by a Mr. Steemas who has been helping the Applicants.  I refused to permit Mr. Steemas to speak on behalf of the Applicants because I discerned, from my reading of the transcripts in previous proceedings, he has been disruptive and unhelpful.  I eventually permitted Mr. Hlatky’s friend, Mr. Popois, to sit at counsel table and assist him. [12] The position of the Applicants is that RBC had no ability to sell the land because the land was not the subject of the mortgage; only the house was subject to the mortgage.  The Applicants also say that they did not know they only had seven days to apply for a review of an order of a chambers judge.  Finally, the Applicants note that they did take steps to appeal the decision to the Supreme Court of Canada. [13] RBC submits that the test to review the decision of a chambers judge requires the Applicants to show that MacKenzie J.A. made an error of law or principle, or misconceived the facts.  It argues that she made no such error in dismissing the Applicants’ motion for an extension of time to appeal the Order of McEwan J.  MacKenzie J.A. rightly dismissed an application for an extension of time on the basis that the appeal lacked any merit. [14] In RBC’s summary of the litigation, it notes that there have been several concurrent applications before the Supreme Court, along with two proceedings before the Federal Court.  They add that there are two applications, including this one, before the Court of Appeal.  In all of these proceedings, RBC argues, the Applicants are seeking the same or similar relief based on the same allegations, which may be summarized as follows: 1.         RBC had no authority to sell the Property (despite the fact that RBC never owned or sold the Property); 2.         RBC and its solicitors failed to produce documents related to the Property; and 3.         the Order Nisi, the Order for Conduct of the Sale and the Order Approving Sale in the Foreclosure proceedings were unlawful. [15] RBC alleges that in relation to the same foreclosure proceedings, various courts have dismissed the Applicants’ applications on at least six occasions.  Each time they were dismissed because the above-mentioned allegations were raised without cause.  RBC further alleges that the Applicants have repeatedly disobeyed court orders, requiring additional submissions and applications from RBC. [16] RBC submits that they are prejudiced by the cost of this protracted litigation. In addition, it submits that what the Applicants are really seeking is a resolution by way of a land claim, which has nothing to do with RBC.  It submits that if the Applicants wish to pursue their claim against the Property, they should bring a proper action by way of a land claim. [17] In sum, RBC seeks (1) an order that the “motion for appeal of Madam Justice MacKenzie’s” Order be dismissed; and (2) costs of this application. [18] RBC also sought an order declaring the applicants vexatious litigants.  I did not hear any submissions on this issue as there was no motion before the court seeking such a remedy. 4.       Discussion a.       Application to extend time to review a decision of a justice [19] Pursuant to s. 9(6) of the Court of Appeal Act , a party may apply for a review of a decision of a justice in chambers.  Rule 34 of the Court of Appeal Rules governs applications under this section.  Under that rule, time has run out for the Applicants to file for a review.  In order to obtain a review, they must obtain an extension of time to file the proper forms and supporting documents.  Section 10(1) gives a justice sitting in chambers the authority to extend time. [20] The criteria in an application for an extension of time were set out in Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R. (2d) 256 at 259-260 (C.A.), and may be summarized as follows: 1)         Was there a bona fide intention to appeal? 2)         When were the respondents informed of the intention? 3)         Would the respondents be unduly prejudiced by an extension of time? 4)         Is there merit in the appeal? 5)         Is it in the interest of justice that an extension be granted? [21] The fifth question “encompasses the other four questions and states the decisive question” ( Davies at 260).  This decisiveness has been repeatedly affirmed: Kedia International Inc. v. Royal Bank of Canada, 2008 BCCA 305 at para. 8 (Chiasson J.A. in Chambers). [22] The burden is on the applicant to establish that the criteria are met (see Kedia at para. 8 ). [23] As RBC’s primary objections to the extension of time are aimed at the merit of the case and the interests of justice, I propose only to address these issues. [24] MacKenzie J.A. found no merit in the appeal.  I have reviewed all of the material that was before her.  I do not differ from her conclusion.  The Property has been sold to a third party.  The Applicants cannot obtain what they desire in this litigation.  This litigation is about failure to pay a debt to RBC, not about a land claim. [25] In my respectful view, it would not be in the interests of justice to grant an extension of time to file for a review, given the lack of merit in the substance of the appeal. [26] I would dismiss the application for an extension of time to file a review of the Order of MacKenzie J.A. [27] The Applicants have seven days from the issuance of these reasons to apply to review my order. [28] RBC sought costs of this application.  This is the first time RBC has sought costs throughout the litigation.  It is appropriate to order costs in a fixed amount to avoid further litigation.  I order costs of $1,000 payable to RBC by the Applicants forthwith. b.       Order sought by the Attorney General of Canada [29] The Attorney General of Canada was a party in the foreclosure proceedings as a respondent (along with the Applicants) because it had registered charges for taxes against Mr. Hlatky’s interest in the Property. [30] When the appeal was filed, the Applicants unilaterally added “the Department of Indian and Northern Affairs” to the style of cause.  The Attorney General, on behalf of the Department, seeks to remove the latter from the style of cause as a respondent.  It submits that the Department cannot be sued in that name in any event pursuant to s. 23(2) of the Crown Liability and Proceedings Act , R.S.C. 1985, c. C-50. [31] It seems the Applicants added the Department in a faint hope to transform the litigation into a land claim.  Again, this is not the proper litigation for that issue.  In the circumstances before this Court, it was not proper to add the Department. [32] Although there is no separate application to remove the Department, there was never an application to add it.  In my view, the Attorney General of Canada is entitled to its order.  It would be a waste of time and money to require a separate application to be made in order to obtain a remedy. [33] Therefore, I order that the Department of Indian and Northern Affairs be deleted from the style of cause as a respondent, as it is not properly named as a respondent in the action. 5.       Summary and disposition [34] The application to extend the time to file an application for review from the decision of MacKenzie J.A. is dismissed.  The request to remove the Department of Indian and Northern Affairs from the style of cause as a respondent is granted.  The Applicants will pay costs to RBC in the amount of $1,000. “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Lee v. Jarvie, 2013 BCCA 17 Date: 20130116 Docket: CA040327 Between: Stanley You Won Lee aka Stanley Lee Appellant (Plaintiff) And Ruth Eleanor Jarvie and Rosana Ng Respondents (Defendants) Before: The Honourable Madam Justice Newbury (In Chambers) On appeal from: Supreme Court of British Columbia, October 16, 2012 ( Lee v. Jarvie , 2012 BCSC 1521, New Westminster Docket No. M94690) Counsel for the Appellant: T. Spraggs K. Gardner Counsel for the Respondent: C. Godwin Place and Date of Hearing: Vancouver, British Columbia January 4, 2013 Place and Date of Judgment: Vancouver, British Columbia January 16, 2013 Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The plaintiff Mr. Lee seeks leave to appeal a costs judgment released after the trial of a personal injury action.  The plaintiff had sought  the following damages at trial: Non-Pecuniary Damages $90,000 ‒ $130,000 Loss of Past Income $92,000 ‒ $107,000 Loss of Future Earning Capacity $400,000 ‒ $650,000 Loss of Housekeeping Capacity $10,000 ‒ $12,000 Cost of Future Care $46,000 ‒ $104,150 Special Damages $1,722 The trial judge’s award of $50,200 (see 2010 BCSC 1852) comprised the following: Non-Pecuniary Damages $40,000 Loss of Past Income $1,650 Loss of Future Earning Capacity $0 Loss of Housekeeping Capacity $0 Cost of Future Care $7,500 Special Damages $1,050 [2] Submissions regarding costs were heard on June 30, 2011 and the Court’s reasons were released on October 16, 2012.  Those reasons, indexed as 2012 BCSC 1521, are lengthy and contain a review of the leading cases of this court and the trial court dealing with the apportionment of costs in cases where success has been mixed.  The trial judge disagreed with the plaintiff’s argument that he had been “substantially successful” at trial.  In his analysis: In my view, the plaintiff was not substantially successful at trial. The defendants admitted liability. They also agreed with the plaintiff’s claim for his actual past wage losses. The main dispute between the parties and the principal focus of the 13 days of evidence was on the plaintiff’s claims for loss of past opportunity to earn wages, loss of future earning capacity, and cost of future care. I found the plaintiff’s claim on the first two of these issues failed completely and there was divided success on the third. In my opinion, the trial of the plaintiff’s action resulted in divided success. I agree with the defendants’ submission that given the divided success and the clearly distinguishable issues upon which they were successful, and the fact that the trial was prolonged by the claimant’s pursuit of claims that were unsupported by the evidence, the plaintiff’s case is one where an apportionment of costs is worthy of consideration.  [At paras. 39-40.] [3] The trial judge reviewed what had transpired at trial with respect to each of the heads of claimed damages, noting that the evidence presented on past wage loss was “so weak there was no option for the court but to dismiss it” and that the claim was “grossly inflated and contributed to an unnecessary protraction of the trial”; that the claim  for loss of future earning capacity was exaggerated and “unsupported by the evidence”; that the claim for costs of future care was “an unrealistically inflated one that unnecessarily prolonged and complicated this proceeding”; and that overall, the protracted nature of the litigation was mainly attributable to the plaintiff.  Having concluded that an apportionment of the costs would be in the interests of justice, he noted the two methods of apportioning costs discussed by Legg J. (as he then was) in Waterhouse v. Fedor [1984] 13 B.C.L.R. (2d) 186: I also agree that two methods may be used in determining “the degree of success”. One method involves the judge assessing a percentage figure to the relative success of the parties. The other method involves determining the number of days spent in trial on “unsuccessful” issues in proportion to the time spent on “successful” issues. Either way, the relative success of the parties is determined and each party is entitled to that portion of his own costs, which are then set-off against the other, and the difference, if any, is paid to the party in whose favour the difference lies.  [At 190] [4] The judge calculated that both approaches would yield the same result.  He explained: In the present case, either approach to the apportionment of costs articulated in Waterhouse will yield the same result. In my opinion, approximately seven out of the 13 days of trial can be attributed to the evidence and arguments addressing the plaintiff’s claims for loss of past opportunity to earn wages, loss of future earning capacity and cost of future care. As I am of the view that success at trial was divided, the fair and just result would be to apportion costs on a 50/50 basis. That is, the plaintiff will be entitled to 50% of his costs and the defendants will be entitled to 50% of their costs, both to be set-off one against the other. Moreover, I am denying the plaintiff his disbursements associated with the evidence of Mr. Worthington-White, Ms. Quastel and Mr. Benning. Although I had significant difficulties with the evidence of Dr. Lee, Dr. Kokan, and Dr. Hershler, particularly with respect to the plaintiff’s claims for loss of future earning capacity, their evidence was marginally helpful regarding the plaintiff’s claim for general damages and therefore I will grant him 15% of his disbursements regarding their evidence.  [At paras. 77-78.] [5] The plaintiff seeks leave to appeal what he refers to in his written argument as “points in issue” – whether the Court erred in granting the plaintiff only 50% of his costs and granting the defendants 50% of their costs, to be set off; whether it erred in denying the plaintiff all of his disbursements relating to two of the experts; whether it erred in granting the plaintiff only 15% of his disbursements relating to two other experts; and whether it erred in granting the defendants their costs of the costs hearing.  The plaintiff contends that the “point on appeal” is significant to the practice and to the parties, but with one exception, he does not suggest that any particular reasoning of the trial judge was erroneous.  It appears his primary submission is that as a matter of law, the result was such that the trial judge’s discretion was not exercised judicially and that the plaintiff’s “victory” may be only a pyrrhic one once the amounts of costs have been determined. [6] The one issue of law advanced by the plaintiff is that there is an inconsistency in the jurisprudence of the British Columbia Supreme Court as to whether “heads of damages” can be considered as discrete “issues” on which success or failure may be judged and on which costs may be apportioned.  On this point, Mr. Spraggs cited Sutherland v. Canada (Attorney General) , 2008 BCCA 27 at para. 31, where this Court noted the “test” for the apportionment of costs under former Rule 57(15).  With respect, I do not read Sutherland as disclosing any particular conflict in the jurisprudence.  The question of what constitutes a “particular issue or part of the proceeding” within the meaning of the former Rule 57(15) was debated some years ago in British Columbia v. Worthington (Canada) Inc. (1988) 32 C.P.C. (2d) 166 (B.C.C.A.), but in my view, the jurisprudence has for some time considered “heads of damages” to be “issues” or “parts” of the proceeding within the meaning of former Supreme Court Rule 57(15), on the basis of which costs could be apportioned in appropriate cases. [7] The new rule, however, uses very different terminology.  Rule 14-1(15) of the Supreme Court Civil Rules now states: The court may award costs (a)  of a proceeding, (b)  that relate to some particular application, step or matter in or related to the proceeding , or (c)  except so far as they relate to some particular application, step or matter in or related to the proceeding and in awarding those costs the court may fix the amount of costs, including the amount of disbursements.  [Emphasis added.] The trial judge stated at the beginning of his reasons (paras. 8-10) that he saw no meaningful difference between former Rule 57 and the new Rule 14-1.  It was because of this that he referred to this court’s decision in Sutherland and was guided by the test articulated at para. 31 of that case by Chief Justice Finch: The test for the apportionment of costs under Rule 57(15) can be set out as follows: (1)        the party seeking apportionment must establish that there are separate and discrete issues upon which the ultimately unsuccessful party succeeded at trial; (2)        there must be a basis on which the trial judge can identify the time attributable to the trial of these separate issues; (3)        it must be shown that apportionment would effect a just result. [Emphasis added.] [8] It does not appear that either party before the Court in the costs hearing in the case at bar argued that Rule 14-1(15) differed in any material respect from its predecessor, and as has been seen, none of the “grounds” of appeal proposed to be argued on appeal refers to the wording or effect of the new Rule as something distinct from the former one.  I note that  Madame Justice Dillon  and Mr. Gordon Turriff,  the authors of the British Columbia Annual Practice (2013), say this at the beginning of their annotation of Rule 14-1(15): Quaere whether “matter” is intended to include “issue”, one of the keyswords used in Rule 57(15), the predecessor to this subrule.  The authors make that assumption.  They also assume that “step” is used as a synonym for “part”, a second keyword in the predecessor subrule.  If the authors’ assumptions are incorrect, many of the annotations included under this subrule may no longer be useful. [9] It seems to me that the wording of the new Rule is sufficiently different from the old as to warrant consideration by this court, even though this point was not raised by the applicant for leave in this case. Arguably, the word “matter” is to be interpreted ejusdem generis with “application “ and “step”-- in which  case the jurisprudence under the former Rules may no longer  be correct. This point is of importance to the practice and to the law generally.  Accordingly, I grant leave to Mr. Lee to appeal on the general question (which may well be approached as encompassing several sub-questions) of whether, given the wording of Rule 14-1(15), the trial judge erred in apportioning and making the order as to costs that he did. “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: United States v. Ibrahim, 2013 BCCA 165 Date: 20130116 Docket: CA039987 Between: Attorney General of Canada on behalf of the United States of America Respondent And Ali Ibrahim Appellant Correction: The front page of the judgment was corrected on July 17, 2013. Before: The Honourable Madam Justice Garson (In Chambers) On appeal from: Supreme Court of British Columbia, June 6, 2012 ( U.S.A. v. Ibrahim , 2012 BCSC 916, Vancouver Registry No. 24593) Oral Reasons for Judgment Counsel for the Appellant: December 21, 2012 - G. Botting January 11, 2013 - F. Arbabi Counsel for the Respondent: J.M.L. Gibb-Carsley Place and Date of Hearing: Vancouver, British Columbia December 21, 2013 Place and Date of Judgment: Vancouver, British Columbia January 16, 2013 GARSON J.A. : 1.         Nature of the application [1] Mr. Ibrahim applies for judicial interim release pending appeal, pursuant to s. 20 of the Extradition Act , S.C. 1999, c. 18, and s. 679 of the Criminal Code , R.S.C. 1985, c. C-46. This is Mr. Ibrahim’s third application for release in this Court. He submits there has been a material change in circumstance that warrants this further hearing. 2.         Procedural history [2] The original charges brought against Mr. Ibrahim relate to tax evasion and immigration fraud in the United States. In 1994, Mr. Ibrahim pleaded guilty to one count of immigration fraud and was sentenced to three years probation with conditions. In 1996, he breached those conditions and in 1997 his probation was revoked. The USA sought Mr. Ibrahim’s extradition for the imposition of a sentence. Mr. Ibrahim was arrested in May 2008 on a warrant issued under the Extradition Act . He was released on bail for the duration of the Supreme Court proceeding. He breached his curfew once in a fairly minor way in August 2011. [3] The lengthy history of this matter, as well as the charges Mr. Ibrahim is facing are set out in detail by Justice Ehrcke, in the court below: U.S.A. v. Ibrahim , 2012 BCSC 1213 at paras. 9–10. [4] Mr. Ibrahim appealed the June 6, 2012, decision of Justice Ehrcke, and applied in this court for judicial interim release. On June 25, 2012, Madam Justice MacKenzie dismissed his application for bail: 2012 BCCA 278. [5] Mr. Ibrahim brought a successive application before MacKenzie J.A. on August 22, 2012, based on a material change in circumstances. The material change asserted by Mr. Ibrahim included the availability of an additional surety and an increased pledge. Mr. Ibrahim also claimed that he had additional affidavit materials relevant to the merits of his appeal that had not been before MacKenzie J.A. in June at his first application for release. She concluded that the material changes alleged by Mr. Ibrahim were insufficient to meet the threshold required for granting interim judicial release, and she dismissed the application: 2012 BCCA 363. [6] Mr. Ibrahim appealed MacKenzie J.A.’s order to Finch C.J.B.C. sitting in chambers, pursuant to s. 680 of the Criminal Code . Chief Justice Finch dismissed the appeal, stating he had no jurisdiction to give a direction under s. 680 in an extradition proceeding, per Thailand v. Saxena , 2006 BCCA 147: 2012 BCCA 438. [7] Mr. Ibrahim has now re-applied for judicial release, citing a further material change in circumstances. [8] Those asserted changed circumstances relate primarily to his health. In support of his application, he has attached to his affidavit the medical report of Dr. Hasham. Dr. Hasham reports that Mr. Ibrahim had a number of medical conditions prior to his incarceration. They included: major depression, for which he was treated and was described as stable; osteoarthritis and rheumatoid arthritis, which had required referral to a specialist, after which his symptoms had improved; degenerative spinal disc disease that required referral to a specialist and for which he is said to be waitlisted for surgery; also urological problems; and sleep apnea, for which he was using a CPAP machine. Dr. Hasham visited Mr. Ibrahim in the detention facility. He noted a worsening of all his pre-existing medical conditions. Dr. Hasham’s physical examination of Mr. Ibrahim, noted at page 3 of his report, was essentially normal. But in Dr. Hasham’s description of his mental status examination, he found Mr. Ibrahim’s memory and concentration to be “significantly impaired”. His mini-mental status exam was 23 out of 30. This would fall into the range of mild dementia. Dr. Hasham found Mr. Ibrahim to be severely depressed according to a Personal Health Questionnaire he administered to Mr. Ibrahim. [9] In summary Dr. Hasham states: Mr. Ibrahim is a 56 year old man who has been in detention for the past six months. He is awaiting extradition to the USA to respond to charges that took place about 20 years ago. While in detention, this man's mental health as well as physical health has deteriorated significantly. He has become severely depressed which has affected his mood as well as his cognition. He needs urgent treatment for this condition as his general wellbeing depends on this. He requires intense therapy through a Mental Wellness Health Clinic, such as the one provided by the Burnaby Mental Wellness Program. If this is not provided in a timely manner, his mental health and therefore his physical health is likely to deteriorate. He also needs urgent attention to his sleep apnea problem by providing him with a CPAP machine to reduce apneic spells during his sleep and therefore reducing the risk of cardiac complications. Other issues that need attention are include [sic] surgery for disc herniation in the lumbar spine, treatment of his urological symptoms, corrective lenses to improve his vision and assessment of his hearing loss. He may also need further investigations to assess the recurrent abdominal pains and a new tremor which he has recently developed. [10] After the December 21, 2012, hearing of this matter before me, Mr. Ibrahim sought leave to tender two further affidavits and make further submissions. I received those affidavits and heard further submissions on January 11, 2013. I advised counsel that I would rule on the question of whether I should admit the additional evidence at the same time that I ruled on the substance of the application for release. As one of the affidavits is the affidavit of Mr. Botting, his counsel on December 21, 2012, Mr. Ibrahim retained new counsel, Mr. Arbibi, to appear for him on January 11, 2013. [11] Those further materials address three issues. [12] The first issue is the non-disclosure of the relationship between Mr. Ibrahim and his potential employer. In the new affidavit, Mr. Botting says that it was his omission, not his client’s, that led to the failure to disclose that the employment offer was from Mr. Ibrahim’s sister. [13] Second, the new materials address in further detail Mr. Ibrahim’s complaints about the prison conditions he is experiencing. He describes a sexual assault, other physical threats, and the fact that he witnessed other criminal activity and is now in danger. He has not disclosed any of this to the prison authorities because he does not wish to be placed in segregated protective custody. [14] Finally, the new material offers some further details about the asserted lack of medical treatment. Mr. Ibrahim says he suffered a stroke on the night of December 5, 2012. He was taken to hospital and kept overnight. He says a CT scan taken that evening was normal, although he has some remaining residual numbness in the toes of his left foot and in his face. No medical records of this incident have been provided. [15] Mr. Ibrahim also says in his new affidavit that he has requested access to a “Mental Wellness program”, but that no such program is available in the prison. Mr. Ibrahim attaches as exhibits to his latest affidavit a series of requests by him to the prison authorities for medical services. In each case, the prison health services confirm that Mr. Ibrahim will be booked to see the next available doctor. On October 16, 2012, he requested an appointment with a prison psychiatrist, Dr. Murphy, to discuss his depression and anxiety. The response was that he would be booked for the next available appointment with a psychologist, as a medical referral is required to see a psychiatrist. However, it is apparent from Mr. Ibrahim’s affidavit that he has, on at least one occasion, met with Dr. Murphy. Mr. Ibrahim’s affidavit is silent on the question of whether he was offered, or attended, an appointment with a psychologist. 3.         Position of the parties [16] Mr. Ibrahim asserts that his appeal is not frivolous, on the basis that the issues relating to his 1994 probation have already been dealt with. He says he has completed his sentence. [17] On the question of whether he will surrender himself into custody, Mr. Ibrahim states that while awaiting his committal hearing he was released on bail. During that time he generally did not breach conditions and appeared as required, though he admits to one minor breach. Mr. Ibrahim also notes that he has strong family and community ties. He says that his mother will continue to be his surety if he is released. Mr. Ibrahim also says that his health is a consideration when evaluating his risk of absconding. [18] Mr. Ibrahim says that the material changes in circumstances are such that it is in the public interest he be released. [19] The Attorney General contends that there has been no material change in circumstances. The Attorney General argues that Mr. Ibrahim’s primary medical conditions are chronic and date back to at least 2009. Further, there is no evidence before the Court that the pre-trial detention facility at which Mr. Ibrahim is detained cannot provide the necessary medical treatment. The Attorney General also argues that Mr. Ibrahim has failed to demonstrate how his health issues materially change the specific factors found by Justice MacKenzie to weigh in favour of the enforceability of the committal order over its reviewability. The Attorney General says that the offer of employment contained in a letter placed before the court on this application is not a change in circumstance and seems to contradict his asserted deteriorating cognitive condition. Alternatively it is argued that even if a material change threshold has been demonstrated, Mr. Ibrahim has still failed to discharge the onus on him under s. 679(3). 4.         Applicable legal test [20] Mr. Ibrahim applies for release pending appeal under s. 679(3) of the Criminal Code . [21] Section 679(3) provides as follows: (3)  In the case of an appeal referred to in paragraph (1)( a ) or ( c ), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that ( a ) the appeal or application for leave to appeal is not frivolous; ( b ) he will surrender himself into custody in accordance with the terms of the order; and ( c ) his detention is not necessary in the public interest. [22] This Court has jurisdiction to entertain subsequent applications for bail pursuant to a purposive interpretation of s. 679, but only on the basis of a material change in circumstances: R. v. Wilder , 2006 BCCA 290, 227 B.C.A.C. 310; R. v. Daniels (1997), 35 O.R. (3d) 737, 119 C.C.C. (3d) 413 (C.A.). A “material change” is one capable of leading to a different assessment of one or more of the factors set out in s. 679(3): Italy v. Seifert , 2008 BCCA 25, 250 B.C.A.C. 66. Mr. Ibrahim does not specify how his change in circumstances is relevant to any particular factor in s. 679(3). I shall consider each in turn. 5.         Discussion (a)       Merits of appeal [23] On a subsequent bail application, the first justice’s evaluation of the merits should be respected by a justice hearing further applications in chambers: see, for example, Sekhon v. Armstrong , 2003 BCCA 318 at paras. 27–28, 183 B.C.A.C. 137, and J.(J.) v. Coquitlam School District No. 43 , 2010 BCCA 182 at para. 4, 318 D.L.R. (4th) 495. [24] Justice MacKenzie noted in her reasons on the first bail hearing that while Mr. Ibrahim’s grounds of appeal were not frivolous, the appeal was weak at best on all grounds. The material change in circumstances alleged here relates to Mr. Ibrahim’s health and could not be construed as a material change that would form the basis of a different conclusion regarding the strength of the appeal. (b)       Risk to abscond [25] Regarding Mr. Ibrahim’s assurances that he will surrender himself when required, MacKenzie J.A. expressed serious concerns that led her to conclude Mr. Ibrahim could not be relied upon to meet the conditions of bail. [26] Mr. Ibrahim’s history documented in earlier proceedings includes the following points of concern. In the original extradition matter (2009 BCSC 1090), Halfyard J. commented that during his probation in the late 90s, Mr. Ibrahim travelled to India and then did not return to the United States as was required by the terms of his probation. At para. 8 of his reasons, Halfyard J. commented: In late August 1996, Mr. Ibrahim left the United States and travelled to India, with the permission of his probation officer. He was required to return to the United States not later than October 31, 1996, and to report to the probation officer on November 1, 1996. He did not return to the United States, or report to the probation officer, as required. He changed his name. It appears that Mr. Ibrahim was in India from the fall of 1996 until about late1997, when he moved to Australia. He deposes that he moved from Australia to Canada in June 2005. [27] Justice Halfyard also noted Mr. Ibrahim’s explanation for changing his name, and his reasons for holding multiple passports, at para. 12: Mr. Ibrahim’s explanation for changing his name was, in substance, to enable him to work in India. He said that he had been born in India, but had lived with his parents in Pakistan, and had been issued a Pakistani passport which mistakenly stated that he was born in Pakistan, which made him ineligible to work in India. His Canadian passport also stated that he was born in Pakistan, and so he applied for an Indian passport using a different name, but one which was connected with his family. [28] In Justice MacKenzie’s June 25 reasons, she commented on Justice Halfyard’s observations regarding Mr. Ibrahim’s use of false identities. In her discussion of Mr. Ibrahim’s willingness to surrender into custody, at para. 31 of her judgment, she stated: Mr. Justice Halfyard … observed that under cross-examination, the applicant admitted that he had not only used three aliases at various times, and had used a false name in applying for an Indian passport issued in August 2000, but had also changed the names and dates of birth of his wife and children. The applicant used the same false name in his application for an Australian passport issued in June 2004. Although he provided his correct name in applying for a Canadian passport issued in February 2005, he admitted to making the false statement that he had been born in Karachi, Pakistan. [29] In Justice MacKenzie’s August 31 reasons, following Mr. Ibrahim’s change in circumstances application, she again commented on Mr. Ibrahim’s familiarity with aliases at para. 22: To address my concern about his extensive familiarity with using aliases for himself and his family, Mr. Ibrahim deposes that he gave his real name and address to American authorities when his wife abducted his children to the USA and has lived under his own name in Canada. However, this evidence does not address or materially change the evidence of Mr. Ibrahim’s prior use of aliases. Mr. Ibrahim lived under false identities for years. Aspects of this conduct are also described in the transcript of the bail hearing before Mr. Justice Halfyard on May 21, 2008, provided by Mr. Ibrahim on this application. [30] MacKenzie J.A. concluded (at paras. 40 and 41, 2012 BCCA 278): [40]      I recognize that most of the instances of deceit related by the AG occurred prior to the four-year period that the applicant was on bail, which passed largely without incident. However, the cumulative effect of the following circumstances leaves me in a state of doubt regarding the applicant's willingness to abide by an order of the Court requiring his surrender into custody: the applicant's failure to return to the USA as required after his trip to India; the fact that his extradition is sought, in part, to impose sentence for a crime for which he has already pleaded guilty and been convicted; his extensive familiarity with the use of aliases for himself and his family, employed at his convenience; the finding by Halfyard J. that he was not a credible witness; and the investigation into his failure to declare any income earned as required for receipt of income assistance benefits, which I agree provides further evidence of a pattern of dishonesty. [41]      I further view the enhanced risk of flight in the aftermath of the extradition order, together with Canada's international obligations in extradition proceedings that require the Court to limit the assumption of risk of non-appearance more severely than might otherwise be acceptable in domestic proceedings, to be significant considerations in the circumstances of this case. In so commenting, I am aware that the escalation of risk is not an insurmountable obstacle to securing bail: Seifert v. Italy, 2003 BCCA 690, 200 B.C.A.C. 4 at para. 13 (Chambers), Esson J.A. However, given the cumulative effect of the circumstances listed above, I simply cannot conclude that the applicant's word is sufficiently reliable for the Court to assume the risk that he will surrender into custody as required. [31] The material change in circumstance alleged on this application is Mr. Ibrahim’s deteriorating health, as outlined in Dr. Hasham’s report, and his concerns for his safety within the prison system. [32] Although, health may be a consideration in determining an individual’s risk of absconding: Italy v. Seifert , 2007 BCCA 420, 246 B.C.A.C. 69, here, Mr. Ibrahim’s health issues are not, in my view, relevant to the assessment of his reliability to surrender, one way or the other. [33] On this application Mr. Ibrahim also presented evidence of a new offer of employment available to him, if he is released from custody. He states in his first affidavit on this application that he has secured part-time employment commencing within a week of his release. He produced a letter from the proposed employer. He did not reveal that the proposed employer was his sister. This fact was drawn to the court’s attention by counsel for the Attorney General. (I note as an aside that the responsibilities required of him in this prospective employment as an information technology recruitment consultant seem somewhat inconsistent with his complaints of deteriorating mental faculties.) [34] The omission to disclose that the employment offer was made by his sister could be relevant to questions of his truthfulness. That in turn may be relevant to the assessment of the risk to abscond. Mr. Botting’s explanation provided in his affidavit filed on January 11, 2013, is that the failure to disclose the familial relationship with the potential employer was his own error. Mr. Ibrahim argues that this should not be a factor assessed against him. It is a troubling omission but as I decide this application on other grounds it is unnecessary to comment further on this aspect of the evidence. [35] I conclude generally that there is no material change in circumstances that is relevant to the assessment of his risk to abscond as assessed by Madam Justice MacKenzie. [36] As Mr. Ibrahim’s health concerns are not ones that would lead to a different assessment of his assurance that he will surrender himself into custody as required, or his willingness to comply with the conditions of his bail than the assessment made by MacKenzie J.A., I turn next to the third factor. (c)       Detention not necessary in the public interest [37] In Wilder at paras. 8–10, Justice Donald stated that health concerns may be of relevance to the public interest factor, although he did not accept that that was so in the Wilder case. (See, however: R. v. Michel (1996), 72 B.C.A.C. 237 (Proudfoot J.A. in chambers); R. v. Clouden , 2011 ABCA 262 (in chambers).) [38] In a very general way, I would characterize Mr. Ibrahim’s submissions as one asserting hardship owing to the ill effects of imprisonment on his health. [39] The question in this case is whether Mr. Ibrahim’s health is a material change in his circumstances and if so, whether it would alter the reviewability/enforceability assessment of MacKenzie J.A. [40] The Attorney General drew to the court’s attention a medical report from 2009 in which Mr. Ibrahim complained of the same or similar symptoms now exhibited, including dementia. Thus, it would seem that his most significant health complaint of severe depression/dementia is one of long duration. [41] Other than Dr. Hasham’s statement that he does not believe the treatment he recommends is available in the correctional facility, there is no evidence that Mr. Ibrahim is unable to access appropriate medical treatment. [42] In summary, it is my view that the circumstances alleged by Mr. Ibrahim do not address the concerns that led Justice MacKenzie to initially deny him interim release. Further, although the medical conditions alleged by Mr. Ibrahim could be serious if left untreated, Mr. Ibrahim has not provided evidence other than Dr. Hasham’s unsupported opinion that appropriate treatment is unavailable to him while he is incarcerated. To the contrary, his new affidavit would indicate that he is receiving necessary medical care including an emergency admission to hospital, and referral to a psychologist. [43] Mr. Ibrahim’s concerns about his safety and well being within the prison system are questions that are within the control of the prison system and not properly before this court on an application for release. The evidence concerning the conditions in prison do not demonstrate hardship that is sufficient to lead to the conclusion that it is in the public interest that Mr. Ibrahim be released. 6.         Disposition [44] I would grant leave to introduce the new evidence tendered on January 11, 2013, and dismiss this application. “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Boyd, 2013 BCCA 19 Date: 20130117 Docket: CA039172 Between: Regina Appellant And Craig Thomas Boyd Respondent Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Hall The Honourable Madam Justice D. Smith On appeal from: Provincial Court of British Columbia, June 13, 2011 ( R. v. Boyd , 2011 BCPC 137, Duncan Registry 32132) Counsel for the Appellant: W.P. Riley Counsel for the Respondent: R.L. Neary Place and Date of Hearing: Victoria, British Columbia October 24, 2012 Place and Date of Judgment: Vancouver, British Columbia January 17, 2013 Written Reasons by: The Honourable Mr. Justice Hall Concurred in by: The Honourable Madam Justice Newbury The Honourable Madam Justice D. Smith Reasons for Judgment of the Honourable Mr. Justice Hall: [1] The Crown appellant appeals from a decision of the Honourable Judge Wood pronounced June 13, 2011.  In that decision, the learned judge ruled inadmissible as evidence a plastic bag containing four smaller plastic baggies of cocaine.  The bag had been seized by a police officer from the respondent, Craig Boyd, on December 31, 2009.  The drugs had been discovered following a search of Mr. Boyd’s person incidental to his arrest.  Mr. Boyd was charged with possession of cocaine for the purpose of trafficking.  The ruling of the judge resulted in Mr. Boyd’s acquittal. [2] Some background facts of the case are conveniently set forth in the reasons of the judge: [3]        On December 31, 2009, officers of the local RCMP detachment were conducting a road block screening for impaired drivers on King George Road at the intersection of South Shore Road in Lake Cowichan.  At 19:10 hrs. Const. Cranmer stopped a car driven by Mr. Boyd who was the lone occupant of the vehicle. [4]        Const. Cranmer approached and stood next to the open driver’s door window.  He asked Mr. Boyd if he had had anything to drink that evening.  The officer was, to use his words, “looking for the possible odour of liquor.”  With what he described as the first breath he took in he noted the smell of freshly burnt marihuana.  He immediately advised Mr. Boyd that he was under arrest for possession of marihuana. [5]        The officer testified that at that time he had had several occasions to smell burnt marihuana which he described as a very distinctive smell, different from vegetative marihuana.  He characterized the odour on this occasion as strong, leading him to believe it had been smoked within 15 minutes prior to the stop. [3] The police officer also stated in his evidence that he had conducted at least 30 investigations “where the odour of burnt or burning marihuana was detected by myself and I’d made many drug seizures, finding marihuana and contaminated paraphernalia incidental to arrest at those traffic stops”. [4] At a trial held over a series of dates in the winter and spring of 2011, a voir dire was conducted to determine whether the search of Mr. Boyd was unreasonable and in violation of his rights under s. 8 of the Canadian Charter of Rights and Freedoms .  The judge noted in his reasons that “the Crown relies only on the decision of Const. Cranmer to arrest Mr. Boyd based upon that officer’s conclusion that he smelled burnt marihuana when standing at the open window of the latter’s car”. [5] Mr. Boyd had been arrested for possession of marihuana.  Having regard to the circumstances of the case (smell only emanating from the vehicle), it is common ground that the offence, if any, could only amount to an offence punishable on summary conviction.  This makes applicable the following provision of the Criminal Code, R.S.C. 1985, c. C-47, which defines the powers of a peace officer to arrest: 495. (1) A peace officer may arrest without warrant ... (b)  a person whom he finds committing a criminal offence; ... [6] As the Crown notes in its factum, there may be some debate in the cases as to whether the power to arrest exists only when an officer sees an offence being committed or observes facts from which an inference may be drawn that an offence is being committed.  It would be well to avoid undue casuistry in this area and it seems to me that a peace officer could legitimately arrest a person if it is apparent that an offence is being committed by such person.  This requirement has both subjective and objective components.  A peace officer exercising the arrest power must provide some sensible reason for believing an offence was being committed by the person arrested. [7] In the case of R. v. Biron , [1976] 2 S.C.R. 56, 23 C.C.C. (2d) 513, Martland J. observed at 75, “the power to arrest without a warrant is given where the peace officer himself finds a situation in which a person is apparently committing an offence”.  I take the word “apparent” to require an objectively sensible apprehension by the arresting officer that an offence is being perpetrated by the person arrested. [8] That appears to be consistent with what Lamer J. (as he then was) said in R. v. Roberge , [1983] 1 S.C.R. 312, 4 C.C.C. (3d) 304, at 324: ... I do not read the test laid down by Martland J. as suggesting that it is sufficient that it be “apparent” to the police officer even though it would be unreasonable for the police officer to come to that conclusion. Surely it must be “apparent” to a reasonable person placed in the circumstances of the arresting officer at the time. [9] The question posed by the circumstances of this case is whether what was apparent to the nose of the officer during his interaction with Mr. Boyd on the date of the arrest sufficed to render the arrest of Mr. Boyd a lawful one.  The officer testified that he had previously encountered what he described as the burnt odour of marihuana and he described the odour emanating from the respondent’s vehicle as strong, leading him “to believe that marihuana had been smoked within 15 minutes prior to the stop”. [10] The judge said this about the arrest: [57]      As was the case in Janvier , the decision to arrest Boyd in this case was made by Const. Cranmer on his observation of the smell of burnt marihuana alone, without any other observation apparent to him from which it could properly be concluded that Mr. Boyd was then in possession of marihuana.  At no time prior to the arrest did Const. Cranmer see any marihuana in Mr. Boyd’s possession, nor did the officer see Mr. Boyd engaged in any act from which actual possession could properly be inferred.  There was no evidence of any ongoing criminal activity taking place in the presence of Const. Cranmer when he stood beside Mr. Boyd’s car and sniffed the smell of burnt marihuana.  The best that could be said is that Const. Cranmer suspected, on what he believed were reasonable grounds, namely his past experience, that Mr. Boyd was in possession of marihuana.  Indeed, as the officer himself testified, he arrested Mr. Boyd in the hope that he would find some evidence of a drug related criminal offence. [11] The judge expressed his conclusion about the lawfulness of the arrest thus: [56]      ... The law requires that inferences drawn from proven facts must be reasonable.  The reasonable inference to be drawn from the smell of burnt marihuana, whether one estimates the burning to have taken place in the immediate past or hours previously, is that the marihuana which was the source of that smell no longer exists.  It has been consumed by fire.  In my view, it would be unreasonable, as a matter of both law and logic, to draw an inference of present possession from nothing more than evidence of past possession. [12] The trial judge placed reliance upon the decision of the Saskatchewan Court of Appeal in R. v. Janvier , 2007 SKCA 147, 227 C.C.C. (3d) 294. Janvier , somewhat like the instant case, was a case where a peace officer had stopped a person for a motor vehicle infraction and detected a smell of burnt marihuana emanating from the vehicle.  The accused was arrested for possession of marihuana and a search of the vehicle turned up drugs and other items that resulted in the accused being charged with possession of marihuana for the purpose of trafficking.  A trial judge found the arrest and consequent search unlawful, and acquitted the accused.  The Saskatchewan Court of Appeal sustained the acquittal. [13] In the course of her reasons, Jackson J.A. said this: [30]      When one examines the decisions where courts have sustained an arrest based on the smell of burned marihuana, and no other sensory perception, they rely, in addition to the smell of burned marihuana, upon an inference that more marihuana will be discovered. In Biron , however, Martland J. makes it clear that the Court interprets the phrase “finds [a person] committing a criminal offence” as implying that the officer’s belief an offence is being committed is based on his or her observation of that offence being committed (or apparently being committed) and not merely an inference from some other observation . [Emphasis added.] That is why Martland J. went on to say “there is no reason to refer to a belief based upon reasonable and probable grounds. ” 27 Thus, s. 495(1)(b) does not permit the officer to say “based on my experience, I believed I would find other marihuana present because I smelled recently burned marihuana.” Observation (i.e., the smell) of recently smoked marihuana is not an observation of current possession of additional unsmoked marihuana. One might infer the presence of more marihuana, but one is not observing or smelling it and one is therefore not finding the person committing the offence of possession of additional, unsmoked, marihuana within the meaning of s. 495(1)(b). [Emphasis in original.] Section 495(1)(b) does not permit an arrest made on inference derived from the smell of burned marihuana alone .  [Emphasis added.] [14] Jackson J.A. appears to be saying that an inference drawn by the peace officer from observed facts may not be sufficient grounds to render lawful an arrest made under s. 495(1)(b) of the Code .  She went on to say: [31]      As I have indicated, s. 495(1)(b) does not permit an arrest based on inference, at least in these circumstances, but if I am wrong on this, I will address the Crown’s alternative argument, which is that an officer is entitled to infer from the presence of the smell of burned marihuana alone that there will be more, unsmoked marihuana present. My view, formed by a review of the case law, is that the inference suggested by the Crown is not objectively reasonable. [15] In my view, the judgment in Janvier seems to differ from what was said by this Court in R. v. Webster , 2008 BCCA 458, 238 C.C.C. (3d) 270, a case decided a year after Janvier .  That case was however a situation, at least initially, of investigative detention.  Frankel J.A. said this at para. 31 of Webster : In my view, the odour of freshly-smoked marihuana emanating from a vehicle objectively supports, at a minimum, a reasonable suspicion that the driver and/or passenger are then engaged in criminal activity, namely, possession of marihuana.  It is reasonable to suspect that persons who have just used marihuana will have more of that drug in their possession. ... [16] This Court, in the earlier case of R. v. Dubois , 2004 BCCA 589, 205 B.C.A.C. 156, had found an arrest legal where police officers smelled an odour of burning marihuana coming from a vehicle and upon stopping the vehicle observed what appeared to be marihuana leaves on a passenger and in the vehicle.  Huddart J.A. said at para. 9: [9]        ... It cannot be said that the evidence of odour alone is insufficient in all circumstances to found an objective belief that a crime has been or is about to be committed.  As this Court noted in R. v. Schulz , 2001 BCCA 601, at para. 5, each case turns on its own facts and whether the odour of marihuana will suffice to justify an arrest will depend on the surrounding circumstances.  The testimony of Constable Pineo supports the trial judge’s finding she had a subjective belief that she had reasonable and probable grounds for an arrest.  Her inference that there would probably be marihuana in the car was reasonable. [17] In R. v. Schulz , 2001 BCCA 601, 159 B.C.A.C. 146, a police officer attended a residence, rather ironically as it turned out, to return to a person some exhibits from an earlier drug investigation that had not resulted in charges.  The following passage from the reasons of Donald J.A. encapsulates the facts of the case: [6]        ... [4]        Constable Meyer attended the Schulz residence and knocked on the door. A voice from within stated “come-in”, upon which Constable Meyer opened the door and observed an individual, later determined to be the accused, Mr. Schulz, seated at the table. Mrs. Schulz immediately arose and quickly came to the door and closed it behind him. Constable Meyer stated that he was able to smell burning marihuana emanating from within the residence. Constable Meyer advised the accused that he had smelled the marihuana and as a result the residence would be searched. He then arrested the accused for possession of a controlled substance. ... [18] The conclusion of the Court as to the legality of the arrest is set forth in para. 12 of the reasons: [12]      Much of the appellant’s argument relied on cases which dealt with the smell of burnt marihuana or marihuana in a raw or some other form. However, in the instant case the trial judge found that Constable Meyer smelled burning marihuana in a room occupied only by the appellant. Having examined the transcript of Constable Meyer’s testimony, and having considered the evidence as a whole, I think the trial judge’s finding was reasonable and cannot be interfered with. The odour that the officer detected, together with the behaviour of the appellant in quickly moving to exclude the officer once the appellant saw who was at the door, combined to provide a sufficient basis for the belief founding the arrest.  [Emphasis in original.] I note the phraseology “belief founding the arrest”.  This language seems to me to lend some support to the proposition that an arresting officer can rely on inferences arising from observed facts. [19] The trial judge appeared to place considerable reliance upon the decision of this Court in R. v. Abel and Corbett , 2008 BCCA 54, 229 C.C.C. (3d) 465.  That case raised an issue concerning the power of a citizen to arrest someone believed to have committed a crime.  The appellant and a companion, one C, had attended at a residence where one H was believed to be.  The appellant believed H could be in possession of a rifle stolen from the premises of the appellant about a week earlier.  The appellant had learned that H had offered to sell the rifle to a third party.  The appellant had information as to the whereabouts of H but no knowledge as to where the rifle might be.  He decided to seek out and confront H with a view to recovering the missing rifle.  He was accompanied on this mission by C who took a tire iron.  An altercation occurred when they came upon H in the premises of a friend: [13]      There are also conflicting accounts as to what happened inside the townhouse.  There is, however, no dispute that a physical altercation occurred between Mr. Holl and Mr. Abel, and that Mr. Corbett hit Mr. Holl with the tire iron.  It is also not disputed that Mr. Holl was overpowered and restrained using zap straps Mr. Abel had brought with him for this purpose. [20] The appellant was convicted of assaulting H, and C was convicted of possession of a weapon for a dangerous purpose.  At trial, the two accused persons had unsuccessfully sought a direction to the jury from the trial judge that when the affray had occurred, their actions were justified because they were engaged in a “citizen’s arrest”.  This Court found the judge was correct to refuse to give such an instruction.  Frankel J.A. said at para. 64: In this case, although Mr. Abel and Mr. Corbett reasonably believed Mr. Holl had stolen Mr. Abel’s rifle, they had no information as to where the rifle might be.  They certainly did not come upon Mr. Holl in possession of it.  As a result, it was not open to them to seek to justify their actions on the basis that Mr. Holl was “found committing” the offence of possession of stolen property at the Corlett Street townhouse. [21] I am not of the view that Abel is a particularly apposite authority to consider on the issue arising in the case at bar.  The law has always sought to circumscribe within very narrow limits the powers of a citizen to effect an arrest.  It is a species of self help and as the Abel case amply demonstrates, a fertile source of breaches of the peace.  The case of Abel contains a useful discussion of cases such as Biron and Roberge but throws up considerations somewhat different from those pertinent to arrests made by a peace officer. [22] In his reasons, the judge made reference to cases such as R. v. Ashby , 2011 BCSC 513, where a smell of vegetative marihuana emanating from a vehicle was found to afford a proper basis for an arrest for possession of marihuana.  I think it reasonable to observe that this factual situation could afford a stronger foundation for an arrest under s. 495(1)(b).  That is so because the actual drug substance is being detected by olfactory means.  The question in the case at bar is whether a burnt smell supports an arrest under this section. [23] I agree with the trial judge in the instant case that the smell of burnt marihuana is an indication that some marihuana has been consumed by fire.  It is clearly the situation that that particular portion of marihuana no longer exists.  In the terminology of Roberge , what may be reasonably apparent from such an observation?  I advert again to what was said by Frankel J.A. in Webster : [31]      In my view, the odour of freshly-smoked marihuana emanating from a vehicle objectively supports, at a minimum, a reasonable suspicion that the driver and/or passenger are then engaged in criminal activity, namely, possession of marihuana.  It is reasonable to suspect that persons who have just used marihuana will have more of that drug in their possession. ... [24] I should note that the facts in Webster were more supportive of affording grounds for arrest after the stopping of the vehicle than the facts in the present case.  In that case, the arresting officer had observed a vehicle and followed it.  As he proceeded he detected a smell of burning marihuana and stopped the vehicle.  As he stood by the vehicle, he continued to smell the burnt odour.  He noted what appeared to be a joint of marihuana behind the ear of a passenger in the vehicle and in response to a question of the officer about marihuana, the passenger handed the joint to the officer.  The driver and passenger were forthwith arrested for possession of a controlled substance.  In a search of the vehicle, the officer discovered a plastic bag containing a considerable quantity of marihuana, a scale, zip lock baggies and a “score sheet”.  The men were charged with possession of the marihuana for the purpose of trafficking.  After a voir dire , the judge found the arrest and search lawful and a conviction resulted.  This Court sustained the conviction. [25] Among the many cases cited to us, a case that demonstrates similarity to the present one is R. v. Polashek (1999), 45 O.R. (3d) 434, 134 C.C.C. (3d) 187 (C.A.).  In that case, a police officer at a traffic stop detected a strong odour of marihuana emanating from a vehicle.  The officer could not determine whether the odour was of burnt or unburned marihuana.  In response to a question, the driver asserted that there was no such smell in the vehicle.  The officer said that the use of drugs was “fairly predominant” in the area and he had made many seizures of marihuana in the area.  A trial judge concluded “that the officer had reasonable and probable grounds to arrest the accused for the possession of a narcotic upon smelling the strong odour of marihuana inside the vehicle.” [26] In a search incidental to the arrest of the appellant, a sufficient amount of marihuana was found in the trunk of the vehicle to support a charge of possession for the purpose of trafficking and a small amount of LSD was also found.  The appellant was convicted of the offences of possession for the purpose of trafficking of marihuana and possession of LSD. [27] The Ontario Court of Appeal allowed an appeal from conviction on the basis of a denial of the right to counsel but sustained the finding of the trial judge about the legality of the arrest.  However, since the Court in its discussion used the terminology of “reasonable and probable” grounds for arrest, it seems the arrest may have been considered to have been made under s. 495(1)(a) as opposed to s. 495(1)(b). [28] The Court did opine that such smell coupled with other circumstances could afford a proper basis for arrest.  The only other relevant inculpatory circumstance I can deduce from the report was the opinion of the officer about drug usage in the area and the many previous seizures he had made.  That seems generally to track what the arresting officer testified to in the present case.  A possible lack of similarity of the cases is the fact that the officer in Polashek may have been, as he said, detecting an odour of burnt or unburned marihuana.  If the latter, the circumstances would be analogous to those found to be the situation in Ashby . [29] On the face of matters, there does seem to be some divergence of approach between the Janvier and Webster cases concerning what inferences may be drawn from the smell of burnt marihuana.  Indeed, in Janvier , Jackson J.A. appears to suggest it is impermissible for an officer to rely on inference at all when making an arrest relying on s. 495(1)(b).  The reasoning of the Ontario Court of Appeal in Polashek, however, appears to suggest that it may be possible to infer from the smell of marihuana and an officer’s experience of drug seizures that a vehicle will be found to contain drugs. [30] Ultimately, I venture to suggest that a court faced with such an issue cannot be too categorical in determining when an arrest under s. 495(1)(b) will or will not be supportable.  The jurisprudence in this province seems to support the thesis that a full consideration of all relevant circumstances needs to be made by the trier of fact.  Such also seems to be the case in Nova Scotia.  In the case of S.T.P v. Canada (Director of Public Prosecutions Service) , 2009 NSCA 86, 281 N.S.R. (2d) 1, the Nova Scotia Court of Appeal upheld the legality of an arrest based on a smell of burnt marihuana, previous involvement of the vehicle in a drug case, and somewhat apprehensive behaviour by an occupant of the vehicle.  M. MacDonald C.J.N.S. put it this way: 29        Therefore, consider this context. The officers see three young men in a vehicle and one of them appears nervous upon seeing the police vehicle. Their car then immediately turns off the road into the McDonald’s parking lot. Then a computer check of the vehicle reveals “bail violations” including references to “cannabis”. This would have given the officers strong reason to believe that something illicit was occurring. Then upon smelling burnt marijuana, it became apparent that the illicit activity involved the possession of marijuana. At that point, the test for a summary conviction arrest was met. Specifically, applying the three criteria noted above: (a) the officer was present when the apparent offence was taking place, (b) he detected the smell of burnt marijuana, and (c) the commission of this offence would have been “‘apparent’ to a reasonable person placed in the circumstances of the arresting officer at the time”. 30        Considering the entire context therefore, the judge did not err in finding the arrest to be lawful. [31] If Janvier is taken to stand for the proposition that a police officer cannot rely on inference from observed circumstances to afford proper grounds for arrest under s. 495(1)(b), that seems not to accord with the jurisprudence in this province.  The inference of course must be one that is objectively supportable to accord with what was said in cases like Biron and Roberge .  If circumstances objectively support an inference that criminal activity is occurring, a court will be entitled to find justifiable an arrest made pursuant to s. 495(1)(b). [32] Ultimately, these cases are going to be very much fact driven.  While I think the learned trial judge might have expressly considered what the arresting officer said about his previous experience, I doubt that this very experienced judge overlooked this evidence.  I believe the factual findings he made that the situation in the case at bar fell short of furnishing adequate grounds for an arrest under s. 495(1)(b) are ones to which this Court should give due deference.  I observe that I might not be inclined to adopt the phraseology used by the trial judge about “law and logic”, but would prefer to use phraseology such as “in all the circumstances”.  That approach seems consistent with the jurisprudence in this province. [33] Since this case can be seen as one near the line where different triers of fact could reach different conclusions, I am not persuaded that this appeal should succeed and accordingly I would dismiss the appeal. “The Honourable Mr. Justice Hall” I agree: “The Honourable Madam Justice Newbury” I agree: “The Honourable Madam Justice D. Smith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Baigent, 2013 BCCA 28 Date: 20130118 Docket: CA039876 Between: Regina Appellant And Lee Parker Baigent Respondent Before: The Honourable Chief Justice Finch The Honourable Mr. Justice Chiasson The Honourable Madam Justice A. MacKenzie On appeal from: Provincial Court of British Columbia, March 26, 2012 ( R. v. Baigent , Dawson Creek Registry No. 29816-2-C) Oral Reasons for Judgment Counsel for the Appellant: O.S. Kuzum, Q.C. Counsel for the Respondent: C. Bauman Place and Date of Hearing: Vancouver, British Columbia January 18, 2013 Place and Date of Judgment: Vancouver, British Columbia January 18, 2013 [1] MACKENZIE J.A. : The Crown appeals the acquittal of Lee Parker Baigent on March 26, 2012, by Judge Bowry of the Provincial Court of British Columbia of the aggravated assault of Timothy Pilkey. [2] The charge arose as a result of an altercation between the two men at a house party in Tumbler Ridge on November 8, 2009, during which Mr. Pilkey sustained serious injuries to his left eye and cuts to his neck and cheek. At trial, Mr. Pilkey and several other young people present at the party testified, as did two police officers called to the scene. Mr. Pilkey testified that he had a conversation with Mr. Baigent, he made a joke, and then he saw the shadow of Mr. Baigent’s arm coming towards him before he felt an object, a bottle or a glass, strike his face. Although in his initial statements to the police, Mr. Pilkey said Mr. Baigent “bottled him” in the face, he testified he did not see what the object was; he assumed it was a bottle or a glass because that is what he was told when he asked what had happened. Mr. Pilkey also said he did not strike Mr. Baigent. There was evidence Mr. Pilkey was intoxicated on the night of the altercation. [3] Although Mr. Baigent did not testify, a statement he gave the police was admitted into evidence. Mr. Baigent was arrested for aggravated assault at about 4:30 a.m., after he had returned to his motel. In the statement he provided at the detachment, Mr. Baigent said he was hit from behind or the side, he turned around, and swung at the person, hitting someone’s face. Mr. Baigent also said he had an empty hand when he swung. [4] The police officers who were called to the scene testified they did not obtain a statement from Mr. Pilkey that evening because of his high level of intoxication. No formal statements were taken at that time from anyone else present at the party, as everyone had been drinking and no one could clearly tell the officers what had happened. [5] The Crown’s case was based entirely on circumstantial evidence. None of the witnesses, including Mr. Pilkey himself, saw Mr. Baigent hit Mr. Pilkey with broken glass. However, it is common ground, as the trial judge found, the injuries were caused by broken glass or a broken mug. Witnesses heard glass smashing and there was broken glass covering the floor where the two men were when the altercation was stopped. Mr. Pilkey bled significantly. Mr. Baigent was later found to have deep cuts on the back of his right thumb and on his index finger, caused by broken glass. [6] The judge noted credibility was an important issue in this case, and summarized the rule of reasonable doubt as follows: [6]        As I have summarized previously in other cases, R. v. W. (D.) , [1991] S.C.R. 741, Justice Cory at Paragraph 28 suggests an explanation on the issue of credibility as follows: First, if you believe the evidence of the accused, obviously you must acquit; second, if you do not believe the testimony of the accused but you are left in reasonable doubt, you must acquit; third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence which you do accept you are convinced beyond a reasonable doubt of the evidence of the guilt of the accused. [7]        A fourth test has been added in R. v. H. (C.W.) , [1991] 68 C.C.C. (3d) at 146 where Justice Wood suggested: I would add one more instruction in such cases, which logically ought to be second in the order, namely, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [7] After considering the whole of the evidence, the judge concluded she did not know whom to believe and thus there was a reasonable doubt as to how the altercation started and whether the force applied by Mr. Baigent caused Mr. Pilkey’s injuries. In accordance with the W. (D.) analysis, the judge acquitted Mr. Baigent. [8] The Crown appeals the acquittal under s. 676(1)(a) of the Criminal Code , asserting a question of law alone on the basis the trial judge erred in failing to consider the totality of the circumstantial evidence in relation to the ultimate issue of guilt or innocence. The Crown contends that had the trial judge properly considered the entire body of evidence, the verdict would not necessarily have been the same, and seeks a new trial. [9] Under s. 676(1 )( a), the Attorney General has the right to appeal against an acquittal “on any ground of appeal that involves a question of law alone”. Thus, the Crown’s right to appeal is limited to matters of law. Further, the Crown must also demonstrate, with a reasonable degree of certainty, that the verdict would not necessarily have been the same had the error not been made: R. v. Morin , [1988] 2 S.C.R. 345 at 374, 44 C.C.C. (3d) 193. [10] In R. v. J.M.H , 2011 SCC 45, [2011] 3 S.C.R. 197 at paras. 25-32, the Court identified a non-exhaustive list of four situations under which a trial judge’s assessment of the evidence gives rise to an error of law alone: 1. It is an error of law to make a finding of fact for which there is no evidence - however, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purpose of this rule; 2. The legal effect of findings of fact or of undisputed facts raises a question of law; 3. An assessment of evidence based on a wrong legal principle is an error of law; and 4. The trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law. [11] With respect to the fourth error of law, the Court in J.M.H. , at para. 31, said the underlying legal principle is that it is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as a whole. The Court went on, at para. 32, to confirm that while a trial judge must consider all the evidence in relation to the ultimate issue of guilt, he or she is not required to refer to every item of evidence considered; the reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. [12] The Crown’s position is the trial judge made the fourth error of law described in J.M.H . Specifically , the Crown says the trial judge engaged in a W. (D.) analysis of the evidence without a proper consideration of the totality of the evidence in relation to the ultimate issue of guilt or innocence. [13] In support of its position, the Crown appears to track the reasoning in R. v. Rudge , 2011 ONCA 791, 108 O.R. (3d) 161. In Rudge , the Ontario Court of Appeal allowed the Crown’s appeal from an acquittal and ordered a new trial on the grounds the trial judge considered each part of the Crown’s case separately, rather than considering the evidence as a whole. As the Crown’s case was built on the totality of the evidence, the result was “the persuasive effect of the totality of the evidence – the strength of the Crown’s case – was taken out of play” (para. 66). The Court concluded this fell under the fourth category of legal error described by Cromwell J. in J.M.H , the failure to consider all of the evidence in relation to the ultimate issue of guilt. The Court also found the judge erred by failing to take into account several key individual pieces of evidence. [14] The Crown submits the trial judge in this case committed similar legal errors as the judge in Rudge . First, the Crown says the judge failed to consider the combined effect or totality of the evidence. The Crown argues that considering the direct evidence from Mr. Pilkey that he was hit with an object to his face after seeing Mr. Baigent’s arm coming toward him, combined with the circumstantial evidence of broken glass and the trail of blood that followed Mr. Baigent, the only reasonable inference was Mr. Baigent struck Mr. Pilkey in the face with a glass bottle. The Crown acknowledges the judge was entitled to weigh the evidence of Mr. Pilkey’s state of intoxication, but says she was required to do so within the context of all the evidence that confirmed Mr. Pilkey’s testimony. [15] Second, the Crown says although the judge “extensively reviewed the evidence”, there were a number of errors and omissions as there were in Rudge . In particular, the Crown submits the judge did not refer to the details of the testimony of Jeff Lang, one of the partygoers, and failed to consider Mr. Baigent’s state of intoxication at the time of the altercation and the passage of time before Mr. Baigent provided his statement to the police. As in Rudge , the Crown says the judge’s approach to the evidence amounted to an error in law. [16] I respectfully disagree with the Crown’s submission that the judge in the present case made the same errors as in Rudge . In contrast to Rudge , the trial judge considered the Crown’s case as a whole. She referred to the totality of the circumstances, including the statements of Mr. Baigent, Mr. Pilkey’s testimony, Mr. Pilkey’s injuries, and the evidence of broken glass on the floor. Ultimately, the judge was left with a reasonable doubt about what happened, as no one observed Mr. Baigent striking Mr. Pilkey with a bottle, there was no evidence as to whether Mr. Pilkey had a bottle in his hand (and therefore no one could say with certainty who was holding the glass), there was no evidence as to the source of the object that hit Mr. Pilkey, and there was evidence Mr. Pilkey was intoxicated at the time of the altercation. The judge concluded, at para. 61, “ On the whole of the evidence I do not know whom to believe” (emphasis added). [17] As in J.M.H. , there is no basis in the judge’s reasons to conclude she looked at individual pieces of evidence out of context, rather than considering the evidence in its totality. [18] Also unlike Rudge , the judge did not fail to take into account key pieces of evidence. The judge did refer to the fact Mr. Baigent provided his statement to the police at 5:31 a.m. on November 8, 2009, five and a half hours after the altercation. Although the judge did not expressly mention or discuss Mr. Baigent’s level of intoxication at the time the altercation occurred, one can infer from the record she was clearly aware of the evidence of Mr. Baigent’s intoxication, as Mr. Baigent himself said in his statement to the police he was likely intoxicated and one of the witnesses testified he had too many drinks to be driving. [19] Although the judge did not refer to every piece of evidence, the judge’s reasons responded to the live issues of how the altercation started and how the glass came into contact with Mr. Pilkey’s face. [20] The judge extensively reviewed the circumstantial evidence and considered whether she was satisfied, beyond a reasonable doubt, that the guilt of the accused was the only reasonable inference to be drawn from the proven facts: R. v. Cooper , [1978] 1 S.C.R. 860, 34 C.C.C. (2d) 18; R. v. Griffin , 2009 SCC 28, [2009] 2 S.C.R. 42. The judge concluded she did not know whom to believe and described other reasonable possibilities as to the cause of Mr. Pilkey’s injuries. Specifically, the judge suggested Mr. Pilkey may have been cut by his own glass or both men may have been cut by glass while they were on the floor. I find no error in the judge’s approach to the evidence; the fact that a different judge may have reached a different conclusion does not mean she was wrong in law. [21] In the result, I would dismiss the appeal as an attempt by the Crown to appeal from an “unreasonable acquittal” that cannot be supported by the evidence. Such an appeal is not open to the Crown under s. 676(1 )( a) as it does not arise from a question of law alone, and exceeds the scope of appellate review. [22] FINCH C.J.B.C. : I agree. [23] CHIASSON J.A. : I agree. [24] FINCH C.J.B.C. : The appeal is dismissed. “The Honourable Madam Justice A. MacKenzie”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Vincent v. Roche-Vincent, 2013 BCCA 136 Date: 20130118 Docket: CA040246 Between: Michael Sean Vincent Respondent (Claimant) And Grainne Roche-Vincent Appellant (Respondent) Before: The Honourable Madam Justice Neilson (In Chambers) On appeal from: Supreme Court of British Columbia, August 16, 2012 ( Vincent v. Roche-Vincent, 2012 BCSC 1233, Vancouver Registry No. E093215) Oral Reasons for Judgment Counsel for the Appellant: M.J. Cochrane Counsel for the Respondent: C. Linde Counsel for the Proposed Intervenor, West Coast Women’s Legal Education and Action Fund K. Govender Place and Date of Hearing: Vancouver, British Columbia January 17, 2013 Place and Date of Judgment: Vancouver, British Columbia January 18, 2013 [1] NEILSON J.A. : The applicant, the West Coast Legal Education and Action Fund (“LEAF”), applies for leave to intervene in this appeal brought by the mother of a 4-year-old boy from an order of a Supreme Court judge awarding the father custody of the child and granting the mother access every other weekend: 2012 BCSC 1233. The appellant mother supports the application, and the respondent father opposes it. [2] LEAF is a non-profit society whose mission is to achieve equality and relieve historic patterns of systemic discrimination against women through equality rights litigation, among other activities. It has been granted intervenor status and advanced such arguments as an intervenor in a number of cases in this Court and in the Supreme Court of Canada. [3] If it is granted intervenor status in this case, LEAF says it will advance arguments on two issues. First, it will argue the trial judge erred in law by introducing stereotypes about women’s behaviour in family law matters to determine this custody dispute, without appropriate consideration for the best interests of the child, and contrary to the equality values enshrined in s. 15 of the Charter of Rights and Freedoms . Second, it will argue the judge erred in law by relying on the mother’s unproven allegations of abuse by the father to find she had a distorted view of him, without requiring the father to establish these allegations were made in bad faith. It says this approach is based on the “myth” that women make false allegations of abuse in order to obtain custody or seek revenge on an ex-spouse, and contends the trial judge inappropriately relied on the allegations to make findings against the mother, instead of focussing on the best interests of the child. LEAF expresses the concern that such an approach will have a chilling effect on reporting valid allegations of abuse. [4] The principles guiding applications for intervention were recently summarized by this Court in Friedmann v. MacGarvie , 2012 BCCA 109 at paras. 12-19, 318 B.C.A.C. 119. Intervention may be permitted where the applicant has a direct interest in the litigation, or if the appeal raises public law issues that legitimately engage the applicant’s interests, and the applicant brings a different and useful perspective to those issues that will be of assistance to the Court. In the latter situation, the Court is guided by the factors listed by Madam Justice Newbury in R. v. Watson and Spratt , 2006 BCCA 234 at para. 3: ... where the applicant does not have a “direct” interest in the litigation, the court must consider the nature of the issue before the court (particularly whether it is a ‘public’ law issue); whether the case has a dimension that legitimately engages the interests of the would-be intervenor; the representativeness of the applicant of a particular point of view or “perspective” that may be of assistance to the court; and whether that viewpoint will assist the court in the resolution of the issues or whether, as noted in Ward v. Clark [2001 BCCA 264], the proposed intervenor is likely to “take the litigation away from those directly affected by it”. ... [5] LEAF concedes it does not have a direct interest in this matter. I therefore turn to those factors. [6] As to the nature of the issue before the Court, this is private litigation between two parents over the custody of their son. There are no public or constitutional issues, nor issues that may change the face of family law. The trial judge acknowledged the focal issue was the best interests of the child and, to my mind, addressed that by making findings of fact and credibility based primarily on the evidence of both parties, and the expert evidence of a psychologist who provided a report under s. 15 of the Family Relations Act , R.S.B.C. 1996, c. 128, and testified at trial. He concluded it was in the best interests of the child to switch from a custodial regimen that gave equal time to each parent to one in which the father had custody of the boy and provided his primary residence, while the mother’s time with her son was significantly reduced. [7] While LEAF contends there are systemic issues raised by the trial judge’s approach, in my view these are not readily apparent in his reasons for judgment. Nor are they raised by the appellant in her grounds of appeal, the relevant parts of which read: 51.       The learned trial judge failed to properly consider all relevant factors and evidence and to exercise his discretion in accordance with Section 16 of the Divorce Act , Section 24 of the Family Relations Act , the Supreme Court of Canada’s decision in Gordon v. Goertz [1996] S.C.J. No. 52, [1996] 2 S.C.R. 27 (“ Gordon v. Goertz ” ) , and other authorities including Robinson v. Filyk (1996), 28 B.C.L.R. (3d) 21 (C.A.). More particularly, a) the learned trial judge erred in failing to consider the existing shared parenting arrangement, and the disruptive impact on Aedhan of changing from a 50-50 parenting regime that had been in place for two and one-half years to one wherein he would be apart from his mother for 12 consecutive days in every 14-day period; b) the learned trial judge erred in law by failing to consider and give effect to the principle of maximum contact; c) the learned trial judge erred in adopting an 8-“factor” hypothetical test for determining custody that is informed by principles inconsistent with the best interests analysis; d) the learned trial judge erred by applying a presumption or principle of “consistent parenting” or “consistent discipline”; e) the learned trial judge erred in granting to the Appellant less parenting time than had been proposed even by the Respondent, thereby failing to show “great respect” to the views of either interim custodial parent in making the order; f) the learned trial judge erred in placing inordinate weight on the Child’s behavior toward the Appellant in 2009 and earlier, and in failing to properly consider evidence of the child’s relationship with both parents at the time of trial; and g) the learned trial judge erred in ordering that the Respondent was entitled to enrol Aedhan at Saltwater School due to convenience, without considering other factors. 52.       The learned trial judge erred in considering conduct by the Appellant that is unrelated to the Appellant’s ability to act as a parent to Aedhan. 53.       The learned trial judge seriously misapprehended the evidence in finding that the abuse counseling attended by Aedhan was unnecessary and damaging. 54.       The learned trial judge seriously misapprehended the evidence in relation to the Respondent’s alleged claustrophobia, which evidence was material to His Lordship’s finding that the Respondent was not an angry person or prone to violence. [8] It is not clear to me that the mother’s s. 15 equality rights are engaged by these issues. Nor is it apparent that introducing this topic will assist the Court in determining whether the trial judge ultimately resolved the issue of custody in a manner that serves the best interests of the child. [9] As for the argument based on the role of unproven allegations, it is an unfortunate reality that parents of both genders sometimes make unproven allegations about each other in the heat of a hard-fought custody dispute, and trial judges routinely weigh such evidence, and consider its veracity, in reaching their decisions. I am not aware of any legal authority that places an onus on the subject of such allegations to prove they are made in bad faith before a trial judge may consider their import in a custody dispute. LEAF refers to limited portions of two academic articles about allegations by mothers of sexual abuse of a child by fathers to support its position on this point: Nicholas Bala & John Schuman, “Allegations of Sexual Abuse When Parents Have Separated” (1999-2000) 17 Can. Fam. L.Q. 191 at 193-194; Susan B. Boyd, “W(h)ither Feminism? The Department of Justice Public Discussion Paper on Custody and Access” (1994-1995) 12 Can. Fam. L.Q. 331 at 353-354. There were no such allegations in this case, and I am not persuaded these isolated references create the onus LEAF describes, or that this argument would be of assistance to the Court on this appeal. [10] In my view, this is a case in which there is a legitimate concern that granting intervenor status to LEAF to make its proposed arguments would inappropriately widen the scope of the litigation and take the litigation away from the parties, particularly the child who is the focus of the dispute. The appellant is represented by counsel who could raise these issues if he wished to do so, but has evidently chosen not to. [11] This Court has advocated caution in granting intervention in private law matters: Richmond (Township) v. Dha (1991), 47 C.P.C. (2d) 23 at 29 (B.C.C.A. Chambers). In my view, that approach has particular application in a custody dispute, given the sensitive and personal nature of the issues that arise in such cases. I find support for this view in Klachefsky v. Brown , [1988] 1 W.W.R. 755, 11 R.F.L. (3d) 249 (Man. C.A. Chambers), the only similar decision the parties have provided. There, as here, a trial judge granted the father custody of the children of the marriage, the mother appealed, and LEAF sought to intervene to make submissions based on the mother’s equality rights. The application was denied for reasons similar to those I have expressed. While LEAF points out this decision is dated, it concedes it knows of no more recent authority that has taken a different view. [12] The application to intervene is dismissed. “The Honourable Madam Justice Neilson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Baldwin v. Baldwin, 2013 BCCA 35 Date: 20130121 Docket: CA039361 Between: Janet Kelly Baldwin Appellant (Petitioner) And Wesley Warren Baldwin Respondent (Respondent) Before: The Honourable Mr. Justice Tysoe The Honourable Madam Justice Neilson The Honourable Madam Justice Bennett On appeal from: Supreme Court of British Columbia, September 12, 2011 ( Baldwin v. Baldwin , Fort St. John Registry No. 20560) Oral Reasons for Judgment Appellant appearing In Person (via video conference) Counsel for the Respondent: S.T.G. Cole Place and Date of Hearing: Vancouver, British Columbia January 21, 2013 Place and Date of Judgment: Vancouver, British Columbia January 21, 2013 [1] TYSOE J.A. : Ms. Baldwin appeals the dismissal of her application for judicial review of the decision of a Provincial Court judge dismissing her small claims action against her brother, Mr. Baldwin. [2] The small claims action relates to a property in Fort St. John owned by Ms. Baldwin’s parents. I understand Ms. Baldwin claims that she is entitled to a lease, or otherwise has a right of occupation, in respect of all or part of the property. The action alleges that Mr. Baldwin had Ms. Baldwin unlawfully arrested and removed from the property and that he had the hydro removed from the property. [3] Ms. Baldwin had made the same allegations against her sister in two previous small claims actions that were dismissed at settlement conferences. There had also been proceedings before a dispute resolution officer under the Residential Tenancy Act , S.B.C. 2002, c. 78, but they related to the tenancy of Mr. Paul Williams, who I gather is a friend of Ms. Baldwin. Although it was noted in the reasons of the officer that Ms. Baldwin had not produced a lease, the officer found that Ms. Baldwin was not a party to the application. [4] The small claims action against Mr. Baldwin went to a settlement conference on November 17, 2010. The settlement conference judge adjourned the matter to trial. [5] Mr. Baldwin subsequently made an application to have the action dismissed on the basis that it was frivolous and vexatious. At the conclusion of the hearing of the application on December 9, 2010, the Provincial Court judge dismissed the action because she was satisfied that the action was vexatious and an abuse of process. In dismissing the action, the judge noted that the issues in the action were the same as the issues addressed at the hearing under the Residential Tenancy Act . [6] On March 10, 2011, Ms. Baldwin filed a petition in Supreme Court for judicial review of the decision of the Provincial Court judge. The petition came on for hearing by a chambers judge on September 12, 2011. [7] The chambers judge dismissed Ms. Baldwin’s petition. Her reasoning was as follows: [15]      Under the Small Claims Act , R.S.B.C. 1996, c. 430, Ms. Baldwin had 40 days within which to file an appeal to this Court. She did not. Instead, she file a petition to this Court on March 10, 2011 which is out of time. Apart from the fact that it is out of time, it has no reasonable prospect of success. [16]      Ms. Baldwin, on the application before me, urges that she is not seeking an appeal of the Provincial Court order. In her material, she says it is a judicial review application, but in substance it is an appeal of the Provincial Court order. [17]      The order that was made on December 9, 2010 in the Provincial Court of British Columbia at the settlement conference, is not properly the subject of a review under the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241. [18]      The petitioner’s petition is dismissed with costs to the respondent, Wesley Baldwin. [8] With respect, it is my view that the chambers judge erred in holding that the December 9, 2010 order was not properly the subject of judicial review and that Ms. Baldwin was required to have appealed the order within 40 days. [9] Sections 5 and 6 of the Small Claims Act, R.S.B.C. 1996, c. 430, reads as follows: 5    (1)  Any party to a proceeding under this Act may appeal to the Supreme Court an order to allow or dismiss a claim if that order was made by a Provincial Court judge after a trial. (2)  No appeal lies from any order of the Provincial Court made in a proceeding under this Act other than an order referred to in subsection (1). 6    An appeal must be started within 40 days, beginning on the day after the order of the Provincial Court is made. [10] In my opinion, it is clear from the wording of s. 5 that an order dismissing a claim may only be appealed to the Supreme Court if it was made after a trial. In the present case, there was no trial, and Ms. Baldwin had no right of appeal in respect of the dismissal order. I do not agree with the submission on behalf of Mr. Baldwin that Ms. Baldwin was, in essence, seeking to appeal the December 9, 2010 order – her petition was properly framed as a request for judicial review. [11] Similarly, the jurisprudence of this Court is clear that litigants may seek judicial review of decisions made by Provincial Court judges in small claims actions that may not be appealed under s. 5: see, for example, Shaughnessy v. Roth , 2006 BCCA 547, 61 B.C.L.R. (4th) 268, which involved an order transferring an action from the Provincial Court to the Supreme Court, and Hubbard v. Acheson , 2009 BCCA 251, 93 B.C.L.R. (4th) 315, which involved an order dismissing an application to set aside a default judgment. Ms. Baldwin has also referred us to decisions of the Supreme Court which involved judicial review of orders made at settlement conferences to grant judgment or to dismiss claims against certain defendants ( 0763486 B.C. Ltd. v. Landmark Realty Corp. , 2009 BCSC 810, and Wood and Lauder v. Siwak , 2000 BCSC 397). [12] Although delay is a factor that may be taken into account in judicial review proceedings, there is no specific deadline for the bringing of such a proceeding. The 40 day appeal period in s. 6 of the Small Claims Act does not apply to judicial review proceedings in relation to orders made by Provincial Court judges prior to a trial of a small claims action. [13] Counsel for Mr. Baldwin requests that, even if the chambers judge erred, this Court should exercise its discretion to dismiss the appeal because the judicial review proceeding would have been dismissed in any event. In the present context, this Court is a court of review in respect of decisions made by the Supreme Court. While it is open to this Court to make any order that could have been made by the Supreme Court, I am not persuaded that this is an appropriate case for this Court to conduct a judicial review at first instance. In my view, it is preferable for the judicial review to be conducted by the Supreme Court. [14] I would allow the appeal and remit Ms. Baldwin’s petition to the Supreme Court. I would grant Ms. Baldwin costs of the appeal. [15] NEILSON J.A. : I agree. [16] BENNETT J.A. : I agree. [17] TYSOE J.A.: The appeal is allowed. The petition is remitted to Supreme Court and Ms. Baldwin is granted her costs of this appeal. “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Jones v. Zimmer GMBH, 2013 BCCA 21 Date: 20130122 Docket: CA039378 Between: Dennis Jones and Susan Wilkinson Respondents (Plaintiffs) And Zimmer GMBH, Zimmer, Inc., and Zimmer of Canada Limited Appellants (Defendants) Before: The Honourable Mr. Justice K. Smith The Honourable Mr. Justice Chiasson The Honourable Madam Justice Bennett On appeal from: Supreme Court of British Columbia, September 2, 2011 ( Jones v. Zimmer GMBH , 2011 BCSC 1198, Vancouver Docket No. S095493) Counsel for the Appellants: A.D. Borrell P. Pliszka Counsel for the Respondents: D.A. Klein J.Z. Murray Place and Date of Hearing: Vancouver, British Columbia May 29-30, 2012 Place and Date of Judgment: Vancouver, British Columbia January 22, 2013 Written Reasons by: The Honourable Mr. Justice K. Smith Concurred in by: The Honourable Mr. Justice Chiasson The Honourable Madam Justice Bennett Reasons for Judgment of the Honourable Mr. Justice K. Smith: [1] This appeal is from an order made by the Honourable Mr. Justice Bowden of the Supreme Court of British Columbia pursuant to the Class Proceedings Act , R.S.B.C. 1996, c. 50, certifying the underlying product liability action as a class proceeding and appointing the respondent Susan Wilkinson as representative plaintiff for “[a]ll persons who were implanted with the Durom acetabular hip implant in Canada.” [2] The appellants (nothing turns on their separate corporate identities) manufacture and distribute a hip implant known as the “Durom Cup”, which is intended to adhere, without cement, to the surrounding bone as it grows during recovery from hip implant surgery. The respondents received Durom Cup implants in 2008. Each subsequently experienced pain and disability and had revision surgery to have the Durom Cup removed. In each case it appeared during the revision surgery that the Durom Cups had failed to adhere properly to the surrounding bone. The respondents claim damages for alleged negligence in the research, development, testing, manufacture, distribution, and sale of the Durom Cup and, as well, declaratory and injunctive relief, damages, and statutory compensation pursuant to the Business Practices and Consumer Protection Act , S.B.C. 2004, c. 2 for alleged deceptive acts and practices. [3] The appellants contend the certification judge erred in certifying the following questions for trial as “common issues”: (a)      Was the Durom acetabular hip implant defective and/or unfit for its intended use? (b)      With respect to British Columbia residents, did any of the defendants breach a statutory duty under the Business Practices and Consumer Protection Act owed to class members who received the Durom acetabular hip implant in British Columbia and, if so, when and how? The judge also certified the questions “Did any of the defendants breach a duty of care owed to class members and, if so, when and how?” and “Does the defendants’ conduct warrant an award of punitive damages, and, if so, to whom should they be paid and in what amount?” as common issues. It is not disputed that these questions can go forward as common issues if the impugned questions can properly do so. [4] To be a “common issue”, an issue must be a substantial and necessary ingredient of the claim of each member of the class: Hollick v. Toronto (City) , 2001 SCC 68 at para. 18, [2001] 3 S.C.R. 158. It need not be determinative of liability: rather, it will be sufficient if it is an issue of fact or law common to all claims and if its resolution will move the litigation forward: Campbell v. Flexwatt Corp. (1997), 44 B.C.L.R. (3d) 343 at para. 53, 98 B.C.A.C. 22, leave to appeal ref’d [1998] S.C.C.A. No. 13. [5] The proper approach to be taken by the judge hearing a certification application is summarized in Pro-Sys Consultants Ltd. v. Infineon Technologies AG , 2009 BCCA 503 at paras. 64-65, 312 D.L.R. (4th) 419, leave to appeal ref’d [2010] S.C.C.A. 32: [64]      The provisions of the [ Class Proceedings Act ] should be construed generously in order to achieve its objects: judicial economy (by combining similar actions and avoiding unnecessary duplication in fact-finding and legal analysis); access to justice (by spreading litigation costs over a large number of plaintiffs, thereby making economical the prosecution of otherwise unaffordable claims); and behaviour modification (by deterring wrongdoers and potential wrongdoers through disabusing them of the assumption that minor but widespread harm will not result in litigation): Western Canadian Shopping Centres Inc. v. Dutton , 2001 SCC 46, [2001] 2 S.C.R. 534 at paras. 26-29 [ Western Canadian Shopping Centres ]; Hollick v. Toronto (City) , 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 15 [ Hollick ]. [65]      The certification hearing does not involve an assessment of the merits of the claim; rather, it focuses on the form of the action in order to determine whether the action can appropriately go forward as a class proceeding: Hollick at para. 16.  The burden is on the plaintiff to show “some basis in fact” for each of the certification requirements, other than the requirement that the pleading disclose a cause of action: Hollick , at para. 25.  However, in conformity with the liberal and purposive approach to certification, the evidentiary burden is not an onerous one – it requires only a “minimum evidentiary basis”: Hollick , at paras. 21, 24-25; Stewart v. General Motors of Canada Ltd. , [2007] O.J. No. 2319 (S.C.J.) at para. 19.  As stated in Cloud v. Canada (Attorney General) (2004), 247 D.L.R. (4th) 667 at para. 50, 73 O.R. (3d) 401 (C.A.), leave to appeal ref’d [2005] S.C.C.A. No. 50 [ Cloud ], [O]n a certification motion the court is ill equipped to resolve conflicts in the evidence or to engage in finely calibrated assessments of evidentiary weight. What it must find is some basis in fact for the certification requirement in issue. [6] The appellants submit the impugned questions are not “common issues” as that phrase has been defined, that the certification judge relied on irrelevant and inadmissible evidence, and that no “basis in fact” was established to support these questions as common issues. For the reasons that follow, I would reject these submissions and dismiss the appeal. The Respondents’ Claim [7] In their statement of claim, the respondents alleged that the Durom Cup “was defective in that it fails to properly heal or adhere to the surrounding bone”: that it remains loose or separates from the bone causing the patient pain and necessitating further hip surgery. They pleaded that the appellants were negligent in the research, development, testing, manufacture, distribution and sale of the Durom Cup; that they failed to ensure it was effective in adhering to bone before marketing it; that they failed to monitor its safety after marketing it; and that they failed to warn the respondents, class members, their health care providers, and Health Canada (the responsible federal regulator) of the problems with the Cup. Further, they alleged these acts and omissions were breaches of the requirements of the Medical Devices Regulations , S.O.R./98-282. [8] The respondents also pleaded that they received Durom Cup implants (Mr. Jones in January 2008 and Ms. Wilkinson in April 2008), that the implants failed, that Mr. Jones had further surgery in May 2009 in which the Durom Cup was removed and replaced with a new implant, that Ms. Wilkinson was on the waiting list for similar surgery, and that both experienced pain and suffering and other damage as a result of the failures. [9] The relevant provisions in respect of the respondents’ statutory claims are set out in s. 4 of the Business Practices and Consumer Protection Act : 4 (1) In this Division: “deceptive act or practice” means, in relation to a consumer transaction, (a) an oral, written, visual, descriptive or other representation by a supplier, or (b) any conduct by a supplier that has the capability, tendency or effect of deceiving or misleading a consumer or guarantor; “representation” includes any term or form of a contract, notice or other document used or relied on by a supplier in connection with a consumer transaction. ... (3) Without limiting subsection (1), one or more of the following constitutes a deceptive act or practice: ... (b) a representation by a supplier vi)  that uses exaggeration, innuendo or ambiguity about a material fact or that fails to state a material fact, if the effect is misleading .... [10] The respondents pleaded, and it was not disputed, that the appellants and respondents were “suppliers” and “consumers” respectively and that they were engaged in “consumer transactions”. The respondents alleged deceptive and misleading acts and omissions by the appellants as follows: 27.       The Defendants’ conduct in their solicitations, offers, advertisements, promotions, sales and supply of the Product, as particularized above, had the capability, tendency or effect of deceiving or misleading consumers regarding the safety and efficacy of the Product. The Defendants’ conduct in its solicitations, offers, advertisements, promotions, sales and supply of the Product were deceptive acts and practices contrary to s.4 of the BPCPA. The Defendants’ deceptive acts and practices include the Defendants’ failure to properly disclose all material facts regarding the safety and efficacy of the Product. 28.       Further, in their marketing brochures, promotional materials, and website directed both to consumers and their physicians, the Defendants made representations concerning the efficacy of the Product, including a description of studies that suggested that the Product had a success rate of up to 99%. In reality, the Product’s failure rate is unreasonably high compared to other, available implants. The Defendants knew or ought to have known that their marketing claims regarding the Product were inaccurate, incomplete or misleading, and that the Product had an unreasonably high failure rate. Such marketing claims were deceptive and had the tendency, capability or effect of misleading consumers and their physicians. The Evidence [11] The respondents and Gloria McSherry, the proposed representative plaintiff in a parallel action in Ontario, gave evidence by affidavit that they received Durom Cup hip implants in January 2008, April 2008, and August 2007 respectively. All said they subsequently suffered debilitating pain in the region of their replaced hip, and that they had surgery to remove and replace the Durom Cup in May 2009, October 2009, and June 2010 respectively. Mr. Jones’ surgeon said, in his operative note, that the Durom Cup was “tapped and easily removed showing no bony ingrowth in any area.” Ms. Wilkinson deposed that she was awake and aware during her replacement surgery and remembers the Durom Cup “popping out merely with the force” of her surgeon’s hand. Ms. McSherry’s surgeon said, in his operative note, “Durom cup appeared to be solid but following removal there was no bone ingrowth on cup.” [12] In April 2008, an American orthopaedic surgeon published a letter he wrote to his colleagues in the American Association of Hip and Knee Surgeons advising of several Durom Cup failures among his patients.  As a result, the appellants undertook an investigation and, on July 22, 2008, they issued an “Urgent Device Correction” letter to U.S. surgeons to whom they had supplied Durom Cups. In the letter, they attributed the failures to the surgical techniques used by the doctors and disclaimed any defect in the Durom Cup. The letter said their investigation led them to conclude that “additional surgical technique instructions and training are necessary” for surgeons in the U.S. and strongly recommended that “U.S. surgeons stop implanting the Durom Cup until receiving such training.” The letter announced that the appellants would suspend marketing and distribution of the Durom Cup in the U.S. “while we update product labeling to provide more detailed surgical technique instructions and implement a surgical training program for U.S. surgeons.” It added that they had found “[n]o evidence of a defect in the materials, manufacture, or design” of the Durom Cup. The letter also stated the appellants would be developing a “comprehensive surgical skills training curriculum, working with experts in the U.S. and in Europe” and that the Cup would be “made available to surgeons as they complete training.” [13] Also on July 22, 2008, the appellants published a press release announcing the suspension of marketing and distribution of the Durom Cup in the U.S. and adding that it would continue to be marketed outside the U.S., including in Canada where it had been made available in 2003. The press release contained this passage: Data from clinical trials sponsored by Zimmer and conducted outside the U.S. have demonstrated no revisions with the Durom Cup in 386 cases, after two to seven years of follow-up. In addition, the Swedish Registry, an independent total joint registry, reports a 99.5 percent survivorship with the Durom Cup (222 patients with three-year follow-up). [14] In a letter of October 3, 2008 to “Canadian Durom Cup users”, the appellants described their U.S. investigation and stated that because “substantial surgeon training for the Durom Cup has been offered in Canada since the system ... was launched, and because the reported clinical results for the Durom Cup in Canada have been excellent, Zimmer determined that no suspension of marketing in Canada is required.” The letter noted that, over the next several weeks, they would provide “updated Instructions For Use ... commonly called package inserts or product labeling, as well as updated surgical techniques that will include more detailed surgical technique instructions in Canada, as has already been done in the US.” [15] One year later, in response to reports of Durom Cup implant failures in Europe, the appellants issued an “Urgent Field Safety Notice” to surgeons using the Durom Cup in Europe. The notice, dated October 13, 2009, stated that the “most probable root cause” of the failures was the use of incorrect surgical technique and advised that “additional training” was required and that the surgeons would receive “updated written surgical techniques”, a “training DVD”, and “knowledge checks” to be completed before they could obtain further supply of the Cup. [16] On November 9, 2009, the appellants sent a letter to Canadian user surgeons in which they advised of the reports of revision surgeries in Europe involving loose Durom Cups. The letter stated that “the most probable root cause for the reported revisions for loose acetabular cups is using a surgical technique which differs from that prescribed in the surgical technique for the Durom Acetabular cup.” They enclosed “updated surgical techniques”, the training DVD, and the “knowledge-check” questionnaire, and said Canadian surgeons would not be supplied with further Durom Cups until they certified to the appellants that they had reviewed and understood the updated instructions and the DVD and had completed the knowledge-check questions. [17] Also enclosed with the letter of November 9 was an “Urgent Field Safety Notice” to Canadian surgeons, which the appellants delivered concurrently to Health Canada and which was subsequently published by Health Canada on December 7, 2009. The notice advised that the appellants had concluded that the “most probable root cause” of the reported failures in Europe was deficient surgical technique. This document fell within the definition of a “recall” in s. 1 of the Medical Devices Regulations (enacted pursuant to the Food and Drugs Act , R.S.C. 1985, c. F-27) and as such it was posted on Health Canada’s Medical Device Recall List from October 2009 to December 2009. [18] The appellants were required to deliver “Medical Devices Problem Reports” to Health Canada in respect of all Canadian revision surgeries. As of September 1, 2010, there had been 33 such reports delivered since March 2008 and others were “in process”. Nineteen of these reports described patient pain in the hip and groin area and eleven referred to Cup loosening and/or absence of bone ingrowth. [19] Also in evidence was an excerpt from a “Correction and Removal Report” dated July 31, 2008 submitted by the appellants to the U.S. Food and Drug Administration. The accompanying letter advised the FDA that the appellants had “received some reports of persistent post-operative pain, dislocation, and loosening of the acetabular implant leading to revision surgery” and said the purpose of the submission was to report their corrective actions. Included in the report was a table listing 51 revision surgeries reported in Medical Device Reports filed between March 16, 2006 and July 15, 2008, of which 45 reported pain, loosening, and/or lack of bone ingrowth as the reason for the revision. [20] The respondents placed in evidence the expert opinion of Dr. Nizar Mahomed, an orthopaedic surgeon with extensive experience in adult hip and knee replacement surgeries. His qualifications were not challenged by the appellants. Dr. Mahomed stated he had reviewed the “Urgent Device Correction” sent by the appellants in July 2008 to American orthopaedic surgeons (described in paragraph 12 above); a published medical article by Long et al, “Failure of the Durom Metasul Acetabular Component”, Clin Orthop Relat Res (2010) 468:400-405; the Urgent Field Safety Notice dated October 13, 2009 sent by the appellants to European orthopaedic surgeons (described in paragraph 15 above); and the “recall listing” on Health Canada’s website indicating a recall for the Durom Cup posted December 7, 2009 (described in paragraph 17 above), copies of all of which he attached to his opinion. [21] Dr. Mahomed opined, Based on the information in these four documents including the excellent peer reviewed published article by Long et al about the performance of the Zimmer Durom Cup, there is clear concern about the clinical performance of this device in the clinical situation. The failure rates reported by Long et al are quite concerning and clearly not in keeping with what would be expected for the clinical performance of an average total hip replacement device. The revision rates quoted in the paper, as well as in Zimmer’s own documents to surgeons in the United States would quote revisio[n] rates ranging from 1 to 15% at one to two years post surgery; this failure rate is far in excess of what would be expected in the performance of an average hip replacement done at this point in time. [22] In reference to the respondents’ emphasis on surgical technique as the cause of the failures, Dr. Mahomed opined as follows: The documents provided point toward surgical technique as the cause of failure for the implants. In the materials provided, including the materials Zimmer United States to the Zimmer Orthopaedic Surgeons, the technique described in that document is not significantly different than what would be described for insertion of a standard uncemented acetabular component. The articles from Long et al highlights the issues of difficulty in adequate insertion and fixation of this device, given its unique geometric construct, particularly the fact that this is not a hemispherical cup but it has multiple radii of curvature making fixations and insertion technically much more demanding and challenging. Given this scenario, it would in my opinion, be the manufacture[r’s] responsibility to provide adequate information and training to surgeons who choose to use this device, in order to obtain optimal clinical performance. Given the unique geometric design of this implant, it would be the manufacturer’s responsibility to highlight changes in surgical technique over the standard technique most surgeons would employ to insert an uncemented acetabular component. Furthermore, as Zimmer in the US moved towards requiring surgeons to complete adequate training prior to further distribution of their implant. This strategy should have been implemented by the manufacturer before allowing clinical use of the device from the outset given the change in decision philosophy of this device. [23] In response, the appellants filed the opinion of Dr. Etienne Belzile, also a well-qualified orthopaedic surgeon with extensive experience in hip replacements, including replacements done with the Durom Cup. Dr. Belzile disagreed with Dr. Mahomed’s opinion. In his view, revisions of the Durom Cup implants would have been dependent on a number of individualized factors unique to each patient. Further, he said, acetabular cups like the Durom Cup can become loose for a variety of reasons having nothing to do with the device itself, including the patient’s post-operative care and activities. Relying on information provided by the appellants, he derived a reported revision rate for Canadian Durom Cup recipients of 0.67% which, in his opinion, was “very low” and “does not present a cause for concern about the safety and effectiveness of this device as used in Canada.” He opined that “no one could state, to a reasonable degree of medical certainty, that these 33 patients shared a common clinical experience.” On reviewing the affidavit evidence given by the respondents, he concluded it could not be said “to a reasonable degree of medical certainty” that they “shared a common clinical experience.” He observed that it appeared to him that Dr. Mahomed “has no actual clinical experience with the Durom Cup” and that his conclusions were based on a review of events in the U.S. without reference to the Canadian clinical experience. Dr. Belzile said it appeared to him the revision rates in Europe and the U.S. were “quite different and not analogous to the Canadian revision rate.” He stated that Dr. Mahomed’s opinion “ignores the plethora of reasons that any implantable medical device, including the Durom Cup, might fail.” [24] Dr. Mahomed replied. He said personal experience with the Durom Cup “does not have a meaningful bearing” on the matter since there are established clinical standards for implants in the published literature. He acknowledged there are multiple reasons for requiring hip replacement surgery, but said the majority of Durom Cup failures are occurring due to significant or persistent pain as a result of implantation of this device and this failure is not the common mode for revision hip surgery in the short post-operative follow-up period as is the case that has been reported for Durom cup. He added it was not reasonable to imply that patient outcome is dependent on post-operative care and activity since established clinical expectations of performance for such a hip implant would not require specific special precautions. He said that since the clinical design and recommendations for use of the Durom Cup are materially the same in all jurisdictions, the lower Canadian reporting rate of failure may represent under-reporting “rather than a unique clinical performance of the Durom Cup in Canada versus the United States.” He repeated his opinion that the early failure rate is a matter of clinical concern and added, “[e]ven if there were only a relatively small number of failures in Canada, as is suggested in Dr. Belzile’s report, this would still be cause for concern” and “the failures of the Durom cup reported in the literature are fundamental to how the device is supposed to function.” The Certification Decision [25] The certification judge correctly noted that the burden on the respondents to show some basis in fact to support the proposed common issues was “not an onerous” one. He concluded the burden had been met. He said the evidence given by Mr. Jones, Ms. Wilkinson, and Ms. McSherry “raises the question of the cause of the failure of the Durom Cup to attach itself to the bone or what is described as the ‘lack of ingrowth.’” He referred to the evidence of “at least” 33 failures of Durom Cup implants in Canada and observed that the appellants’ evidence of the number of suspected failures in Canada did not correspond with the experience in the U.S. and Europe even though “the clinical design and recommendations for use of the Durom Cup are materially the same in all jurisdictions.” He mentioned the appellants’ July 2008 suspension of marketing and distribution of the Cup in the U.S. because of elevated revision rates and the appellants’ announced conclusion that additional instructions and training in surgical technique were necessary. He referred to the similar events in Europe and the “Safety” notices issued by the appellants in Europe and in Canada in the fall of 2009. As well, he noted that the Urgent Safety Notice sent to Health Canada that identified inappropriate surgical technique as the “most probable root cause” of the failures was not conclusive of the cause and that the appellants’ notices made it “clear” that the surgical techniques in use had to be reviewed “as they appear to have been defective.” Further, he found that the appellants’ warning letter to Canadian surgeons was a “recall” of the Durom Cup within the regulatory definition of that word. He concluded, echoing the opinion of Dr. Mahomed, that “there is a clear concern about the performance of the Durom Cup in clinical situtations.” [26] The certification judge rejected the appellants’ submission that, because each implant failure was unique with a multitude of possible causes and because causation must be determined on a patient-by-patient basis, the defect question was not a common issue for all class members. He quoted Harrington v. Dow Corning Corp. , 2000 BCCA 605 at paras. 42-46, 82 B.C.L.R. (3d) 1, leave to appeal ref’d [2001] S.C.C.A. No. 21, to point out that the determination of individual causation and damages is the last step in a product liability action. [27] As for the sufficiency of the evidence of “some basis in fact”, he mentioned the difficulty faced by the respondents in showing a defect at the certification stage when they had not yet had any discovery from the appellants of the relevant aspects of the design and intended function of the Durom Cup, which he described as a “highly technical medical device”, and observed that “it is difficult to see how the plaintiffs could present any more evidence than they have done at this Chambers hearing in support of their allegation that the Durom Cup was defective.” [28] The certification judge referred to the conflicting expert opinions and said he did not have to resolve the conflict because the certification decision was not a decision on the merits. In this regard, he referred to Chalmers v. AMO Canada Company , 2009 BCSC 689 at para. 17, 178 A.C.W.S. (3d) 313, aff’d 2010 BCCA 560, 297 B.C.A.C. 186. [29] Accordingly, he concluded that whether the Durom Cup was defective or unfit for its intended use was a question common to the claims of all class members and that the determination of this question would move the litigation along. [30] Next, the certification judge concluded that whether the appellants breached a duty of care owed was a question common to all class members and did not depend on their individual evidence. He observed, as I understand his reasons, that whether the appellants owed a duty to warn “regarding deficiencies in the surgical technique originally recommended by them as soon as that was discovered by them” would be subsumed in this question. [31] As for the statutory claim, the certification judge began by summarizing the appellants’ position that there was no evidence of any representation ever made to the respondents or to any class member and no evidence that any class member suffered loss or damage as a result of any representation. As well, he noted the respondents’ position that the Business Practices and Consumer Protection Act addresses conduct and representations by a supplier to the world at large in the marketing of its products, rather than to individual consumers. [32] He accepted the respondents’ submission, adopting a passage from Wakelam v. Johnson & Johnson , 2009 BCSC 839 at para. 39, 179 A.C.W.S. (3d) 809, in which the Court said whether a representation was deceptive or misleading does not depend on an individual inquiry but can be litigated without reference to the circumstances of the representative plaintiff or individual class members. [33] He added that the respondents’ claim was also based on the appellants’ failure to state a material fact. In this regard, he noted that the appellants did not publish the “Field Safety Notification” in Canada until December 7, 2009, while they had suspended marketing and distribution in the U.S. in July 2008 and had issued an “Urgent Safety Notice” in Europe in October 2009, and that it remained to be determined how many failed Durom Cups had been implanted in Canadian residents during that intervening period of time. Discussion [34] The appellants submit the certification judge failed to appreciate that whether the Durom Cup was defective and/or unfit for its intended use could not be certified as a common issue unless there was some evidence that the cause of the failures in Canada was a defect in the Cup and some evidence that these defects were common across the class. They note that the respondents pleaded the Cup was defective because it failed to adhere to the surrounding bone but did not plead any causal connection between this outcome and any particular defect. In their submission, it should have been fatal to the certification application that there was no evidence before the certification judge of any specific defect or of any causal relationship between such a defect and the Canadian hip implant revisions identified in the evidence. [35] Similarly, the appellants contend there was no evidence of any particular deficiency in their initially-recommended surgical technique and no evidence of any causal relationship between any such deficiency and the failed Canadian implants. [36] In order to establish liability in negligence, each class member must ultimately prove that a specific defect in the Durom Cup or deficiency in the surgical instructions was a cause of the failure of his or her hip implant. However, proof of a causal connection between a defect or deficiency and an individual plaintiff’s failed implant is, along with damages, the final step in a product liability action: Harrington at para. 46. Causation and damages are individual issues, but proof of a defect in the Cup or a deficiency in the surgical instructions is a substantial and necessary factual link in the chain of proof leading to liability for every member of the class. One or more of the respondents’ allegations of defects and deficiencies must be proven before the question of individual causation can be reached. It follows that proof of a defect in the cup or a deficiency in the surgical instructions is an issue common to all plaintiffs, the resolution of which will move the litigation along significantly. Accordingly, I would reject the submission that the chambers judge erred in certifying question (a) as a common issue without evidence of a specific defect or deficiency and without evidence that specific defects or deficiencies were common to the failed implants of all class members. [37] Next, the appellants contend the respondents failed to establish “some basis in fact” for certification of the common issues. [38] First, in the appellants’ submission, the evidence of events in the U.S. and Europe and of their responses to these events was irrelevant and the certification judge erred in relying on it. They say their investigations established that the problem in both instances was surgical technique rather than anything to do with the Durom Cup itself. They note that there was no evidence that any Canadian surgeons were not employing proper surgical techniques and emphasize their evidence that the “updated” instructions to Canadian surgeons were merely “precautionary”. Thus, they argue, the evidence of events in the other jurisdictions lacked any nexus to Canada that would make such evidence relevant on the certification application. [39] I am unable to accept this submission. [40] To be admissible, evidence must be relevant. In Anderson v. Maple Ridge (District) (1992), 71 B.C.L.R. (2d) 68 at para. 17, [1993] 1 W.W.R. 172 (C.A.), Mr. Justice Wood (as he then was), writing for the Court, described relevance as follows: Evidence is relevant if it is logically probative of either a fact in issue or a fact which itself is probative of a fact in issue. Evidence which tends to make the existence of a fact in issue either more or less probable is logically probative of that fact: see Stephen, A Digest of the Law of Evidence , 12th ed. (London: MacMillan & Co., 1948), art. 1; Cross on Evidence , 7th ed. (London: Butterworths, 1990), p. 51; Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston: Little, Brown & Co.,1898), pp. 264-65. See also, to the same effect, R. v. Watson (1996), 108 C.C.C. (3d) 310 at 323-24, 30 O.R. (3d) 161 (C.A.): Relevance as explained in these authorities requires a determination of whether as a matter of human experience and logic the existence of “ Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “ Fact A.” If it does then “ Fact A” is relevant to “Fact B”. As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation then “ Fact A” is relevant and prima facie admissible. [41] Here, the fact in issue is that the failure of the Durom Cup implants received by class members resulted from a defect in the Cup or a deficiency in the surgical instructions for which the appellants are responsible. It is not disputed that the Durom Cup was intended to adhere to the surrounding bone following implant surgery. Therefore, evidence that it failed to do so in a particular case is, as a matter of human experience and logic, circumstantial evidence that is probative of the fact in issue. Where the implants failed because the Cup did not adhere to the bone is immaterial. That the implants failed because the Cup did not adhere to the bone is relevant because that fact makes it more probable than it would otherwise be that the failures were a result of the appellants’ alleged delicts. [42] Similarly, evidence that the clinical design of the Cup and the recommended surgical technique were materially the same in the U.S., Europe, and Canada, coupled with the evidence that the appellants suspended marketing of the Cup in the U.S. because of elevated revision rates and determined that additional training in surgical technique was necessary in the U.S. and Europe as a result of the elevated revision rates, also provided relevant circumstantial evidence in support of the respondents’ allegations. [43] Relevance is not to be confused with weight. The weight to be afforded relevant evidence is for the trial judge to consider in adjudging the merits of the case. The certification judge is not to assess the merits. Rather, the certification judge needs only to be satisfied that there is a “minimum evidentiary basis” for the common issue. [44] Accordingly, evidence of the events in the U.S. and Europe was relevant and the certification judge did not err in admitting and considering it. [45] The appellants’ second evidentiary objection is that the certification judge erred in admitting and relying on the opinion of Dr. Mahomed because it was based on hearsay statements taken from the article by Long et al and was therefore inadmissible. [46] The appellants rely for this contention on Ernewein v. General Motors of Canada Ltd. , 2005 BCCA 540, 46 B.C.L.R. (4th) 234. Mr. Ernewein claimed that certain vehicles manufactured by the defendant had been negligently designed such that they created a risk of harm to consumers in the event of side-impact collisions. In support of his application to certify the action as a class proceeding, Mr. Ernewein filed an affidavit of a lawyer to which was exhibited a report prepared by an agency of the U.S. government following an investigation of the safety of the vehicles in side-impact collisions. The report supported Mr. Ernewein’s case and the certification judge relied on it in certifying the action. However, the report was offered in evidence as proof of its contents without any authentication or any attempt to prove by admissible evidence that the statements in the report were true or the conclusions were reliable. This Court observed on appeal that information that does not meet the usual criteria for admissibility of evidence is not admissible for purposes of a certification hearing (at para. 31). Thus, the report was adjudged hearsay and inadmissible as evidence of the truth of its contents. [47] In this case, however, the evidence on which the respondents relied was the expert opinion of Dr. Mahomed. The Long article merely provided one of the bases of Dr. Mahomed’s opinion. It was not offered as proof in itself of the truth of its contents. Accordingly, Ernewein is materially different on its facts and is of no assistance to the appellants. [48] The criteria for admissibility of expert opinion evidence are that the expert must be properly qualified, the opinion must be relevant to a fact in issue, the opinion must be necessary to assist the trier of fact to draw a correct inference when the subject matter is likely outside the knowledge and experience of the trier of fact, and the opinion must not otherwise be excluded by an exclusionary rule of evidence: R. v. Mohan , [1994] 2 S.C.R. 9 at 20-25. Dr. Mahomed’s opinion satisfied these criteria and was therefore admissible. [49] Dr. Mahomed did not express an opinion on the respondents’ contentions that the Durom Cup was defective and that the surgical instructions were deficient. These contentions go to the merits of the respondents’ claims and, at the appropriate time, would call for an expert opinion to the standard of “a reasonable degree of medical certainty” or its equivalent, the standard to which Dr. Belzile adverted. Rather, Dr. Mahomed’s opinion was that, given the information he reviewed, including the Long article, there was reason to be concerned about the efficacy of the Durom Cup and the surgical instructions provided with it. Dr. Mahomed did not comment on the truth of any of the statements made or on the quality of any opinion expressed or conclusion reached in the Long article. He characterized the article as an “excellent peer reviewed published article” and, as such, its publication was a fact supporting his conclusion that there was reason for concern. [50] Moreover, even if Dr. Mahomed’s opinion was based in part on hearsay, that is no objection to its admissibility. Experts must as a matter of practical necessity rely on second-hand source material for their opinions. Proponents of expert opinions cannot be expected to prove independently the truth of what the experts were taught by others during their education, training, and experience or the truth of second-hand information of a type customarily and reasonably relied upon by experts in the field. Accordingly, the degree to which an expert opinion is based on hearsay evidence is a matter to be considered in assessing the weight to be given the opinion: R. v. Wilband , [1967] S.C.R. 14 at 21, [1967] 2 C.C.C. 6; R. v. Lavallee , [1990] 1 S.C.R. 852 at 896, 899-900, 55 C.C.C. (3d) 97. [51] Assessing the weight of the evidence was within the province of the certification judge. This Court will not substitute its view of the weight of the evidence and will not interfere with the certification judge’s assessment in the absence of an error in principle or unless he was clearly wrong. In my view, neither ground for interference was shown here. [52] Accordingly, I would not accede to the appellants’ submission that the certification judge erred in admitting and relying upon Dr. Mahomed’s opinion. [53] Finally, the appellants submit the certification judge erred in certifying the statutory common issue since there was no evidence that the appellants committed any deceptive acts or engaged in any deceptive practices in British Columbia. Clearly, the Business Practices and Consumer Protection Act , a provincial statute, can have no application to deceptive acts and practices occurring outside the territorial boundaries of this province. [54] The respondents allege the July 22, 2008 press release issued by the appellants, which claims a “99.5 percent survivorship with the Durom Cup (222 patients with three-year follow-up)” in Sweden, was deceptive and misleading because, in Dr. Mahomed’s opinion, the published revision rates quoted in the Long paper and those set out in the appellants’ documents sent to U.S. surgeons demonstrated a “failure rate [that] is far in excess of what would be expected in the performance of an average hip replacement done at this point in time.” However, there is nothing in the evidence to suggest that this representation was published anywhere other than in the United States. The respondents identify no similar statement made in British Columbia and I therefore agree with the appellants that the respondents have shown no deceptive or misleading statement that would be actionable under the statute. [55] However, the respondents point out that a “representation” under s. 4(3)(b)(vi) includes a failure to state a material fact if the effect is misleading. The certification judge found there was a basis in fact for the statutory common issue on this ground. As I have already noted, he said the appellants did not publish the “Field Safety Notification” in Canada until December 7, 2009, while they had suspended marketing and distribution in the U.S. in July 2008 and had issued an “Urgent Safety Notice” in Europe in October 2009, and that it remained to be determined how many failed Durom Cups had been implanted in Canadian residents during that intervening period of time. [56] That a failure to state a material fact can ground a claim of deceptive acts or practices under s. 4 has been confirmed since the hearing of this appeal: see Stanway v. Wyeth Canada Inc. , 2012 BCCA 260 at para. 80, 34 B.C.L.R. (5th) 85. [57] The appellants also argue that the statutory common issue could not be certified in the absence of some basis in fact that the respondents relied on the alleged deceptive acts and practices. They cite a passage from Loychuk v. Cougar Mountain Adventures Ltd. , 2012 BCCA 122 at paras. 59-60, 31 B.C.L.R. (5th) 23, in support of this argument. However, Loychuk was not an action brought under the statute. Rather, the appellants, who were injured in an accident on the respondent’s zip-line, claimed damages for the respondent’s negligence and they invoked the statutory provisions in an attempt to avoid the effect of liability waivers they had signed. In the passage in question, the Court noted that the appellants could not resist the operation of the waivers on the basis of allegedly deceptive statements unless they showed they had relied on the statements. These remarks must be considered in their particular context and they are of no assistance to the appellants for present purposes. It may be that class members who claim compensatory damages pursuant to the Business Practices and Consumer Protection Act will have to prove reliance to recover them. However, that question does not arise at the certification stage. All that is required at this stage is a common issue the resolution of which will move the action along. I am satisfied that the certification judge did not err in certifying the statutory common issue for trial on that basis. [58] For the reasons I have set out, I would dismiss the appeal. “The Honourable Mr. Justice K. Smith” I agree: “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Kahnapace, 2013 BCCA 45 Date: 20130122 Docket: CA039658 Between: Regina Respondent And Martha May Kahnapace Appellant Before: The Honourable Mr. Justice Tysoe The Honourable Madam Justice Neilson The Honourable Madam Justice Bennett On appeal from:  Supreme Court of British Columbia, June 17, 2011 ( R. v. Kahnapace , Vancouver Registry 23674) Oral Reasons for Judgment Counsel for the Appellant: S.J. Rauch Counsel for the Respondent: M.T. Ainslie Place and Date of Hearing: Vancouver, British Columbia January 22, 2013 Place and Date of Judgment: Vancouver, British Columbia January 22, 2013 [1] NEILSON J.A.: On June 17, 2011, following a trial before a judge and jury, Ms. Kahnapace was convicted of the second degree murder of Donald Wall, her former common law husband. She appeals that conviction arguing, among other things, that the trial judge erred in his instructions to the jury on the mental element of the crime and on the impact of intoxication on her mental state. [2] The Crown agrees the trial judge erred in charging the jury in these areas, and that these errors are cumulatively of such significance that they cannot be remedied by the curative proviso in s. 686(1)(b)(iii) of the Criminal Code . It therefore concedes the appeal must be allowed and a new trial ordered. [3] For the following reasons, I am satisfied the Crown’s concession is appropriate. Background [4] As there is to be a new trial I will not deal with the facts in detail. Briefly, on November 29, 2005, following a day of drinking alcohol, taking cocaine, and arguing in the apartment they had shared, Ms. Kahnapace stabbed Mr. Wall in the chest with a knife. The knife punctured his heart. Assistance was summoned promptly, but he died of his wound several days later. [5] Ms. Kahnapace was initially tried before a judge and jury in June 2007. The sole issue was whether the Crown had established she had the requisite intent for second degree murder, or whether she was guilty of the lesser offence of manslaughter. The jury convicted her of second degree murder. Ms. Kahnapace successfully appealed that conviction to this Court, and a new trial was ordered: 2010 BCCA 227, 255 C.C.C. (3d) 342 [ Kahnapace #1 ]. [6] At that trial, which is the basis for this appeal, Ms. Kahnapace admitted stabbing Mr. Wall and conceded she was guilty of manslaughter. She again maintained, however, that the Crown had not established the requisite intent for second degree murder, either because of her alcohol and drug consumption, or because Mr. Wall had provoked her within the meaning of s. 232 of the Criminal Code and she was acting in the heat of the moment. She was again convicted of second degree murder. Discussion [7] In conducting review of a trial judge’s charge an appellate court must not examine whether the judge recited a particular formula, but instead should consider the general sense that the judge’s words conveyed to the jury. It must look to the charge as a whole in the context of the entire trial and consider its overall effect: R. v. Daley , 2007 SCC 53 at paras. 30-31, 58, [2007] 3 S.C.R. 523. [8] The Crown’s case against Ms. Kahnapace focussed on the secondary definition of murder in s. 229(a)(ii) of the Criminal Code : 229. Culpable homicide is murder (a) where the person who causes the death of a human being ... (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not ... [9] Thus, the Crown had to prove not only that Ms. Kahnapace intended to cause Mr. Wall bodily harm, but also that she knew that stabbing him was likely to cause his death, and she was reckless as to whether death would result from her actions. This is a subjective intent, and the Crown was obliged to prove that Ms. Kahnapace actually intended to cause bodily harm that she knew or actually foresaw was likely to cause death: Kahnapace #1 at paras. 25-26. [10] As well, it was undisputed that there was evidence of intoxication which, if accepted, could have impaired Ms. Kahnapace’s ability to foresee the consequences of her actions, and thus preclude a conviction for second degree murder. [11] The Crown concedes that, in instructing the jury, the trial judge erred in three respects. Ironically, these errors mirror some of those that led to an order for a new trial in Kahnapace #1 . [12] First, the Crown concedes the trial judge, in his charge and in his other communications to the jury, erred in law by repeatedly using an abbreviated description of the intent for second degree murder required under s. 229(a)(ii). Instead of setting it out fully, he used the phrase “intent to wound” to describe this intent. At no time did he define this term for the jury, or explain that it was a convenient abbreviation for the more extensive intent that the Crown must establish. Of particular significance, this error was evident in both his instructions on intent, and on the impact of intoxication on Ms. Kahnapace’s state of mind. [13] In R. v. Dove (#1) , 2004 BCCA 338, 187 C.C.C. (3d) 506, this Court commented adversely on the practice of using abbreviations for a critical element in s. 229(a): [23]      I am also sympathetic to the trial judge’s desire to condense his charge following such a lengthy trial. In my view, however, the use of abbreviations for the critical element the jury had to decide was a form of false economy which had the potential to jeopardize the entire process. While stating and restating the full intent under s. 229(a) of the Code is somewhat cumbersome, I think the repetition of the elements of the second intent, in particular, is important in bringing home to the jury the essential elements of the second intent. Abbreviating this aspect of the charge, where intent is the most critical issue in the trial, poses a potential danger which can, and should, be avoided. [14] The impact of such unwarranted abbreviation was also dealt with in Kahnapace #1 , where a similar error was made: [34]      The next issue arises in the trial judge’s recharge to the jury on the link between the evidence of intoxication and the intent for murder (see para. 11 above). There, the trial judge erroneously described the secondary intent for murder under s. 229(a)(ii) in an abbreviated form by stating that “murder is not committed if Martha Kahnapace lacked the required intent, that is that she intended to kill Donald Wall or that she intended to cause him bodily harm that was likely to cause death.” This instruction erroneously makes no reference to an essential element of s. 229(a)(ii) being that of the accused’s knowledge or subjective foreseeability of the likely consequence of death or risk of death. In the next passage (in para. 11 above) the trial judge then instructed the jury to consider “this” intent (referring to the abbreviated version of s. 229(a)(ii)) in deciding what effect, if any, the evidence of intoxication may have had “on [Ms. Kahnapace’s] state of mind ... at the time that the unlawful act occurred, that is the stabbing”. This instruction repeats the error by instructing the jury to consider the evidence of intoxication in reference to the abbreviated instruction on the secondary intent for murder and failing to link the evidence of intoxication to the element of knowledge or subjective foreseeability in s. 229(a)(ii). [15] I appreciate the trial judge did give the jury a copy of s. 229(a)(ii), and occasionally described the required intent in full in his instructions. I am nevertheless satisfied that, when the charge is considered as a whole, his pervasive use of the abbreviated description of intent presents a significant danger that the jury may have collapsed the issue of intent to the sole question of whether Ms. Kahnapace intended to wound Mr. Wall, and may not have appreciated that the Crown also had to prove that she subjectively knew or foresaw that his death was a likely consequence of her action, and she was reckless as to whether death occurred. [16] The second error arises from the trial judge’s repeated reference to the common sense inference that a person usually intends the natural consequences of their acts as a “presumption” in his charge to the jury, and his failure to properly instruct them on how to apply that inference, in light of the evidence concerning Ms. Kahnapace’s consumption of alcohol and cocaine. [17] While the term “presumption” was used in this context historically, the Supreme Court of Canada in R. v. Robinson, [1996] 1 S.C.R. 683 at para. 62, 105 C.C.C. (3d) 97, and R. v. Seymour , [1996] 2 S.C.R. 252 at para. 20, 106 C.C.C. (3d) 520, rejected this term, and found it preferable to refer to a common sense inference that juries may, but not must, draw. That Court recently affirmed this view in R. v. Walle , 2012 SCC 41, 284 C.C.C. (3d) 153: [63]      In my view, instructing a jury on the common sense inference serves a useful purpose. It provides the jury with a marker against which to measure the rather amorphous concept of intent. A proper instruction also sounds a cautionary note. The jurors are admonished that the inference is permissive, not presumptive, and that before acting on it, they must carefully consider the evidence that points away from it. That is important. Left to its own devices, a jury might too readily turn to common sense for an answer, especially in cases like the present one, where common sense might suggest that anyone who fires a gun into a person’s chest at close range would surely be aware of the consequences. [18] Furthermore, where there is evidence of intoxication, Seymour and Robinson hold that the trial judge must provide instructions that draw a direct link between the effect of intoxication and the common sense inference. In Kahnapace #1, this Court referred to the relevant parts of these decisions: [39]      The trial judge further erred in law in instructing the jury on the link between the evidence of intoxication and the use of the common sense inference. Where the defence of intoxication is put to the jury, Seymour has stated that two further instructions are required: (i) that the evidence of intoxication may rebut the common sense inference, and (ii) if the jury has a reasonable doubt about the accused’s intention it must not apply the common sense inference. At para. 23 of Seymour the Court described the requirements as follows: It is common knowledge that a significant degree of intoxication may affect a person’s state of mind and thus the ability to foresee the consequences of actions. It is, therefore, essential for a trial judge to link the instructions given pertaining to intoxication to those relating to the common sense inference so that the jury is specifically instructed that evidence of intoxication may rebut that inference. See Robinson , at para. 65. A trial judge is obliged to ensure that the jury understands two important conditions: (1) the reasonable common sense inference may be drawn only after an assessment of all of the evidence, including the evidence of intoxication; and (2) the inference cannot be applied if the jury is left with a reasonable doubt about the accused’s intention . [Emphasis added.] ... [41]      Here, the trial judge did not provide the specific instructions on the direct link between the effect of intoxication and the common sense inference as outlined in Seymour and reiterated in Daley . The failure to do so was said in R. v. Robinson , [1996] 1 S.C.R. 683 to amount to reversible error: [65]      The respondent correctly argues, in my view, that where there is some evidence of intoxication, a trial judge must link his or her instructions on intoxication with the instruction on the common sense inference so that the jury is specifically instructed that evidence of intoxication can rebut the inference . In both the model charges set out in MacKinley and Canute , this approach is taken. This instruction is critical since in most cases jurors are likely to rely on the inference to find intent. Moreover, if no instruction is given, then a confused jury may see a conflict between the inference and the defence and resolve that conflict in favour of their own evaluation of common sense (see Korzepa at p. 505). Therefore, an instruction which does not link the common sense inference with the evidence of intoxication constitutes reversible error. In this case, the trial judge’s failure to make this linkage constitutes reversible error. [Emphasis added.] [19] In Kahnapace #1 , the Court concluded the trial judge’s use of the word “presumption”, and her failure to draw the necessary link, constituted two of the cumulative errors that led to the order for a new trial. [20] The trial judge’s charge in this case contained similar errors. While he occasionally referred to the “common sense inference”, he more frequently used the terms “common sense presumption”, or “provisional presumption”. This leads to a concern that the jury may have erroneously presumed what Ms. Kahnapace intended when she stabbed Mr. Wall, instead of properly assessing her actual intent, and then deciding whether they could draw the common sense inference, a matter that lay in their discretion only after they had assessed all of the evidence. [21] As well, the trial judge failed to instruct the jury at all on the second element required by Seymour , that they could not rely on the inference if they had a reasonable doubt about Ms. Kahnapace’s intention. [22] The third error on which there is consensus is the trial judge’s failure to properly instruct the jury on how Ms. Kahnapace’s consumption of alcohol could have affected her ability to subjectively appreciate and foresee the consequences of her actions. [23] This was a case in which the evidence established advanced intoxication. The law is clear that in such circumstances the jury must be told about the potential effect of intoxication on the accused’s ability to foresee the natural consequences of her actions, in particular that the bodily harm inflicted was likely to cause death. The Supreme Court gave guidance on the appropriate charge to be given in such circumstances in Daley at paras. 51-53. As well, in Kahnapace #1 this Court affirmed the importance of instructing the jury on the link between intoxication and each element of intent under s. 229(a)(ii): [37]      Although the trial judge summarized for the jury the Crown’s address that did include a link between the evidence of intoxication and Ms. Kahnapace’s ability to foresee the natural and probable consequences of her actions, this was not sufficient, in my view, to overcome the trial judge’s omission in her instructions to make the link between the evidence of intoxication and Ms. Kahnapace’s knowledge or subjective foreseeability of the likely consequences of her conduct. I am also not persuaded that this omission is rectified by the “functional” approach to jury instructions as suggested by the Crown. While the language employed to instruct a jury need not follow the exact words of the relevant case authorities, it must still convey the meaning of the required directions. That did not occur with this instruction as it did not make the required link between the evidence of intoxication and each of the elements of the intent under s. 229(a)(ii), namely that the accused meant to cause bodily harm, that she knew was likely to cause death, and was reckless whether death ensued or not. [24] Here, the trial judge’s use of the abbreviated phrase “intent to wound” precluded an instruction that complied with that principle. This segment of his charge exemplifies the difficulty this presented in describing the interrelationship between the required intent and intoxication: In other words, members of the jury, you must not convict unless you are sure that the defendant, when she did the act, intended specifically to wound. In deciding whether she intended, you must take into account the evidence that she may have been drunk and/or affected by drugs . If you think that because she was so intoxicated by drink and drugs that she did not intend or may not have intended then you must find her not guilty of that specific offence. But if you are sure that despite her drunkenness and the effect of the drugs she did intend to specifically wound then this part of the offence is proved against her. As I said earlier, a drunk or drugged intent is still an intent. So I think – this is the reason why I think you should deal with the defence of intoxication first, because if you accept Ms. Kahnapace’s evidence that she did not intend specifically to wound then that ends the matter . [Emphasis added.] Conclusion [25] I am satisfied the errors of law identified by the parties are significant and cannot be saved by the curative proviso in s. 686(1)(b)(iii) of the Code : R. v. Khan , 2001 SCC 86 at paras. 29-31, [2001] 3 S.C.R. 823. I would therefore set aside Ms. Kahnapace’s conviction and order a new trial. That result renders it unnecessary to deal with the balance of her grounds of appeal. [26] It is most unfortunate that Ms. Kahnapace must face a third trial due to errors in the charge to the jury that so closely resemble the errors that led to an order for a new trial in Kahnapace #1 . This pattern raises the question of whether trial judges may be relying too heavily on outdated precedents in preparing their charges, instead of taking advantage of the contemporary model jury charges available in both CRIMJI: Canadian Criminal Jury Instructions (4 th ed. 2005) and Canadian Judicial Council, Model Jury Instructions (2012) (online). Reference to the suggested instructions in either of those sources may well have avoided these errors. [27] I would allow the appeal from conviction and order a new trial. [28] TYSOE J.A.: I agree. [29] BENNETT J.A.: I agree. [30] TYSOE J.A.: The appeal is allowed and a new trial is ordered. “The Honourable Madam Justice Neilson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Li v. Newson, 2013 BCCA 29 Date: 20130124 Docket: CA039525 Between: Jiuwen Li Respondent (Plaintiff) And Jason Robert Newson Appellant (Defendant) Before: The Honourable Chief Justice Finch The Honourable Madam Justice Saunders The Honourable Mr. Justice Groberman On appeal from:  Supreme Court of British Columbia, November 5, 2011 ( Li v. Newson , New Westminster Docket M107521) Counsel for the Appellant: M.H. Wright Counsel for the Respondent: R. Marcoux M.J. Neathway Place and Date of Hearing: Vancouver, British Columbia January 9 th , 2013 Place and Date of Judgment: Vancouver, British Columbia January 24 th , 2013 Written Reasons by: The Honourable Chief Justice Finch Concurred in by: The Honourable Madam Justice Saunders The Honourable Mr. Justice Groberman Reasons for Judgment of the Honourable Chief Justice Finch: [1] The defendant appeals from the judgment of the Supreme Court of British Columbia following a trial by judge and jury, at which the jury held the defendant liable to the extent of 75% for a motor vehicle accident which occurred on 16 April 2007, and awarded damages to the plaintiff which totalled about $640,000, which after reduction for the plaintiff’s contributory negligence of 25%, came to something in excess of $450,000. [2] On this appeal, counsel for the defendant contends that the plaintiff failed to prove any fault on the defendant’s part, and that holding him 75% to blame for the accident amounts to “a grave injustice”, and a perverse verdict. [3] The defendant also challenges the damages awarded for loss of future earning capacity, assessed by the jury at $330,000, and for the cost of future care, which the jury assessed at $45,000. [4] The motor vehicle accident occurred at the intersection of Boundary Road and Vanness Avenue in Burnaby at about 6:20 p.m. on 16 April 2007.  The plaintiff was riding a bicycle eastbound on Vanness, crossing the intersection towards the northeast corner of Vanness and Boundary.  The defendant was proceeding north on Boundary. [5] The intersection is governed by an electric traffic control signal.  As the defendant approached the intersection, he changed lanes from the centre northbound lane into the curb lane.  He passed two lanes of stopped or slowing traffic to his left, just as the light for northbound traffic turned green, and he proceeded into the intersection at a speed some witnesses estimated to be about 50 kilometers per hour. [6] The defendant struck the plaintiff and his bicycle near the north crosswalk on Vanness, when the plaintiff was about three-quarters of the way across Boundary. [7] The plaintiff sustained serious injuries as a result of the collision.  As is not uncommon in cases of this nature, there was conflicting evidence as to exactly when the light changed to green for northbound traffic, and the positions of the bicycle and the defendant’s vehicle at relevant times. [8] What is clear is that on all the evidence it was open to the jury to find that the plaintiff was well into the intersection when the defendant entered on the green light, and that the defendant was passing stopped or slowing traffic to his left. [9] The defendant’s factum is replete with references to some of the evidence favourable to the defence case.  However, the issue as to liability must be decided on the basis of whether there was any evidence on which a properly instructed jury could make the findings it did.  In my view there is no doubt that there was such evidence. [10] Counsel for the defendant has not identified any error in the charge by the judge on the issue of liability.  In my respectful view, that part of the charge fully and fairly explains the applicable principles and legal rules to be applied. [11] There is no basis on which this Court could interfere with the jury’s finding of negligence on the part of the defendant, or on its apportionment of fault.  The appeal as framed by counsel for the defendant is essentially an invitation for this Court to retry the facts, which of course we may not do. [12] Similarly, the appeal against the award for loss of future earning capacity is without merit.  The plaintiff suffered many serious injuries in this accident including compression fractures to two vertebrae, mild traumatic brain injury with postconcussive symptoms, including headaches, dizziness and problems with concentration and memory. [13] Although the plaintiff appears to have shown a positive attitude throughout, and returned to work part-time three months after the accident, he was still not working full-time almost two years later.  His employer has not considered him for important roles he would otherwise have been eligible for, because of concerns that he may not be capable of handling longer days and more stress because of his limitations. [14] The plaintiff was 41 years of age at the time of the accident and held a master’s degree in business administration. [15] The defendant has not identified any error in the judge’s charge to the jury on the assessment of damages for loss of future earning capacity, and there was evidence on which the jury could properly base its award. [16] I would dismiss the appeal against this head of damage. [17] As to the award for cost of future care, Mr. Marcoux, counsel for the plaintiff, said that although there was evidence that the plaintiff would require care in the future, he candidly conceded that there was really no evidence as to its cost or duration. [18] I do not consider that the award for cost of future care can be sustained, and I would set it aside. [19] Except for the cost of future care issue I would otherwise dismiss the appeal.  As almost no time was spent on the cost of future care question during oral argument, and scant attention was given to it in both parties’ factums, I would dispose of the appeal, as indicated, with costs to the respondent. “The Honourable Chief Justice Finch” I Agree: “The Honourable Madam Justice Saunders” I Agree: “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Schooner, 2013 BCCA 40 Date: 20130125 Docket: CA040180 Between: Regina Respondent And Benjamin Paul Sheldon Schooner Appellant Before: The Honourable Mr. Justice Donald The Honourable Mr. Justice Chiasson The Honourable Madam Justice Garson On appeal from: Provincial Court of British Columbia, August 7, 2012 ( R. v. Schooner , Victoria Docket 157147-1) Oral Reasons for Judgment Counsel for the Appellant: J. Blazina Counsel for the Respondent: M. Street Place and Date of Hearing: Vancouver, British Columbia January 25, 2013 Place and Date of Judgment: Vancouver, British Columbia January 25, 2013 GARSON J.A.: Introduction [1] The appellant, Benjamin Paul Schooner, seeks leave to appeal his one year jail sentence for being unlawfully at large. If leave be granted, he appeals his sentence on the grounds that it is unfit. [2] Mr. Schooner pleaded guilty to being unlawfully at large contrary to s. 145(1)(b) of the Criminal Code , R.S.C. 1985, c. C-46. The Crown proceeded by way of indictment. The maximum sentence is two years. [3] Mr. Schooner argues on appeal that a fit sentence is three to four months or, alternatively, a sentence concurrent to the sentence he is already serving. He argues that the sentencing judge also erred in basing his sentence, in part, on a finding that he was engaged in criminal activity at the time of his arrest. The Crown contends that the sentence was appropriate given Mr. Schooner’s flagrant disregard of the conditions of his parole. The Crown also disputes the argument that the sentencing judge based his sentence on unproven allegations of criminal activity. Circumstances of the offence [4] Mr. Schooner was sentenced to three years in prison on September 30, 2009, arising from his conviction for two counts of robbery and two counts of attempted robbery. On February 8, 2010, he was sentenced to three months in jail consecutive to his 2009 sentence on conviction for assaulting a peace officer, (presumably a prison guard). He was released from jail in December 2011 on parole. On December 22nd his parole was revoked for using drugs. He was re-released on parole on January 9, 2012, in Victoria. The conditions of his parole included one that he must reside in Victoria at the Salvation Army, where he was required to participate in a substance abuse program. [5] On January 9, 2012, he met with his parole officer and was advised of the conditions of his parole. He signed a form indicating his understanding of the conditions of his parole. [6] On January 17, 2012, he failed to return to the Salvation Army residential facility. A warrant was issued for his apprehension. [7] On February 12, 2012, he was arrested in Nanaimo in the company of known criminals. An unloaded gun was found hidden in the trunk of the vehicle in which he was arrested. No charges were laid in connection with the gun because the officers could not prove who had possession of the gun. [8] On June 7, 2012, Mr. Schooner was sentenced by a Provincial Court judge to one year in jail, consecutive to any other sentence he was serving. Discussion [9] Mr. Schooner says that the sentencing judge erred in finding that he was engaged in criminal activity when he was unlawfully at large, and erred in imposing a sentence which falls outside the range of sentences for similarly situated offenders and similar offences. [10] The Crown focuses its argument in its factum on the question of whether a sentencing judge may consider on sentencing, as an aggravating circumstance, the surrounding criminal behaviour that was not the subject of the charge. The Crown says that it is permissible for a judge to do so. For the reasons I explain in a moment, I do not think the Crown’s argument on that point is dispositive of this appeal. On this appeal, the question of whether a judge may properly consider criminal activity not charged is beside the point. The error alleged by Mr. Schooner is that the judge erred in considering the extraneous criminal activity in the face of Mr. Schooner’s denial of that activity or at least the extent of it. [11] On sentencing the Crown argued that: Mr. Schooner was found in a car that was a “known crime vehicle”; he was with individuals who are “criminals”; there was a handgun hidden in the trunk with ammunition available; and that Nanaimo police believed Mr. Schooner was involved in gang activity. The Crown read into evidence at the sentencing hearing a police report which stated that, “[Mr.] Schooner has gang ties to both Nanaimo and Vancouver and is believed to be involved in gang hits and drug rips in both cities”. [12] Mr. Schooner did not agree with some of the facts alleged by the Crown on sentencing. He contended that he had travelled to Campbell River to see his parents. He admitted that he was using drugs at the time he was arrested in Nanaimo. He admitted that he joined those individuals (with whom he was found at the time of his arrest) for the purpose of obtaining drugs. He denied knowledge of the gun. Importantly, he denied that he was tied to these individuals for any other nefarious purpose. [13] As to his parole breach, he argued on sentencing that he had no prior record of “administration of justice type offences” and that this was the first offence of its kind on his record. At sentencing his counsel said “he’s a young man, struggling to reintegrate after serving a sentence, and struggling with a parole system that was new to him.” [14] The judge was skeptical about Mr. Schooner’s explanation for his presence in the car. At para. 6 the judge said: [6] It is said that he wanted to go see his parents. I do not have anything that corroborates that, and even accepting that, it must be taken into account the circumstances in which he was found. He was found in a vehicle with individuals who clearly were of interest to the police for their involvement in criminal activity. It is hard to accept that all of that was just fortuitous and just happening to get into the wrong motor vehicle. The Crown is generous in describing it as not innocent activity. So the circumstances of the offence are very significant and they are very serious. [15] Despite Mr. Schooner’s young age and substance abuse issues, the judge described his criminal behaviour as unrelenting: [7]        I will deal with the totality principle as argued by Mr. Russell in dealing with the offender’s background. The offender’s background starts in 2003 in which he received a time served sentence and probation for 15 months. Two months later, a mischief offence and probation for just over a year later till the beginning of 2005. In 2006, break and enter with intent, four months, and two months under supervision in the community and probation for 12 months. Then in April 2008, robbery times three, 14 months, and seven months under supervision in the community on each charge. Less than two months later, possession for the purposes of trafficking, carrying a concealed weapon, 80 days, and 40 days under supervision in the community. Then we have him coming into the adult world and the criminal record that he has amassed I have already referred to. So here is an individual whose criminal behaviour is unrelenting. [16] The judge clearly considered that a sharp punishment was necessary to deter Mr. Schooner from continuing on his criminal path. The judge concluded it was necessary to separate Mr. Schooner from society for one year: [8]        I take into account the totality principle. I take into account that there comes a time, however, in which individuals must be separated from society because their ability to abide by the rules and the laws of our society simply do not exist. He does not wish to abide by them. There are consequences to everyone's actions and everyone's decisions. Consequences for Mr. Schooner in the circumstances of this situation, taking into account everything, is a sentence of incarceration for one year consecutive to any sentence which he is serving. [17] The first issue on appeal is whether the judge erred in finding Mr. Schooner was involved in criminal activity and whether the judge did in fact find that Mr. Schooner was involved in criminal activity, when the facts surrounding the scope of that involvement were in dispute on sentencing. No evidence was called on the sentencing. In the absence of a formal hearing, it is an error in principle for a judge to resolve a conflict on the facts alleged at sentencing to the detriment of the offender without an evidentiary basis for doing so: see s. 723(1) of the Criminal Code ; R. v. Gardiner , [1982] 2 S.C.R. 368, 68 C.C.C. (2d) 477; R. v. St.-Coeur (1991), 43 Q.A.C. 141 at para. 38; R. v. Cardinal , 2007 ABCA 46 at para. 8, 404 A.R. 3. The Crown does not dispute this proposition. [18] It is my view of the judge’s comments in paragraph 6 that he did accept much of what was alleged by the Crown and sentenced Mr. Schooner on the basis of his conclusion that the offence was “very serious.”  It is true that Mr. Schooner admitted that his presence in the vehicle was to purchase drugs but I understand the sentencing judge to have accepted the broader facts alleged by the Crown concerning gang associations. I acknowledge as the Crown says that there is some ambiguity in paragraph 6 of the reasons for judgment. But taken in the context of the Crown’s unproven submissions of criminal activity I would have to conclude the judge did take those aggravating circumstances into account. As I have said, the burden of proof is on the Crown to establish those “very significant” and “very serious” facts referred to by the judge at paragraph 6. It was not the burden of the accused to disprove those facts. [19] Thus, in conclusion, I agree with Mr. Schooner that the judge erred in relying on unproven and controversial facts in imposing sentence. As I have already said, in the absence of findings as to the conflicting facts, the factual dispute must and ought to have been resolved in favour of the accused. [20] Once the facts are resolved in favour of Mr. Schooner, the second issue that arises on this appeal is whether, despite the error in principle, the one year sentence is nevertheless fit: R. v. Johnson (1996), 112 C.C.C. (3d) 225, 84 B.C.A.C. 261. [21] Mr. Schooner relies on the following cases in support of his argument that the sentence was excessive. Of the cases cited, I briefly summarized those I find helpful: R. v. Addley , 2008 BCCA 460, 262 B.C.A.C. 82: prison break, accused was 27 had a criminal record of 40 convictions including 18 offences for non-compliance with the justice system. On appeal sentence reduced to 30 months. R. v. Gartner , 2010 BCCA 600: charged with unlawfully at large for failure to appear to serve the balance of her intermittent sentence on which two days remained. Sentence reduced from six months to 30 days. Numerous prior breaches. R. v. Kelly , [1983] B.C.J. No. 692: accused was arrested on the street but ran away from the officer. Very long record including four similar convictions. Even in 1983 the court of appeal observed that a one year sentence for an escape of this kind is an unusually long sentence. The court upheld the sentence because of the special circumstances. R. v. Jackson , 2010 BCCA 330, 289 B.C.A.C. 157: three months for resisting arrest and three months for escaping custody to be served concurrently with each other. R. v. Shackleton , [1978] B.C.J. No. 199: two months for being unlawfully at large from jail. R. v. Hodson , [1978] B.C.J. No. 196: nine months for being unlawfully at large. Prior record of similar offences. R. v. Pelly (1996), 113 Man. R. (2d) 209: nine months for a prison break without weapons. (I note prison break is punishable by a maximum sentence of 10 years.) R. v. Abraham , 2008 MBPC 14, 226 Man. R. (2d) 314: Unlawfully at large - and in that time committed 15 armed robberies. One year consecutive with a series of other more serious charges with lengthy sentences of 18 years. [22] The Crown relies on several cases for the proposition that the applicable range is one month to one year. The majority of the cases relied upon by the Crown, and also some by the defence, date to the 1970s and early 1980s. In my view these cases are not particularly helpful. In any event, they do not support the Crown’s assertion that an appropriate sentence is one year: see R. v. Akerman , [1977] B.C.J. No. 62 (C.A.); R. v. Allan , 1983 CarswellBC 1897 (C.A.); R. v. Blain , [1979] B.C.J. No. 592 (C.A.); R. v. Johnson , [1979] B.C.J. No. 671 (C.A.); R. v. W.R.C. , [1976] B.C.J. No. 696 (C.A.). [23] Mr. Schooner was 22 at the time of his sentence. Aside from his lengthy juvenile record, followed by several adult convictions, we are told nothing of his background. Neither was the sentencing judge. None of the cases cited by either the accused or the Crown bear great similarity to this case, but I do conclude from those cases that a one year sentence for being unlawfully at large, in circumstances similar to this offender, is outside the range for this type of non-compliance with the justice system type offence. There are no special circumstances that would compel a judge to sentence the accused in this case to one year. Moreover, the judge did not take into account the youth of the accused and the sentencing principle of rehabilitation. [24] As I said, the sentencing judge erred in principle by basing the sentence (in part) on unproven controversial facts. In my view, this error resulted in the imposition of a demonstrably unfit and overly long sentence. Thus notwithstanding the deferential standard of review afforded decisions of sentencing judges ( R. v. Nasogaluak , 2010 SCC 6, [2010] 1 S.C.R. 206), I am of the view that this sentence ought not to be upheld on appeal. In considering a fit sentence, I do note the fact that Mr. Schooner was given two opportunities on parole, and breached his parole conditions both times. I also consider his record of previous but not similar offences. In my view, four months is sufficient to reflect the necessary deterrent purpose of his sentence. Disposition [25] I would grant leave and impose a sentence of four months consecutive to any sentence Mr. Schooner is otherwise serving. [26] DONALD J.A.: I agree. [27] CHIASSON J.A.: I agree. [28] DONALD J.A.: Leave to appeal is granted. The appeal is allowed. The sentence is reduced to four months consecutive. “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Violette, 2013 BCCA 31 Date: 20130125 Docket: CA037731 Between: Regina Respondent And Jean Joseph Roland Violette Appellant RESTRICTION ON PUBLICATION: AN ORDER HAS BEEN MADE PURSUANT TO S. 486.5(1) OF THE CRIMINAL CODE THAT PROHIBITS ANY INFORMATION THAT COULD IDENTIFY A VICTIM OR A WITNESS FROM BEING PUBLISHED, BROADCAST, OR TRANSMITTED IN ANY MANNER. Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Chiasson The Honourable Madam Justice Neilson On appeal from: Supreme Court of British Columbia, November 13, 2009 ( R. v. Violette , 2009 BCSC 1557, Vancouver Docket No. 23500) Counsel for the Appellant: K. Beatch R.P. Thirkell Counsel for the Respondent: J. Duncan Place and Date of Hearing: Vancouver, British Columbia October 22, 2012 Place and Date of Judgment: Vancouver, British Columbia January 25, 2013 Written Reasons by: The Honourable Madam Justice Saunders Concurred in by: The Honourable Mr. Justice Chiasson The Honourable Madam Justice Neilson Reasons for Judgment of the Honourable Madam Justice Saunders: [1] Mr. Violette applies for leave to appeal sentence and, if leave be granted, appeals from a sentence of six years’ incarceration imposed by Mr. Justice Romilly on November 13, 2009, comprising four years for extortion contrary to s. 346(1.1)(b) of the Criminal Code and two years consecutive for possession of two prohibited handguns, contrary to s. 95(1) of the Code. He was convicted on these counts by a jury and acquitted on a third count, extortion for the benefit of, at the direction of, or in association with a criminal organization, being the East End Charter of the Hells Angels, contrary to s. 346(1.1)(b) and s. 467.12. [2] The convictions were registered on July 13, 2009, after a lengthy trial of the appellant and three co-accused, Messrs Punko, Potts and Lising, on a 28-count indictment. [3] The appellant contends the learned judge erred: 1.       in principle by sentencing him for an offence of which he was acquitted; 2.       in principle by relying upon evidence not properly before the court on the sentencing proceedings; 3.       in principle by giving weight to aggravating factors without first making the necessary findings of fact; 4.       by failing to give adequate consideration to his Aboriginal heritage; and 5.       by imposing a sentence that is unfit. [4] To support the fourth ground of appeal, the appellant seeks to adduce new evidence revealing his Aboriginal heritage, which was not known to him at the time of sentencing and so was not before the trial judge. It is convenient to deal with both this application to admit new evidence and the fourth ground of appeal, before turning to the other grounds of appeal seriatim . [5] The considerations for admission of new evidence are set out in Palmer v. The Queen , [1980] 1 S.C.R. 759 at 760, 50 C.C.C. (2d) 193: 1.       could the evidence, with due diligence, have been adduced at trial? 2.       is the evidence relevant in that it bears upon a decisive or potentially decisive issue? 3.       is the evidence credible in the sense of being reasonably capable of belief? and 4.       is the evidence such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result? [6] The appellant says he meets all these criteria. That is, he says he did not know of his Aboriginal heritage and so, with due diligence, could not have adduced it at the sentencing hearing; the evidence is credible; the evidence is relevant; and the evidence could be expected to have affected the result because it bears upon s. 718.2(e), as elucidated in R. v. Gladue , [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385, and R. v. Ipeelee , 2012 SCC 13, [2012] 1 S.C.R. 433. [7] The material presented on the application, strictly speaking, is not evidence because it is not presented in a sworn form, either in an affidavit or as an exhibit to an affidavit, as is required. As we said at the hearing of the appeal, were the form in which the “evidence” is presented the only bar to its reception, we would provide the appellant with an opportunity to present it in proper form. It is not the only bar, however, in my view; it appears to me that the Palmer test is not met. In particular, the fourth requirement, that the “evidence” could reasonably be expected to affect the result, is not established, because it does not meet the reasons that consideration must be given, under s. 718.2(e) of the Criminal Code , to Aboriginal heritage. Those reasons are explained by Justice LeBel in Ipeelee : [59]      ... Section 718.2( e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders ( Gladue , at para. 37). When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts ; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection ( Gladue , at para. 66). ... [83]      As the Ontario Court of Appeal goes on to note in Collins , it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86: Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government’s treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated. Furthermore, the operation of s. 718.2( e ) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence . [Emphasis added.] [8] In this case, the appellant does not assert any personal background, or any systemic factors, that bear upon his appearance as an accused person. There is no material before the court which would suggest he has suffered deprivation because of Aboriginal heritage, nor is there connection between this circumstance and his culpability, or anything to suggest the sentencing objectives should be influenced by this newly discovered factor. It simply cannot be said, in my view, that the evidence sought to be adduced could have a bearing upon the sentence imposed for these offences. Accordingly, I would dismiss the application to adduce new evidence. I also would not accede to the fourth ground of appeal. [9] I turn now to the other issues, starting with a description of the offences. [10] The incident that gave rise to the extortion offence occurred on January 20, 2005, but started before that date from information received by the appellant on January 18, 2005. The judge described the appellant as a full patch member of the East End Charter and a committed member of the Hells Angels Motorcycle Club. About a month prior to the incident, the appellant warned-off Mr. Louie, the complainant in the extortion offence, from using paraphernalia associated with the Hells Angels Motorcycle Club or the East End Charter – in the vernacular, the complainant received a verbal “tune-up”. The judge found that on January 18, 2005, the appellant was advised that Mr. Louie was associating himself with the Hells Angels Motorcycle Club while selling drugs. The trial judge found the appellant addressed Mr. Louie’s behaviour by saying he would “deal with it”, that the appellant and another male made enquiries and were informed that Mr. Louie had shown his Hells Angels Motorcycle Club belt to an individual while saying he was with the chapter, that in intercepted phone conversations the appellant said that he wanted to “take care of [Mr. Louie’s behaviour] pretty quickly”, that the appellant met with the individual who reportedly had been shown the appellant’s Hells Angels Motorcycle Club belt, that after the meeting the appellant both called and met with associates and planned to meet Mr. Louie on Burnaby Mountain, and that one associate said words to the appellant to the effect that Mr. Louie “deserves the beating he is about to get”. [11] As to the incident, the judge found: [96]      Horizons Restaurant is at the top of the mountain with a parking lot in front.  Upon arrival Violette protested about that location as he felt they didn’t “wanna be fuckin’ poundin’ him out in the parkin’ lot”.  Violette decided they would get Louie to stop half way down the road. [97]      When Louie arrived, Violette, Plante and Bryce Jr. got out of Plante’s vehicle.  Plante testified they went towards Louie’s vehicle which was parked about five feet away.  As soon as Louie got out of his vehicle, Violette slapped, punched and kicked him.  Plante agreed that Violette slapped Louie three times. [98]      At some point Louie unintentionally stumbled towards Violette; Plante tried pulling Louie back and they both fell down.  Violette kicked Louie and Plante was inadvertently kicked from behind by Bryce Jr. trying to kick Louie.  Plante got up, but Louie stayed on the ground.  Violette got into Plante’s vehicle, Bryce Jr. got in behind him and Plante stood there, made sure that Louie was getting up.  Plante told him to get rid of his support belt.  Louie did not have the belt and in fact was not wearing any belt at the time.  As a result Louie’s pants had fallen down.  Plante told Louie to pull his pants up. [99]      Plante got back in his vehicle.  Plante noticed that Louie had blood on his face.  Plante didn’t see Bryce Jr. strike any blows to Louie. [12] The judge set out in his reasons on sentencing portions of the transcript of the intercepted dialogue during the incident. The portions include multiple notations of “thumping sound”, “smack sound”, “slapping sound”, protestations by Mr. Louie and multiple notations of “crying” attributed to Mr. Louie: [100]    The beating can be heard in an intercept from January 20, 2005 at approximately 7:00 p.m.  The following is from the transcript of that intercept: JB:       Hey, you comin’ up the hill? GL:      ... JB:       You turn already? JV:       Okay, let’s go, Mike. (Movement sounds) (Beeping sounds) JB:       Okay... bye. (Movement sounds) (Thumping sound) JB:       Oh shit. (Thumping sound) ... JB:       Ah, I can’t get out. Ah- (Sound of zipper) (Thumping sound) (Pause) JV:       What I fuckin’ tell ya about that huh? GL:      ... didn’t do nothin’. JV:       Huh?  What the fuck ...- (Smack sound) GL:      I didn’t do nothin’. JV:       Yeah, you fuckin’ liar cocksucker- GL:      Oww, fuck. JV:       ... you fuckin’ cocksucker. GL:      Fuck I didn’t say nothin’. ... Porno I never said anything. JV:       Fuck you. GL:      I never said anything. (sound of vehicle passing) GL:      I didn’t do it Porno. JV:       Fuck you, you didn’t. GL:      I didn’t oh (crying) JV:       Fuck you you didn’t. (slapping sound) GL:      (crying) ... I never said any... JV:       Get up.  Get up before I fuckin’ (Slap noise)... Get the fuck up.  I ain’t fuckin’ done with you. GL:      (crying) I never said anything. JV:       Fuck you you didn’t. GL:      I never (crying) said any ... JV:       Let me tell you somethin’.  Next time you flash your- GL:      (crying) JV:       -fuckin’ clothes around and your belt- GL:      (crying) JV:       -and you send a nigger over to see Marcus, I’ll tell you right now, you take that belt off, you get the fuck outta town.  Let’s get outta here. MP:      You got the belt on right now? GL:      No, I don’t. MP:      Let’s see it.  Let’s see. GL:      No. MP:      ...pull your pants up... GL:      I don’t. MP:      You got that belt on right now? GL:      No, I don’t. (Thumping sound) GL:      I don’t have (Thumping sound) anything on. (Thump sound) MP:      Well, when ya do...throw all your stuff in a bag...and take it to the house... GL:      Okay. MP:      You got that? JV:       I don’t wanna see you hangin’ around. (Sound) (Thump sound) JV:       Hey, I told ya, don’t be talkin’ to people like that. MP:      Call Jonathan. JV:       I warned you about that. ... MP:      Throw all your stuff in a bag and call Jonathan. JV:       Let’s go. MP:      (sighs) JV:       And you know what, you better forget what happened. MP:      Let’s, let’s get outa here. JV:       Let’s go. [13] The firearms charges arose from the discovery, upon a search of the appellant’s home, of a “fanny pack” containing two firearms. One was fully loaded and there was ammunition in the fanny pack for the other. The two firearms were operable. Both firearms are prohibited under the Criminal Code , and they were not registered. Further, the appellant did not have a firearms licence. Discussion [14] The enquiry on a sentence appeal starts with examination of the reasons on sentencing to determine if there has been an error of principle, or an error in the application of relevant factors by failing to consider a factor or over-emphasizing a factor. Even where there is such an error, however, the ultimate question for this court is whether the sentence imposed is unfit: R. v. M. (C.A.) , [1996] 1 S.C.R. 500 at 564-5, 105 C.C.C. (3d) 327; R. v. Johnson (1996), 112 C.C.C. (3d) 225 at para. 37, 84 B.C.A.C. 261. [15] The appellant contends, as his first ground of appeal, that the judge erred by imposing a sentence on him for an offence of which he was acquitted, extortion on behalf of a criminal organization. [16] In making this submission, the appellant refers to the structure of the reasons for sentencing, and their content. He complains that most of the first 23 pages are devoted to “background”, focussed upon the evidence adduced at trial concerning the history and character of the Hells Angels Motorcycle Club, its relationship to rival gangs in Canada, the organizational attributes of the Hells Angels Motorcycle Club including its membership and the role of chapters such as the East End Charter, the use of Hells Angels Motorcycle Club insignia, and the background of the appellant with the East End Charter. [17] The appellant refers to portions of the reasons on sentencing that describe the assault of Mr. Louie and its connection to the Hells Angels, and says the judge found both that the appellant committed the offence on behalf of the Hells Angels, and that the organization is a criminal organization. This amounts, he says, to a conclusion at odds with the jury’s acquittal on the offence of extortion for the benefit of or in association with a criminal organization. The appellant refers in particular to these paragraphs of the reasons on sentencing: 1.         The Hells Angels Motorcycle Club (a)        HAMC:  “One Percenters” [7]        The evidence about the [Hells Angels Motorcycle Club] came from Lemieux (qualified by me as an expert), Plante and the intercepted communications of the accused. [8]        Lemieux defined an “Outlaw Motorcycle Gang” as a group of individuals who band together and do not want to abide by society’s laws; these clubs sometimes self-apply the label of “one percenters”.  The difference between a regular motorcycle club and a “one percenter” club is that a regular club exists to drive motorcycles and enjoy the camaraderie, whereas a “one percenter” club’s main purpose is to conduct criminal activity and gain control over the area in which they are located in order to conduct that activity. [9]        Lemieux stated that the Hells Angels is one of these “one percenter” clubs. [18] And from the judge’s discussion of the appellant’s background with the East End Charter: [74]      From the evidence adduced at this trial, there could be little doubt that the assault of Louie on January 20, 2005, resulted from action taken by Violette in order to “protect” the [Hells Angels Motorcycle Club] name and reputation. ... [19] And further from the judge’s discussion of aggravating factors: (h)       Action on Behalf of a Group [148]    Violette was a full patch member of the [East End Charter of the Hells Angels] and took this violent action against Louie on behalf of this group, with the assistance of two junior associates of the group and under sanction of the group’s president. [149]    Members of a group can cause far greater injury to society than can individuals acting alone.  Society must protect itself from such groups’ actions by demonstrating that the rule of law will prevail. [150]    Therefore, further aggravating the sentence for the extortion offence are factors such as the fact that Violette acted on behalf of a group known as the [East End Charter of the Hells Angels], ... [20] The appellant compares these passages to the judge’s instructions to the jury on the meaning of “for the benefit of the criminal organization”, and submits that by these passages, the judge found the appellant’s actions were “to protect the ... name and reputation” of the Hells Angels Motorcycle Club, which he says is the same as saying the appellant’s actions were “for the benefit of” or “in association with” the Hells Angels. Further, he says the judge concluded the Hells Angels Motorcycle Club, or the East End Charter, or both, are criminal organizations. These conclusions combined, he says, cannot coexist with the jury’s acquittal of him on the criminal organization count. [21] Responding, the Crown observes that the sentencing judge was required to make findings of fact for the purposes of sentencing (s. 724(1) of the Criminal Code ), and in doing so, was not obliged to give the accused the benefit of the most favourable view of the evidence: R. v. Gauthier (1996), 108 C.C.C. (3d) 231, 78 B.C.A.C. 85. The Crown says the comments as to which the appellant complains are simply a review of essential background that was relevant to the appellant’s motivation to commit the extortion, and do not represent an “end run” around the jury’s verdicts. [22] It is clear that the judge may not hold, as an aggravating fact, the commission of an offence on which the appellant has been acquitted. The issue here is whether the judge did so in his reasons on sentencing. [23] The charge of which the appellant was acquitted was laid under ss. 346(1.1)(b) and 467.12 of the Criminal Code . [24] Section 346(1.1)(b) is the offence of extortion simpliciter of which the appellant was convicted. The extra elements in the charge on which he was acquitted are found in the other provision referred to in the count, s. 467.12. That section provides: 467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. (2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization. [25] Criminal organization, referred to in s. 467.12, is defined in s. 467.1(1): “criminal organization” means a group, however organized, that (a) is composed of three or more persons in or outside Canada; and (b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence. “serious offence” means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation. [26] The acquittal of the appellant represents the jury’s conclusion that the Crown had not proved beyond a reasonable doubt both that the offence of extortion (an indictable offence) was for the benefit of or at the direction of or in association with either or both of the Hells Angels Motorcycle Club or the East End Charter, and that the Hells Angels Motorcycle Club or the East End Charter, or both, was a criminal organization. [27] I accept the appellant’s submission that the judge found the appellant had committed the offence of extortion for either or both of the Hells Angels Motorcycle Club or the East End Charter. The issue is whether he also found that either or both of those organizations, in the words of s. 467.1(1), “has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the ... receipt of a material benefit ...”, and if so, whether he applied that conclusion as an aggravating factor. [28] The judge started his reasons on sentencing with the observation that the jury had acquitted on the criminal organization offence: [6]        Due to the decision of the jury on the criminal organization offence, it is imperative that I deal with some of the evidence that was led on this trial about the aspects of the group known as the EEHA.  In order to deal with the background to the conviction of Violette on the extortion offence, it is also essential that I canvass some of the testimony of Plante, Jacques Lemieux (Lemieux) and the various intercepted communications of the accused relating to the nature and characteristics of the Hells Angels Motorcycle Club (HAMC) and the EEHA.  This has already been done in great detail in my charge to the jury (marked as an exhibit in these proceedings); nevertheless, I intend to refer to a summary of those characteristics.  In these reasons it is also necessary for me to canvass Violette’s position in the EEHA. [29] The judge noted the evidence of Mr. Lemieux that the Hells Angels was a club whose “main purpose” is to conduct criminal activity. While some might see this reference to Mr. Lemieux’s evidence as a finding of fact by the judge that the main purpose of the Hells Angels Motorcycle Club or the East End Charter, or both, was to engage in serious offences as is required to meet the definition of criminal organization in s. 467.1(1), it seems to me the judge’s reasons on sentencing stop short of such a finding, both as to the degree to which he accepted Mr. Lemieux’s evidence and as to finding the full character of a criminal organization under s. 467.1(1) was proved. More importantly, one then must travel to the judge’s explanation for imposing the sentence and consider the use he made of the characterization of these two organizations. The judge’s only discussion on this is in his discussion of aggravating factors in paras. 148 to 150, replicated above. On my reading of the reasons on sentencing, particularly those paragraphs, the judge was influenced by the fact of the two organizations only to the extent he found the offence of extortion was committed for a group. Such behaviour, he properly noted in para. 149, is to be abjured because group actions can cause great injury. [30] It is apparent that the judge found the appellant’s membership in these two motorcycle organizations distasteful, but that assessment is not equivalent to imposing sentence for an offence under s. 467.12, as contended by the appellant. Further, in commenting negatively on the two organizations to the extent he did, the judge was responding to the submission made for the appellant that the appellant’s membership simply demonstrated his enthusiasm for motorcycles. I would not accede to this ground of appeal. [31] In his second ground of appeal, the appellant says the judge erred in principle by relying upon evidence not properly before the court in the sentencing proceeding. He contends that the evidence of Mr. Lemieux, who provided expert evidence at trial on the structure and organization of the Hells Angels Motorcycle Club, the East End Charter, and gangs generally, ought not to have been considered in the sentencing proceedings because it was admitted for the single purpose of proving the count on which Mr. Violette was acquitted. He complains, further, that there was no suggestion that the court would rely upon the evidence in passing sentence. He notes that although he was unrepresented at trial, he was represented at the sentencing hearing, and says his counsel should have been alerted to the prospect Mr. Lemieux’s evidence would feature prominently in the sentencing outcome. [32] With respect, it seems to me that the submission that Mr. Lemieux’s evidence was not available for consideration at the sentencing hearing is contrary to s. 724(1) of the Criminal Code : 724. (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender. (2) Where the court is composed of a judge and jury, the court (a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. [33] On my reading, s. 724 plainly provides authority for the judge to consider Mr. Lemieux’s evidence. Further, it was reasonable for the judge to take note of several aspects of that evidence, including the pre-eminence of the reputational interest of the two organizations and the role of insignia and various club accoutrements to them, as that evidence explained the encounter between the appellant and Mr. Louie on January 20, 2005. [34] Insofar as the appellant complains that his counsel was not advised that this evidence may bear upon the sentence, I observe that the evidence had been tested at trial, and the transcript of the proceedings was available. The Criminal Code makes clear the material that may be used by the judge on sentencing, and it includes the evidence said by the appellant to be beyond the judge’s notice. In my view, there was no lack of procedural fairness. [35] It seems to me it would have been highly artificial for the sentencing to proceed without reference by the judge to this evidence. I would not accede to this ground of appeal. [36] The third ground of appeal challenges the judge’s characterization of the attack on Mr. Louie as vicious and brutal. The appellant says this characterization must mean the judge accepted that Mr. Louie was injured, in spite of the appellant’s challenge to that conclusion. Because he challenged that allegation, he says s. 724(3)(e) of the Criminal Code required the judge to determine whether an injury was inflicted beyond a reasonable doubt. The appellant says the judge failed to decide the issue of injury, and so was precluded from characterizing the assault as brutal and vicious when discussing aggravating factors. [37] I do not agree the judge erred in this fashion. The judge had before him some evidence of injury, and he was correct in his summary of that evidence. The judge demonstrated an understanding that police surveillance reported no visible external injuries on Mr. Louie the following day, and contrary to the submission of the appellant, the judge did not expressly find Mr. Louie suffered an injury. Further, he was not required to do so before commenting on the nature of the attack. He had before him both the transcript and audio recording of the assault, demonstrating multiple sounds of thumping and smacking. He knew that Mr. Louie had been lured to a somewhat isolated location, and that it was dark when the incident occurred. In other words, he understood Mr. Louie had been ambushed, and been set upon. It was for the judge, having heard all the evidence, to assess the seriousness of the incident. In my view, it is not open to this court to interfere with his characterization of the encounter between the appellant, his associate, and Mr. Louie. [38] Under the same ground of appeal, the appellant challenges the judge’s findings of aggravated facts with respect to the firearms offence. He refers to the comment of the judge that “there is an indication that these handguns were not in Violette’s possession for an innocent purpose”, and contends the judge erred in failing to decide whether that was so beyond a reasonable doubt, and thus erred in finding that the purpose for which the appellant possessed the guns was an aggravating factor. He points to an exchange with the court wherein it was posited that the bulletproof vest could be useful in paintball. This complaint addresses this passage of the reasons on sentencing in respect to the firearms offence: [162]    As in Lising, there is an aggravating factor in this case.  During the search of Violette’s home, the police found body armour in the same room as the handguns.  As suggested by the Crown, this is an indication that these handguns were not in Violette’s possession for an innocent purpose. [39] In the context of the entire reasons, I read this as a conclusion that there was not an innocent purpose for possession of the firearms. This is a reasonable finding, given not only the presence of the body armour, but also the prohibited status of the firearms, the manner in which they were packed, and the appellant’s lack of a firearms licence. There was also no suggestion in the evidence that the intended use was benign. I see no error in this reference to an aggravating factor in relation to the firearms offence. [40] As his last ground of appeal, the appellant says the sentence imposed is unfit, and asks us to substitute a sentence in the range of 18 months on the extortion offence and 12 months on the firearms offence, for a global sentence of 30 months in place of the global sentence of six years. He refers to his strong letters of reference, his successful business career and his prospects for continued successful employment, and urges this court to substitute time served in lieu of a further period of incarceration. [41] We have been referred to several sentencing cases for the offence of extortion: R. v. Cromwell , 2007 BCSC 601; R. v. Bohoychuk , [2005] M.J. No. 92 (Q.B.); R. v. McAninch (1994), 53 B.C.A.C. 149; R. v. Garfield , 2007 BCCA 300; and R. v. Saumier , 2008 BCCA 473. This collection involves cases ranging from nine months’ incarceration ( Cromwell ) to three years’ incarceration ( McAninch, Saumier ). In Garfield , this court upheld a sentence of two years’ incarceration and 14 months’ incarceration for two counts of extortion (to be served consecutively) involving discipline activity of a “crack ring” that was more violent than the activity here, but committed by a youthful first offender with cognitive and intellectual difficulties. In McAninch, this court upheld a three-year sentence imposed on each of one count of assault with a weapon and one count of extortion, to run concurrently. The assault, which caused serious injury, was to further private collection of a debt. [42] In Saumier , the judge imposed a sentence of three years for extortion, two years consecutive for possession of a loaded firearm, and six months concurrent on a second firearms offence, for a global sentence of five years, which was then adjusted down to take account of pre-trial custody. The extortion was of a customer who had purchased cocaine from Saumier in the past and was known by Saumier to have recently purchased a vehicle. Saumier intimidated the customer into signing papers transferring the vehicle to him. Madam Justice Newbury, for the court, made these observations: [13]      Mr. Garson on behalf of the Crown notes that the crime of extortion has become the subject of increased societal concern in recent years, as reflected by the fact that the maximum sentence is now life imprisonment. I agree that this fact does make some of the older cases to which we were referred less helpful than more recent ones. The Crown submits as well that a dichotomy between extortion cases involving violence and those not involving violence does not properly reflect the broader set of factors that the court is required to consider in sentencing, and that McKinnon J. in this instance implicitly considered those principles - denunciation, deterrence, the separation of offenders from society, rehabilitation, reparation and a promotion of a sense of responsibility in offenders. He found that denunciation and deterrence were most important in this instance, given Mr. Saumier's record, his past convictions for disobeying court orders and other undertakings given to the court, and what Mr. Garson described as his attitude to convictions - as simply a cost of doing business. As for rehabilitation, I have already noted the sentencing judge's skepticism that Mr. Saumier had “any interest in that direction”. As I read his reasons, it was because of these factors that McKinnon J. arrived at a sentence that was in the upper range of extortion cases in which violence or organized crime have not featured. [14]      In my view, given the deference to which the sentencing judge is entitled, it cannot be said that the court below erred in imposing an unfit sentence on the extortion charge. ... [16]      As for the totality principle, given that the three years imposed on the extortion count was a fit sentence, and that, as the defence conceded, two years was also a fit sentence on the firearm charge under s. 95(1) of the Criminal Code , I am not persuaded that the sentence in its totality was excessive. [43] The circumstances of the offence of extortion can vary greatly, and thus so can the range of sentences. None of the cases just referred to bear the same mix of factors as is present here. In this case, the judge considered the following to be aggravating factors: the offence involved infliction of violence; there was evidence of some injury; the extortion was planned and premeditated, engaged the conscription of others to help, and involved luring the victim to the location; the location was a dark, remote place where assistance “would purposefully be harder” to obtain; the beating would have been worse but for the chance passing of a vehicle; the victim did not resist, which is a measure of the intimidation factor; the extortion was done on behalf of the East End Charter of the Hells Angels; there was a “businesslike impersonal attitude” to the crime; and the appellant was the leader in the extortion. Of particular concern in this list of aggravating factors is the group purpose aspect of the offence, the factor at the centre of the first ground of appeal. The judge’s observations on this are entirely correct. Criminal behaviour undertaken to advance a collective’s pride, reputation, or business is opposite to order in a civilized community, and fully justifies moving the sentence here to a somewhat higher level than has been applied in the cases mentioned earlier. Even considering the mitigating factors referred to by counsel for the appellant, it does not appear to me that a sentence of four years is unfit in this case. [44] Nor, in my view, is a sentence of two years on the firearms offence outside the appropriate range: see Saumier and R. v. Jarsch , 2007 BCCA 189. [45] In conclusion, there is no proper basis, in my view, on which to interfere with the sentence imposed. I would give leave to appeal sentence, but dismiss the appeal. “The Honourable Madam Justice Saunders” I AGREE: “The Honourable Mr. Justice Chiasson” I AGREE: “The Honourable Madam Justice Neilson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Morrison v. Van Den Tillaart, 2013 BCCA 48 Date: 20130128 Docket: CA039687 Between: Merle Thomas Morrison Appellant (Plaintiff) And Tony Van Den Tillaart, Susan Van Den Tillaart, William E. Maddox, and Andrea Brace as Registrar of the Kamloops and Nelson Land Title Districts Respondents (Defendants) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Lowry The Honourable Mr. Justice Harris On appeal from:  Supreme Court of British Columbia, February 10, 2012 ( Morrison v. Van Den Tillaart , Kamloops Registry S44495) Oral Reasons for Judgment Counsel for the Appellant: J.G. Frame Counsel for the Respondents Tony and Susan Van Den Tillaart: K.G. Burnham Place and Date of Hearing: Vancouver, British Columbia January 28, 2013 Place and Date of Judgment: Vancouver, British Columbia January 28, 2013 [1] HARRIS J.A.: This appeal arises out of a dispute about the correct location of the boundary between two adjacent lots located alongside the shore of Shuswap Lake. A little background is required to set the issue on appeal in context. [2] The lots were created as Lots B and C by subdivision in 1951. In rough terms, Lot C lies to the north of Lot B. The lake lies to the west of the lots. An easement runs across Lot B to the lakeshore and turns north to reach Lot C, thereby providing access to Lot C. [3] There is a cabin on what has generally been understood to be Lot C. The original cabin predates the subdivision. After subdivision the boundary of the lots was generally understood to run close by the cabin to its south. The cabin has been subsequently renovated and enlarged, but not in a way that would have encroached on Lot B. [4] Mr. Morrison bought Lot B in 1993. In 2007, he commissioned survey work from a surveyor, Mr. Sansom. Mr. Sansom produced a “posting plan” based principally on calculations derived from the original Reference Plan (5558) that had been deposited in the Land Registry Office in connection with the subdivision (the “Lewall Plan”). The result of the posting plan was startling. It concluded that the historical property line, which previous owners had accepted, was inaccurate and Lot B actually extended 100 feet further to the north, taking in the house and part of the garage of the current owners of Lot C, the Van Den Tillaarts. [5] In response, the Van Den Tillaarts retained a different land surveyor, Mr. Maddox, to review the Sansom Plan. Mr. Maddox made extensive investigations, including arranging an on-site meeting with previous owners. In the course of this meeting, Mr. Maddox was told where the previous owners believed a surveyor’s pin had been located. Mr. Maddox was directed to a specific area very near and south of the cabin. After probing, he found a square hole the size of a survey pin. He found nearby what he considered to be an old (certainly pre-1959) survey pin leaning against a tree. Mr. Maddox found that the pin fitted inside the hole and was satisfied that the hole was a monument establishing the boundary, even though it was found where one would not ordinarily expect to find a survey pin. [6] Mr. Maddox also concluded that the original Reference Plan contained glaring errors and was demonstrably inaccurate in many respects. [7] As a result of his investigations, Mr. Maddox prepared a new plan (the “Maddox Plan”), which, in effect, located the boundary where it has always been understood to be before the matter was thrown in doubt by the Sansom Plan. The Maddox Plan was submitted for registration with the Land Title Office. Mr. Sansom, upon review of the Maddox Plan, declined to defend his own plan and confirmed that he supported the Maddox Plan. It has not yet been registered, the Surveyor General concluding the matter should be settled by the court. [8] Mr. Morrison refused to accept the Maddox Plan and started the current action. Mr. and Mrs. Van Den Tillaart filed a counterclaim alleging that Mr. Morrison had blocked the easement. [9] Mr. Justice Dley found as a fact that the Maddox Plan accurately identified the boundary and dismissed Mr. Morrison’s claim. He further found that Mr. Morrison had blocked the easement and ordered him to clear it and not interfere with access to Lot C. [10] Mr. Morrison appeals against both of these conclusions. He alleges three errors. First, that the trial judge made a palpable and overriding error in finding that Mr. Maddox found an original survey monument. Second, in failing to give effect to the intentions of the original parties to the subdivision. Third, in placing the onus on Mr. Morrison to show that he was not blocking the access easement to Lot C. [11] Mr. Morrison submits that this case is “about whether in British Columbia the location of a property boundary can be established by longstanding reputation.”  He contends that the trial judge made a palpable and overriding error in finding that Mr. Maddox had found an original survey monument. He submits, moreover, that the boundary could not be established by Mr. Maddox without relying on the Lewall Plan for dimensions and measurements. [12] The appellant puts his position that the trial judge made a palpable and overriding error in finding that Mr. Maddox found the original survey pinhole near but south of the cabin in paragraphs 59-61 of his factum: 1. At paragraph 53, the trial judge concluded that: The critical evidence was the monument, being the original survey pinhole found near the south-east corner of the cabin. The location of that pinhole was confirmed by the prior owners. The evidence of Mr. Fuller is particularly compelling, since he worked on the construction of the cabin within a year or two of the subdivision being created. He saw the survey pins which were in the same area as the pinhole found by Mr. Maddox. Those same pins were seen by Mr. Schmidt. 2. In the above cited passage, the trial judge conflates three distinct distances from the cabin to the boundary: a) 2 feet according to Fuller; b) between 3 and 5 feet according to Schmidt; and c) 5.18 feet according to Maddox. It is possible that Fuller and Schmidt are referring to the same location when Schmidt puts the distance at around 3 feet. It is clear that Schmidt and Maddox are referring to the same distance when Schmidt agrees the Maddox’s placement of the post (at 5.18 feet) during the onsite meeting. It is however, not possible that what Fuller saw at 2 feet is the same location as the pinhole found by Maddox at 5.18 feet. The original post cannot be at two different locations. It cannot be at both 2 feet and 5.18 feet south of the cabin. 3. Having accepted Fuller’s testimony, the only conclusion open to the trial judge was that the pinhole found by Maddox was not the original survey pinhole. The trial judge’s conclusion that the object seen by Fuller was at the same location as the pinhole found by Maddox is an obvious (palpable) error. [13] I am unable to accept these submissions. The fact that the trial judge found the evidence of Mr. Fuller to be compelling does not mean that he must accept every last scintilla of it. The trial judge was well aware of the inconsistencies in his evidence and dealt with them. At paragraphs 19 and 20 of his reasons, he accepted that Mr. Fuller had seen the survey stakes (and I emphasize that he saw more than one stake) separating the lots in 1951 and had worked on a renovation of the cabin in 1951 or a very short time later with his father (who had subdivided the property) and care was taken in the renovation not to cross the boundary. The judge found that Mr. Fuller was “fully cognizant of the boundary”. After noting the inconsistency in his evidence about whether the boundary was 6 feet or 22 inches from the cabin he said: “While that evidence is not consistent, it is beyond any doubt that the cabin was clearly within the boundary of Lot C. Whether it was within 22 inches or six feet is not fatal to Mr. Fuller's evidence. There was only one cabin on Lot C and while it was close to the boundary line, it most certainly was not some 100 feet onto Lot B.” [14] In my view, that finding is unassailable on appeal. Standing alone it is sufficient to support the dismissal of the action. If it were the only evidence of where the boundary line was, the trial judge would have been entitled to accept it. Whatever uncertainty may remain about the direction or location of the boundary, the boundary did not take in 100 feet of Lot C. [15] Moreover, I do not think that the judge made any error in finding that the hole found by Mr. Maddox was an original survey pinhole and, accordingly, a “monument” on which he was entitled to rely to locate the boundary. The trial judge is entitled to weigh the evidence. It is apparent that he was aware of the different estimates given by various previous owners of where they thought the survey pin near the cabin should be found. The discrepancies in the various estimates are, in the scheme of things, trivial. The previous owners present were able to direct Mr. Maddox to an area about a metre square. There he found a hole the size of a survey pin. Nearby, he found an old survey pin of a type used before 1959. The pin fit in the hole. Mr. Maddox concluded that he had found a monument setting out the location of the boundary near the corner of the cabin. [16] The trial judge accepted Mr. Maddox’s opinion, as he was entitled to do. The trial judge accepted that Mr. Maddox had provided the only reliable evidence of the boundary’s location. He found that Mr. Maddox had conducted a thorough investigation using the hierarchy of evidence generally recognized by surveyors, that his conclusions were supported by Mr. Sansom who had reviewed his work, and that there was no evidence to the contrary. It is unnecessary to detail the deficiencies in the Lewall Plan that were catalogued by the trial judge. He was entitled to reject it as unreliable and inaccurate, as Mr. Maddox had done. The evidence demonstrates it was rife with errors. I am satisfied that among the many errors are ones that are material to the specific issues before the trial judge. [17] I do not accept the characterization of this case as being about whether a boundary can be established by long standing reputation. The critical findings were that the pinhole was a survey monument marking the boundary. Other evidence supported that conclusion. That evidence included the evidence of previous owners who had seen the survey pins marking a boundary to the south of the cabin. The finding that the pinhole found by Mr. Maddox was in the same area as the pins seen by Mr. Fuller and prior owners is unassailable. This is not a matter of reputation, it is a finding based on historic evidence about the location of survey pins that was later corroborated by findings in the field. [18] It is worthwhile to stress too that other evidence supported the location of the boundary where Mr. Maddox placed it. Other survey pins had existed and been seen by previous owners. They had been lost likely because of road building as the trial judge found, or as a result of flooding and work at the lake shore. For example, Mr. Schmidt bought Lot C in 1980. His evidence was that when he bought the lot there were two survey pins marking the boundary, one close to the cabin and one by the lake. Mr. Schmidt built a retaining wall at the lake to line up with the lakeshore pin (which was subsequently lost). Mr. Warren, who next owned the property, replaced the retaining wall built by Mr. Schmidt with the wall that currently exists. In doing so he relied on the end of Mr. Schmidt’s wall and “eye-balled” the boundary. In my view, this evidence establishes features that are probative of the location of the boundary, likely constitute the best evidence available in the circumstances, and do not turn on reputation because the retaining wall ended where the survey pin had been. This evidence also explains why it was not necessary for Mr. Maddox to rely on anything that was inherently unreliable in the Lewall Plan. [19] I am satisfied that the trial judge did not make any palpable and overriding error in his findings of fact. To the contrary, his findings are amply supported by the evidence. [20] The trial judge accepted that Mr. Maddox had relied on the hierarchy of evidence used by surveyors and endorsed by the courts to locate boundaries. That hierarchy is 1) natural boundaries; 2) original monuments; 3) fences or possession that can reasonably be related back to the time of the original survey; and 4) measurements. In this case there is no helpful evidence of natural boundaries. There is evidence of original monuments upon which both Mr. Maddox and the trial judge were entitled to rely. Similarly, there is evidence of fences and possession that can reasonably be related back to the time of the original survey. This evidence includes retaining walls and the price at which the lots were transferred shortly after subdivision. [21] The appellant argues the trial judge should have relied on the measurements in the Lewall Plan as the best evidence of where the boundaries lie, and made a palpable and overriding error in not doing so. I disagree. Not only do “measurements” rank behind the other categories of evidence relied on by Mr. Maddox and the court, the trial judge went further and found as a fact that the measurements in the Lewall Plan were incorrect. I accept the respondents’ submission that to rely on the measurements in the Lewall Plan would be to implicitly overturn a finding of fact that is in my view amply supported by the evidence. [22] Similarly, I am unable to give effect to the argument that the trial judge failed to give effect to the intentions of the parties. This argument is based on the proposition that the parties must have intended what could be derived from the Lewall Plan since the original parties to the subdivision signed it. But it was demonstrated beyond any doubt at trial that the Lewall Plan was riddled with error. There was no evidence of what the original owner who received Lot B intended (beyond signing the Plan), except that the subdivision helped resolve the consequences of his failing to purchase the entire parcel. He sold Lot B almost immediately and never visited it. So far as I can see the only reliable evidence of intention is that Mr. Fuller’s father, who subdivided the property, intended to keep Lot C with the cabin on it, so his family could live there, as they did later. [23] Finally, I am unable to detect any error in the order made by the trial judge requiring Mr. Morrison to clear the blocked access to Lot C. [24] Mr. Morrison argues that the road used to access Lot C along the lakeshore is not within the easement shown on the Sansom Plan which is derived in turn from the Lewall Plan. It followed he said that the obstructions he placed on the road to block access do not fall within the easement. He argues that the trial judge placed the onus on him to show that he was not blocking the easement, but, in any event, the evidence shows that the roadway strays from the registered easement. The explanation offered for how this came about is that the shoreline likely eroded as a result of flooding and the easement runs on the shore of the lake itself or in the water. [25] The trial judge found that Mr. Morrison had blocked access along the road. That fact is beyond dispute. The relevant easement was modified in 2005 when time restrictions on the then existing easement were removed. There is nothing to suggest any intention to change the location of the easement. The easement is shown on Plan 5558 (the measurements on which the trial judge found to be incorrect). As the trial judge noted, the easement is shown as a line running from the railway crossing, though Lot B, to the lakeshore and then turning on a right angle to Lot C. It is described as “All that portion of the transferor’s land which is 20 feet wide more or less as shown outlined in green on Plan 5558”. [26] The trial judge must be taken to have approached his conclusions on the basis that he could not rely on the Lewall Plan to locate the easement. It will be recalled that even Mr. Sansom did not defend his own plan. Quite apart from the problem with its measurements, the easement as shown on the Lewall Plan does not line up with the private crossing of the railway tracks. [27] The trial judge found that there was no reliable evidence that the lakeshore had eroded alongside the easement since 2005. It appears that the evidence would also support the conclusion that the shoreline was not eroded as a result of earlier flooding, because steps were taken to build up the land to protect it from erosion. Both Mr. Fuller and Mr. Schmidt gave evidence to that effect. In my opinion there is no reliable basis in the evidence to conclude that the easement now lies partially on the beach or in the lake. [28] I accept the respondents’ submission that the intention of the owners was to create an easement entering Lot B from the private crossing, running to the lakeshore and turning along the lakeshore towards Lot C. In the absence of any reliable evidence that the land area had shrunk by erosion, the best evidence of the location of the easement is the road which has always been used to reach Lot C. Within the hierarchy of evidence, the course travelled by the owners from the time of the subdivision is evidence of fences or possession reasonably related to the time of the original survey. Certainly, “measurements”, in this case, are of little or no probative value. [29] In my view, the trial judge was entitled to find that there was a lawful easement in place, to locate it as he did, and to conclude that Mr. Morrison had blocked it. [30] I would not accede any of the grounds advanced on appeal. I would dismiss the appeal. [31] NEWBURY J.A.: I agree. [32] LOWRY J.A.: I agree. [33] NEWBURY J.A.: The appeal is dismissed. “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Sullivan, 2013 BCCA 32 Date: 20130128 Docket: CA038415 Between: Regina Respondent And Kathleen Mary Sullivan Appellant Before: The Honourable Mr. Justice Donald The Honourable Madam Justice Newbury The Honourable Mr. Justice Hinkson On Appeal from the Supreme Court of British Columbia, June 23, 2010 ( R. v. Sullivan , Victoria Registry, Docket Number 148943-2.) Counsel for the Appellant: D.J. McKay Counsel for the Respondent: T. Stokes Place and Date of Hearing: Victoria, British Columbia November 27, 2012 Place and Date of Judgment: Vancouver, British Columbia January 28, 2013 Written Reasons by: The Honourable Mr. Justice Hinkson  (At page 18, paragraph 37) Concurred in by: The Honourable Mr. Justice Donald Dissenting Reasons by: The Honourable Madam Justice Newbury Reasons for Judgment of the Honourable Madam Justice Newbury: [1] Ms. Sullivan was charged with one count of assault under s. 266 of the Criminal Code and one count of mischief under s. 430 in connection with an incident alleged to have occurred outside the University Club on the campus of the University of Victoria on November 19, 2009. Ms. Sullivan had attended the campus to serve a writ on the University, from which she had previously been “banned”.  She was alleged to have thrown some papers at the complainant, Ms. St. John, knocking off Ms. St. John’s eyeglasses, and then to have  ground the glasses into the ground with her foot.  She was tried in Provincial Court on March 1 and 26, 2010, at which time she was unrepresented.  She appealed her conviction to the summary conviction appeal judge below, Mr. Justice Johnston, who dismissed her appeal for reasons delivered orally on June 23, 2010 in Supreme Court Docket 148943-2, Victoria Registry.  She was also unrepresented on that appeal. [2] At para. 18 of his reasons, Johnston J. stated that there were two principle aspects to Ms. Sullivan’s appeal.  The first was whether the Provincial Court judge had made a palpable and overriding error in her findings of fact and credibility.  Johnston J. was not persuaded that such error had been shown, stating at para. 19: This of course was not then, that is at the trial, nor is it now simply a matter of whose story is to be preferred, because the obligation on the Crown throughout is to prove its case beyond a reasonable doubt.  There is some difficulty in that the trial judge did not specifically deal with whether or not, even if she disbelieved Ms. Sullivan’s evidence, that evidence had left her with a reasonable doubt, but having reminded herself that her task was to determine whether or not the Crown had proved its case beyond a reasonable doubt, it seems to me that absence is not sufficient for me to overturn the conviction. [3] The second aspect of Ms. Sullivan’s appeal below was described by the Court as follows: There is a second element of this appeal and that is Ms. Sullivan’s complaints that the judge was rather too interventionist in the conduct of the trial.  That is largely in preventing Ms. Sullivan from pursuing lines of cross-examination, particularly of the complainant, Ms. St. John, with fairly frequent and I should say interruptive rulings on relevance.  [At para. 20.] In this regard Johnston J. said he had looked through the transcript of the trial and noted various conversations between the trial judge and Ms. Sullivan concerning what was relevant and what was not.  He noted that the trial judge had been correct in stating that it was up to her to rule on relevance whether or not there were objections from a party or counsel.  He continued: While, as I have said, some of the rulings might well be questionable in hindsight, rulings made by a trial judge in the course of a trial ought not to be weighed so finely as they can be weighed with the luxury of the time one has on a review of transcript and argument on appeal.  I am not persuaded that those rulings were so clearly wrong or that any of the rulings that might have approached questionable status would, if they had gone the other way, have made any difference whatsoever to the outcome, that that aspect of the matter should lead me to allow the appeal.  [At para. 22.] In the result, he dismissed the appeal. On Further Appeal to This Court [4] Ms. Sullivan was represented on her appeal to this court.  On her behalf Mr. McKay submits that the summary conviction appeal judge erred in his assessment of whether the trial judge provided adequate assistance at trial to Ms. Sullivan as an unrepresented accused, such that she was unable to bring forward her defence or any defence the proceedings might have disclosed, resulting in an unfair trial. [5] The cornerstone of Mr. McKay’s submission was this court’s decision in R. v. Moghaddam 2006 BCCA 136.  In that case, Levine J.A. for the Court held that a trial judge had failed to assist an appellant in putting forward his defence and indeed had effectively precluded the defence by ruling that his evidence of bias on the part of a police officer was irrelevant.  (Para. 46.)  The Court did not accede to a further argument that the trial judge’s failure to make explanatory remarks to assist the appellant at the opening of the trial had resulted in unfairness.  Citing and adopting the reasons for judgment of Fruman J.A. in R. v. Phillips 2003 ABCA 4, aff'd 2003 SCC 57, Levine J.A. observed: Whether the trial of an unrepresented accused is fair, however, is not determined, as a matter of law, by a single failure to provide explanations at the opening of the trial about the trial process, the elements of the offences, cross-examination, or any other aspect of the trial. Nor does the law require that trial judges provide certain explanations at the beginning of a trial. This is because, as Fruman J.A. commented (at para. 22): Perhaps some judges are beguiled by the consistency and simplicity of boiler-plate language. But trials involving unrepresented accuseds are rarely consistent or simple. Their need for guidance varies depending on the crime, the facts, the defences raised and the accused's sophistication. The judge's advice must be interactive, tailored to the circumstances of the offence and the offender, with appropriate instruction at each stage of a trial . Madam Justice Fruman reiterated the principles articulated in Darlyn, B.K.S. , and Parton (at paras. 23 and 25): How far a trial judge should go in assisting an accused is therefore a matter of judicial discretion : McGibbon, supra , at p. 347. ... In cases in which the trial judge's guidance is alleged to have been inadequate, trial fairness is determined by considering whether the lack of guidance compromised the unrepresented accused's ability to properly bring out his defence.  [At paras. 50-1; emphasis added.] In conclusion , the Court in Moghaddam stated: In determining whether an unrepresented accused has had a fair trial, the overriding question is whether he has received adequate assistance from the trial judge to bring out his defence "with full force and effect". In this case, the trial judge placed restrictions on the content of the appellant's cross-examination of Crown witnesses and his testimony, and those restrictions precluded the appellant from effectively putting forward his defence. It cannot be said that if the appellant had testified as to his version of the events, the outcome of the trial would have been the same.  [At para. 54.] [6] Mr. McKay argues that similarly in the case at bar, the trial judge “was not concerned with assisting the appellant in bringing forward her defence but was concerned about getting the matter over with in a timely manner.”  As for the judgment of the summary conviction appeal judge, counsel submits that he did not consider that the trial judge had limited Ms. Sullivan’s right to cross-examine (including, counsel says, dismissing witnesses before they testified); decided which witnesses she was allowed to present to the Court “by denying the appellant an opportunity to have them present”; denied her an adjournment in order to obtain photographic evidence that she wanted to use in her cross-examination of the complainant; denied her access to a transcript of the proceedings; moved the matter along when insufficient court time was set aside for the matter to be heard in the one day originally scheduled; and then forced her to proceed on the continuation date “while denying her the opportunity to obtain further witnesses that she could not obtain on her own.” [7] As can be seen below, I am of the view that in the unusual circumstances of this case, the trial judge conducted the trial fairly and provided adequate assistance as to the trial process and that this appeal should therefore be dismissed. In contrast to the situation in Moghaddem , the trial judge here was dealing with an accused who was flippant, wandering, and paid little attention to the Court’s directions.  As became apparent during the trial, she has a longstanding “grudge” against the University of Victoria.  Since the alleged assault, of a university employee, was alleged to have taken place on campus, she was using the occasion to “investigate” the motives and actions of various University employees with whom she had come in contact at various times, both before and after November 19, 2009.  Any connection these employees had with the charges against Ms. Sullivan was tenuous at best. [8] This was not a case in which an accused who is unfamiliar with the trial process was unable to put forward her defence.  Rather, this was case in which an accused was attempting to run away with the trial process, making various demands that the Court supply items (transcripts, white boards and photographs) that the judge was not in a position to supply; and trying to turn the trial of the assault charge made against her into an inquiry into an alleged conspiracy on the part of the University.  Clearly, Ms. Sullivan was entitled to question the credibility of the witnesses called against her or to suggest that a conspiracy existed.  But finding herself unable to discover evidence of such a conspiracy, she embarked, or attempted to embark, on an uncontrolled fishing expedition.  In my view, the trial judge, after giving Ms. Sullivan a certain amount of leeway, rightly prevented her from pursuing avenues of inquiry that were clearly leading nowhere and from holding the trial process hostage to her personal whims. [9] I will provide a few examples which I have taken from the transcript.  The first witness at trial was the complainant Ms. St. John, who was the Director of Ceremonies and Events for the University.  She was examined in chief by Crown counsel as to the events of November 19, 2009, when she had noticed Ms. Sullivan outside the entrance to the Club, where the President of the University, Mr. David Turpin, was expected to attend an “event” in the late afternoon.  Ms. St. John testified that she asked Ms. Sullivan if she could help her, and that Ms. Sullivan said she was waiting for “Dick Turpin” to arrive and wanted to serve some “papers” on him.  Ms. St. John testified that she told Ms. Sullivan that the President was not coming that evening (in fact he was), and offered to give him a message for Ms. Sullivan.  Ms. St. John testified that Ms. Sullivan became angry and began shouting at her, raised a sheaf of papers up in front of her face, hitting Ms. St. John on the left cheek, knocking off her glasses.  Ms. Sullivan then stepped on the glasses, breaking them.  Ms. St. John said she was left with a scratch on her cheek (of which the Crown adduced photographic evidence). [10] Ms. St. John went inside the Club, asked someone in the manager’s office to call security, and was told that they had already been called.  She testified that the glasses cost about $1,000 to replace, which was paid by the University. [11] Ms. Sullivan began her cross-examination of the witness beginning with “Are you familiar with this fabled character, Pinocchio?”  The trial judge interrupted to say that she gathered Ms. Sullivan was not trained as a lawyer.  Ms. Sullivan said that was correct, but that she did watch “a lot of television”.  The judge told her this was her opportunity to ask specific questions “that relate to the evidence this witness has given, or ... other relevant areas ... with respect to the charges” that she was facing.  Ms. Sullivan responded by asking the trial judge if it was an appropriate time for the Court to caution the witness what the penalty is for perjury.  The trial judge replied that “Canadian courts don’t do that” and the cross-examination resumed. [12] Ms. Sullivan asked questions about Ms. St. John’s previous jobs.  One of these had been with a local art gallery, leading Ms. Sullivan to ask if most arts organizations receive government grants.  Ms. St. John answered yes, they did from both provincial and federal governments.  When Crown counsel objected that the witness’s employment history was not the subject of the matter being tried, Ms. Sullivan replied: THE ACCUSED:  Oh.  I need to know the back -- her background because I'm -- I need to figure out why she's making these false allegations, and not just a false allegation of assault but expounding on it with a fabrication of a -- of a story.  So I do want to know -- I want -- and -- and because I have a lawsuit against the provincial government, I've been in a lot of hot water with a lot of the people that I've dealt with in the system that are -- have some funding from government, like hospitals -- THE COURT:  Ms. Sullivan, the -- THE ACCUSED:  -- charities. THE COURT:  She has given you her general background and in my view, that's what you're entitled to know.  You needn't ‑‑ there's no necessity for what I have to decide for any further probing into this woman's background as far as her employment goes. THE ACCUSED:  Okay. [13] Ms. Sullivan then returned to question the witness about the job she held at the University, how she had got it and whether it had been advertised in the newspaper.  The following exchange then took place: Q         ... Now, you say that you saw me -- oh.  I want you to visualize the --actually, I should have asked for a board where I could draw the -- the -- THE COURT:  What's your question? THE ACCUSED: Q         The question is, I want you to picture the university when you walk in the door and -- THE COURT:  Of the University Club? THE ACCUSED: Q         Of the University Club. A          Yes. Q         And I've been there three times, very, very, very briefly. THE COURT:  Go ahead. THE ACCUSED:  I don't feel comfortable with people in the courtroom. THE COURT:  Unfortunately, courtrooms are public places and people can be in the courtroom. THE ACCUSED:  Could we ask them if they would mind leaving and if they don't want to leave they can stay?  Could we ask that, because I'm very sensitive to UVic people sitting in on my hearings. THE COURT:  I'm not going to ask these people to leave, Ms. Sullivan.  It's a public courtroom. [14] After an extended discussion about the physical set-up of the University Club layout (in the course of which Ms. St. John drew a diagram), Ms. Sullivan said she was ”not comfortable at all with ... this set up here and photographs have to be taken for accuracy ... I cannot agree on the map she’s written according to my memory of it.”  The trial judge told her that it was not necessary for her to agree with anything the witness said and that at the end of the day she, Ms. Sullivan, would have the opportunity to give evidence if she chose to do so. [15] Ms. Sullivan nevertheless asked for an adjournment.  The judge refused and Ms. Sullivan objected that the Crown had not supplied photographs, because, she said, “every scene of ... an assault, an alleged assault or a crime, they take photographs.  I was expecting photographs.”  After further discussion and a short adjournment, Crown counsel suggested that two maps be filed, one drawn by the witness and one drawn by Ms. Sullivan.  The Court permitted both to be filed as exhibits, with the accused going “on record to say that I don’t understand her map at all.  I’d like that to go on the record.” [16] Ms. Sullivan then questioned the witness about what other people had been in the Club at the time of the alleged assault, whether invited guests had arrived for the event, and what Ms. St. John had been doing before she had gone outside and seen Ms. Sullivan, all in considerable detail.  On several occasions, she interrupted the witness from giving her answers.  The Court warned her to wait for an answer to be completed before asking her next question.  The following exchange took place: Q         Why didn't you have an umbrella then? A          Because I was standing underneath the main canopy, it was protected from the rain. Q         Actually, it wasn't raining. A          It was -- Q         It stopped. A          It was pouring with rain. THE ACCUSED:  It stopped.  I remember that.  It had stopped by the time I walked -- THE COURT:  Ms. Sullivan -- THE ACCUSED:  -- from the admin building. THE COURT:  -- you're not giving evidence. THE ACCUSED:  Okay.  I -- I'd like a bathroom break, please. THE COURT:  Well, it's time to have the afternoon break, in any event.  Ms. Sullivan, Crown has three witnesses and a fourth that apparently you have asked to be here.  We only have until 4:30. THE ACCUSED:  Well, we've got tomorrow. THE COURT:  Unfortunately, the courts are all booked, well in advance. THE ACCUSED:  Oh well, we'll -- a little bit of overtime won't hurt anybody. [17] When the cross-examination of Ms. St. John resumed, Ms. Sullivan went into painstaking detail regarding Ms. St. John’s statement that campus security had already been called by the time she (Ms. St. John) went inside and asked for them to be called.  The Court pointed out that the acting manager had to be called to answer the questions, and told Ms. Sullivan that her questions about what time the President had arrived, and what time the event ended were not relevant.  The following exchange is typical of several pages of questions and answers: Q         And then you -- I would like to now know because I don't know now, you were never asked the chain of events when you officially made a complaint.  That -- THE COURT:  It's not relevant. THE ACCUSED: Q         -- we've not covered that. THE COURT:  It's not relevant. THE ACCUSED: Q         And who you officially made the complaint to? THE COURT:  It's not relevant. THE ACCUSED: Q         Are you married? THE COURT:  It's not relevant. THE ACCUSED: Q         How much are they paying you to give this false evidence? THE COURT:  Not relevant.  It's an improper question. THE ACCUSED: Q         So -- THE COURT:  Do not answer -- THE ACCUSED: Q         -- do you intend to stay in Canada? THE COURT:  Not relevant.  Do you have any relevant questions for this witness? THE ACCUSED:  Well, they're all relevant as far as I'm concerned. THE COURT:  I'm the one who makes that decision. THE ACCUSED: Q         Do you have a criminal record? A          No, I don't. Q         Would you like one?  Because you've told so many lies here today you're well on the way to perjury -- Eventually the trial judge told Ms. Sullivan she could ask one more relevant question, which she did, and the witness was stood down. [18] Crown counsel advised the Court that since “identification” did not seem to be an issue, she did not intend to call two of the witnesses she had anticipated calling.  In response to Ms. Sullivan’s question as to who those witnesses were, the trial judge explained that the prosecutor had decided she did not require the two witnesses “but she is quite prepared to call the witness you wanted and I’m going to allow her to do that.”  Mr. Brewer, the bar manager at the Club, was called and described his dealings with Ms. Sullivan on November 19. [19] In cross-examination, Ms. Sullivan first asked him to tell the Court “how we first met” and led him through a description of an incident earlier in November 2009 when she had taken a poppy and later returned to pay something for it.  The trial judge found it necessary to interrupt Ms. Sullivan’s questioning to remind her that Mr. Brewer was the witness, not Ms. Sullivan, and that she would have an opportunity “at the end of the day should you decide to give evidence.”  Ms. Sullivan said she did not “understand my being blocked from a non-hostile witness who could speak as to the nature of our encounter.”  The judge explained that having Mr. Brewer on the stand was not her opportunity to give evidence.  Again, Ms. Sullivan said she did not “really” understand “but I’ll carry on and if you ... you can object again if you don’t like the line of questioning.”  At the end of her cross-examination, Ms. Sullivan said that all she had wanted to establish was that “there was no anger or hostility in that hallway for the few minutes that you and I inter-reacted”.  The witness agreed. [20] Crown counsel advised the Court she did not intend to call further witnesses, whereupon Ms. Sullivan objected that a Cst. Graham was to have been called and that she wanted to call him.  When the trial judge asked if she was going to take the stand herself, Ms. Sullivan said she thought she needed legal advice and was “being railroaded”.  After some comments on her part about the “pack of lies” she had heard in court, Ms. Sullivan confirmed that she wanted legal advice and the Court adjourned to permit this to occur. [21] The trial resumed more than three weeks later, on March 26.  Early in the day, scheduling for the day was discussed.  Ms. Sullivan asked if the trial judge anticipated the trial would end that day and was told it would end that day.  Ms. Sullivan said she wanted to recall Ms. St. John.  After the morning recess, Ms. Sullivan confirmed that she was acting on her own behalf and requested a transcript of Ms. St. John’s evidence.  She said she wished to apply for indigent status in order to get the transcript without paying for it.  Further, she said: THE ACCUSED:  Yes.  I intend to -- I'm prepared to go ahead this morning, but I will be adjourning to recall [Ms.] St. John, and I want the security people from the University of Victoria here, and I want -- the woman I served the writ to, I want her here and the security officers that were there at the time I served the writ.  So I've still got a bit of work to do.  Of course it's restricting for me because I can't go on campus and deliver. [22] The Court asked why she wished to recall Ms. St. John and Ms. Sullivan replied that “She’s perjured herself in this action”.  She said she also wanted to call “the security people” from the University who were present when she had served her writ (on a Ms. Wormsley) before she had gone to the University Club on November 19.  As well, she said, she wished to call a Ms. Eastman, the “university secretary”, who had advised Ms. St. John to report the assault.  Crown counsel said she was “having some difficulty” with the relevance with most of the proposed evidence since it had preceded the assault, and that she did not take issue with the fact that Ms. Sullivan had served a document on the University on the day of the alleged assault. [23] At this point, the trial judge ruled against Ms. Sullivan’s three applications. [24] Two further witnesses were called ‒ Cst. Graham, whose first involvement in the case had been on the day after the alleged incident when Ms. St. John had reported the assault to him, and Cst. Prill, who had encountered Ms. Sullivan in the university cafeteria after the incident.  He had been called by staff when Ms. Sullivan refused to leave the cafeteria.  Cst. Prill had had a conversation with her about the incident and recalled what she had told him.  At one point, Ms. Sullivan interrupted him and said: Q         Well, unfortunately your memory is a little vague, so I'm going to have to add your partner's name to the list of people that I want to talk to on this matter, Birtwistle, because I believe that if I did discuss anything with you, it would've been the fact that I had just served a writ on the university and that I tried to serve it on the super -- president, but was unable to do so, because I wanted to embarrass him at this conference. [25] When Ms. Sullivan asked the witness whether she had at that time mentioned anything about an assault, the trial judge interrupted to advise her that it was not in her best interests to ask that question.  The witness was excused. [26] Ms. Sullivan decided to testify.  The Court conducted her examination in chief, taking her through the events at the University Club on November 19.  Ms. Sullivan testified that she had been trying to serve the President of the University with a writ that day and had been told by officials at the administration building that he was not there.  She declined to leave the writ with them.  She testified that she then went up to the second floor and was approached by a woman who said she was the Provost and would take the writ.  Ms. Sullivan testified that she gave it to her and then headed downstairs when she noticed a sign indicating that the President was giving “some kind of function” at the University Club.  Still having a copy of the writ in her handbag, she headed to the Club and asked two ladies outside if “David Turpin” was there yet and was told he was not.  She encountered the bartender, Mr. Brewer, who said the President had not arrived yet.  She said she decided “not to hang around”, but went to use the bathroom before she left.  She then headed outside, where she saw a woman holding a clipboard.  She asked this woman if she was waiting to greet “Dick Turpin or David Turpin” and was told that he was not coming and had cancelled.  She testified that although she did not believe this, she did not want to waste any more time at the Club and proceeded to the Cadboro Cafeteria, where Cst. Prill eventually spoke to her. [27] In cross-examination, Ms. Sullivan was asked if the woman with the clipboard was Ms. St. John.  Ms. Sullivan said she had not recognized her at all and in fact never saw her full face.  She insisted that she had decided not to “hang around” waiting for the President and that in any event she had ‘had her fun’ at the administration building.  Although she testified she had not had a conversation with the complainant, she also testified soon after that she, Ms. Sullivan, had told the woman with the clipboard that she “just wanted to serve [the President] this” but had already “served it in admin.”  Later in the summary conviction appeal hearing, she described a conversation very similar to the conversation described by Ms. St. John in her testimony, but said she had then simply walked away. [28] In response to the Crown’s questions at trial, Ms. Sullivan absolutely denied striking Ms. St. John in the face and knocking off her glasses.  The following exchange then took place: Q         And then she had a conversation with you in an attempt to get you away and offered you a cup of tea and gave you some money for a cup of tea. A          The woman's a liar, and I want to know motive.  That's what I'm interested -- that's why I want to investigate this woman.  There's got -- but I believe the motive is that the campus -- they wanted me off campus.  I've got notes here where I overheard a conversation with the security while they were chasing me all over the campus on the 10th of September, and I stood in an open window and heard them laughing and planning, "It's been fun and we get paid for it." THE COURT:  This is what date? A          The 10th of September. [29] In her closing submissions, Ms. Sullivan spoke briefly again about the incident in September previously adverted to, in which she had overheard a conversation at 4:00 a.m. between a couple of security men.  There was no apparent connection between this conversation and the alleged assault.  Crown counsel then made her submissions before the trial was adjourned.  The trial judge prepared her reasons, which were delivered orally on the same day. [30] It is fair to say that the trial judge was concerned on the first day with finishing the trial in the time that had been allotted.  As long as the fairness of the trial did not suffer as a result, a judge should not be criticized for this.  Judges in the Provincial Court of British Columbia are under the pressure of very heavy workloads and must necessarily be conscious of time limitations.  Ms. Sullivan seemed to be under the impression that she could request an adjournment at any time for any reason and that it would be granted.  The adjournments Ms. Sullivan requested ‒ one to obtain photographs of the University Club building and one to obtain a transcript of Ms. St. John’s evidence ‒ were ones that most trial judges would not grant at the late stage they were made.  It was far from clear how the layout of the University Club building was relevant to Ms. Sullivan’s claims that there was a conspiracy against her at the University and that Ms. St. John had ‘fabricated’ her testimony.  The request for a transcript and for the recalling of Ms. St. John on March 26 were simply too late and Ms. Sullivan had been allowed considerable latitude in cross-examining the complainant. [31] Nor do I think the trial judge acted unreasonably in “moving the matter along when insufficient time was set aside for the matter to be heard originally” as Mr. McKay contended.  The trial judge was naturally reluctant to have to adjourn the trial at the end of the first day, but ultimately she did so and reconvened on March 26.  Mr. McKay submits in addition that Ms. Sullivan was ‘forced’ to proceed on that date and “denied” the opportunity to obtain witnesses that she could not obtain on her own.  It is not, of course, for the court to ‘obtain’ witnesses.  As will be seen from some of the quotations above, Ms. Sullivan simply listed off all the University personnel she could think of and said she wanted to examine them.  She did not indicate how the evidence of any of them would be relevant to the charges before the Court, as opposed to her on-going differences with the University itself.  Again, the trial judge gave her considerable latitude in the questioning of Mr. Brewer and the two constables, both with respect to events before and after the alleged assault took place. [32] With respect to Mr. McKay’s submission that the judge “dismissed” witnesses before the appellant had finished cross-examining them (and here I understand from her factum that counsel is referring to the complainant), Ms. Sullivan did not have an absolute right to cross-examine on irrelevant matters for as long as she wished.  The relevance of her questions was not apparent, even if one assumes a conspiracy.  When asked by Johnston J. on the first appeal to explain their relevancy, Ms. Sullivan replied: THE ACCUSED:  Well, she kept -- she -- I was digging.  I was digging, and she kept saying, “It's not relevant,” but I wanted to dig and dig and find out the motive for this woman fabricating this incident.  That was the reason why I was asking her questions. I wanted to ask her questions, for example, on the fact that she -- the victim made big, big -- a big deal about being -- living in Nova Scotia and being given this wonderful job in Victoria working at the museum, I believe it was.  But she only stayed at this wonderful job for six months and then she took another wonderful job and only stayed there a few months and then she -- then she came to the university, and I wanted to say, "Why would you come all the way from Nova Scotia to Victoria for this wonderful job and only stay six months?"  These were the kinds of things I wanted this woman to answer. [33] When pressed further, she replied that Ms. St. John and the police had been “suckered into laying charges.”  Eventually, after more questions from the conviction appeal judge, she said she could not “remember now exactly what was on [her] mind” when she was asking the questions regarding the complainant’s past and whether she intended to stay in Canada.  Her explanation for inquiring about the complainant’s “chain of command” was that the complainant must have been told something about Ms. Sullivan to have “fabricated this little scenario”.  In the course of this submission to the Court, she claimed not to have received disclosure from the Crown of Ms. St. John’s statement to the police, but then acknowledged she had received the statement, but had expected it to be handwritten. [34] In general terms, it must be said that while a trial judge must ensure a fair trial, there are limitations on how far a court must go in assisting an unrepresented accused.  Such an accused cannot expect simply to come to court on the trial date and expect the court to summon witnesses whose names pop into her head on that date, or to adjourn the proceedings anytime she requests it.  Considerable time and resources are devoted by the state to trial scheduling and trials should proceed when scheduled if at all possible.  While it is true that the trial judge in this case might have realized at an earlier time that this trial would go into another day, this fact did not make the trial unfair. [35] With respect to my colleagues’ concerns about the trial judge’s limiting Ms. Sullivan’s cross-examination of Cst. Graham, I cannot agree that in the circumstances of this trial (including what had transpired before this point) this amounted to a failure to provide the accused with a fair trial.  She was entitled to a fair trial, but not to an unlimited enquiry into each and every matter that she found to be of interest.  Nor, with respect, do I agree that had the trial judge not asserted that this witness’s evidence was irrelevant, there was any realistic possibility the result of the trail would have been different. [36] In all the circumstances, I am not persuaded the appellant did not receive a fair trial or that the summary conviction appeal judge erred in dismissing the appeal from the order of the court below.  I would dismiss the appeal. “The Honourable Madam Justice Newbury” Reasons for Judgment of the Honourable Mr. Justice Hinkson: [37] I have had the privilege of reading the draft reasons for judgment of Madam Justice Newbury in this case. While I agree with much of my colleague’s analysis, I am, with respect, unable to agree with the conclusion that she reached. [38] Like my colleague, I recognize that trial judges face a difficult task with some self-represented litigants, and in particular some self-represented accused, in ensuring that such individuals receive sufficient assistance in bringing out their defences. The Crown in this case properly concedes that the assistance by the trial judge of an unrepresented accused is part of the judge’s larger duty to ensure trial fairness. [39] In R. v. Parton , 24 W.C.B. (2nd) 642, [1994] B.C.J. No. 2098 at paras. 7 and 16, Ryan J., as she then was, observed that trials conducted by lay litigants can often be much longer than those where counsel is present, and can try the most patient of judges. Madam Justice Ryan also commented that such litigants must, however, be assisted by the Court to ensure that their defence is brought out in full force and effect. She referred to the decision of this Court in R. v. Darlyn (1946), 88 C.C.C. 269, [1947] 3 D.L.R. 480 (B.C.C.A.) at 482, where Mr. Justice O’Halloran, for the majority, wrote: ... if the accused is without counsel, the Court shall extend its helping hand to guide him throughout the trial in such a way that his defence, or any defence the proceedings may disclose, is brought out to the jury with its full force and effect. [40] How far a trial judge should go in assisting an accused is a matter of judicial discretion, and does not require the judge to become the advocate for the accused ( R. v. McGibbon (1988), 31 O.A.C. 10, 45 C.C.C. (3d) 334 (Ont. C.A.) at paras. 32, 37).  While there is a minimum level of assistance that is required in order to ensure that the accused has a fair trial ( R. v. Tran (2001), 55 O.R. (3d) 161(Ont. C.A.) at para. 31), the level of assistance required by the accused will vary with each trial, depending on factors such as the offence charged, the facts, the defences raised and the sophistication of the accused ( R. v. Parton , supra at para. 33; R. v. Phillips , 2003 ABCA 4, at para. 22). [41] In R. v. Moghaddam , referred to by Madam Justice Newbury, the appellant had been charged with dangerous driving and wanted to challenge the credibility of one of the arresting constables by establishing that the constable was biased against him.  He was prevented from cross-examining that witness on events which occurred both before and after the incident leading to the charges. The trial judge ruled that the appellant could not cross-examine the constable on the incidents because they were not relevant to whether or not he was guilty of dangerous driving. On appeal, Levine J.A. allowed the appeal and ordered a new trial.  At para. 46 she wrote: In this case, the trial judge not only did not assist the appellant in putting forward his defence, she effectively precluded it by ruling irrelevant the appellant’s evidence of bias on the part of Constable Siddiqui. For that reason alone, I would allow the appeal. [42] While I agree that the summary conviction appeal judge properly rejected the appellant’s submissions that the trial judge erred in dismissing witnesses before they testified, in denying her adjournment application, in requiring that she proceed on the continuation date, in rejecting the appellant’s submissions that she ought to have been provided with a transcript of the complainant’s evidence, in limiting her right to cross-examine, and in refusing to permit her to recall the complainant on the resumption of the trial, I am of the view that the summary conviction judge erred in law in failing to find that the trial judge erred in law by limiting the appellant’s ability to lead evidence in her defence. [43] My point of departure from the reasoning of my colleague begins with the conclusions of the summary conviction appeal judge at paras. 19 and 22 of his reasons, which I repeat for ease of reference: 19        This of course was not then, that is at the trial, nor is it now simply a matter of whose story is to be preferred, because the obligation on the Crown throughout is to prove its case beyond a reasonable doubt. There is some difficulty in that the trial judge did not specifically deal with whether or not, even if she disbelieved Ms. Sullivan’s evidence, that evidence had left her with a reasonable doubt , but having reminded herself that her task was to determine whether or not the Crown had proved its case beyond a reasonable doubt, it seems to me that absence is not sufficient for me to overturn the conviction. ... 22        While, as I have said, some of the rulings might well be questionable in hindsight , rulings made by a trial judge in the course of a trial ought not to be weighed so finely as they can be weighed with the luxury of the time one has on a review of transcript and argument on appeal. I am not persuaded that those rulings were so clearly wrong or that any of the rulings that might have approached questionable status would, if they had gone the other way, have made any difference whatsoever to the outcome , that that aspect of the matter should lead me to allow the appeal. [Emphasis added.] [44] Unlike in Moghaddam , there was no improper interference here with the appellant’s cross-examination of any of the witnesses called by the Crown. The issue, as I see it, is whether the trial judge effectively prevented Ms. Sullivan from putting forward her defence with the “full force and effect” contemplated in Darlyn . [45] The appellant’s defence at trial was not simply a denial of the complainant’s evidence, but was, as described by the summary conviction appeal judge, that “there was or is a conspiracy involving university personnel, including [the complainant] to cause [the appellant] legal harm ... to achieve the end of keeping [the appellant] off the University of Victoria campus”, and that the complainant, in the furtherance of that conspiracy, fabricated her testimony. [46] Neither the trial judge nor the summary conviction appeal judge came to the conclusion that the appellant was sufficiently familiar with the trial process to be able to put forward her defence without the assistance of the trial judge, and the interchanges between the appellant and the trial judge, in my opinion, show that she was not capable of doing so. [47] While the she gave Ms. Sullivan some leeway in the presentation of her case, the trial judge prevented Ms. Sullivan from pursuing avenues that she considered fruitless. I agree that the trial judge is entitled to prevent the pursuit of fruitless questioning, but I am unable to agree that that the avenue of inquiry respecting Ms. Sullivan’s conspiracy defence was destined to be fruitless, and am of the opinion that the trial judge did not sufficiently assist Ms. Sullivan to fully and effectively explore that avenue. [48] At the resumption of the trial in this case, after the Crown had closed its case, the following exchange took place: THE ACCUSED: Yes. I intend to -- I’m prepared to go ahead this morning, but I will be adjourning to recall [the complainant], and I want the security people from the University of Victoria here, and I want -- the woman I served the writ to, I want her here and the security officers that were there at the time I served the writ. So I’ve still got a bit of work to do. Of course it’s restricting for me because I can’t go on campus and deliver. THE COURT: All right. So I understand you have applications. First of all, you’re applying for a typed transcript of [the complainant’s] evidence -- THE ACCUSED: Correct. THE COURT: -- from March 1 st . THE ACCUSED: Please, yes. THE COURT: And you’re applying to the court to recall [the complainant]? THE ACCUSED: I will. THE COURT: And is there -- what is your reason for that? THE ACCUSED: Well, that is because, you see, she -- she’s perjured herself in this action. THE COURT: And you’re going to apply to call -- THE ACCUSED: Indigent state. THE COURT: -- other-- THE ACCUSED: Oh, yeah. I want the -- I want the -- I want the security people from the university that were in attendance when I served the writ on Ms. Wormsley [phonetic], who I think is the provost at the admin building, which was five minutes before I went into -- prior to me going into the university. THE COURT: And -- THE ACCUSED: What that hall is called, the club, the University Club. THE COURT: So the security people, and who else? THE ACCUSED: Well, I have no way of getting -- oh, I’d like to have Julia Eastman here, too, the university secretary. THE COURT: And what would that evidence tell the court? THE ACCUSED: Julia Eastman is the person who advised [the complainant] to report the assault. That was what I recollect from the evidence that she gave. [49] The trial judge dismissed the appellant’s various applications, and directed that the trial proceed. With respect to the appellant’s application to call the security people and Ms. Eastman, the trial judge held, at para. 3 of her ruling on defence applications: ... there is no evidence from which this court could conclude that either of those classes of people were present at the alleged incident, and therefore in the view of this court, would be in a position to provide any relevant evidence ... [50] Ms. Eastman’s evidence was potentially relevant to the appellant’s conspiracy defence, but without any persuasive submission from the appellant as to what she might have said, and we received no such submission, I am not persuaded that the failure to ensure that Ms. Eastman was called as a witness assists the appellant. [51] When the trial resumed, the appellant did lead the evidence of Constable Graham, the police officer who arrested her the day after the complainant alleged that she was assaulted. She asked him if he had any notes of his discussion with the complainant on the day after the assault, to which he responded in the affirmative. The trial judge interrupted the officer’s evidence and the following exchange occurred: THE COURT:  Ms. Sullivan, I am wondering, given that this officer was not involved until a day later, what the relevance of his evidence is. THE ACCUSED: Well, if you’ll let me get to it, maybe we can find out. THE COURT:  No, just tell me. Tell me what the relevance is. THE ACCUSED: Well, the relevance is that this whole thing is a lie. The whole scenario is a lie and it’s very difficult to ask the questions to uncover a lie or a bunch of lies. That’s what makes -- that’s what makes court so difficult. People don’t come in and tell the truth. THE COURT: My concern is what the relevance is of anything that this witness can say. He was not present at the alleged incident and he was not involved until the following day. I just want you to tell me what evidence you expect to get from this witness that is relevant to my decision. THE ACCUSED: Well, something convinced him that he needed to arrest me. THE COURT: Well, perhaps you can ask him why he arrested you. [52] I am not satisfied that counsel, acting reasonably would ask such an open-ended question, even when questioning a witness in chief, and the appellant did not. The question as proposed by the trial judge would not have assisted the appellant in establishing what she was attempting to prove, that “the whole thing is a lie” and part of a greater conspiracy against her. The appellant did, however, resume her questioning of the officer: THE ACCUSED: So what did Ms. St. John tell you? Oh, how long did you meet? How long was your meeting with her? [53] The appellant did not receive an answer to her first question in that series, but before she returned to that question, the following exchange took place: THE COURT: ... You were going to ask why he arrested you. THE ACCUSED: You see, I’m running into the same problem that I ran into before. You interrupt too much. You -- you don’t let me ask what I need to do. THE COURT: It’s my -- it’s my duty to control the courtroom and to ensure that relevant questions are asked and answered because if it’s not relevant, it’s not admissible. THE ACCUSED: But that’s relevant according to what you think. THE COURT: And I’m the one -- THE ACCUSED:  Since it’s -- THE COURT:  -- in charge. THE ACCUSED: Yeah, but the point is what’s relevant to me may not be relevant to you. THE COURT: That’s exactly right, and therefore it’s not admissible. THE ACCUSED: Oh, okay. [54] I agree with the summary conviction appeal judge that “some of the rulings [of the trial judge] might well be questionable, but, more importantly, in my opinion, the appellant was not given sufficient assistance by the trial judge to enable her to put forward her own defence with full force and effect, and her articulated defence was not so put forward. [55] Although she asked some further questions, the appellant never returned to the content of Cst. Graham’s notes or his discussion with the complainant the day following the assault. [56] In order to provide the appellant with the appropriate “helping hand to guide [her] throughout the trial” the trial judge should have provided some guidance to the appellant to focus her questions on matters relevant to her conspiracy defence. [57] To exacerbate her failure to properly assist the appellant, the trial judge found that the complainant “had no reason to fabricate” her allegation of the assault that she alleged.  The failure on the part of the trial judge to assist the appellant in putting forward her defence coupled with her comment that she questioned the relevance of anything that Ms. Eastman or Cst. Graham might be able to say may well have dissuaded the appellant from pursuing a basis upon which to cause the trial judge to question whether the complainant had a reason to fabricate her evidence and thus cause her to question whether the Crown had proven the charges against the appellant beyond a reasonable doubt. [58] I conclude that the summary conviction appeal judge erred in failing to recognize that the trial judge did not guide the appellant to bring out her defence with its full force and effect, and that his conclusion that the outcome of the trial would not have differed had she done so, cannot be upheld. [59] I would therefore allow the appeal and order that there be a new trial of the charges against the appellant. “The Honourable Mr. Justice Hinkson” “The Honourable Mr. Justice Donald”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Van Dyke, 2013 BCCA 33 Date: 20130128 Docket: CA040305 Between: Regina Respondent And Bradley Jay Van Dyke Appellant Before: The Honourable Chief Justice Finch The Honourable Mr. Justice Chiasson The Honourable Madam Justice A. MacKenzie On judicial review from: British Columbia Court of Appeal (Chambers), November 2, 2012 ( R. v. Van Dyke , 2012 BCCA 464, Docket CA040305) Counsel for the Appellant: R.C.C. Peck, Q.C. and A. Cheon-Hayes Counsel for the (Crown) Respondent: F. Tischler Place and Date of Hearing: Vancouver, British Columbia January 14, 2013 Place and Date of Judgment: Vancouver, British Columbia January 28, 2013 Written Reasons by: The Honourable Madam Justice MacKenzie Concurred in by: The Honourable Chief Justice Finch The Honourable Mr. Justice Chiasson Reasons for Judgment of the Honourable Madam Justice MacKenzie: [1] Mr. Van Dyke applied for bail pending his appeal from conviction, pursuant to s. 679 of the Criminal Code .  On November 2, 2012, Madam Justice Saunders, in chambers, dismissed his application.  The Crown agreed Mr. Van Dyke’s appeal was not frivolous and that he established his likely surrender into custody pursuant to a bail order.  However, the Crown opposed bail on the basis Mr. Van Dyke had not demonstrated his detention was not necessary in the public interest.  His application focussed on that issue.  The judge found there was real substance to Mr. Van Dyke’s grounds of appeal, but concluded his release would tend to undermine public confidence in the administration of justice. [2] On December 20, 2012, Chief Justice Finch directed a review under s. 680 of the Criminal Code of the order of the chambers judge. [3] The issue on the review before this Court is again whether Mr. Van Dyke’s detention is necessary in the public interest.  For the following reasons, I would dismiss this application.  In my view, the chambers judge balanced the relevant criteria and considerations, properly concluding Mr. Van Dyke had not met the burden of establishing it was not contrary to the public interest that he be released pending appeal.  I would not substitute a different opinion for hers. Background [4] Mr. Van Dyke, now 39 years old, and his co-accused, Mr. Gill, were tried by Mr. Justice Myers and a jury.  On March 23, 2012, they were both convicted of the following offences: 1.       breaking and entering to commit an indictable offence, namely assault, contrary to s. 348(1)(b) of the Criminal Code ; 2.       aggravated assault, contrary to s. 268(2) of the Criminal Code ; 3.       use of a firearm while committing an indictable offence, contrary to s. 85(1) of the Criminal Code ; and 4.       discharge of a firearm with intent to wound, maim, or disfigure, contrary to s. 244(2) of the Criminal Code . The court entered a conditional stay of proceedings on count 3 due to its similarity with count 4. [5] On October 9, 2012, Mr. Van Dyke was sentenced to five years’ imprison­ment, less 21 months credited for pre-trial custody. [6] The chambers judge described the circumstances of the offences as follows: [4]        The charges arose out of the break in of a cabin in 2009, occupied by a person tending a commercial grow operation on behalf of the cabin’s owner, and the beating and shooting of the occupant. The occupant testified that on the night of the attack the two appellants appeared at the cabin. He said he heard some noise outside the cabin, opened the front door and was struck in the mouth with a metal bat. The occupant testified that he stepped back and searched for something to protect himself with, that the two appellants entered the cabin, that Mr. Gill had a baseball bat and Mr. Van Dyke had a gun, that Mr. Gill told the occupant to lay on a mattress on the floor, that he did so and that Mr. Gill started hitting him with the bat, including to his legs and feet. The occupant testified he managed to get up and flee to the door at which time Mr. Gill yelled at Mr. Van Dyke to shoot him and Mr. Van Dyke did so, hitting him in the abdomen, and again in the arm. [7] Before trial, counsel agreed to the admission of evidence of Mr. Van Dyke’s and Mr. Gill’s involvement with grow operations to help explain the Crown’s theory of motive and to establish animus between the parties.  Specifically, the Crown sought to adduce evidence of threats made by Mr. Gill toward the complainant two years before the incident because Mr. Gill was suspicious that the complainant had stolen from one of the grow operations they allegedly ran together.  This evidence was not admitted for the truth of its contents. [8] At trial, it was agreed the evidence of the complainant would be subject to a Vetrovec warning ( R. v. Vetrovec , [1982] 1 S.C.R. 811), given his extensive criminal record.  Mr. Gill and Mr. Van Dyke did not testify or call witnesses at trial.  Their position was there was no physical evidence to corroborate the complainant’s version of events and he should not be believed. [9] Mr. Van Dyke appeals from his conviction on the grounds the judge erred: 1.         ... by failing to provide the jury with any limiting instruction on the use they could make of the bad character evidence adduced at trial; 2.         ... by taking from the jury issues that were not clearly admitted by the defence at trial; 3.         ... by failing to adequately put the defence theory to the jury; 4.         ... by failing to provide the jury with an adequate Vetrovec warning. Order of the Chambers Judge [10] On October 30, 2012, the chambers judge heard Mr. Van Dyke’s application for judicial interim release pending the appeal. [11] Section 679(3) of the Criminal Code sets out the relevant factors on an application for bail pending appeal: (3)  In the case of an appeal referred to in paragraph (1)( a ) or ( c ), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that ( a )        the appeal or application for leave to appeal is not frivolous; ( b )        he will surrender himself into custody in accordance with the terms of the order; and ( c )        his detention is not necessary in the public interest. [12] The Crown conceded the appeal is not frivolous and Mr. Van Dyke had shown he will likely surrender himself into custody under a bail order.  Thus, the only issue before the chambers judge was whether Mr. Van Dyke had established his detention was not necessary in the public interest. [13] In support of his application, Mr. Van Dyke submitted his grounds of appeal are strong, his criminal record in the last five years only consists of one count of driving while prohibited and one count of production of marihuana, he was on judicial interim release for a considerable period before trial and sentencing without breaching his terms of release, he has employment if released, and he would like to visit his terminally ill father who lives in Ontario. [14] The Crown, in turn, contended the grounds of appeal are not as strong as Mr. Van Dyke suggests, and the circumstances of the offences are serious. [15] The chambers judge found, in oral reasons given November 2, 2012, on one hand, there is “real substance” to the grounds of appeal and noted the circumstances of Mr. Van Dyke’s father.  On the other hand, however, the judge was concerned by the violent nature of the offences, the involvement of a gun, the surrounding circumstances of the drug trade, and Mr. Van Dyke’s prior conviction for production of marihuana.  The judge concluded Mr. Van Dyke’s release would undermine public confidence in the administration of justice and dismissed his application. Discussion Standard of Review [16] The standard of review under s. 680 was described by Mr. Justice Cumming for the Court in R. v. Wu (B.Q.) (1998), 117 B.C.A.C. 305: [6]        A review under s. 680(1) of the Criminal Code is in the nature of an appeal on the record and not a hearing de novo . While the reviewing court exercises an independent discretion and may substitute its own opinion for that of the single judge under review, it must base its review on the facts found by the single judge's evaluation of the evidence. It is not necessary that a reviewing court, before intervening, come to a conclusion that the decision of the single judge under review was unreasonable or that an error in principle was committed .... [Emphasis added.] [17] This Court confirmed this standard of review in later decisions, including R. v. Mapara , 2001 BCCA 508 at paras. 12-13, 158 C.C.C. (3d) 312, and recently in R. v. Gingras; R. v. Porisky , 2012 BCCA 467 at paras. 48-49. [18] The reviewing Court may also “disagree with the chambers justice’s opinion of the ingredients of the statutory criteria such as the seriousness of the offence and the strength of the grounds”: Gingras , at para. 49. Criteria under Section 679(3) [19] As stated, s. 679(3) of the Criminal Code requires the appellant to establish: a) the appeal is not frivolous; b) he will surrender himself into custody in accordance with the terms of the order; and c) his detention is not necessary in the public interest. [20] In Mapara at para. 32, Madam Justice Ryan, for the Court, adopted the analysis in R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), where Madam Justice Arbour held that the “public interest” criterion in s. 679(3)(c) of the Criminal Code requires a balance between the competing dictates of enforceability and reviewability.  Madam Justice Ryan said: [34]      I agree with the analyses in Farinacci and [ R. v. Baltovich , 47 O.R. (3d) 761 (C.A.)].  Public confidence in the administration of justice requires that verdicts, properly rendered, be enforced. Where an appellant establishes that he or she does not pose a flight risk and is unlikely to re-offend, the public interest also acknowledges that actual punishment for a crime be avoided if strong grounds exist for setting aside the verdict. [35]      In [ R. v. Demyen (1975), 26 C.C.C. (2d) 324 (Sask. C.A.)] when Culliton C.J.S. speaks of the necessity for the appellant to show “something more” than the requirements of paragraphs (a) and (b) of s. 679(3) to establish that his detention is not necessary in the public interest, he must be referring to the necessity for the appellant to show that the principle of enforceability is outweighed by that of reviewability. In my view the strength of the interest of reviewability must primarily be measured by examining the likelihood of the success of the appeal. Very strong grounds will tip the scale in favour of reviewability. [36]      Depending on the demonstrated strength of the grounds, other factors, such as the circumstances of the offence – for example, pre-meditated violence – and, inordinate delay will be matters to weigh in the balance. The essential question, however, will be whether the appellant has been able to establish that enforceability is outweighed by reviewability. [21] In Gingras (decided after the chambers judge made her order), a five-judge division of this Court addressed an inconsistency in our jurisprudence as to whether the weakness of an appeal is a proper consideration in the balancing of reviewability and enforceability.  Mr. Justice Donald, for the Court, said: [31]      In any event, the controversy, such as it is, can now be laid to rest.  The strength of the grounds of appeal can work both ways.  The merits are in opposition to the seriousness of the offence; the greater the seriousness of the offence, the stronger the grounds required to shift the balance from enforceability to reviewability.  Since the strength of the grounds and seriousness of the offence are two sides of the same coin, it does not make sense to say that weak grounds cannot negatively affect a bail application. [22] Mr. Van Dyke submits the chambers judge erred by over-emphasizing the “seriousness of the offence”, effectively treating it as determinative.  Mr. Van Dyke says the judge failed to expressly weigh the seriousness of the offences against the factors that favoured his release, including the considerable period he spent on judicial interim release without breaching the terms of his release, his wish to see his terminally ill father, his employment opportunity, and most importantly, the judge’s favourable finding with respect to the strength of the grounds of appeal.  Mr. Van Dyke characterizes the chambers judge’s approach as a “categorical approach”, where the type of offence trumped all other factors. [23] Mr. Van Dyke argues the public interest analysis under s. 679(3)(c) favours reviewability over enforceability in this case. [24] As to the merits of the appeal, Mr. Van Dyke says the grounds of appeal are strong, as found by the judge.  He also points to his limited criminal record and the fact he has not been in trouble with the law in the three years since the convictions under appeal.  Mr. Van Dyke further notes the extenuating personal circumstance of his dying father whom he wishes to see if released and permitted to do so by this Court. [25] As to the seriousness of the offences, Mr. Van Dyke admits they were very serious, but says they were not at the most serious end as this is not a case of murder or attempted murder.  Mr. Van Dyke also takes issue with the judge’s concern that the offences occurred in the context of the drug trade.  He says he was specifically involved in the marihuana industry, which has been recognized by British Columbia courts as less serious than drug offences involving more addictive and harmful substances.  Mr. Van Dyke further notes this Court has recognized that the aggravating factor of a “home invasion” covers a wide range of circumstances and the sentencing judge in this case acknowledged that this factor was attenuated because the complainant was running a commercial grow operation inside the cabin.  Thus, Mr. Van Dyke says the nature of the offences in this case does not outweigh the strong factors in favour of his release. [26] The Crown’s position is that although the appeal meets the “not frivolous” threshold, the impugned jury charge is adequate when viewed in its entirety and in context.  While the chambers judge found the grounds of appeal had “real substance” (para. 17), she did not find they were strong.  In doing so, the Crown contends the judge made a carefully measured and nuanced, yet clear, assessment of the strength of the grounds of appeal.  I agree with the Crown. [27] The Crown is also correct, in my view, that the chambers judge did not apply a “categorical approach” to the public interest criterion in which the “type” of offence “trumped” any other consideration.  Instead, the judge properly balanced all the public interest considerations, including the seriously aggravated circumstances of the offences.  She recognized the difficult task of a single judge on an application for appeal bail where only a limited assessment of the merits is either appropriate or possible, based on an incomplete record and limited submissions.  But her reasons clearly reflect she considered the “reasonably full description of the grounds” and counsel provided her with the jury charge itself.  The following passage demonstrates her careful and balanced analysis: [16]      It is always a difficult task for a single judge who ought not to say too much about the merits of a case that will be heard by a division of at least three judges, to assess the merits of an appeal based upon an incomplete record and less than complete submissions on the merits. However, something needs to be said. I have been assisted by the reasonably full description of the grounds of appeal provided by counsel for Mr. Van Dyke and been provided with the jury charge, all sufficient to be able to appreciate, at least on a cursory level, the substance of the submissions intended to be made at the hearing of the appeal. [17]      I am satisfied that there is real substance to the grounds of appeal, and that they go beyond the modest description of ‘not frivolous’, a consideration that makes the issue of reviewability somewhat more urgent. I also have in mind the circumstances of Mr. Van Dyke’s father. [18]      On the other side, this is a case involving firearms and personal injury. I am troubled in this case that the offences were violent, that they involved the carrying of a gun to the cabin and the discharge, twice, of the gun, that the surrounding circumstances were involved with the drug trade, and that the appellant has another conviction in relation to production of marihuana. Given these considerations, I cannot say that Mr. Van Dyke’s detention is not necessary in the public interest. Considering the standard of the ordinary, reasonable, fair-minded citizen informed of the circumstances of this case, it seems to me that Mr. Van Dyke’s release would tend to undermine public confidence in the administration of justice. [28] In my view, the chambers judge properly balanced the competing factors of reviewability and enforceability, pursuant to Mapara as confirmed in Gingras . [29] I would not substitute a different opinion for that of the chambers judge.  I have considered all the thorough submissions before this Court on the strength of the grounds of appeal.  I am not persuaded the grounds of appeal are strong, although they are not merely “not frivolous.” [30] I disagree with Mr. Van Dyke’s complaint about the judge’s concern that the offences occurred in the context of the drug trade and, given these violent circumstances, with his submission that the marihuana industry is less serious than drug offences involving more addictive and harmful substances.  This case did not involve possession or trafficking in small amounts of marihuana.  On the contrary, these offences demonstrate the seriously violent culture of the marihuana production industry, of which the use of firearms is a ubiquitous aspect. [31] Nor, with respect, do I view the “home invasion” feature of this case as attenuated by the fact the complainant was running a commercial grow operation inside the cabin.  This shooting could easily have been fatal. [32] In weighing the seriousness of the offences against the strength of the appeal and Mr. Van Dyke’s personal circumstances, I must respectfully disagree with Mr. Van Dyke that the factors in favour of his release outweigh the nature of the offences in this case.  As the Crown put it, Mr. Van Dyke shot a fleeing man in the context of the drug trade and in a clearly premeditated offence.  He also has a recent conviction for production of marihuana. Disposition [33] This is a serious case of personal injury caused by firearms.  The offences were violent and connected to the drug trade.  Mr. Van Dyke has a conviction for production of marihuana.  As in Gingras , enforceability requires strong grounds of appeal (para 60).  As to reviewability, Mr. Van Dyke’s personal circumstances, apart from the noted conviction, include 22 months of complying with terms of bail, which the Crown at the sentencing characterized as “exemplary”.  Further, Mr. Van Dyke’s father in Ontario has a terminal illness and Mr. Van Dyke wishes to visit him.  Mr. Van Dyke also has employment if released.  However, in my judgment, the grounds are not strong enough, even considered with his personal circumstances, to favour reviewability. [34] In the result, I would dismiss this application for review. “The Honourable Madam Justice MacKenzie” I agree: “The Honourable Chief Justice Finch” I agree: “The Honourable Mr. Justice Chiasson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: The Los Angeles Salad Company Inc. v. Canadian Food Inspection Agency, 2013 BCCA 34 Date: 20130129 Docket: CA039160 Between: The Los Angeles Salad Company Inc. and Los Angeles Salad International Inc. Appellants (Plaintiffs) And Canadian Food Inspection Agency and Her Majesty the Queen in Right of Canada as Represented by the Attorney General of Canada Respondents (Defendants) Before: The Honourable Mr. Justice K. Smith The Honourable Mr. Justice Frankel The Honourable Madam Justice Bennett On appeal from:  Supreme Court of British Columbia, June 15, 2011 ( The Los Angeles Salad Company Inc. v. Canadian Food Inspection Agency, 2011 BCSC 779, Vancouver Registry S076293) Counsel for the Appellant: Dale G. Sanderson, Q.C. Tina Mihoc Counsel for the Respondent: Marlon Miller Jim Shaw Place and Date of Hearing: Vancouver, British Columbia May 14 and 15, 2012 Place and Date of Judgment: Vancouver, British Columbia January 29, 2013 Written Reasons by: The Honourable Mr. Justice K. Smith Concurred in by: The Honourable Mr. Justice Frankel The Honourable Madam Justice Bennett Reasons for Judgment of the Honourable Mr. Justice K. Smith: [1] This appeal raises the question whether federal government food inspectors owe a private law duty of care to sellers of food products the breach of which would found an action for damages in tort. [2] The appellants, United States corporations that distribute carrots for retail sale by Costco in Canada and the United States, sued the respondents for damages for negligence in their inspection of carrots the appellants imported into Canada. At the material times, the respondent Canadian Food Inspection Agency (the “CFIA”) was exercising its inspection powers under the Canadian Food Inspection Agency Act , S.C. 1997, c. 6, and the Canada Agricultural Products Act , R.S.C. 1985, c. 20 (4th Supp.). The respondent Attorney General of Canada represents the Public Health Agency of Canada, established pursuant to the Public Health Agency of Canada Act , S.C. 2006, c. 5, and Health Canada (presided over by the Minister of Health), which agencies assisted the CFIA in the investigation. [3] On application in chambers by the respondents, the Honourable Mr. Justice Harris of the Supreme Court of British Columbia (as he then was) concluded the respondents owed the appellants no duty of care and, as a result, that the appellants’ statement of claim disclosed no reasonable claim. Accordingly, he struck their statement of claim and dismissed their action. [4] The chambers judge applied the analytical framework derived from Anns v. Merton London Borough Council , [1978] A.C. 728 (H.L.) (the “ Anns test”), as it was refined in Cooper v. Hobart , 2001 SCC 79, [2001] 3 S.C.R. 537 (the “ Anns/Cooper test ” ) to the question whether the CFIA owed the appellants a duty of care. This framework posits that if the plaintiff has established that the existence of the duty of care alleged has been recognized, a prima facie duty of care may be presumed. If not, the analysis considers whether there is, in the relationship between the parties, reasonable foreseeability of harm to the plaintiff from the defendant’s carelessness and sufficient proximity between the parties to make it just and fair to impose a prima facie duty of care. Finally, if a prima facie duty of care arises, the analysis considers whether there are residual policy considerations outside of the relationship between the parties that ought to negate or limit the prima facie duty. [5] The chambers judge concluded that “the circumstances of this case do not fall within a category of cases in which a duty of care has been recognised”; that the CFIA’s duty was owed to the public at large, not to commercial food suppliers; and that, although the respondents admitted reasonable foreseeability of harm, the appellants had not established sufficient proximity between the parties to support the duty of care they claimed. He concluded, in the alternative, that if a prima facie duty of care did arise, “its existence would be negated by the overarching policy problem of indeterminate liability”. [6] Citing Hunt v. Carey Canada Inc. , [1990] 2 S.C.R. 959 at 980, 74 D.L.R. (4th) 321, the chambers judge said, “The action should be struck only if it is plain and obvious that the statement of claim does not disclose a cause of action”. He concluded the respondents had discharged that burden since “it is plain and obvious that on the facts as pleaded or as they could be amended, no duty of care is owed by the defendants to the plaintiffs.” [7] The appellants contend the chambers judge erred in his application of the Anns/Cooper test and in the conclusions he reached at each stage of the analysis. As well, they submit, he erred in his application of the test set out in Hunt by failing to find that they “might” be able to establish a duty of care, that is, in failing to recognize that it was not plain and obvious that there was “no possibility” or “no chance” they could succeed if the action should be allowed to proceed. Accordingly, they ask this Court to set aside the impugned order and to dismiss the respondents’ application. [8] For the reasons that follow, I would not accede to the appellants’ submissions and I would dismiss the appeal. THE PLEADED FACTS [9] The appellants’ case as it was pleaded before the chambers judge was this: the appellants exported carrots to Canada where they were sold to the public by Costco; the CFIA is an agent of Her Majesty in right of Canada and has responsibilities under the Canadian Food Inspection Agency Act and the Canada Agricultural Products Act that include the inspection and grading of food products in import, export, and interprovincial trade; as a result of reports of illness by four consumers of the carrots, the CFIA, assisted by the Public Health Agency of Canada and Health Canada, inspected the carrots; the inspection was done negligently; the CFIA stated to the appellants, to Costco, to the US Food and Drug Administration, and to the public that the carrots might be contaminated with Shigella bacteria, which could cause illness, and advised the public not to consume them; as a result, Costco recalled the carrots from its retail stores in Canada, the appellants recalled their carrots from retail stores in the United States, and the recalled carrots were destroyed, along with the appellants’ carrots in inventory and “in the ground”; the carrots were not contaminated with Shigella and did not cause the alleged outbreak of Shigellosis; and the appellants suffered economic losses as a result. [10] The appellants seek to expand their case on appeal. Although they pleaded the CFIA’s post-inspection statements were made negligently, they did not plead they relied on the statements, an essential element of a negligence action founded on misstatement. Accordingly, they apply for leave to make amendments to support this new claim. As well, they seek leave to plead that the negligent misstatements were also made to and were relied upon by Costco in order to support a claim that they suffered either “relational economic loss” or “transferred loss”, two recognized categories of recovery, by reason of their contractual obligation to indemnify Costco for the loss of its carrots. [11] Since I would dismiss the appeal, formal amendments are unnecessary and I will consider the appeal as if the statement of claim had been amended as the appellants propose. DISCUSSION 1. Duty of Care Analysis (a) Whether the duty of care has been recognized i)   Whether the claim falls within the recognized category  of negligent inspection/investigation by a government entity [12] The Anns/Cooper proximity analysis begins by considering whether the case falls within a category of relationship in which the alleged duty of care has been recognized. If the duty has been recognized, it can usually be inferred that there is sufficient proximity between the parties to raise a prima facie duty of care and there is no need to consider proximity further; however, if the case does not clearly fall within a previously recognized relationship, whether proximity has been established must be carefully considered: Cooper at para. 36; Childs v. Desormeaux , 2006 SCC 18 at para. 15, [2006] 1 S.C.R. 643. [13] The appellants contend this case falls within or is analogous to a recognized category they describe as “negligent inspection/investigation” by a government entity that gives rise to a duty of care owed “to all those who could reasonably be injured by its negligence.” [14] Before the chambers judge, the appellants relied in support of their submission on Ingles v. Tutkaluk Construction Ltd. , 2000 SCC 12, [2000] 1 S.C.R. 298; Rothfield v. Manolakos , [1989] 2 S.C.R. 1259, 63 D.L.R. (4th) 449; Hill v. Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41, [2007] 3 S.C.R. 129; and Adams v. Borrel , 2008 NBCA 62, 297 D.L.R. (4th) 400, leave to appeal ref’d [2008] S.C.C.A. No. 470. They also referred to Just v. British Columbia , [1989] 2 S.C.R. 1228, 64 D.L.R. (4th) 689, which was discussed in Ingles and Adams . [15] In Ingles and Rothfield , the Court found that municipal building inspectors owed a duty of care to a homeowner and an owner-builder respectively who incurred repair costs as a result of the inspectors’ failure to take reasonable care to ensure that construction on their houses was properly carried out. In Hill , the Court held that the police owed a duty of care to a suspect of crime who, as a result of their negligent investigation, was wrongfully convicted and imprisoned. In Adams , the Court held that Agriculture Canada owed a duty of care to commercial potato farmers who suffered economic loss as a result of its faulty investigation of the source of a potato virus. In Just , the Court held that government inspectors of rock slopes adjacent to a public highway owed a duty of care to a driver who was injured by a falling rock. [16] The chambers judge did not accept the appellants’ contention that these cases establish a duty of care in respect of all reasonably foreseeable losses arising out of negligent inspection. He said, [33]      In my view, the proposition that a duty of care is owed by any government official to all who may be injured in any way by any negligent inspection without restriction is too broad. Rather, he said, “it is necessary to engage in a more discriminating analysis”. He distinguished the case at bar from building and road inspection cases on the basis of the relationship between the inspectors and the class of persons intended to be the beneficiaries of the inspections, and on the basis of the nature of the losses suffered and the interests protected. He said, [34]      ... A necessary part of the analysis is the recognition of both the class of persons and the type of interest intended to benefit from the inspection; an analysis involving both “who” and “what”. Not all interests are the same. Conduct creating a risk of bodily injury is treated differently from that endangering purely economic interests. [35]      This action is not one brought by a consumer who fell ill after eating food that had been inspected by CFIA, which had negligently failed to recognise that the food was contaminated. Such an action would be closer, but not completely analogous to, for example, the road inspection cases. Similarly, the action is not one brought to protect economic interests consequential on property damage or pure economic loss where it is apparent that the inspection scheme is intended to protect purchasers of homes. This case is materially different from those. In this case the injured party is a supplier of food that was inspected and tested by the defendants to determine whether it was safe for consumers to eat. The supplier has a statutory and common law obligation to ensure that it does not market or sell food that is unsafe for human consumption or is contaminated. It suffered pure economic loss. In my view, this case is not analogous to the building or road inspection cases either in respect of the intended beneficiary of the inspection or the interest to be protected. [17] Thus, he decided the search for precedent had to go beyond mere foreseeability of harm to examine the relationship between the parties: [36]      It is not the simple fact of an inspection or an investigation that gives rise to the existence of a duty of care. It is the fact that the inspection or investigation occurs in circumstances giving rise to a relationship of proximity between the inspector or investigator and a person who alleges injury by a negligent inspection or investigation. An examination of the factors bearing on recognizing the existence of proximity is inescapable in deciding whether or not a duty of care may exist. [18] He distinguished Hill on the basis that the Court’s proximity analysis in Hill “focussed on the details of the interests engaged in a criminal investigation”, adding that this examination of the interests involved would have been unnecessary had a duty of care arisen simply from the fact of the investigation. He found support for this view in River Valley Poultry Farm Ltd. v. Canada (Attorney General) , 2009 ONCA 326, 310 D.L.R. (4th) 152, leave to appeal ref’d [2009] S.C.C.A. No. 259, a case in which the Court found the CFIA and Health Canada owed no duty of care to an egg producer that suffered pure economic loss when it destroyed healthy chickens as a result of their negligent inspection of its poultry flock for infection by salmonella. He agreed with the reasoning in River Valley that distinguished Hill on the basis that Hill dealt with a criminal investigation of a particular individual in respect of harm that had already occurred and that the suspect’s liberty and Charter interests were involved, whereas River Valley concerned a non-criminal investigation for the purpose of preventing a threat of future harm that engaged the appellants’ purely economic interests. [19] Finally, the chambers judge did not accept that Adams established an “unqualified” tort of negligent inspection, as the appellants contended. Although the Court in Adams gave other grounds for its decision, the chambers judge focussed on the Court’s finding that a “key determinant” was “the nature of the statutory scheme under which the government actor [was] performing” and on its conclusion “that an immediate purpose of the legislative scheme is to protect the agricultural sector of the economy by protecting the interests of farmers.” By way of differentiation, he reasoned, it could not be said in the case before him “that the immediate purpose of the legislative scheme is to protect the economic interests of a supplier of food products who is the author of the potential risk being investigated.” [20] Accordingly, the chambers judge concluded this case was not within or analogous to a category in which a duty of care in inspection has been recognized. [21] The appellants contend the chambers judge erred in considering whether the protection of their interests was a purpose of the legislative scheme. In their submission, this question is properly confined to the second step in the proximity analysis. At the first step, they say, the proper question is whether the factual matrix of the case is the equivalent or an analogue of the factual matrices of decided cases in which the duty of care has been recognized. They refer to “strikingly similar” facts in Adams and argue, as they put it in their factum, that the chambers judge “did not consider whether the facts in the case at bar were similar to the facts in Adams or any of the other cases relied upon by the Plaintiffs.”  They contend Ingles and Rothfield (negligent inspections by government authorities) and Hill and Adams (negligent investigations by government authorities) are dispositive and, since this was a case of a negligent inspection and investigation by a government authority and, since the harm suffered by the appellants was reasonably foreseeable, this case is ipso facto within the category of negligence claims recognized by these cases. [22] This submission fails to recognize the critical role of proximity in the creation of a duty of care. In Supreme Court of Canada cases decided before Cooper , including Ingles and Rothfield , foreseeability of harm dominated the duty of care analysis. However, as the Court held in Cooper (at para. 22), Lord Atkin’s seminal statement of the negligence principle in Donoghue v. Stevenson , [1932] A.C. 562 at 580-81 (H.L.), made it clear that “foreseeability alone was not enough; there must also be a close and direct relationship of proximity or neighbourhood.” The Court observed (at para. 35) that there is no “single unifying characteristic” or broad general proposition that will determine whether proximity exists in a given situation. Rather, the Court said, “[p]roximity may be usefully viewed, not so much as a test in itself, but as a broad concept which is capable of subsuming different categories of cases involving different factors”, quoting the remarks of McLachlin J. (now C.J.C.) in Canadian National Railway Co. v. Norsk Pacific Steamship Co. , [1992] 1 S.C.R. 1021 at 1151, 91 D.L.R. (4th) 289. The Court itemized several categories in which sufficient proximity has been recognized and concluded at para. 36, When a case falls within one of these situations or an analogous one and reasonable foreseeability is established a prima facie duty of care may be posited. [23] Accordingly, the Court said, at para. 41, The first question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. The first inquiry at this stage is whether the case falls within or is analogous to a category of cases in which a duty of care has previously been recognized. [24] Chief Justice McLachlin, writing for the Court in Childs at para. 15, amplified the precedential aspect of the Anns/Cooper test, stating, The Court in Cooper introduced the idea that as the case law develops, categories of relationships giving rise to a duty of care may be recognized, making it unnecessary to go through the Anns analysis. The reference to categories simply captures the basic notion of precedent: where a case is like another case where a duty has been recognized, one may usually infer that sufficient proximity is present and that if the risk of injury was foreseeable, a prima facie duty of care will arise. On the other hand, if a case does not clearly fall within a relationship previously recognized as giving rise to a duty of care, it is necessary to carefully consider whether proximity is established. [25] Thus, at this stage of the proximity analysis, the question is not whether “negligent inspection/investigation” is a recognized tort, but whether there is a reasonable prospect that the relationship between the parties alleged in the pleadings will give rise to liability for negligent inspection/investigation: R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42 at para. 37, [2011] 3 S.C.R. 45 [ Imperial Tobacco (S.C.C.)]. A case will not be “like another case where a duty has been recognized” unless the relationships in the two cases are similar, and the chambers judge was correct to focus his search for precedent on a comparison of the relationships at issue and not, as the appellants contend, on foreseeability of harm and superficial factual similarities. [26] As a result, in order to satisfy the first inquiry in the Anns/Cooper duty of care analysis, the appellants were required to show that their relationship with the CFIA clearly falls within or is analogous to a category of relationship in which a duty of care has been recognized. [27] The appellants contend that Wilson Fuel Co. v. Canada (Attorney General) , 2009 NSSC 215, 280 N.S.R. (2d) 298, a case that was not placed before the chambers judge, recognized the duty of care for which they contend. In Wilson Fuel , the trial judge reasoned that an investigation of alleged violations of the Weights and Measures Act , R.S.C. 1985, c. W-6, by a government inspector was analogous to the police investigation in Hill and the case was therefore within the category of “negligent investigation” giving rise to a duty of care owed to the subject of the investigation. I do not agree that the relationship in Wilson Fuel was analogous to the relationship in Hill which, in my view, was correctly described as set out above by the chambers judge and by the Court in River Valley . Moreover, the reasoning in Wilson Fuel on which the appellants rely was obiter dicta , since the trial judge ultimately dismissed the action. Accordingly, Wilson Fuel does not assist the appellants. [28] The relationship in issue in the instant case is between a government food inspector and a food seller, a person who, as the chambers judge noted, had control over the very risk the inspection was intended to mitigate and, moreover, who was prohibited by legislation from selling contaminated food. In my view, the judge correctly concluded that this relationship was materially different from the relationships between the government authorities and the claimants in the cases relied upon by the appellants, that the appellants were therefore asserting a new cause of action in negligence, and that a full Anns analysis of this claim was required. ii)   Whether the claim falls within the recognized category of damage to property [29] In an argument raised for the first time on appeal, the appellants submit their claim in respect of the destruction of their carrots is based on physical damage to property. The Court in Cooper noted (at para. 36) that the law has recognized a duty of care where the defendant’s negligent act causes foreseeable physical harm to the plaintiff’s person or property. However, the physical harm must be the immediate consequence of the negligent act, as Chief Justice McLachlin made clear in Childs at para. 31, where she said the duty arises where the defendant’s overt act directly causes foreseeable physical harm. She explained why this is so in Norsk at 1153, where she said, Where there is physical injury or damage, one posits proximity on the ground that if one is close enough to someone or something to do physical damage to it, one is close enough to be held legally responsible for the consequences. Physical injury has the advantage of being a clear and simple indicator of proximity. [30] However, here, the respondents’ negligent acts were not the direct cause of the destruction of the appellants’ carrots. Rather, the appellants voluntarily recalled their carrots when (according to the appellants’ proposed amendments) the CFIA threatened Costco that, if Costco failed to recall the carrots from its stores, it would obtain an order pursuant to s. 19 of the Canadian Food Inspection Agency Act compelling Costco to recall them. The destruction of the carrots was pleaded in the passive voice in a context that implies that the carrots were destroyed by Costco and by the appellants themselves. Thus, this claim is not within the category of directly caused foreseeable physical damage to property in which the proximity necessary to raise a duty of care has been established. iii)  Whether the claim falls within the recognized category of negligent misrepresentation [31] On the basis of their proposed amendments, the appellants also raise negligent misrepresentation as a recognized category into which their case falls. Negligent misrepresentation was identified as a recognized category in Cooper at para. 36. In Imperial Tobacco (S.C.C.), the Court explained what must be shown to sustain this claim: [37]      ... [I]t is important to note that liability for negligent misrepresentation depends on the nature of the relationship between the plaintiff and defendant .... The question is not whether negligent misrepresentation is a recognized tort, but whether there is a reasonable prospect that the relationship alleged in the pleadings will give rise to liability for negligent misrepresentation. [32] The appellants submit that Northern Goose Processors Ltd. v. Canadian Food Inspection Agency , 2006 MBQB 198, 206 Man. R. (2d) 276, recognized a duty of care in negligent misrepresentation in circumstances analogous to those in the case at bar. Northern Goose was cited to the chambers judge, who distinguished it at para. 118, stating it was a case in which proximity was created by the repeated provision of incorrect, misleading or inaccurate information that was relevant for Northern Goose’s efforts to export product to the EU. The court considered that the case was an example of negligent misrepresentation or the negligent provision of a service. Of course, negligent misrepresentation was not pleaded in the statement of claim that was before the chambers judge, but it is now before this Court for consideration. [33] The plaintiff in Northern Goose was a processor of poultry meat and had been approved by Germany as an importer of that product. During a reorganization of the European Union’s regulatory system for food importation, an EU representative, accompanied by representatives of the CFIA, inspected the plaintiff’s plant and found various “deficiencies” in the production line. As a result of that and of some miscommunications by representatives of the CFIA with the EU, the plaintiff was removed from the EU’s list of approved importers. Relying on misinformation provided by CFIA representatives in many interactions over a period of several months the plaintiff erroneously understood it was simply “suspended” and could be readily reinstated with the EU upon correcting the deficiencies. Accordingly, it purchased the business of a competitor and entered into a large contract with its German customer. In the result, it was unable to obtain reinstated status with the EU in time to fulfill the contract and suffered losses for which it sued the CFIA, alleging negligence, malice, and misfeasance in public office. [34] The trial judge dismissed the claims of malice and misfeasance in public office. She observed the CFIA is a public authority carrying out public duties and that the question in negligence was whether it owed the plaintiff a private law duty of care. She referred to the Anns approach and expressed her application of it to the question in the following passages: [262]    Section 11 of the CFIA Act gives CFIA the responsibility for enforcing the MIA [ Meat Inspection Act , R.S.C. 1985, c. 25 (1st Supp.)]. Clearly this creates a public duty, but in addition, it creates a statutory relationship between CFIA and the individual registered establishments it regulates. That relationship creates a duty to enforce any applicable legislation and regulations in accordance with its powers, but also to act in a reasonable and prudent manner. [263]    Section 11 also results in CFIA being the entity that the EU interacts with in connection with exports of meat from Canada. CFIA was a third country authority, recognized by the EU to enforce its standards and regulations. [264]    In matters of export to the EU, a registered establishment had to be licenced, be approved by CFIA, and be on the EU’s list of approved establishments. Each of these components were regulated by CFIA. [265]    As to the second step in the Anns test, this is a case about operational negligence, not policy decisions. As was the situation in Anns , the harm here was occasioned as a result of public officials not carrying out their responsibilities in a reasonable and prudent manner. [35] The trial judge rejected the submission that the scope of CFIA’s liability should be limited because the claim was one for pure economic loss and, after noting that Norsk (at para. 31) identified five categories of economic loss in claims against public authorities (Independent Liability of Statutory Public Authorities, Negligent Misrepresentation, Negligent Performance of a Service, Negligent Supply of Shoddy Goods or Structures, and Relational Economic Loss), she said, [268]    For the reasons described earlier, I am of the view that CFIA was negligent in carrying out its obligations to Northern Goose. These acts (or omissions) of negligence would properly be described as negligent misrepresentation. Overall, these breaches of duty amount to either negligent performance of a service or independent liability of a statutory authority (if what is meant by the latter is negligence, rather than misfeasance in public office), or both. [36] The remedy for an unreasonable exercise of delegated discretionary powers by a statutory regulator is normally judicial review on administrative law principles: see Baker v. Canada (Minister of Citizenship and Immigration) , [1999] 2 S.C.R. 817 at para. 53, 174 D.L.R. (4th) 193. Although the failure to act reasonably may give rise to private law liability in some cases, the trial judge’s assertion, unsupported by authority, that the mere fact that the CFIA was charged with enforcing the statute in question created a statutory relationship that raised a private law duty to “act in a reasonable and prudent manner” toward all regulated individuals is not a view to which I would subscribe. The failure of the trial judge to undertake the first-step precedential analysis and to perform the careful proximity analysis of the relationship between the parties as required by Childs at para. 15 disqualifies Northern Goose from consideration as the author of a recognized category of relationship giving rise to a duty of care such that a prima facie duty might be presumed. As well, the substance of the inspection and the nature of the relationship between the parties in Northern Goose differed markedly from those in the case at bar. Moreover, the trial judge’s somewhat indecisive finding as to the precise cause of action in play is less than a clear and unequivocal finding of negligent misrepresentation as the basis of the plaintiff’s claim. [37] The appellants have not referred to any other case in which a government inspector has been found to owe a duty of care in an action based on a negligent misstatement made to the person subject to the inspection. Accordingly, this is a novel claim that must undergo an Anns analysis. (b) Whether there is sufficient proximity between the parties to raise a new duty [38] The precise meaning of proximity has been evolving since it emerged into the spotlight from the shadow of reasonable foreseeability in Cooper . In Hill , after observing (at para. 23) that the relationship between the alleged wrongdoer and the victim must be sufficiently close and direct to make it appropriate to impose a duty of care on the wrongdoer, the Court explained proximity in this way: [24]      Generally speaking, the proximity analysis involves examining the relationship at issue, considering factors such as expectations, representations, reliance and property or other interests involved: Cooper , at para. 34. Different relationships raise different considerations. “The factors which may satisfy the requirement of proximity are diverse and depend on the circumstances of the case. One searches in vain for a single unifying characteristic”: Cooper , at para. 35. No single rule, factor or definitive list of factors can be applied in every case. “Proximity may be usefully viewed, not so much as a test in itself, but as a broad concept which is capable of subsuming different categories of cases involving different factors” ( Canadian National Railway Co. v. Norsk Pacific Steamship Co. , [1992] 1 S.C.R. 1021, at p. 1151, cited in Cooper , at para. 35). [39] Policy concerns must also be considered in the proximity analysis. As Justice Abella said for the Court in Syl Apps Secure Treatment Centre v. B.D. , 2007 SCC 38, [2007] 3 S.C.R. 83, at paras. 26-28, [26]      There must also be a relationship of sufficient proximity between the plaintiff and defendant. The purpose of this aspect of the analysis was explained by Allen Linden and Bruce Feldthusen in Canadian Tort Law (8th ed. 2006) as being to decide “whether, despite the reasonable foresight of harm, it is unjust or unfair to hold the defendant subject to a duty because of the absence of any relationship of proximity between the plaintiff and the defendant” (p. 304). [27]      When the relationship occurs in the context of a statutory scheme, the governing statute is a relevant context for assessing the sufficiency of the proximity between the parties ( Cooper , at para. 43; Edwards , at para. 9). As this Court said in Edwards : “Factors giving rise to proximity must be grounded in the governing statute when there is one” (para. 9). [28]      Where an alleged duty of care is found to conflict with an overarching statutory or public duty, this may constitute a compelling policy reason for refusing to find proximity ( Cooper , at para. 44; Edwards , at para. 6). Such a conflict exists where the imposition of the proposed duty of care would prevent the defendant from effectively discharging its statutory duties. [40] In Imperial Tobacco (S.C.C.), the Court explained that “[a] complicating factor [in a proximity and foreseeability analysis] is the role that the legislation should play when determining if a government actor owed a prima facie duty of care” (at para. 43). The Court indicated proximity may be found in three circumstances. First, the relationship may be created in the statute itself, although the Court cautioned that, since statutes are most often “aimed at public goods”, it may be difficult to infer that the legislature intended to create private law tort duties, especially where such duties would conflict with the duty to the public and where the public duty is overarching (at para. 44). Next, proximity may “arise from a series of specific interactions between the government and the claimant” although, even here, a finding of proximity might have to give way for policy reasons if to recognize it would conflict with the statutory public duty (at para. 45). Finally, proximity may be found in a combination of statutory duties and interactions between the parties (at para. 46). [41] The chambers judge correctly noted that the proximity stage of the Anns test “involves consideration of foreseeability, proximity and policy issues as they arise from the relationship between the parties.” He outlined his task in assessing proximity as follows: [44]      The critical question is whether it is plain and obvious that there is no relationship of proximity between the parties. Answering that question requires that I consider whether the statutory scheme contemplates or excludes the existence of such a duty. If the question still remains open, I must examine the allegations of fact to determine whether “by a course of conduct in a purported exercise of the powers” the government officials have created the proximity necessary to justify recognition of the possible existence of a duty of care. [42] He began his analysis by stating, [69]      It is clear that regulators will generally not owe a duty of care to regulated entities if the purpose of the regulatory scheme is to promote the public interest and the regulatory scheme does not disclose an intention that in exercising their powers regulators are to take care to protect the interests of persons affected by the scheme of regulation. [70]      Regulator[s’] immunity from liability in tort when acting in their capacity as regulators in the public interest is the common position in British Columbia and Ontario. This much is illustrated by Imperial Tobacco [ British Columbia v. Imperial Tobacco Canada Ltd. , 2009 BCCA 540, 98 B.C.L.R. (4th) 201] and Knight [ Knight v. Imperial Tobacco Canada Ltd. , 2009 BCCA 541, 99 B.C.L.R. (4th) 93]. [43] After explaining why, in his view, the reasons of this Court in British Columbia v. Imperial Tobacco Canada Ltd. , 2009 BCCA 540, 98 B.C.L.R. (4th) 201, and in Knight v. Imperial Tobacco Canada Ltd. , 2009 BCCA 541, 99 B.C.L.R. (4th) 93, supported these statements, the judge turned to Ontario jurisprudence, stating, [79]      A number of Ontario cases also support the finding that where the statutory scheme places duties on the regulator to the public at large, the regulator cannot be said to owe individuals a private law duty of care in the exercise of those duties. Examples include Klein [ Klein v. American Medical Systems, Inc. (2006), 278 D.L.R. (4th) 722, 84 O.R. (3d) 217 (Ont. S.C.J., Div. Ct.)] , Eliopoulos [ Eliopoulos v. Ontario (Minister of Health & Long-Term Care) (2006), 276 D.L.R. (4th) 411, 82 O.R. (3d) 321 (C.A.)] and Attis [ Attis v. Canada (Health) , 2008 ONCA 660, 300 D.L.R. (4th) 415]. [44] Then, he summarized his view of the effect of the Ontario and British Columbia cases: [81]      The following principles can be drawn from the case law: A regulator may owe a duty of care for actions taken outside the scope of its regulatory role; Where a duty is owed to the public at large, there is generally no private law duty to a member of the public; and Where the statute confers certain powers or duties on the regulator for the benefit of a discreet [ sic ] class the regulator may owe a duty of care to a member of the class. [45] Next, the judge set out the purpose of the legislative scheme and the issue as he saw them: [83]      The first element of the scheme, as it is engaged by the facts of this case, is to require that fruit and vegetables marketed and sold in Canada are safe for consumers to eat, uncontaminated or adulterated and that they are edible and prepared in a sanitary manner. The primary obligation not to market or sell contaminated food resides with the supplier. CFIA has the power to enforce compliance with the regulations that require suppliers of food products to ensure that they do not market or sell food that is contaminated. [84]      The purpose of the legislative scheme is obviously and plainly to protect the safety of food eaten by consumers. It is obvious that a purpose of the scheme is to protect the health of the public and to prevent the spread of disease. This is a purpose designed to protect and promote the public interest, not create a duty of care. [85]      The issue then is whether this legislative statement of purpose leaves any room for concurrent duties of care owed to the regulated entities. [46] Continuing, the judge discussed the appellants’ submissions that the statutory scheme, properly construed, contemplated the protection of their economic interests. In support of their submissions, the appellants had referred to provisions in the Crown Liability and Proceedings Act , R.S.C. 1985, c. C-50, granting the right to sue the Crown; to provisions in the Canadian Food Inspection Agency Act requiring the Minister act “on reasonable grounds” in ordering a recall and to similar requirements in the Food and Drugs Act , R.S.C. 1985, c. F-27, and the Canada Agricultural Products Act ; and to the absence of an immunity provision or compensation scheme in those Acts. In the view of the chambers judge, the relevant statutory powers were to be exercised to protect the public from the risks associated with the consumption of contaminated food and nothing in the scheme imposed an obligation to have regard to the appellants’ economic interests. Accordingly, he concluded it was “plain and obvious that the statutory scheme does not create a relationship of proximity between the defendants and the plaintiffs.” [47] The judge turned next to whether the respondents had created a relationship of proximity with the appellants by their conduct. [48] The conduct on which the appellants relied before the chambers judge was pleaded thus: 10A.     At all material times the Plaintiffs and the Defendants were in a relationship of proximity. In particular: (a)        The CFIA published on its public web page statements indicating that it owed a duty of care to the food industry. In particular it made the public representations: (i)         To develop effective policies and strategies, we value the perspectives of the stakeholders who are affected by our decisions. ... External stakeholders include all levels of government, consumers, regulated parties and various other interest groups. (ii)        “Safeguarding the Canadian Public, Environment and Economy”. (iii)       The Agency’s Corporate Business plan delineates our commitment to Canadians in five key areas: public health by protecting Canadians from preventable health risks; environmental protection by sustaining the plant and animal resource base; public security by promoting the security of Canada’s food supply; economic growth by delivering a fair and effective regulatory regime; and good governance by providing sound Agency management. (b)        the Defendants knew or ought to have known that the Baby Carrots they were investigating, testing and reporting about to the public as well as to the US FDA, were products of and supplied by the Plaintiffs; (c)        the Defendant CFIA, was in direct contact with the Plaintiffs on August 17th, 2007 to discuss the possible contamination of the Baby Carrots, before the Public Announcements were issued, the recall requested and the matter reported to the US FDA; (d)        the Defendants knew or ought to have known that the breaches of duty of care referred to herein could reasonably cause damage to the Plaintiffs. [49] The judge reasoned (obviously with reference to paragraph 10A(c)) that mere interaction by a government regulator with the subject of its investigation is not sufficient to create the necessary close and direct relationship to found a duty of care. In his view, in its interactions with the appellants the CFIA was simply carrying out its statutory mandate and fulfilling its duties to the public at large. He said it would be inconsistent with the exercise of the statutory powers if the respondents were also required to consider the effect of their exercise on the commercial interests of the appellants. In this regard, he said, [112]    ... The following comment by Laskin J.A. in River Valley , albeit in the context of a different piece of legislation enforced by CFIA, is applicable to this case: [69]      Inspectors charged with tracking the spread of infectious disease inevitably must focus their investigations on persons or sites where exposure or contamination has potentially occurred. In carrying out their investigation, inspectors appointed by CFIA have broad discretionary powers to inspect enterprises, even seize and detain and quarantine animals. In exercising these broad powers, inspectors are not obliged to be mindful of the economic interests of individual farmers. Their overriding concern is the protection and promotion of human and animal health. [50] Further, the judge found that the statements on the CFIA website (pleaded in paragraph 10A(a)) were too general to support the appellants’ submission that they implied an obligation to consider the economic interests of food suppliers when testing for food safety and were “not sufficiently connected to the circumstances of the plaintiffs to ground any arguable case that a relationship of proximity was created.” [51] The judge summarized his analysis as follows: [119]    The outcome of this case is determined by authority binding on me [ Imperial Tobacco and Knight ]. The general proposition that duties owed only to the public do not give rise to a duty of care is the common position both in British Columbia and Ontario. Although proximity may be created by regulators’ conduct, it does not typically arise when the regulator is simply discharging his or her statutory responsibilities in the public interest. Knowledge of the existence of the regulated entity or the entity’s product is not sufficient to create proximity which the statutory scheme does not otherwise create. [120]    Here, the statute creates a duty to the public at large; the plaintiffs are not members of a discreet [ sic ] class the legislation seeks to protect. In my view, it is plain and obvious that the conduct alleged in the pleadings does not rise to the level or type of conduct which some courts have been prepared to conclude has created a relationship of proximity sufficient to support the existence of a prima facie duty of care. [52] The appellants submit first that the chambers judge erred in concluding that regulators are immune from liability when acting within the scope of their regulatory role. They refer to his statement that “Regulator[s’] immunity from liability in tort when acting in their capacity as regulators in the public interest is the common position in British Columbia and Ontario” (at para. 70). However, this statement must be read in its context. It is apparent from the immediately preceding paragraph that the judge was there referring to regulators acting under legislative schemes designed to promote a public interest that do not disclose a legislative intention to protect the private interests of those affected. As an observation on the current state of the jurisprudence, the judge’s statement was generally true. Indeed, he said (at para. 81 of his reasons, quoted at para. 44 above) that is “generally” the case and (at para. 119) that proximity “does not typically arise when the regulator is simply discharging his or her statutory responsibilities in the public interest”. Thus, he did not state a rule that there cannot be a private law duty of care if the purpose of the legislative scheme is to protect and promote the public interest, as the appellants contend. Rather, he examined the relationship between the parties, as he should have, having regard to the statutory scheme in issue and the particular conduct alleged to create proximity in this case. As I have explained, that is the correct approach and I would therefore reject the contention that he erred in taking it. [53] The appellants take issue with the chambers judge’s construction of the statutory scheme and with his rejection of their submission that the necessary proximity was created by the respondents’ conduct. Essentially, they repeat submissions that were made to and rejected by the chambers judge and ask this Court to reach different conclusions. I will not set out the judge’s discussion of these submissions any further since it is lengthy and it is readily available in his reasons for judgment to anyone who might wish to read it. Suffice it to say that I agree with his conclusions on these issues substantially for the reasons he gave at paras. 83-118 of his reasons and that nothing the appellants have added on this appeal persuades me that he erred. [54] The appellants seek to buttress their conduct-based claim of proximity by their proposed amendments. They would plead that, before announcing the result of their investigation, the CFIA “wanted Costco to obtain certain information from the Plaintiffs” to assist their investigation and that “[t]he Plaintiffs promptly provided all information sought.”  They would also provide particulars of the CFIA’s statements made on or about August 17, 2007 as pleaded in paragraph 10A(c) of their statement of claim (see above at para. 48) and would add that the CFIA advised them on August 20, 2007 that the recall in Canada was based on a statistical analysis that implicated the carrots and that the carrots were probably contaminated with Shigella and were connected to four confirmed illnesses associated with their consumption. [55] These proposed amendments do not add anything material to the pleaded facts that were before the chambers judge in respect of the claim of conduct-based proximity. In my view, the clear purpose of the relevant legislative scheme is to protect the health of Canadians by preventing the sale of contaminated food in Canada. To recognize a private law duty of care to food sellers would conflict with that purpose. It would put food inspectors in the untenable position of having to balance the paramount interests of the public with private interests of food sellers and would thereby have a chilling effect on the proper performance of their duties. Thus, the statutory scheme excludes the possibility of sufficient factual proximity to make it just and reasonable to impose a prima facie duty of care in the circumstances of this case: see Imperial Tobacco (S.C.C.) at para. 47. The appellants also propose amendments to plead that the CFIA’s statements were made to induce Costco and the plaintiffs to recall the carrots in Canada and the United States respectively, that the appellants and the CFIA were in a “special relationship”, and that both Costco and the appellants, in reasonable reliance on the statements, recalled the carrots and the carrots were destroyed. On these proposed amendments, the appellants found three submissions. [56] The first is that the CFIA owes them a duty of care in an action for negligent misrepresentation. As I have already noted, though negligent misrepresentation is mentioned as a recognized category at para. 36 in Cooper , whether the appellants’ claim falls within this category depends on the nature of the relationship between the parties ( Imperial Tobacco (S.C.C.) at para. 37). The appellants’ claim does not fit within a settled category of negligent misrepresentation, as the law has not yet recognized the relationship between a government food inspector and the subject of a food inspection as giving rise to a duty of care such that a prima facie duty might be presumed in this case. [57] Therefore, an Anns analysis is necessary. For the reasons already stated, an analysis of the relationship in this case does not lead to a prima facie duty of care. Accordingly, the claim based on negligent misrepresentation would be bound to fail. [58] The appellants’ second submission is that Costco’s reliance on the CFIA’s statements resulted in a contractual relational economic loss suffered by the appellants, another category of case in which a duty of care was recognized in Cooper at para. 36. In Design Services Ltd. v. Canada , 2008 SCC 22, [2008] 1 S.C.R. 737, the Court, per Rothstein J., described the claim for relational economic loss: [33]      ... Linden and Feldthusen, at p. 477, define relational economic loss as a situation in which “the defendant negligently causes personal injury or property damage to a third party. The plaintiff suffers pure economic loss by virtue of some relationship, usually contractual, it enjoys with the injured third party or the damaged property.” [34]      The appellants do not fit within the relational economic loss category because no property of Olympic was actually damaged in this case. From its origin, relational economic loss has always stemmed from injury or property damage to a third party. [35]      The reason appears to be that physical damage tends “to ensure a reassuringly proximate nexus between tortious act and recoverable damage” ( Caltex Oil (Aust.) Pty. Ltd. v. The Dredge “Willemstad” (1976), 11 A.L.R. 227 (H.C.), at p. 255). This is not to say that in the development of new categories under the Anns test, physical injury or property damage would necessarily be a requirement to justify a finding of proximity. However, insofar as the existing category of relational economic loss is concerned, injury or property damage to a third party has been a requirement. [59] Here, although the appellants suffered a loss by reason of their contractual obligation to indemnify Costco for its losses in the transaction, the CFIA’s negligent misstatements did not cause direct physical damage to Costco’s carrots. As a result, it is my view that the appellants’ claim for relational economic loss would be bound to fail. [60] The appellants’ third submission is that the appellants suffered a “transferred loss”, that is, because they were contractually obliged to indemnify Costco for Costco’s loss, the appellants are for purposes of tort law treated as if they were in Costco’s shoes and their claim falls within the “joint” or “common venture” category recognized in Cooper at para. 36. The theory of this claim was explained in Norsk by McLachlin J. (now C.J.C.) at 1162-1163: ... [W]here the plaintiff’s operations are so closely allied to the operations of the party suffering physical damage and to its property (which—as damaged—causes the plaintiff’s loss) that it can be considered a joint venturer with the owner of the property, the plaintiff can recover its economic loss even though the plaintiff has suffered no physical damage to its own property. To deny recovery in such circumstances would be to deny it to a person who for practical purposes is in the same position as if he or she owned the property physically damaged. The second question is whether extension of recovery to this type of loss is desirable from a practical point of view. Recovery serves the purpose of permitting a plaintiff whose position for practical purposes, vis‑à‑vis the tortfeasor, is indistinguishable from that of the owner of the damaged property, to recover what the actual owner could have recovered. This is fair and avoids an anomalous result. Nor does the recovery of economic loss in this case open the floodgates to unlimited liability. The category is a limited one. It has been applied in England and the United States without apparent difficulty. It does not embrace casual users of the property or those secondarily and incidentally affected by the damage done to the property. Potential tortfeasors can gauge in advance the scope of their liability. Businesses are not precluded from self‑insurance or from contracting for indemnity, nor are they ‘penalized’ for not so doing. Finally, frivolous claims are not encouraged. [61] This submission also suffers from the defect that the CFIA’s negligence did not directly cause foreseeable physical harm to Costco’s carrots. Accordingly, this claim, too, would be bound to fail. [62] These conclusions are sufficient to dispose of this appeal and it is not strictly necessary to comment on the appellants’ challenge to the alternative finding that a duty of care should be rejected on the overriding policy ground of indeterminate liability. Nevertheless, I will comment on this matter. (c) Whether the policy ground of indeterminate liability would negate any duty of care [63] The concern about indeterminate liability is that the duty of care claimed may be so broad that its limits are indeterminable. As the Court explained in Fullowka v. Pinkerton’s of Canada Ltd. , 2010 SCC 5, [2010] 1 S.C.R. 132: [70]      ...The concern is that the proposed duty of care, if accepted, would impose “liability in an indeterminate amount for an indeterminate time to an indeterminate class”, to use the often repeated words of Cardozo C.J. in Ultramares Corp. v. Touche , 174 N.E. 441 (N.Y. 1931), at p. 444. At the root of the concern is that the duty, and therefore the right to sue for its breach, is so broad that it extends indeterminately. In this sense, the policy concern about indeterminate liability is closely related to proximity; the question is whether there are sufficient special factors arising out of the relationship between the plaintiff and the defendant so that indeterminate liability is not the result of imposing the proposed duty of care: see, e.g., Canadian National Railway Co. v. Norsk Pacific Steamship Co. , [1992] 1 S.C.R. 1021, at p. 1153. What is required is a principled basis upon which to draw the line between those to whom the duty is owed and those to whom it is not: see, e.g., Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. , [1997] 3 S.C.R. 1210, at para. 64, per McLachlin J. (as she then was). [64] On the other hand, the duty may be circumscribed and the liability appropriately limited when the claimants comprise a finite group: Fullowka at para. 71. [65] The appellants’ submission that indeterminate liability is not a concern in the instant case is founded on the premise that their loss is made up of physical damage to their property, consequential economic loss (a result of physical damage to their property), relational economic loss, and/or transferred loss. Thus, they say, their claim does not raise the spectre of liability “in an indeterminate amount for an indeterminate time to an indeterminate class”. However, for the reasons I have set out above, none of these categories is applicable. [66] The chambers judge said this about indeterminate liability: [124]    ... If a duty of care to protect the economic interests of a supplier of food existed, then it is difficult to see on what principled basis a duty would not be owed to a multitude of other persons whom it would be reasonably foreseeable would suffer economic loss by negligent inspection. Claims could be advanced by retailers, wholesalers, suppliers, food processors, distributors, farmers and employees of each of the above. This appears to be exactly the kind of problem that has led to a prima facie duty of care being negatived in other circumstances. [67] In support of his conclusion he quoted from this Court’s decision in Knight at paras. 79 and 82-83, which cited Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. , [1997] 3 S.C.R. 1210, 153 D.L.R. (4th) 385 at paras. 62-63, and from Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261 at para. 74. These passages fully support his conclusion. In fact, in their second amended statement of claim, the appellants allege the CFIA owed duties to suppliers, importers, manufacturers, and distributors of food products. In my view, the chambers judge was correct on this issue. 2. The Test for Striking Claims [68] The appellants submit the action should have been allowed to proceed to trial because it was not plain and obvious they had pleaded no reasonable claim so long as there was a “possibility” or a “chance” they might establish a duty of care “when all the facts are out”, as counsel put it during submissions. They note that because the common law is always evolving, the test should not be applied strictly so as to foreclose an opportunity to pursue novel but arguable claims: Imperial Tobacco (S.C.C.) at para. 21. [69] The appellants invoke Mohl v. University of British Columbia , 2006 BCCA 70, 265 D.L.R. (4th) 109, where this Court held it was not plain and obvious that claims for breach of contract, breach of fiduciary duty, and negligence brought by a failed student against his university were an abuse of process. They rely specifically on the Court’s remark (at para. 41) that there was “at least a hint of some merit” in the plaintiff’s claims as an affirmation of the high bar to be overcome by the respondents on the strike application. [70] However, the Court’s remark was part of its discussion of a submission made by the student, an in-person litigant, that the case should be allowed to proceed as a novel claim for “educational malpractice”. Since some Canadian trial courts had struck such claims at the pleadings stage and others had refused to do so, and since the Supreme Court of Canada had recently stated in Young v. Bella , 2006 SCC 3, [2006] 1 S.C.R. 108, albeit in another context, that universities owe general and contractual duties to their students, the Court said it would be premature to decide that the student’s claims were not actionable and that it would not strike them from the statement of claim on that basis. [71] However, the university did not argue that the student’s claims were not actionable. Rather, its submission was that the claims were an abuse of process because the facts material to the claims had already been decided against the student by a Senate Committee during an internal university appeal of his failing grade. The Court rejected the university’s submission that the facts had been decided and, in the statement relied upon by the appellants, observed in passing that it appeared there might be some evidence to support the student’s claims. The Court permitted the plaintiff’s claims to go forward for trial not because there might be evidence to support them, but because it was not plain and obvious that the material facts pleaded disclosed no reasonable claim for breach of contract, breach of fiduciary duty, or negligence. Accordingly, Mohl represents simply an application of the test for striking claims and neither alters nor elucidates the test. [72] As already noted, the test assumes the facts pleaded (or that might reasonably be pleaded by amendment) are true and asks whether it is plain and obvious that the statement of claim discloses no cause of action: Hunt at 980; Minnes v. Minnes (1962), 34 D.L.R. (2d) 497 at 505, 39 W.W.R. 112 (B.C.C.A.). Another way of stating the question is to ask “whether, considered in the context of the law and the litigation process , the claim has no reasonable chance of succeeding”: Imperial Tobacco (S.C.C.) at para. 25; see also paras. 17, 21. [73] Accordingly, the respondents were required to demonstrate that the appellants’ claim had no reasonable chance of succeeding, and I would not accede to the appellants’ submission that the chambers judge erred in failing to require the respondents to show there was no possibility or no chance the appellants might establish a duty of care. Moreover, whether a duty of care exists is a question of law, not a question to be decided on evidence. The question was to be answered summarily on the application to strike on the assumption that the material facts pleaded were true. Given this assumption, the appellants’ contention that the decision should be deferred until “all the facts are out” is illogical and I would not accept it: see Imperial Tobacco (S.C.C.) at paras. 23-24. [74] Accordingly, I would reject the appellants’ submission that the chambers judge erred in his application of the test for striking claims. CONCLUSION [75] On a final note, the conclusion that a food seller who suffers losses as a result of the negligence of government authorities has no recourse to obtain compensation in a tort action may seem contrary to the currently popular demand for “accountability” of all decision-makers. In this regard, I refer to the observations of the Chief Justice, for the Court, in Elder Advocates at para. 74 that Where the defendant is a public body, inferring a private duty of care from statutory duties may be difficult, and must respect the particular constitutional role of those institutions: Welbridge Holdings Ltd. v. Greater Winnipeg , [1971] S.C.R. 957, per Laskin J., as he then was, for the Court. Related to this concern is the fear of virtually unlimited exposure of the government to private claims, which may tax public resources and chill government intervention. In my view, these remarks reflect a recognition that the legislative branch is better situated than the courts to decide whether compensation should be due in cases such as this. [76] For the reasons I have set out, I would dismiss the appeal. “The Honourable Mr. Justice K. Smith” I agree: “The Honourable Mr. Justice Frankel” I agree: “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Burchill v. Roberts, 2013 BCCA 39 Date: 20130130 Docket: CA039582 Between: Nancy Elizabeth Burchill Respondent (Claimant) And Colin George Roberts Appellant (Respondent) Before: The Honourable Chief Justice Finch The Honourable Madam Justice Prowse The Honourable Mr. Justice Groberman On appeal from: Supreme Court of British Columbia, November 30, 2011 ( Burchill v. Roberts , 2011 BCSC 1793, Vancouver Docket No. F970060) Appellant Appearing In Person: C. Roberts Counsel for the Respondent: D. Paterson Place and Date of Hearing: Vancouver, British Columbia January 7, 2013 Place and Date of Judgment: Vancouver, British Columbia January 30, 2013 Written Reasons by: The Honourable Madam Justice Prowse Concurred in by: The Honourable Chief Justice Finch The Honourable Mr. Justice Groberman Reasons for Judgment of the Honourable Madam Justice Prowse: INTRODUCTION [1] Mr. Roberts is appealing from that aspect of the order of a chambers judge, made November 30, 2011, ordering him to pay retroactive child support for the parties’ son in the amount of $55,212 for the period January 1, 2006 to December 31, 2011.  The order was made pursuant to the Family Relations Act , R.S.B.C. 1996, c. 128, having regard to the Federal Child Support Guidelines . SOR/97 - 175 (the “ Guidelines ”), incorporated by reference pursuant to s. 129 of the Family Relations Act , and, in particular, Regulation 1(2) of the Child Support Guidelines Regulation , B.C. Reg. 61/98. [2] The chambers judge also made an order that Mr. Roberts pay ongoing child support in the amount of $1,537 per month commencing January 1, 2012 based on Mr. Roberts’ Guidelines annual income of $180,157.  She dismissed Ms. Burchill’s claim for arrears of child support for the years 1997 to 2005. BACKGROUND [3] Mr. Roberts and Ms. Burchill lived together in a common law relationship from May 1991 to January 1995.  Their son was born on February 14, 1992. [4] In January 1997, Ms. Burchill commenced proceedings against Mr. Roberts seeking child support pursuant to the Family Relations Act .  The Statement of Claim disclosed that Ms. Burchill was then 36 years of age and employed as a nurse and that Mr. Roberts was 51 years of age and employed as a commercial insurance broker.  Their son was then 5 years old and had been living with Ms. Burchill since the parties separated. [5] On June 2, 1997, the parties entered into a consent order providing that Ms. Burchill have interim sole custody and guardianship of their son and that Mr. Roberts pay Ms. Burchill interim child support in the amount of $1,250 per month “until further court order”.  This amount was based on Mr. Roberts’ annual income of $90,000.  The order provided that child support was to be taxable in Ms. Burchill’s hands (and, accordingly, tax deductible for Mr. Roberts).  At the time of this order, both parties were represented by counsel. [6] Shortly after this order was obtained, the parties met in a coffee shop to further discuss child support, apparently because Mr. Roberts did not wish to pay child support on a tax deductible basis.  The chambers judge found that, as a result of that meeting, Ms. Burchill agreed to accept child support in the amount of $737 on the understanding that there would be no tax consequences for either party.  No further order was obtained by either party relating to child support until the order under appeal.  Thus, Mr. Roberts paid child support in the amount of $737 per month from 1997 until November 2011 – just over 14 years. [7] In December 2010, Mr. Roberts advised Ms. Burchill that he would be terminating child support in February 2011 when their son turned 19 years of age.  At that point, Ms. Burchill sought legal advice, as a result of which she became aware of Mr. Roberts’ substantial increases in income.  Although the evidence is limited, the most significant increases in income were found to be those arising as of 2005.  On November 2, 2011, Ms. Burchill brought an application for increased child support, payment of arrears under the 1997 court order, and payment of retroactive support based on Mr. Roberts’ Guidelines income commencing January 1, 2006.  It was that application which culminated in the order under appeal. [8] Both parties were represented by counsel at the hearing before the chambers judge.  Mr. Roberts appeared on his own behalf on appeal. DECISION OF THE CHAMBERS JUDGE [9] The chambers judge dismissed Ms. Burchill’s application for arrears of payments pursuant to the original court order for the period from 1997 to 2005 on the basis that Ms. Burchill had agreed to accept reduced payments of $737 per month.  This aspect of the application was dealt with at para. 40 of her reasons for judgment, where she stated: The evidence in this case is that the material change in circumstances occurred approximately five years ago.  I accept [Mr. Roberts’] argument that until then, the parties had an agreement that $737 per month would be payable.  Ms. Burchill was aware that Mr. Roberts was earning in the range of $90,000 per year, and with that knowledge, accepted the $737 per month support for Jack.  She cannot now seek payment in the amount of $900 to $950 for those three years.  Accordingly her claim for arrears of child support between 1997 and 2005 is dismissed. [10] There is no cross appeal with respect to the arrears of child support. [11] In dealing with retroactive child support, the chambers judge relied on the leading decision of the Supreme Court of Canada in D.B.S. v. S.R.G. , 2006 SCC 37, [2006] 2 S.C.R. 231. In applying that decision, she found that: (1)  Ms. Burchill’s delay in bringing her application for retroactive support was not unreasonable or blameworthy in the circumstances, primarily since she was unaware of the substantial increases in Mr. Roberts’ income since 1997 and he did not advise her of the increases.  She cited D.B.S. for the proposition that, even if the delay could be viewed as unreasonable, it was only one of several factors to consider and did not absolve Mr. Roberts of his obligation to pay reasonable support in accordance with his income. (2)  Mr. Roberts’ failure to pay child support in accordance with the substantial increases in his income since 1997 was blameworthy, even in the absence of a demand for an increase, since he was, or should have been, aware of his obligation to pay child support commensurate with his income.  The discrepancy between what he should have been paying under the Guidelines and what he paid was so significant that “there is no room for an inference that he thought he was meeting his obligations.” (para. 32). (3)  There was no evidence that their son experienced “significant hardship” over the years; nor, on the other hand, was there evidence that he was living in a manner commensurate with a father earning in the range of $200,000 per year.  There was evidence that Ms. Burchill had accumulated debt for the living costs of herself and their son over the years, and that their son had to rely on a variety of sources of income, including loans, to meet his university expenses. (4)  There was no evidence that Mr. Roberts would suffer hardship in the event of the requested retroactive order. (5)  In terms of the commencement date for the retroactive payments, the chambers judge noted that there was a presumptive three-year limit but that this did not apply where she had found Mr. Roberts’ conduct to be blameworthy.  Based on the absence of any evidence of any material change in Mr. Roberts’ income before 2005, she concluded that the retroactive order should commence as of January 1, 2006 and be paid in accordance with Mr. Roberts’ actual income as reflected in a chart provided by counsel, allowing deductions for business (car) expenses, but not allowing deductions for RRSP contributions. [12] As earlier stated, the amount of retroactive child support calculated on this basis amounted to $55,212, for the period January 1, 2006 to December 31, 2011. ISSUES ON APPEAL [13] Mr. Roberts submits that the trial judge erred in ordering retroactive child support for any period prior to June 2011 when, he submits, Ms. Burchill first requested that he pay more.  According to his calculation, the amount of retroactive support should have been no more than $5,600, apparently based on his income for 2011. [14] Mr. Roberts also submits that the trial judge erred in: (a)  finding that his conduct in failing to make financial disclosure and/or pay greater support commensurate with his increased income was blameworthy; (b)  failing to find that Ms. Burchill’s delay in seeking an increase in support was unreasonable and blameworthy; (c)  making a retroactive order in the absence of any evidence that their son had suffered from the absence of increased support; and (d)  misquoting D.B.S. in stating (at para. 19) that the need of the “recipient parent” (rather than “the child”) was a relevant consideration, and in stating (in para. 37) that the date that increased support should commence will “often” (rather than “sometimes”) be commensurate with the material change in the payor’s actual income where there is blameworthy conduct. [15] I will elaborate on the chambers judge’s findings and the evidence in discussing these grounds of appeal. STANDARD OF REVIEW [16] The standard of review to be applied by an appellate court in reviewing child support orders is set out in the following passage from Hickey v. Hickey , [1999] 2 S.C.R. 518, at paras. 11 and 12: Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong... ...Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently. DISCUSSION 1. Introduction [17] I begin this discussion by observing that the materials before the chambers judge, including financial information, were more limited than one would expect on an application relating to a period of over 14 years.  There were no financial statements or income tax returns from either of the parties and the affidavit evidence setting forth the factual background was relatively sparse and, on some points, contradictory.  As a result, the chambers judge had to draw inferences from the evidence available to her, and she did so.  Fortunately, the parties agreed on a schedule of Mr. Roberts’ income for the years 2006-2011 which enabled the chambers judge to make findings (unchallenged on this appeal) of his Guidelines income for those years.  That schedule sets out Mr. Roberts’ income, the Guidelines child support payable for each year, and the manner in which the retroactive support was calculated , taking into account the payments he made, as follows: SCHEDULE A BURCHILL v. ROBERTS RETROACTIVE SUPPORT CLAIM (Allowing business expense deduction but not RRSP purchase) 2006 1. Roberts’ income before RRSP purchase $164,817.00 2. Roberts’ yearly child support obligation @ $164,817 = $1,417/month $17,004.00 3. Roberts’ actual payments @ $737/month ‹ 8,844.00 › 4. retroactive claim $8,160.00 2007 1. Roberts’ income before RRSP purchase $149,802.00 2. Roberts’ yearly child support obligation @ $149,802 = $1,301/month $15,612.00 3. Roberts’ actual payments @ $737/month ‹ 8,844.00 › 4. retroactive claim $6,768.00 2008 1. Roberts’ income before RRSP purchase $185,221.00 2. Roberts’ yearly child support obligation @ $185,221 = $1,576/month $18,912.00 3. Roberts’ actual payments @ $737/month ‹ 8,844.00 › 4. retroactive claim $10,068.00 2009 1. Roberts’ income before RRSP purchase $195,323.00 2. Roberts’ yearly child support obligation @ $195,323 = $1,655/month $19,860.00 3. Roberts’ actual payments @ $737/month ‹ 8,844.00 › 4. retroactive claim $11,016.00 2010 1. Roberts’ income before RRSP purchase $180,157.00 2. Roberts’ yearly child support obligation @ $180,157 = $1,537/month $18,444.00 3. Roberts’ actual payments @ $737/month ‹ 8,844.00 › 4. retroactive claim $9,600.00 2011 assuming income figures are the same as 2010 retroactive claim $9,600.00 Total retroactive claim if business expenses allowed 2006-2011 inclusive $55,212.00 [18] As is evident, Mr. Roberts was paying only $737 per month for that entire period based on his 1997 income of $90,000.  He was not paying that amount pursuant to the interim court order made in June 1997 (which provided for payments of $1,250 per month), but pursuant to the oral agreement which the chambers judge found the parties had entered into shortly thereafter.  It is this agreement which the chambers judge found governed the relationship between the parties regarding child support over the ensuing years, not the court order.  There is no challenge to this aspect of the chambers judge’s analysis. 2. The Application of D.B.S. [19] In essence, Mr. Roberts submits that the chambers judge erred in her application of  the principles in D.B.S. to the evidence before her.  The D.B.S. decision has been cited in our Courts and in other jurisdictions on numerous occasions since it was decided by the Supreme Court of Canada in 2006.  For that reason, I do not propose to review the decision in detail.  Suffice it to say that it sets forth key principles to be considered by courts in dealing with claims relating to retroactive child support.  In D.B.S. , these principles were discussed in a variety of contexts, including circumstances where there was either an order or an agreement in place providing for child support. [20] Here, the chambers judge found that there was an oral agreement between the parties entered into shortly after the court order in 1997 which provided for child support.  In D.B.S. , at paras. 78 and 79, Mr. Justice Bastarache, speaking for the majority, stated that, in the absence of governing provincial legislation giving agreements a special status, the principles governing retroactive child support will generally be similar to those applied in the case of prior court orders.  The agreement will be given some significance, but where circumstances have changed, the courts may make a retroactive award which is not in accord with the agreement as long as it is not contrary to the applicable statutory regime.  This is not surprising since the law was clear long before the D.B.S. decision that parents could not bargain away the right of their child to appropriate levels of child support. [21] In this case, the oral agreement was made in a coffee shop at the behest of Mr. Roberts, without the benefit of legal advice, and for an amount which is less than the amount provided for in the consent order which was reached days earlier with the benefit of legal advice.  In those circumstances, there was no basis for giving that agreement anything other than minimal weight in balancing it with the other relevant considerations relating to retroactive support.  At most, it reflects an agreement between the parties that, at the time it was entered into, and based on Mr. Roberts’ income of $90,000 per year, $737 was an acceptable level of support for their child, who was then 5 years of age. [22] I turn, then, to the chambers judge’s application of the D.B.S. principles in the context of the issues raised by Mr. Roberts.  I begin by referring to Mr. Justice Bastarache’s summary of those principles set forth at paras. 131-134 of the decision: Child support has long been recognized as a crucial obligation that parents owe to their children.  Based on this strong foundation, contemporary statutory schemes and jurisprudence have confirmed the legal responsibility of parents to support their children in a way that is commensurate to their income.  Combined with an evolving child support paradigm that moves away from a needs-based approach, a child’s right to increased support payments given a parental rise in income can be deduced. In the context of retroactive support, this means that a parent will  not have fulfilled his/her obligation to his/her children if (s)he does not increase child support payments when his/her income increases significantly.  Thus, previous enunciations of the payor parent’s obligations may cease to apply as the circumstances that underlay them continue to change. Once parents are in front of a court with jurisdiction over their dispute, that court will generally have the power to order a retroactive award that enforces the unfulfilled obligations that have accrued over time. In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances of the case in front of it.  The payor parent’s interest in certainty must be balanced with the need for fairness and for flexibility.  In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail. Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date of the award. It will then remain for the court to determine the quantum of the retroactive award consistent with the statutory scheme under which it is operating.  [Emphasis added.] [23] I turn, next, to a discussion of the principal factors relevant to retroactive child support which were considered by the chambers judge, but in a manner which Mr. Roberts submits reveals reversible error.  In so doing, I note, as did the chambers judge, that D.B.S. states that a holistic approach must be taken to the application of these factors, and that the analysis is driven by the facts in each particular case.  As Mr. Justice Bastarache emphasized at para. 4 of the decision, however: ... Whatever the outcome of these individual cases [then before the court], the ultimate goal must be to ensure that children benefit from the support they are owed at the time when they are owed it.  Any incentives for payor parents to be deficient in meeting their obligations should be eliminated. 3. Blameworthy Conduct on the Part of Mr. Roberts [24] Mr. Roberts took great exception to the finding of the chambers judge that he had engaged in blameworthy conduct, both in failing to disclose the extent of his increases in income over the years, and in failing to pay support commensurate with those increases.  He submits that her finding in this regard is in error.  In support of that submission, he says that he was unaware of his obligations under the Guidelines ; that he adhered faithfully to his agreement to pay $737 per month; that Ms. Burchill was aware that she could ask for more money over the years and did not do so; and that he had no reason to believe that he was not meeting his parental responsibilities in contributing to his son’s support.  In his view, he has been unjustifiably portrayed as a “deadbeat dad”. [25] Since this issue was the principal focus of Mr. Roberts’ oral submissions before the Court, I will deal with it first. [26] In addressing the question of whether Mr. Roberts had engaged in blameworthy conduct which would weigh in favour of an award of retroactive support, the chambers judge made the following comments at paras. 30-32 of her reasons for judgment: I turn then to the second factor, the conduct of Mr. Roberts.  The Court in D.B.S. v. S.R.G. noted that Courts ought to take an expansive view as to what constitutes blameworthy conduct in the context of the payor’s child support obligations.  At para. 106, the Court said that blameworthy conduct is: ...anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. ... Thus, a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments... At para. 107, the Court said: Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Mr. Roberts provided no evidence to the effect that he held a reasonable belief that he was meeting his child support obligations.  The evidence is to the contrary, as the amount that Mr. Roberts should have been paying was almost twice as much as what he was actually paying.  The discrepancy is significant enough that there is no room for inference that he thought he was meeting his obligations. [27] Earlier in her reasons, the chambers judge also stated (at para. 27): In this case, Mr. Roberts did not tell Ms. Burchill his income has virtually doubled because, in the words of his counsel, things were going smoothly and “he did not want to rock the boat”.  Undoubtedly, they were going smoothly for Mr. Roberts, but that is because he declined to advise Ms. Burchill of his changed circumstances and was content to continue paying half of what he was obliged to pay for the support of his son. [28] In my view, the evidence fully supports the chambers judge’s finding that Mr. Roberts’ failure to advise Ms. Burchill of his substantial increases in income and to pay support commensurate with his actual income, at least as of late 2005, amounted to blameworthy conduct within the meaning attributed to that concept in D.B.S. It is beyond dispute that his failure to pay child support in accordance with his substantially increased means privileged his interests over those of his son. [29] It is not a justification for Mr. Roberts to state that he was unaware of the Guidelines or the amounts he should have been paying pursuant to those Guidelines .  What he did know is that the parties had agreed in 1997 that $737 was an appropriate amount of child support for their 5-year-old son based on Mr. Roberts' income of $90,000.  He could not reasonably have regarded that as a final agreement governing child support which absolved him of any further financial responsibilities in the future.  He would have been aware of the increased costs of raising his son as he grew older, not the least because he had three children from a previous relationship.  He would have been aware of the rising cost of inflation and its impact in eroding the spending power of $737 over 14 years.  Totally apart from the Guidelines , he would reasonably have understood the basic concept that “If you make more, you pay more.”  Nor could it have escaped his attention that paying $737 child support for a 5-year-old child in 1997 was unlikely to satisfy his share of the cost of raising a child  who was 10, 15 or 19 years old. [30] In my view, the chambers judge quite properly viewed Mr. Roberts’ conduct as involving a blameworthy element.  That is so whether Mr. Roberts knowingly and intentionally withheld disclosure of his improved financial circumstances in order to actively avoid detection of the shortfall in meeting his obligations, or whether he simply chose not to “rock the boat” by taking the path of least resistance.  At best, he was careless or negligent in failing to address his ongoing responsibilities to his son by way of child support.  His blameworthiness may have been of a lesser order than if he had knowingly withheld disclosure, actively deceived Ms. Burchill as to his income, or intimidated her with a view to deterring her from seeking an increase in support, but it was, nonetheless, blameworthy.  In reaching this conclusion, I find support in the following passage at para. 108 of the reasons for judgment of Mr. Justice Bastarache: ...Whether a payor parent is engaging in blameworthy conduct is a subjective question.  But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy.  For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct.  In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were being met.  Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following.  Because the order (and, usually the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order.  However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay. [31] I also observe, parenthetically, that blameworthy conduct on the part of a payor is not essential to a finding that an order of retroactive support is merited.  Even in circumstances where payors honestly, but mistakenly, believe that they are paying support commensurate with their income, an honest error in that respect does not absolve them of their responsibility for righting the wrong occasioned to the child by their error.  (See Tedham v. Tedham 2003 BCCA 600, (2003), 20 B.C.L.R. (4th) 56, leave to appeal dismissed, [2004] S.C.C.A. No. 4, referred to with approval at para. 99 of D.B.S. ) [32] I now turn to the ground of appeal relating to Ms. Burchill’s failure to make a more timely request for increased support. 4. Delay in Making the Application [33] Mr. Roberts submits that the chambers judge erred in failing to find that Ms. Burchill’s failure to seek increased support at an earlier point was unreasonable and constituted blameworthy conduct on her part which should militate against a retroactive award.  He submits that the chambers judge overlooked evidence that Ms. Burchill was aware subsequent to 1997 that she could have asked for increased support and chose not to do so.  In particular, he refers to the fact that Ms. Burchill did not deny the allegation in his affidavit that: 15.       Over the years I was occasionally reminded by the Claimant that she could ask for more money monthly but she also reminded me that she was choosing not to do so.  I understood that she was content with the $737.00 per month that I was paying and chose not to ask for any additional monies as an incentive for me to contribute to Jack’s extraordinary expenses which I did over the years. [34] There was also evidence that Ms. Burchill did ask Mr. Roberts for what she referred to as “extras” from time to time, albeit with mixed results.  As stated at para. 19 of her affidavit: Over the years, I have asked Colin to contribute to certain extras for Jack: a.  Colin did pay once for tutoring ($50); b.  Colin did contribute to Jack’s school trip to France ($600) c.  Colin refused to contribute to Jack’s costs for other field trips including the trip by his school to Strathcona Park; d.  Colin refused to help with Jack’s swim team costs... or the cost of his swim lessons and lifeguard training; e.  Colin refused to assist with Jack’s lacrosse team fees and lacrosse equipment; f.  Colin was aware that Jack started full-time studies at the University of Victoria in September 2010 but no financial assistance was forthcoming with his University costs.  In fact Colin told me that he was philosophically opposed to paying for Jack’s education because he had not paid for the schooling of his 3 older children by his first marriage. [35] The chambers judge understood that Ms. Burchill was aware that an increase in Mr. Roberts’ income over time would have entitled her to apply for increased child support.  As in the case of Mr. Roberts, it would be surprising if this fundamental concept were not understood by both parents.  However, as a practical matter, even where known, not all increases in income by a payor spouse will justify applications for increased support.  The cost of bringing applications for increased support and accompanying financial disclosure where the application is opposed can be daunting and, ultimately, counter-productive.  In that regard, Ms. Burchill deposed that her legal fees arising out of her initial application in 1997 were $10,000.  And that was an interim application resulting in a consent order.  Thus, the fact that Ms. Burchill was aware that she could have sought an increase in payments, is not, in itself, conduct which would factor against an award of retroactive support. [36] The important finding of the chambers judge in this regard is her finding that Ms. Burchill had no idea of the magnitude of the increase in Mr. Roberts’ income and was shocked to learn that it had doubled since the original order and agreement were made in 1997.  It is apparent that this factor carried the most weight with the chambers judge in determining that Ms. Burchill’s failure to make demand for an increase in support was not unreasonable.  In other words, while Ms. Burchill was generally aware of her right to seek an increase in the event of an increase in Mr. Roberts’ income, there would have been no incentive for her to pursue that avenue absent any indication that the increase in his income was substantial.  The fact that her efforts to obtain further contributions from Mr. Roberts for “extras” had met with limited success may also have accounted, in part, for her failure to pursue more substantial changes to their financial arrangements. [37] Further, there was evidence from both parties that there had been physical and verbal altercations between them when they lived together.  Ms. Burchill’s affidavit evidence in that regard (also reflected in her original pleadings in 1997) was that Mr. Roberts was physically and verbally abusive toward her during their relationship and that the verbal abuse and threats continued until they separated.  Mr. Roberts acknowledged that the parties had a “difficult” relationship which involved occasional “pushing and shoving”, but denied that it was of a serious nature or resulted in any physical injuries to either party. [38] The chambers judge referred to this evidence in her reasons for judgment, but did not expressly state to what extent it influenced her decision that Ms. Burchill’s failure to seek an earlier increase in support was not unreasonable.  In my view, however, the fact that the parties had a dsyfunctional relationship involving physical altercations during the time they lived together is relevant in assessing Ms. Burchill’s apparent reluctance to actively pursue Mr. Roberts for money.  The fact that they had separated did not repair the damage already done.  For his part, Mr. Roberts’ position was that he did not want to “rock the boat”.  As pointed out by the chambers judge, however, not rocking the boat operated in his favour. [39] Mr. Roberts suggested in submissions that the only reason Ms. Burchill sought retroactive support was that he had mistakenly advised her that he was cutting off child support when their son turned 19, the implication being that she was acting solely from spite.  If Ms. Burchill had knowledge of Mr. Roberts' substantial increases in income since 1997, there might be some force in that submission.  But it was only when he threatened to terminate support altogether, at a time when Ms. Burchill was attempting to assist their son with his significant university expenses, that she learned for the first time of the near doubling of Mr. Roberts’ income.  The chambers judge accepted her evidence that she was shocked at this revelation. [40] As Mr. Justice Bastarache stated at para. 102 of D.B.S. : ...Notably, the difference between a reasonable and unreasonable delay often is determined by the conduct of the payor parent.  A payor parent who informs the recipient parent of income increases in a timely manner, and who does not pressure or intimidate him/her, will have gone a long way toward ensuring that any subsequent delay is characterized as unreasonable....  [Emphasis in original.] [41] Mr. Roberts does not fit the description of the reasonable payor described in this passage. [42] In conclusion on this point, I am satisfied that there was evidence supporting the chambers judge’s conclusion that Ms. Burchill’s failure to actively pursue an increase in child support at an earlier date was not unreasonable.  It is not for this Court to reweigh that evidence and substitute its own opinion. [43] The next factor to consider is the impact of Mr. Roberts' failure to pay increased child support. 5. Circumstances of the Child [44] Mr. Roberts submits that, despite his failure to pay increased child support since 1997, there is no evidence that his son suffered as a result.  For that reason, he submits that he should not be required to pay increased support prior to June 2011 when he says he first learned that Ms. Burchill was seeking an increase.  He says that, by all accounts, his son is a bright, accomplished young man who is thriving in his university studies. [45] The chambers judge said little about this factor, perhaps because the evidence before her was so limited.  She stated, on the one hand, that there was no evidence that the child had suffered “significant” hardship over the years; but also noted, on the other hand, that there was no evidence that he had been living in a manner commensurate with Mr. Roberts’ income of up to $195,000. [46] In my view, there can be no question that the cost of supporting a child over the 14 years between 1997 and 2011 would have increased dramatically.  As earlier noted, the cost of inflation alone would have substantially eroded the purchasing power of the support payments, not to mention the increased costs of feeding, clothing and providing for school and recreational activities over time for a child who was obviously involved in many activities.  In the meantime, Mr. Roberts’ standard of living had improved substantially over that same period of time.  Any additional contributions he made to his son’s extracurricular activities appear to have been minimal. [47] There is evidence that Ms. Burchill went into debt supporting herself and her son over the years.  This is hardly surprising since, to the extent that Mr. Roberts did not provide increased support to match the increasing costs of raising their child, that burden was met by Ms. Burchill.  To the extent that their son had needs which were not met by the support payments, it was Ms. Burchill who made up the shortfall.  She did so according to her means and utilizing her ability to incur debt.  The evidence is that the shortfall in child support payments over the latter years was (approximately) $8,100 in 2006; $6,700 in 2007; $10,000 in 2008; $11,000 in 2009; $9,600 in 2010 and $9,600 in 2011.  Over the same period, Mr. Roberts contributed more to his RRSP. [48] In my view, it is simply inescapable that, despite the financial and other support Ms. Burchill provided her son since the parties separated in 1995, he could not have enjoyed a standard of living commensurate with what he would have enjoyed if Mr. Roberts had been paying support in accordance with his income.  In short, Mr. Roberts ended up with at least $55,000 in his pocket which should have been utilized for the support of his son.  This sum would have provided many of the benefits which children of more well-to-do parents are fortunate to enjoy; it would have alleviated the costs of food, clothing and other necessaries which growing children inevitably require; and, latterly, it would have assisted their son in meeting his university expenses. [49] In the absence of evidence as to what specific losses their son suffered on a daily or yearly basis arising from a shortfall in the support which Mr. Roberts’ income justified, I am satisfied that a loss of benefits can be presumed.  This is evident from the Guidelines themselves, which were intended to provide for a level of support for children tied to the income of the payor.  The Guidelines were designed to do away with the frequently inadequate needs-based approach to child support which historically underestimated child costs to the detriment of children and the custodial parent.  A presumption of unmet needs, or of relative hardship, is one which can and, in my view, should be made where there is a substantial failure to provide Guidelines support over a prolonged period of time, as here. [50] Thus, to the extent the chambers judges’ reasons are unclear as to whether the circumstances of the child justify an award of retroactive support, I find that they do. [51] Before leaving this point, I note that Mr. Roberts pointed out an error in the trial judge’s reasons at para. 19 where she referred to the “needs of the recipient parent”.  It is clear from her later analysis that she was aware that the relevant consideration was the needs of the child and that her error was in the nature of a “typo”. [52] Finally, I would adopt an observation made by Mr. Justice Donald, speaking for this Court in Swiderski v. Dussault, 2009 BCCA 461, 98 B.C.L.R. (4 th ) 40, in rejecting the payor’s claim in that case that the child’s needs had been met over the years such that no useful purpose would be served by a retroactive order. Mr. Roberts expressed a similar sentiment in stating that “What’s done is done.”  At para. 42 of the decision, Mr. Justice Donald stated: The argument loses much of its impact when the evidence falls short of proving Guidelines equivalency.  The child’s basic needs were undoubtedly met, but the fact remains that he did not get what he was entitled to under the Guidelines .  His “needs” are those of the child of a wealthy parent who, by law, is required to provide the child with a lifestyle commensurate with his position.  On the needs analysis proposed by the appellant, wealthy payors would always be able to escape retroactive orders and ignore their Guidelines obligations without risk of a reckoning for past defaults, simply on the argument that the child’s needs were met.  This should be discouraged.  In my opinion, a retroactive order serves a legitimate purpose as a deterrent. [53] I now turn to the question of whether the retroactive award worked a hardship on Mr. Roberts. 6. Hardship to the Payor [54] It is not clear to me if Mr. Roberts is taking the position that the chambers judge erred in finding that a retroactive award would not result in hardship to him.  In that regard, the trial judge simply stated that there was no evidence of such hardship.  She did, however, provide in her order that Mr. Roberts had “liberty to apply regarding a payment schedule for retiring the award of retroactive support” in the event that a lump sum award imposed unnecessary hardship on him.  There is no indication that Mr. Roberts sought to take advantage of this provision.  Nor, in my view, is there any basis for interfering with her conclusion that he did not establish he would suffer hardship as a result of the award.  While no financial statements were filed, the evidence available discloses that he is sole, or part, owner of several properties and has managed to pay substantial amounts into RRSPs. [55] In my view, taking into account all of these factors in the context of these circumstances, the chambers judge did not err in finding that a substantial retroactive award was appropriate. [56] I turn, next, to the amount of the retroactive award, which was calculated from January 1, 2006 based on Mr. Roberts’ actual income from that date until December 31, 2011. 7. Date of Commencement of the Award [57] As earlier noted, Mr. Roberts submits that the date for commencement of the retroactive award should have been no earlier than June 2011 when, he submits, Ms. Burchill first made a demand on him for increased support.  His submission on this point tracks his submission that Ms. Burchill was at fault for failing to actively pursue increased support at an earlier date.  I have already given my reasons for rejecting this submission and I do not propose to repeat them here. [58] Mr. Roberts also submits, however, that the chambers judge erred in her approach to the commencement date for retroactive support as a result of misquoting, and misinterpreting, a passage at para. 124 of D.B.S. In particular, Mr. Roberts refers to para. 37 of the chambers judge’s reasons for judgment where she states: I turn then to the issue of the date of retroactivity.  Once again I am guided by D.B.S. v. S.R.G. , at para. 124, where the Court indicated that the date at which the increased support should have commenced will often be the most appropriate date.  This situation can most notably arise where the payor parent engages in blameworthy conduct.  Where there is such blameworthy conduct, the paying parent cannot argue that he or she reasonably believed that he or she was fulfilling his or her child support obligations.  [Underlining added.] [59] Mr. Roberts submits that the word “often” in para. 37 should have been “sometimes”, and that by inserting the word “often”, the chambers judge unjustifiably treated the date upon which the payor’s income substantially increased as the usual date for commencement of retroactive payments. [60] In order to determine whether there is any merit to Mr. Roberts’ submission on this point, it is necessary to set out what Mr. Justice Bastarache said in D.B.S. with respect to the commencement date for retroactive payments.  He began his analysis by stating (at para. 118) that he would adopt the date of effective notice as a general rule.  (In this case, that would be the June 2011 date favoured by Mr. Roberts.)  Mr. Justice Bastarache went on to discuss circumstances in which the effective date of notice would not be the appropriate starting date for retroactive payments.  This analysis is found at paras. 124-125 of his decision, where he states: The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start.  This situation can most notably arise where the payor parent engages in blameworthy conduct.  Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child’s support entitlement was being met.  This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information.  Not disclosing a material change in circumstances - including an increase in income that one would expect to alter the amount of child support payable - is itself blameworthy conduct.  The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially.  A payor or parent cannot use his/her informational advantage to justify his/her deficient child support payments. The proper approach can therefore be summarized in the following way:  payor parents will have their interest in certainty protected only up to the point  when that interest becomes unreasonable.  In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly:  (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially.  A payor parent should not be permitted to profit from his/her wrongdoing. [Underlining added.] [61] While I agree with Mr. Roberts that the chambers judge mistakenly used the word “often” in place of “sometimes” with reference to para. 124 of D.B.S. , that error was not one of substance when one reads the full passage from D.B.S. just quoted.  It is apparent that the chambers judge chose what she found to be the date of a material change in Mr. Roberts’ income (January 1, 2006) as the commencement date for retroactive payments because she found Mr. Roberts had engaged in blameworthy conduct.  As earlier stated, I am satisfied that finding was justified on the evidence and on the law as set forth in D.B.S. 8. The Quantum of the Retroactive Award [62] It is apparent that the quantum of the retroactive award is ultimately one of discretion informed by the principles set out in D.B.S. and related decisions.  It is for the chambers judge to consider the various factors which must be taken into account under a D.B.S. analysis and to determine the weight to give to each factor.  Here, as in many cases, it is apparent that the chambers judge gave considerable weight to what she concluded, rightly in my view, was blameworthy conduct on the part of Mr. Roberts and her finding that a retroactive award would not cause him hardship.  She gave less weight to the fact that Ms. Burchill had not made earlier demands and to the fact that there was no evidence of what she referred to as “significant” hardship  occasioned to their son, despite the fact that he grew up without benefitting from his father’s standard of living.  In my view, Mr. Roberts has not established a sound basis for interfering with her decision in that regard. CONCLUSION [63] I would dismiss the appeal with costs to Ms. Burchill. [64] With a view to avoiding the cost and delay of future proceedings relating to child support, I would also order that Mr. Roberts provide Ms. Burchill with a complete copy of his most recent income tax return each year (together with schedules and attachments), and with his corresponding Notice of Assessment.  He shall provide these documents within one month of their filing or receipt, respectively, commencing in 2013 and continuing until such time as the parties agree in writing, or the court orders, that their son is no longer a “child” within the meaning of the Family Relations Act . “The Honourable Madam Justice Prowse” I AGREE: “The Honourable Chief Justice Finch” I AGREE: “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Gwyn, 2013 BCCA 51 Date: 20130130 Docket: CA040056 Between: Regina Respondent And Joshua Jeremy Quinton Gwyn Appellant Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Lowry The Honourable Mr. Justice Harris On appeal from:  Provincial Court of British Columbia, March 30, 2012 ( R. v. Gwyn , Kelowna Registry 75656) Oral Reasons for Judgment Counsel for the Appellant: L.J. Helps Counsel for the Respondent: B.A. MacLean Place and Date of Hearing: Vancouver, British Columbia January 29, 2013 Place and Date of Judgment: Vancouver, British Columbia January 30, 2013 [1] NEWBURY J.A.: Mr. Gwyn was sentenced by His Honour Judge Hogan, P.C.J., to 65 months’ imprisonment on one charge of bank robbery to which he pleaded guilty in August 2011. The 65 months was arrived at after the judge gave credit on a one-for-one basis for seven months the appellant had already spent in custody, with the result that sentence was effectively one of six years’ imprisonment. [2] Mr. Gwyn was age 26 at the time of sentencing and had a record of previous convictions, both in Youth Court and as an adult, including on charges of theft, fraud, assault causing bodily harm, at least three failures to appear, possession of illegal drugs for the purposes of trafficking, and breaking and enters. At the time of sentencing, there was an outstanding warrant for his arrest in Ontario and outstanding charges in Alberta. He has a serious addiction to heroin and the sentencing judge noted that Mr. Gwyn had been “trying to take some drug programs” at Kelowna Regional Correctional Centre to “gain some insight into his behaviour”. There was no further information before us as to specific steps he has taken since he was sentenced. [3] Evidently, Mr. Gwyn was high on drugs at the time of the offence, which the sentencing judge described as follows: He is on some kind of drug bender, he has recently arrived here [Kelowna] and, in the midst of his drug-addled confusion, writes up a note demanding $15,000, goes into the Royal Bank, hands it to the clerk, gets the money after a threat that he has a gun. He is arrested shortly thereafter with about $1100, if I recall, in his possession. The rest having been squandered almost immediately. [4] In his reasons for sentencing, the judge reviewed the principles of sentencing, including the obligation to “use the sentence which least confines the individual”, the step principle, and the objectives of sentencing as set out in the Criminal Code . As mitigating factors, he noted that Mr. Gwyn is comparatively young, and not a “hardened offender as to age”, and that he had pleaded guilty. He had also, as noted earlier, been trying to address his drug addiction. [5] The aggravating factors noted by the judge included the fact that although Mr. Gwyn was not “the old and hardened offender, neither is he the young and foolish teenager that he once was when he came into contact with the justice system.”  The judge noted the “pretty frightening” effect of robbery on the bank teller and that although Mr. Gwyn did not have a gun, he suggested to the teller that he did. As well, the judge said, “he does have these outstanding charges in other provinces which means I cannot go too far in considering he is of good character.”  (Para. 16.)  The Court took into account a general rise in the number of bank robberies and similar robberies in the Okanagan region, where he noted a “now wide-spread enthusiasm for robberies”. [6] On a more personal level, the judge noted Mr. Gwyn’s drug problem and the fact he had “apologized a bit today to the victim” of the robbery. [7] As far as the applicable objectives of sentencing were concerned in this case, the sentencing judge stated that general deterrence is “not completely exhausted in our society” and that he had seen cases in which persons who served time in a penitentiary actually turn their lives around. On the other hand, he said, he had not “given up on rehabilitation at all”. The Crown suggested a sentence in the range of six years. The sentencing judge found that this was “pretty sensible” taking into account the circumstances of the offence and the appellant’s past record. The judge concluded that the Crown’s suggestion was “a wise one as to the length of time in total” and from it deducted the seven months the appellant had already spent in custody, for a sentence of five years and five months. The Court also made a restitution order in the amount of $13,900 in favour of the Royal Bank, observing that restitution was one of the best ways to demonstrate to the community that Mr. Gwyn “is making amends”. [8] On appeal, counsel for Mr. Gwyn contends that a six-year sentence is unfit; that the Court failed to consider the totality of such a sentence in conjunction with the restitution order; and that the latter order was made without counsel’s submissions and was excessive. [9] In general terms, no error in the reasoning of the court below has been shown. The sentencing judge considered the appropriate factors and sentencing principles, and applied them to the facts before him. The real question for us is whether the sentence was a fit one, having regard to this offender and this offence. We were referred to this court’s decision in R. v. Brogan , 1999 BCCA 278, in which a sentence of eight years for two robberies was upheld. Ryan J.A. for the Court suggested that the cases support a range of between two and nine years in cases in which a robbery with violence has been committed by a young man. (Violence was not used in the case at bar, although the bank teller was threatened.) [10] We were also referred to this court’s decision in R. v. Gill , 2006 BCCA 127, which involved a six-year global sentence imposed after the appellant pleaded guilty to one count of robbery (of a convenience store), using an imitation firearm and masking his face. He had been serving a CSO at the time of the offence. This court reduced the sentence to four years, emphasizing the appellant’s age (23), his lack of any record for similar offences, and the fact he had used an unloaded replica weapon. The Court attached to its reasons a chart which summarized sentences given in several cases involving the robbery of commercial premises by “youthful” offenders. (As the sentencing judge pointed out in his reasons, Mr. Gwyn is not young, although he may well be “youthful”.) [11] Counsel also made reference to R. v. Godkin 2008 BCCA 287, in which this court upheld a sentence of nine years plus two months’ incarceration on two counts of robbery and one of possession of a dangerous weapon; R. v. Nilsson 2012 BCCA 498, upholding an eight-year sentence imposed on conviction for two counts of robbery; and R. v. Zakis 2012 BCCA 450, upholding a sentence of six years’ incarceration after the appellant pleaded guilty to one count of robbery. The latter case is very similar to the present one in that it involved a bank robbery in the Okanagan and does not appear to have involved a weapon or violence of any kind. The appellant was older (age 39) than Mr. Gwyn, but had a criminal record for a series of earlier offences for which the longest sentence he had received was one year. [12] Of course, as counsel agreed, and as stated in Brogan , no two offences or offenders are ever entirely the same. In this case, the offender is not old but not young; he has a record that does not involve violence but which includes property crimes over several years; and he is addicted to heroin. As Crown counsel noted, we were not given a great deal of information about his personal circumstances that might indicate that the sentence imposed here was not fit. He is not a resident of the Okanagan Valley and seems to have drifted across Canada in recent years and therefore lacks a stable support system to which he can turn. Although the court below was told he has a common law wife and child, it now appears that the mother is of the child is only his “girlfriend” and that Mr. Gwyn “ hopes ” to have a relationship with the child. We were not informed of any specific efforts he has made at drug rehabilitation since sentencing, and it may be that his best hope for treatment and recovery lies in programs administered by Corrections authorities. Any remorse he has demonstrated for the robbery seemed lukewarm at best. These factors in my view weigh in the balance against a sentence at the low end of the range. Perhaps more importantly, we must be mindful of the sentencing judge’s comments regarding the “epidemic” of bank robberies in the Okanagan region. [13] In all the circumstances, although I view the six-year sentence as lying at the high end of the range, I am unable to say that it was not fit in this case or that it represented too great a “step up” from Mr. Gwyn’s previous sentences. This sentence must reflect the seriousness of the robbery as compared to those previous offences. [14] As for the restitution order, I am not convinced that it was unfit, or that together with the jail term, it represents a “crushing” or excessive punishment within the meaning of R. v. Hoyt [1992] B.C.J. No. 2315 (B.C.C.A.). As Wood J.A. stated in Hoyt : [32]      As this Court noted in Flottvik , an order for compensation is a valuable weapon in the arsenal of the sentencing judge. Studies have long questioned the deterrent value of harsh custodial sentences, and suggested that it is the certainty of sanctions stemming from the fear of detection that acts as a more potent deterrent than does any sanction imposed after the fact:  see Sentencing Reform : A Canadian Approach , Report of the Canadian Sentencing Commission, 1987, at pp. 135-8, and the studies there referred to. If the fear of detection is accompanied by the realization that restitution will be ordered, and exacted, the deterrent effect of any sanction imposed must ultimately be enhanced. [33]      In addition to having a measured denunciatory effect, an order for compensation also provides a means by which the offender can be required to take responsibility for the true consequences of his or her crime. The assumption of that responsibility provides a positive benefit to the victim of the offence in question. [15] I believe this is what the sentencing judge in this case had in mind when he observed at para. 38 that restitution was the best way for Mr. Gwyn to “demonstrate to the community that he is making amends.”  I also note that the order simply clears the way procedurally for the Bank to recover the amount stolen from it: Mr. Gwyn would be bound civilly to make restitution in any event. [16] In the result, I would grant Mr. Gwyn an extension of time in which to appeal and I would grant leave to appeal, but dismiss the appeal. [17] LOWRY J.A.: I agree. [18] HARRIS J.A.: I agree. [19] NEWBURY J.A.: The appeal is dismissed. “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Moir, 2013 BCCA 36 Date: 20130130 Docket: CA038222 Between: Regina Respondent And Dustin Blue Robert Moir Appellant PUBLICATION BAN:  Pursuant to Section 486.5(2) of the Criminal Code there is a publication ban in place which prohibits the publication, broadcast or transmission of any information that could identify any undercover police operators involved in this proceeding. Corrected Judgment : The text of the judgment was corrected at paragraph [31] on January 31, 2013 Before: The Honourable Madam Justice D. Smith The Honourable Madam Justice Bennett The Honourable Mr. Justice Harris On Appeal from the Supreme Court of British Columbia, February 16, 2010 ( R. v. Moir , Chilliwack Registry Number 53172) Counsel for the Appellant: R.P. Thirkell and K.R. Beatch Counsel for the Respondent: S.J. Brown Place and Date of Hearing: Vancouver, British Columbia November 1, 2012 Place and Date of Judgment: Vancouver, British Columbia January 30, 2013 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Madam Justice D. Smith The Honourable Mr. Justice Harris Reasons for Judgment of the Honourable Madam Justice Bennett: Introduction [1] Chelsey Acorn was killed in late 2005.  She was 14 years old.  I will refer to her as Chelsey throughout these reasons, as she was still a child at the time of her death.  Her remains were found by hikers at the Carolina Mines campsite, off the Coquihalla Highway in April 2006.  On February 16, 2010, Dustin Moir was convicted of first degree murder by Mr. Justice Grist sitting with a jury.  Mr. Moir appeals this conviction. [2] In my view, there is merit to the appeal.  I would allow the appeal, set aside the conviction and direct a new trial. Background [3] Chelsey was born on May 4, 1991.  Her mother turned over her care to the Ministry of Children and Family Development in December 2003.  In May 2004, Chelsey and her siblings were apprehended by the Ministry.  On April 5, 2005, Chelsey’s mother consented to the Ministry having permanent custody and legal guardianship of Chelsey.  Between March 2004 and June 2005, she had been placed in foster homes 18 different times.  On June 10, 2005, Chelsey left her last placement without permission.  Her social worker had no contact with her after this date.  She was last seen by a friend in an Abbotsford mall on October 23, 2005. [4] Mr. Moir and his father, Jesse West, were known to have had some association with Chelsey prior to her death.  The police mounted separate “Mr. Big” undercover operations against both men, although initially Mr. West was the primary suspect.  In the course of these operations, however, Mr. Moir made statements that led his undercover “handler” to view him as a suspect as well. [5] In the course of the Mr. Big operation, Mr. Moir initially told his handler that his father had offered him $15,000 to bury a body in a “carry-and-bury” scheme.  In his conversation with “Mr. Big”, Mr. Moir said his father had asked for his help on a “hit” on a girl, a service for which he would be paid.  Mr. Moir agreed to help.  Mr. Moir, Mr. West and Chelsey drove to a campsite by the Coquihalla Highway.  According to this version of events, both men had sex with Chelsey on the way.  He told Mr. Big they set up a tent.  Mr. Moir and his father then dug a grave, which took some time.  They entered the tent and bound Chelsey with duct tape.  Mr. West then choked Chelsey.  Mr. Moir said that she survived, and he completed the killing by choking her further.  He carried her body to the grave.  He then threw rocks on top of her, one of which struck her head.  This rock was large enough to crush her skull.  Mr. Moir told Mr. Big she was already dead when he did this. [6] Chelsey was found in a shallow grave with the side of her skull caved in.  A large boulder was located near her head. [7] Mr. Moir and Mr. West were originally named as co-accused in a single count of first degree murder.  Mr. Moir brought a pre-trial motion for severance, which was denied; eight weeks into the trial itself, Mr. West brought a motion for severance in response to certain evidence led against Mr. Moir.  The trial judge granted this motion. [8] The Crown called 37 witnesses.  Mr. Moir testified on his own behalf but called no other evidence.  The trial judge permitted the Crown to call one further witness in rebuttal. [9] At trial, Mr. Moir’s testimony agreed with the version given in the Mr. Big operation in many respects.  He testified, however, that he did not know in advance that his father intended to kill Chelsey and that he did not directly participate.  His story was that he watched his father choke her in the tent and then, at his father’s direction, carried the body to the grave (which, according to his testimony, his father had prepared by himself).  The two then buried her, dumped her personal belongings and went to Mr. West’s home.  On his version of events at trial, Mr. Moir’s involvement was limited to helping his father bury the body, so that he was merely a witness to the crime and an accessory-after-the-fact. [10] Mr. Moir and other witnesses, Steven Dudley and Josh Gordon, gave evidence regarding the control Mr. West had over Mr. Moir and others.  The younger men were afraid of Mr. West, and considered him a domineering and violent man. [11] Mr. Moir testified that he felt compelled to exaggerate his involvement to Mr. Big in order to stay in the criminal organization and to keep the respect of his handler, who he viewed as his only real friend. Issues on Appeal [12] Mr. Moir raises the following issues: i)        The trial judge erred in failing to instruct the jury on the limited use of prior statements; ii)        The trial judge erred in permitting the Crown to lead rebuttal evidence; iii)       The trial judge erred in his instructions on post-offence conduct; iv)       The trial judge erred in his instructions on motive; v)       The trial judge erred by failing to instruct the jury on the included offence of manslaughter; vi)       The trial judge erred by failing to instruct the jury on how to deal with the conflict between the out-of-court statements made by Mr. Moir and his viva voce testimony. Discussion [13] Before I commence my discussion, I wish to comment on some procedural issues that arise in this case.  The trial judge gave opening instructions in writing to the jury.  He incorporated these instructions into the final instruction by reference.  The opening instructions were not marked as an exhibit.  In addition, mid-trial instructions were provided to the jury in writing, which were not marked as exhibits. [14] In my respectful view, when jury instructions are provided to jurors in writing, they must be marked as exhibits for the record.  Also, when written drafts of the jury instructions are prepared and distributed to counsel for review, the drafts also need to be marked for identification, as otherwise the submissions with respect to the charge to the jury are incomprehensible for the purpose of appellate review.  The submissions of counsel on the content of the charge to the jury are often a key component in the analysis of the correctness of the charge.  (See R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R. 523 at para. 58.) i)        Did the Trial Judge Err in Failing to Instruct the Jury on the Limited Use of Prior Statements? [15] The trial judge gave no instructions to the jury on the use that may be made of prior inconsistent or consistent statements.  Mr. Moir raises the evidence of two witnesses that he says required such an instruction.  He argues that without an instruction, there is a clear error of law.  The Crown submits that the trial judge did not err in failing to give such an instruction, but if he did err, this Court should apply the curative provision of s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46. [16] Generally, a prior inconsistent statement of a non-accused witness is only admissible to challenge the credibility of that witness.  If the witness adopts the prior statement, then the statement may be used for the truth of its contents.  The exception to this rule, based on necessity and reliability, is not present here.  This is a complicated rule of evidence. [17] The failure to instruct the jury on the proper uses of prior inconsistent statements may be a reversible error.  Writing for the majority of the Supreme Court of Canada, Mr. Justice Major explained the rationale for this type of jury instruction in R. v. Bevan , [1993] 2 S.C.R. 599 at 619: The reason why the law requires an instruction of this nature is that there is otherwise a risk that jurors may not be aware that they cannot use such statements as substantive evidence, irrespective of the use made of the statements by counsel.  While the trial judge and counsel undoubtedly appreciated the limited purpose of reference to the prior inconsistent statements, it cannot be safely assumed that the jury had a similar understanding. See also R. v. Kokotailo, 2008 BCCA 168, 254 B.C.A.C. 262 at para. 44. [18] With few exceptions, a witness’s prior consistent statements are not admissible.  If the jury hears prior consistent out-of-court statements, a limiting instruction as to the use of the statements must almost always be given by the trial judge.  Failure to do so will generally be an error of law. [19] This rule is succinctly set out in R. v. Demetrius (2003), 179 C.C.C. (3d) 26 at para. 12, 176 O.A.C. 349 (C.A.): There is a well-established rule that self-serving evidence, such as prior consistent statements are generally not admissible at trial.  In R. v. Toten (1993), 83 C.C.C. (3d) 5 (Ont. C.A.) at 36, Doherty J.A. identified the rationale for generally rejecting prior consistent statements as resting “not … on any principle unique to prior consistent statements, but on the very practical assessment that, generally speaking, such evidence will not provide sufficient assistance to the trier of fact to warrant its admission.”  As David M. Paciocco and Lee Steusser, The Law of Evidence , 2nd ed. (Toronto, Ont: Irwin Law, 1999) at 305 explain:  “In most cases, the evidence is … of no value.  It is redundant and potentially prejudicial to allow the testimony to be repeated.  It may gain false credence in the eyes of the trier of fact through the consistency with which it is asserted.” [20] In R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, the Court considered the question of the admissibility of a prior statement through re-examination by the Crown.  The majority of the Court, in concluding that the statement was inadmissible, said this at para. 31: [31]      Having described the relevant context, the first issue is whether Ms. Bowles’ prior statements were admissible through re-examination.  It is true that prior consistent statements are presumptively inadmissible ( R. v. Béland , [1987] 2 S.C.R. 398, at pp. 409-10, and R. v. Stirling , 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5).  The rationale for excluding them is that repetition does not, and should not be seen to, enhance the value or truth of testimony.  Because there is a danger that similar prior statements, particularly ones made under oath, could appear to be more credible to a jury, they must be treated with caution.  [Emphasis in original.] [21] In order to understand the application of these principles in this case, it is necessary to delve into the evidence in greater detail.  Mr. Moir told Mr. Big that he helped Mr. West kill Chelsey by choking her and digging the hole.  He said that after she was in the grave, he crushed her head with a rock.  Mr. Moir’s statement was the only evidence directly implicating him in the murder.  In his instructions, the trial judge correctly instructed the jury to be cautious before relying on the Mr. Big statement.  He said: It is my instruction to you that great care must be taken in considering the credibility of the accused’s statements induced in this manner. The law has had experience with false confessions of crime by those who were later exonerated.  People will at times confess to crimes they have not committed.  This is a particular danger in the context of an investigation of the sort conducted here. [22] The Crown attempted to support the confession with the testimony of two witnesses, Mr. Gordon and Mr. Dudley.  Mr. Gordon’s testimony was the only other evidence that had the potential to directly corroborate the confession; Mr. Dudley’s evidence went to a potential motive.  I will examine each in turn. Josh Gordon [23] Mr. Gordon gave evidence that could corroborate the story Mr. Moir gave to Mr. Big.  The evidence in question related to a shovel, which Crown counsel raised in its examination-in-chief of Mr. Gordon: Q         You had mentioned that Dustin had done something with a body, correct?  He had buried it; is that correct? A          Yeah. Q         Did he say how? A          No. Q         Or what had been used to bury the body? A          A shovel. Q.        All right.  When did he tell you that? A          Jesse actually asked me for a shovel. Q         All right.  I’ll ask you again first of all what type of shovel.  Were you provided details as to what type of shovel it was? A          Collapsible shovel. Q         A collapsible shovel, all right.  What colour? A          Green. Q         All right.  And where did the -- I see you’re looking at Mr. Moir.  Can you tell us where the shovel was?  Where was the -- that was mentioned -- do you know where it came from? A          The foster family.  In the shed from the foster family that I was living with at the time. Q         All right.  And I’ll ask you again who did you provide the shovel to? A          Jesse West. Q         You’re certain? A          He asked me for the shovel.  Yeah, I am certain. Q         All right.  Is there any time that you recall providing a shovel to Mr. Moir? MR. HENDERSON:    My friend is cross-examining his own witness, My Lord. [24] As a result of the objection, the Court adjourned while Mr. Gordon reviewed the statement he provided to police.  On his return to the witness stand, Mr. Gordon gave the following testimony: Q.        Mr. Gordon, during the afternoon break, you had an opportunity to review the entirety of your statement?  You’ll have to say yes or no. A          Yes. Q         Did that opportunity assist in refreshing your memory, sir? A          Yeah.  I took a look at it.  It says that I gave it to Dustin. THE COURT:  Well, just don’t -- not what “it says” but it helps you with your memory, does it? A          I really don’t recall who I gave the shovel to.  Jesse West did ask for it, though. [25] In cross-examination, the following exchange occurred: Q         Now, that paragraph indicates that in fact Mr. West came by asking for a shovel and you gave him a shovel; is that right? A          Yes. Q         Now, reference was made by my friend in another part of the statement where it suggests that you’d given the shovel to Mr. Moir.  I’m going to suggest to you that when you refer to Dustin Moir later in the statement, that was a misstate by you, you were actually trying to refer to Mr. West; is that correct? THE COURT:  Sorry.  Where did you draw that from, Mr. Henderson? MR. HENDERSON:    From the portion I’ve just shown him. THE COURT:  Well, this is a portion of the statement that precedes -- MR. HENDERSON:    That’s right. THE COURT:  -- the portion where he identified it as given to Mr. Moir. MR. HENDERSON:    That’s right. THE COURT:  And you say that that indicates a confusion in the statement -- apparent in the statement? MR. HENDERSON:    Yes. THE COURT:  Why don’t we put it directly to the witness.  Were you confused when you said that you gave this shovel to Mr. Moir? A          No, I wasn’t. THE COURT:  Carry on. MR. HENDERSON: Q         Again, sir, in the first part of that statement in that paragraph you indicated you were asked by Mr. West and gave that shovel to Mr. West; is that right? A          Jesse West asked me for a shovel.  Right now I do not recall who I gave it to. Q         All right.  So you don’t know whether you gave it to Mr. West or Mr. Moir; is that right? A          Right now that’s correct, yeah. Q         Okay.  And me showing the portion to you -- you can turn over to the next page, if you like, where it says, “I gave the shovel to Mr. West,” that doesn’t help you?  No? A          Jesse asked for it.  If anything I probably gave it to Jesse West. Q         Oh. A          I’m positive. Q         One thing you couldn’t say is, as I understand your statement, you weren’t able to tell us when -- tell the police when you gave that shovel.  You don’t know if it happened before or after Mr. Moir told you about his dad killing Chelsey Acorn, right?  Is my question clear enough? A          I’m pretty sure I gave the shovel to him before -- Q         All right. A          -- I was told. [26] The trial judge gave the jury this instruction: Mr. Gordon said that while he was living in a foster home, Jesse West asked him for a collapsible shovel.  He said that he was not sure if he provided the shovel to Jesse West or Dustin Moir but he thought it was Jesse West who received it because he was the one who asked for it. [27] The reference by the trial judge to Mr. Gordon’s “testimony”, that he may have given the shovel to Mr. Moir prior to the murder, provided the only evidence that pointed to Mr. Moir’s guilt of a planned or deliberate murder, apart from the Mr. Big statements.  There was, however, no direct evidence from Mr. Gordon that he gave a shovel to Mr. Moir.  After Mr. Gordon read his prior statement, he said:  “It [the statement] says that I gave it to Dustin”.  The trial judge then pressed him for an answer.  Mr. Gordon replied that he could not remember who he gave the shovel to, but that Mr. West did ask for it.  Both before and after this evidence, Mr. Gordon testified that he gave the shovel to Mr. West. [28] Whether a witness adopts a prior statement is a question of fact for the jury: R. v. Stiers, 2010 ONCA 382 at para. 42, 255 C.C.C. (3d) 99, citing R. v. Toten (1993), 14 O.R. (3d) 225 at 242 (C.A.).  Here, the judge did not leave this issue with the jury.  Rather, he summarized the evidence as if it was a fact. [29] The jury needed to be instructed on the proper use of the prior statements, in terms of both assessing the credibility of Mr. Gordon and the substantive use of the statement, if adopted by Mr. Gordon.  The jury could have concluded that Mr. Gordon did not adopt his prior statement, in which case the jury would have no direct evidence that Mr. Gordon gave the shovel to Mr. Moir.  It heard evidence that Mr. Gordon had said in his statement that he had given the shovel to Mr. Moir; that he could not remember who he gave the shovel to; and that he was “positive” he gave the shovel to Mr. West.  A limiting instruction regarding the use that could be made of the prior inconsistent statement, similar to that set out, (in part), below, was essential to a fair trial. [3] Generally, the earlier statement may be used only in assessing the witness’s credibility. However, there is an exception when the witness, while testifying at trial, accepts all or part of the earlier statement as true. In that event, the earlier statement may also be considered as evidence of what happened, but only to the extent the witness accepted it as true. It is for you to decide what weight if any to give to the part of the earlier statement that the witness accepts as true. Canadian Judicial Council.  Model Jury Instructions; Final Instructions, Prior Inconsistent Statements of Non-Accused Witness (11.10) http://www.cjc-ccm.gc.ca/cmslib/general/jury-instructions/NCJI-Jury-Instructions-Final-2012-06-E.pdf [30] It was not given.  This was an error in law. Stephen Dudley [31] The trial judge also charged the jury on motive.  I will return to the discrete issue of motive later in these reasons.  The only evidence of motive on the part of Mr. Moir was drawn from the testimony of Mr. Dudley.  Mr. Dudley testified that he and Mr. Moir were roommates for about three weeks.  He testified that this was around the end of April and the beginning of May 2005.  Afterwards, Mr. Dudley moved to Clearwater, B.C.  He said that during this time Mr. Moir was dating Chelsey, and she stayed over with him on three or four occasions.  He also described an incident when he, Mr. Moir and Chelsey were at Mr. West’s residence.  Mr. Dudley testified that Mr. West, Mr. Moir and Chelsey were in the bedroom together and came out with messy hair and clothing ‒ the inference being that the three had engaged in sexual activity. [32] Counsel for Mr. Moir cross-examined Mr. Dudley on a prior statement to police, which was inconsistent with his evidence at trial regarding Mr. Moir’s relationship with Chelsey.  The following exchange took place at trial: Q         So back on the -- when you gave this statement, if you could turn to line 93 which is at page 5 of 39, this is what you initially told the police on that date.  You were asked: And did Dustin ever use your phone? And your answer is: No, he had his. Right? A          Yes. Q         If you’d turn over to page, the next page 6, you were asked if you ever had called her at line 99.  You said: Look, I knew Chelsey Acorn but I never talked to her.  I knew who she was.  I seen her before, but that’s it.  I never talked to her. Do you see that? A          Yeah. Q         At that point, before that, if you can turn back the page to page 4 of 39, and if you also look at page 3 of 39, you couldn’t remember Chelsey’s name, last name, at that time, right? A          Yes. Q         In fact, at page 2 of 39 lines 32 and 33 you were asked if you remember her last name and your answer was, “No.”  Is that right? A          Yes Q         Page -- line 102 and 109 of your statement, that’s at page 6, look at that.  You said you “never hung out with her, like” at page -- at line 103. A          Yeah. Q         At line 105 you told the police officer you had gone once to Mr. West’s apartment, right? A          Yes. Q         And at line 116 and 123, turn over the page, you indicated you’d stayed the night but that it was just you and Dustin there, no girls, right? A          Yes. Q         And specifically at line 122 and 123 you were asked: Were there any girls there? And the answer was: No. Right? A          Yes. Q         Now, at 128 and 129, the police officer accuses you of lying to him is that right? A          Yes. Q         And you say at 136 and 138, you say: I’m just -- I’m saying what I know and saying what I remember. Is that right? A          Yes. Q         At 147 and 148 of this statement, the police suggest or ask you if you helped Dustin kill Chelsey, right? A          Yes. Q         He said: Or did you -- did you help Dustin kill Chelsey? Your answer was: No. Right? A          Yeah. Q         Now, at this point, this was kind of a frightening accusation the police were making to you; is that right? A          Yes. Q         They were -- first of all, they were suggesting that Dustin had killed Chelsey to you, right? A          Yes. Q         And now they’re saying to you -- asking you the question whether you were involved in helping Dustin kill Chelsey, right? A          Yes. Q         You say at 155 of the same page, with reference to your stay on the Coast in Mission: Most of the time I was drunk when down there.  I don’t remember much. Right? A          Yes. Q         Police officers continued to grill you about what you saw between Dustin and Chelsey and Chelsey and West, right -- A          Yeah. Q         -- in the statement.  At 271 they ask you, if you could turn to that, line 271, they ask you what would actually happen to somebody hurt someone like a -- did something to a little -- a young girl, right? A          Yes. Q         And of course you said should be in jail, right? A          Yes. Q         That would be a normal response.  They had suggested in this -- throughout this statement that -- strongly, they told you that Dustin had killed Chelsey, right? A          Yes. Q         And to leave no doubt in your mind that Dustin was the murderer, right? A          Yes. Q         In fact, they used that accusation to you to try and give you -- force you or to provide details which were not true.  For example, they suggested to you that Dustin had told you something about Chelsey, how Chelsey died, right? A          Yes. Q         And that wasn’t true? A          No. Q         He never told you that?  The police officer kept on pushing you and pushing you on it, didn’t he? A          Yes. Q         He kept on saying Dustin did it and you’re helping murderers get away, right? A          Yes. Q         Now, at this point in the process of this interview, you became very frightened about your situation with these police; is that right? A          Yes. Q         You thought if you didn’t say something to connect Dustin to Chelsey, you might get into trouble? A          Yes. Q         ‘Cause they wanted you to explain how your phone records were related to Chelsey; is that right? A          Yes. Q         They say to you, after you tell them that Dustin doesn’t use the phone: Well, you explain to us how it was that your phone records showed Chelsey contacting you. Right? A          Yes. Q         Now, you accepted the police officer’s word for things.  If they tell you Dustin did it, you weren’t going to question them, right? A          No. Q         And if they tell you that you’re somehow implicated with Dustin because of these phone records, you’re not going to question them, right? A          No. Q         So you knew the best and easiest way to solve this problem for yourself was to give them something that would show them there’s a connection between West, Chelsey and Dustin, right? A          Yes. A          And you came to court here today and you didn’t really want to stray much from the statement, you didn’t want to get in trouble for giving a statement to the police that was untrue, right? A          Yes. [33] Later in cross-examination, Mr. Dudley said: Q         So from what I can take it is you agree with me I shouldn’t be accepting what’s in your statement, right? A          Yes. Q         But accepting what you’re telling us now and I’m asking you questions, right? A          Yes. [34] Crown counsel was permitted to re-examine Mr. Dudley, and the following exchange occurred: Q         Now, I’m going to be giving to you the statement, a copy of the statement that my friend had referred to in his direct [ sic ] examination.  Actually, I see you still have it in front of you.  Now, the details that you provided to the police at that time on the -- April 11 th of 2007, were those details correct? A          Yes. [35] Mr. Dudley gave evidence in cross-examination that was inconsistent with his prior statements, including key evidence regarding the relationship between Mr. Moir and Chelsey.  Defence counsel also led a summary of a part of his statement that was consistent with his evidence in an effort to show that Mr. Dudley was trying to extricate himself as a suspect.  At the end of re-examination, Crown counsel asked Mr. Dudley a blanket question: whether everything in his April 11, 2007 statement to police was correct, and he replied, “Yes”.  As a result, Mr. Dudley adopted everything in his prior statement as true, which added to the already present inconsistencies with his trial evidence.  While this was not the effect the Crown was seeking, it is the legal result of such a question.  This question also permitted the Crown to tender prior consistent statements by its own witness.  This in itself was an error, which was compounded by the failure of the trial judge to properly instruct the jury on the proper use of the prior statements.  Instead of instructing the jury on the proper use of prior consistent and inconsistent statements, the judge permitted the jury to use the statements for the truth of the contents: In redirect … the Crown also asked whether the details provided to the police about Acorn coming to the Talbot Street and 7 th Avenue residence on three or four occasions was correct and whether the information he provided to the police about the party at Jesse West’s basement suite was correct.  He said that these details and the information about the party were correct. [36] Again, the trial judge did not leave the issue of adoption of the prior statement with the jury (see Stiers cited at para. 28 above).  He summarized the evidence as fact. [37] In Ellard , the Supreme Court of Canada discussed the requirement for a jury instruction when a prior consistent statement is tendered, and said this at paras. 42-43: [42]      As previously noted, because there is a danger that the repetition of prior consistent statements may bolster a witness’s reliability, a limiting instruction will almost always be required where such statements are admitted.  The purpose of such an instruction is to tell the jury that consistency is not the same as accuracy, and that the statements can only be used to rebut the allegation of recent fabrication, not to support the fact at issue or the general reliability of the witness.   (See R. v. Rockey , [1996] 3 S.C.R. 829, per McLachlin J.; R. v. Fair (1993), 16 O.R. (3d) 1 (C.A.), at pp. 20-21; R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 31; R. v. A. (J.) (1996), 112 C.C.C. (3d) 528 (Ont. C.A.), at p. 533; and R. v. Codina (1995), 95 C.C.C. (3d) 311 (Ont. C.A.), at p. 330.) [43]      Delineated exceptions to the generally stringent rule have emerged, some of which were canvassed in R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont. C.A.), at para. 22.  These include situations where the defence itself relies on the prior statement, R. v. S. (P.) (2000), 144 C.C.C. (3d) 120 (Ont. C.A.), at paras. 62-63; where the prior statement was not offered as proof of the underlying fact, R. v. G.M. , [2000] O.J. No. 5007 (QL) (C.A.);  or where the concern over self‑corroboration and thereby bolstering the witness’s reliability is not present, R. v. Clark (1995), 87 O.A.C. 178.  (See also David M. Paciocco and Lee Stuesser, The Law of Evidence (5th ed. 2008), at p. 501.) [38] None of the exceptions arise in this case.  Counsel for Mr. Moir cross-examined Mr. Dudley with respect to his statement and evidence.  Counsel for the Crown (not counsel on the appeal) was permitted to confirm all of his prior statement as true, some of which conflicted with the testimony the Crown had tendered from the witness in examination-in-chief. [39] The Crown contends that the jury would essentially have figured out that Mr. Dudley could not have adopted his entire statement because there were so many inconsistencies within the statement itself.  With respect, this highlights all the more reason why an instruction on the use of prior inconsistent and consistent statements was necessary. [40] As noted above, Mr. Dudley was the only person who gave evidence of a potential motive on the part of Mr. Moir, which is that Chelsey was under age when he had intercourse with her.  The implication was that he feared Chelsey would report him to the police for having sex with a minor. [41] At the opening of the trial and in the final instructions, the trial judge gave the jury the standard instruction with respect to assessing the credibility of witnesses: Now, under number 7, does the witness’s testimony seem reasonable and consistent?  Did the witness say something different on an earlier occasion?  Is the witness’s testimony consistent with what other reliable witnesses say about the same event? Under number 8, do any inconsistencies in the witness’s evidence make the main points of the testimony less believable or reliable?  Is the inconsistency about something important or a minor detail?  Does it seem like an honest mistake?  Is it a deliberate lie?  Is the inconsistency because the witness said something different or because he or she failed to mention something?  Is there an explanation for it?  Does it make any sense? Those last two, number 7 and 8, I think are often highlighted as important features when assessing credibility. [42] The credibility of Mr. Dudley, Mr. Gordon and Mr. Moir were key issues in the trial.  The evidence of the witnesses, Mr. Dudley and Mr. Gordon, around which the impugned statements revolve, was critical to the credibility of the witnesses and the guilt of Mr. Moir. [43] In my respectful view, the failure to give a limiting instruction in this case is a legal error that cannot be cured by the application of s. 686(1)(b)(iii).  The evidence is not so overwhelming that it can be said that a reasonable and properly instructed jury would inevitably have convicted Mr. Moir had the error not been made.  Nor can it be said that the error is so harmless that it could not have affected the verdict.  (See R. v. Van , 2009 SCC 22, [2009] 1 S.C.R. 716 at paras. 35-36.)  On this basis alone, I would order a new trial. [44] I will address the remaining grounds of appeal as the issues may arise in a new trial. ii)       Did the Trial Judge Err in Admitting Rebuttal Evidence? [45] Crown counsel cross-examined Mr. Moir about Aurora (“Rory”) Phillips, including whether he knew Ms. Phillips, if he had had a sexual relationship with her, stayed at her home or travelled to Alberta with her.  Mr. Moir replied in the negative to all these questions.  He was shown a surveillance photo of two women, and he identified Tamara Peters, Mr. West’s girlfriend.  He said he did not know the other person, subsequently identified as Ms. Phillips. [46] The Crown was permitted to tender the evidence of Ms. Phillips in rebuttal, after the defence closed its case.  Ms. Phillips testified that she met Mr. Moir through Mr. Dudley when she was 15 years old in the spring of 2005.  Mr. Moir and Mr. Dudley moved in with Ms. Phillips and her mother for about a week.  During that time, Ms. Phillips and Mr. Moir engaged in sexual activity.  She acknowledged that the relationship was casual.  She next saw Mr. Moir in the summer of 2006.  Ms. Phillips telephoned Mr. Moir to pick her up at a party because she was extremely intoxicated.  He drove her home.  The next day, she agreed to go on a trip to Alberta with Mr. Moir, Mr. West and Ms. Peters.  In Edmonton, Mr. Moir became involved in an argument with Ms. Peters.  Ms. Phillips and Ms. Peters left the truck to find Mr. West at Tim Horton’s.  When they returned, Mr. Moir was not in the truck.  The three left and returned to British Columbia, leaving Mr. Moir in Edmonton. [47] Ms. Phillips identified herself in the surveillance photo with Ms. Peters. [48] The principles applicable to the admission of rebuttal evidence are well-established.  The Crown is not permitted to “split” its case.  It must call all of the evidence it intends to rely on before the accused is required to determine whether to present a defence.  This is grounded in basic rules of trial fairness.  As with any rule, there are exceptions, and this rule is no different.  The Crown may call reply or rebuttal evidence in limited circumstances, which includes evidence that becomes relevant when the defence calls evidence that the Crown could not have reasonably foreseen.  This is the basis on which the Crown defends this ruling. [49] The Crown is not permitted to call rebuttal evidence if the evidence relates to a collateral matter, is irrelevant, is simply confirmatory of evidence already called by the Crown or is relevant but in the Crown’s hands before the defence commenced its case.  In R. v. Krause , [1986] 2 S.C.R. 466, Mr. Justice McIntyre set out the principles on rebuttal evidence at 473-475: At the outset, it may be observed that the law relating to the calling of rebuttal evidence in criminal cases derived originally from, and remains generally consistent with, the rules of law and practice governing the procedures followed in civil and criminal trials. The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiff must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in the pleadings; in a criminal case the indictment and any particulars: see R. v. Bruno (1975), 27 C.C.C. (2d) 318 (Ont. C.A.), per Mackinnon J.A., at p. 320, and for a civil case see: Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd ., [1967] 1 O.R. 18 (Ont. C.A.), per Schroeder J.A., at pp. 21-22. This rule prevents unfair surprise, prejudice and confusion which could result if the Crown or the plaintiff were allowed to split its case, that is, to put in part of its evidence -- as much as it deemed necessary at the outset -- then to close the case and after the defence is complete to add further evidence to bolster the position originally advanced. The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown's case to have before it the full case for the Crown so that it is known from the outset what must be met in response. The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated. But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the Crown’s case which could have been brought before the defence was made. It will be permitted only when it is necessary to insure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other. In the cross-examination of witnesses essentially the same principles apply. Crown counsel in cross-examining an accused are not limited to subjects which are strictly relevant to the essential issues in a case. Counsel are accorded a wide freedom in cross-examination which enable them to test and question the testimony of the witnesses and their credibility. Where something new emerges in cross-examination, which is new in the sense that the Crown had no chance to deal with it in its case-in-chief (i.e., there was no reason for the Crown to anticipate that the matter would arise), and where the matter is concerned with the merits of the case (i.e. it concerns an issue essential for the determination of the case) then the Crown may be allowed to call evidence in rebuttal. Where, however, the new matter is collateral, that is, not determinative of an issue arising in the pleadings or indictment or not relevant to matters which must be proved for the determination of the case, no rebuttal will be allowed. ... This is known as the rule against rebuttal on collateral issues. Where it applies, Crown counsel may cross-examine the accused on the matters raised, but the Crown is bound by the answers given. This is not to say that the Crown or the trier of fact is bound to accept the answers as true. The answer is binding or final only in the sense that rebuttal evidence may not be called in contradiction. ... [50] In R. v. Aalders , [1993] 2 S.C.R. 482 at 498, Mr. Justice Cory added this: In my view, the crucial question with regard to the admission of rebuttal evidence is not whether the evidence which the Crown seeks to adduce is determinative of an essential issue, but rather whether it is related to an essential issue which may be determinative of the case.  If the reply evidence goes to an essential element of the case and the Crown could not have foreseen that such evidence would be necessary, then it is generally admissible.  Thus, if a statement is made during the course of a witness’s testimony at trial which conflicts with other evidence relating to an essential issue in the case, reply evidence will be permitted to resolve the conflict. [Emphasis in original.] [51] The trial judge held that Ms. Phillips’ evidence was admissible on two bases.  The first was that her evidence would be relevant to the issue of whether Mr. Moir had a sexual relationship with Chelsey, which the trial judge considered evidence of motive.  The trial judge highlighted two elements of Ms. Phillips’ evidence that went to motive.  First, the trial judge thought Ms. Phillips would give evidence regarding Mr. Moir’s home and contradict his evidence that he did not have access to a bedroom (only a couch).  She did not give this evidence.  Second, he thought that Ms. Phillips’ evidence that she and Mr. Moir had sexual relations while he had a girlfriend would rebut Mr. Moir’s testimony that he would not have sex with Chelsey because of his existing relationship with the same girlfriend.  In his oral ruling on voir dire , the trial judge said the following: [27]      The evidence as it relates to motive is a significant trial issue, and the accused’s denial of the sexual aspect of his relationship with Acorn, as indicated by his roommate’s evidence, was not, in my view, to have been reasonably anticipated by the Crown until this evidence was given. [52] As will be developed further under the issue of motive, the Crown did not assert or attempt to rely on motive when it came to the killing of Chelsey.  In any event, at its best, Ms. Phillips’ evidence going to Mr. Moir’s disposition to have sex and his sleeping arrangements (which she did not give) went to a collateral issue, and was entirely foreseeable.  On this basis, Ms. Phillips’ evidence should not have been admitted. [53] The second ground on which the trial judge concluded that the evidence was relevant was with respect to whether Mr. Moir feared his father to the extent that he would help him kill someone.  The trial judge was of the view that the trip to Alberta was “significant evidence leading to assessment of the accused’s state of mind and his stated abiding fear of his father”. [54] This evidence of “fear of his father” was known to the Crown before it closed its case.  It cannot have been taken by surprise with respect to the defence’s reference to the relationship between Mr. Moir and Mr. West.  A number of Crown witnesses gave evidence in this regard; it was referred to in Mr. Moir’s statement to the undercover officers.  As well, the Crown referred to this precise issue when addressing the admissibility of a wiretap.  The defence did not attempt to argue duress as a defence. [55] The trial judge did not permit the Crown to tender the evidence to demonstrate character and propensity.  Nonetheless, the Crown relied on this evidence in its closing address to demonstrate a propensity to have sexual relations with young girls on the part of Mr. Moir: He minimizes his relation about Chelsey to you while he was on the stand and, you know, as I said earlier, that just flies in the face of what Steven Dudley told you, Cory Gill, Arnold Horan, and it’s the same minimization that he gave in the Mr. Big statement.  He’s removing himself from Chelsey.  Why? Because he had this relationship with her when she was so young.  Similar to how he’s denying the evidence of Aurora Phillips, Rory Phillips.  You know, they had a brief sexual encounter when she was 15.  But again, he’s purging his memory, he’s distancing himself from that relationship.  He’s just putting away ‒ no relationship with young girls .  [Emphasis added.] [56] This use of the evidence by the Crown compounded the error. [57] In my respectful view, the only basis upon which Ms. Phillips’ evidence may have been relevant was on the issue of the relationship between Mr. Moir and his father.  This was not new evidence to the Crown, however.  The Crown was alive to the potential defence long before Mr. Moir testified.  This evidence falls far outside the permissible bounds of proper rebuttal evidence.  It was an error to admit it.  As I have already concluded a new trial is necessary, an analysis of s. 686(1)(b)(iii) as it applies to this error is not required. iii)      Did the Trial Judge Err in his Instruction on Post-Offence Conduct? [58] The trial judge did not give an instruction on the use of post-offence conduct.  The Crown relied on the following acts in his closing address to the jury, which is set out in para. 126 of Mr. Moir’s factum: The Crown referred to six examples of post-offence conduct in its closing submissions.  In summary form, beginning with events immediately after the death of Chelsey Acorn, the Crown’s submissions were these: a)         “The placements of all the other rocks, … It’s consistent to keep the body down so that the animals wouldn’t reach her.” T19-3307, ll.  42-45 b)         “And then they cleaned up the whole situation, the location, … They cleaned up the park.” – T19-3307, ll.  46-47 c)         “They went back to the house.  I shower.  I’m there the next night.  They bleach the car, they clean the car, that’s something that they would do.” -- T19-3304, ll.  37-42 d)         “He cut out a newspaper clipping - true.  Oh, and (indiscernible), left it in his mom’s safe, true.” -- T19-3303, ll.  41-43 e)         “[following news that Chelsey Acorn’s body was discovered] the first person Mr. Moir called was his dad.  They came over and they caucused, if you will. The only fear that Mr. Moir has at that point in time is that they’re going to be caught by the police for what they did.” – T19-3300, ll.  31-43, and f)          “And that’s exactly what he tells you  -- tells to Ajay on September 20th.  He left town because the body was discovered, and it’s discovered, that came out in the media.” – T19-3300, ll.  45-47 At least two other examples of post-offence conduct were put to Mr. Moir during cross-examination.  The first was the suggestion that the reason Mr. Moir did not “go to the police” after the killing was that he “had some hand in this” – a proposition he denied.  The second was the fact that he immediately phoned his father “in a panic” when the police seized a vehicle from his yard – Mr. Moir agreed that he telephoned his father but denied he was in a panic.  – T18-3070; 3073 [59] Mr. Moir submits that this conduct was equally consistent with someone who had been an accessory-after-the-fact.  He says that the trial judge should have instructed the jury that the after-the-fact conduct had “no probative value”, based on the decision in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433. [60] The unusual aspect of this case is that the evidence of the after-the-fact conduct was provided in Mr. Moir’s statement to Mr. Big as part and parcel of his confession to murder.  Thus, if such a direction was required, the jury would have to be instructed that if they accepted the “after-the-fact conduct” part of his statement to Mr. Big, then they could not use it to determine whether the earlier part of his statement (that he committed the murder) was true.  This would be an absurdity.  A jury charge must be based in reality and not appear to be angels dancing on the head of a pin. [61] In R. v. Pintar (1996), 30 O.R. (3d) 483 at 495, 93 O.A.C. 172 (C.A.), Mr. Justice Moldaver (as he then was) summarized the functional approach to a jury instruction: When I speak of the functional approach, I do so only in the sense that the expression provides a convenient label for the underlying principles which should inform the content of every jury charge. It would be wrong to think that I am purporting to advance a novel concept or engaging in a radical departure from existing jurisprudence. To appreciate this, one need only consider the thoughts expressed by Doherty J.A. on this very subject in R. v. Haughton (1993), 11 O.R. (3d) 621 at p. 625, affirmed [1994] 3 S.C.R. 516, 93 C.C.C. (3d) 99: A trial judge’s instructions to the jury must be custom-made for the particular case. Those directions must equip the jury with the law necessary to render its verdict. The scope of the trial judge’s legal instructions will depend in large measure on the nature of the evidence adduced and the issues legitimately raised by that evidence. A trial judge should not engage in a far-ranging esoteric discourse on potential applications of legal principles which bear no realistic relationship to the issues raised by the evidence. Unnecessary legal instruction serves only to dull the focus of the truly pertinent legal instructions and to confuse or intimidate the jury . . . While similar expressions can be found in the authorities, one of the more colourful and graphic descriptions of the functional approach comes from Time Inc. v. Hill , 87 S.Ct. 534 (1967) at pp. 557-58, where, albeit in the context of a libel case, Mr. Justice Fortas observed: But a jury instruction is not abracadabra. It is not a magical incantation, the slightest deviation from which will break the spell. Only its poorer examples are formalistic codes recited by a trial judge to please appellate masters. At its best, it is simple, rugged communication from a trial judge to a jury of ordinary people, entitled to be appraised in terms of its net effect. Instructions are to be viewed in this common sense perspective, and not through the remote and distorting knothole of a distant appellate fence. [62] Similarly, in Daley , Mr. Justice Bastarache said this at para. 57: ... The duty of the trial judge was succinctly put by Scott C.J.M. in R. v. Jack (1993), 88 Man. R. (2d) 93 (C.A.), aff'd [1994] 2 S.C.R. 310: “the task of the trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language” (para. 39). An instruction on post-offence conduct would only serve to confuse the jury. Given the nature of this evidence, I would not interfere with the verdict on this basis. iv)      Did the Trial Judge Err in his Instruction on Motive? [63] In the submissions by counsel on the charge to the jury, defence counsel told the trial judge that no one, including the Crown was alleging or raising a motive, and sought that the reference to motive be removed.  In the context of cautioning the jury on the use of the confession to Mr. Big, the trial judge gave this instruction: As the above indicates, you can rely on the accused’s confession without finding support if you are convinced beyond a reasonable doubt that the confession is true.  However, common sense indicates that in considering the confession you should look at this evidence with caution and examine the evidence in this case to see if there is evidence that may confirm or support the confession. It is for you to say whether evidence confirms the confession or whether you will accept some, all, or none of what Dustin Moir said during the investigation. The following illustrates the kind of evidence you may want to examine to see if it confirms or supports the accused’s confession or perhaps indicates its unreliability.  It may help you; it may not.  It is for you to say. ... 4.         There is evidence from Steven Dudley that Moir had a sexual relationship with Acorn when she was 13 years of age which would have given Moir the same sort of motive to do away with Chelsey Acorn because she might report him for having sex with an underage minor.  You should also remember, however, that there was no evidence of animosity between them or that Acorn threatened Moir with this at any time before her death. [64] There was evidence that Mr. West was concerned that Chelsey would report him to the authorities for having sex with her when she was a minor.  There was evidence that suggested that Mr. West was Chelsey’s pimp.  When Mr. Dudley was living with Mr. Moir, Chelsey called Mr. Dudley’s cell phone a number of times to speak with Mr. Moir because Mr. Moir’s cell phone was cut off.  The first call was on May 18, 2005; the last was on May 25, 2005.  Phone records confirmed these calls.  This evidence suggests that Mr. Moir and Mr. Dudley were roommates later in May 2005 and not April.  As noted above, the trial judge instructed the jury that Mr. Moir had a motive to kill Chelsey if he had sex with a minor.  No one pointed out to the trial judge that the telephone calls with Mr. Moir through Mr. Dudley commenced several weeks after Chelsey’s 14th birthday.  At that point, she was no longer a minor under the law at that time.  There was a real possibility that Mr. Dudley was in error with respect to when Chelsey met Mr. Moir. [65] More importantly, issues of age and timing aside, there was simply no evidence that Mr. Moir was concerned about Chelsey reporting him to the authorities, and any inference drawn from Mr. West’s concerns is speculation and contrary to the bulk of the evidence. [66] The trial judge should not have instructed the jury that they could consider this as a motive for Mr. Moir to kill Chelsey.  This was an error in law.  Again, there is no need for an analysis pursuant to s. 686(1)(b)(iii) as a retrial is required based on the first ground of appeal. v)       Did the Trial Judge Err in Failing to Leave Manslaughter as a Verdict? [67] Mr. Moir submits that there was an evidentiary basis for the jury to reach a verdict of manslaughter.  He refers to the following evidence in his factum: · Mr. Moir’s denial of any intent to kill Chelsey Acorn or any intent to inflict bodily harm that he knew was likely to cause her death, · Mr. Moir’s testimony that he was merely a witness to his father’s crime and did nothing more than assist in the cover-up, by amongst other things, putting rocks in the grave, · Mr. Moir’s testimony to the effect that he believed that his father choked Chelsey Acorn to death, · Mr. Moir’s statement to the fictitious crime boss that he crushed Chelsey Acorn’s head with a large rock but he believed she was already dead, and · Dr. Charlesworth’s expert opinion that the most likely cause of death was the crushing of Chelsey Acorn’s head with a large heavy object such as a rock. [68] He submits that this evidence demonstrates an “air of reality” that Mr. Moir did not intend to kill Chelsey, relying on Aalders at 504. [69] Theoretically, the jury could have, through considerable intellectual machinations, cobbled together a scenario from the evidence that could lead them to a manslaughter verdict.  Neither the Crown nor the defence asked for this verdict to be left with the jury.  Manslaughter was never a realistic verdict on this evidence.  I harken back to my earlier comments regarding the functional approach to a jury instruction and the need to keep a jury focussed on the “truly pertinent issues”.  In my view, this was a case of murder or accessory-after-the-fact.  There was no air of reality to a manslaughter verdict and the trial judge did not err in not leaving this verdict as a possible outcome.  I would not accede to this ground of appeal. vi)      Did the Trial Judge Err in Failing to Instruct the Jury on how to Address the Conflict Between Mr. Moir’s Out-of-Court Statements and his Testimony? [70] Mr. Moir submits that the trial judge was required to give what is commonly referred to as the “ MacKenzie ” instruction ( R. v. MacKenzie , [1993] 1 S.C.R. 212). [71] Mr. Moir submits that because his evidence at trial denying participation in the murder conflicted with his out-of-court statements to Mr. Big admitting participation in the murder, the trial judge was required to instruct the jury that if they accepted Mr. Moir’s testimony or had a reasonable doubt as to his guilt arising from his testimony, they must reject the out-of-court statements.  Mr. Moir relies on the following reasoning in R. v. Mayuran, 2012 SCC 31 at paras. 41 and 42, 284 C.C.C. (3d) 1: [41]      At the Court of Appeal and before this Court, the Crown conceded that this instruction was an error.  The error stems from this Court’s decision in R. v. MacKenzie , [1993] 1 S.C.R. 212.  As a general rule, the evidence in a case should be considered as a whole in determining whether there is a reasonable doubt as to guilt ( R. v. Morin , [1988] 2 S.C.R. 345; R. v. Rojas , [2008] 3 S.C.R. 111, at para. 43).  But MacKenzie held that, “on important items of evidence the jury may require guidance on how to approach its task”.  As a result, where a statement by an accused at trial is entirely at odds with a previous out-of-court statement by the accused, and the jury believes the statement at trial, or is left in reasonable doubt that it is true, then the jury must reject the out-of-court statement; the accused must be given the benefit of the doubt.  In arriving at that conclusion, the jury should, of course, give consideration to the evidence as a whole. [p. 239] [42]      A specific instruction of this kind is not required in every case where there is conflicting evidence about the accused’s out-of-court statements.  A MacKenzie instruction is only required where “the credibility of [the] conflicting statements go[es] directly to the ultimate issue in dispute” and the jury’s decision to accept one statement “amount[s] to choosing between the two competing theories of the case” ( White (S.C.C.), at para. 52).  There is no reason to give a specific instruction where the conflicting statements “are not individually crucial to the determination of the ultimate issue” (para. 53). [72] In my view, it is not necessary to decide whether such an instruction was required in this case.  When the charge is read as a whole, the jury would understand that if they accepted the evidence of Mr. Moir or if it raised a reasonable doubt, they should acquit.  The following instructions to the jury, taken from the Crown’s factum, demonstrate this conclusion: (a)        Instructions to consider all the evidence: The presumption of innocence only ceases to apply if at the end of the case and after you consider all of the evidence the Crown satisfies you beyond a reasonable doubt that an accused is guilty of the crime charged. If, at the end of the case and after assessing all the evidence, you are not sure that an accused committed the offence you must find him not guilty. ... If at the end of the case and based on all the evidence you are sure that an accused committed the offence you should find that accused guilty. ... When you decide whether the accused is guilty or not guilty of an offence, you should look at all the evidence and consider the whole of my instructions. (b)        Instructions on the elements of the offence: In this case, the evidence indicating an assault on Chelsey Acorn is that contained in the accused’s confession to the crime boss played by [officer’s name omitted]. The accused said in his confession that Chelsey Acorn was first subjected to force to her neck by Jesse West placing his arm around her throat from behind and then applying pressure to her neck until she was unconscious or dead.  Dustin Moir said that he then choked her from the front when she subsequently showed some sign of life. ... Unless you are satisfied beyond a reasonable doubt that Dustin Moir assaulted Chelsey Acorn or together and in concert with Jesse West assaulted Chelsey Acorn, both intending the assault, Dustin Moir will not be guilty of first degree murder as a principal offender. ... In this case, the evidence the Crown relies on as implicating Dustin Moir as an aider is in the role he indicated to [officer’s name omitted] in keeping Chelsey Acorn distracted and in helping to dig the grave, as part of the plan while Jesse West prepared to kill her ...  If, however, you have a reasonable doubt that Dustin Moir did not know of Jesse West’s planned and deliberate intention to kill, and his participation was confined to helping bury the body after the murder had been committed, this would be after the fact and you must find him not guilty of murder. (c)        Instructions on R. v. W. (D.) , [1991] 1 S.C.R. 742: If you believe the testimony of Dustin Moir that he did not commit the offence charged, you must find him not guilty. Even if you do not believe the testimony of Dustin Moir, if it leaves you with a reasonable doubt about his guilt, you must find him not guilty. Even if the testimony of Dustin Moir does not raise a reasonable doubt about his guilt if, after considering all of the evidence you are satisfied [ sic ] beyond a reasonable doubt, you should acquit. If you reject the evidence of Dustin Moir given at trial as incapable of raising a reasonable doubt, you need to assess whether the Crown’s case, based on the truth of the confession, is sufficient to satisfy you beyond a reasonable doubt of his guilt. (d)        Instructions on the confession to undercover police: ... the law views confessions produced in this manner as inherently unreliable.  They may be used by you as proof of an offence but it would be dangerous to do so without independent confirmation of the truth of what an accused had to say. ... As the above indicates, you can rely on the accused’s confession without finding support if you are convinced beyond a reasonable doubt that the confession is true. [73] There is an obvious error in the W. (D.) instruction.  It should read “... after considering all of the evidence you are not satisfied beyond a reasonable doubt ...”.  In my view, however, this is a harmless error that would not affect the verdict.  When read as a whole, trial judge’s jury instructions were abundantly clear on the Crown’s burden of proof with respect to the out-of-court statements of Mr. Moir and his testimony at trial. [74] I would not accede to this ground of appeal. Conclusion [75] There were two versions of the events available to the jury in this case, one in which the Mr. Moir was an active principal or aider of the offence of murder; the other in which he was a fearful bystander and accessory after-the-fact.  The trial judge did not instruct the jury on the proper use of prior consistent and inconsistent statements from witnesses.  By failing to do so, he fell into error.  This error alone requires a new trial. Disposition [76] I would allow the appeal and order a new trial. “The Honourable Madam Justice Bennett” I agree: “The Honourable Madam Justice D. Smith” I agree: “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Garcia v. Drinnan, 2013 BCCA 53 Date: 20130131 Docket: CA040585 Between: Amadeu Garcia Appellant (Plaintiff) And Wayne Drinnan Respondent (Defendant) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Lowry The Honourable Mr. Justice Harris On appeal from: Supreme Court of British Columbia, January 23, 2013 ( Garcia v. Drinnan , Vancouver Registry M094091) Oral Reasons for Judgment Counsel for the Appellant: M. Azevedo & A.C.K. Oh Counsel for the Respondent: J. Lindsay,Q.C. & T.P.K. Tsang Place and Date of Hearing: Vancouver, British Columbia January 31, 2013 Place and Date of Judgment: Vancouver, British Columbia January 31, 2013 [1] LOWRY J.A.: The plaintiff applies on short leave to vary the order of Mr. Justice Groberman denying leave to appeal the order of a Supreme Court judge allowing an appeal from a master and adjourning the trial of this action which was set for 15 days to commence in four days’ time. [2] The plaintiff contends the order denying leave was based on an error of law which led to Groberman J.A.’s determination that the reasons for granting the adjournment are “unassailable” such that there is no merit in the proposed appeal. [3] The plaintiff was seriously injured in two motor vehicle accidents three years apart: April 2009 and April 2012.  This action for damages in respect of the first accident was commenced in August 2009 and was first to have been tried in January 2011.  Liability is to some degree in issue.  The trial was adjourned by consent.  The action was then to have been tried in March 2012.  The trial was adjourned again to February 2013.  Although it was adjourned for the second time because of the plaintiff’s failure to disclose relevant documentation, it was a term of the adjournment that he be paid $100,000.  An action in respect of the second accident was commenced this month.  This action was adjourned for what is then the third time to the first available date (January 2014) on terms whereby the plaintiff is now to be paid an additional $50,000 and the two actions are to be tried at the same time.  Some of the injuries for which the plaintiff claims damages in the two actions are indivisible; others are attributable to one accident or the other. [4] The judge who allowed the appeal from the master and adjourned the trial recognized that two factually related actions can in some circumstances be tried separately but considered it would be erroneous to proceed in that way in this instance as the master had ordered.  He said: [9]        The question of whether it is advisable to do that in circumstances of this kind was not, on the record at least, considered by the master, and in the colloquy I have had with counsel on this occasion, I think it is evident that I foresee considerable problems and a possibility for embarrassment in the administration of justice in the potential for overlapping or inconsistent treatments of the same facts, not to mention the fact that what will, in practical terms, be required, is overlapping forms of proof. [10]      Those, I think, are compelling in the circumstances of this case, and it appears to me to be obvious that these matters should be heard at the same time and place and that because the second proceeding is at a very early stage, the requirements for an adjournment are plain and obvious. [5] In refusing to grant leave to appeal, Groberman J.A. said: [13]      It is well established that this court ought not generally to interfere with the trial court in its management of its own case load, and for that reason, appeals from either successful or unsuccessful adjournment applications, are rarely heard by this court. The issue of principle here is whether the judge erred in finding that separate trials with respect of the two accidents might result in inconsistent findings of fact and orders or unfairness to the parties. I have heard counsel at some length on this issue. [14]      I have concluded that it is not arguable that the judge erred in concluding that inconsistent findings or unfairness were very real possibilities if the two actions are heard separately. [15]      The issue of the extent of the indivisible injuries, as well as the assessment of the damages suffered as a result of them are issues that must be answered in both actions, as will be the issue of whether the plaintiff has appropriately mitigated his damages. On the face of it, it is possible for the finder of fact in each case to come to a different conclusion on those issues. That may well be embarrassing to the administration of justice. [16]      Even if, as Mr. Azevedo has argued, the factual determinations in the first case would bind the parties in the second (a proposition which does not appear to me to be completely correct), there is possibility of significant unfairness to one or other of the defendants, who would become bound by findings of fact in proceedings to which they were not parties. [17]      In the circumstances, the legal analysis carried out by the judge appears to me to be unassailable. This Court could not, realistically, overturn the decision of the trial judge in the absence of a finding that his legal analysis was flawed. It is not our role to evaluate the judge’s exercise of discretion. [6] The plaintiff contends both the Supreme Court judge and Groberman J.A. erred in stating categorically there is a real risk of inconsistent findings of fact or unfairness if the two actions are not tried together.  He maintains the Supreme Court judge’s statement to that effect is not unassailable and he cites authorities addressing the legal implications of injuries being divisible or indivisible to support his contention that there is no risk of double recovery if the actions are not tried together. [7] Quite apart from any question of double recovery, I consider the Supreme Court judge was entitled to take the broad view of the circumstances he did following on what he said was the colloquy he had with counsel with respect to the advisability of trying one action before the other where he foresaw considerable problems and the possibility of judicial embarrassment.  As Groberman J.A. observed, this was for the judge a matter of trial management – a matter of discretion – in respect of which this Court is loath to interfere.  I consider trying the two actions separately when both raise issues concerning the plaintiff’s health, abilities, and enjoyment of life before and after each accident could well lead to unfairness and the kind of problems the Supreme Court judge and Groberman J.A. recognized .  I see no error in what either has said.  Nor do I see any prospect of the proposed appeal being successful. [8] It follows that I would dismiss the application. [9] NEWBURY J.A.: I agree. [10] HARRIS J.A.: I agree. [11] NEWBURY J.A.: The application is dismissed. “The Honourable Mr. Justice Lowry”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Miazga, 2013 BCCA 38 Date: 20130131 Docket:  CA040498 Between: Regina Respondent And Sebastian Miazga Appellant Before: The Honourable Mr. Justice Frankel (In Chambers) On appeal from:  Supreme Court of British Columbia, November 6, 2012 ( R. v. Cain , Vancouver Registry No. 25824) Counsel for the Appellant: G. Orris, Q.C. and K. Westell Counsel for the Respondent: W.J.S. Bell Place and Date of Hearing: Vancouver, British Columbia January 10, 2013 Place and Date of Judgment: Vancouver, British Columbia January 31, 2013 Reasons for Judgment of the Honourable Mr Justice Frankel: Introduction [1] Sebastian Miazga applies for judicial interim release pending the hearing of his appeal from his conviction by a judge of the Supreme Court of British Columbia on a charge of manslaughter.  The trial judge imposed a sentence of five years, less 228 days’ credit for the time Mr. Miazga spent in custody prior to being sentenced. [2] For the reasons that follow, the application is dismissed. Factual Background of the Offence [3] Mr. Miazga’s conviction relates to the death of Tyson Edwards, who was attacked by a group of men after he left a night club in downtown Vancouver.  During that altercation, someone stabbed Mr. Edwards several times.  The trial judge described the events as follows in his reasons for conviction ((November 6, 2012), Vancouver Registry 25824 (B.C.S.C.)): [7]        I am satisfied, upon considering the whole of the evidence, that Tyson Edwards met his death in the following circumstances:  Shortly after he walked out of the Richards on Richards night club, about 2:20 a.m. in the morning of Sunday, February 1, 2009, Tyson Edwards was suddenly assaulted by at least three and possibly four or more men, who acting together punched him in the head and upper body.  This assault resulted in Mr. Edwards being on the sidewalk, incapable of defending himself in an effective manner, if at all, following which the assault was continued by at least two of the attackers, who kicked him repeatedly in the head and body, after which he was dragged by one or more of his assailants to the curb, where one of them lifted his then-limp body up and attempted to bang his head against the curb and administered more kicks and stomps. The entire incident took no more than about one minute. [8]        When Mr. Edwards’ body was turned over after the last assailant had left, he was limp and his eyes were rolling backwards.  He was then seen to be bleeding profusely from the chest area, which was the first time any of the observers had noticed any blood on Mr. Edwards. [9]        I find it to be proven beyond a reasonable doubt that Tyson Edwards suffered the fatal stab wounds to his chest at some point during the minute or so that he was being assaulted.  I also find it to be proven beyond a reasonable doubt that he was stabbed by one of the attackers conducting the assault observed by the witnesses.  There is absolutely no evidence to support an inference that the stabbing took place at some other time or at the hands of anyone other than one of those seen punching or kicking him. [10]      No knife or weapon was ever seen by any of the witnesses.  None was ever found and connected to the stabbing, and none of the assailants were observed to have anything in their hands.  It is not possible to decide from the evidence which individual did the stabbing or when in the assault the stabbing was done. [4] Mr. Miazga and three others were charged with manslaughter.  The trial judge acquitted one of those persons because he was not satisfied he was one of the attackers.  In convicting Mr. Miazga and the two others, the judge said, [17]      I find that all of those persons who took place in the assault, which started with the sudden punching attack, are joint perpetrators in the continuation of the assault, which included the kicking and stabbing.  It was foreseeable when the attack was started that it would be continued when Mr. Edwards went to the ground.  In committing the assault, each individual significantly contributed to the cause of Tyson Edwards’ death in circumstances in which the law holds them responsible.  Their unlawful assault was objectively dangerous from the beginning, and it culminated in Tyson Edwards’ death. [18]      Were I to have found that the stabbing was an intervening act in law, I would still find those who took part in the beginning of the assault guilty of manslaughter, as the evidence satisfies me that in the circumstances of the attack on Mr. Edwards, which took place at closing time outside of a night club, in the downtown area of the port city of Vancouver, involving a group attack upon one person, that the use of a weapon was objectively foreseeable by a reasonable person in the circumstances of the accused from the start. Mr. Miazga’s Personal Circumstances [5] Mr. Miazga is a Canadian citizen.  He was born in Poland and immigrated to Canada with his parents as a young child.  He was 23 years old at the time of the offence and is now 27.  He has a high school education.  His employment has been mainly in the construction industry.  His parents, who are no longer married, live in Metro Vancouver, as do his older brother, half-sister, and grandmother. [6] Prior to his conviction for manslaughter, Mr. Miazga’s criminal record consisted of the following: March 11, 2008 Vancouver, B.C. Assault Suspended. Sentence plus one years’ probation October 17, 2008 Calgary, Alberta Impaired Driving Failure to Provide a Breath Sample Possession of a Scheduled Substance $850 fine plus one years’ driving prohibition $850 fine $100 fine March 18, 2010 Calgary, Alberta Driving While Disqualified $750 fine in default 10 days Mr. Miazga’s Compliance with Previous Bail Conditions [7] Mr. Miazga was arrested for manslaughter in December 2009.  He was released on a recognizance in the amount of $10,000.00 without sureties, but with a cash deposit in that amount.  The recognizance included a number of conditions, including a curfew. [8] On June 8, 2011, Mr. Miazga was arrested for breach of the curfew condition.  In the affidavit he swore in support of the present application, Mr. Miazga deposes that he left the apartment where he was living with his girlfriend after midnight in order to avoid an escalation in the argument they were having.  His counsel advises that he returned home later that morning and then drove to the Provincial Court to attend his preliminary inquiry, after telling his girlfriend to report what had happened to the police.  He was arrested when he arrived at the courthouse.  Later that day he was committed for trial. [9] On July 6, 2011, Mr. Miazga appeared before a judge of the Supreme Court of British Columbia, admitted to having breached his curfew, and was again released on bail.  That release was on a recognizance in the amount of $10,000.00 with a cash deposit in that amount and one surety in the amount of $1.00.  Mr. Miazga’s mother provided the funds for the deposit and was the surety.  The recognizance contained a number of conditions.  Those included a requirement that Mr. Miazga live at the residence in Surrey, British Columbia where his mother and grandmother live and that he obey a 9:00 p.m. to 6 a.m. curfew.  That residence is jointly owned by Mr. Miazga’s grandmother and brother. [10] On January 21, 2012, a vehicle driven by Mr. Miazga was stopped by a police officer.  In his affidavit, Mr. Miazga deposes that he was stopped while “driving home minutes prior to my curfew”, i.e., before 9:00 p.m.  He further deposes that “[b]y the time I finished speaking with the police, I was in breach of the curfew condition of my release, and I was taken into custody”.  According to Mr. Miazga, he was delayed in returning home because he had “difficulty with the breathalyzer installed on my vehicle”. [11] The Crown’s position with respect to what occurred is different.  It relies on the report to Crown counsel prepared by the officer who stopped Mr. Miazga.  That report states that Mr. Miazga was stopped at 9:12 p.m. because the licence plate of the vehicle he was driving did not match the description of the vehicle for which that plate had been issued.  The vehicle was registered to another person.  When the officer ran a computer check on Mr. Miazga’s name, he discovered that Mr. Miazga was in breach of his curfew.  Mr. Miazga acknowledged this and asked not to be arrested.  After arresting Mr. Miazga for possession of stolen property and breach of his curfew, the officer found $1,200.00 in cash on Mr. Miazga’s person.  The report goes on to indicate that while being transported to the police detachment, Mr. Maizga ingested some unidentified substance that caused the police to have him examined by a doctor. [12] On February 1, 2012, Mr. Miazga was found to have breached his bail conditions on January 21st and the $10,000.00 cash deposit was marked for estreatment.  He was released by a judge of the Supreme Court on a recognizance of $500.00 with a cash deposit in that amount and one surety in the amount of $1.00.  His mother again provided the cash deposit and was the surety. [13] I was advised that at the February 1, 2012 bail hearing the Crown opposed Mr. Miazga’s release.  However, once the judge decided to release him, the Crown agreed to the cash deposit being lower than it had been previously. Grounds of Appeal [14] In his notice of appeal, Mr. Miazga alleges that the trial judge erred in concluding that: (a)      the stabbing of Mr. Edwards was not an intervening act; (b)       the use of a weapon was reasonably foreseeable in the circumstances; and (c)       his actions in assaulting Mr. Edwards significantly contributed to the cause of death. Applicable Test [15] This application is governed by s. 679(3) of the Criminal Code , R.S.C. 1985, c. C-46.  To obtain release, Mr. Miazga must establish that:  (a) his appeal is not frivolous; (b) he will surrender himself into custody when required to do so; and (c) his detention is not in the public interest. Overview of the Positions of the Parties [16] Mr. Miazga submits his appeal is a strong one and that, if he is successful, the result will be an acquittal.  He notes that he is a Canadian citizen who has the support of his family.  He further says that he has no resources with which to flee.  His grandmother and brother have filed affidavits indicating that they are prepared to be sureties and that they have equity of $300,000.00 in the property they own in Surrey.  Mr. Miazga’s brother lives in Port Coquitlam. [17] Mr. Miazga acknowledges that what occurred is a tragedy but says his detention is not required in the public interest.  He submits that his release on a recognizance with sureties and on strict conditions would be appropriate.  He suggests that those conditions require him to live at the Surrey residence and to abide by a night-time curfew. [18] The Crown accepts that the appeal is not “frivolous”, but submits that Mr. Miazga has not satisfied either of the other two criteria for release. Analysis [19] I will begin by considering the second criterion in s. 679(3), and the question of whether I am satisfied that Mr. Miazga will surrender himself into custody in accordance with any order I might make. [20] In its opposition to release, the Crown points out that the offence presently under appeal was committed while Mr. Miazga was on probation as a result of having been convicted of assault.  The reasons for conviction with respect to that matter show that the trial judge accepted the evidence of a witness that Mr. Miagza assaulted a young woman on the street at 4:20 a.m. by slamming her head into a wall, punching and kicking her, and dragging her by the hair:  ((March 11, 2008), Vancouver Information No. 191773-K-1 (B.C. Prov. Ct.)).  The Crown says that the two curfew beaches are a further indication that Mr. Miazga is not a person who I can be confident will abide by any terms I might impose.  In addition, the Crown says it has been unable to find a record of Mr. Miazga having paid the victim surcharge he was ordered to pay in connection with the assault conviction. [21] The Crown also says that Mr. Miazga has been less than forthright in his affidavit.  It points to the following: (a)      Mr. Miazga states, “I do have a prior criminal record”, and then refers only to the 2008 assault conviction.  He does not mention his four subsequent convictions; (b)      Mr. Miazga’s version of what occurred when he was stopped on January 21, 2012, differs significantly from the police report of that incident, particularly with respect to when he was pulled over; and (c)      Mr. Miazga describes the 2008 assault conviction as “arising from an argument with my girlfriend at the time.”  However, the reasons for judgment in that matter indicate a far more serious altercation. [22] With respect to this last matter, I do not view Mr. Miazga’s summary description of the incident as being inconsistent with the facts found by the trial judge in that matter, or as an attempt by Mr. Miazga to obfuscate.  However, I do have concerns about the other discrepancies in Mr. Miazga’s affidavit and his apparent lack of respect for court orders. [23] I consider Mr. Miazga’s failure to mention four of his previous convictions a serious matter; one that causes me to have doubts about both his truthfulness and trustworthiness.  In this regard, I note that in addition to his affidavit being misleading as to the extent of his criminal record, his failure to mention the additional convictions is contrary to s. 19(2)(f) of the Criminal Appeal Rules, 1986 , B.C. Reg. 145/86.  That rule requires an offender who is applying for bail pending appeal to disclose all convictions during the five years preceding the conviction being appealed. [24] The discrepancy between Mr. Miazga’s description of what occurred when he was stopped on January 21, 2012 and that set out in the report to Crown counsel also gives me concern.  It appears to me that in the affidavit he has sought to explain away the incident on the basis that the breach of the curfew was brought about by his being stopped before he was required to be at his residence.  I find that explanation difficult to accept in light of the fact that this incident resulted in Mr. Miazga’s bail being marked for estreatment. [25] Another matter that gives me concern is that Mr. Miazga proposes to live in Surrey with his grandmother and mother.  I note that the January 21, 2012 curfew breach occurred when the conditions of his recognizance required him to live at the same Surrey residence and his mother was both his surety (albeit for only $1.00) and the person who provided the $10,000.00 cash deposit.  This causes me to doubt that the potential financial risk to family members will serve to dissuade Mr. Miazga from breaching any conditions I might impose.  As well, I note that Mr. Miazga’s brother lives some distance away from the Surrey residence and, therefore, is not in a position to closely supervise him, particularly at night. [26] The cumulative effect of the above mentioned matters is such that I cannot be confident that Mr. Miazga will surrender himself into custody as and when required.  For that reason alone, I am not prepared to grant him bail. [27] Even if I had been satisfied that Mr. Miazga would surrender himself into custody, I would still not have granted him bail, as he has not satisfied the third criterion of s. 679(3), namely, that his detention is not necessary in the public interest.  As discussed in R. v. Mapara , 2001 BCCA 508, 158 C.C.C. (3d) 312 at paras. 32 – 36, this criterion engages the question of whether the public interest in the “reviewability” of a conviction outweighs the public interest in the “enforceability” of the sentence imposed.  The holding in Mapara was recently affirmed by a five-judge division of this Court in R. v. Gingras; R. v. Porisky , 2012 BCCA 467. [28] I am prepared to proceed on the basis that Mr. Miazga has viable grounds of appeal.  However, I cannot ignore the fact that he participated in the attack on Mr. Edwards while on probation for an earlier attack on a young woman and that he twice breached the terms of his bail on the within matter.  The totality of Mr. Miazga’s conduct evinces that there is a real risk that he will commit further offences if released, including ones involving violence.  Releasing a person who poses such a risk would erode public confidence in the administration of justice. Disposition [29] This application is dismissed. “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Rothgordt, 2013 BCCA 37 Date: 20130131 Docket: CA039054 Between: Regina Respondent And Kim Winslow Rothgordt Appellant Before: The Honourable Chief Justice Finch The Honourable Madam Justice Neilson The Honourable Mr. Justice Harris On appeal from: Supreme Court of British Columbia, January 12 th , 2011 (conviction) and April 26 th , 2011 (sentence), ( R. v. Rothgordt, Port Alberni Registry File 31391) Counsel for the Appellant: R.A. Mulligan, Q.C. Counsel for the Respondent: R.C.C. Peck, Q.C., A. Cheon-Hayes Place and Date of Hearing: Vancouver, British Columbia December 10 th , 2012 Place and Date of Judgment: Vancouver, British Columbia January 31 st , 2013 Written Reasons by: The Honourable Chief Justice Finch Concurred in by: The Honourable Madam Justice Neilson The Honourable Mr. Justice Harris Reasons for Judgment of the Honourable Chief Justice Finch: I.  Introduction [1] Mr. Rothgordt appeals his conviction by a jury in Port Alberni on 12 January 2011, on one count of second degree murder for the death of James Shannon on 13 February 2008.  Counsel for the appellant asserts a number of errors, including errors related to alleged irregularities in the trial process, an error in admitting the appellant’s criminal record, and a number of errors in the charge to the jury.  The errors alleged in the jury charge include the instruction on the defence of provocation, and the trial judge’s suggestion that a conviction may be based on a lack of evidence.  The appellant submits that these two errors are the most serious of all the grounds of appeal. [2] Counsel for the Crown says that the judge did not err in any of the ways alleged, that the defence did not raise any of these issues at trial, and that if any errors were made they were inconsequential.  Counsel says the appeal should be dismissed. [3] For the reasons that follow I would allow the appeal.  I will focus on the issues related to provocation and the use of “lack of evidence” by the trial judge. II.  Background [4] As I would allow the appeal and order a new trial, I will refrain from reviewing the evidence in detail.  What is in these reasons is based on the trial transcripts.  The appellant did not testify. [5] It was not disputed at trial that the appellant killed Mr. Shannon.  What was at issue was whether the appellant acted in self-defence, was too intoxicated to form the requisite intent for murder, or was provoked. [6] The theory of the Crown was that the two men met at the deceased’s home and had consensual sex.  However, due to a crisis in his sexual identity, the appellant was prompted to attack and kill the victim.  The Crown said that after the accused was arrested for being drunk in a public place he faked a suicide attempt so that he could “lay low in the hospital” while he considered his predicament.  He told the hospital staff he had been sexually assaulted and said the same thing to the RCMP officer who took a statement from him. [7] The learned trial judge summarized the Crown’s position in the charge to the jury as follows: Here the Crown says that while they don't have any specific motive to advance, there is evidence that Mr. Rothgordt may have been sexually confused.  Crown points to evidence that this was the accused's first homosexual experience and that he may have snapped when actually confronted by it.  In terms of trial testimony tending to point to self-defence, intoxication and provocation, Crown says you should treat it with a high degree of scepticism, that it is a self-serving chronicle designed to avoid criminal responsibility. You heard counsel express their views, but I want to refer to them again so that you have them firmly in your mind when assessing my instructions.  The Crown says that Mr. Rothgordt, for reasons that we will never know but perhaps because of confusion over his sexual orientation, attacked Mr. Shannon in his home with a hammer causing his death.  Crown then says that consumed with anger or hatred, the accused committed further acts and attacks upon an already deceased or dying Mr. Shannon... [8] The defence theory at trial was that the appellant was the victim of a violent sexual assault and that he struck Mr. Shannon with a hammer in order to defend himself from the attack.  Alternatively, the jury was asked to consider provocation and intoxication in reducing the verdict to manslaughter.  The learned trial judge summarized the position of the defence as follows: The defence says that Mr. Rothgordt engaged in on-line chats with Mr. Shannon out of curiosity.  He had never had a homosexual encounter, but thought to add it to his sexual experience.  However, says defence, he did not ever consent to the violent sexual attack that is described in his statement to police.  Defence maintains that the blows to Mr. Shannon occurred in an attempt to stop this attack.  Alternately, if self-defence is rejected, then there is evidence of intoxication and/or provocation so as to reduce the allegation in the indictment to manslaughter. III.  The Charge to the Jury and Parties’ Positions on Appeal [9] The learned trial judge provided the jury with written copies of both his preliminary remarks before any evidence was called, and of his charge to the jury, before addressing them orally.  I will focus on the instructions as they relate to the defence of provocation and the appropriate use of a lack of evidence, as these are the two most serious grounds according to the appellant. Provocation [10] The instructions on provocation and intoxication were generally intertwined.  At two points, these instructions may have given the impression that provocation worked in a manner similar to intoxication, such that it did not apply if the intent to commit the murder was found to be present.  First, when discussing intent, the trial judge stated: I told you about the Crown's burden to prove intent for murder beyond a reasonable doubt.  In considering this burden, you must assess and take into account all of the evidence respecting intoxication or provocation, about which I will refer further when discussing the evidence, to determine whether the accused could have formed this required intent. [11] Second, when discussing the possible verdicts, the trial judge stated: On the evidence before you, there are three possible verdicts on the count in the Indictment: ... Not guilty of second degree murder but guilty of manslaughter [if you find provocation or intoxication through ingestion of drugs/or alcohol so as to negate the intent required for murder, or you have a reasonable doubt about that]. [12] The appellant submits that the judge’s instructions incorrectly mixed the defences of intoxication and provocation.  The charge left the jury with the mistaken impression that provocation only applied if they found that the appellant did not have the required intent for murder. [13] The Crown submits that when read as a whole, the instructions did not leave the jury with an erroneous impression of how provocation operates.  Rather, it was clear that the instructions directed the jury to consider whether or not the defence of intoxication prevented the appellant from forming the requisite intent for murder.  The Crown submits that the instructions properly provided the jury with the relevant Criminal Code sections, which the appellant concedes indicate that the defence applies even where the requisite intent for murder is present. Lack of Evidence [14] The pre-evidence instructions contained numerous references to how the jury may use a “lack of evidence”.  Generally, these references involved using a lack of evidence to support a reasonable doubt.  For example, the trial judge stated: It is extremely important that you appreciate that this doubt must arise from the evidence or lack thereof. It cannot be a doubt entirely unconnected with the evidence, which I would call a capricious or fanciful doubt. [15] However, at the conclusion of his initial discussion on reasonable doubt, the trial judge stated that a lack of evidence may be used to support a conviction: In short, if, based upon the evidence before the court, or lack of evidence, you are sure that the accused committed the offence, you should convict, since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. [16] Following the closing addresses from counsel, in his final instructions, the trial judge referred the jury back to his pre-evidence instructions.  He repeated the above statements regarding the use of lack of evidence, again concluding: So, in short, if based upon the evidence before the court, or lack of evidence, you are sure the accused committed the offence, you should convict, since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. [17] The appellant submits that the instruction that a lack of evidence can lead to a conviction is clearly wrong in law. [18] Crown submits that the instructions on reasonable doubt were properly based on the model provided in R. v. Lifchus , [1997] 3 SCR 320.  While it would have been preferable if the suggestions that a conviction may be based on a lack of evidence were not made, as a whole, the instructions provided the proper guidance to the jury.  The instructions were clear that a reasonable doubt may be based on an absence of evidence, that the burden of proof rested on the Crown, and that the Crown must discharge this burden by presenting evidence.  Read as a whole, there was no reasonable prospect that the jury thought they could convict the appellant on an absence of evidence. IV.  Analysis Provocation [19] I will first consider the assertion that the jury was misdirected on the defence of provocation, so that they may have been left with the impression that the defence only applies if the jury found that the appellant did not have the requisite intent for murder.  As noted above, there are at least two instances where the instructions give rise to such a concern. [20] Where both intoxication and provocation are raised as defences, care must be taken to ensure that the jurors are aware of the differences in how the two defences operate.  As was suggested in R. v. Kent , 2005 BCCA 238, 196 C.C.C. (3d) 528, paras. 14-15, the preferred approach should be to instruct the jury on intoxication first, including the logical connection between intoxication and the requisite intent for murder.  The jury should be instructed that if intoxication as a defence is accepted, then there is no intent for murder and provocation need not be considered.  Second, the jury should be instructed that, if the necessary intent for murder is found beyond a reasonable doubt, they must then consider provocation.  In explaining provocation where intoxication is also present, the instruction should explain how the intoxication may have affected the appellant in relation to the elements of provocation.  As Low J.A. stated, at para. 15, “[e]vidence of intoxication that falls short of negating intent is still to be considered when discussing the defence of provocation.” [21] In this case, as in Kent , the jury instruction did not clearly separate the two defences, potentially leading to confusion concerning how each defence operates.  In Kent , Low J.A. summarized the concern, at para. 18: The appellant contends that the learned trial judge, when instructing and re-instructing the jury, did not sufficiently separate the element of intent and the defence of provocation thereby creating confusion in the minds of the jurors.  He says the charge and recharge considered in their entirety give rise to a serious concern that the jury did not appreciate that the defence of provocation was available to the appellant even if the Crown proved that he had a murderous intent ...  I am compelled to agree... [22] The Crown submits that Kent can be distinguished from the present case on two points.  First, in Kent , the jury asked a number of clarification questions which demonstrated that they were confused on the question of how provocation operated. In this case, no clarification questions were asked.  Second, in Kent , the jury was not provided with the relevant sections of the Criminal Code .  In his reasons, Low J.A. suggested that it would have been preferable for the jury instruction in that case to have included the sections.  In this case, the jury instruction contained the relevant sections to the Criminal Code on the defence of provocation. [23] With respect, I do not consider Kent as distinguishable on either of these two points.  The central question both here and in Kent is whether or not the instructions, read as a whole, were likely to produce confusion on the defence of provocation.  In Kent , the source of that confusion was the recharge.  In this case, the source of the confusion is the initial charge.  Further, while Low J.A. found that providing the Criminal Code sections to the jury in that case would have been preferable to a confusing summary of the sections, that does not mean providing the sections alone is sufficient.  Again, the question is whether or not the charge, read as a whole, left the jury with the erroneous idea that provocation did not apply if they found that the accused had the requisite intent for murder. [24] Having read the charge as a whole, I conclude that the instructions may have left the jury with that incorrect understanding of the defence.  The instructions twice suggested that provocation was to be used in a manner similar to intoxication.  While the sections of the Criminal Code were provided, this alone was unlikely to have removed the confusion.  Simply providing Criminal Code sections does not discharge a trial judge’s duty properly to instruct a jury, particularly where other elements of the charge contradict the meaning of those sections.  Further, the instruction did not properly address the individual elements of the defence of provocation, or how intoxication may be considered in relation to these elements. [25] Read as a whole, I do not consider that the instructions sufficiently explained how the defence of provocation may apply, and had the effect of depriving the appellant of the full force of this defence.  Accordingly, I would give effect to this ground of appeal. Lack of evidence [26] A second ground of appeal is the way the judge referred to “lack of evidence” in the instructions.  At numerous points, the trial judge said that a reasonable doubt may be based on either evidence or the absence of evidence.  This is a correct instruction, and had the references to the “lack of evidence” ended there, I would see no merit in this ground of appeal.  However, in both his opening remarks to the jury and his closing remarks, the trial judge concluded his discussion of the presumption of innocence and proof beyond a reasonable doubt with the following statement: In short if, based upon the evidence before the Court or lack of evidence , you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. [Emphasis added.] [27] This language is effectively identical to the language originally proposed as a model jury instruction on reasonable doubt in R. v. Lifchus , as printed in:  [1997] 216 N.R. 215 (S.C.C.), para. 39.  However, the suggested language in Lifchus was subsequently amended following a rehearing to remove the statement that a conviction could be based on a lack of evidence.  The amended wording, as printed in R. v. Lifchus, [1997] 3 SCR 320, para. 39, now reads: In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. [28] As was stated in R. v. G.(G.) , 2001 BCCA 462, 156 C.C.C. (3d) 497, para. 23 , if a trial judge wishes to use the language from Lifchus , it is the more recent version that must be used.  Stating that a conviction may be based on an absence of evidence is an incorrect instruction: R. v. G.(G.) ; R. v. G.(M.) (2001), 155 C.C.C. (3d) 353, 147 O.A.C. 348 (CA), para. 24. [29] Unfortunately, the error is not uncommon, presumably due to the confusion stemming from different wording existing in different reported versions of the Lifchus decision.  For example, see: R. v. Benmore , 2011 CanLII 77762 (NL PC); R. v. Storey , 2010 NBQB 86. [30] I accept the Crown’s submissions that the trial judge correctly instructed jurors that an absence of evidence may be used to find a reasonable doubt, that the burden of proof rests on the Crown, and that the burden is to be discharged by presenting evidence.  I also accept that a jury charge is to be assessed on whether or not it substantially complied with the principles laid out in Lifchus , and need not be faulted for imprecise language: R. v. Avetysan , 2000 SCC 56, 2 S.C.R. 745, para. 12. [31] In this charge, the statements that a conviction may be based on a lack of evidence cannot be said to substantially comply with the principles in Lifchus .  This is not to say that an absence of evidence is never relevant in leading to a conviction.  For example, where the absence of evidence means there is no air of reality to a particular defence, the judge may decide not to put a defence to the jury.  However, to inform a jury that a conviction may be based on a lack of evidence, without proper guidance or explanation on how to use, and not misuse, this principle, is an error.  It threatens to contradict the onus that the Crown proves its case beyond a reasonable doubt. [32] This error is particularly prejudicial in a case such as this, where the appellant did not testify and elected to not call any evidence.  Accordingly, I would also give effect to this ground of appeal. [33] Having identified the two errors above, I do not see it as necessary to address the other grounds of appeal. Curative Proviso [34] Neither party has provided arguments specifically directed to the curative proviso in s. 686(1)(b)(iii) of the Criminal Code .  The Crown has suggested that the case against the appellant was overwhelming, which is a consideration in determining whether or not the proviso should apply.  Accordingly, I will briefly address the proviso here. [35] The curative proviso can apply in two situations.  First, it may apply where the errors are harmless.  Harmless errors are those that are minor, and have no prejudicial effect on the accused.  The errors in this case cannot be said to be harmless.  The misdirection regarding the defence of provocation risked depriving the appellant of one of his defences.  The instruction that a conviction may be based on a lack of evidence was prejudicial to the appellant given, as noted above, that he did not testify and decided against calling evidence at trial. [36] Second, the curative proviso may apply to serious errors where the evidence against the accused was so overwhelming that no substantial wrong or miscarriage of justice occurred.  In R. v. Trochym, 2007 SCC 6, 1 S.C.R. 239, Deschamps J. summarized this higher standard for serious errors as follows: [82]  The instant case is one that falls squarely within the second category of serious errors that will justify a new trial unless the properly adduced evidence is so overwhelming that a conviction is inevitable, or would invariably result.  This standard should not be equated with the ordinary standard in a criminal trial of proof beyond a reasonable doubt. The application of the proviso to serious errors reflects a higher standard appropriate to appellate review. The standard applied by an appellate court, namely that the evidence against an accused is so overwhelming that conviction is inevitable or would invariably result, is a substantially higher one than the requirement that the Crown prove its case “beyond a reasonable doubt” at trial.  This higher standard reflects the fact that it is difficult for an appellate court, in particular when considering a jury trial, since no detailed findings of fact will have been made, to consider retroactively the effect that, for example, excluding certain evidence could reasonably have had on the outcome. [37] Having reviewed the evidence, I cannot conclude that the evidence meets this higher standard. [38] There was no dispute that the appellant killed Mr. Shannon.  However, his counsel argued that self-defence, intoxication, and provocation each could apply.  Each of these defences found some support in the evidence.  In particular, the appellant’s statement to police provided a version of the events upon which the defences may have been established, or a reasonable doubt may have been raised about their applicability.  While the appellant’s statement to police was inconsistent with some of the other evidence, whether to accept it or not was a decision for the jury.  Having been improperly instructed on one of these defences, as well as on the meaning of proof beyond a reasonable doubt generally, I cannot say that the jury would have necessarily reached the same verdict had these errors not been committed. [39] For these reasons, I would allow the appeal, set aside the conviction, and order a new trial. “The Honourable Chief Justice Finch” I Agree: “The Honourable Madam Justice Neilson” I Agree: “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Bradshaw v. Stenner, 2013 BCCA 61 Date: 20130201 Docket: CA039779 Between: Lori Noreen Bradshaw Respondent (Plaintiff) And Kimberley Shane Stenner Appellant (Defendant) And John Bradshaw Respondent (Defendant by Counterclaim) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Kirkpatrick The Honourable Madam Justice Garson On appeal from: Supreme Court of British Columbia, February 17, 2012 ( Bradshaw v. Stenner , 2012 BCSC 237, Vancouver Registry No. S072722) Oral Reasons for Judgment Counsel for the Appellant: G.C. Crickmore Counsel for the Respondent: A.P. Morrison Place and Date of Hearing: Vancouver, British Columbia January 31, 2013 Place and Date of Judgment: Vancouver, British Columbia February 1, 2013 [1] SAUNDERS J.A. : This is an application by Ms. Stenner to review an order of a single justice, Mr. Justice Hinkson, sitting in chambers. By the order the learned justice declared that leave was required to appeal the matter sought to be brought before the court, and declined leave to appeal. [2] The application is brought pursuant to s. 9(6) of the Court of Appeal Act , R.S.B.C. 1996, c. 77. On such an application this court does not conduct a rehearing. Rather, as set out in Haldorson v. Coquitlam (City) , 2000 BCCA 672 at para. 7, 149 B.C.A.C. 197, we direct our inquiry to the following questions, all in consideration of the interests of justice: a)       was the justice wrong in law? b)       was the justice wrong in principle? c)       did the justice misconceive the facts? [3] The order sought to be appealed is an order for special costs, assessed summarily by the judge in the amount of $5,000 per half day, producing an amount of $465,000. [4] In his reasons for judgment Mr. Justice Hinkson concluded that leave to appeal was required. In doing so he considered the relevant authorities from this court, in the context of our constating statute and Rules . [5] Section 7 of the Court of Appeal Act requires leave to appeal a limited appeal order. Limited appeal orders are relatively new. The Rules define limited appeal orders in R. 2.1, including (f): “an order granting or refusing costs, or granting or refusing security for costs, if the only matter being appealed is that grant or refusal”. That Rule replicated the previous Rule which also required leave to appeal an order granting or refusing costs, where such order was the only matter being appealed. [6] In this case there has been an appeal, dismissed, of the substantive judgment in the case. The order of costs was made as a separate order and is now the only matter sought to be brought before this court. In these circumstances, in my view, the justice was entirely correct in determining that leave to appeal is required. [7] This brings us to the question of whether a basis is made out to vary his order denying leave to appeal. [8] Two aspects of the Supreme Court order are sought to be challenged on the appeal, first the order for special costs, and second the summary assessment of special costs. [9] As to the first of those issues, it is well known that decisions as to the type of costs appropriate to a given matter, whether party and party, or special costs, engages the discretion of the judge making the order. It is that judge, after all, who sits in the best position to appreciate the relevant factors. In this case the order for special costs reflected the conduct of the litigants, the judge’s view of credibility of the parties, her assessment of the use of court resources and her view of the honour of the parties in conducting the litigation. Exercise of discretion that is made reflecting these factors, as was this order, is most unlikely to be disturbed by a division of this Court. [10] The single justice observed in his para. 37: [37]      The trial judge based her award of special costs on these findings, and Ms. Stenner’s complaints about the basis for the award are largely, if not entirely, an attempt to challenge the judge’s findings of fact and re-argue the basis for the award. I am not persuaded that Ms. Stenner’s complaints meet the required test for merit. [11] I see no misunderstanding or error on the part of the justice in that assessment. Indeed I entirely agree with it, and there is, accordingly, no basis to interfere with his order on this proposed ground of appeal. [12] Having decided special costs were appropriate, it was open to the judge to assess them herself. While I may be puzzled at the judge’s reference to the issue of privilege weighing in favour of an immediate summary assessment, because obviously a person seeking special costs waives, to some extent, matters between themselves and counsel as are necessary to permit consideration of the criteria applied under Rule 14 of the Supreme Court Civil Rules , it seems to me from reading the judge’s reasons on costs, that she decided to summarily assess special costs in the interests of conservation of judicial resources, in the context of these protracted, and to some degree wasteful, proceedings. This court, again, would be most unlikely to interfere with that exercise of discretion. [13] The second ground of appeal sought to be advanced concerns the summary assessment itself. Here rise two questions – first the question whether the judge erred in assessing costs absent evidence before her as to Ms. Bradshaw’s actual costs, and second the method chosen by the judge to assess the costs – $5,000 per half day of trial up to a particular date. [14] On the first matter, it is clear that the judge in this case did not have before her any evidence as to the legal fees charged to Ms. Bradshaw (although an affidavit had been filed, it had been filed outside of a time line set by the court and was disregarded). It is said that there is merit to the argument that the judge erred in assessing costs absent such evidence and that the single justice in chambers failed to appreciate that absence of evidence. [15] On the second matter, the method of calculation of the costs awarded, the judge applied the amount awarded by this court in Interclaim Holdings Ltd. v. Down , 2002 BCCA 632, of $5,000 a half day. That amount crops up again in Buchan v. Moss Management Inc. , 2010 BCSC 121, appeal dismissed 2010 BCCA 393. See also ICBC v. Eurosport Auto Co. Ltd. Ms. Stenner contends the judge erred by applying this amount as if it were a rule or a principle, and that the single justice in chambers himself erred in failing to appreciate the error of that methodology. [16] Both the need for evidence and the uncritical application of the half day fee allowed in Interclaim may be issues for resolution by this court in another case. However, in this case, I do not consider they rise to the level that warrants leave being granted, for these reasons. First, the transcript of the costs hearing contains an exchange in which the judge asked counsel for Ms. Stenner whether she should have evidence on the fees charged, and inviting an adjournment. This open door was not taken up by then counsel for Ms. Stenner. Having failed to avail herself of the opportunity given at the trial level to pursue this issue, I do not consider it in the interests of justice that leave be given to allow her to do so on appeal. Second, the reasons for judgment in the order sought to be varied demonstrate Ms. Stenner’s position that costs in the amount of $465,000 represented full indemnity. That submission is at odds with needing to know, through evidence, the amount of fees that have been charged. [17] Nor does it appear to me that the single justice misunderstood the Interclaim “rule of thumb” issue – he simply considered that in this case it did not sufficiently support an appeal. Obviously Interclaim does not impose a rule or principle dictating the amount to assess as special costs for a half day. It could not do so, nor did it purport to do so. An assessment is required to be case specific and must respond to the language of Rule 14 of the Supreme Court Civil Rules . It seems to me that Interclaim is simply a case in which, in the interests of efficiency, in proceedings that had consumed a vast amount of court resources with legal accounts that exceeded well over a million dollars, this court made an assessment. That assessment was made with appreciation of the nature of the issues and positions taken below, the degree to which the services were provided in relation to the litigation and for the party entitled to costs, and the enthusiastic engagement of all the parties in the full blown extenuated litigation. Not much more can be said about it than that. [18] Here the single justice in chambers declined to give leave to appeal this issue. In doing so it does not appear to me that he demonstrated any misunderstanding as to the import of Interclaim . Nor, in the circumstances of this protracted litigation, does it appear to me that there is sufficient prospect of a significant reduction in the amount of special costs assessed that it can be said the interests of justice would be served by giving leave to appeal. [19] I cannot say the single justice misunderstood any aspect of the matter as it was put to him. I would dismiss the application. [20] KIRKPATRICK J.A. : I agree. [21] GARSON J.A. : I agree. [22] SAUNDERS J.A. : The application is dismissed. “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Cole v. British Columbia Nurses’ Union, 2014 BCCA 2 Date: 20140107 Docket: CA040829 Between: Neil Cole (a.k.a. Norbert Nowik) Respondent/ Appellant on Cross Appeal (Petitioner) And British Columbia Nurses’ Union Appellant/ Respondent on Cross Appeal (Respondent) And Vancouver Coastal Health Authority and Workers’ Compensation Appeal Tribunal Respondents (Respondents) Before: The Honourable Mr. Justice Donald The Honourable Madam Justice Newbury The Honourable Mr. Justice Lowry On appeal from:  An order of the Supreme Court of British Columbia, dated March 26, 2013 ( Cole v. Workers’ Compensation Appeal Tribunal , Vancouver Docket S091513). Counsel for the Appellant: S. Anderson Appearing on his own behalf: N. Cole Counsel for the Respondent, Vancouver Coastal Health Authority: M. N. Peirce Counsel for the Respondent, Workers’ Compensation Appeal Tribunal: J. T. Lovell and M. Bennett Place and Date of Hearing: Vancouver, British Columbia December 4, 2013 Place and Date of Judgment: Vancouver, British Columbia January 7, 2014 Written Reasons by: The Honourable Mr. Justice Donald Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Lowry Summary: The chambers judge refused to grant an order dismissing a petition for judicial review for want of prosecution.  The decisive factor in her analysis was the petitioner’s self-represented status.  Held: Appeal allowed.  It is right and just to accommodate self-represented litigants in procedural and evidentiary matters.  However, in this case the delay was not attributable to a misunderstanding of court rules or a mere slip related to lack of legal counsel.  The delay was tactical and strategic.  The judge was wrong to consider self-represented status as determinative.  The petition for judicial review should be dismissed. Reasons for Judgment of the Honourable Mr. Justice Donald: [1] The motion of the British Columbia Nurses’ Union (the “Union”) to strike out Mr. Cole’s judicial review petition for want of prosecution was dismissed by the chambers judge for the sole reason that Mr. Cole was a self-represented litigant.  The judge found the delay was inordinate, deliberate and prejudicial, but nevertheless decided that on the balance of justice criterion of the applicable test, Mr. Cole’s self-represented status should permit him one more opportunity to proceed with his case. [2] The Union brings this appeal on the ground that since Mr. Cole’s self-representation did not cause the delay, the judge acted on an irrelevant factor in dismissing the motion.  I agree.  I would allow the appeal and grant the motion to dismiss the petition. Background [3] Mr. Cole, a registered nurse and member of the Union, came into conflict with his supervisor at Vancouver General Hospital in and around 2003 and 2004.  In May 2004, the conflict escalated and Mr. Cole filed grievances with the Union, alleging, amongst other things, that harassment by his supervisor had created a toxic work environment.  He took a medical leave from work and is now on long-term disability. [4] The Union pursued several grievances on behalf of Mr. Cole.  In December 2004, after mediation and discussions between the parties, the employer, Vancouver Coastal Health Authority, proposed a settlement agreement.  A significant feature of the agreement was Mr. Cole’s transfer to a new worksite, Lions Gate Hospital.  Mr. Cole informed the Union that he did not wish to accept the proposal; nonetheless, the Union and employer settled as per the proposed agreement. [5] Mr. Cole refused to report to Lions Gate Hospital.  His employer and the Union informed him that if he did not, he could face termination. [6] Mr. Cole complained to WorkSafeBC, the agency that administers the Workers Compensation Act , R.S.B.C. 1996, c. 492, that the actions of his employer and his Union were discriminatory within the meaning of the Act .  Mr. Cole argued that he could not return to work at Vancouver General Hospital because it was psychologically unsafe and forcing him to change worksites violated the Act ’s prohibition against discriminatory actions involving a worker who reports unsafe working conditions.  Why, he reasoned, should he be reassigned to a distant hospital just because he complained of harassment by management? [7] The complaint was dismissed by a WorkSafeBC adjudicator on May 22, 2007 (Worker Complaint of Discriminatory Action Decision, Reference 2005-D-183). Mr. Cole then filed an appeal with the Workers’ Compensation Appeal Tribunal (“WCAT”).  In an extensive and detailed decision dated December 19, 2008, the Vice Chair of WCAT dismissed the appeal (WCAT-2008-03834). [8] On February 27, 2009, Mr. Cole filed a petition for judicial review of the WCAT decision.  There is a great deal of dispute concerning whether Mr. Cole also filed an application for reconsideration with the tribunal and, if so, whether it was in process when the application to dismiss his judicial review was heard. [9] Mr. Cole asserts before this Court that he has now, as he did at the time of the chambers hearing, an outstanding application for reconsideration before WCAT and that the reconsideration holds in abeyance the judicial review process.  The Union asserts that Mr. Cole had done nothing to advance the reconsideration until the hearing here under appeal had begun.  The record is confused about various aspects of the reconsideration application.  With respect, WCAT’s position on the status of the reconsideration matter lacks clarity. [10] Regardless, central to understanding the prolonged nature of this dispute is Mr. Cole’s insistence that Vancouver Coastal Health Authority and the Union have not disclosed documents necessary for him to make his case.  He appears to take the view that he is entitled to the kind of document discovery that pertains to civil actions in the Supreme Court, encompassing anything that may be relevant.  He has made this case before WorkSafeBC and WCAT. [11] Both tribunals have refused Mr. Cole’s document demands, insisting that he demonstrate relevance before entertaining any request for production.  This put Mr. Cole at a standoff with the tribunal: he insisted that he could not say whether any particular document was relevant until he inspected it; and the tribunals insisted on relevancy as a pre-condition for ordering production. [12] Mr. Cole dealt with the WCAT ruling against his demand for discovery of documents by applying to the Office of the Information and Privacy Commissioner (“OIPC”) under the Personal Information Protection Act , S.B.C. 2003, c. 63, for copies of his personal records kept by the Union and Vancouver Coastal Health Authority. [13] The OIPC process, at least as it pertains to Vancouver Coastal Health Authority, is yet to be completed.  It is the single most significant contributor to the delay in proceeding with the judicial review.  Mr. Cole has refused to advance the judicial review until he is satisfied he has the documents he needs. [14] It is against years of delay that the Union wrote to Mr. Cole on September 30, 2011, warning him that if he did not press on with the reconsideration application or the judicial review within 10 days, it would move to strike out the petition for judicial review.  The Union filed an application to dismiss Mr. Cole’s judicial review for delay and want of prosecution on January 12, 2012, amended May 9, 2012.  It is that order that Mr. Cole appeals. The Decision Under Appeal [15] The chambers judge correctly cited this Court’s decision in 0690860 Manitoba Ltd. v. Country West Construction Ltd. , 2009 BCCA 535, as setting out the test for determining whether to dismiss an action for want of prosecution.  She described the factors in this way: [5]        … The court must weigh the following four factors in a want of prosecution application: (1) the length of the delay and whether it was inordinate; (2) any reasons for the delay; (3) whether the delay has caused serious prejudice to the defendant in presenting a defence, and if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible; and (4) whether, on balance, justice requires dismissal of the action. [6]        In 0690860 Manitoba , the Court of Appeal held that the final factor was the most important and decisive question of all (para. 29). [16] The judge’s analysis of the four factors is brief.  In pertinent part, the reasons say: Disposition Length of the Delay and Whether it was Inordinate [7]        I find the delay has been both lengthy and inordinate. Mr. Cole commenced his application for judicial review in February 27, 2009. Yet, this proceeding arises from events that transpired in his workplace in 2004. Administrative proceedings in the labour relations context must be dealt with expeditiously, which Mr. Cole has failed to do. As support for this proposition, I note that s. 57(1) of the Administrative Tribunals Act , S.B.C. 2004, c. 45 [ Act ] provides that unless this Act or the tribunal’s enabling legislation provides otherwise, an application for judicial review of a final decision of a tribunal must be commenced within 60 days of the date the decision is issued. To date, Mr. Cole has not proceeded with this judicial review. This is not expeditious conduct. Reasons for the Delay [8]        Mr. Cole’s delay was strategic and tactical. It was a means of forcing an order for production of documents, which has already been denied by WCAT. I note that his application for reconsideration of that decision was considered withdrawn by WCAT. Prejudice to BCNU [9]        The delay in this proceeding has given rise to some prejudice toward the applicant. While I am not satisfied this prejudice is irreparable, I am certain that the delay will impose additional costs upon the applicant to have its now retired Executive Director return to Vancouver to provide evidence. [10]      Of greater significance, the delay is prejudicial to the applicant by virtue of the impact the passage of time will have upon the reliability of the evidence. While the respondents in the petition are large organizations that have the capacity to preserve records, the individuals that may be called upon to give evidence may find it difficult to recall events that are important for the determination of the matter. Balance of Justice [11]      All the same, the final factor, on balance of justice, militates against dismissing the petition for want of prosecution. I find that for much of the duration of Mr. Cole’s case, he has acted on his own behalf. Dismissing his case for want of prosecution would indeed be a draconian remedy in view of his self-represented status . * * * [18]      I expect Mr. Cole will consider his position extremely carefully, because I have come within a hair’s breadth of dismissing his case for want of prosecution. The submissions of the applicant were compelling, and it is really only his status as an unrepresented litigant that has led me to give him this final opportunity. He shall move to set down the date for trial immediately. [Emphasis added.] Issue [17] The Union alleges three errors: [i.]        The Chambers Judge erred in the exercise of her discretion by a) making an error wrong in principle; and b) taking into account an irrelevant consideration, namely Cole’s “status” as a self-represented litigant. [ii.]       Further, the Chambers Judge erred in the exercise of her discretion by according Cole’s status as a self-represented litigant as “the most important and decisive” factor, thereby trumping all relevant considerations. [iii.]       The Chambers Judge must exercise her discretion in accordance with the applicable legal principles that govern the exercise of judicial discretion. Discussion Standard of Review [18] The Union acknowledges this is a discretionary decision entitled to a high degree of deference.  It is well settled that this Court may interfere with a discretionary decision where the judge failed to give weight to all relevant considerations or committed an error of principle: Reza v. Canada , [1994] 2 S.C.R. 394 at 404; Friends of the Oldman River Society v. Canada (Minister of Transport) , [1992] 1 S.C.R. 3 at 76-77; and Harelkin v. University of Regina , [1979] 2 S.C.R. 561 at 587-88. [19] Here, the Union says that the judge gave weight to an irrelevant factor, Mr. Cole’s self-representation, or erred in principle in giving it dispositive effect when it had no bearing on the substantive factors of delay, excuse and prejudice. Cross Appeal [20] Mr. Cole has filed a cross appeal with the intention of questioning the judge’s findings on the factors of excuse and prejudice.  He did not need to file a cross appeal to do this; he is entitled to support the dismissal decision on any ground in the record.  A cross appeal is only required if the respondent requests a different order, which Mr. Cole does not. [21] It is convenient to deal with the arguments for the appeal and cross appeal together. Delay [22] There is no dispute Mr. Cole’s delay in prosecuting the judicial review has been inordinate.  The question is whether he has a reasonable excuse.  Mr. Cole argues that “the clock stopped” on the judicial review while the WCAT reconsideration application was pending and because he must first exhaust his internal remedies; and, secondly, his case was tied up with the OIPC which has been slow in dealing with his document requests.  Mr. Cole submits that in light of this, the judge was wrong to blame him for the delay and wrong to label the delay as “strategic or tactical”. [23] The record does not support the first contention.  When the hearing of the motion began, Mr. Cole’s only activity in the reconsideration process had been quarrelling with the WCAT over document discovery and disputing the fact that he had actually made an application for reconsideration.  The Union gave him fair notice to deal with reconsideration, if that was his intention, and he did nothing about it. [24] The second point must also fail.  The Union submits that the OIPC application is an abuse of process as it amounts to a collateral attack on the WCAT’s decision refusing him document discovery.  Since that was one of the decisions sought to be reviewed in the petition and could be reconsidered by the WCAT itself, the Union says that Mr. Cole cannot excuse his inaction because of the slow pace of the OIPC process.  I prefer not to offer an opinion about abuse of process but I consider the point well taken that Mr. Cole should have proceeded expeditiously in the forum he chose rather than to pursue new proceedings elsewhere. [25] In my opinion, the judge reasonably concluded that Mr. Cole’s delay was “strategic and tactical” – in other words, intentional, calculated and not inadvertent or as a result of unsophistication in legal matters.  Before the chambers judge, Mr. Cole did not seek to justify his delay by reason of self-representation as a lay person.  His lack of legal sophistication is not in issue.  WCAT’s assessment of his capacity was as follows: [8]        In this case I have decided not to grant the worker’s request for an oral hearing. The worker is unrepresented, but is highly intelligent and articulate – his extensive written submissions reflect those qualities. The employer and union are each represented by lawyers; written submissions provided in these proceedings by the lawyers on their clients’ behalf are equally thorough. I have found that the read and review process of exchanging written submissions did not prejudice any of the parties in this case in their ability to present their respective cases. Prejudice [26] Mr. Cole submits that the test to dismiss an action for want of prosecution requires “serious” prejudice and the judge found only “some” prejudice, not irreparable.  He argues that fading memories are not an adequate basis for dismissal, especially since, to this point, the case has been dealt with in writing rather than by oral hearings. [27] My reading of the judge’s reasons indicates that she found sufficient prejudice to support the motion, hence her concluding words that she found “[t]he submissions of the applicant were compelling” and only Mr. Cole’s status led to the dismissal of the motion. [28] As the Union argues, the labour relations context informs the evaluation of prejudice.  Problems in that field get much worse with delay, to everyone’s detriment.  The words of Cory J. in Dayco (Canada) Ltd. v. CAW-Canada , [1993] 2 S.C.R. 230 at 306-07 are apposite: Unresolved disputes fester and spread the infection of discontent.  They cry out for resolution.  Disputes in the field of labour relations are particularly sensitive.  Work is an essential ingredient in the lives of most Canadians.  Labour disputes deal with a wide variety of work related problems.  They pertain to wages and benefits, to working conditions, hours of work, overtime, job classification and seniority.  Many of the issues are emotional and volatile.  If these disputes are not resolved quickly and finally they can lead to frustration, hostility and violence.  Both the members of the work force and management have every right to expect that their differences will be, as they should, settled expeditiously.  Further, the provision of goods and services in our complex society can be seriously disrupted by long running labour disputes and strikes.  Thus society as a whole, as well as the parties, has an interest in their prompt resolution. [29] This passage was cited by the Ontario Divisional Court which dismissed an application for judicial review of an Ontario Labour Relations Board decision after a two-year delay: International Union of Bricklayers and Allied Craftworkers v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers (2000), 132 O.A.C. 87 at paras. 16 and 18. [30] I am persuaded the judge found that the Union satisfied the test of prejudice and did not err in doing so. Balance of Justice [31] In my opinion, the imperative of expedition in labour disputes bears on both the last and general factor, the balance of justice, and prejudice.  Delay can disturb the balance and impede a satisfactory outcome for all concerned.  The parties need to know, within a reasonable time, where they stand on the dispute so they can get on with their affairs.  The judge recognized this element at para. 7 of her reasons. [32] In his cross appeal, Mr. Cole submits that two other features of the case should be considered under balance of justice:  the importance of the case to workers generally and an allegation that the Union seeks a discretionary remedy without clean hands. [33] In brief, the first point is related to the argument Mr. Cole proposes to make on judicial review.  He intends to argue that WorkSafeBC and WCAT imported a fault element into the Act’s discrimination provision, that is, an intention to discriminate, whereas he says that analysis leaves out injurious effect discrimination, which is open to him in the present case.  Without delving into statutory interpretation at this stage, wherever he is importing human rights theory into workers safety legislation I can only say that the point is of doubtful merit and I fail to see how his complex set of facts is likely to have any general impact on the workforce at large. [34] The second point accuses the Union and employer of wrongfully withholding documents and hence having unclean hands.  As such, they are, Mr. Cole submits, not entitled to the favourable exercise of the Court’s discretion in dismissing the petition.  In my view, this cannot be entertained as it is unsupported by any determination by the WorkSafeBC adjudicator or WCAT, having exclusive jurisdiction in the matter, that either the Union or employer defaulted in producing relevant documents. [35] Finally, I turn to the self-representation issue.  As I earlier stated, I think the judge erred in dismissing the motion on the ground of Mr. Cole’s status in the absence of any nexus between his status and the delay. [36] It is right and just to accommodate self-represented litigants on procedural matters, recognizing their relative disadvantage in an unfamiliar setting.  In 2006, the Canadian Judicial Council adopted a “Statement of Principles on Self-represented Litigants and Accused Persons”.  It contains advice to participants in the justice system, including this admonition to the judiciary:  “Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons” (at 7). [37] The Statement also includes the following commentary under the heading “Promoting Equal Justice” (at 5): 2.         Judges must exercise diligence in ensuring that the law is applied in an even-handed way to all, regardless of representation. The Council’s statement of Ethical Principles for Judges (1998) has already established the principle of equality in principles governing judicial conduct. That document states that, “Judges should conduct themselves and proceedings before them so as to ensure equality according to law.” * * * 4.         Self-represented persons, like all other litigants, are subject to the provisions whereby courts maintain control of their proceedings and procedures. In the same manner as with other litigants, self-represented persons may be treated as vexatious or abusive litigants where the administration of justice requires it. The ability of judges to promote access may be affected by the actions of self-represented litigants themselves. [38] The delay in the present case is not a mere slip or misunderstanding of time requirements brought about by Mr. Cole’s unfamiliarity with court practice.  Courts routinely extend some latitude to self-represented litigants on time limits, as they should, while trying to maintain a balance of interests and an orderly process.  The test for dismissal for want of prosecution requires inordinate delay.  Even making a generous allowance for Mr. Cole as a layperson, the Court must take into account the delay he created by his stubborn preoccupation with document discovery, which was inordinate, as the judge found.  The Union gave Mr. Cole full notice of its intention to move to strike out his petition if he did nothing.  His decision to do nothing is not related to being self-represented.  It was, in my respectful opinion, wrong for the judge to use his bare status as a basis for dismissing the Union’s motion. [39] I would allow the appeal and dismiss the petition. “The Honourable Mr. Justice Donald” I agree: “The Honourable Madam Justice Newbury” I agree: “The Honourable Mr. Justice Lowry”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Geissah v. British Columbia (Medical Services Commission), 2014 BCCA 4 Date: 20140108 Docket:  CA040888 Between: Sayed Geissah and Souad Khalaf Appellants (Petitioners) And British Columbia Medical Services Commission Respondent (Respondent) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Frankel The Honourable Madam Justice Garson On appeal from:  An order of the Supreme Court of British Columbia, dated April 18, 2013 ( Geissah v. British Columbia (Health) , Vancouver Registry No. S131812 ). Acting on behalf of the Appellants: S. Geissah Counsel for the Respondent: R. Butler Place and Date of Hearing: Vancouver, British Columbia December 10, 2013 Place and Date of Judgment: Vancouver, British Columbia January 8, 2014 Written Reasons by: The Honourable Mr. Justice Frankel Concurred in by: The Honourable Madam Justice Newbury The Honourable Madam Justice Garson Summary: Appeal by G. and K. from the dismissal of their application for judicial review of a decision of a delegate of the Medical Services Commission finding them ineligible for medical coverage for a period of several years because they did not meet the residency requirements of the Medicare Protection Act (B.C.).  Held:  Appeal dismissed. On the evidence, the delegate could reasonably have found that G. and K. failed to establish their respective eligibility on a balance of probabilities. Reasons for Judgment of the Honourable Mr. Justice Frankel: [1] This is an appeal from the order of Mr. Justice Willcock, then a judge of the Supreme Court of British Columbia, dismissing a petition for judicial review of a decision by Robert F. Cronin, a delegate of the Medical Services Commission.  That decision held that Sayed Geissah and Souad Khalaf, who are husband and wife, were ineligible for benefits under the provincial Medical Services Plan (“MSP”) for approximately eight years.  It was based on a finding that they failed to establish that they met the residency requirements of the Medicare Protection Act , R.S.B.C. 1996, c. 286, for the period in issue.  To be entitled to MSP benefits a person must be a “resident” as defined in s. 1 of the Act ; that is, he or she must:  (a) be a citizen of Canada or lawfully admitted to Canada for permanent residence; (b) make his or her home in British Columbia; and (c) be physically present in British Columbia for at least six months in a calendar year, subject to certain exceptions that are not relevant to this appeal. [2] In 2009, the Ministry of Health received a request for information which prompted an investigation into Mr. Geissah’s and Ms. Khalaf’s entitlement to MSP coverage.  The investigation included requesting information from them. [3] On October 17, 2011, a Ministry investigator sent them a letter advising that she would be recommending their coverage be retroactively cancelled as of December 31, 2001, and re-instated as of July 1, 2010, based on a residency date of April 4, 2010.  That letter further advised them that if they disputed the cancellation of their coverage, then they could request a hearing before the Medical Services Commission.  On October 27, 2011, Mr. Geissah and Ms. Khalaf, by letter, requested such a hearing.  The delegate conducted the hearing in July of 2012, by way of written submissions. [4] Pursuant to s. 5(1)(f) of the Medicare Protection Act , the Commission is empowered to: investigate and determine whether a person is a resident and, for this purpose, require the person to provide the commission with evidence, satisfactory to the commission, that residency has been established; By virtue of s. 7.4(1)(b) of the Act , the Commission has the power to cancel retroactively the coverage of a person it believes has ceased to be a resident. [5] In a decision rendered on November 2, 2012, the delegate noted that:  (a) Mr. Geissah and Ms. Khalaf immigrated to British Columbia in September of 1994 with their three sons; (b) the family received MSP coverage effective December 1, 1994; (c) around 2002 the sons moved, and now work and live in Egypt, Dubai, and Qatar; and (d) Mr. Geissah and Ms. Khalaf claimed to spend six months each year visiting their sons and grandchildren and the remainder of each year in British Columbia.  The delegate also noted Mr. Geissah and Ms. Khalaf had refused to give the Medical Services Commission access to their travel records.  Based, in part, on the timing of their MSP claims—there were no claims in 2004 and 2005, and infrequent claims in 2002, 2003, 2006, 2007, 2008, 2009, and 2010—the delegate was not satisfied they had established, on a balance of probabilities, that they had made their home in British Columbia between 2002 and April 2010, or had been physically present in British Columbia for six months out of every calendar year between 2002 and 2010. [6] In his decision, the delegate rejected submissions made by Mr. Geissah and Ms. Khalaf that:  (a) there was no contract between them and the Commission or the MSP because their original enrollment form has been destroyed; (b) they had no knowledge of the residency requirement; (c) on the evidence it would be unreasonable to assume they had been out of the country; (d) their travel information was irrelevant; (e) they must be residents because they receive federal Old Age Security; (f) they are deemed residents under the applicable regulations because they are neither tourists nor visitors; and (g) it is not lawful to force them to live in British Columbia for more than six months each year as they cannot afford to do so. [7] In seeking judicial review, Mr. Geissah and Ms. Khalaf relied on many of the submissions they made to the delegate.  The chambers judge rejected all of their submissions.  Applying the reasonableness standard of review discussed in Dunsmuir v. New Brunswick , 2008 SCC 9, [2008] 1 S.C.R. 190, the judge held the decision that Mr. Geissah and Ms. Khalaf had not established an entitlement to benefits was one the delegate could reasonably make on the record before him. [8] In their factum, Mr. Geissah and Ms. Khalaf advance a number of the same arguments they made before the delegate and the chambers judge, some of which overlap.  In this Court, their submissions include: (a)      On the evidentiary record it was unreasonable to conclude they did not meet the residency requirements; (b)      The residency requirements are not binding because they were not aware of them; (c)      It is unreasonable to expect them to retain useful evidence; (d)      The residency requirements did not exist before April 1, 2005; (e)      The Medicare Protection Act is no longer in force; (f)       The Commission has no authority to ask them to prove residency; (g)      There is no contract between them and the Commission or the MSP; (h)      The chambers judge did not consider an affidavit filed by Mr. Geissah; (i)       It is illegal to force them to reside in Canada when they cannot afford to do so; (j)       Their citizenship ceremony granted them the right to live anywhere; (k)      The receipt of Old Age Security is determinative of residence; and (l)       The government is wasting taxpayer money by investigating this matter. [9] In terms of relief, Mr. Geissah and Ms. Khalaf seek:  (a) an order setting aside the decision finding them ineligible for benefits; (b) unspecified damages flowing from the effects of the decision; and (c) costs. [10] I find no merit in any of the arguments advanced by Mr. Geissah and Ms. Khalaf.  The critical question is whether the delegate could properly come to the conclusion that entitlement (i.e., residency) had not been established on a balance of probabilities.  As the chambers judge stated correctly, the reasonableness standard applies to that question, i.e., was there some evidence before the delegate on which he could reasonably make the findings he did:  see Nagra v. British Columbia (Superintendent of Motor Vehicles) , 2010 BCCA 154 at para. 27, 3 B.C.L.R. (5th) 231.  In my view, the answer to that question is “yes”.  Accordingly, I would dismiss this appeal. [11] There are two additional matters on which I wish to comment.  The first relates to the concerns expressed by Mr. Geissah that an adverse decision in this matter will affect his and Ms. Khalaf’s entitlement to benefits under federal programs such as Old Age Security.  He had earlier expressed those concerns to the chambers judge.  I agree with the chambers judge that this case decides only that the delegate could reasonably have found, on the record before him, that Mr. Geissah and Ms. Khalaf did not meet the residency requirements for MSP coverage for the period in issue:  see paras. 20, 21. [12] The second relates to whether the MSP will seek to recover from Mr. Geissah and Ms. Khalaf the costs of the medical services it paid for during the ineligibility period.  Counsel for the Commission, Mr. Butler, advised the Court that his client has taken the decision not to seek recovery. [13] As the Commission does not seek costs, I would make no order in that regard.  I would also dispense with the need for Mr. Geissah and Ms. Khalaf to approve the form of the formal order in this matter. “The Honourable Mr. Justice Frankel” I AGREE: “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Fontaine, 2014 BCCA 1 Date: 20140108 Docket: CA36443 Between: Regina Respondent And Trevor James Fontaine Appellant Before: The Honourable Mr. Justice Donald The Honourable Madam Justice Newbury The Honourable Madam Justice Kirkpatrick On appeal from:  An order of the Supreme Court of British Columbia, dated August 13, 2008 ( R. v. Fontaine , Prince George Docket 16206-4). Counsel for the Appellant: C. Darnay Counsel for the Respondent: F.G. Tischler Place and Date of Hearing: Vancouver, British Columbia December 3, 2013 Place and Date of Judgment: Vancouver, British Columbia January 8, 2014 Written Reasons by: The Honourable Madam Justice Kirkpatrick Concurred in by: The Honourable Mr. Justice Donald The Honourable Madam Justice Newbury Summary: Mr. Fontaine appealed his dangerous offender designation on the grounds that the sentencing judge failed to adequately consider his Aboriginal background in accordance with s. 718.2(e) of the Criminal Code and the Supreme Court of Canada’s decision in R. v. Gladue. Held: Sentence appeal dismissed. Evidence of Mr. Fontaine’s Aboriginal background was before the court. Although the judge did not explicitly refer to the sentencing principles set out in Gladue, the sentence was nevertheless not unfit. The offender’s risk could not be managed in the community; there was no option other than a dangerous offender designation. Reasons for Judgment of the Honourable Madam Justice Kirkpatrick: [1] The only issue in this sentence appeal is whether the sentencing judge, in designating Mr. Fontaine as a dangerous offender, erred in law in failing to adequately consider the principles of sentencing applicable to Aboriginal offenders as required by s. 718.2( e ) of the Criminal Code . He seeks a new hearing. [2] For many years, the sentencing of Aboriginal offenders under s. 718.2( e ) has been guided by the Supreme Court of Canada’s decision in R. v. Gladue , [1999] 1 S.C.R. 688. Paragraph 33 has often been applied: In our view, s. 718.2( e ) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case. It should be said that the words of s. 718.2( e ) do not alter the funda­mental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. For example, as we will discuss below, it will generally be the case as a practical matter that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders. What s. 718.2( e ) does alter is the method of analysis which each sentencing judge must use in determining the nature of a fit sentence for an aboriginal offender. In our view, the scheme of Part XXIII of the Criminal Code , the context underlying the enactment of s. 718.2( e ), and the legislative history of the provision all support an interpretation of s. 718.2( e ) as having this important remedial purpose. [3] More recently, in R. v. Ipeelee , 2012 SCC 13, the Supreme Court had the opportunity to consider the application of Gladue in the intervening years and the academic commentary that criticized the application of the passage that “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same” ( Gladue , at para. 79). [4] In Ipeelee , LeBel J. speaking for the majority, held: [85]      Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clear that sentencing judges have a duty to apply s. 718.2( e ): “There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence” ( Gladue , at para. 82). Similarly, in Wells , Iacobucci J. reiterated, at para. 50, that [t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender. This element of duty has not completely escaped the attention of Canadian appellate courts (see, e.g., R. v. Kakekagamick (2006), 214 O.A.C. 127; R. v. Jensen (2005), 196 O.A.C. 119; R. v. Abraham , 2000 ABCA 159, 261 A.R. 192). [87]      The sentencing judge has a statutory duty, imposed by s. 718.2( e ) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention. [5] The question then in the case before us is whether the sentencing judge failed to consider the unique Aboriginal circumstances of Mr. Fontaine and, if so, whether the error justifies our intervention. The analysis to be undertaken by sentencing judges was expressed in Ipeelee , at para. 72: The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence. [6] The background to this appeal is as follows. [7] Mr. Fontaine was convicted by a jury on June 22, 2006 of the following offences committed near Vanderhoof on December 18, 2003: aggravated assault and assault with a weapon, and four counts each of unlawful confinement and uttering threats. The aggravated assault was inflicted on his girlfriend, Misty Franklin, who was then 23 years old. Mr. Fontaine and Ms. Franklin were staying at the home of Ms. Franklin’s cousin, Lydia Thomas. At Ms. Thomas’ home were her two children aged 10 and 5 and a friend from next door, aged 10. Ms. Thomas and the children were the victims of the offences of unlawful confinement and uttering threats. [8] In the early hours of December 18, 2003, following an argument with Ms. Franklin, Mr. Fontaine stabbed her in the neck near the base of her skull, severing her spinal cord. She was tragically rendered quadriplegic, paralyzed from the neck down and reliant on a ventilator for breathing. [9] After the attack, Ms. Thomas came out of an adjacent bedroom to check on her cousin who was lying immobile on the floor. Mr. Fontaine yelled at Ms. Thomas and the children to stay in the bedroom or he would kill them all and threatened to hurt the children if they attempted to escape from the bedroom window. Mr. Fontaine refused Ms. Thomas’ repeated entreaties to call an ambulance, but ultimately relented and let her call 9-1-1. [10] Following Mr. Fontaine’s conviction the Crown applied for an assessment under s. 752.1 of the Criminal Code in anticipation of an application under s. 753 to determine whether Mr. Fontaine was a dangerous offender. [11] The dangerous offender hearing was heard over 32 days in July, September and November 2007 with two days of submissions in June 2008. More than 40 witnesses testified including Dr. Elisabeth Zoffmann, a psychiatrist tendered by the Crown, and Dr. Terry Nicholaichuk, a psychologist tendered by the defence. The record consists of 12 volumes of transcripts and 31 exhibits. No “ Gladue report” was prepared to assist the Court in sentencing Mr. Fontaine. [12] Both Dr. Zoffmann and Dr. Nicholaichuk agreed that Mr. Fontaine currently poses a high level of risk that he will commit a crime of violence if released into the community. That evidence was the foundation of the judge’s findings relevant to s. 753(1)(a): [14]      So that there is no doubt, however, I will make the following findings of fact: first, that Mr. Fontaine committed a serious personal injury offence in the aggravated assault on Ms. Franklin and the use of a weapon in that assault; further, that at this time Mr. Fontaine constitutes a threat to the life, safety, or physical well-being of other persons based on both his pattern of repetitive behaviour, of which the current convictions are a part, that shows a failure to restrain his behaviour and a likelihood of causing death or injury to others, which is the test under the first subsection of 753.1(a) [now 753(1)(a)] of the Code ; and further, that Mr. Fontaine has shown persistent and aggressive behaviour that shows a substantial degree of indifference on his part respecting reasonably foreseeable consequences to others of his behaviours, which is the test under s. 753.1 (a)(ii) [now 753(1)(a)(ii)]. [13] Defence counsel conceded that the statutory criteria for a dangerous offender designation were met in this case. [14] The judge reviewed Mr. Fontaine’s extensive criminal record: 27 offences between 1990 and 1999, nine of which involved violence or threats of violence and ten convictions for offences relating to breaches of court orders. As the judge noted, when Mr. Fontaine was not in jail between 1991 and December 2003, he was under some sort of supervision − bail, probation or parole. [15] Mr. Fontaine’s last offence before the predicate offence was the 1999 sexual assault conviction involving a 24-year-old woman with whom he was not in a relationship. He gained access to her home, choked her into submission and then sexually assaulted her. He was sentenced to five years’ imprisonment and was released on September 19, 2003, three months before the aggravated assault on Ms. Franklin. [16] The judge reviewed the various programs Mr. Fontaine undertook from the time he entered prison. The judge also heard testimony from Mr. Fontaine’s parole officer at Bowden Federal Institution in Alberta. She described Mr. Fontaine’s participation in a program called “In Search of Your Warrior”, which focussed on general and family violence and was tailored for Aboriginal offenders. As well, a facilitator of the Aboriginal healing program at Bowden Institution described the program for Aboriginal sex offenders in which Mr. Fontaine participated. [17] In addition, Mr. Fontaine participated in the Native Brotherhood Program in 2000−2001 while he was at the Regional Psychiatric Centre (“RPC”) in Saskatoon. Dr. Nicholaichuk, the psychologist who testified for the defence, reported as follows: He was also active in the Native Brotherhood Program at the RPC and believed that spiritual and traditional practices would be a support to him when he was released. ... In 2003/07/29 Mr. Fontaine received another “successful completion” for his participation in the In Search Of Your Warrior Program while at Bowden institution. Again his difficulties with reading and writing were identified and an educational upgrading was recommended in addition to other correctional programs. The program report indicated that Mr. Fontaine’s risk level may have been reduced to the moderate category and (sic) but this was contingent upon his abstaining from intoxicants and not being released to high-risk situation (sic). Based upon his lengthy history of violent offences the national parole board detained Mr. Fontaine until his warrant expiry. Based upon his successful completion of the In Search Of Your Warrior Program as well as his regular participation in the sex offender maintenance sessions, Mr. Fontaine was considered to have developed further insight into his offense cycle and had significantly improved in the areas of empathy, self worth, taking responsibility, and developing more positive relationships. [18] Dr. Nicholaichuk’s testimony was heard over two days, during which Mr. Fontaine’s circumstances as an Aboriginal offender were explored in some depth. Dr. Nicholaichuk stated in his written report that he believed Mr. Fontaine would benefit from input and guidance from Aboriginal elders and Aboriginal programs. He testified that he believed that to be the case because in his experience there are “a fair number of men who actually discover that source of pro-social community support in the traditional cultural community.” [19] When Mr. Fontaine was released in September 2003, his parole was supervised by Lynne Hyatt. She described the halfway house where Mr. Fontaine resided, Ketso Yoh, as follows: A:         Ketso Yoh is located in the downtown core of Prince George. It’s an aboriginal focussed halfway house. They do take non-aboriginal offenders to reside there but their main goal is to work with the aboriginal population and offering various aboriginal focus activities onsite at the facility. And an example would be elder - - elders would come and on occasion be available to talk to. Healing circle, or they call it the talking circle, some mornings where they get together and talk about what’s gone on in their day and that’s an example, those are some examples. Q:    The people who work at this Ketso Yoh, are they employed by Correctional Service of Canada? A:    No. It’s a non-profit organization. Correctional Service Canada holds a contract with the Native friendship centre and the Native friendship centre in Prince George oversees the halfway house, which is also the term CRF, community residential facility. [20] As the respondent Crown has noted in its factum, Ms. Hyatt testified that the staff at Ketso Yoh rated the appellant’s performance at the halfway house as poor, at two to three out of ten: They talked about him getting frustrated easily over small things lately and agitated when female staff talk to him, he gets agitated and contradictory in his behaviour, regarding female staff versus male staff. They had noticed his attitude to be considerably different towards female staff. And they said he was the type of person that knows what to say and when to say it. In other words, how to manipulate people to what he feels they want to know. And they - - he would have small blow-ups with staff, like, regarding his girlfriend at the time and they noted a slightward downward, downhill trend. [21] The judge acknowledged Mr. Fontaine’s Aboriginal circumstances and his chaotic childhood by reference to Dr. Nicholaichuk’s written opinion: Mr. Fontaine Is a 36 year old Aboriginal male. Although he was born in Fort St. John British Columbia, he is a member of the Fort Alexander First Nation just North of Winnipeg Manitoba. He was raised in North end Winnipeg. His parents separated when he was approximately 1 year of age and he subsequently relocated to Winnipeg with his mother. Both his mother and his stepfather are now deceased. His biological father passed away when he was 13. Mr. Fontaine is the youngest of a sibline (sic) of 10. He has five brothers and four sisters and is the youngest of the boys. According to the record as well as his own report, Mr. Fontaine suffered an exceptionally chaotic and deprived childhood. Prior to the age of four he was subjected to physical and sexual abuse and was also introduced [to] substance abuse at that age. For example, he can recall sniffing solvents with his mother when he was very young. As a result of parental alcohol abuse, neglect and violence, he was apprehended by the Children’s Aid Society of Winnipeg at about the age of four or five. He remained under the care of the Ministry until the age of 18. Prior to being taken into the care of the Children’s Aid Society, Mr. Fontaine was constantly exposed to models for violence and substance abuse. He said that his mother and stepfather drank and fought almost daily. In addition, he was sexually abused both by this mother and an older stepbrother. He told me that the physical abuse he suffered reached a point where he was sometimes knocked unconscious. His parents threatened the children to not say anything “because the welfare will take us away.” As a child Mr. Fontaine did not develop any close relationships with anyone as he never had any consistent caregivers. It can be fairly said that he never received any appropriate socialization as a child. He apparently started attending school regularly at about the age of seven or eight but immediately had difficulty both behaviourally and academically. [22] The judge then reproduced those portions of Dr. Nicholaichuk’s opinion dealing with Mr. Fontaine’s learning disability, reasoning ability and other intellectual deficits which have negatively impacted his social relationships (at para. 67): Individuals with language delays such as those suffered by Mr. Fontaine experience a great deal of frustration in their attempts to learn and interact appropriately with others. Although they may have some degree of understanding of their social situations they are unable to put their understanding into words. In social situations they are unable to express themselves adequately and this leads to a great deal of difficulty in negotiating social relationships, particularly under conditions of stress and conflict. Historically he has had difficulty negotiating his relationships with virtually every woman he has been involved with. This frustration coupled with his use of alcohol would raise the potential for violence immeasurably. This pattern is exemplified by his assault upon the victim of the predicate offense. [23] As I have noted, Dr. Zoffmann and Dr. Nicholaichuk agreed that Mr. Fontaine currently poses a high level of risk of re-offending if released into the community. [24] As to the future, Dr. Zoffmann’s opinion was that Mr. Fontaine’s prognosis for treatment is not good. Any future release would have to be monitored very carefully and would need to include conditions that he abstain from all intoxicants, all domestic or intimate relationships, and have no access to weapons or potential victims. [25] Dr. Nicholaichuk was, in the judge’s view, “somewhat more optimistic” as he was of the opinion that Mr. Fontaine could be successfully managed in the community if a number of conditions were met, including treatment for his significant learning disability and release into a community where his older brother and sister could provide support. Their ability to provide this support would have to be confirmed by a community assessment. [26] Dr. Nicholaichuk’s recommendations included the following: Mr. Fontaine will have to receive treatment which takes into account his language deficiencies. It is also likely that he would benefit from input and guidance from Aboriginal Elders and should continue to receive Aboriginal programs. The [sic] if he can be successful in treatment and remain stable, he may be a good candidate for a transfer to one of the Aboriginal Healing Lodges located in the Prairie region. For example, there is such an institution located in the Interlake in Manitoba. This would also serve to place him closer to potential sources of support. [27] Dr. Nicholaichuk was questioned by defence counsel as to whether Mr. Fontaine would qualify for placement in the Aboriginal Healing Lodge if he were under a long-term offender designation order. Dr. Nicholaichuk testified that Mr. Fontaine would first have to be designated a minimum security inmate. It is clear, however, that as Dr. Zoffmann and Dr. Nicholaichuk agreed, Mr. Fontaine would not currently qualify for designation as a minimum security inmate because he poses a high risk of re-offending. [28] The judge reviewed the opinion of both experts and ultimately concluded that Dr. Nicholaichuk’s optimism was unwarranted: [85]      I am not satisfied that the programs that Dr. Nicholaichuk hopes will successfully address Mr. Fontaine’s learning disabilities will have the necessary salutary effect so as to reduce the risk to an acceptable level. [86]      I am not satisfied that a way can be found for Mr. Fontaine to practise safely the tools and mechanisms the programs are designed to teach him, and it seems to me from what I have heard that given his verbal deficits, the ability to practise, to in effect drill himself or to be drilled on these mechanisms, is essential if Mr. Fontaine is to internalize them, at least sufficiently that he can avoid the deterioration and eventual breakdown such as occurred on his release in Prince George. [87] I am not satisfied that any realistic level of community supervision will permit monitoring of Mr. Fontaine’s close relationships. In this context, I am concerned that while the focus so far has been on Mr. Fontaine’s relationships with women, the explosive anger Dr. Nicholaichuk describes can be triggered by any social interaction where Mr. Fontaine’s verbal disadvantages lead to frustration and stress. [91] I am not satisfied that the relationship between any ameliorative effects of aging and reduction of Mr. Fontaine’s explosive reaction to frustration can be said to be clear enough that I should be guided by the statistical averages as they relate to reduction of violence in average offenders reaching a certain age. I must be concerned with this offender, and I must, given the tools available to me, engage in some form of prediction, and I am not satisfied that the risks posed can be successfully managed or controlled in the community. [92]      I note again that Dr. Zoffmann has said that past behaviour is the best predictor of future conduct and that Dr. Nicholaichuk agreed, with the caveat I have already recited, and here the most pointed indication from past behaviour is that it was just two and one-half months into a one-shot release that Mr. Fontaine’s ability to put into practice what he had been taught in various programs over the previous three years started to unravel. [94]      To be amenable to community supervision in a way that would make the risk of violence acceptable, Mr. Fontaine would require a fundamental change in the way he has dealt with other people all of his life. I accept what Dr. Zoffmann has said in that regard and view her evidence as saying that Mr. Fontaine would have to learn from further programs and counselling what he has not been able to learn so far, that he would have to learn how to apply what he is taught to his own circumstances and his own environment in perhaps less than ideal conditions of life in the community, and that he would need a structured environment outside the institution and sufficient supervision resources available to him. [95] I view the combined evidence of Drs. Zoffmann and Nicholaichuk to the effect that, statistically, there will come a time when Mr. Fontaine is in his mid to late fifties that he could be managed in the community as a statement of hope based on statistical averages, and that does not go far enough to persuade me that the possibility of eventual control in the community is reasonable. [29] Mr. Fontaine’s fundamental argument on appeal is that the sentencing judge did not adequately analyze Mr. Fontaine’s Aboriginal circumstances when he found him to be a dangerous offender. As I have noted, a Gladue report was not prepared in this case. However, it is apparent from the testimony of Dr. Nicholaichuk that the judge was aware of Mr. Fontaine’s Aboriginal background and his wretched childhood which sadly reflects the circumstances of many Aboriginal offenders. This point was made by defence counsel at the dangerous offender hearing: MR. DIENO: You’ll see that the criminal record starts in 1984 as a youth where he was convicted of a break and enter and theft; 1987 as a youth of break and enter and committing an indictable offence. And this is in the context, My Lord, I just want to put this as an aside to the fact that Mr. Fontaine, it’s clear, is an aboriginal and there are aboriginal issues that impact on treatment, impact on consideration of sentence … And in my respectful submission the evidence you heard about Mr. Fontaine’s background is -- this is an effect of that process in that Mr. Fontaine was raised by a family, his mother essentially, and then who suffered the effects of being in residential school. The drinking, the abuse was transferred over to Mr. Fontaine. As a result of that he lived in many foster homes. He had, obviously, learning disabilities that impacted on his ability to continue in school and he began -- THE COURT: Mr. Dieno, let me interrupt you there. Is there some evidence that Mr. Fontaine’s mother was a residential school victim? Are you asking me to infer that simply on the basis of her age and her aboriginal status? MR. DIENO:    Right. That is an inference, because it didn’t come out in evidence, it’s not something that Mr. Fontaine readily shared with his supervisors or -- and his Corrections staff, if I can put it that way. But given her age, and you’re right, and the extreme chaos that Mr. Fontaine -- and the drinking that began at a very young age is indicative of what we see in the second generation of people that have lived through the residential school treatment. [30] Mr. Fontaine’s objection that the judge’s analysis “did not go far enough” is essentially a complaint that the judge did not adequately discuss Mr. Fontaine’s Aboriginal status and failed to undertake the analysis mandated by Gladue and s. 718.2( e ) of the Criminal Code . [31] The Crown acknowledges that the judge’s reasons do not make express reference to s. 718.2( e ) or Gladue . However, in the Crown’s submission, a review of the entirety of the sentencing record, including the evidence tendered, the submissions of counsel, and the reasons for judgment, demonstrate that the judge gave proper consideration to Mr. Fontaine’s Aboriginal background. The Crown’s position rests on the decision of the Yukon Court of Appeal in R. v. Good , 2012 YKCA 2 (decided before Ipeelee ): [25]      It is true the reasons of the sentencing judge do not expressly address Ms. Good’s Aboriginal status, or the statutory and common law requirements associated with sentencing an Aboriginal offender. I note, however, that at para. 85 of Gladue the Supreme Court stated that s. 718.2(e) does not impose a statutory duty on a sentencing judge to provide reasons, although the Court endorsed the usefulness of reasons in the context of appellate review. As well, several decisions of this Court subsequent to Gladue have held that the failure to expressly mention s. 718.2(e) or the two-stage Gladue analysis in sentencing an Aboriginal person is not necessarily reversible error. Nevertheless, these authorities affirm that it must be apparent from the record and the reasons of the sentencing judge that his or her analysis included consideration of the offender’s Aboriginal circumstances: R. v. Sutherland , 2009 BCCA 534 at para. 16, 281 B.C.A.C. 33; R. v. Napesis , 2010 BCCA 499 at para. 17, 294 B.C.A.C. 255; R. v. Mack , 2008 BCCA 520 at paras. 10 and 12, 263 B.C.A.C. 138; and R. v. Awasis , 2010 BCCA 213 at paras. 13-14, 287 B.C.A.C. 39. Most recently, in R. v. Ladue , 2011 BCCA 101, 271 C.C.C. (3d) 90, a decision which is presently under reserve with the Supreme Court of Canada, Madam Justice Bennett, writing for the majority, reviewed many of these authorities and, at para. 59 of her reasons, affirmed the importance of applying the analysis mandated by Gladue when sentencing Aboriginal offenders. [26]      Thus, the question is whether the record before the sentencing judge, and his reasons for judgment, reveal that he gave proper consideration to Ms. Good’s Aboriginal heritage in determining a fit sentence. In answering that question, it is important to recognize that the sufficiency of the judge’s reasons is not assessed by their contents alone, but also in the context of the record before him, the issues, and the submissions of counsel: R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3 at paras. 15-20, 37-41. [32] Ipeelee did not refer to R. v. Good or any of the cases it cited in paras. 25 and 26 which stand for the principle that failure to expressly mention s. 718.2( e ) will not necessarily constitute reversible error, as long as it is apparent from the record and the reasons that the offender’s Aboriginal circumstances were considered. [33] Nevertheless, as Ipeelee makes clear, where, as in Mr. Fontaine’s case, systemic background factors may bear on the culpability of the offender, it is incumbent upon the sentencing judge to consider those factors in crafting the appropriate sentence. The failure to do so in this case constitutes error. [34] The judge did not have the benefit of Ipeelee . However, it is clear that he had an abundance of evidence before him that focussed on Mr. Fontaine’s risk to society, which was of course the purpose of the dangerous offender hearing. In hindsight, it would have been preferable for either counsel or the judge to request a Gladue report to assist the Court in addressing Mr. Fontaine’s Aboriginal circumstances. [35] It appears from Ipeelee that, in the future, it is required, and not just preferable, that a sentencing judge explicitly address an offender’s unique Aboriginal circumstances in determining the just and appropriate sentence. Notwithstanding the error to do so in this case, the stark fact is that Mr. Fontaine’s risk of future violence cannot be controlled in the community. His Aboriginal circumstances were undoubtedly instrumental in creating that risk. Because Mr. Fontaine poses such a high risk, and the Aboriginal and other programs he has taken in the past have not ameliorated that risk, the appropriate sentence in the circumstances was to designate him a dangerous offender. [36] I would accordingly dismiss the appeal. “The Honourable Madam Justice Kirkpatrick” I agree: “The Honourable Mr. Justice Donald” I agree: “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Galbiati, 2014 BCCA 5 Date: 20140108 Docket: CA040368 Between: Regina Respondent And David Michael Galbiati Appellant Before: The Honourable Mr. Justice Donald The Honourable Madam Justice Newbury The Honourable Mr. Justice Lowry On Appeal from an Order of the Provincial Court of British Columbia, dated August 30, 2012 ( R. v. Galbiati , 2012 BCPC 378, Kamloops Registry No. 90078). Counsel for the Appellant: N.L. Cobb R. Thirkell Counsel for the Respondent: P. Eccles Place and Date of Hearing: Vancouver, British Columbia December 5, 2013 Place and Date of Judgment: Vancouver, British Columbia January 8, 2014 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice Donald The Honourable Mr. Justice Lowry Summary: Police executed a search warrant at the appellant’s residence that authorized them to search for a marihuana grow-op, related notes and records and documents re “occupancy”.  They found marihuana and grow-op items and perused the appellant’s income tax returns.  In so doing, police became suspicious that a “proceeds of crime” offence may have taken place, and seized various vehicles belonging to the appellant, as well as two stolen vehicles.  They also saw various firearms and ammunition in plain view, which they seized. The appellant was charged only with the possession of marihuana for the purposes of trafficking and improper storage of firearms.  He argued at trial that the search warrant had been improperly executed and that all the evidence seized should be excluded.  The trial judge agreed that the appellant’s vehicles had been improperly seized, but admitted the evidence relating to the marihuana and firearms charges.  She found that the police had not wilfully disregarded the appellant’s rights. On appeal: the trial judge had not been shown to have erred, even if one regarded the police conduct as one transaction, as opposed to four distinct “investigations” as the trial judge suggested.  The evidence admitted had been obtained by means of a valid search warrant and the admissibility of that evidence would not bring the administration of justice into disrepute. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] Mr. Galbiati appeals his convictions on one charge of possession of marihuana for the purpose of trafficking, and one charge of unsafely storing firearms contrary to the Firearms Act , S.C. 1995, c. 39 and Regulations .  These charges followed a search by police of his rural property on June 2, 2010.  The only substantive issue at trial was whether the evidence gathered by the police at that time was admissible or whether it should be excluded as contravening the appellant’s rights under s. 8 of the Charter . [2] Members of the Kamloops RCMP searched Mr. Galbiati’s property outside Kamloops on June 2, 2010 under the authority of a valid search warrant.  The warrant was directed solely to evidence of a marihuana grow-operation in the “residence and garage”, notes and records relating to the growing of marihuana, and documentation relating to “occupancy”.  The police found a pair of concealed rooms that had previously housed a grow operation, and 19.1 pounds of marihuana packaged for sale.  In addition to the grow-op items, they noticed and seized 28 firearms and a great deal of ammunition that was unsafely stored throughout the house and readily visible. [3] The officers also noted a Case backhoe and a Bobcat excavator on the property.  Evidently, the VIN numbers were plainly visible on these vehicles.  The police searched the numbers and discovered that both vehicles were stolen property.  The police seized them. [4] After the dismantled grow operation and marihuana had been located, Sgt. Senner also perused copies of Mr. Galbiati’s income tax returns between 2002 and 2008 that were found in the house.  The sergeant formed the opinion that the “obvious high quality” of Mr. Galbiati’s home and assets indicated an income well in excess of that reported in the tax returns, and decided it would be appropriate to commence a “proceeds of crime investigation”.  The police thereupon proceeded to seize various other vehicles and property belonging to Mr. Galbiati on the basis that these items were evidence “in plain view” relating to this new “investigation”.  They did not believe it was necessary to obtain a new search warrant. [5] Mr. Galbiati was never charged with any offence relating to the vehicles seized or any item taken from the property, nor with being in possession of proceeds of crime. [6] Mr. Galbiati argued on the voir dire that all the evidence seized, including the marihuana and the guns and ammunition, should be excluded under s. 24 of the Charter on the basis that the officers had gone far beyond the terms of the search warrant in seizing the two stolen vehicles, in reading his income tax returns, and in seizing the other vehicles (the ones that were not stolen) on the basis of a “proceeds of crime investigation”.  In his submission, the search warrant had not been properly, or reasonably, executed and all the evidence was in effect tainted. [7] In her ruling on the voir dire , the trial judge found that the decision to pursue a proceeds of crime investigation was a reasonable one undertaken in good faith.  At the same time, she found that the officers’ belief that the further investigation did not require a new warrant was mistaken, and that the resulting seizures had violated Mr. Galbiati’s rights under s. 8 of the Charter to be free from unreasonable search or seizure.  This finding is not under appeal. [8] The trial judge said at para. 13 of her ruling that “four distinct investigations” had occurred in the course of the execution of the search warrant – the first, relating to the marihuana grow operation which was the subject of the warrant; the second relating to the proceeds of crime evidence; the third relating to the Firearms Act and Regulations ; and the fourth, a stolen equipment investigation.  Then, turning directly to the law regarding s. 24, she described the appellant’s submission thus: [Defence counsel at trial] argued that the seizures in this case should not receive judicial acceptance. Sergeant Senner admitted that he did not turn his mind to obtaining further warrants. He agreed that the circumstances were not urgent and he could have obtained a warrant by telecommunications or otherwise if necessary. [Counsel] argued that those income tax documents, as dated as they were, would not have been sufficient for a search warrant relating to a proceeds of crime investigation. Compounding the breach is that no charges resulted from the unlawful seizure from the investigation of the proceeds of crime or the stolen property. There has been a significant delay returning the vehicles with no explanation for that delay. Money subsequently seized from Mr. Galbiati when he was arrested at the airport has never been returned. The computer and PVR hard drive have never been returned.  [At paras. 24-5.] [9] The trial judge referred to R. v. L.V.R. 2011 BCSC 1158, which like this case involved the execution of a search warrant followed by the seizure of items falling outside the parameters of the warrant.  In L.V.R ., the warrant had been directed to the making and possession of child pornography, but the police also seized a number of firearms and related equipment.  The Court ruled that the evidence of the existence of the firearms was admissible given the “public interest in truth-finding”, the reliability of the evidence, and its importance to the Crown’s case. [10] The judge also mentioned R. v. Fawthrop (2002) 161 O.A.C. 350 (C.A.), in which the Court considered s. 489(2) of the Criminal Code .  It allows the seizure of items not specified in a warrant where the person executing the warrant believes on reasonable grounds that the items have been obtained by or used in the commission of an offence.  The Court cited with approval a definition of the common law “plain view doctrine” referred to by Madam Justice Jackson in R. v. Spindloe 2001 SKCA 58 as follows: “Plain view” occurs when evidence falls into the view of an officer who has a right to be in the position he is in to have the view he has had; such items have been held to be subject to seizure.  [At para. 29.] From Fawthrop , the trial judge in the case at bar concluded that: Anything seized by the officers in the execution of this warrant must either be contemplated by the warrant, or it must have been immediately obvious to and discovered inadvertently by them while executing that lawful warrant.  [At para. 33.] [11] The trial judge then formulated the question before her as “whether despite the lawful warrant those items lawfully searched and seized should be excluded because of the [extent] and seriousness of the breach of Mr. Galbiati’s rights.”  (Para. 34.)  Applying the well-known factors formulated in R. v. Grant 2009 SCC 32, she emphasized that the evidence relating to the grow operation had been obtained by virtue of a lawful warrant.  The firearms and ammunition had been in plain view and were “inadvertently discovered” when the police were executing the warrant, and the offence had been immediately apparent.  (Para. 36.) [12] In connection with the stolen goods, she observed that their discovery could not be described as “inadvertent.”  She continued: What ought to have occurred at this point was for the officers to write down the vehicle identification numbers because they were readily visible. They were entitled to conduct their searches of those numbers to determine if the equipment belonged to Mr. Galbiati. Upon discovering that the equipment was stolen, the police ought to have obtained a search warrant pursuant to an investigation for stolen goods. Instead, they took the results of the vehicle identification number searches and simply seized the property. It is only this final step of seizure which constitutes a breach of Mr. Galbiati’s rights. The breach occurred because of the erroneous belief of the police that because the vehicle identification numbers were in view they were entitled to seize the items upon receiving the search results. The seizure was done in good faith. I have no doubt that if a search warrant had been sought it would have been granted, given the vehicle identification number search results. As a result, I find that the breach was not a serious one and, if such charges were before me, I would not exclude the evidence. As it happens, charges are not before me because there was no evidence that Mr. Galbiati acquired the equipment improperly or was aware that the equipment was stolen.  [At paras. 37-8.] [13] The product of the proceeds of crime “investigation” was another matter: although again the police had acted in good faith and, the trial judge stated, they had been entitled to “peruse” the tax returns, the breach in this regard had been more egregious.  She found that the police should have sought and obtained another search warrant once they became suspicious.  Accordingly, she said, she would have excluded this evidence pursuant to s. 24(2) of the Charter had a charge relating to proceeds of crime been before her. [14] As far as the evidence related to  the marihuana grow operation and the firearms storage charge was concerned, however, the trial judge concluded that the police had not ‘wilfully disregarded’ Mr. Galbiati’s rights and that: The evidence lawfully seized pursuant to the plain view doctrine respecting the improperly stored firearms was properly seized. Similarly, all of the evidence seized pursuant to the investigation into the marijuana grow operation was properly seized. Each of these transactions under all four investigations are easily discernable and allocated to those investigations. That being the case, it would bring the administration [of justice] into disrepute if that discrete evidence respecting those discrete charges was not admitted into evidence. [At para. 44; emphasis added.] and further: As with the evidence that was seized pursuant to a partially invalid search warrant in R. v. Fawthrop, supra , I am satisfied that it would not bring the administration of justice into disrepute if I admitted the properly seized evidence relating to the marijuana grow operation and the properly seized evidence relating to the firearms offences into evidence. There were no breaches of Mr. Galbiati’s rights in respect of either of those charges under s. 8 of the Charter of Rights and Freedoms . Therefore, there should be no remedy available to him pursuant to s. 24(2) of the Charter of Rights and Freedoms .  [At para. 45; emphasis added.] The Court proceeded to find the appellant guilty on the two charges for reasons delivered on the same day as the reasons on the voir dire . On Appeal [15] In this court, the appellant argues that the trial judge “erred in failing to find the appellant’s rights under s. 8 of the Charter were breached, and … in failing to exclude all of the evidence seized on June 02, 2010, pursuant to s. 24(2).”  In his overview, Mr. Galbiati submits that in notionally dividing what occurred into four distinct “investigations” and in concluding that no Charter breach had occurred in respect of the discovery of the marihuana and firearms, the trial judge erred in law by “requiring Mr. Galbiati to, in essence, establish a causal link between the clear breach of his rights and the evidence upon which the Crown sought to rely at trial on charges which they chose to prosecute.” [16] On the latter point, counsel for the appellant, Mr. Cobb, argues that an accused who is seeking to have evidence obtained in breach of the Charter excluded need not establish a causal connection between that evidence and the violation; rather, he or she need establish only that a Charter violation occurred “in the course of obtaining the evidence”.  Counsel drew our attention to R. v. Strachan [1988] 2 S.C.R. 980, where the Court rejected the argument that a “strict causal nexus” was required.  Instead, the Court said: all of the pitfalls of causation may be avoided by adopting an approach that focuses on the entire chain of events during which the C harter violation occurred and the evidence was obtained.  Accordingly, the first inquiry under s. 24(2) would be to determine whether a Charter violation occurred in the course of obtaining the evidence. A temporal link between the infringement of the Charter and the discovery of the evidence figures prominently in this assessment , particularly where the Charter violation and the discovery of the evidence occur in the cause of a single transaction. The presence of a temporal connection is not, however, determinative.  Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be “obtained in a manner” that infringed the Charter There can be no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote. If a Charter violation has occurred in the course of obtaining the evidence, the analysis will proceed to the second, and in my view the more important, branch of s. 24(2) , whether the admission of the evidence would bring the administration of justice into disrepute.  [At 1005-6; emphasis added.] (See also R. v. Plaha (2004) 188 C.C.C. (3rd) 289 at paras. 44-5 and R. v. Lauriente 2010 BCCA 72 at para. 36.) [17] The Crown does not challenge the fact that a causal link between the infringement and the discovery of the evidence is unnecessary for a breach of s. 8 to be established, but submits that the trial judge did not require one.  It argues that a more general “remoteness” analysis is mandated by the case law, under which the court must consider all the connections between the breach and the discovery of evidence: see R. v. Perjalian 2011 BCCA 323 at para. 66, R. v. Pettit and Pranic 2003 BCCA 522, at paras. 20-1. Relying on these authorities, the Crown contends that there was obviously a “temporal” connection between the evidence in question − the marihuana and related items and the firearms and ammunition − and the subsequent breach(es), but that the connection was sufficiently remote that the admission of this evidence would not bring the administration of justice into disrepute. [18] It seems to be implicit in the Crown’s submission that this case turns on the second branch of the analysis described in Strachan − whether the admission of the evidence would bring the administration of justice into disrepute, rather than whether a breach of s. 8 occurred at all.  However, I do not think it was unreasonable for the trial judge to posit four separate “investigations” based on the four different kinds of offences they suspected.  In this regard, the Crown cited various cases in which the “severability” of valid portions of a search warrant from invalid portions was approved: see Fawthrop , supra , and R. v. Chuhaniuk 2010 BCCA 403, where an “all or nothing” approach was said not to be appropriate.  (At para. 92.)  On this basis, there is some doubt in my mind as to whether the evidence relating to the charges brought against Mr. Galbiati was obtained “in a manner” that infringed his s. 8 rights, notwithstanding the breach(es) with respect to the seizure of his vehicles.  As the judge observed, the marihuana and firearms evidence was obtained on the strength of a valid search warrant that had been executed prior to any breach. [19] Even if one assumes, however, that the marihuana items, firearms and ammunition were found and seized as part of one overall transaction in which the other items were also seized, I am not persuaded we should interfere with the trial judge’s conclusion that the admission of the marihuana items and firearms into evidence would bring the administration of justice into disrepute.  The Court’s review of the Grant factors in this case has not been shown to be erroneous.  The Court found that the items of property seized by the police had been in plain view, and that the RCMP had acted in good faith.  As the Crown submits, if the RCMP had stopped and obtained a warrant before searching the VIN numbers on the two vehicles, they almost certainly would have obtained one.  There was no suggestion their conduct was part of an overall pattern of “short-cuts” or failures to respect the constitutional rights of persons encountered by the police in the course of their exercise of their duties.  (See R. v. Burlingham (1995) 2 S.C.R. 206, at para. 50.)  The trial judge found no “wilful disregard” of Mr. Galbiabti’s rights. [20] On a more general level, the impact on the accused, society’s interests in the adjudication of the criminal charges on their merits, and the overall balancing of the public interest in admitting or excluding the evidence in question must also be considered.  While there can be no doubt that, as Mr. Cobb contends, a search warrant should not be turned into “an unfounded general inquisition or an unreasonable search” (see R. v. Mellenthin [1992] 3 S.C.R. 615 at 624, discussing “random stop” programs), I find it difficult to disagree with the trial judge’s conclusion that it would bring the administration of justice into disrepute if the evidence relating to the two charges were excluded.  Society has an interest in having the charges adjudicated, and even if the firearms charges were “regulatory” and at the less serious end of the spectrum as counsel suggests, the consequences of Mr. Galbiati’s failing to store the guns and ammunition properly could be serious indeed.  Nor do I agree that society’s interest in a trial on the merits is “comparatively low” as Mr. Cobb argues. [21] In all the circumstances, including the deference owed to the findings of the trial judge, I see no basis on which we should interfere.  I would therefore dismiss the appeal. “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Mr. Justice Donald” I AGREE: “The Honourable Mr. Justice Lowry”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Slater Vecchio LLP v. Cashman, 2014 BCCA 6 Date: 20140108 Docket: CA040637 Between: Slater Vecchio LLP Appellant (Solicitor) And Fred Cashman Respondent (Client) Corrected Judgment : The text of the judgment was corrected at paragraph [49] in the last section of quotation: a duplicated sentence was removed on January 14, 2014. Before: The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Goepel On appeal from:  An order of the Supreme Court of British Columbia, dated January 31, 2013 ( Slater Vecchio LLP v. Cashman , 2013 BCSC 134, Vancouver Docket S110853). Counsel for the Appellant: D.G. Cowper, Q.C. A.I. Nathanson Counsel for the Respondent: G.T. Palm D.A. Hunter Place and Date of Hearing: Vancouver, British Columbia November 28, 2013 Place and Date of Judgment: Vancouver, British Columbia January 8, 2014 Written Reasons by: The Honourable Mr. Justice Chiasson Concurred in by: The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Goepel Summary: The appellant law firm appeals the decision of a Supreme Court judge dismissing its appeal from a master’s order requiring the appellant to return a fee paid to it at the conclusion of a tort action on the basis that the retainer agreement between the appellant and the respondent was an “entire contract”, pursuant to which the appellant was obliged to conclude both the tort action and the respondent’s claim for benefits under Part 7 of the Regulations to the Insurance (Vehicle) Act.  At the conclusion of the tort action, the parties and lawyers who previously had acted for the respondent, negotiated a settlement agreement for fees payable in relation to the tort action.  The appellant contends that the settlement agreement amended or supplanted the retainer agreement, that the retainer agreement was not an “entire contract” and that respondent is estopped from claiming the return of the fee paid under the settlement agreement.  Held: appeal allowed.  The settlement agreement amended or supplanted the retainer agreement.  It is questionable whether the retainer agreement was an “entire contract”.  The estoppel issue is not addressed. Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] This is an appeal from the decision of a Supreme Court judge dismissing an appeal from a master’s order requiring the appellant to return a fee paid to it at the conclusion of a tort action on the basis that the retainer agreement between the appellant and the respondent was an “entire contract”, pursuant to which the appellant was obliged to conclude both the tort action and the respondent’s claim for benefits under Part 7 of the Regulations to the Insurance (Vehicle) Act , B.C. Reg. 447/83 (the “Part 7 action”). Background [2] The respondent was injured seriously in a collision between a motor vehicle and the bicycle he was riding.  He sued the driver and owner of the motor vehicle who was represented by the Insurance Corporation of British Columbia (“ICBC”) in a tort action and he sued ICBC for benefits in the Part 7 action.  Initially, the respondent, who is a lawyer, represented himself, but eventually he retained the firm of Brown Benson to act for him.  He became unhappy with that firm and retained the appellant firm. [3] Prior to retaining the appellant, a substantial amount of work had been done on the tort action, including setting a trial date.  Little had been done on the Part 7 action.  At the time of the transfer, the respondent was seeking the policy limits of $1 million in the tort action; the highest offer from the defendants was $400,000. [4] Brown Benson’s files for both actions were sent to the appellant and Notices of Change of Solicitor were filed.  The appellant agreed to protect the fees and disbursements of Brown Benson. [5] On January 13, 2009, the parties entered into a retainer agreement.  It stated: I, Frederick George Cashman, authorize the law firm of Slater Vecchio LLP to act as my solicitors with respect to my claim for damages incurred as a result of personal injuries and other losses arising out of a motor vehicle accident on July 26, 2005. I agree to pay to the law firm of Slater Vecchio LLP the following: (a)        legal fees of 33-1/3 % of the amount recovered by settlement or at trial; (b)        all disbursements incurred in prosecuting my case. I also agree to pay interest on all disbursements paid on my behalf by Slater Vecchio LLP at the rate of 10 percent per annum; (c)        the Social Services Tax and Goods and Services Tax applicable to the fee. I confirm that I have been advised of the following: A.         This Agreement may be terminated within 90 days from the date of the Agreement or within 90 days of the termination of the retainer with Slater Vecchio LLP by application to the District Registrar of the Supreme Court of British Columbia to have the Agreement reviewed, notwithstanding that payment has been made to Slater Vecchio LLP under the Agreement; B.         The Rules of the Law Society of British Columbia provide that, subject to the Supreme Court approving higher remuneration, the maximum compensation to which a lawyer is entitled in a claim for personal injury arising out of the use or operation of a motor vehicle is 33-1/3% of the total amount recovered. C.        This percentage limit applies to all matters related to the trial of a lawsuit, but does not include any appeal. A lawyer and a client may make a separate agreement for legal fees for an appeal. D.        Fees charged by different lawyers vary. [6] It is common ground that the retainer agreement covered both actions.  The appellant advised the respondent that, but for the need to protect the fees of Brown Benson, the percentage payable under the agreement would have been somewhat less. [7] In June 2010, the appellant obtained settlement of the tort action for the policy limits of $1 million.  The Part 7 action was not part of the settlement. [8] The fees related to the tort action totaled $333,333.  The appellant proposed a split of 60/40 in favour of the appellant to Brown Benson. [9] Difficulties arose concerning the fees payable to Brown Benson.  The respondent questioned the firm’s entitlement to fees.  He retained Mr. Gordon Turriff, Q.C., to represent him with respect to Brown Benson’s claim for fees.  Mr. Turriff did not act for the respondent with respect to the appellant’s fee.  The respondent advised that he was prepared to pay a global fee of $250,000.  He wanted to tax the account of Brown Benson. [10] After negotiations, on November 10, 2010 it was agreed by Brown Benson, the appellant and the respondent that Brown Benson would receive $71,800 and the appellant $180,000, plus taxes.  This arrangement is called the “settlement agreement”. [11] In January 2011, the respondent left a telephone message with the appellant inquiring about the status of the Part 7 action.  On January 19, 2011, the appellant advised the respondent that no steps had been taken in the Part 7 action and that, having reviewed the action, the appellant was “not prepared to act further for you on it.”  The respondent replied on January 20, 2011, stating: Gentlemen:  That is not how I read the contract.  It does not say that you only get to do what you deem to be the easy stuff, but that you will act “with respect to my claim for damages incurred as a result of personal injuries and other losses arising out of a motor …”  In short it is not proper that you cherry pick the claim and when the easy part is done then decide to give up on the claim without a fight.  I object to your withdrawal and do not consent to this breach of contract.  I did not say that I was not advancing a claim for Part 7 nor did I refuse to cooperate with ICBC.  They offered help with rehab which I did not need as I was getting lots of help.  They never asked for any cooperation nor did they complain that I was not cooperating.  The fee agreement was to do everything and not just that which you believed was worth pursuing.  The contract is Whole contract and has yet to be completed. [12] The appellant responded that day as follows: Fred, With respect, we disagree.  We are under no compulsion to continue to act.  Any party can terminate the contract and we are doing so at this time. Our withdrawal at this time causes no harm or prejudice to you.  There are no pending trial or discovery dates. We have received no compensation and seek no compensation for legal work on the Part 7 claim. If you believe that you have a good claim against ICBC under Part 7, you will have no difficulty obtaining counsel to pursue it on your behalf. [13] The respondent did not accept this position.  On February 1, 2011, his counsel wrote to the appellant advising that the respondent considered that the appellant had repudiated the retainer agreement, that the respondent accepted that repudiation and demanded repayment of $201,600, the total of fees and taxes paid previously to the appellant.  On February 9, 2011, the respondent brought proceedings for a review of the appellant’s account.  The appellant agreed it did not have cause to terminate the retainer agreement. The master’s decision [14] The following issues were considered in the proceeding before a master of the court and noted by the judge on appeal: Issue 1:     Was the retainer agreement between the Solicitors and the Client (the “Agreement”) an entire contract by which the solicitors were obligated to prosecute both the Client’s tort action and his Part 7 action to their respective conclusions in order to be entitled to any fee? Issue 2:     If so, then did the Solicitors and the Client, in or about early November of 2010, either (a)        make a new agreement and discharge the Agreement; or (b)        amend the Agreement; such that the Solicitors were no longer required to prosecute both the Client’s tort action and his Part 7 action to their respective conclusions in order to be entitled to any fee? Issue 3:     If not, then by virtue of dealings in or about early November 2010 is the Client estopped from recovering the fee paid to the Solicitors? Issue 4:     If not, then did the Solicitors breach the Agreement by withdrawing their services without cause prior to prosecuting the Client’s Part 7 action to its conclusion such that the Solicitors are not entitled to any fee? The master found against the appellant on each of these issues.  He certified that $220,613.33 was due from the appellant to the respondent. The chambers decision [15] Although the appellant’s first ground of appeal before the judge was the effect of the settlement agreement, the judge first addressed whether the retainer agreement was a single contract.  In her view, it was.  She concluded that the legal effect of the agreement was that the appellant: undertook an entire obligation to [the respondent] – to represent him in relation to his claim – and had no entitlement to the fee payable under the Agreement until [it] had performed [its] part, all of it. [Emphasis in original.] [16] The judge reviewed the applicable law and the conclusions of the master and stated at paras. 51-52: [51]      Of course, Slater Vecchio was in fact going to be acting as Mr. Cashman’s solicitors in two separate actions.  But this does not answer the question concerning the proper legal effect to be given to the Retainer Agreement.  No doubt the Retainer Agreement could have been drafted to express the objective intention that Slater Vecchio’s obligations to act for Mr. Cashman in respect of the Tort Action and the Part 7 Action were separate and divisible and that the firm was entitled absolutely to be paid its fee in respect of one Action once that Action was concluded, whatever the status of the other.  That, essentially, is the legal effect Mr. Nathanson argues should be given to the Retainer Agreement, despite the use of the word “claim” and other singular nouns in the document. [52]      But is that the legal effect of what the parties actually said in the Retainer Agreement?  This is a question of law.  In my opinion, applying the legal principles I have summarized above, it is not.  In my view, based on the Master’s findings concerning the meaning of the words in the Retainer Agreement and the factual matrix, the legal effect of the Retainer Agreement is that Slater Vecchio undertook an entire obligation to Mr. Cashman – to represent him in relation to his claim – and had no entitlement to the fee payable under the Agreement until they had performed their part, all of it.  In my opinion, this is the objective intention expressed by the words the parties used in the Retainer Agreement. [Emphasis in original.] [17] Turning to the settlement agreement, the judge addressed the position of the appellant. [55]      In the Reasons, the Master said in respect of Issue 2, at para. 71: [N]either of the parties turned their minds to whether or not they were about to either make a new Agreement or amend the [Retainer] Agreement. Accordingly, in the absence of some evidence of actual intent to alter or amend the [Retainer] Agreement rather than by implication, I find neither occurred. [56]      Mr. Nathanson submits that the Settlement Agreement is a contract in its own right and must be given effect, even if it departed from the terms of the Retainer Agreement.  In Mr. Nathanson’s submission the Settlement Agreement, by its own undisputed terms, did amend the Agreement.  He says that the Master found (in para. 42 of the Reasons) that it was an agreement by Cashman “to pay … $180,000 plus taxes to Slater Vecchio in settlement of Slater Vecchio’s entitlement to a fee for the tort action ” [emphasis added by Mr. Nathanson], instead of the 33 1/3% of the amount recovered, as provided for in the Retainer Agreement.  Mr. Nathanson argues that the Master’s references to the parties’ “actual intent” and “turn[ing] their minds” to the effect of the Settlement Agreement can only refer to evidence of the parties’ subjective intentions.  Mr. Nathanson says that the Master erred by focussing on what he perceived to be the parties’ subjective intentions, instead of having regard to the terms of the Settlement Agreement itself. [57]      However, I do not read para. 71 of the Reasons in the same way as Mr. Nathanson. [58]      The question concerning the Settlement Agreement is the same as with any other contract:  at the time the Agreement was made, what were the parties’ true intentions, considered objectively.  Therefore, I read the adjective “actual” in para. 71 as synonymous with “true,” thus showing that the Master was concerned to determine what, objectively, were the parties’ true intentions at the time the Settlement Agreement was made.  I do not read para. 71 as indicating that the Master either focussed on, or required, evidence of either party’s subjective intent, which is inadmissible. [59]      Moreover, in my opinion, the Master’s statements in para. 71 constitute a finding that the terms of the Settlement Agreement did not include a term whereby the Retainer Agreement was either altered or amended.  It was for the Master to make findings concerning the terms of the Settlement Agreement, and his findings are entitled to deference on appeal.  The Master did not fail to give effect to the Settlement Agreement.  Rather, he gave effect to the Settlement Agreement based on his findings concerning the terms, and with the goal of determining what, objectively, were the parties’ true intentions at the time the Agreement was made. [Emphasis in original.] [18] The appellant contended the master’s decision was inconsistent because he stated at para. 42 of his reasons that $180,000 plus taxes was paid to the appellant “in settlement of [its] entitlement to a fee for the tort action.”  The judge rejected this contention, stating at para. 61: The parties themselves did not use the word “entitlement.”  The Master’s use of the word “entitlement” in para. 42 of the Reasons has to be understood in its proper context.  The Master described the “fee dispute” as one between Brown Benson and Slater Vecchio as to what their respective fees would be.  The Master found (Reasons, para. 4) that the “fee dispute was finally settled when Slater Vecchio agreed to take $20,000.00 less than Mr. Cashman had suggested,” and the “agreement was to be final in that Mr. Cashman would not tax the accounts of Brown Benson.”  In that context, the Master’s use of the word “entitlement” in para. 42 is not inconsistent with his finding that the Settlement Agreement did not alter or amend the Retainer Agreement, or with his conclusion that the Retainer Agreement described an entire obligation. The judge continued at paras. 62 and 63: The primary aim of the transaction that resulted in the Settlement Agreement  was to settle Mr. Cashman’s dispute with Mr. Deering concerning the fee to be paid to Brown Benson.  This is highlighted by Mr. Turriff’s November 4 message to Mr. Gordon and Mr. Deering.  Since Mr. Cashman had terminated Mr. Deering’s retainer, there were no issues concerning entire or divisible obligations in relation to Brown Benson.  Even if (hypothetically) Slater Vecchio had the ability at the conclusion of the Tort Action to bill 33 1/3% of the recovery to Mr. Cashman, it did Slater Vecchio little good, for the reasons Mr. Turriff described. The Settlement Agreement settled, finally, the dispute between Mr. Cashman and Mr. Deering concerning the fee to be paid to Brown Benson.  It also settled, finally, the allocation between Brown Benson and Slater Vecchio.  To put it another way, it settled Brown Benson’s and Slater Vecchio’s respective entitlements, as between one another. [19] The judge considered the dealings between the appellant and the respondent as part of the factual matrix of the settlement agreement.  She concluded this did not assist the appellant. [20] The judge then turned to the appellant’s assertion that the respondent is estopped from recovering the fee paid to the appellant.  In her view, it was more likely that estoppel would apply against the appellant than the respondent because the appellant had a duty to advise the respondent on the effect of the settlement agreement if that agreement is interpreted to deprive the respondent of his rights under the retainer agreement. [21] The appeal from the master was dismissed. Positions of the parties [22] The appellant contends that the judge erred in law in failing to give effect to the settlement agreement and in concluding that the retainer agreement was an entire contract.  It also asserts that the judge erred in law and in principle in concluding that the respondent was not estopped from recovering the fee paid to the appellant. [23] The respondent states that the issue is whether the judge erred by not interfering with the conclusions of the master.  He supports the judge’s analytical approach of dealing first with the retainer agreement as providing the necessary context to consider the effect of the settlement agreement. Discussion [24] As noted, the judge first considered (at para. 39) whether the retainer agreement was an entire contract.  In her view, it provided: the necessary context in which to consider what effect should be given to the Settlement Agreement, and whether the Master made any reversible error in that respect. [25] Although I see some danger of conflating the consideration of each agreement, in the circumstances of this case logically, the judge’s approach was sensible because if the retainer agreement was not an entire agreement, there would be no need to construe the settlement agreement.  Having concluded that the retainer agreement was an entire contract, the foundation for considering the effect of the settlement agreement was laid. [26] I intend to consider the settlement agreement first.  For this analysis, I shall assume that the retainer agreement was an entire contract as found by the judge. Settlement agreement [27] The issue is whether the retainer agreement is amended or supplanted by the settlement agreement.  That is, as the appellant frames the question, was the settlement agreement inconsistent with the obligation of the appellant to complete both actions before it had a right to the payment of its fee for the tort action? [28] Three issues arise: whether the judge erred in concluding that: 1.       the master did not err by focusing on the subjective intention of the parties; 2.       the master’s reasons are not inconsistent; 3.       there was no dispute between the appellant and the respondent; the settlement agreement only resolved the dispute between the respondent and Brown Benson. These issues are interrelated. [29] In para. 42 of his reasons, the master stated: On November 10, 2010, Slater Vecchio, Brown Benson and Mr. Cashman, through his counsel, Mr. Turriff, reached an agreement to resolve the Fee dispute (the “Settlement Agreement”). The Settlement Agreement provided that Cashman agreed to pay $71,800 plus taxes to Brown Benson in settlement of Brown Benson’s entitlement to a fee and a further $180,000 plus taxes to Slater Vecchio in settlement of Slater Vecchio’s entitlement to a fee for the tort action. Turriff confirmed this in an e-mail of the same date. [30] As I read her reasons, the judge accepted this paragraph as articulating the settlement that was reached, although she declined to read the statement “as a finding by the Master that a fee dispute existed between [the respondent] and [the appellant]” (at para. 24). [31] In para. 71 of his reasons, the master stated: As well, in my view, neither of the parties turned their minds to whether or not they were about to either make a new Agreement or amend the Agreement. Accordingly, in the absence of some evidence of actual intent to alter or amend the Agreement rather than by implication, I find neither occurred. [32] The first two issues noted above arise out of the judge’s consideration of paras. 42 and 71 of the master’s reasons.  The judge concluded that the master’s comments that the parties did not turn their minds to whether they were making a new agreement or amending the retainer agreement and that there was no “evidence of actual intent” was synonymous with “true intentions, considered objectively” (at para. 58).  She stated that the parties did not use the word “entitlement”, which the master used in para. 42, and that his conclusion in para. 71 that the settlement agreement did not alter or amend the retainer agreement was not inconsistent with his use of the word “entitlement” because the dispute was between the respondent and Brown Benson and not between the respondent and the appellant (at para. 61). [33] As noted previously, the judge stated at para. 62: The primary aim of the transaction that resulted in the Settlement Agreement was to settle [the respondent’s] dispute … concerning the fees to be paid to Brown Benson. I consider this comment to be pivotal to the judge’s conclusion that the master did not err.  In my view, the comment understates what occurred.  I begin with some preliminary observations. [34] In my view, the master’s comments in para. 71 do suggest that he focused on the subjective intent of the parties, but the more important issue is the need to examine the effect of the settlement agreement, if any, on the retainer agreement. [35] The respondent asserts that the question is whether the settlement agreement relieved the appellant from completing the Part 7 action, but that is not the appellant’s position and it is not the issue.  The question is, assuming that the retainer agreement was an entire contract, is the settlement agreement consistent with the implied term in the retainer agreement that the appellant was not entitled to payment of its fee for the tort action until the Part 7 action was complete?  To answer that question, it is necessary to look at the factual matrix of the settlement agreement and the words used by the parties. [36] Shortly after the tort action was settled, the appellant and Brown Benson had communications concerning the split of fees between the two firms. [37] On September 2, 2010, the appellant advised the respondent: We confirm [your] advice to us that you wish to challenge Brown Benson’s entitlement to its share of the fee.  We are not part of that dispute.  We propose that you, Slater Vecchio and Mr. Deering reach an agreement on the appropriate portion of the $330,000 fee that will be paid to Slater Vecchio so that we can render and pay our fee account.  The balance of the funds can be held in trust until the fee dispute between you and Mr. Deering/Brown Benson is resolved. [38] The respondent agreed with a 60/40 split in favour of the appellant.  He intended to reserve his right to tax the account of Brown Benson.  The appellant advised Brown Benson of this and asked the firm to agree to a 60/40 split “so we can render and pay our account.”  As requested by the respondent, Mr. Turriff was copied with the appellant’s letter. [39] On September 27, 2010, Mr. Turriff wrote to Brown Benson and sent a copy to the appellant.  Mr. Turriff urged the resolution of the split between the two firms stating that “[u]ntil the division is decided (or, I suppose otherwise determined), neither of you can bill [the respondent]”. [40] On November 4, 2010, Mr. Turriff wrote to both the appellant and Mr. Deering, who was the lawyer, formerly at Brown Benson, who had acted for the respondent.  He urged agreement on the split between the firms as a starting point because “[u]nless the split is agreed, neither [firm] can know what to bill [the respondent]”.  He continued: I suppose that [the appellant] could bill [the respondent] the whole contingency fee but if it did it couldn’t safely pay itself until it knew what fee [the respondent] would owe [Brown Benson]. [41] Mr. Turriff left a message with the appellant stating that he misunderstood the respondent’s instructions and that the respondent wanted the fee reduced from $333,333 to $250,000 with $50,000 going to Brown Benson and $200,000 to the appellant.  This was followed by an e-mail from Mr. Turriff to the appellant on November 8, 2010 in which he assured the firm that the respondent “wants you to receive your proper entitlement as soon as possible”. [42] As noted, on November 10, 2010, Mr. Turriff wrote confirming a settlement.  He stated: I confirm that [Brown Benson] offered to accept a fee of $71,800.00 and that [the respondent] has accepted that offer and that [the respondent] and [the appellant] have agreed that [the appellant’s] fee will be $180,000.00. HST on top. In another communication that day, Mr. Turriff advised the appellant that “[y]our entitlement is $180,000.00 plus HST of $21,600.00.” [43] On November 12, 2010, the appellant sent $90,747.08 “representing payment of the balance of settlement proceeds” to the respondent together with its account in accordance with the settlement agreement.  The account describes the fee as “[p]ayable to [the appellant]”.  These circumstances are consistent with the master’s finding in para. 42 of his reasons and with his use of the word “entitlement” in that paragraph. [44] The judge erred stating that “[t]he parties themselves did not use the word ‘entitlement’” (at para. 61).  Clearly, Mr. Turriff did so, as did the respondent.  He stated in cross-examination at the hearing before the master: Q         … What you had instructed Mr. Turriff to propose was 200,000 to Slater Vecchio and 50,000 to Brown Benson. A          Yeah, I think that’s right.  Yes. Q         And implicit in that was that would be a final deal, with no review of Brown Benson’s fee. A          Absolutely. Q         And you proposed that on the basis that that was in line with this discussion that you had with Mr. Slater in June, 2010. A          … I don’t know if I discussed or what I said to Mr. Slater in June, 2010, at that time.  It was in line with my belief that Mike was entitled to 60 percent of the full fee, which would be about 200 grand. [45] The respondent was well aware of the concept of “entire contract”.  He referred to it when rejecting the appellant’s refusal to continue with the Part 7 action.  Under cross-examination he stated: Q         And you argued cases that involved this entire contract principle? A          Yes. Q         In fact you said to Mr. Palm in direct that you discussed that concept with Mr. Turriff at times? A          Certainly. Q         And your view of the law was that it was perhaps unnecessarily strict that lawyers would not be entitled to any fee if they withdrew in breach of an entire contract. A.         Yes. Q         When you wrote the e-mail that Mr. Palm showed you, the cherry-picking e-mail, you referred to this entire whole contract principle; correct? A          I did. Q         You didn’t need to do any research before writing that e-mail. A          No. Q         Because you were aware of the general nature of this legal principle. A          I had been for years, yes. In the communications leading to the settlement agreement, there was no suggestion that the appellant was not entitled at that time to payment of its fee for the tort action.  In my view, it is clear on the evidence that the parties proceeded on the basis it was so entitled. [46] While there may not have been a dispute between the appellant and the respondent, it was in the individual best interests of the parties to resolve the tort fee issue.  Brown Benson wanted to be paid and wanted to avoid a further battle with the respondent at a taxation of its account.  It compromised its entitlement.  The appellant wanted to be paid and could not be paid until the issue between the respondent and Brown Benson was resolved.  It compromised its entitlement even to the extent of accepting less than the $200,000 proposed by the respondent.  The respondent wanted the balance of settlement money because he was leaving for Europe.  Although he wanted Brown Benson to get nothing, he agreed to a reduced fee payable to Brown Benson and gave up his right to tax the firm’s account. [47] In my view, it is clear that objectively the agreement was as stated by the master in para. 42 of his reasons.  It was an agreement to resolve the fee dispute; to have the two law firms paid on a basis acceptable to the respondent.  Whether the parties turned their minds to the effect of the agreement on the retainer agreement does not alter the fact that they agreed on a compromised payment of fees for the tort action.  That agreement was not consistent with any implied term in the contingency agreement that the appellant was not entitled to a fee for the tort action until it completed the Part 7 action.  There is nothing to that effect in the terms of the settlement agreement or in the course of dealings between the parties that led to it. Entire agreement [48] Having concluded that the retainer agreement was amended or supplanted by the settlement agreement, it is not necessary to determine whether the retainer agreement was an entire contract.  That said, I think it remains an open question as to whether the legal principles governing entire contracts apply to retainer agreements which cover multiple proceedings which individually can be concluded with the client succeeding or failing irrespective of the actual or potential results of other proceedings. [49] The judge did not address the law dealing with entire contracts.  In its factum, the appellant did so: A contract or obligation is said to be “entire” when complete performance is required before any duty to pay, usually a lump sum, arises. Where there is only partial performance under an “entire contract”, the court may not rewrite the parties’ bargain so as to provide for pro rata compensation.  As learned authors explain, the term “entire contract” is itself misleading: one contract may include several divisible obligations. Obligations are “divisible” where different parts of the consideration can be assigned to severable parts of the performance. The “entire obligation” principle is illustrated by the following classic examples.  “If a shoemaker agrees to make a pair of shoes he cannot deliver one to you and ask for half the price.”  Similarly, “if a man engages to carry a box of cigars from London to Birmingham, it is an entire contract, and he cannot throw the cigars out of the carriage half-way there, and ask for half the money”. Whether an obligation is entire or divisible is a matter of construction of the parties’ agreement in light of all of the circumstances.  If an obligation is divisible or severable, “there is an express or implied agreement that payment will be made in proportion to the extent of performance”. As a general matter, it is an implied term of a retainer agreement that the solicitor will bring the action to an end, whether by settlement or judgment.  A retainer to prosecute an action is considered an “entire contract” or “entire obligation” because the client gets no benefit until a judgment or settlement has been obtained.  “It follows that, unless the client agrees otherwise , the solicitor is not entitled to any fee … until he or she has completed the work” [emphasis added].  This implied term can be ousted by agreement. [Citations omitted.] I agree with these comments. [50] It is apparent that the foundation of the entire contract concept in the context of a retainer agreement is an implied term that the lawyer will be paid only at the end of the retainer.  Where the retainer involves a number of discrete proceedings, where there is a recovery in a proceeding the mischief addressed by the entire contract principle, the risk that the client will obtain no benefit from part performance of the retainer, does not apply.  There would appear to be no principled reason why the lawyer is not entitled to his agreed fee even in circumstances in which there may be additional work to be done on other proceedings. [51] In the present case, the master and the judge focused on language in the retainer agreement that was singular: “claim”, “case”, “amount”.  That language supports the contention that the retainer agreement was a single contract, but, in my view, arguably it was not.  Taking into account all of the circumstances, the retainer agreement certainly could be construed as a contract embracing discrete undertakings.  This is consistent with the substance of the agreement: the prosecution of two separate, legally diverse actions that provided separate, realizable benefits to the respondent.  In the case of the tort action, the benefit was realized completely by the respondent.  Arguably, the surrounding circumstances and the substance of the retainer agreement lead to a conclusion different from the language of the document.  The issue illustrates the need for greater care drafting retainer agreements. Estoppel [52] It is not necessary to address the estoppel issue and I decline to do so. Conclusion [53] I would allow this appeal, set aside the order of the Supreme Court, allow the appeal from the master’s order and set aside the Certificate of Fees entered July 18, 2012. [54] The appellant seeks an order requiring the master to issue a Certificate of Fees “in the amount of $251,800 (an amount that includes the Brown Benson fee)”.  The fee that was assessed was the appellant’s fee, which was $201,600.  It is that amount that was addressed in the Certificate of Fees. [55] I would order the Registrar to issue a Certificate of Fees in an amount to be agreed by the parties or as directed by this Court if the parties are unable to agree. “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Mr. Justice Tysoe” I agree: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: The Owners, Strata Plan BCS 3699 v. 299 Burrard Development Inc., 2014 BCCA 8 Date: 20140108 Docket: CA040082 Between: The Owners, Strata Plan BCS 3699 Respondents (Petitioner) And 299 Burrard Development Inc., 299 Burrard Residential Limited Partnership, 299 Burrard Hotel Limited Partnership, and 299 Burrard Management Ltd. Appellants (Respondents) Before: The Honourable Mr. Justice Low The Honourable Madam Justice D. Smith The Honourable Madam Justice Neilson Supplementary Reasons to The Owners, Strata Plan BCS 3699 v. 299 Burrard Development Inc. , 2013 BCCA 356. Counsel for the Appellants: S. Coblin Counsel for the Respondents: M. Tatchell Place and Date of Hearing: Vancouver, British Columbia March 21, 2013 Place and Date of Judgment: Vancouver, British Columbia July 29, 2013 Written Submissions received: October 31, November 15 and 22, 2013 Date of Supplementary Judgment: January 8, 2014 Supplementary Reasons of the Court Summary: The successful appellants are awarded costs below as well as costs of the appeal. While the Supreme Court judge adjourned the issue of costs pending further proceedings in that Court, the appellants expressly raised the issue of those costs on the appeal and, given their success, were entitled to recover them. Supplementary Reasons for Judgment of the Court: [1] This appeal arose from a dispute between the appellants, who are the developer and owner of a condominium complex, and the respondent strata corporation, which represents the owners of the residential units in the complex, over the allocation of shared expenses in the development. The respondent brought a petition seeking disclosure of documents from the appellants. A Supreme Court judge, sitting in chambers, granted an interim order for production of some of the documents pursuant to ss. 20 and 35 of the Strata Property Act , S.B.C. 1998, c. 43. She ordered that the question of costs be adjourned as the parties anticipated further proceedings with respect to the petition in that Court. [2] The appellants appealed the order, and on July 29, 2013 this Court allowed the appeal and ordered that the respondent’s petition be dismissed. We determined that the petition was misguided as the issue of shared costs was a contractual matter and ss. 20 and 35 of the Strata Property Act had no application: 2013 BCCA 356. The appellants now seek an order for the costs of both the appeal and the proceeding below. [3] The respondent agrees the appellants are entitled to costs of the appeal, but contends that this Court may not order recovery of the costs incurred in the Supreme Court when that Court has not dealt with costs in the first instance. As well, the respondent argues that, despite the appellants’ success in this Court, it was compelled to bring the petition because the appellants failed to honour their obligations to the strata owners under the Strata Property Act . It maintains this provides a basis on which to argue that it is entitled to costs in the Supreme Court, and says the chambers judge retains jurisdiction over this issue and it should be remitted to her. [4] In support of its first argument, the respondent cites Hill v. British Columbia (Minister of Forests) , 1999 BCCA 305, a case in which the appellants appealed the order of a Supreme Court judge that dissolved an ex parte interim injunction without addressing costs. This Court dismissed the appeal. Its decision was also silent as to costs. The respondent submitted a draft order that provided for recovery of the costs on appeal and below. This Court denied recovery of the costs incurred in the Supreme Court as the appellant had not made costs an issue on the appeal: [5]        … As to the costs in the court below, this appeal being dismissed, it is not for this Court to change the costs order in the court below unless that issue was made an issue in this Court which it was not. This is not a case where the order as to costs below automatically falls because the result in this Court is the setting aside of the order in the court below. [5] The respondent maintains this supports its position that the question of costs below should be left to the chambers judge. [6] We are unable to agree as there are important distinctions between this case and Hill . This is not a case in which the Supreme Court judge neglected to address costs; her order stipulated that the question of costs would be adjourned. The appellants then expressly raised liability for those costs in both their notice of appeal and in their factum. We have decided the Supreme Court proceeding was misguided, and it has been dismissed. In these circumstances, we are satisfied the appellants are entitled to recover the costs below as well as the costs of the appeal. [7] Nor do the respondent’s allegations of misconduct by the appellants under the Strata Property Act alter our view. While this Court may remit the issue of costs to the Supreme Court in appropriate cases, we are unable to agree that this is such a case. The respondent chose a course of action that was bound to fail, and the appellants are entitled to recover the costs they incurred in responding to it. [8] The appellants will accordingly recover their costs in the Supreme Court as well as their costs of the appeal. “The Honourable Mr. Justice Low” “The Honourable Madam Justice D. Smith” “The Honourable Madam Justice Neilson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Berry , 2014 BCCA 7 Date: 20140109 Docket: CA040682 Between: Regina Respondent And Chad Douglas Berry Appellant restriction on publication: a publication ban has been mandatorily imposed under s. 486.4 of the criminal code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness, referred to in this judgment by the initials l.b., c.d., a.t., and c.l.d. this publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Willcock The Honourable Mr. Justice Goepel On appeal from:  An order of the Supreme Court of British Columbia, dated November 20, 2012 ( R. v. Berry , Prince George Docket No. 31286-4). Counsel for the Appellant: D.M. Melville Counsel for the Respondent: S.J. Brown Place and Date of Hearing: Vancouver, British Columbia November 26, 2013 Place and Date of Judgment: Vancouver, British Columbia January 9, 2014 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Goepel Summary: The offender appealed an effective sentence of 14 years’ imprisonment for the commission, on one day, of multiple offences, including two aggravated assaults. He was sentenced to imprisonment of 6 years for each assault, to be served consecutively. The offender argued on appeal that those sentences should not be served consecutively, and that the global sentence imposed in relation to what he referred to as one criminal adventure was unduly long and offended the totality principle. Held: appeal allowed. The sentencing judge did not err in imposing 6-year sentences for the assaults, or in ordering that the sentences be served consecutively. However, in light of his age, the short sentences imposed for prior offences, and the remaining prospect of rehabilitation, the offender’s global sentence was unduly long. The sentence was disproportionate to sentences imposed in comparable cases.  The global sentence will be reduced from 14 years to 10 years, less time served in custody prior to sentencing. Reasons for Judgment of the Honourable Mr. Justice Willcock: Background Charges [1] This is an appeal from a sentence imposed by Mr. Justice Parrett on November 20, 2012. The offender pleaded guilty to the commission of the following offences on or about March 11, 2010 in Prince George, British Columbia: a)       aggravated assault of L.B., contrary to s. 268(2) of the Criminal Code ; b)       unlawful confinement of C.D., contrary to s. 279(2) of the Criminal Code ; c)       aggravated assault of C.D., contrary to s. 268(2) of the Criminal Code ; d)       uttering a threat to cause death or bodily harm to L.B., contrary to s. 264.1(1)(a) of the Criminal Code ; e)       uttering a threat to cause death or bodily harm to Mario Jorge Marques, contrary to s. 264.1(1)(a) of the Criminal Code ; f)        breaking and entering the residence of A.T. and committing an indictable offence therein, contrary to s. 348(1)(b) of the Criminal Code ; g)       committing theft of a motor vehicle, the property of Dale Girouard, with a value in excess of $5,000, contrary to s. 334(a) of the Criminal Code ; h)       committing theft of a camper, the property of Dave Kelley, with a value in excess of $5,000, contrary to s. 334(b) of the Criminal Code ; and i)        committing mischief in relation to property the value of which did not exceed $5,000, by willfully damaging or destroying a motor vehicle, the property of Dale Girouard, contrary to s. 430(4) of the Criminal Code . Circumstances of the Offence [2] The first four offences, the aggravated assaults of L.B. and C.D., the confinement of C.D., and the threatening of L.B. all occurred in a residence on Oak Street in the City of Prince George on March 11, 2010. Following the commission of those offences, the offender escaped and hid until the departure of the police and then broke and entered another residence, the home of A.T. Here, he uttered threats and stole the vehicle and property of the homeowner. [3] The particulars of the circumstances of the offences described at the sentencing hearing were as follows. [4] In the early morning hours of March 11, 2010, the offender kicked and banged on the door of a residence in Prince George occupied by L.B. and C.D., who were known to him. C.D. opened the door and the offender entered the premises and went into the room occupied by L.B. who was asleep in bed. When she refused to have sex with him he struck her, hit her in the head, broke her cell phone, and smashed her computer. C.D. heard the noise and came into the bedroom. The offender took her phone, put her in a headlock, punched her, and pushed her onto the floor. He then put on gloves, threatened to murder the women, and began to attack them. He punched and struck each of the women. He also hit each of them multiple times with a sharp object, stabbing L.B. in the upper right arm, the right cheek, the upper left arm, and the left temple. C.D. was stabbed in the forearm, the left rear shoulder, and in the right upper breast. Both women were left with bruises from blows that were inflicted upon them; both were left with scars that remained visible at the time of sentencing, three years after the assault. The assaults left both victims traumatized and L.B. was left with a residual shoulder injury, in addition to her scars, and continued to suffer emotional problems at the time of sentencing. [5] Eventually L.B. and C.D. were able to escape the offender’s attack and he fled the premises. After hiding from the police for some time, he entered a basement suite about a mile away. Upon encountering the tenants there, C.L.D. and Mario Jorge Marques, he claimed to have killed the victims of the first assault. He took property from the residence and stole a vehicle. Before leaving, he had threatened to take C.L.D. with him but he left her behind. The offender told Mr. Marques that if he said anything to anybody he would come back into town and kill him. Circumstances of the Offender Criminal Record [6] The offender was born on September 17, 1983 and was 26 at the time of the offence and 29 on the date of his sentencing. He had fallen in with a negative peer group in high school and rapidly developed a pattern of drug abuse and addiction. Notwithstanding that, he has at times been a contributing member to society. He has occasionally been employed as a pipefitter and in construction and has completed a pre-apprenticeship program as a millwright/machinist. [7] At the time of the offence, the offender had a criminal record; the record included multiple convictions dating back to his youth. [8] In August 1999, he was convicted of an assault, committed as a youth, and was sentenced to community service work. [9] In December 2003 and May 2004, he was convicted of three offences that had occurred in June and July of 2003: possession of a controlled substance, uttering threats to cause death or bodily harm, and driving while his licence was prohibited or suspended. He was sentenced to a conditional discharge and a fine. [10] In August 2005, he was again convicted of driving while prohibited; his licence was suspended and he was fined again. [11] In May 2007, he was found guilty and sentenced for five offences that had occurred in August 2005, February 2006, and August 2006. The offences were: being unlawfully in a dwelling house, assault, carrying a weapon or prohibited device, possession for the purpose of trafficking, and failure to appear pursuant to a court order. In relation to all of these offences he was sentenced to 124 days in custody, and four additional jail sentences ranging from 30 to 90 days. [12] The Crown described the circumstances of the most significant of these offences, that which occurred in August 2005. The offender, together with another man, Jordan Corrigal, was said to have entered the residence of the victim of the crime through an open door. Once in the residence, the offender and Mr. Corrigal entered the bathroom while the victim was having a shower, and assaulted him. The victim was knocked down and kicked in the head by the offender and Mr. Corrigal. When a neighbour entered the apartment, they fought with him and fled, chased by the neighbour. The victim suffered a bloody nose, bruising, and tread marks to his face. [13] On July 4, 2007, the offender was found guilty and sentenced for five offences committed between February 10, 2006 and June 4, 2006 including: uttering threats on three occasions, the breach of an undertaking or recognizance, and possession of stolen property with a value over $5,000. In relation to these offences he was sentenced to six months in jail. [14] At the time of his sentencing, the offender also faced several charges arising out of an assault said to have been committed in Port Coquitlam in August 2009, at a time when he was in the Lower Mainland for addiction treatment. [15] The longest sentence he received, after pre-sentence custody, before the sentencing in this case, was six months. Drug Addiction and Rehabilitation [16] The offender had informed his probation supervisor that he had a very severe crystal methamphetamine addiction. The sentencing judge was advised that he had made a number of unsuccessful attempts to address his addiction through treatment programs. [17] The offender had attended a drug treatment facility for several months in 2009, in the Lower Mainland. He returned to Prince George in November 2009, for the funeral of a close friend. The offender is said to have received a phone call threatening him in relation to drug debts. The offender says that anxiety and the death of his friend led him to drink and to fall into very heavy use of crystal methamphetamine. He was impaired at the time of the offences. [18] The offender’s family was encouraging him to attend a treatment facility before the March 11, 2010 crimes. Defence counsel advised the sentencing judge that, had these offences not occurred, the offender’s father had planned to take him to a treatment facility on Monday, March 15, 2010. Mental Illness [19] The offender had been counselled to seek mental health assistance prior to the commission of the offences in question. [20] The offender had told his probation officer that he had homicidal dreams and that he experienced pleasure when violence, he felt was deserved, was inflicted upon others; following these admissions he was referred for a forensic assessment in Prince George in July 2008. The resulting report was before the sentencing judge. It recorded the offender’s expressed desire to engage mental health services to assist with his addiction issues. Dr. Unger, the report’s author, recommended that the offender seek counselling to address his drug and alcohol addictions, and especially urged treatment to address a borderline personality disorder. It was then thought such counselling could be provided to the offender in Hazelton, British Columbia. [21] Crown counsel was not able to express an opinion, for the benefit of the sentencing judge, with respect to whether any effective treatment might be provided to a person with a borderline personality disorder. Remorse and Appreciation of the Gravity of the Offence [22] The offender refused to submit to a psychiatric examination before sentencing. He had made callous remarks both at the time of the offence and subsequently, demonstrating the need for the mental health treatment described by Dr. Unger. [23] His defence counsel notes, however, that he did not bring a weapon with him to the scene of the crime and the criminal event appears not to have been premeditated. [24] He is said, by his counsel, to have suffered remorse and to understand the pain inflicted upon his victims. [25] Counsel advised the court that the offender did not have violent thoughts or intentions when sober and not abusing drugs. Family Support [26] The offender was reported to have the support of a loving family; his family was present in court and willing to help him with his reintegration into society. While they are supportive, his family refuse to live with him due to the emotional toll of his behaviour. At a bail hearing in 2010, the offender’s father offered to serve as his surety and advised the court he had arranged for him to attend a treatment center and would see to his attendance. [27] The offender had taken a substance abuse management program and a violence prevention program while in remand. While those were considered by counsel and the offender to be inadequate, they were said to be the best courses available in remand. He had also been attending AA meetings. [28] The offender is the father of two children; the mother of his children was supportive of rehabilitation and hoped to have the offender involved in the children’s lives. Sentence Imposed [29] The charged offences carry maximum penalties: aggravated assault, 14 years’ imprisonment; breaking and entry of a dwelling house and commission of an indictable offence therein, life imprisonment; unlawful confinement, 10 years’ imprisonment; uttering threats of death or bodily harm, 5 years’ imprisonment; and theft and mischief, 2 years’ imprisonment. [30] The following sentences were imposed: a)       In relation to the aggravated assault charges, the offender was sentenced to two terms of imprisonment of six years to be served consecutively; b)       In relation to the charge of uttering a threat to L.B., the offender was sentenced to a term of imprisonment of one year to be served concurrently with the sentence for the aggravated assault of L.B.; c)       In relation to the unlawful confinement of C.D., the offender was sentenced to a term of imprisonment of one year to be served concurrently to the six-year aggravated assault sentence in relation to the offence against C.D.; d)       In relation to the charge of uttering a threat to Mr. Marques, the offender was sentenced to a term of imprisonment of one year to be served consecutively to the two, six-year aggravated assault sentences; e)       In relation to the charge of breaking and entering and committing an indictable offence, the offender was sentenced to a term of imprisonment for one year to be served consecutively to the sentences for aggravated assault and the sentence for uttering threats to Mr. Marques; and f)        In relation to the charges relating to the theft of the truck, the theft of the camper, and mischief, the offender was sentenced to a term of imprisonment of six months on each count, to be served concurrently to each other and also to all other sentences. [31] The offender received one-for-one credit against the effective sentence of 14 years for the two years, eight months, and eight days spent in custody to the time of sentencing. The actual sentence imposed was 11 years, 3 months, and 22 days in custody. Grounds of Appeal Consecutive Sentences [32] Counsel for the offender and Crown counsel did not disagree as to the range of appropriate sentences for individual offences when the matter came on for sentencing, but disagreed as to whether the sentences ought to be consecutive or concurrent. The offender says the sentencing judge erred in principle in the circumstances of this case by imposing consecutive sentences for offences that ought properly to have been considered a single criminal episode. The sentences imposed are said to have been at the high end of the appropriate range; to impose such sentences consecutively results in a sentence that is inappropriately long and that offends the totality principle. [33] The offender acknowledges the sentencing judge could appropriately consider the fact there were multiple victims of his crimes, but says that where the nexus between the crimes is such that they form part of a single criminal adventure, particular attention should be paid to whether the cumulative sentence is appropriate. The cases relied upon by the Crown and referred to by the sentencing judge were said to involve multiple offences over several years. The offender says the sentencing judge ought not to have relied on those cases without close analysis of the period over which the offences were committed. The offender says the sentences for the aggravated assaults ought to have been imposed concurrently Totality Principle [34] The offender argues the total sentence imposed is demonstrably unfit and offends the totality principle. [35] The offender says he has not previously been sentenced to lengthy terms of imprisonment. This crime was not part of a long history of criminal activity. He says he travelled to Prince George to enter into therapy but had to attend the funeral of a friend and thereafter fell into his habit of drug abuse and, ultimately, crime. [36] Counsel for the offender says the sentencing judge fell into error by overemphasizing denunciation and deterrence, apparently without addressing the prospect of the offender’s rehabilitation. The offender had not committed offences in the three years prior to the offence in question, he was considering drug rehabilitation; at the time of the offences he might not have been fully committed to criminal life. His parents were encouraging him and he had some prospect of gainful employment at the time he committed the offences. The offender is still a young man and counsel says there was no reason for the sentencing judge to discount any prospect of rehabilitation. The court in every case should consider the prospect of rehabilitation. Adverse Inference [37] Lastly, the offender says the sentencing judge erred in drawing an adverse inference against the offender because of his failure to participate in psychological and risk assessment reports before sentencing. The offender says a person may wish to oppose such a report for many reasons, including the likelihood of delay of sentencing, and further, simply opposing an application cannot be considered to be an aggravating factor. Drawing an adverse inference would be contrary to the principle that the Crown must prove all aggravating factors beyond a reasonable doubt and contrary to the right to silence guaranteed by s. 7 of the Charter. Position of the Crown Consecutive Sentences [38] The Crown says an appellate court should be slow to interfere with the sentence imposed by a judge with firsthand knowledge of the offence and the offender. There is no error in principle in this case. It is within the discretion of the sentencing judge to treat assaults upon distinct victims as separate crimes and to impose consecutive sentences. A concurrent sentence would not reflect the offender’s moral culpability in this case in relation to each of the assaults. [39] The Crown relies upon R. v. Li, 2009 BCCA 340, as authority for the proposition that distinct offences committed in overlapping circumstances may still result in consecutive sentences; crimes committed in these circumstances may have both separate and individual impacts. It was open to the sentencing judge to see separate assaults as separate incidents in this case. The offender must be sentenced in a way that addresses his moral culpability: R. v. Maliki , 2005 BCCA 495. Totality Principle [40] The Crown says the offender does not provide the court with comparable cases demonstrating that the global sentence imposed in this case was unfit. That is so particularly in light of the following aggravating factors: a)       the offence occurred in the early hours of the morning; b)       it involved entry into a home and an assault upon a sleeping victim; c)       the victim was threatened while a family and children were upstairs in the house; d)       upon being discovered, rather than fleeing the scene, the offender threatened and assaulted the intervening witness; e)       each assault was very violent; f)        before the second assault escalated the offender put on gloves to intimidate and terrorize the second victim; g)       the offender broke and entered the second home and, there, threatened to kill the occupants; and h)       the offender has previous convictions for being unlawfully in a dwelling house and assault. He had also previously been convicted of uttering threats. [41] The Crown says the sentencing judge was aware of the offender’s attempts to rehabilitate himself but was concerned with respect to the extent of the offender’s violent conduct and the fact that his underlying condition could not be assessed or explained. The risk assessment in this case justified a lengthy sentence. There was no basis for attributing the offender’s violence to a condition amenable to treatment. Based on his prior history and the absence of evidence called on his behalf, the sentencing judge could only conclude that there was no good prospect of rehabilitation. The sentencing judge ought to have been concerned about the forensic report tendered in evidence on sentencing which referred to: a)       the offender’s homicidal thoughts; b)       concerns with respect to his mental health; c)       a long history of antisocial behaviour; and d)       the offender’s pride in his past acts of aggression. [42] All of this is said to support the conclusion that the offender is a risk to the community. There is an absence of evidence to dispel the conclusion that must be drawn from his material. The Crown says there should be no objection to the length of the sentence in this case. [43] In support of the sentence imposed, the Crown refers to cases involving violent home invasions resulting in 8 to 10 year sentences. [44] The Crown says the sentencing judge properly referred to the objectives of sentencing described in the Criminal Code and that he cannot be said to have given inappropriate weight to the principle of denunciation, or failed to properly consider the principles that govern whether sentences should be consecutive or concurrent in relation to the type of crime spree described in the evidence. Adverse Inference [45] The Crown says the sentencing judge expressly said he would not read anything into the offender’s refusal to agree to a risk assessment, but noted that the refusal left concerns unresolved. The concern expressed by the sentencing judge was whether the cause of the offence was alcohol and drug use or an underlying condition. The Crown says it was appropriate in the circumstances for the sentencing judge to seek further information and, when it was not provided, to note that he could only rely upon statements to the probation officer, the report from adult forensics recommending treatment, and the offender’s conduct, in assessing his risk. The Crown says the sentencing judge did not treat the refusal to agree to a pre-sentence report or psychological assessment as an aggravating factor on sentencing and simply noted that in the absence of such a report inferences would have to be drawn from the evidence with respect to the risk the offender would reoffend violently. Discussion Standard of Review [46] Because this Court is frequently called upon to consider the fitness of sentences, the law in this area is well-settled and often restated. In R. v. Potts , 2011 BCCA 9, this Court addressed the standard of review both in relation to the fitness of the sentence and whether sentences imposed should be served consecutively or concurrently. The standard of review generally was described as follows: [17] The standard of review on a sentencing appeal is a deferential one. The sentencing judge enjoys considerable discretion because of the individualized nature of the process: R. v. L.M ., 2008 SCC 31, [2008] 2 S.C.R. 163 at paras. 14, 17. “[In] the absence of an error in principle, failure to consider a relevant factor, or overemphasis of the appropriate factors, a sentence should only be overturned if the sentence is demonstrably unfit”: R. v. McDonnell, [1997] 1 S.C.R. 948, 114 C.C.C. (3d) 436 at para. 17; R. v. Li , 2009 BCCA 85 at para. 23. [47] The principal issues in this case, proportionality, the “totality principle” and the effect of consecutive sentences were recently revisited in R. v. Radjenovic, 2013 BCCA 522, where Mr. Justice Hall for the Court held: [10]      …Extensive reference was made by counsel for the appellant to the well-known case of R. v. C.A.M ., [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327, which could be described as something of a “bible” in the law relating to sentencing.  This was a case in which a Provincial Court judge in this province had imposed a cumulative sentence of 25 years on a 55-year-old offender guilty of a particularly egregious series of offences “arising from a largely uncontested pattern of sexual, physical and emotional abuse inflicted upon his children over a number of years” (at para. 1).  This Court, by a majority, reduced the sentences to a total of 18 years and 8 months ((1994), 28 C.R. (4th) 106, 40 B.C.A.C. 7).  The Supreme Court of Canada restored the original sentence. [11]      In citing this case, counsel referred particularly to the importance of the principle of proportionality enunciated by the Supreme Court of Canada.  In C.A.M ., Lamer C.J.C. said this: 40  … […] It is a well-established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender . As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act , [1985] 2 S.C.R. 486, at p. 533: It is basic to any theory of punishment that the sentence imposed bears some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence.  Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system. 42  In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the “totality principle”. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D. A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”. [Emphasis of Hall J.A.] [12]      Proportionality was said to express itself particularly through the “totality principle”, a principle which requires a sentencing judge (or judges) who orders consecutive sentences to ensure that the total sentence imposed “does not exceed the overall culpability of the offender” [48] In relation to the question whether sentences should be concurrent or consecutive, this Court in R. v. Potts held: [88]      The test for imposing concurrent sentences is “whether the acts constituting the offence were part of a linked series of acts within a single endeavour”: R. v. Li , 2009 BCCA 85 at para. 42.  It is important to repeat, however, that the decision of whether to impose consecutive or concurrent sentences is a matter of discretion for the sentencing judge: [ R. v. ] McDonnell , [[1997] 1 S.C.R. 948] at para. 46: [46]  ... the decision to order concurrent or consecutive sentences should be treated with the same deference owed by appellate courts to sentencing judges concerning the length of sentences ordered. The rationale for deference with respect to the length of sentence, clearly stated in both Shropshire [ R. v. Shropshire , [1995] 4 S.C.R. 227] and M. (C.A.) , applies equally to the decision to order concurrent or consecutive sentences. In both setting duration and the type of sentence, the sentencing judge exercises his or her discretion based on his or her first-hand knowledge of the case; it is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factors or imposed a sentence which, considered in its entirety, is demonstrably unfit. The Court of Appeal in the present case failed to raise a legitimate reason to alter the order of concurrent sentences made by the sentencing judge; the court simply disagreed with the result of the sentencing judge’s exercise of discretion, which is insufficient to interfere. [89]      Courts have considered the following non-exhaustive list of factors in determining whether to impose concurrent or consecutive sentences:  the nature and quality of the criminal acts; the temporal and special dimensions of the offences; the nature of the harm caused to the community or to victims; the manner in which the criminal acts were perpetrated; and the offenders’ role in the crimes. [49] There is therefore considerable deference owed to sentencing judges both in relation to the fixing of sentences and in relation to determining whether the sentences should be served concurrently or consecutively. These decisions should be left to the good sense of the sentencing judges. It is essential, however, for this Court to play a supervisory role in ensuring that the sentence is in keeping with the offender’s record and future prospects. Adverse Inference [50] Before addressing the imposition of concurrent sentences and the total sentence imposed in this case, we must consider whether the sentencing judge erred in drawing an adverse inference that might have had an impact upon sentencing. The inference in question is said to be drawn in paras. 48 and 49 of the reasons for judgment, where the sentencing judge held: [48]      The aggravating factors in the present case include: 3.      By refusing to cooperate with a psychological assessment or a risk assessment, the court is left with a very incomplete picture of the accused’s psychological makeup. I am well aware that he has the right to maintain his right to silence. The court, however, is entitled to draw the logical inference that a person who would commit these offences is a danger to the community and each person in it, and in particular any members of that community who cross his path or make his acquaintance. [49]      I specifically draw that inference in the present case: firstly, from the overall material before me; and secondly, from the absence of any complete psychological assessment which could dispel those concerns. [51] In my view, the quoted passage demonstrates the very limited nature of the inference drawn by the sentencing judge as a result of the offender’s failure to engage in a psychological risk assessment. The inference appears to have been nothing more than recognition that the offender did not seek to challenge whatever picture of his psychological makeup emerged from the evidence before the court. Such conclusions can fairly be drawn without imperiling the right of an accused not to call evidence: R. v. Jolivet , 2000 SCC 29 at paras. 26-28. [52] No inappropriate burden was being placed upon the offender. The Crown was, properly, obliged to bear the onus of establishing the facts upon which it relied seeking the sentence urged upon the sentencing judge. The sentencing judge did have the 2008 report from the Forensic Psychiatric Services Commission from which he could draw the conclusion that the offender posed a danger to the community. That conclusion was properly drawn from evidence adduced by the Crown. Similarly, the evidence of the offender’s long history of antisocial behaviour and addiction issues was also before the sentencing judge. I would not accede to the offenders’ argument in relation to the inference. Consecutive Sentences [53] This Court has held that consecutive sentences are appropriate not only in relation to wholly unconnected incidents but also in circumstances where the offences are committed against multiple victims in close proximity: R. v. R.J.G ., 2007 BCCA 631; R. v. Abrosimo , 2007 BCCA 406; R. v. Maliki , 2005 BCCA 495; R. v. G.P.W . (1998), 106 B.C.A.C. 239. [54] In my view, the sentencing judge in this case properly considered the authorities. Having done so it was within his discretion to impose consecutive sentences in relation to the aggravated assaults and the subsequent offences. I would not interfere with his sentence in this regard. Totality Principle [55] When consecutive sentences are imposed, the final duty of the sentencing judge is to make sure that the totality of the consecutive sentences is not excessive. As this Court stated in R. v. Abrosimo and again, recently, in R. v. K.V.E., 2013 BCCA 521, the most significant issue before this Court on sentencing appeals is not whether sentences imposed should have been consecutive or concurrent, but whether the global sentence is unreasonable or unfairly reflects the moral culpability of the offender. That requires us to consider whether the total sentence is in keeping with the offender’s record and future prospects. In the case at bar, the offender argues that the sentence of 12 years for the two assaults offends the totality principle. [56] Lamer C.J.C. noted in R. v. C.A.M. : [T]he totality principle … requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. [57] While consideration of that principle is often urged upon the court with a view toward reducing the global sentence, the fitness analysis occasionally results in imposition of a longer sentence on appeal, as in R. v. K.V.E. , where Madam Justice Stromberg-Stein, for the Court, held that an appeal should be allowed and a global sentence increased from 5 to 10 years’ imprisonment. The Court in that case described the importance of proportionality in the following terms: [36] A fundamental principle of sentencing is proportionality; that is, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This must be balanced with the principle of parity, which requires a court to impose a similar sentence for a similar offence committed by a similar offender in similar circumstances. [58] In my view, the effective sentence of 14 years imposed in this case was disproportionate to the gravity of the offence and the degree of responsibility of the offender. It is unduly long in relation to sentences for similar offences committed by similar offenders in similar circumstances; further, the sentence gives little weight to the prospect of rehabilitation. [59] The parties have referred the Court to jurisprudence that establishes a range of sentences for aggravated assault. In R. v. Kim, 2010 BCCA 590, the range of sentences for unprovoked aggravated assault is said to range from 16 months to six years. Notwithstanding that range, numerous cases were provided to the Court, and referred to in R. v. Kim , where sentences in excess of six years were imposed. Those included: R. v. Payne, 2007 BCCA 541 (10 years); R. v. Wallin, 2003 BCSC 809 (9 years); R. v. Armstrong , 2003 BCSC 1057 (8 years); and R. v. Hiscock , 2002 BCSC 1772 (8 years). A sentence of seven years in R. v. Kim was not demonstrably unfit. [60] In R. v. Payne , this Court considered an appeal from a 10-year sentence arising out of a violent and premeditated aggravated assault. In doing so it reviewed numerous cases including, once again, R. v. Armstrong , where a 31-year-old offender was sentenced to eight years for each of two aggravated assaults, to be served concurrently. [61] In R. v. Willier , 2005 BCCA 404, the offender received a total sentence of five and one-half years for the aggravated assault of his ex-wife and some of her family members when he burst into her house and stabbed two people. The facts in that case were described as follows: [5]        The charges arose out of an incident that occurred at the residence of the appellant’s ex-wife, Christa Willier, in the early morning hours of 13 September 2003.  Ms. Willier, Mr. Mathers, and Ms. Mackeen, who had been out for the evening, were socializing in the living room of Ms. Willier’s apartment when, at approximately 1:00 a.m., the appellant burst into the apartment uninvited and unannounced.  He had forced his way past Mr. Wiebe, his ex-wife’s uncle, to gain entry to the building.  He was armed with a knife, which he removed from his sock or his boot after he entered.  He was under the influence of alcohol and cocaine.  Ms. Mackeen arose and attempted to greet him but he threw her out of his way and against a wall.  He went directly to Mr. Mathers and stabbed him in the abdomen.  Leaving the knife embedded to the hilt in Mr. Mathers’ abdomen, he went after Ms. Willier.  He caught her in the kitchen, where he repeatedly slammed her head against his knee and, with a second knife that he apparently obtained from the kitchen; he cut her on the neck.  He returned and found Mr. Mathers, who was attempting to escape, in the bedroom.  He slashed Mr. Mathers across the face with the second knife, cutting him.  Then, he left the apartment.  Still holding the knife as he was leaving the building, he encountered Mr. Wiebe, who was engaged in telephoning for help.  The appellant told Mr. Wiebe that he would kill him if he should “rat on him”. [62] The offender in that case had a lengthy criminal record and the sentencing judge noted that the offender was likely high on drugs or alcohol at the time of the incident. The sentence took into account the offender’s Aboriginal background. The court referred to R. v. Johnson (1998), 131 C.C.C. (3d) 274 (B.C.C.A.), where it was said that the range of sentences for similar offences was 16 months to 6 years, and R. v. Biln , 1999 BCCA 369, where this Court noted that the sentence range for similar offences is imprisonment for two years less a day to six years, depending on the degree of violence and provocation. [63] In my view, it is important to note that some of the cases at the high end of the range, like R. v. Armstrong and R. v. Willier , are cases where the offender has assaulted more than one person. In R. v. Willier , there was an assault upon a primary victim and related assault upon a witness in circumstances similar to the case at bar. Similarly, in R. v. Armstrong , the offender assaulted the principal victim, a bail officer and then the second person who tried to intervene. The global sentence in R. v. Armstrong was eight years, and in R. v. Willier , five and one-half years. Comparatively, a global sentence of 14 years (12 years for the assaults) in this case is unduly long. [64] I agree with the argument advanced by the offender in this case that an unfit sentence resulted when the learned sentencing judge imposed two sentences of imprisonment, each at the high end of the range, to be served consecutively. In my opinion each of the consecutive sentences may be fit but the cumulative sentence nevertheless exceeds the overall culpability of the offender. [65] Additionally, some evidence was led at sentencing of the offender’s attempts at rehabilitation and his family’s encouragement of those efforts. Those efforts included attendance at AA meetings in remand, attendance at various treatment facilities in the past, and a plan for rehabilitation interrupted by the crimes that placed him before the sentencing judge. In his reasons for judgment, the sentencing judge discussed the offender’s anxiety and substance abuse and noted that the offender, with help from his supportive family, was seeking help. In my respectful view, however, these factors do not appear to have been adequately taken into account in considering whether the global sentence was unduly harsh. [66] In my view, a fit global sentence in this case would be a term of imprisonment of 10 years less time served in custody prior to sentencing; this would result in an actual sentence of 7 years, 3 months, and 22 days in custody. Where it is found that the total sentence offends the totality principle, the reduction in the total sentence can be allocated proportionally to each offence. I would allow the appeal, set aside the sentence and substitute for the sentences imposed by the sentencing judge the following sentences in relation to the specified charges: a)       aggravated assault of L.B. contrary to s. 268(2) of the Criminal Code : four years’ imprisonment; b)       uttering a threat to cause death or bodily harm to L.B. contrary to s. 264.1(1)(a) of the Criminal Code : one year imprisonment, concurrent to the sentence for the aggravated assault of L.B.; c)       aggravated assault of C.D. contrary to s. 268(2) of the Criminal Code : four years’ imprisonment, consecutive to the sentence for the aggravated assault of L.B.; d)       unlawful confinement of C.D. contrary to s. 279(2) of the Criminal Code : one year imprisonment, concurrent to the sentence for the aggravated assault of C.D.; e)       uttering a threat to cause death or bodily harm to Mario Jorge Marques contrary to s. 264.1(1)(a) of the Criminal Code : one year imprisonment, consecutive to both sentences for aggravated assault; f)        breaking and entering the residence of A.T. and committing an indictable offence therein contrary to s. 348(1)(b) of the Criminal Code : one year imprisonment, consecutive to the sentences for aggravated assault and uttering a threat; g)       theft of a motor vehicle, the property of Dale Girouard, with a value in excess of $5,000, contrary to s. 334(a) of the Criminal Code ; theft of a camper, the property of Dave Kelley, with a value in excess of $5,000 contrary to s. 334(b) of the Criminal Code ; and mischief in relation to property the value of which did not exceed $5,000, by willfully damaging or destroying a motor vehicle, the property of Dale Girouard, contrary to s. 430(4) of the Criminal Code : imprisonment of six months on each count to be served concurrently to each other and also to all other sentences. “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Tan , 2014 BCCA 9 Date: 20140110 Docket: CA039392 Between: Regina Respondent And Kien Beng Tan Appellant Restriction on Publication: There is a ban on publication under s. 486.5(2) of the Criminal Code , which prohibits the publication, broadcast or transmission of any information that could identify the undercover officers in this case. Before: The Honourable Mr. Justice Hall The Honourable Madam Justice Bennett The Honourable Madam Justice MacKenzie On appeal from: Supreme Court of British Columbia, dated February 11, 2011, ( R. v. Tan , 2011 BCSC 335, Vancouver Docket 24821). Counsel for the Appellant Kien Beng Tan: H. Patey Counsel for the Respondent: M.J. Brundrett Place and Date of Hearing: Vancouver, British Columbia June 19, 2013 Place and Date of Judgment: Vancouver, British Columbia January 10, 2014 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Mr. Justice Hall The Honourable Madam Justice MacKenzie Summary: The appellant was convicted of second-degree murder by a judge alone. His appeal focussed on three issues: (1) whether the RCMP breached the Charter in the process of collecting evidence abroad, (2) whether the statements he made to an undercover police officer posing as his cell mate were admissible, and (3) whether the confession he made during a police interrogation was voluntary. Held: appeal dismissed; conviction upheld. Subject to two exceptions and the overriding requirement of trial fairness, the Charter does not apply to Canadian officers acting in a foreign jurisdiction. In this case, there was insufficient evidence to establish that Malaysia had provided positive consent to the application of the Canadian Charter to an investigation on their soil. Therefore the Charter did not apply. The trial judge properly admitted the appellant’s statements to the undercover officer and his confession. The appellant spoke freely to the undercover officer and there was no evidence of oppression or trickery that would shock the conscience of Canadians. Reasons for Judgment of the Honourable Madam Justice Bennett: I. Introduction [1] The appellant, Kien Beng Tan, appeals his conviction for the second-degree murder of Sonny Le. On February 11, 2011, Mr. Tan was convicted following a judge alone trial. [2] Mr. Tan challenges a number of rulings decided in two voir dires made by the trial judge, all of which concern the evidence gathered by police throughout the investigation, and at times went beyond the borders of Canada. Mr. Tan argues that the actions of the police within Canada and beyond demonstrate a pattern of conduct that violated his rights under the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “ Charter ”). He asks that his conviction be set aside and that a new trial be ordered. [3] The trial judge’s rulings are indexed at 2010 BCSC 1948 ( Voir Dires Nos. 1, 2 and 4) and 2011 BCSC 334 ( Voir Dire No. 3). [4] This appeal raises complex issues regarding the application of the Charter beyond Canada’s borders. It raises the issue of the admissibility of evidence spoken in Cantonese and gathered by an officer posing as a cell plant. Finally, it raises the issue of the voluntariness of a confession made during a police interrogation. [5] I have concluded that the trial judge made no error in his rulings on the voir dires . I would dismiss the appeal. II. Background [6] Sonny Le was the proprietor of Lee’s Jewellers and Loans , a pawn shop in Richmond, British Columbia. On May 7, 2004, his body was discovered in his store – stabbed three times in his chest. The stab wounds were concentrated in a small group in and around his heart. [7] The police discovered a latent thumb print and palm print from the glass display case next to Mr. Le’s body. The two prints were later identified as belonging to the appellant, Kien Beng Tan. Mr. Tan was a customer and had frequented the store several times before the death of Mr. Le. The police also discovered five pawn receipts that were in Mr. Tan’s name, including one dated May 5, 2004, the day that Mr. Le was killed. [8] Following the death of Mr. Le, Mr. Tan travelled to Malaysia. In 2006, two RCMP officers travelled to Malaysia. They contacted Malaysian authorities to seek permission to interview Mr. Tan. The Malaysian law enforcement authorities, the Royal Malaysian Police (“RMP”), contacted Mr. Tan, asking him whether he would submit to RCMP questioning. He agreed. Mr. Tan was interviewed by the RCMP in a hotel in Penang. A member of the RMP translated. Mr. Tan agreed to provide the RCMP with fingerprints, and did so without the physical guidance of the officers. [9] The fingerprints taken in Malaysia matched those taken at the crime scene. Back in Canada, however, Crown counsel was of the opinion that, under the prevailing law of the day ( R. v. Cook , [1998] 2 S.C.R. 597), the conduct of the RCMP would not pass Charter scrutiny. At trial, Crown counsel did not tender any evidence (statements or fingerprints) obtained by Canadian police in Malaysia. Mr. Tan would subsequently provide further sets of fingerprints in the course of the investigation. [10] Sometime after the interview, the RCMP learned that Mr. Tan was in custody in Belgium on unrelated charges. Pursuant to an international legal assistance request, the Belgian police forwarded Mr. Tan’s finger and palm prints to the RCMP. These matched the latent prints on the display case. The RCMP swore an information and issued a warrant for Mr. Tan’s arrest. Two RCMP officers, Sergeant Dhillon and Corporal Wellington, flew to Belgium, took Mr. Tan into custody and escorted him to Canada. The plane landed in Toronto and the party cleared customs there. While in Toronto, police obtained another palm print from Mr. Tan. [11] Sergeant Dhillon attempted to record his conversations with Mr. Tan during their journey to Vancouver. His digital audio recording device, however, stopped at some point during the Belgium-Toronto leg of the journey. No notes were taken until after they arrived in Toronto. Corporal Wellington testified later that nothing was discussed on the flight in relation to the investigation. Sergeant Dhillon was unable to recall the conversations he may have had with Mr. Tan on the flights from Belgium to Toronto or from Toronto to Vancouver, but stated he did not discuss the investigation. At trial, however, an audio recording was played for Sergeant Dhillon in which he said to Mr. Tan, “[b]ut I told you before in this case you’re not going home for a long time” ( Voir Dire No. 3, at paras. 9-12). Sergeant Dhillon could also not recall whether Mr. Tan asked to speak with counsel in Toronto, but a recording was put to him in which this request was made. [12] When the group first arrived in Richmond, British Columbia the police took additional fingerprints, which were used for comparison purposes, in addition to the palm print taken in Toronto. [13] Once in Vancouver, Mr. Tan spoke to counsel. He was then transported with an undercover officer, posing as another individual in police custody. They were lodged in the same cell, and Mr. Tan spoke to the undercover officer before, during and after he was interviewed by Sergeant Dhillon. The officer spoke Mr. Tan’s first language, Cantonese, but was not a formally trained translator, and admitted to having some difficulty understanding Mr. Tan at times. He said his Cantonese was good enough to understand Mr. Tan at the critical junctures. Mr. Tan also spoke English occasionally. Audio recordings were made of their discussions. [14] The next day, Sergeant Dhillon of the RCMP interrogated Mr. Tan over an eight-hour period. This was video-recorded. Sergeant Dhillon began by confirming that Mr. Tan had slept and eaten and no one had disturbed him the night before. Sergeant Dhillon added that he could not threaten or make an offer and that anything Mr. Tan said would be on his own accord. During the interview, Sergeant Dhillon showed Mr. Tan pictures of the crime scene and played a pre-recorded emotional statement from the victim’s daughter. Eventually, Mr. Tan confessed to killing Mr. Le, and provided details of the killing, including his motivation: the victim was allegedly charging him extra money for the return of pawned items; this was a matter of “respect”. He also drew a picture of the knife he used. Mr. Tan agreed to write an apology letter to Mr. Le’s daughter, which was later given to police. Police subsequently indicted Mr. Tan for second-degree murder. [15] After the interview, Mr. Tan returned to his cell and made further incriminating statements to the undercover officer. III. Rulings on Voir Dire [16] During the course of the trial, Mr. Tan applied for certain voir dires to determine whether the RCMP breached his Charter rights in the course of the investigation. The issue before the trial judge was whether there was some basis on which holding a voir dire might assist the Court in resolving an issue. The trial judge summarized the issues before him at para. 5 ( Voir Dires Nos. 1, 2 and 4): Tan says that there are at least four breaches of his Charter rights arising from the police investigation: 1.         Records including registration and telephone records concerning Tan which were obtained from the Comfort Inn without a warrant (the “Hotel Registration Records” and the “Hotel Telephone Records”); 2.         Airline Ticketing Information concerning Tan were obtained from Campbell Travel without a warrant (the “Airline Ticketing Information”). Those matters are both the subject of the application for Voir Dire No. 1; 3.         Fingerprints were obtained from Tan while he was in Malaysia in 2006 (the “Malaysian Fingerprints”). That matter was the application for Voir Dire No. 2; and 4.         There was a warrantless interception of his private telephone conversation without prior judicial authorization (the “Telephone Wiretap”). [17] Aside from the Hotel Registration Records and Airline Ticketing Information, the Crown did not seek to introduce any of the impugned information as evidence. Mr. Tan argued, however, that there was a temporal and causal connection between the alleged infringement of his Charter rights in collecting evidence that was not being relied on and the evidence that was ultimately relied on by the Crown. Furthermore, he submitted that the record indicated a consistent pattern of police conduct ignoring his rights. [18] The trial judge refused to hold the voir dires on issues 1-4. His rulings on issues 1, 2 and 4 are not before this Court. On issue 3, the judge refused to hold a voir dire to consider whether the RCMP breached Mr. Tan’s rights in Malaysia because, as the Charter did not apply to the actions of the RCMP officers abroad and no consent of the Malaysian state was demonstrated, the events in Malaysia could not establish a Charter breach. In paras. 33-40 ( Voir Dires Nos. 1, 2 and 4), the trial judge considered the law on the extraterritorial application of the Charter and the issue of whether Malaysian officials consented to its application: [33]      Counsel for Tan cross-examined the Canadian investigating officers at length regarding matters informing Malaysian sovereignty. They sought to demonstrate that Canadian law applied in the circumstances so as to open the Malaysian interview and the Malaysian Fingerprints to Charter scrutiny. [34]      Despite that very capable cross-examination, in my view it established no more than the officers intended that their actions, and those of anyone else during the process, in relation to Tan would pass Charter scrutiny. The officers were acting under the authority of the RMP and the applicable law was Malaysian law, i.e., the RMP made it clear that Tan could only be questioned if he consented to such questioning, could only be questioned where he wanted to be questioned, and regardless of the outcome of the questioning, Tan was not subject to arrest. [35]      At the time of these events the accepted law in Canada on the extra-territorial operation of the Charter is that reviewed in R. v. Cook , [1998] 2 S.C.R. 597, 57 B.C.L.R. (3d) 215. In Cook the court held that the Charter applies to the actions of Canadian police interviewing an accused in the United States, and its application there did not interfere with the sovereign authority of the United States. The law in Cook , however, was reconsidered by the Supreme Court of Canada in R. v. Hape , 2007 SCC 26. [36]      In Hape the majority concludes that the Charter does not apply to the actions of police officers who are operating on the territory of other states except in exceptional circumstances. Those exceptional circumstances are that the foreign state grants permission for Canadian law to be applied on its territory. This is supported by a consideration of section 32 of the Charter , which in its relevant respect restricts the Charter ’s territorial reach and limits to matters “...within the authority of Parliament....” This is consistent with the reasoning in R. v. Terry , [1996] 2 S.C.R. 207, 135 D.L.R. (4th) 214 and R. v. Harrer , [1995] 3 S.C.R. 562, 128 D.L.R. (4th) 98. [37]      In my opinion, the evidence falls well short of establishing even a prima facie case that there was agreement to apply Canadian law. The Crown raises, quite rightly in my view, the fact that the actors here are simply police officials operating on the ground floor. There is no suggestion of any diplomatic accord, or agreement between authorized government officials. The majority in Hape discusses the issue generally as follows [Quotation omitted.] [38]      As noted in Hape at para. 117 “[a] cooperative effort involving police from different countries “does not make the law of one country applicable in the other country”: Terry , at para. 18.” A cooperative effort, in any event, does not give rise to conferring jurisdiction for enforcement , which the court in Hape finds necessary for a matter to fall within the authority of Parliament and the provincial legislatures: Hape , para. 69. [39]      It is suggested that because of the majorities involved in the respective decisions, Hape cannot and does not overrule Cook . The Supreme Court of Canada in Hape is expressly reconsidering Cook . If Cook is not expressly or impliedly overruled it must be considered by this trial court to be confined to its own facts. [40]      In the circumstances, as the Charter has no extra-territorial application, and there is no evidence of an agreement to apply the Charter extra-territorially between Canada and Malaysia, no breach of a Charter right can be shown by the events in Malaysia. It therefore is unnecessary to hold a voir dire regarding the obtaining of the Malaysian Fingerprints. [19] A voir dire was held to determine whether to exclude evidence obtained from the undercover officer, who is referred to in the judge’s reasons as Constable N. [20] Before the trial judge, Mr. Tan argued that the evidence of the undercover officer should not be admitted for three reasons: (1) the transcript is unreliable because the officer was not a qualified translator, and the probative value of the evidence was outweighed by its prejudicial effect; (2) the evidence was tainted by Sergeant Dhillon’s interrogation; and (3) the undercover officer elicited the evidence. [21] The judge admitted the evidence. He found that the probative value of the statement was not outweighed by its prejudicial effect, concluding at para. 71 that there was only “some chance that an inexpert translation might [have affected his] perception of the evidence”. He then found that there was no tainting of the discussions in the cell by reason of the fact that some evidence was obtained after Mr. Tan’s interview with Sergeant Dhillon. At paras. 101-103, the judge turned to elicitation, and concluded as follows: [101]    Considering the totality of the circumstances, including the sequencing with the prior interrogation, I am satisfied that Tan made a free choice to speak to his cell mate. Constable N did not guide the conversation to sensitive matters. In fact, the evidence shows that it was Tan who often controlled the conversation and who willingly , returned again and again to the subject of the investigation, his statements and the letter he was trying to write to the victim’s daughter. [102]    It therefore follows that I do not find that any part of the conversation amounted to the functional equivalent of an interrogation. In reaching this conclusion, I have considered that there was no relationship of trust between Constable N and Tan, such as existed between the police agent and the accused in Broyles [[1991] 3 S.C.R. 595]. Constable N acted in the role of a cell mate who had befriended a stranger and who showed interest in him. He played his role well and within the bounds of what is permissible under the Charter. [103]    In the circumstances, in my opinion, the statements made by Tan to Constable N were not elicited , in violation of Tan’s Charter right to silence. [Italics in original.] [22] In a separate voir dire ( Voir Dire No. 3), Mr. Tan argued that his confession to the police was not voluntary. He argued that the record of his interaction with officers was incomplete over the course of the return flight to Canada, which, he claimed, raised a reasonable doubt as to whether there was a threat or inducement. [23] Mr. Tan did not testify on the voir dire . [24] The trial judge concluded that the confession to police was voluntary, even though there were some gaps in the evidence as to what may have been said to Mr. Tan while he was in custody before his interrogation. The trial judge found that the confessions were a result of the evidence being presented to Mr. Tan and that the Crown established beyond a reasonable doubt that Mr. Tan’s statement to police was voluntary – that is, “it was made without improper inducements or threats, in an atmosphere free of oppression, by an accused with an operating mind, and without impermissible police trickery” (at para. 93). Mr. Tan’s constitutional right to remain silent was not breached. The trial judge concluded that evidence of the confession was admissible. [25] In his reasons for judgment, the trial judge found that there was no issue as to who killed Mr. Le. He came to this conclusion on the basis of the fingerprints found in Mr. Le’s blood and Mr. Tan’s confession. [26] The main issue was whether Mr. Tan had the requisite level of intent for second-degree murder. The Crown’s theory was that Mr. Tan stabbed Mr. Le once from across the counter, and then, in quick succession, stabbed him twice more from behind the counter. The Crown argued that these actions were consistent with an individual who means to cause the death of another. This theory was supported by a re-enactment given by Mr. Tan to police during his interrogation. The defence accepted that the wounds were made in quick succession, but argued this was consistent with a provoked attack, thus providing evidence of something less than the mens rea required for murder. [27] The trial judge accepted the Crown’s theory. He also rejected the submission of the defence that the stab wounds were insufficient evidence to infer that Mr. Tan had the requisite intent to commit murder. He found beyond a reasonable doubt that Mr. Tan had the requisite intent. On this basis, the trial judge concluded that Mr. Tan was guilty of second degree murder. IV. Issues on appeal [28] Mr. Tan raises the following grounds of appeal: 1.         The learned trial judge erred in law by refusing to hold a voir dire to determine whether or not the Appellant’s rights as protected by section 8 of the Charter were infringed by the RCMP’s actions in Malaysia in 2006. 2.         The learned trial judge erred in admitting the English transcript of the cell plant operation into evidence without considering whether that evidence met the threshold for admissibility of expert evidence. 3.         The learned trial judge erred in ruling that the Crown had proven beyond a reasonable doubt that the Appellant’s statement to Sgt. Dhillon was voluntary. V. Discussion A. Did the trial judge err in refusing to hold a voir dire into whether Mr. Tan’s s. 8 rights were violated in Malaysia? 1. Positions of the Parties [29] The trial judge concluded that no voir dire was necessary because Mr. Tan’s Charter rights were not engaged extraterritorially when Canadian police interviewed him. In his view, there was no evidence that Malaysia had agreed to the application of Canadian constitutional law to the interrogation – the testimony of Canadian officers establishes only their own views on the matter. Rather, in the view of the trial judge, consent had to be demonstrated through the agreement of “authorized” Malaysian government officials. [30] He applied the test in R. v. Vukelich (1996), 108 C.C.C. (3d) 193 at para. 26 (B.C.C.A.), where this Court held that an accused is not always entitled to a voir dire to challenge the constitutionality of the admission of evidence. [31] Mr. Tan argues that the trial judge erred in admitting the Malaysian evidence without first holding a voir dire to determine whether his s. 8 Charter rights were infringed by the RCMP’s actions in Malaysia. He says there was evidence to show Malaysian officials consented to the application of the Charter and the trial judge erred in finding otherwise. At a minimum, a voir dire should have been held. [32] The Crown says the trial judge made no error and was correct in concluding that the Charter , absent the consent of an “authorized” official, does not apply extraterritorially. It says the judge was correct in concluding there was insufficient evidence that Malaysian officials consented to the application of the Charter in their territory. 2. Analysis a) The Extraterritorial Application of the Charter i. Overview [33] The starting point for the application of the Charter is s. 32, which states: 32. (1) This Charter applies ( a )   to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and ( b )   to the legislature and government of each province in respect of all matters within the authority of the legislature of each province [34] Section 32 defines the parameters of the application of the Charter extraterritorially. The Charter does not have extraterritorial application over the actions of foreign authorities: R. v. Harrer , [1995] 3 S.C.R. 562 at para. 35 (McLachlin J., concurring reasons). However, evidence gathered by such authorities may still be subject to Charter scrutiny and will be excluded where this is necessary to preserve the fairness of the trial that is ultimately held in Canada: see generally Harrer ; R. v. Terry , [1996] 2 S.C.R. 207; Schreiber v. Canada , [1998] 1 S.C.R. 841. The test is trial fairness and the standard is whether the admission of the evidence would be “so grossly unfair as to repudiate the values underlying our trial system and condone procedures which are anathema to the Canadian conscience” ( Harrer , at para. 51). [35] The above cases concerned the actions of foreign authorities – not Canadian ones – acting in foreign territory. In Harrer and Terry , the Supreme Court contemplated the latter situation, and refused to foreclose the possibility of the application of the Charter to an investigation by Canadian authorities abroad ( Harrer , at para. 11). This situation was considered by the Supreme Court in R. v. Cook , which held that the Charter applied to the actions of Canadian law enforcement officers, despite the fact that they were outside the territorial jurisdiction of Canada, so long as their actions did not have an objectionable extraterritorial effect. [36] In R. v. Hape , 2007 SCC 26, [2007] 2. S.C.R. 292 , the Supreme Court of Canada effectively overruled Cook : Peter Hogg, Constitutional Law of Canada , 5th ed. (Looseleaf) (Toronto: Carswell, 2007) at 37-38; Robert J. Currie, International & Transnational Criminal Law (Toronto: Irwin Law, 2010) at 531. Since Cook , Hape has been the jurisprudential centre of gravity for the law on extraterritorial application of the Charter. For this reason, I will set out the facts in more detail. [37] The accused, Richard Hape, was prosecuted for money laundering, which he conducted out of the island state of Turks and Caicos. The RCMP began its investigation by contacting the Turks and Caicos police. One detective superintendent agreed to help, provided that the investigation would fall under his authority. The RCMP conducted a number of searches of Mr. Hape’s office on the islands, which were apparently authorized by a warrant, though none was adduced into evidence at trial. The RCMP also conducted perimeter searches without warrants, which would have been required under Canadian law, but were not required by Turks and Caicos law. Mr. Hape applied to have the evidence excluded on the basis that the searches violated his s. 8 rights. [38] Justice LeBel, writing for himself and four others, dismissed the appeal. The four other justices would also have dismissed the appeal, but for different reasons. [39] Justice LeBel articulated a sweeping review of international law principles and their application to the Canadian constitution. He concluded that the Charter could not apply to govern the actions of Canadian officials abroad. He reasoned as follows: principles of customary international law, general practices and rules that are accepted by states as law, are adopted by Canadian common law. The principles of sovereignty and non-intervention are cornerstones of international customary law. Section 32 of the Charter , which says that the Charter only applies to matters within the authority of Parliament and the provincial legislatures, must be read to comply with these principles of customary international law. Applying the Charter to a Canadian investigation in a foreign territory would do unacceptable violence to the principle of sovereignty, as well as the non-binding principle of the comity of nations. Applying the Charter to an investigation abroad would, by its very nature, constitute an objectionable extraterritorial application of Canadian enforcement jurisdiction. This enforcement jurisdiction is what was at issue for LeBel J., and is what made the prior jurisprudence questionable: [85]      The Cook approach therefore puts the focus in the wrong place, as it involves looking for a conflict between concurrent jurisdictional claims, whereas the question should instead be viewed as one of extraterritorial enforcement of Canadian law. The issue in these cases is the applicability of the Charter to the activities of Canadian officers conducting investigations abroad. The powers of prescription and enforcement are both necessary to application of the Charter . The Charter is prescriptive in that it sets out what the state and its agents may and may not do in exercising the state’s powers. Prescription is not in issue in the case at bar, but even so, the Charter cannot be applied if compliance with its legal requirements cannot be enforced. Enforcement of compliance with the Charter means that when state agents act, they must do so in accordance with the requirements of the Charter so as to give effect to Canadian law as it applies to the exercise of the state power at issue. However, as has already been discussed, Canadian law cannot be enforced in another state’s territory without that state’s consent. Since extraterritorial enforcement is not possible, and enforcement is necessary for the Charter to apply, extraterritorial application of the Charter is impossible. [40] Justice LeBel conceded that if the only consequence of a Charter breach was the exclusion of evidence at the ultimate Canadian trial, there would be no infringement on a foreign state’s sovereignty (at para. 91). He opined, however, that because the Charter aims to prevent infringements before they occur, extraterritorial enforcement jurisdiction would always be at issue, thus infringing the sovereignty of the foreign state (at para. 84). In any event, the Harrer-Terry trial fairness analysis would apply to ensure minimum standards for evidence tendered at trial (at paras. 108-111). [41] Finally, LeBel J. posited that while the Charter could not apply extraterritorially to limit investigations, “the principle of comity may give way where the participation of Canadian officers in investigative activities sanctioned by foreign law would place Canada in violation of its international obligations in respect of human rights” (at para. 101). [42] LeBel J. summed up his approach at para. 113: [113] The methodology for determining whether the Charter applies to a foreign investigation can be summarized as follows. The first stage is to determine whether the activity in question falls under s. 32(1) such that the Charter applies to it. At this stage, two questions reflecting the two components of s. 32(1) must be asked. First, is the conduct at issue that of a Canadian state actor? Second, if the answer is yes, it may be necessary, depending on the facts of the case, to determine whether there is an exception to the principle of sovereignty that would justify the application of the Charter to the extraterritorial activities of the state actor. In most cases, there will be no such exception and the Charter will not apply. The inquiry would then move to the second stage, at which the court must determine whether evidence obtained through the foreign investigation ought to be excluded at trial because its admission would render the trial unfair. [43] Put simply, the Hape principle is this: the Charter does not apply extraterritorially to Canadian authorities. This is subject to two exceptions. The first exception is state consent. If the foreign state consents to the application of the Canadian constitution, then s. 32 is not an issue and the Charter may apply. The Court did not define the meaning of consent. The second exception, described above, suggests that even without consent of the foreign state, violations of Canada’s international human rights obligations may justify a remedy under the Charter (at para. 101). [44] Turning to the facts before him, LeBel J. found that the cooperation of the Turks and Caicos Islands police did not amount to consent to the exercise of Canadian enforcement jurisdiction, and therefore the application of the Canadian Charter , within its territory. At para. 106, he noted that consent was “neither demonstrated nor argued on the facts”, and he declined to consider when and how it might be established. Later, Lebel J. stated that “[i]t is not reasonable to suggest that Turks and Caicos consented to Canadian extraterritorial enforcement jurisdiction” (at para. 115), but he nonetheless undertook a factual analysis of the circumstances of the investigation at paras. 115-117. I shall return to this analysis below. [45] Several courts, including the Supreme Court of Canada, have since considered Hape , though not on the issue of foreign consent (see for example Re Canadian Security Intelligence Services Act , 2008 FC 301). There is a paucity of cases from provincial appellate and trial courts considering the Hape principle and the meaning of consent in the circumstances of an investigation carried out by Canadian authorities extraterritorially. [46] One of the few cases to consider consent was Amnesty International Canada v. Canada (Canadian Forces) , 2008 FC 336, affirmed 2008 FCA 401, leave to appeal dismissed, [2009] S.C.C.A. No. 63. In that case, Madam Justice Mactavish dealt with the application of Amnesty International and the British Columbia Civil Liberties Association for an order that the Charter applied to Canadian Forces operating in Afghanistan. Canadian Forces were handing over captured Taliban insurgents to Afghan authorities. There were allegations that the detainees were subject to abuse and even torture once in the hands of these authorities. There were two questions before the Court, which I paraphrase: (1) does the Charter apply during armed conflict in Afghanistan to the detention of non-Canadians by Canadian Forces or their transfer to Afghan authorities?; (2) if the answer to the first question is “no”, would the Charter apply if the applicants established that the detainees were subject to torture, such that Canada would be in breach of its international human rights obligations? In other words, the applicants sought to distinguish Hape and demonstrate consent on the one hand, and, if that failed, they sought to rely on the international human rights exception from Hape . [47] Amnesty is an important case for the purposes of this case because it engages in one of the more extensive discussions of what is required for a sovereign state to consent to the application of another state’s constitutional law. [48] Justice Mactavish engaged in a comprehensive analysis of the various bilateral and multilateral agreements between Afghanistan and Canada, and Afghanistan and the international community. The applicants argued that because Afghanistan had, pursuant to several agreements between the countries, ceded to Canada the power to detain and use deadly force on its citizens at will, Afghanistan had consented to the application of the Charter . Justice Mactavish rejected this argument. She found that while Afghanistan did cede some rights to foreign powers, it did not consent to the wholesale forfeiture of its sovereignty. She found that general agreements providing Afghanistan’s consent for Canadian Forces to operate in Afghanistan, and specific, technical agreements on assistance in the armed conflict, training, stabilization and law enforcement activities did not provide for the application of Canadian constitutional law, but instead provided for the application of the Afghan Constitution and international law. Also, the more specific agreements regarding detainees only provided for the application of the Geneva Convention. On this basis, she concluded that Afghanistan did not consent to the enforcement or application of the Canadian Charter over the conduct of Canadian Forces in Afghanistan in relation to the detainees. [49] The Supreme Court of Canada has considered the international human rights exception to the Hape principle on two occasions and has accepted the availability of that exception: Canada (Justice) v. Khadr , 2008 SCC 28, [2008] 2 S.C.R. 125; Canada (Prime Minister) v. Khadr , 2010 SCC 3, [2010] 1 S.C.R. 44. [50] In sum, the state of the law is this: the Charter does not apply to Canadian state actors engaging in official duties extraterritorially ( Hape ). This is subject to two exceptions: (1) consent of the foreign state to the application of Canadian law in its territory, though, as LeBel J. stated, “[i]n most cases, there will be no such exception and the Charter will not apply” ( Hape at para. 113); (2) the participation of Canadian officials in activities that violate Canada’s international human rights obligations ( Hape ; Khadr 2008; Khadr 2010). Of course, any evidence tendered in a Canadian trial is always subject to Charter scrutiny to determine if its admission would render the trial unfair: Harrer ; Terry . ii. Consent [51] I turn now to an analysis of the major issue in relation to this ground of appeal: whether there was evidence that Malaysia consented to the application of the Charter in its territory and whether the Charter applies in this case to the actions of Canadian officials abroad evoking the need for a voir dire . Accordingly, I will consider the nature and requirements of consent. [52] LeBel J. considered the consent exception at para. 106, stating: In some cases, the evidence may establish that the foreign state consented to the exercise of Canadian enforcement jurisdiction within its territory. The Charter can apply to the activities of Canadian officers in foreign investigations where the host state consents. In such a case, the investigation would be a matter within the authority of Parliament and would fall within the scope of s. 32(1). Consent clearly is neither demonstrated nor argued on the facts of the instant appeal, so it is unnecessary to consider when and how it might be established. Suffice it to say that cases in which consent to the application of Canadian law in a foreign investigation is demonstrated may be rare. [Emphasis added.] [53] LeBel J. then went on to analyze, in some detail, the circumstances of the investigation of Mr. Hape in Turks and Caicos Islands at paras. 115-117: [115]    … Without evidence of consent, that is enough to conclude that the Charter does not apply. It is not reasonable to suggest that Turks and Caicos consented to Canadian extraterritorial enforcement jurisdiction in the instant case. Nonetheless, I will say a few words on the factual circumstances of the investigation. [116]    The trial judge made several significant findings of fact, and the appellant has not attempted to argue that they were based on a palpable and overriding error. Those findings are that: -     Detective Superintendent Lessemun “agreed to allow the RCMP to continue its investigation on the Islands, but was adamant he was going to be in charge, and that the RCMP would be working under his authority” (para. 4); -     “the RCMP officers were, and understood that they were, operating under the authority of Detective Superintendent Lessemun” (para. 25); -     the RCMP officers “were subject to Turks & Caicos authority” (para. 25); -     “the Canadian police, in this case, were operating under and subject to the authority of Detective Superintendent Lessemun” (para. 29); and -     “the propriety and legality of the entries into the private premises in the Turks & Caicos Islands ... are subject to Turks & Caicos criminal law and procedures and the superintending scrutiny of the Turks & Caicos courts” (para. 29). As those findings demonstrate, Turks and Caicos clearly and consistently asserted its territorial jurisdiction in the conduct of the investigation within its borders. It controlled the investigation at all times, repeatedly making it known to the RCMP officers that, at each step, the activities were being carried out pursuant to Turks and Caicos authority alone. As found by the trial judge, the RCMP officers were well aware that, when operating in Turks and Caicos, they were working under the authority and direction of Detective Superintendent Lessemun. Although much of the planning took place in Canada, and Canada contributed much of the human and technological resources, Turks and Caicos law and procedure applied to all the searches: it applied to the perimeter searches in February 1998, to the covert entries in March 1998, and to the overt entries in February 1999. Finally, warrants were sought in Turks and Caicos courts, and that country’s authorities prevented the seized documents from being removed to Canada. [117] The appellant took issue in this appeal with the trial judge’s finding that the RCMP and Turks and Caicos officers were engaged in a “co-operative investigation”. There is no magic in the words “co-operative investigation”, because the issue relates not to who participated in the investigation but to the fact that it occurred on foreign soil and that consent was not given for the exercise of extraterritorial jurisdiction by Canada. When investigations are carried out within another country’s borders, that country’s law will apply. A co-operative effort involving police from different countries “does not make the law of one country applicable in the other country”: Terry , at para. 18. [54] In para. 106, LeBel J. leaves the question of the nature of sovereign, foreign consent to another day and another case. One guideline provided by Hape is that consent to the extraterritorial application of Canadian law will be “rare”, which implicitly accords with an assumption that something more than indications from on-the-ground officials can suffice for consent. However, LeBel J. does rely on the actions of the on-the-ground official to find that there was no consent. [55] At paras. 115-117, LeBel J. turns to consider all the circumstances to see if Turks and Caicos consented to the application of the Charter . His analysis here suggests that non-consent to the exercise of Canadian enforcement jurisdiction and the application of the Charter may be determined by looking at all the circumstances of the interaction between Canadian and foreign officials. [56] Justice LeBel justifies the legal conclusion in Hape on the principle of sovereignty. He then turns to consider whether there were any facts on which to conclude that the Turks and Caicos officers did not consent to the application of the Charter . He did not conclude that the officers had the authority to give consent to the exercise of Canadian enforcement jurisdiction within its territory, but he did conclude that they could give evidence of a lack of consent. [57] In my opinion, Hape stands for the proposition that in order for the Charter to apply, the foreign state must consent. In order for a state to consent to the extraterritorial application of Canadian constitutional law, the expression of consent must be from a valid sovereign authority of that state. [58] This position seems to have been assumed in post- Hape authorities, including the trial decision in this case and in Amnesty . Those cases assumed that evidence of consent of a foreign state requires an expression of sovereign authority, often in the form of a bilateral agreement. In Amnesty , for example, Mactavish J. closely examined the bilateral and multilateral treaties between Afghanistan and Canada to determine the issue of consent to the application of Canadian constitutional law. The trial judge in this case was clearly uncomfortable with the idea of “ground level” law enforcement officers consenting on behalf of the entire state; something along the lines of a “diplomatic accord” would suffice to demonstrate consent in his view. The position adopted in these cases is consistent with Hape . If I am correct that Hape stands for the proposition that the principle of sovereignty and non-interference preclude the extraterritorial application of the Charter , then only officials with the authority to bind the state in question, or an expression of that state’s sovereign will, can establish consent. [59] Principles of customary international law also support this view. I start by reiterating the proposition that states are sovereign from within their territorial boundaries; no other state may exercise enforcement jurisdiction within those borders ( Hape at para. 65, citing The Case of the S.S. “Lotus” (1927), P.C.I.J. Ser. A, No. 10). [60] Under international law, however, states may consent to activities that would otherwise constitute violations of their sovereignty. The nature of consent between states has been considered by the International Law Commission (“ILC”) with respect to the doctrine of state responsibility, that is, whether and how a state is held responsible for a breach of an international obligation. The ILC’s scholars and jurists have set out codified, authoritative statements on the law of state responsibility in the articles on the Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, UN GAOR, 56th Sess., UN Doc. A/RES/56/83 (2001) [“ Articles of State Responsibility ”]. These articles have been adopted by the UN General Assembly, used by the International Court of Justice and are generally considered a restatement of customary international law (John H. Currie, Public International Law , 2nd ed. (Toronto: Irwin Law, 2008) at 535-536). [61] In international law, one of the major issues with a state’s consent is related to the establishment of true and valid consent, as well as the scope of that consent. Article 20 of the Articles on State Responsibility states: “ Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.” [62] The ICL has also published commentaries on the Articles of State Responsibility : see Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts in “Report of the International Law Commission on the Work of its Fifty-Third Session”, UN GAOR, 56th Sess., Supplement No. 10 (A/56/10) [ Commentaries ]. The commentary to Article 20 provides a number of issues to consider in relation to consent ( Commentaries , at page 73): (4)        In order to preclude wrongfulness, consent dispensing with the performance of an obligation in a particular case must be “valid”. Whether consent has been validly given is a matter addressed by international law rules outside the framework of State responsibility. Issues include whether the agent or person who gave the consent was authorized to do so on behalf of the State (and if not, whether the lack of that authority was known or ought to have been known to the acting State), or whether the consent was vitiated by coercion or some other factor. Indeed there may be a question whether the State could validly consent at all. The reference to a “valid consent” in article 20 highlights the need to consider these issues in certain cases. (5)        Whether a particular person or entity had the authority to grant consent in a given case is a separate question from whether the conduct of that person or entity was attributable to the State for the purposes of chapter II. For example, the issue has arisen whether consent expressed by a regional authority could legitimize the sending of foreign troops into the territory of a State, or whether such consent could only be given by the central Government, and such questions are not resolved by saying that the acts of the regional authority are attributable to the State under article 4. In other cases, the “legitimacy” of the Government which has given the consent has been questioned. Sometimes the validity of consent has been questioned because the consent was expressed in violation of relevant provisions of the State’s internal law. These questions depend on the rules of international law relating to the expression of the will of the State, as well as rules of internal law to which, in certain cases, international law refers. (6)        Who has authority to consent to a departure from a particular rule may depend on the rule. It is one thing to consent to a search of embassy premises, another to the establishment of a military base on the territory of a State. Different officials or agencies may have authority in different contexts, in accordance with the arrangements made by each State and general principles of actual and ostensible authority. But in any case, certain modalities need to be observed for consent to be considered valid. Consent must be freely given and clearly established. It must be actually expressed by the State rather than merely presumed on the basis that the State would have consented if it had been asked. Consent may be vitiated by error, fraud, corruption or coercion. In this respect, the principles concerning the validity of consent to treaties provide relevant guidance . [Emphasis added. Footnotes omitted.] [63] From the Commentaries , it is clear that law relating to treaties and treaty-making is relevant. Treaties need not be a formal, high-level exchange; they may be a simple exchange of diplomatic notes (J.H. Currie at 137). This engages, to some extent, the Vienna Convention on the Law of Treaties , 23 May 1969, 1155 U.N.T.S. 331, which represents international law on the subject. The Vienna Convention provides general rules as to which state actors may express the binding will of a state: see Articles 7 and 8. [64] For our purposes, rather than delve into the principles related to the law of treaties, it is more useful to set out a general framework that can guide a court in determining whether consent to the application of Canadian constitutional law over a Canadian investigation was given. These requirements are informed by international law on treaties and state responsibility, and general principles relating to consent: · The foreign official or entity purporting to give consent to the application of Canadian constitutional law must be an agent or “state organ” of the foreign state (Articles 4-6 of the Articles on State Responsibility ); · The foreign official or entity purporting to give consent must have apparent or actual authority to consent to the application of the Canadian Charter to an investigation by Canadian authorities in that foreign territory. Obviously, officials with “full powers” to make international treaties suffice (Articles 7 and 8 of the Vienna Convention ), but in most cases, the issue will not be as clear. The Court must determine whether the official or entity at issue is able to agree to the Canadian investigation and the application of Canadian law. In other words, the question is whether this official or entity purporting to proffer consent has the apparent or actual authority to give a binding expression of the sovereign will of the state. · Consent of the foreign state must be informed and freely given; error, coercion, fraud or corruption vitiate consent ( Commentaries on Articles of State Responsibility ); · The consent must be in accordance with any domestic laws of the state purporting to give consent (see Amnesty ); and · The foreign state must specifically consent to the application of the Canadian Charter (see Amnesty ). [65] This is not an exhaustive list, but simply an overview. All of the circumstances of each case must be analyzed. However, the focus of the analysis should not only fall on whether there is evidence that foreign officials consented. While that is a factor to consider, the focus should also be on who those officials are and the nature of their authority within the foreign state and under international law. The consent analysis must be done with a view to determining the will of the sovereign foreign state. In short, the law of consent to the extraterritorial application of the Charter must be grounded in international law principles relating to sovereignty. In my view, this approach is consistent with the principles articulated in Hape , and accords with the subsequent jurisprudence in Amnesty. [66] In many cases, consent will be demonstrated through a treaty or binding international law agreement. Mutual Legal Assistance Treaties (“MLAT”), like the Treaty Between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters , Can. T.S. 1990 No. 19, are examples. These treaties allow a state to request its partner state to conduct an investigation within its own borders and then send that evidence to the requesting state. MLATs generally designate a “central authority” to deal with investigation requests. These treaties are usually explicit that the request and the consequent investigation are governed by the law of the requested state (R. Currie at 483). [67] While a treaty or a binding international agreement that provides for consent to Canadian investigations and the application of Canadian constitutional law are obvious examples, the principle of sovereign consent can be established with evidence that an authorized official or entity in the foreign state validly consented to the extraterritorial investigation and the application of the Charter to that investigation. (For an example of a state’s consent to the application of Canadian law, albeit not the Charter , see the judgment of this Court, R. v. Dorsay , 2006 BCCA 117, though the facts are unique.) iii. Did the state of Malaysia consent in this case? [68] The appellant argues that the trial judge misapprehended the law by concluding that a formal agreement between authorized government officials akin to a “diplomatic accord” is necessary for a finding that the foreign state has consented to the application of the Charter . He argues that the trial judge’s finding that the evidence fell “well short” of establishing an agreement to apply Canadian law was incorrect, and that there was “considerable evidence before the court on this point.” Mr. Tan summarizes this evidence as follows: The request for permission went through a liaison officer with the Canadian diplomatic mission in Malaysia. The RCMP communicated their expectations to a senior Interpol official in Malaysia that the investigation would comply with Canadian legal guidelines. He granted permission for the RCMP’s ‘official visit’ to take place and explicitly agreed that the interview would be conducted in accordance with the Canadian Charter of Rights and Freedoms [69] Mr. Tan points to the testimony of Corporal Ferreira, who was initially conducting the investigation. He testified that he contacted the liaison officer, Wade Oldford, in the Canadian mission in Kuala Lumpur to seek permission for the RCMP to travel and speak to Mr. Tan. Mr. Oldford contacted Chief Inspector Singh, an official with Interpol in Malaysia. By letter dated June 15, 2006, Chief Inspector Singh informed Mr. Oldford that the RCMP’s request had been approved by the Director of the Criminal Investigation Unit of the RCMP. This letter was tendered at trial. [70] Corporal Ferriera testified that he expected the interview to be conducted in accordance with Canadian law, and told Mr. Oldford that the RCMP were acting “within Canadian legal guidelines.” He also testified that Chief Inspector Singh agreed that the interview was to be conducted in accordance with the Charter. [71] The Crown submits that the trial judge’s conclusion was correct. It concedes in its factum that “Malaysian authorities allowed the RCMP to conduct the interview and take the Appellant’s fingerprints in a manner that RCMP believed would be admissible in a Canadian court.” The Crown, however, points to evidence that suggests Malaysian authorities did not consent to the application of Canadian constitutional law. It says the RCMP had to request permission at the outset for the interview, and had to comply with Malaysian law at all times. Pointedly, the RCMP had to respect Malaysian law that required the following: an accused could not be interviewed unless he consented, the interview could not go past 6:00 p.m. and, regardless of what an accused said in the interview, he could not be arrested as a result of it. [72] With respect, as I have explained above, this analysis misconstrues the central theme in Hape : respect for sovereignty of the host state. The Crown errs in its assumption that because Malaysian law was enforced, the Charter could not be applied. While an analysis of all the circumstances (including the authority of the official, the scope of his or her agreement, the nature and effect of that agreement and so on) can support a finding that a foreign state has consented, the fact that foreign officials have asserted that their law applies merely reflects a presumption in international law. The crux of the analysis is the determination of whether there is any positive, authoritative and effective consent by the foreign state to the application of the Charter . [73] Herein lies the problem with the argument of the appellant. In my respectful opinion, it would not respect the sovereignty of Malaysia to conclude on the basis of the testimony of a RCMP officer that Malaysia consented to the application of the Charter . The evidence here is scant. Aside from the second-hand statements of Chief Inspector Singh, of whom no evidence with respect to his authority to grant consent was adduced, there is no evidence of any consent that would satisfy the Hape principle of sovereign non-interference. There is, furthermore, no evidence that Malaysian law enforcement entities or officials – for example, the Director of the Criminal Investigation Unit – consented. Nor is there evidence that that official was in a position to consent. In short, there is no evidence that the officials named by the appellant are in a position to express the sovereign will of the Malaysian state. [74] In my view, the trial judge was correct in his conclusion that the “evidence fell well short of establishing even a prima facie case that there was any agreement to apply Canadian law.” To engage the application of the Charter to the conduct of Canadian officials operating in a foreign state, an accused must tender evidence that a foreign official, possessed of the proper authority, consented to the application of the Charter . [75] In my view, the trial judge did not err in concluding that the Charter was inapplicable to the RCMP’s conduct in Malaysia. As such, he was correct to decline to hold a voir dire into whether the RCMP breached Mr. Tan’s Charter rights by failing to obtain a warrant before requesting Malaysian assistance to collect his fingerprints. [76] If I am wrong, and law enforcement officials with no authority may consent to the application of the Charter , I would still conclude the Charter does not apply to the extraterritorial activities of the RCMP in this case, given the findings of fact by the trial judge. [77] There is insufficient evidence that Malaysian officials consented to the application of the Charter . At its highest, there is the alleged consent of a Malaysian Interpol-RMP liaison officer. All of the other circumstances appear to suggest that Malaysian authorities did not consent. The trial judge’s findings of fact are at para. 34 ( Voir Dires Nos. 1, 2 and 4): Despite that very capable cross-examination [of trial counsel for Mr. Tan], in my view it established no more than the officers intended that their actions, and those of anyone else during the process, in relation to Tan would pass Charter scrutiny. The officers were acting under the authority of the RMP and the applicable law was Malaysian law, i.e., the RMP made it clear that Tan could only be questioned if he consented to such questioning, could only be questioned where he wanted to be questioned, and regardless of the outcome of the questioning, Tan was not subject to arrest. [78] In short, the evidence indicates that Malaysian authorities viewed their law relating to searches and seizures as operative, and not the Charter . The evidence Mr. Tan points to as indicating consent reflects the views of Canadian law enforcement officials and diplomatic authorities – not Malaysian ones. Nowhere in Hape is it expressed that Canadian law enforcement officials can impose the Charter on their investigation by stating their belief as to its application. If this were the case, this would undermine the very principle that Hape stands on. [79] At its highest, this investigation was an example of lower, enforcement-level police cooperation. In Hape , Lebel J. found that “[a] cooperative effort involving police from different countries ‘does not make the law of one country applicable in the other country’” (at para. 117, quoting Terry at para. 18). [80] Finally, I note that Mr. Tan did not argue the Charter applied on the basis of any other exception from Hape (e.g., the international human rights exception), nor did he argue that his trial would be rendered unfair if the evidence obtained outside of Canada were admitted. Accordingly, I decline to address any possible application of the Charter on these grounds. Even if Mr. Tan did raise the issue of the fairness of the trial in Canada, the possible effect of the evidence gathered in Malaysia falls well short, in my view, of being anathema to the conscience of Canadians. [81] I would not give effect to this ground of appeal. B. Did the trial judge err in concluding that the evidence of the undercover officer was admissible? 1. Positions of the Parties [82] Mr. Tan argues that the trial judge erred in admitting the English translation of the Cantonese conversation between himself and the undercover officer. Before the trial judge, the defence objected to this evidence because of concerns with the undercover officer’s lack of qualifications as a translator and the translation’s reliability. Mr. Tan says the officer corrected crucial aspects of the transcript; he had no formal training (in translation or Cantonese) and had some difficulty understanding Mr. Tan. Furthermore, he says, there were inconsistencies between two overlapping translations of the same conversation, which were brought out in cross-examination of the officer. [83] Despite these challenges to the translation, the trial judge admitted the evidence. Mr. Tan says this was an error. He argues before this Court that the transcript of the undercover officer’s interaction with Mr. Tan is classified as expert evidence. The undercover officer was not a properly qualified expert in speaking Cantonese and its admission into evidence was contingent on his ability to authenticate it. The trial judge erred by failing to consider whether the transcript was admissible expert evidence. In addition, Mr. Tan submits that there were significant concerns as to the reliability of the transcript, especially given its importance to the issues at trial and the frailties shown on cross-examination. Mr. Tan relies on R. v. Sanghera , 2012 BCSC 995 as an example. In this case a police officer, who was fluent in both English and Punjabi, had formal schooling in the latter, and had provided interpretation services before, was refused as an expert on the basis that there was insufficient evidence to establish that he had the necessary qualifications as a translator and interpreter. [84] The Crown submits that Mr. Tan’s argument on the reliability of the translation goes to the weight given to Mr. Tan’s statements, not to admissibility. It says Mr. Tan’s argument on reliability is somewhat misplaced given that the majority of the translation for the trial was not done by the undercover officer, but by civilian translators. In the end, two Cantonese speaking individuals, including the officer, confirmed the transcript. [85] The Crown says admissibility of the English translation is not an issue of expert evidence; it is an issue of the admissibility of a hearsay statement of an accused at trial, which is subject to the admission exception to the hearsay rule. This rule is premised on the adversarial system and admissibility is determined on the basis of the statement’s authenticity, not reliability: R. v. Evans , [1993] 3 S.C.R. 653. Once admissible, the weight of the statement and quality of the translation were an issue for the trial judge, whose finding that the probative value of the transcript outweighed any prejudicial effect should be afforded deference from this Court. In any event, the trial judge was justified in placing some weight on the translated statements as there were ample indicators of trustworthiness surrounding the statement. For example, the allegation that the undercover officer “corrected crucial aspects of the transcript” amounted to the officer making very minor changes on very few pages. [86] The Crown also likens Mr. Tan’s argument on the English translation to “partial statement” cases. In those cases, only a part of a statement is recorded or tendered as evidence. The issue for the trier of fact becomes one of weight, not authenticity. The trial judge was aware of the language issue, but was not concerned with the statement’s accuracy. [87] Finally, the Crown submits that even if the trial judge erred in admitting the English translation, the curative proviso applies. 2. Analysis [88] I agree with the Crown that this is not an issue of admissibility of expert evidence under R v. Mohan , [1994] 2 S.C.R. 9. With respect, I do not find Sanghera applicable or instructive. That case was addressing an application to have a police officer accepted as an expert witness to translate portions of intercepted communications. The undercover officer in this case was a participant in a conversation; he was a contemporaneous listener and could relate that content to the trial judge. He was also cross-examined on that evidence. [89] The trial judge was correct to view the shortcomings of the translation as only going to weight. In my view, the trial judge properly admitted the statements. The quality and accuracy of the undercover officer’s evidence went to the weight to be given to the statements at trial. On both these determinations, I see no error in the trial judge’s analysis requiring the intervention of this Court. [90] I would not accede to this ground of appeal. C. Did the trial judge err in concluding that the confession was voluntary? 1. Positions of the Parties [91] Mr. Tan argues that the trial judge erred in his conclusion that the confession to Sergeant Dhillon was voluntary. He says that this Court may overturn a finding of voluntariness where the trial judge failed to properly consider all the relevant circumstances. [92] Mr. Tan first points to an incomplete evidentiary record with respect to his dealings with police and the circumstances surrounding his confession. [93] Mr. Tan then argues the trial judge erred by failing to adequately consider relevant evidence in his ruling, including: a.         Sgt. Dhillon’s inability to remember the Appellant’s request for counsel at Toronto Pearson Airport despite being played an audio recording; b.         Sgt. Dhillon was a member of the forensic interview team, was chosen because he spoke the Appellant’s language, and agreed that he started to ‘build rapport’ with the Appellant during the transport; c.         The Appellant was in handcuffs for the duration of the transport; d.         Sgt. Dillon’s [sic] was unable to recall the ‘context’ or ‘details’ of the conversation between himself and the Appellant during the flight from Toronto to Vancouver. e.         Sgt. Dhillon’s repeated references (in the statement) of speaking to the Appellant in Antwerp despite his and Officer Wellington’s recollection that the first interaction took place at Brussels International Airport … and f.          The Appellant’s statement to [the undercover officer] during the cell plant operation to the effect that the police had told him he wasn’t going home for a “long, long time,” on the flight and that as a result he was “expecting what was going to happen.” [94] Mr. Tan submits that the trial judge erred in placing too little importance on discrepancies between the recollections of Sergeant Dhillon and Corporal Wellington during the journey from Belgium. He says that while the trial judge did reference Sergeant Dhillon’s statement to Mr. Tan that he was not “going home [for a] long, long time”, the judge did not consider whether this was a threat, or whether Sergeant Dhillon’s inability to recall the statement without hearing a recording of it went to his credibility in asserting that nothing regarding the investigation was discussed. Sergeant Dhillon was also unable to recall whether Mr. Tan asked to speak to a lawyer in Toronto. In the circumstances, Mr. Tan argues there is no way of knowing whether threats or inducements were made. [95] Mr. Tan also takes issue with an alleged misstatement of evidence made by Sergeant Dhillon during his interview. Mr. Tan says Sergeant Dhillon deceived him with respect to evidence relating to a thumb print found on the open/closed sign of the store and a thumb print found in the victim’s blood on the display counter. The judge referred to and dismissed the first misstatement, but did not refer to Sergeant Dhillon’s alleged deception regarding the display counter. Mr. Tan argues that in all the circumstances, Sergeant Dhillon’s presentation of this false evidence amounts to a deception and the trial judge misapprehended this evidence. [96] Finally, Mr. Tan argues that the alleged deception, combined with a lengthy interview, Sergeant Dhillon’s repeated references to the strength of the case and creation of a false sense of urgency, fostered an atmosphere of oppression. Furthermore, Mr. Tan says that the judge only considered Sergeant Dhillon’s misstatements under the heading of “police trickery”, and failed to consider whether they contributed to an atmosphere of oppression. [97] Considering all these circumstances, Mr. Tan says the trial judge’s conclusion that voluntariness was established beyond a reasonable doubt is undermined. [98] The Crown states that the trial judge’s ruling on the voir dire is a factual determination and entitled to deference on appeal; this Court may not intervene unless it finds a palpable and overriding error. It says that the issues going to the evidentiary record and the discrepancies with the officers’ recollection are issues going to the assessment of the evidence, the province of the trial judge. While there were misstatements by police, the trial judge was entitled on all of the evidence to conclude that they did not amount to trickery or oppression and did not impact voluntariness. Finally, the Crown argues that the trial judge correctly found that there was no atmosphere of oppression: Mr. Tan was treated well and in a position of relative comfort; Mr. Tan’s demeanour was relaxed. He laughed and, at times, contradicted Sergeant Dhillon. The Crown submits that these findings are supported by the evidence. The circumstances do not support the conclusion that this was an atmosphere of oppression compared to other cases. 2. Analysis a) Confessions Rule [99] In my view, the trial judge accurately set out the law on the confessions rule at paras. 13-14 of his ruling on Voir Dire No. 3: [13]      The common law confessions rule is that where an accused makes a statement to a person in authority, the Crown bears the onus of proving the voluntariness of the statement beyond a reasonable doubt as a prerequisite to its admission into evidence: R. v. Spencer, 2007 SCC 11. The rule addresses concerns about the reliability of confessions and the dangers of false confessions. The rule aims to protect an accused’s rights without unduly limiting society’s need to investigate and solve crime: R. v. Oickle , 2000 SCC 38 at para. 33. The classic formulation in Ibrahim v. The King , [1914] A.C. 599 (P.C.) also continues to have application: ...no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. [14] Oickle is now the leading case on the test for determining voluntariness of statements made to persons in authority. In Oickle , Iacobucci J., for the majority, held that application of the rule requires a contextual approach that considers all relevant factors. Four factors to be considered are whether the statement was made (1) without threats or promises by a person in authority, (2) in an atmosphere free of oppression, (3) by an accused with an operating mind, and (4) without impermissible police trickery that would shock the community: Oickle at paras. 47-67; Singh at para. 35. The use of police trickery is a distinct inquiry. [100] There is no suggestion from Mr. Tan that the trial judge erred in law with respect to voluntariness or the factors to be taken into account from R. v. Oickle , 2000 SCC 38, [2000] 2 S.C.R. 3 . In R. v. Spencer , 2007 SCC 11, [2007] 1 S.C.R. 500, Madam Justice Deschamps set out the standard of review in such a circumstance: [16]      In Oickle , Iacobucci J. stated the following about the standard of appellate review of a trial judge’s decision on whether a statement is voluntary (at paras. 71 and 22): If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts”. . . . . . . . . . a disagreement with the trial judge regarding the weight to be given various pieces of evidence is not grounds to reverse a finding on voluntariness. [Emphasis deleted.] [17]      Where a trial judge considers all the relevant circumstances and properly applies the law, deference is owed to the judge’s determination on the voluntariness of the statement at issue. … Thus, [trial judges] are in the best position to draw conclusions from the evidence both because of this expertise and because of their privileged position in assessing the evidence as a whole. [101] In my respectful opinion, the trial judge reviewed all of the relevant circumstances of the confession to determine its voluntariness. It appears that what Mr. Tan really takes issue with is the trial judge’s weighing and assessment of the evidence, claiming that he misapprehended the evidence by not referring to certain aspects of the record or that the judge misstated evidence around Sergeant Dhillon’s alleged deception. This allegation takes issue with the judge’s failure to highlight minor pieces of evidence of the overall interaction. This Court is not entitled to re-weigh evidence in the manner suggested by Mr. Tan: R. v. Benham , 2013 BCCA 276 at para. 30. Nonetheless, with this in mind, I will consider Mr. Tan’s allegations. i. Incomplete Record [102] The trial judge addressed the completeness of the record of the trip to Canada at paras. 28-36 ( Voir Dire No. 3). He agreed with counsel that the entire context had to be considered and that the Crown must establish an adequate record. In this case, the judge found that despite the lack of a recording, there was evidence from the police officers and continued: [29]      Defence counsel points to contradictions between the officers’ notes and recordings taken at Pearson International Airport to establish that the record is insufficient or incomplete. With one exception, discussed below, I place little importance on these discrepancies. The officers thought they were being recorded during the flights. They therefore did not take notes and now, almost three years later, have an incomplete memory of what was said. [30]      A further and perhaps more significant distinction between the facts of Barreda [[1999] B.C.J. No. 2259 (S.C.)] and the present case is the time lapse between the gap in the record and the Statement on which the Crown seeks to rely. [31]      In Barreda , an unreported conversation occurred, the police discovered a grow-op and the accused is alleged to have made the incriminating statement that she was the occupant of the house all within approximately 20 minutes. Here, I am told the recording equipment failed on the flight between Belgium and Canada. There was a stopover in Toronto and recordings were made at the airport there. These were commercial flights. [32]      This leaves a long travel period during which there is only a sporadic record of what transpired between the officers and Tan. Tan was transferred to police cells in Richmond at 10:00 p.m. He slept and ate. Tan confirms on videotape that he was not bothered during the night. Dhillon began interrogating him some 17 hours after their arrival in Richmond. The interrogation lasted eight hours. Several topics are canvassed before Dhillon refers to the murder. Only after six hours of questioning does Tan make comments which could be characterized as a confession. During the eight hours no allusion is made to any promise or threat made by Dhillon, Wellington or anyone else. [33]      The cell plant evidence, which I have found to be admissible and which forms part of the relevant context, also does not reveal that anything occurred either in Belgium or during the trip to Canada which led Tan to later confess. In fact, the cell plant evidence indicates quite the opposite. Tan tells the undercover officer that Tan made the Statement because he was presented with evidence by Dhillon during the recorded interrogation that is the subject matter of this voluntariness inquiry. There is no evidence that anything untoward occurred in Belgium. [103] The judge stated at para. 36 that where there is a gap in the record, an explanation is owed and, in this case, one was provided. He concluded there was nothing in the evidence that raised a reasonable doubt as to the voluntariness of Mr. Tan’s statements. [104] A statement may be excluded on the basis of lack of completeness if the judge is not able to determine voluntariness. ( R. v. Richards (1997), 6 C.R. 5th 154 at para. 33 (B.C.C.A.)). The fact that an investigating officer is unable to recite the exact words spoken does not, however, necessarily render a statement inadmissible. The possibility of incompleteness is generally a matter of weight for the trier of fact. There is no suggestion that the officers intentionally edited the statements in a way unfavourable to Mr. Tan. Mr. Tan did not testify to having said something that was omitted ( Richards at para. 31; R. v. Kennealy (1972), 6 C.C.C. (2d) 390 (B.C.C.A.); R. v. Lessard (1982), 10 C.C.C. (3d) 61 (Que. C.A.); R. v. Lapointe (1983), 9 C.C.C. (3d) 366 at 377−82 (Ont. C.A.), affirmed [1987] 1 S.C.R. 1253; R. v. Howard (1983), 3 C.C.C. (3d) 399 at 412 (Ont. C.A.); R. v. Ferris (1994), 27 C.R. (4th) 141 at 153 (Alta. C.A.), affirmed [1994] 3 S.C.R. 756). [105] Traditional methods of assessing credibility and reliability may be used to assess voluntariness: R. v. Crockett , 2002 BCCA 658 at para. 20. This is what the trial judge did here. In this case, the impugned gap in evidence was not the actual confession, which was recorded. Only peripheral, contextual matters were missed, but with reasonable explanation. The trial judge could, and did, assess the voluntariness of the statement despite the gap in the evidence. In my view, there is nothing meriting the intervention of this Court on the trial judge’s assessment of the sufficiency of the overall record. ii. Misapprehended / Ignored Evidence [106] Mr. Tan’s argument that the trial judge ignored or misapprehended important pieces of evidence also relates to his submissions on the incomplete record. In my view, this argument, at its core, amounts to asking this Court to re-weigh the evidence before the trial judge. The trial judge’s reasons on the voir dire reveal that he was clearly alive to the frailties of the officers’ memories and took that into account on his final assessment of the circumstances of the confession. But the judge naturally focused his attention on the circumstances of the interview with Sergeant Dhillon, and he was still mindful of all the relevant events leading up to the interview. The fact that not every piece of evidence was recorded does not impugn the overall conclusion. It is not for this Court to point to individual pieces of evidence that are not explicitly referenced to impugn the trial judge’s reasons on the voir dire . [107] In my view, the trial judge’s conclusion that there was no evidence of threats or inducements (no quid pro quo ) is supported on the evidence. iii. Presentation of False Evidence [108] The trial judge addressed Mr. Tan’s allegation of police deception or trickery arising from Sergeant Dhillon’s misstatements at paras. 63-71, and found that Sergeant Dhillon did misstate the evidence to Mr. Tan (“probably inadvertently”). The judge found that the misstatements did not give rise to the confession, distinguishing R. v. Hammerstrom , 2006 BCSC 1700. Mr. Tan says the trial judge misapprehended this evidence, and says there is ample evidence, some of which was even referred to by the trial judge, that the misrepresentations had the effect of compelling him to confess. [109] I do not agree that this amounts to police trickery or oppression on the level that would call into question the voluntariness of Mr. Tan’s confession. The trial judge concluded that the Sergeant’s misstatement was inadvertent and insignificant. In the context of the entirety of the evidence, and in my view, it cannot be said he erred. This was not a case where police exaggerated or fabricated the balance of their case against the accused. There was ample evidence on which police could have put their case to Mr. Tan, and they did so; the trial judge was aware of this too (at para. 68). In other words, in my respectful opinion, this was not a case where police were tricking the accused into confession. Oickle , in any event, is clear that even if the evidence is not put to the accused accurately, it is not “necessarily grounds for excluding a statement” (at para. 61). Police conduct in this case certainly does not rise to the level of conduct that would be so appalling as to shock the community: Oickle at para. 67. As stated by Lamer J. (as he then was) in Rothman v. The Queen , [1981] 1 S.C.R. 640 at 697: It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community. In my view, the trial judge’s assessment of the circumstances of the confession discloses no reviewable error. iv. Atmosphere of Oppression [110] Again, in a related argument, Mr. Tan points out that evidence relating to Sergeant Dhillon’s misstatement, while considered under police trickery, was not considered in the context of what he says was an oppressive interview. The trial judge carefully considered the transcript and the circumstances of the interview. He compared this case to R. v. Ciliberto , 2005 BCSC 1859, where police interviewed an accused with a mental illness. They used intense, loud interview tactics. They left the accused alone with the victim’s relatives for an hour. They used false evidence. The judge then summarized his impressions of this case at para. 54: [54]      In this case there is no evidence that Tan has any special vulnerability similar to mental illness. Tan did not know the victim’s family and knew the victim only slightly, through his pawn shop dealings. There is no physical presence, as the recording was shown on a computer screen. There is no evidence of any shouting or aggressive behaviour by Dhillon. Dhillon appears polite. The accused appears relaxed. Tan laughs, burps, and at various times sprawls on the couch or sits on the floor while eating. At times Dhillon presses for an answer but his demeanor and manner are not aggressive. I therefore find that, on these facts, showing a recorded plea of the victim’s daughter to Tan did not constitute oppressive conduct or create an atmosphere of oppression. [111] In the next paragraph, he considered the implication of police trickery: [55]      With respect to police trickery as a factor in determining whether there has been oppression, I discuss that matter below. As noted, I accept that Dhillon made some misstatements of evidence. In my opinion, however, taking all of those matters into consideration, there was no oppressive conduct or atmosphere surrounding the making of the Statement. [112] In my respectful opinion, the trial judge was clearly alive to how police trickery could potentially contribute to an atmosphere of oppression. Mr. Tan was treated appropriately while in police custody (he was fed, he slept, had washroom breaks and he had a cigarette). There was no excessive aggression and the interrogation was not inordinately long. The judge considered the circumstances of the interview, Mr. Tan’s demeanour and his responses to Sergeant Dhillon’s evidentiary, moral and emotional propositions, and found that the atmosphere was not oppressive. This conclusion was open to him and I would not interfere with it. b) Conclusion on Voluntariness [113] In my respectful opinion, I can see no error in the analysis of the trial judge requiring this Court’s intervention. He considered all relevant elements of the voluntariness analysis and all the relevant circumstances to determine whether Mr. Tan’s confession was voluntary. His factual conclusions and the inferences he drew from them are supported on the evidence. While there were certainly gaps in the record and the trial judge did not refer to every piece of evidence, in my view, none of this affects the ultimate conclusion that Mr. Tan’s confession was voluntary. The trial judge did not err by admitting that evidence. [114] I would not accede to this ground of appeal. VI. Conclusion [115] I would dismiss the appeal. “The Honourable Madam Justice Bennett” I agree: “The Honourable Mr. Justice Hall” I agree: “The Honourable Madam Justice MacKenzie”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Reliable Mortgages Investment Corp. v. Chan, 2014 BCCA 14 Date: 20140110 Docket: CA040765 Between: Reliable Mortgages Investment Corp. Respondent (Plaintiff) And Sylvia Chan and Alice Lee Appellants (Defendants) Before: The Honourable Mr. Justice Low The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated March 5, 2013 ( Reliable Mortgages Investment Corp. v. Chan , 2013 BCSC 301, Vancouver Docket S115440). Oral Reasons for Judgment Counsel for the Appellants: G.J. Niemela Counsel for the Respondent: R.J. Ellis Place and Date of Hearing: Vancouver, British Columbia January 10, 2014 Place and Date of Judgment: Vancouver, British Columbia January 10, 2014 Summary: On this appeal from a decision dismissing an application to strike the respondent’s action, the appellants argued the action brought against them by the plaintiff mortgage corporation ought to be barred as the cause of action and fundamental issues had been, or ought to have been, decided in a previous foreclosure action. Held: appeal dismissed. The trial judge was correct in finding that neither cause of action estoppel nor issue estoppel applied. While the foreclosure proceedings were a bar to claims on the mortgage or arising out of the mortgage contract, they were not a bar to claims arising out of the failure of the contract to protect the respondent’s interests. The respondent mortgage corporation was not required to argue a case in conversion at the foreclosure trial. The previous trial judge had left the question of negligence or wilful blindness in relation to such a claim open for litigation. [1] WILLCOCK J.A. : This is an appeal from the judgment of Mr. Justice Burnyeat dismissing an application brought by the defendants to dismiss the plaintiff’s claim on the grounds that it is barred by the doctrine of res judicata or amounts to an abuse of process by relitigation. Background [2] On May 26, 2009, Reliable Mortgages Investment Corporation (“Reliable”) issued a Petition, naming Sylvia Chan and Jason Lee as respondents, by which it sought: a declaration that a mortgage registered in the New Westminster Land Title Office on March 12, 2009, charged certain lands; a declaration of default; a six-month redemption period; an order for sale; and judgment against the respondents in the amount of $265,257.24, as at May 21, 2009, and per diem interest thereafter. [3] By order granted by Master Baker on June 24, 2009, the petition was held to act as a writ of summons and statement of claim, and the claim described in the petition was moved to the trial list. [4] The claim came on for trial in May 2011 and resulted in the August 9, 2011 judgment of Mr. Justice Smith indexed at 2011 BCSC 1080. The reasons begin with a succinct description of the background: [1]        The respondent Sylvia Chan’s nephew used a forged power of attorney to mortgage her house without her knowledge. The petitioner Reliable Mortgages Investment Corp. (“Reliable”) now seeks to foreclose on that mortgage. [2]        The mortgage proceeds of almost $250,000 were deposited into Ms. Chan’s bank account, but she says her nephew, Jason Lee, told her it was his money and persuaded her to transfer the funds to him. She says she trusted him and did not press for a clear explanation of where the money had come from or why it had gone into her account. [3]        A mortgage obtained by fraud without the knowledge of the property owner would normally be unenforceable, but Reliable says it is entitled to an order nisi of foreclosure in this case because Ms. Chan actively, if unwittingly, assisted in the fraud by transferring the money when she could have discovered the truth by making reasonable inquiries. [5] The effect of Ms. Chan’s knowledge of the fraud perpetrated upon Reliable on the validity of the mortgage was addressed in the judgment, in the context of the discussion of the nature of the protection afforded to a party affected by the fraudulent execution of a document later registered by the Land Title Act, R.S.B.C. 1996, c. 250. [6] The trial judge was referred to the judgment of this court in Gill v. Bucholtz , 2009 BCCA 137, and particularly the passage of the judgment at para. 27 that reads as follows: [27]      ... On its plain meaning, the exception in s. 23(2)(i) to the indefeasibility of title applies and the phrase “void instrument” in s. 25.1(1) includes a mortgage taken from a person who obtained her title by fraud or forgery, as occurred in this case. The Act preserves the nemo dat rule with respect to charges – even where the holder has relied on the register and dealt bona fide with a non-fictitious registered owner. The mortgagees in this case did not acquire any estate or interest in Lot 4 on registration of their instruments because having been granted by a person who had no interest to give, those instruments were void, both at common law and under s. 25.1(1). ... [28]      …The Legislature of British Columbia would appear to have adopted the policy that the cost of frauds perpetrated against mortgagees and other chargeholders should be borne not by the public (as the funders of the Assurance Fund) but by lenders and other chargeholders themselves. Whether this policy choice is a good one or not is not for us to decide. We must give effect to the language of the statute in its ordinary and grammatical meaning. [7] Mr. Justice Smith addressed that argument at para. 32: [32]      Reliable argues that Gill is distinguishable because the mortgage proceeds in this case went into Ms. Chan’s bank account and she knowingly signed the money over to the fraudster. Reliable says she was in the best position to discover the fraud, but instead actively assisted in it by transferring the funds to Jason Lee without asking obvious questions. [8] In support of the proposition that this court’s decision in Gill was distinguishable, Reliable cited the decision in Isaacs v. Royal Bank of Canada , 2010 ONSC 3527, aff’d 2011 ONCA 88. The trial judge found: [36] In my view, Isaacs is of no assistance to Reliable. First of all, whatever the state of the law may be in Ontario, I am bound by the British Columbia Court of Appeal’s clear interpretation of the applicable British Columbia statute in Gill . [37]      I also note that neither the chambers judge nor the Court of Appeal in Isaacs referred to provisions in Ontario legislation that are broadly similar to ss. 25.1 and 26 of the British Columbia [Act]. It was presumably not necessary to refer to them because Ms. Isaacs had in fact signed the mortgage documents and the bank had already exercised its rights under the mortgage by selling the property. [38]      The Ontario Statute was considered in Lawrence v. Maple Trust Company , 2007 ONCA 74, where a property owner’s signature was forged on a transfer of the property and the fraudulent transferee then obtained a mortgage. The Ontario Court of Appeal found for the property owner and set aside the mortgage, thus arriving at the same result, although through a somewhat different analytical approach, as that reached by the British Columbia Court of Appeal in Gill . The Ontario Court’s subsequent decision in Isaacs would therefore not apply on these facts, even in Ontario, and it does not distinguish Gill , which is binding upon me. [9] Because Ms. Chan had not signed the mortgage it did not create a valid charge on Ms. Chan’s property. The foreclosure petition was dismissed. [10] In dismissing the claim the trial judge expressly noted: [40]      I stress that in dismissing Reliable’s claim, I am only finding that it is not entitled to execute on the mortgage security, which was the only claim advanced in this proceeding. I make no comment on any other cause of action that Reliable may have against Ms. Chan or anyone else. [11] Reliable then issued a notice of civil claim on August 15, 2011, against Ms. Chan and Ms. Lee. (BC Supreme Court action, Vancouver registry No. S115440). In that action Reliable says the mortgage in question was fraudulently executed by Jason Lee purporting to act on behalf of Ms. Chan. It says the proceeds of the mortgage were deposited into Ms. Chan’s bank account on March 13, 2009, and she authorized the transfer of the sum of $200,000 to Jason Lee by way of bank draft and further authorized the transfer of the sum of $46,182 to a bank account owned or controlled jointly by Jason Lee and the appellant Ms. Lee. Reliable seeks damages against Ms. Chan and Ms. Lee for fraud and conversion. It says Ms. Chan and Ms. Lee knew or ought to have known: Jason Lee was perpetrating a fraud on Reliable; that Ms. Chan paid out the proceeds of the mortgage without making any adequate inquiry as to the source of the money, and; they knew or ought to have known they were not legally entitled to possess or deal with the net mortgage proceeds. [12] Ms. Chan and Ms. Lee deny they participated in or knew that Jason Lee was perpetrating a fraud on Reliable and claim to have made an adequate inquiry as to the source of the money and obtained a satisfactory response. They further say there was a finding by the judge in the foreclosure proceedings that there was no evidence they had any specific knowledge of Reliable, the mortgage, or the forged power of attorney when Ms. Chan signed the documents transferring funds to Jason Lee on March 13, 2009. Ms. Chan and Ms. Lee say Reliable is precluded from relitigating issues determined at the foreclosure trial. [13] On May 28, 2012, Ms. Chan and Ms. Lee filed an application for an order striking the claims against her as an abuse of process. [14] In support of their application Ms. Lee and Ms. Chan say that on the day before the foreclosure trial, counsel for Reliable advised Ms. Chan’s lawyer it would be relying on conversion as a cause of action at the trial. Ms. Chan’s counsel objected to late notice of this cause of action that had not been pled. [15] The issue of the addition of conversion as a new cause of action was discussed on May 10, 2011, at the opening of the trial. This appeal turns, in part, on the manner in which the trial judge addressed the submissions made at the opening. [16] In his opening statement counsel for Reliable indicated that what was being sought was an order nisi of foreclosure, a declaration of the amount due under the mortgage, and a declaration that the mortgage charged the property. This was referred to as “the usual order nisi relief.” Counsel expressed the view that it was his intention to “reserve the right to argue the conversion issue.” Counsel for Ms. Chan advised the court of his position: Reliable had an opportunity to advance any claim it wished to bring to trial and an opportunity to adjourn the trial to do so. He did not object to an adjournment to permit Reliable to advance a conversion claim but did object to a conversion claim “being brought up at a later date.” The court was advised that if the trial proceeded Ms. Chan would rely upon res judicata to defeat later claims, to the extent she could do so. [17] The trial judge addressed those submissions by saying: Well, I think that is how we have to deal with it, in the sense that this – this has been pled as a foreclosure action. I have no idea at this point whether I will be able to decide that off the top of my head or I’m going to have to reserve on it. Then the chips will have to fall where they may as to whether there is – there can further proceedings on a conversion matter, right? So, but I’m not certain I – I think Mr. Niemela is correct, that conversion is a different cause of action and he should not be expected to – and it may require different or additional evidence and he shouldn’t be expected to deal with it in this proceeding, all right? Okay. [18] The trial proceeded on those terms. The appellants say that in his judgment, at its conclusion, the judge made two significant findings of fact in relation to the res judicata argument now advanced: a) that after being told the money belonged to Jason Lee’s company Ms. Chan asked no further questions about the source of the money deposited in her account in March 2009; and b) that there was no evidence Ms. Chan had specific knowledge of Reliable, the mortgage, or the forged power of attorney when she signed the document transferring funds on March 13, 2009. [19] Reliable says the May 2011 trial addressed only its claim to enforce a mortgage and the current action is based on a distinct and separate cause of action, namely: fraud and conversion. Judgment appealed from [20] The appellants’ application came on for hearing before Mr. Justice Burnyeat in chambers on January 18, 2013. Judgment was reserved to March 5, 2013. It is indexed at 2013 BCSC 301. [21] The application was dismissed. The chambers judge held: [17]      I am satisfied that issue estoppel does not apply. The issue that was before N. Smith J. was the enforceability of the Mortgage and not what happened with the funds after they were advanced by Reliable. There was no decision relating to conversion and, in fact, N. Smith J. specifically stated that the only issue that he was deciding was the issue of the enforceability of the Mortgage and that he would be making no comments on any other causes of action that might be available to Reliable. When originally commenced, it would not have been possible to include a claim for conversion under the Petition as causes of action which can be claimed in a Petition could not include such an action. [18]      Once the Petition was converted for Trial purposes, it would have been possible to apply to amend the pleadings to claim conversion and, at the same time, to add Ms. Lee as a party. While it would have been preferable to add Ms. Lee, to amend the pleadings and to adjourn the Trial, that was not done. However, not having proceeded in that manner, the ability to later deal with the issue of conversion was specifically reserved in the decision of N. Smith J. [19]      Regarding cause of action estoppel, it is clear that no decision on conversion was decided at the Trial before N. Smith J. The issue of a conversion claim against Ms. Chan and Ms. Lee was specifically raised before N. Smith J. While the conversion claim was not to be raised during the currency of the Trial, the possibility of later raising a conversion claim was left open when N. Smith J. commented that: “there can be further proceedings on a conversion matter”, and that “conversion is a different cause of action ... it may require different or additional evidence ...”. While it would have been preferable for the Trial to be adjourned in order that there could also be a hearing of the conversion issue, that was not done. However, I am satisfied that that step was not necessary in order to preserve the right of Reliable to proceed as it did. [20]      I cannot find that there has been abuse of process as I cannot find that what is proposed in the Action is a relitigation of the Trial before N. Smith J. The integrity of the judicial decision-making process in the first proceeding will not undermined. Nothing in this Action will deal with the decision relating to the enforceability of the Mortgage. At the same time, I cannot find that Reliable seeks to avoid compliance with the Order made by N. Smith J. There is no challenge of that Order either directly or indirectly. [21]      In view of what was stated before N. Smith J. and in view of what was stated by N. Smith J., I am satisfied that the integrity of the judicial decision-making process would be undermined if Reliable is not in a position to claim against Ms. Chan and Ms. Lee. Accordingly, the application of Ms. Chan and Ms. Lee is dismissed. The Appellants’ Position on Appeal [22] The appellants rely upon the doctrines of cause of action estoppel and issue estoppel and say this action is an abuse of process by relitigation. [23] The appellants rely upon the first five of the estoppel doctrines described in Donald Lange’s text, The Doctrine of Res Judicata in Canada: Third Edition (Markham: LexisNexis Canada Inc. 2010) at p.11: There are six essential doctrines developed by the courts of Canada. Each one of these doctrines may be applied with rigour based on its precise meaning. In their most concise definitions, the six essential estoppel doctrines are: (1)  Issue estoppel bars an issue which has actually been decided in the first proceeding. (2)  Issue estoppel under the rule in Henderson bars an issue which could have been brought in the first proceeding. (3)  Cause of action estoppel, the trust res judicata , bars a cause which has actually been decided in the first proceeding. (4)  Cause of action estoppel under the rule in Henderson bars a cause which could have been brought in the first proceeding. (5)  Abuse of process by relitigation bars a second proceeding when the integrity of the judicial decision-making process in the first proceeding will be undermined. (6)  Collateral attack bars a second proceeding when a party, bound by an order, seeks to avoid compliance with that order by challenging the order itself and its enforceability, not directly but indirectly in a separate forum. With respect to the policy grounds, a consideration of issue estoppel or cause of action estoppel focuses upon the interests of the litigants. A consideration of abuse of process by relitigation or collateral attack focuses upon the justice system. [24] The appellants do not rely upon an argument that these proceedings are a “collateral attack” on the judgment of the trial judge. Issue Estoppel [25] The appellants say the allegation in the conversion action that Ms. Chan and Ms. Lee knew or ought to have known that Jason Lee was perpetrating a fraud on the plaintiff, directly challenges the findings of fact made in the reasons for judgment at trial. There is an allegation that Ms. Chan knew or ought to have known the proceeds of the mortgage deposited to their accounts were suspicious and yet did not make any inquiry as to the source of the money. The appellants note that at para. 16 of his judgment the trial judge held: Ms. Chan signed a transfer slip that authorized a $200,000 draft to Jason Lee and a transfer of $46,182.50 to an account belonging to Alice Lee, on which Jason Lee also had signing authority. Ms. Chan says she trusted Jason Lee and signed the documents as requested, without paying much attention to the transaction. She did not ask how much had been deposited into her account and, after being told the money belonged to Jason Lee’s company, asked no further questions about the source of the money. [26] They say, further that at para. 21 the trial judge held: There is no evidence that Ms. Chan had any specific knowledge of Reliable, the mortgage or the forged power of attorney when she signed the document transferring funds on March 13, 2009. [27] They do not cite the balance of that paragraph of the judgment: I agree that, in signing the transfer at Jason Lee’s request without further inquiry, she was at best negligent and perhaps wilfully blind. The question is whether that negligence or wilful blindness is relevant to this action, as it has been pleaded. [28] The appellants say the chambers judge erred in not finding the issues of Ms. Chan’s knowledge raised in the pleadings in the conversion action were addressed and determined at paras. 16 and 21 by the trial judge. Cause of Action Estoppel [29] The appellants say the chambers judge erred in equating the phrase “cause of action” with the name or classification given to a wrong or remedy rather than the factual situation entitling one to a remedy. The appellants say Reliable did not place all legal theories before the court and the chambers judge erred in not adopting the approach described in Henderson v. Henderson (1843), 3 Hare 100, 67 ER 313 (Ch), requiring the parties to litigation to bring forward their whole case. [30] The appellants say the trial judge did not reserve to Reliable the right to bring further action but simply reserved the question whether such action might be barred by cause of action estoppel. Abuse of Process by Relitigation [31] The appellants say the chambers judge erred in finding there was not an abuse of process. They say the conversion action is relitigation of the facts and issues that were before Mr. Justice Smith. The same witnesses will be called and the same facts will be addressed. The Conversion Action Against Ms. Lee [32] The appellants argue Ms. Lee, by acting as a witness in the first trial, is a privy to Ms. Chan, and any estoppel that arises in favour of Ms. Chan would similarly arise in favour of Ms. Lee. They say there is evidence that the respondent had in its contemplation, before the beginning of the trial in the first action that Ms. Lee would become a defendant in a later cause of action. The appellants argue the respondent could have and ought to have amended its pleadings to include Ms. Lee in the first action. The Respondent’s Position on Appeal [33] The respondent says the chambers judge exercised his discretion in accordance with correct principles and that neither cause of action estoppel nor issue estoppel apply to bar the cause of action (although counsel for the respondent concedes that at the trial there may be certain issues it is barred from addressing or findings it cannot challenge - such specific issue estoppel being a matter for consideration by the trial judge). It says cause of action estoppel does not apply because the conversion claim was neither advanced nor determined in the foreclosure proceedings. The cause of action in the case under appeal is said to be distinct, is founded upon different evidence and requires new and different findings of fact. In fact there is no issue in this regard, as all counsel describe the claim in conversion as a distinct cause of action. [34] The respondent relies, in particular, on para. 40 of the reasons for judgment at trial, cited above, reserving issues for later determination. Discussion Res Judicata [35] The principle of res judicata is founded upon two broad principles of public policy: (1) the state has an interest that there should be an end to litigation; and (2) no individual should be tried more than once for the same cause, often stated as no one should be “twice vexed”: Angle v. M.N.R ., [1975] 2 S.C.R. 248. As the Supreme Court notes in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 at 28: [ 28 ] Relitigation of an issue wastes resources, makes it risky for parties to rely on the results of their prior litigation, unfairly exposes parties to additional costs, raises the spectre of inconsistent adjudicative determinations and, where the initial decision maker is in the administrative law field, may undermine the legislature’s intent in setting up the administrative scheme. For these reasons, the law has adopted a number of doctrines to limit relitigation. [36] Two types of estoppel fall under the rubric of res judicata : cause of action estoppel and issue estoppel. The first operates in respect of the whole cause of action, whereas the second applies with respect to particular issues. Standard of Review [37] Whether litigation of a cause or issue is barred by the application of the doctrine of res judicata is a question of law and is reviewable on a standard of correctness: Cliffs Over Maple Bay (Re), 2011 BCCA 180. [38] In this case the trial judge found that neither cause of action estoppel nor issue estoppel applied and the standard of review of that decision is correctness. Issue Estoppel [39] Issue estoppel is applied to prevent relitigation of a particular factual issue, even where the cause of action is not the same. In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 25, the necessary preconditions to the operation of issue estoppel were described by the Supreme Court of Canada. Issue estoppel may be invoked where: 1. the same question as that before the court has been previously decided; 2. the judicial decision said to create the estoppel was final; and 3. the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised. [40] It is important that the issues in consecutive proceedings be clearly characterized in order to properly address a claim that proceedings are barred by issue estoppel: Clayton v. Garrett (Guardian ad litem of) (1995), 6 B.C.L.R. (3d) 268 (B.C.C.A). [41] In my view the issue in the case at trial involved the characterization of the validity of the mortgage as between Reliable and Ms. Chan. In the case at bar, the issue involves the question whether Ms. Chan, in transferring the funds at Jason Lee’s request without further inquiry, was negligent or willfully blind. [42] While the trial judge made findings with respect to what was known by Ms. Chan at the time the mortgage proceeds were deposited in her account and paid out to Mr. and Ms. Lee, it cannot, in my view, be said that he made any finding with respect to the adequacy of the inquiry made by Ms. Chan when she received those funds and dealt with them. [43] In paras. 15 through 20 of the reasons for judgment, the trial judge described Ms. Chan’s evidence. There is no indication that evidence was accepted wholly or in part by the trial judge, save and except the express finding in para. 21 of the reasons for judgment where he found there was no evidence before him that Ms. Chan had any specific knowledge of Reliable, the mortgage or the forged power of attorney when she transferred the funds. The balance of the reasons for judgment addresses the question whether negligence or willful blindness was relevant to the action “as it has been pleaded”. Ultimately, as is clear from the reasons for judgment, the adequacy of Ms. Chan’s inquiry was found to be irrelevant to the case before the trial judge. The chambers judge, in my opinion, was correct in finding that there was no issue estoppel in relation to that specific question. Cause of Action Estoppel [44] Cause of action estoppel is concerned with ensuring that parties bring forward all claims and defences with respect to the cause of action in a proceeding, such that, if they fail to do so, they will be prevented from claiming these in a subsequent proceeding. In Henderson , Wigram V.C. said: The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. [45] More recently, in Hoque v. Montreal Trust Co. (1997), 162 N.S.R. (2d) 321, [1997] N.S.J. No. 430 (N.S.C.A.), Cromwell J.A. (as he then was), reviewed this basic principle of cause of action estoppel: My review of these authorities shows that while there are some very broad statements that all matters which could have been raised are barred under the principle of cause of action estoppel, none of the cases actually demonstrates this broad principle. In each case, the issue was whether the party should have raised the point now asserted in the second action. [Emphasis in original.] [46] I cannot accede to the appellants’ argument that the chambers judge erred in failing to find Reliable was barred from advancing the conversion action because of its failure to advance its whole case in the foreclosure proceedings. It cannot be said that Reliable ought to have brought forward the conversion claim in the foreclosure action. Unlike the claims made by the plaintiff in Ba-Oose Inc. v. HSBC Bank Canada , 2011 BCCA 511, a recent decision of this court addressing the issues that ought properly to be addressed in an in rem action on a mortgage, the allegations made by the respondent do not go to the root of the mortgage claim. They are distinct from the claims addressed on the foreclosure. The chambers judge was clearly of the view that the rule in Henderson should not apply in circumstances where, as here, an in rem action is commenced by petition by a party seeking relief to which it is entitled under the mortgage. The proceedings commenced by the petitioner were not intended to resolve all claims that might arise in the event it could not obtain relief pursuant to the terms of the mortgage. In my view the chambers judge could properly regard the foreclosure proceedings as a bar to other claims on the contract or arising out of the contract but not a bar to claims arising out of the failure of the contract to protect Reliable’s interests. [47] That being said, even if it could be argued that Reliable ought to have advanced all claims against Ms. Chan and Ms. Lee in the foreclosure proceedings after they were moved to the trial list, it should not be barred from bringing in the action in conversion in the special circumstances of this case. The trial judge was alive to Reliable’s intention to seek other relief other than that to which it claimed to be entitled under the mortgage. His judgment reflects the intention to reserve to Reliable any claim that Reliable might have arising out of Ms. Chan’s negligence or willful blindness. In such circumstances it would, in my view, be inequitable to bar Reliable from bringing such a claim on the basis that it ought to have sought all relief and addressed all issues in the foreclosure action. Abuse of Process by Relitigation [48] In Toronto (City) v. C.U.P.E., Local 79 , 2003 SCC 63, Arbour J. described the circumstances in which the Court should recognize abuse of process by relitigation. The court found that the inherent jurisdiction of courts to prevent such an abuse could be used to preclude the relitigation of an issue, even where issue estoppel cannot be said to have arisen. In Petrelli v. Lindell Beach Holiday Resort Ltd., 2011 BCCA 367, Groberman J.A. explained the development of this area of res judicata : [71]      Allowing a party to relitigate an issue that has been finally determined in previous proceedings, then, challenges the integrity of the adjudicative function of the courts in two respects. First, the duplication of efforts results in inefficient use of judicial resources. This inefficiency directly impacts the ability of the courts to function. It also tends to diminish public respect for the judicial process. Second, in opening up the possibility of inconsistent findings of fact, relitigation of an issue diminishes the credibility authority of judgments. [72]      These challenges to the integrity of the adjudicative functions of the court occur when a court is asked, in litigation, to come to a different finding of fact on an issue than was reached in previous litigation. There are situations in which overriding concerns of fairness to the parties require such challenges to be tolerated. The Supreme Court of Canada in Toronto v. C.U.P.E. recognized, however, that a robust doctrine of abuse of process by relitigation means that such challenges may be avoided where there are no such fairness concerns. [49] In my view, there is nothing in the conduct of the respondent in this case that challenges the integrity of the adjudicative functions of the court. The respondent alerted the trial judge in the foreclosure action to its intention to seek further or other relief in the event the mortgage was unenforceable. It now does so. As I have noted above there is in my view nothing in the judgment in the foreclosure action that finally determines any question that precludes the respondent’s action from continuing. [50] It should be noted, however, that the respondent concedes that the judgment finally determines all questions relating to the validity of the mortgage and the respondent acknowledges that it will be precluded from relitigating those issues. In finding that the chambers judge was correct to dismiss the motion to strike the pleadings and dismiss the action, I would not wish to be thought to have precluded the parties from seeking further directions or orders from the trial judge in relation to the extent that the issues, either of fact or law, that have been finally determined. Conversion Action Against Ms. Lee [51] As I have found that there is no application of res judicata that would bar the claim or justify its dismissal, it is unnecessary to consider whether such estoppel would apply to Ms. Lee. [52] For those reasons I would dismiss the appeal. [53] LOW J.A. : I agree. [54] STROMBERG-STEIN J.A. : I agree [55] LOW J.A. : The appeal is dismissed. “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Schober v. Tyson Creek Hydro Corporation 2014 BCCA 12 Date: 20140110 Docket: CA041379 Between: Peter Schober Appellant (Petitioner) And Tyson Creek Hydro Corporation Respondent (Respondent) THIS FILE IS SUBJECT TO A SEALING ORDER OF THE COURT OF APPEAL. THE SEALING ORDER WAS LIFTED BY THE SUPREME COURT OF CANADA ON JUNE 12, 2014. Before: The Honourable Mr. Justice Low The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Willcock On appeal from the Supreme Court of British Columbia, November 8, 2013 ( Schober v. Tyson Creek Hydro Corporation , 2013 BCSC 2042 Vancouver Registry No. S136825) Oral Reasons for Judgment Counsel for the Appellant: D.P. Church, Q.C. and M.W. Bhuler Counsel for the Respondent: J.M. Sullivan and L. Cundari Place and Date of Hearing: Vancouver, British Columbia January 7, 2014 Place and Date of Judgment: Vancouver, British Columbia January 10, 2014 Summary: The appellant sought an order declaring that a transcript of his examination for discovery, given on behalf of his employer in an underlying suit, is subject to an implied undertaking of confidentiality from his employer and, consequently, his employer should be prohibited from disclosing the transcript and the information contained within it for any purpose outside of the underlying action. On appeal, the appellant argued that the implied undertaking of confidentiality applies not just to the party seeking the information on discovery, but to all parties to the action. Held: appeal dismissed. The implied undertaking of confidentiality is given to the court by the inspecting party and is meant to protect the privacy interests of the party giving evidence on discovery. This undertaking does not extend so far as to prevent the party that is being discovered from using any information presented in discovery for purposes beyond the subject litigation. [1] WILLCOCK J.A.: The appellant, by petition filed on September 12, 2013, sought an order declaring that the transcript of his examination for discovery conducted on May 23, 2013, and the information in the transcript are subject to an implied undertaking of confidentiality by the respondent, Tyson Creek Hydro Corporation (“TCHC”) and an order prohibiting the disclosure of that information or the use of the transcript for any purpose outside the action pending between TCHC and others in the Vancouver Registry of the Supreme Court (the “Underlying Litigation”). [2] The petition was dismissed by Mr. Justice Cohen on November 8, 2013, for reasons indexed at 2013 BCSC 2042, which have since been sealed by order of the Supreme Court and this Court. [3] The appellant seeks to set aside the order dismissing the petition and to substitute in its place an order describing the undertaking it says should be binding upon TCHC in relation to the transcript and information disclosed on discovery. Background [4] The underlying litigation arises out of damage to electrical generating equipment constructed by TCHC at Tyson Creek on the Sunshine Coast of British Columbia, as result of the entry of particulate matter into the turbine, and an order preventing the continued operation of that equipment for a period of time as a result of the discharge of that particulate matter into Tyson Creek. That damage and the interruption in the use of the plant are said to have arisen as a result of the unexpected accumulation of glacial flour in Tyson Lake when the surface level of the lake was reduced by the operation of the electrical generating equipment. The underlying litigation is founded upon claims in contract and negligence against parties TCHC says caused or contributed to design flaws that led to unexpected abrasion and damage to the Tyson Creek facility and to the discharge of unexpected effluent into Tyson Creek. [5] The flow of water to the TCHC turbine was drawn from Tyson Lake and was intended to be returned to Tyson Creek and, ultimately, the Tzoonie River. The TCHC project was planned, built, and operated on the understanding that TCHC would obtain necessary permits to draw water for its operation from the regulatory authority established by the Province of British Columbia pursuant to the Water Act , R.S.B.C. 1996, c. 483. Those permits required periodic reporting to the Province. [6] At all material times Mr. Schober, the appellant, was an officer, director, and manager of TCHC. In May 2013, he was examined for discovery with respect to matters at issue in the litigation by Mr. Hirst, counsel for the defendant , Kerr Wood Leidal Associates Limited. After the conclusion of the first portion of his examination for discovery (which has been adjourned but is continuing) representatives of TCHC met with staff of the Ministry of Forests, Lands and Natural Resource Operations of the Provincial Government and made some disclosure of evidence gleaned from the appellant’s examination with respect to the accuracy of the records kept and the nature of the reporting the appellant had made to the regulatory authority on behalf of TCHC. [7] On being advised of TCHC’s intention to disclose information from his examination for discovery to the regulatory authorities, the appellant brought the petition, the dismissal of which has led to this appeal. Decision Appealed From [8] The appellant’s petition was founded upon the proposition that all evidence obtained on discovery is produced pursuant to an implied undertaking on the part of all parties to the litigation, that the evidence will be used for no purpose other than the prosecution or defence of the litigation in which the discovery is conducted. The appellant says he was compelled to attend the examination for discovery and he could have been found to be in contempt of court if he had refused to attend or give responsive answers. He says anyone compelled to attend at discovery is entitled to the benefit of an implied undertaking of confidentiality. He argues such an undertaking was implicitly given to him not only by the party conducting the examination for discovery but by all other parties to the litigation, including TCHC, on whose behalf he was testifying. He says that undertaking ought to preclude TCHC from making use of any of the information disclosed on his discovery and should specifically preclude TCHC from providing a transcript of the examination for discovery to the regulatory authorities. [9] Following an in camera hearing on September 23, 2013, the appellant’s petition was dismissed. The judge referred to authorities limiting the use that may be made of the transcript “by the other parties.” He held:  “it is well-settled that the implied undertaking only applies where the opposing party attempts to use the evidence outside the action.” He held the law does not support the submission made by the appellant that applying the implied undertaking to the circumstances in this case would serve the interests of justice. He held: [46] I do not view this application as one to protect the privacy of the petitioner’s personal information potentially damaging to his interests. The petitioner’s conduct, which is at the center of TCHC’s concern, is conduct he did in TCHC’s name. In my view, TCHC is not and should not be precluded by an implied undertaking from disclosing its own conduct to the provincial regulator. [10] The appellant says the judge erred in concluding that the appellant’s privacy interest in the damaging information was not protected by the implied undertaking of confidentiality. [11] This is said to be a case of first instance. Discussion [12] The narrow question in this case is whether an authorized representative of a corporation can rely upon a doctrine intended to protect the privacy of persons compelled to testify in civil proceedings, to preclude the corporation from disclosing testimony with respect to information in its care or control he has given on its behalf at an examination for discovery. [13] The implied undertaking of confidentiality is considered to be necessary so the public interest in complete and candid discovery does not trench upon the privacy interests of individuals compelled to testify. It is a measure of protection afforded to privacy interests. [14] The undertaking was restated in British Columbia by this Court in Hunt v. T & N plc , [1995] 5 W.W.R. 518, 4 B.C.L.R. (3d) 110, where the history of the doctrine was briefly described as follows: [42]      Keeping in mind that pre-trial proceedings are generally private, and that “papers are often the dearest property a man can have”, per Entick v. Carrington (1765), 95 E.R. 807 at 818, we have no doubt that, prima facie, a party obtaining production of documents is under a general obligation, in most cases, to keep such documents confidential , whether or not they disclose private or confidential material. Such seems to have been the view of all the judges in Kyuquot [ Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R. (2d) 1, 30 D.L.R. (4th) 65, (B.C.C.A.)]. [43]      This view seems to receive considerable support from an historical perspective, much of which was reviewed in Kyuquot , starting with an ancient text, The Principles and Practice of Discovery , by Edward Bray, 1885, where it was stated, at p. 238: A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit ...nor to use them or copies of them for any collateral object....If necessary an undertaking to that effect will be made a condition of granting an order.... In another passage, Bray stated that documents obtained on production could not be used except under the authority of the Court. [44] Bray, of course, wrote in the context of the English practice before discovery of documents could be obtained without an order. However, we believe the principle he states is the correct one. As Esson J.A. points out in Kyuquot , at p. 8, the law stood relatively unchanged until Alterskye v. Scott , [1948] 1 All E.R. 469 (C.A.) when, for the first time, it was held that the receipt of documents created an implied undertaking not to use them for any purpose outside the action in which they were produced and that such obligation could be enforced by proceedings for contempt. [45]      In due course, this led to the notable case of Home Office v. Harman (1982), [1983] 1 A.C. 280 (H.L.), which, to say the least, dramatically confirmed the existence of such an undertaking in England. This decision has been much criticized, but it established the context for the decision in Kyuquot . [Emphasis added.] [15] In Home Office v. Harman , the implied undertaking was described as a safeguard against abuse of what Lord Diplock referred to at page 300 as the “inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself...” In that case the issue was described in the following terms at page 302: So the questions of law in this appeal are: whether it is the duty of the solicitor of one party to civil litigation, who in the course of discovery in that litigation has obtained possession of copies of documents belonging to the other party to the litigation, to refrain from using the advantage enjoyed by virtue of such possession for some collateral or ulterior purpose of his own not reasonably necessary for the proper conduct of the action on his client’s behalf; and if so, whether a breach of that duty constitutes a contempt of court. [16] This principle led to the expression of the rule at page 304 of the judgment in Home Office v. Harman in the following terms: an order for production of documents to a solicitor on behalf of a party to civil litigation is made upon the implied undertaking given by the solicitor personally to the court (of which he is an officer) that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else; and any breach of that implied undertaking is a contempt of court by the solicitor himself. Save as respects the gravity of the contempt no distinction is to be drawn between those documents which have and those which have not been admitted in evidence; to make use for some collateral or ulterior purpose of the special advantage obtained by having possession of copies of any of an adverse party’s documents obtained upon discovery is, in my view, a contempt of court. [17] The specific object of the law in imposing the obligation was described by Lord Denning M.R. in Riddick v. Thames Board Mills Ltd., [1977] Q.B. 881 at 896: Compulsion [to disclose] is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. [18] That concern is reflected in Rule 31.22 of The Civil Procedure Rules 1998 (U.K.) , No. 3132 (L. 17), dealing with documentary discovery, which specifically refers to the use that may be made of documents by “the party to whom a document has been disclosed.” [19] The decision of this Court in Hunt, founded upon these principles , was considered and followed in Ontario in Goodman v. Rossi (1995), 24 O.R. (3d) 359, 125 D.L.R. (4th) 613 (C.A.). In that case, the court noted that the commentary of Bray in The Principles and Practice of Discovery on the rule appeared under the heading: “ as to the obligation of the inspecting party not to divulge the contents of the documents to other persons” (emphasis added). The Ontario Court of Appeal cites Hobhouse J. in Prudential Assurance Co. v. Fountain Page Ltd. , [1991] 1 W.L.R. 756 (Q.B.D.) to describe the rationale for the rule in the following terms: The rational basis for the rule is that where one party compels another, either by the enforcement of a rule of court or a specific order of the court, to disclose documents or information whether that other wishes to or not, the party obtaining the disclosure is given this power because the invasion of the other party’s rights has to give way to the need to do justice between those parties in the pending litigation between them; it follows from this that the results of such compulsion should likewise be limited to the purpose for which the order was made, namely, the purposes of that litigation then before the court between those parties and not for any other litigation or matter or any collateral purpose…. [Emphasis in original.] [20] The scope and purpose of the implied undertaking was considered by the Supreme Court of Canada in Juman v. Doucette , 2008 SCC 8. In that case the pressing question before the court was whether there is or should be an exception to the implied undertaking of confidentiality permitting the disclosure of evidence of criminal misconduct. The court underlined the important function of the rule in encouraging candor. The undertaking was described in broad terms at paragraphs 25 to 28 of the judgment in that case. Throughout, however, the undertaking was considered to have been implied on the part of the party obtaining discovery with the assistance of the compulsion of the Rules. At paragraph 4 of the judgment Binnie J., for the court, held: Thus the rule is that both documentary and oral information obtained on discovery, including information thought by one of the parties to disclose some sort of criminal conduct, is subject to the implied undertaking. It is not to be used by the other parties except for the purpose of that litigation, unless and until the scope of the undertaking is varied by a court order or other judicial order or a situation of immediate and serious danger emerges. [Emphasis in original.] [21] The undertaking is properly considered to be given to the court by parties obtaining discovery with the assistance of the court process and thereby invading another’s private rights. It does not extend, for example, so far as to preclude a lawyer from disclosing documents produced to him by his own client where that lawyer is being discovered by another party in a subsequent action. In rejecting such a claim, the Ontario Court of Appeal in Sobeski v. Mamo, 2012 ONCA 560 , held: [33]      …As this court stated in Kitchenham v. AXA Insurance (Canada) , 2008 ONCA 877, 94 O.R. (3d) 276, at para. 10, “the Rule exists to protect the privacy interest of the party compelled by the rules of disclosure to provide that information to another party to the litigation” [emphasis of Armstrong J.A.]. [22] While the court in that case was considering the undertaking now embodied in the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 , the description of the protected privacy interest and the limitation of the undertaking to the use of information given to another party (and not an undertaking between individuals who have collectively made discovery for one party) is, in my view, apposite. [23] The party making discovery need give no undertaking as to the use it will make of the information in its own possession or control. [24] The undertaking has never stood as a bar to a party voluntarily disclosing information or testimony from its own examination for discovery. [25] Further, the undertaking does not relieve a party of the obligation to disclose its own testimony in prior litigation with respect to the matters in issue in current litigation, or to permit a party to shield such information from discovery . In that respect I regard as correct the views expressed by Ehrcke J. in Wilson v. McCoy , 2006 BCSC 1011 at para. 13 (also referred to by Binnie J. in Juman ), by Williams J. in British Columbia v. Tekavec, 2012 BCSC 1348 at para. 11, and in Peter Fraser, John W. Horn and Susan A. Griffin, The Conduct of Civil Litigation in British Columbia , 2d ed., loose-leaf (Markham, Ont.: LexisNexis, 2007), in the following terms at 17-34: However, the undertaking does not apply to allow a party to resist disclosure of materials in a second action that originated with that resisting party in an earlier proceeding, such as the resisting party’s own examination for discovery transcripts or notices to admit. [26] The same result has obtained in Ontario, where the Court of Appeal has determined that both the common law rule and the provision in the Ontario Rules constrain only the recipient of information and that no undertaking to the court is given by the party making discovery. (See Kitchenham v. AXA Insurance (Canad a) , supra , and Tanner v. Clark (2003), 63 O.R. (3d) 508 (C.A.), aff’g (2002), 60 O.R. (3d) 304 (Div. Ct.), leave to appeal to S.C.C. refused, [2003] 3 S.C.R. viii , [2003] S.C.C.A. No. 192 .) [27] There is no dispute in this case that the material evidence of the appellant was evidence with respect to information collected by TCHC and on its behalf. The appellant’s testimony with respect to his own conduct was testimony with respect to the manner in which he discharged obligations owed to the company as its manager. [28] I agree with the conclusion of the chambers judge in this case that we should not imply an undertaking on the part of TCHC to the court to maintain the confidentiality of the evidence of its own representative with respect to corporate knowledge and corporate actions at his examination for discovery as its representative. [29] In my view, there was ample basis to support the chambers judge’s conclusion that the appellant personally had no privacy interest in the information disclosed on his examination for discovery, which was conveyed to the Ministry of Forests, Lands and Natural Resource Operations. [30] There is no basis on the evidence to find that discovery trenched upon the appellant’s personal privacy interest. It is that personal privacy interest that is protected, properly and vigorously, by the court with a view toward ensuring complete and candid discovery. In my view the chambers judge was correct in rejecting the appellant’s argument that he could prohibit TCHC from disclosing his testimony or information in his possession to the provincial government, simply because he disclosed that information at his examination for discovery. [31] On this appeal counsel has vigorously advanced the position that the appellant has a personal interest in maintaining confidentiality of the evidence given on his examination for discovery because its disclosure might result in his prosecution. There is no doubt that he has a personal interest in the issue. The real question is whether he ought to be entitled to assert a personal claim to privacy in the information or evidence given on his examination for discovery. In my view the chambers judge was correct in finding that he could not assert such a claim. That being the case, I see no reason to extend to him the protection of an implied undertaking or to find that TCHC, as the party giving discovery, is not free to use that discovery as it sees fit, without limitation. [32] For those reasons I would dismiss the appeal. [33] LOW J.A.: I agree. [34] STROMBERG-STEIN J.A. : I agree. [35] LOW J.A.: The appeal is dismissed. “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: First Majestic Silver Corp. v. Davila, 2014 BCCA 11 Date: 20140113 Dockets: CA041279; CA041285 Docket No.: CA041279 Between: First Majestic Silver Corp., First Silver Reserve Inc., and Minera El Pilon, S.A. de C.V. Respondents (Plaintiffs) And Hector Davila Santos and Minerales y Minas Mexicanas, S.A. de C.V. Appellants (Defendants) - and - Docket No.: CA041285 Between: First Majestic Silver Corp. Appellant (Plaintiff) And Hector Davila Santos and Minerales y Minas Mexicanas, S.A. de C.V. Respondents (Defendants) Before: The Honourable Madam Justice Neilson (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated September 13, 2013 ( First Majestic Silver Corp. v. Davila , 2013 BCSC 1704, Vancouver Docket No. S078106). Counsel for First Majestic Silver Corp. H. Shapray, Q.C. B. Cramer Counsel for H.D. Santos and Minerales y Minas Mexicanas D. Church, Q.C. M. Buhler Place and Date of Hearing: Vancouver, British Columbia December 4, 2013 Further Submissions Received: December 17 and 19, 2013 Place and Date of Judgment: Vancouver, British Columbia January 13, 2014 Summary: Applications for leave to appeal the terms of a post-judgment Mareva injunction are dismissed. The situation is fluid and the Supreme Court is the proper venue for further variation proceedings. Neither party meets the criteria for granting leave to appeal. Reasons for Judgment of the Honourable Madam Justice Neilson: [1] Both the plaintiffs (in file CA041285) and the defendants (in file CA041279) in the action below apply for leave to appeal the terms of a worldwide post-judgment Mareva injunction imposed against the defendants on September 13, 2013. For the following reasons, I would dismiss both applications for leave. [2] The original dispute between the parties involved proprietary rights over the Bolaños mining property in Mexico, operated by the Mexican defendants, Mr. H. D. Santos and Minerales Y Minas Mexicanas , S.A. de C.V (“MMM”). At trial, the plaintiffs’ primary allegation was that, by acquiring the Bolaños property, Mr. H. D. Santos, the former president, CEO, and director of the plaintiff First Silver Reserve Inc., appropriated a corporate opportunity that belonged to First Silver and breached his fiduciary duty to that company. The plaintiff First Majestic Silver Corp. is the parent company and assignee of First Silver’s claim. [3] On April 24, 2013, following a 60-day trial, Mr. Justice Myers granted judgment for the plaintiffs. As they had elected damages in lieu of a proprietary remedy, he awarded equitable compensation of USD 93.84 million for the lost opportunity: 2013 BCSC 717. [4] On May 23, 2013, the defendants filed a notice of appeal, and on June 10, 2013, the plaintiffs filed a cross appeal. The appeal precludes execution proceedings in Mexico, which is not a reciprocating state. [5] The plaintiffs scheduled an examination in aid of execution of Mr. H.D. Santos in Vancouver for June 11 and 12, 2013, but he failed to attend. [6] On June 13, 2013, the plaintiffs brought an application before Madam Justice Dickson for a worldwide post-judgment Mareva injunction against the defendants. Dickson J. issued a status quo interim order at the hearing, and delivered reasons on June 24, 2013 granting the injunction: 2013 BCSC 1209. She found that there was “a strong prima facie case and a real risk of irreparable harm” if the injunction was not granted, as the defendants did not have sufficient assets in British Columbia to satisfy the judgment and the Bolaños mine was their only other known asset. She also noted there was uncontradicted evidence that the defendants might sell the mine before execution could be achieved. She rejected Mr. H. D. Santos’ explanation for his failure to appear at the examination in aid of execution, and found the balance of convenience tipped in favour of the plaintiffs, as there was no evidence the defendants would be prejudiced by the injunction. [7] On June 25, 2013, Myers J. issued supplementary reasons for judgment that included an order that CAD 14.85 million held in trust for the defendants by their British Columbia solicitors be paid to the plaintiffs in partial satisfaction of the judgment: 2013 BCSC 1126. [8] On June 27, 2013, Madam Justice D. Smith granted the plaintiffs’ application in this Court for security for the trial judgment and ordered the defendants to post security of USD 79 million within 90 days, failing which the plaintiffs would be at liberty to apply for an order dismissing the defendants’ appeal as abandoned: 2013 BCCA 312. [9] The parties were unable to settle the terms of Madam Justice Dickson’s June 24 order, and appeared before her again on June 28, 2013 for that purpose. Their disagreement centred on the extent to which the defendants should be able to continue to operate the mine. The plaintiffs maintained that the caveat proposed by the defendants, which would permit the mine to operate “in the ordinary course of business” should not be included in the order as this could significantly diminish the value of the mine during what might be an extended appeal period. Dickson J. affirmed that her order was intended to provide security for the outstanding judgment, but held the defendants could operate the mine as long as they did not diminish its value beyond a de minimis level: 2013 BCSC 1212. She stated: [9]        Despite counsel’s able submissions, I am not persuaded the reference to the “ordinary course of business” should be deleted from the June 24 Order, at least at this juncture.  In my view, it would be unduly cumbersome and inconvenient to require the defendants to seek a variation in order to permit the conduct of mining operations of any kind.  Although I accept there is a theoretical possibility the injunction could continue well into the future, that is by no means certain or even a substantial likelihood.  If, however, the plaintiffs’ concerns are borne out and the defendants operate the mine in a manner that diminishes its value beyond the de minimis level an application to vary the June 24 Order can be made. [10] Madam Justice Dickson’s order, to which I will refer as the “Initial Order”, ultimately included these terms: 2.         Until further order of this court, each of the defendants ... shall not dispose of, pledge, mortgage, transfer, diminish (save and except in the ordinary course of business) or assign the ownership and/or value of the mineral concessions, surface land and infrastructure … known collectively as the “Bolaños Mine”, and which was the subject matter in part of this action (the “Proposed Disposition”) save and except that these prohibitions shall not apply if as part of any such Proposed Disposition or otherwise the sum of US $79 million is deposited in the trust account of Church & Company, counsel for the defendants, and not released therefrom until further order of the court or pursuant to a written agreement between the parties. 3.         Insofar as this order purports to have any extraterritorial effect, no person shall be affected thereby or concerned with the terms thereof until it shall be declared enforceable or be enforced by a foreign court and then it shall only affect them to the extent of such declaration or enforcement, unless they are: (a) either of the defendants or (b) persons who are subject to the jurisdiction of this Court and (i) have been given written notice of this order at their residence or place of business within British Columbia, and (ii) are able to prevent acts or omissions outside British Columbia which assist in the breach of the terms of this Order. 4.         Any of the parties hereto and any other person affected by this Order are at liberty to apply to this Court for further directions. [11] On September 4, 2013, the plaintiffs brought an application before Madam Justice Griffin to vary the Initial Order by removing the caveat , and adding terms requiring the defendants to pay any net cash flow generated by the mine to the plaintiffs’ lawyers in trust, and to produce documents detailing mine production and net cash flow. In support, they presented new evidence suggesting the defendants were extracting as much as 800 tons per day (tpd) of ore from the Bolaños mine, which could deplete two of the mine’s key veins in two years if the defendants are “high-grade mining” those veins. The defendants opposed the application. They argued the Court had no jurisdiction to make such orders against Mexican defendants. As well, they produced second-hand evidence, through an employee of their counsel’s firm, that they were only mining 400 to 500 tpd, and contended this was not a change in circumstances that would justify variation of the Initial Order. [12] On September 13, 2013, in reasons indexed at 2013 BCSC 1704, Griffin J. found circumstances had changed because there had been no evidence of the defendants’ operations at the mine at the hearing before Madam Justice Dickson. Madam Justice Griffin affirmed the Court’s intention was to preserve the value of the mine as security for the plaintiffs’ judgment, and accepted the plaintiffs could suffer irreparable harm if operations at the mine diminish its value below the unpaid portion of the judgment. While she found the defendants’ disclosure was “less than impressive”, and the plaintiffs’ new evidence raised concerns, she concluded the plaintiffs’ evidence was speculative and insufficient to justify an order that all mining must cease. She therefore declined to remove the caveat , but as an “interim solution” she ordered the defendants to produce monthly reports about the mine’s operations and limit MMM’s mining to 500 tpd, its current level of operations according to the defendants’ evidence: [59]      In my view the plaintiff’s counsel has more work to do to organize a submission which fairly and objectively presents the evidence of the Mine’s overall value, and the impact of estimated ongoing mining on that value, in order that the Court may fairly draw conclusions as to whether current mining operations in the short term do or do not materially impair the security available to satisfy the plaintiff’s judgment. [60]      I conclude that in weighing the prejudice to both sides there is an interim solution which will allow the Mine to be carried on at the level which the defendants say is their current level of operations, 400 to 500 tons of ore per day, but will provide security for the plaintiff’s judgment and allow the plaintiff to come back to court for the further relief it seeks or alternative relief if it is not given sufficient information to provide confidence that its security is being protected. [61]      I am going to grant the plaintiff an order requiring the defendants to provide information regarding the Mine’s operations and cash flow generated from those operations, with liberty to the plaintiff to return to court once this information is provided, or on the defendants’ failure to provide it.  This is the type of information which the plaintiff would be entitled to in ordinary judgment enforcement proceedings and there is no prejudice in requiring the defendants to produce it now.  Failure to produce this information will of course raise the possibility of an adverse inference being drawn against the defendants on any future application. [13] As to the defendants’ argument that she did not have jurisdiction to make orders affecting the operations of a Mexican mine, Madam Justice Griffin observed that the personal defendant was a former director of the plaintiffs, which were BC companies, that both defendants had attorned to the jurisdiction of the courts of this province, and that they had not raised this issue in the proceedings before Madam Justice Dickson. She pointed out the Initial Order was an in personam order, as was her intended order, and both simply directed the defendants to do or refrain from doing certain actions. As well, she noted paragraph 3 of the Initial Order, which prevented it having effect beyond the Supreme Court’s jurisdiction, would continue to apply. [14] Her order, to which I will refer as the “Variation Order”, added these terms to the Initial Order: In carrying on mining at the Bolaños Mine in the ordinary course of business, the defendants are required: (a) to limit mining operations such that they do not exceed mining of 500 tons of ore per day; (b) to limit the nature of the mining operations such that they not engage in high grade mining; (c) to preserve all Net Cash Flow, such preservation to be in a location and place disclosed to First Majestic [15] The Variation Order also required the defendants to provide the plaintiffs with monthly reports detailing the scale and type of mining activity at the Bolaños mine and the amount and location of its monthly net cash flow. The other terms of the Initial Order remained in place. [16] When the defendants failed to post security in compliance with the order of D. Smith J.A., the plaintiffs brought an application in this Court to have the appeal dismissed, which was granted on October 23, 2013: 2013 BCCA 458. [17] The defendants sought a review of the order dismissing their appeal under s. 9(6) of the Court of Appeal Act , R.S.B.C. 1996, c. 77, which was heard on December 10, 2013. Judgment has been reserved. The Issues Arising from the Applications for Leave [18] These applications raise four issues: (a)      Should this Court refuse to hear the defendants’ application for leave because they are in violation of the Variation Order? (b)      Should the defendants have leave to appeal the issue of whether Madam Justice Griffin lacked jurisdiction to make the orders in paras. 1(a) and (c) of the Variation Order? (c)      Should the defendants have leave to appeal the issue of whether Madam Justice Griffin erred by giving no, or insufficient, weight to the balance of convenience underlying the terms of the Initial Order? (d)      Should the plaintiffs have leave to appeal Madam Justice Griffin’s decision to permit the caveat to remain in place? Analysis [19] I begin with the preliminary issue of whether the defendants’ application should be heard at all. [20] On the morning of this hearing, the plaintiffs sought to introduce an affidavit sworn by an employee of their counsel the day before, which exhibited MMM’s monthly operation reports for the Bolaños mine for October 2013, which had just been delivered to plaintiffs’ counsel, as well as reports for March to August, 2013, which had been delivered to them in October. The plaintiffs argue these reports clearly demonstrate that MMM is mining more than 500 tpd at the Bolaños mine and is therefore in violation of the Variation Order. They contend this Court should therefore refuse to hear the defendants’ application for leave. [21] This Court’s general practice is to refuse to hear an appeal if the appellant has failed to comply with the order under appeal without a good explanation. This is not a rule of universal application, however, as the Court retains a discretion to proceed in appropriate circumstances: Mazara v. Mazara , 2010 BCCA 287 at para. 8. [22] Because the affidavit was sworn and delivered to the defendants on the eve of this hearing, the parties were permitted to submit supplementary arguments as to its import. These suggest the records of the mine’s operations exhibited to the affidavit may be selective, and invite the Court to make findings of fact and credibility on what may be an incomplete evidentiary record. This Court is ill-equipped to undertake such an analysis. The proper venue for such submissions is the Supreme Court, particularly since the Variation Order specifically contemplates that the parties will return to that Court if information received from the defendants is unsatisfactory and indicates further variation should be considered. I am persuaded the affidavit should not be admitted, and does not preclude me from hearing the defendants’ application for leave. [23] I turn to the criteria for leave to appeal. These were summarized in V.F. v. E.B. , 2011 BCCA 238, at paras. 19-21: (1) whether the point on appeal is of significance to the practice; (2) whether the point raised is of significance to the action itself; (3) whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and (4) whether the appeal will unduly hinder the progress of the action. [24] The onus rests on the party seeking leave to establish these criteria. The over-riding concern will be whether granting leave will serve the interests of justice. [25] This Court is reluctant to grant leave to appeal a discretionary order, unless the party seeking leave can establish the order was clearly wrong or creates serious injustice: V.F. at paras. 22-23. [26] While the parties have brought separate applications for leave, their positions on items 1, 2, and 4 of the leave criteria are similar, and I will therefore address these in both applications at the same time. I will then consider the merits of each of the proposed grounds of appeal, and will conclude by considering whether the interests of justice favour granting leave to either applicant. Is an appeal of significance to the practice? [27] Both parties rely on the rarity and severity of post-judgment Mareva injunctions to support the contention that an appeal would be significant to the practice. The defendants say this Court to date has not considered such an order and so this would be a matter of first instance. As well, they assert that the question of whether a British Columbia court has jurisdiction to restrict the operations of a foreign business asset by virtue of a post-judgment injunction is a grey area and a novel issue of interest to the profession. [28] The plaintiffs emphasize the differences between a Mareva injunction made prior to trial and one made after judgment has been rendered. They argue it is important for an appellate court to address this, and affirm that the judicial cautions associated with a pre-judgment order are no longer a concern here as there is no uncertainty as to the outcome of the action, and the injunction issues in favour of a judgment creditor. [29] A Mareva injunction is in essence a discretionary order, based on the particular facts of each case. I am not persuaded an appeal of the Variation Order would produce a result of general interest to the practice. Is an appeal of significance to the action? [30] At this post-judgment stage, the present value of the Bolaños mine, its ongoing level of operations, and the disposition of its net profit are central issues for both parties. From the plaintiffs’ perspective, the mine is the only known asset of the defendants, and there is contradictory evidence as to whether it is capable of satisfying the judgment. On the defendants’ side, any restriction of MMM’s mining operations and cash flow may jeopardize its facility and the jobs of its 390 workers. [31] It is thus apparent that any change to paragraphs 1(a) and (c) of the Variation Order would be significant to the action. I am concerned, however, that a change arising from these contemplated appeals may not be significant, given the fluidity of the situation and the fact the Supreme Court represents a more efficacious means of accomplishing a variation. Madam Justice Griffin stated the Variation Order was an interim order, pending proper disclosure of production information by the defendants and greater certainty as to any appeal period. She anticipated a further application to vary in the Supreme Court once these matters had crystallized. As previously stated, that is the proper court to consider a further change in the Variation Order. An appeal of that order, if it is outdated by proceedings in the Supreme Court, will be of little significance to the parties. Will an appeal unduly hinder the course of the action? [32] The parties maintain an appeal will not hinder the course of the action since final judgment has been given. As I have just observed, however, if a further application to vary in the Supreme Court is successful an appeal taken from the Variation Order may become an unnecessary hindrance. Do the proposed grounds of appeal have merit? 1. Did the chambers judge have jurisdiction to make the Variation Order? [33] The defendants maintain Griffin J. erred by failing to recognize the difference between ordering preservation of the asset, and intervening to interfere in its operations. They say she also erred in limiting her analysis to personal jurisdiction. Had she considered whether she had subject matter or territorial jurisdiction to order the terms in paragraphs 1(a) and (c) of the Variation Order, she would have recognized that the restriction on mining operations intrudes on the exclusive jurisdiction of the Mexican courts over mineral resources in Mexico. In support, they point to expert opinion that the operations of Mexican mines are subject only to Mexican laws governing exploitation of mineral resources, and are beyond the jurisdiction of the courts of this province. [34] The defendants express similar concerns about the order precluding MMM from accessing its net cash flow, arguing it intrudes on Mexican mining operations and it is directed not at preservation, but is a step in execution in a foreign country. They submit that for both reasons this term lies beyond the Supreme Court’s jurisdiction. [35] In my view, this ground of appeal has little merit. The defendants’ arguments fail to appreciate that a Mareva injunction is an equitable remedy, and equity acts in personam . The court’s in personam jurisdiction to enjoin conduct abroad is not founded on any assertion of judicial or administrative rights in the foreign territory but on its powers over the parties against whom the injunction is ordered. It is clear the Supreme Court had in personam jurisdiction over the defendants here, which afforded the basis for an order freezing their ex juris assets. [36] Both Madam Justice Dickson and Madam Justice Griffin were clearly sensitive to the limits on their extra-territorial jurisdiction. This is exemplified by the “ Babanaft proviso” that appears in para. 3 of both orders, in a form derived from Derby & Co. v. Weldon (Nos. 3 & 4) (1988), [1990] 1 Ch. 65 (C.A.), and adopted in this province in Mooney v. Orr (No. 1) (1994), 98 B.C.L.R. (2d) 318 (S.C.), which is clearly directed to limiting the extraterritorial effect of the injunction on third parties. [37] Moreover, I am not persuaded the defendants’ Mexican law evidence strengthens their argument. This is directed to the question of whether Mexican authorities would recognize and enforce an order from a British Columbia court that directs the defendants to cease all mining operations at the Bolaños property. That is not the order that was made. The Variation Order simply limited mining to what the defendants said was the present level of operations. Moreover, there is no evidence it has forced the defendants to act in contravention of Mexican law. The Order simply binds the defendants personally to preserve their assets. Its enforceability in Mexico is unrelated to these personal obligations, which stem from their participation in litigation in this province. 2. Did the chambers judge err by ignoring the purpose and balance of convenience established by the Initial Order? [38] The defendants say the clear purpose of the Initial Order was to provide security for the unpaid portion of the trial judgment. In that context, Madam Justice Dickson found the balance of convenience supported an order that permitted MMM to continue to operate the Bolaños mine in the ordinary course of business. Her decision was supported by projections that indicated the mine’s production would be more than adequate to pay the balance of the judgment. The defendants argue there were no new circumstances to justify Madam Justice Griffin’s decision to reassess the balance of convenience and, on her own initiative, vary the Initial Order by capping production at 500 tpd and restricting the defendants’ access to any net cash flow received by MMM. [39] I see little merit in this ground of appeal. There was evidence before Griffin J. to support a finding that there had been a change of circumstances since the Initial Order, and that a reassessment of the balance of convenience was required. Madam Justice Dickson had no evidence before her about the extent of the defendants’ ongoing mining, due primarily to their resistance to disclosure. The focus of concern when she made the Initial Order was a possible sale of the mine. By contrast, the defendants presented second-hand evidence before Madam Justice Griffin that they were mining 400-500 tpd at the Bolaños mine. She found the defendants’ disclosure was “less than impressive” and rendered the plaintiffs’ concerns about dissipation “speculative”. The available projections of the mine’s future production capability diverged, with some indicating it could easily satisfy the judgment. In my view, there is little likelihood this Court would interfere with her decision to exercise her discretion by reassessing the balance of convenience in order to maintain the objective of preserving the asset, and by striking a reasonable balance until the parties were in a position to return with more reliable information. The defendants cannot claim prejudice as the Variation Order capped mining at what they said was MMM’s present level of operations, and the direction to preserve the mine’s net cash flow permitted expenditures in the normal course of business. 3. Did the chambers judge err in failing to remove the caveat? [40] This proposed ground of appeal, advanced by the plaintiffs, is in effect a mirror image of the defendants’ second proposed ground. The plaintiffs rely on the more pessimistic projections of the mine’s value, and argue Griffin J. erred by failing to find the balance of convenience favoured a cessation of all mining until the judgment is satisfied. They assert that the caveat was only included in paragraph 2 of the Initial Order as an afterthought, in response to the defendants’ concern the order would preclude de minimis mining. Now evidence led before Griffin J. demonstrates MMM is mining up to 500 tpd, well beyond de minimis mining. As well, the plaintiffs point to findings at trial as to the defendants’ misconduct, misrepresentation, and breach of fiduciary duty, and their ongoing recalcitrance in producing satisfactory information about the mine’s operations. [41] The plaintiffs also argue that, in placing the onus of proof on them, Madam Justice Griffin failed to appreciate the significant distinctions between pre-judgment and post-judgment Mareva injunctions. They maintain that, in the post-judgment context, the defendants should be required to make full disclosure of their activities and intentions with respect to the mining at the Bolaños property, and should bear the onus of establishing this is necessary and will not diminish the mine’s value. They say that prejudice to the defendants should not be a relevant consideration at this stage unless they can establish the injunction freezes assets that are disproportionate to the judgment. [42] The defendants respond that the plaintiffs did not appeal Madam Justice Dickson’s decision to permit the caveat , and say this ground is an impermissible collateral attack on the Initial Order. Madam Justice Griffin also rejected such a term. They maintain that, having failed twice, the plaintiffs should not be permitted to use an appeal as a third attempt to shut down the mine when there has been no material change that would justify the removal of the caveat . Finally, they point out the plaintiffs elected equitable damages rather than a proprietary remedy, and so should not be permitted to interfere with the mine’s operations. [43] For similar reasons to those expressed with respect to the defendants’ second proposed ground of appeal, I am not persuaded there is merit to this ground. The Variation Order was an interim discretionary order based on Madam Justice Griffin’s factual findings, and it is unlikely this Court would interfere to substitute its own view of the appropriate level of mining operations, particularly when the Supreme Court provides a more appropriate forum for regulating this issue as new evidence emerges. [44] As to the differences between pre-judgment and post-judgment Mareva orders, the authorities recognize a distinction, observing the courts will more readily make post-judgment orders: Republic of Haiti v. Duvalier (1988), [1989] 1 All. E.R. 456 (C.A.) at 465 E ; and Babanaft International v. Bassatne (1988), [1990] 1 Ch. 13 (C.A.), at 37 C , 40 D . A Mareva injunction remains an exceptional remedy, however, even in the post-judgment context, and I do not read these decisions as going so far as to shift the onus of proof. Instead, they appear to apply a lower burden on the plaintiff. [45] In my view, Madam Justice Griffin acknowledged this by adopting, at para. 35 of her reasons, Madam Justice Dickson’s earlier review of the law in which she stated (2013 BCSC 1209 at para. 39): As is apparent from the foregoing, the overarching consideration in each and every case is the balance of justice and convenience between the parties.  This is true whether a Mareva injunction is sought in a pre or post-judgment context.  As to the latter, however, the concern noted in Tracey about tying up a defendant’s assets to provide security for a judgment that may never be obtained is obviously no longer a factor for consideration.  In my view, this is a significant difference which should be weighed in the balance where, as here, the application is brought after an award has been made in favour of the plaintiff. [46] I am not convinced Griffin J. failed to recognize this principle in weighing the limited evidence before her, and making an interim order directed to facilitate expansion of the evidentiary record for future applications. Do the interests of justice favour granting either application? [47] As is evident from my analysis, I am of the view the Variation Order strikes a reasonable balance in a fluid situation, pending further disclosure by the defendants and greater certainty as to whether their appeal will proceed. As more information becomes available, the Supreme Court is the proper forum to deal with an application to vary that order. I am not persuaded the interests of justice would be served by granting either application for leave to appeal the Variation Order. Conclusion [48] Both applications for leave to appeal are dismissed. “The Honourable Madam Justice Neilson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Pearlman v. Phelps, 2014 BCCA 20 Date: 20140116 Docket: CA039642 Between: David Pearlman Appellant (Plaintiff) And Phelps Leasing Ltd. and Thanh Hoang Phan Respondents (Defendants) Before: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Frankel The Honourable Mr. Justice Groberman Review of Order: Court of Appeal of British Columbia, July 2, 2013 (Pearlman v. Phelps , Vancouver Registry No. CA039643 and CA040978) Oral Reasons for Judgment Appellant appearing In Person: D. Pearlman Counsel for the Respondent: V.G. Critchley Place and Date of Hearing: Vancouver, British Columbia January 16, 2014 Place and Date of Judgment: Vancouver, British Columbia January 16, 2014 Summary: Review application dismissed. [1] KIRKPATRICK J.A. : Mr. Pearlman applies pursuant to s. 96 of the Court of Appeal Act , R.S.B.C. 1996, c. 77, to discharge or vary the order of a single justice, which dismissed his application for leave to appeal. [2] The test Mr. Pearlman must satisfy is well known and is set out in Halderson v. Coquitlam (City) , 2000 BCCA 672. On at least six occasions during his oral submissions, we asked Mr. Pearlman to address the manner in which the justice was said to have erred. He did not do so. [3] The onus not having been met, I would dismiss the review. [4] FRANKEL J.A. : I agree. [5] GROBERMAN J.A. : I agree. [6] KIRKPATRICK J.A. : The review is dismissed. “The Honourable Madam Justice Kirkpatrick”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Rich, 2014 BCCA 24 Date: 20140116 Docket: CA041025 Between: Regina Respondent And Vincent Noel Rich Appellant Before: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Frankel The Honourable Mr. Justice Groberman On appeal from: An order of the Supreme Court of British Columbia, dated March 14, 2013 ( R. v. Rich , 2013 BCSC 760, Terrace Docket No. 29011) Oral Reasons for Judgment Counsel for the Appellant: G. Botting Counsel for the Respondent: C. Lusk Place and Date of Hearing: Vancouver, British Columbia January 16, 2014 Place and Date of Judgment: Vancouver, British Columbia January 16, 2014 Summary: The accused was sentenced to 2½ years in prison following conviction on one count of sexual exploitation. He appeals, arguing that the sentence is not a fit one, and also that the trial judge ought to have considered his immigration status and imposed a sentence of less than 2 years imprisonment to avoid the possibility of the accused losing the right to appeal a potential removal order. Owing to subsequent changes in the Immigration and Refugee Protection Act, those consequences may now apply to any sentence of 6 months or more. Mr. Rich now seeks to have the sentence imposed by the trial judge vacated and replaced by a suspended sentence with a 30 month period of probation. Held: Appeal dismissed. The sentence was in all respects a fit one. A sentence of less than 2 years imprisonment would not have been appropriate given the gravity and circumstances of the offence. It would not be appropriate for this court to impose a suspended sentence with probation on the basis suggested by the appellant, which would put the court in the position of concealing the real nature of the sentence from the official record. [1] GROBERMAN J.A. : After a ten day trial, the accused was found guilty of one count of sexual assault and one count of sexual exploitation in respect of offences committed against his daughter, R.R., when she was between 14 and 16 years old. In accordance with a defence submission (with which the Crown agreed) that the principle in Kienapple v. The Queen , [1975] 1 S.C.R. 729 applied, a conditional stay was entered in respect of the sexual assault count, and a conviction was entered only on the sexual exploitation count. The judge sentenced the accused to 2½ years imprisonment and he applies for leave to appeal the sentence. [2] The accused, who was 50 years old at the time of sentencing, was born in the United States and remains an American citizen. Although he was brought to Canada as a young boy, and has lived in this country since that time, he has never obtained Canadian citizenship. Originally, he feared that, because he had been sentenced to a period of imprisonment in excess of two years, he might be deported, and would have no right of appeal from a removal order. As a result of amendments to s. 64 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27, a sentence of 6 months or more will probably now have that effect. Mr. Rich's immigration status was mentioned in passing in a pre-sentence report, but it does not appear that it was the focus of submissions to the sentencing judge. It is not mentioned in her reasons for sentence. [3] The accused argues that the sentence imposed is overly harsh. He places particular emphasis on the possibility that he may be deported. He says, in the circumstances of this case, a fit sentence would be a suspended sentence with a period of probation. He says that, considering that he has now been in custody for 10 months and is a good candidate for parole, substituting a suspended sentence with probation of 30 months would be appropriate, as it would, for practical purposes, impose the same punishment and treatment on him as was imposed by the trial judge, without any immigration consequences. [4] The Crown takes the position that the sentence imposed was a fit one, and says the appeal should be dismissed. The Offence [5] The sexual exploitation charge was laid in respect of the accused’s conduct towards his daughter, R.R. In June 1998, when R.R. was 14 years old, her mother was hospitalized for a period of time following an emergency caesarian section. While her mother was in hospital, the accused began to enter R.R.’s room (which she shared with her sister) at night. On these occasions, he pulled R.R.’s underwear down, moved her legs apart and touched her vaginal area with his fingers. The assaults occurred while R.R.’s sister was asleep. [6] After her mother returned home from the hospital, the accused continued to engage in sexual touching of R.R. of the same nature, sometimes including digital penetration of her vagina. R.R.’s evidence was that the accused engaged in such contact with her 40-50 times while she shared a room with her sister, and on approximately 30 further occasions after she moved into her own room at the age of 15. The incidents continued until R.R. ran away from home at the age of 16. [7] The judge was satisfied beyond a reasonable doubt that the accused engaged in the sexual contact alleged by R.R. While the judge did not come to any conclusion as to exactly how many such events occurred, it is evident that she accepted that it happened routinely. The sentencing appears to have proceeded on the basis that there were dozens of instances in which the accused engaged in sexual conduct with R.R. when she was between the ages of 14 and 16. Circumstances of the Accused [8] Mr. Rich was 50 years old at the time of sentencing. He has a grade 11 education, and worked steadily throughout his life, primarily in the forest industry. While he was a heavy user of marihuana, it was not suggested that drug use or dependency played any role in the offence for which he was convicted. [9] Mr. Rich had a criminal record, but it was described by the sentencing judge as “minor and dated” and not relevant to the sentencing. [10] The accused had some letters of support from family members, though his relationship with R.R.’s mother broke down as a result of the allegations against him. He had, at the time of sentencing, established a new relationship with another woman, and supported her and her children and grandchildren. [11] The psychiatric assessment report provided to the court indicated that the accused was at a low risk of reoffending. [12] The judge noted that the accused minimized or denied his sexual violence, and expressed little remorse or empathy for R.R. She also noted that the offences had had very serious impacts on R.R.’s life. [13] The judge considered the defence submission that a conditional sentence was appropriate, but rejected it. She considered that a sentence of less than two years would not meet the objectives of sentencing. Analysis [14] The accused’s primary submission is that the potential consequences of the sentence on the accused’s immigration status ought to have been taken into account by the sentencing judge. With considerably less vigour, in his written submissions (though not in his oral argument) he contends that the sentence, even absent immigration concerns, was unfit. [15] I would reject the contention that the sentence is unfit. The accused’s offence was a very serious one. The fact that the accused was the victim’s father is a particular aggravating factor. The accused breached his position of trust, and took advantage of his child’s vulnerability for his own purposes. He ought to have been protecting his daughter; instead he was taking advantage of her. The offence occurred over an extended period, and only ended when the victim ran away from home. [16] The accused had not, at the time of sentencing, taken responsibility for his wrongdoing, instead minimizing it. He did not have insight into his distorted attitudes. [17] The accused does not cite any cases similar to the case before us in which a suspended sentence has been imposed. While the accused cites a few cases in which conditional sentences have been imposed in respect of sexual crimes against children, I would say that such a disposition is unusual. In the case before us, there are (absent immigration concerns, which I will come to) no extraordinary factors that would make such a disposition appropriate. [18] I also agree with the Crown’s observation that “as society becomes more aware of the impact of sexual abuse on children, there has been an escalation in the severity of sentences imposed where children are the victims of sexual offences”, a proposition for which the Crown cites R. v. Allen , 2012, BCCA 377 at para. 57. Few of the cases cited by the defence are recent ones. [19] The sentence imposed by the trial judge was well within the range of appropriate sentences for this offence. Indeed, I would say that it is, in the circumstances of this offence, a considerably more lenient sentence than might have been imposed. [20] I turn, then, to the immigration issue. While it is now clear that immigration consequences can be considered by a court in imposing a sentence, it is equally clear that such consequences will not justify the imposition of a sentence that is otherwise unfit: R. v. Pham, 2013 SCC 15. While the sentencing judge in this case did not expressly consider the immigration issues raised on this appeal, she did consider the question of whether a sentence of less than two years might be appropriate. She determined that such a sentence would be insufficient in this case, particularly given the goals of deterrence and denunciation. [21] I am of the view that the sentencing judge was correct in her analysis. I acknowledge that there is some evidence before this court that the accused’s rights of appeal in respect of a potential deportation order might be affected by the length of the sentence. Nonetheless, I am of the view that the trial judge was correct in finding that a sentence of less than two years would not have been fit in this case. The concerns with respect to deportation do not transform such a disposition into an appropriate sentence. [22] Mr. Botting has suggested that substituting, today, a suspended sentence with a 30 month period of probation would, from a practical standpoint, not change the actual conditions that Mr. Rich will face. If his sentence is left unchanged, he will probably serve the next 20 months on parole. If a suspended sentence is substituted, he will serve the next 20 months on probation, under similar conditions. [23] Mr. Botting's submission requires this court to engage in an odd sort of wilful blindness. We would, for the purposes of gauging the fitness of the sentence, take into account the 10 months time served. For the purposes of official records, however, that time would be labelled as probation, so as to get around immigration laws. In my view it would be unseemly and inappropriate for this court to engage in that sort of concealment and doublethink. [24] Our role is to determine whether the sentence imposed by the trial judge was a fit one. In my view it was. [25] Accordingly, while I would grant an extension of time to apply for leave and would grant leave to appeal, I would dismiss the appeal. [26] KIRKPATRICK J.A. : I agree. [27] FRANKEL J.A. : I agree. [28] KIRKPATRICK J.A. : Leave to appeal is granted. The appeal is dismissed. “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Pedersen; R v. Serrano-Hernandez, 2014 BCCA 16 Date: 20140117 Docket Nos.:  CA039278; CA039536 Docket No.: CA039278 Between: Regina Respondent And Scott Everett Pedersen Appellant - and - Docket No: CA039536 Between: Regina Respondent And Vincente Serrano-Hernandez Appellant Restriction on Publication: A publication ban has been imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify an undercover officer. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Frankel (In Chambers) On appeal from:  An order of the Supreme Court of British, dated July 20, 2011 ( R. v. Pedersen & Serrano-Hernandez , Victoria Registry No. 149340). Counsel for the Appellant, Pedersen: R.A. Mulligan, Q.C. Counsel for the Appellant, Serrano-Hernandez M.F. Allen Counsel for the Respondent: R.D. Leong Place and Date of Hearing: Victoria, British Columbia November 29, 2013 Place and Date of Judgment: Vancouver, British Columbia January 17, 2014 Summary: Applications granted under s. 684 of the Criminal Code appointing counsel to act on conviction appeals. As some of the proposed grounds of appeal are not considered arguable, counsel are authorized to order only a limited transcript and appeal book. Reasons for Judgment of the Honourable Mr. Justice Frankel: Introduction [1] Following a lengthy trial in the Supreme Court of British Columbia, Scott Everett Pedersen and Vincente Serrano-Hernandez were convicted by a jury of possessing 1001 kilograms of cocaine for the purpose of trafficking. Each was sentenced to 14 years and 7 months’ imprisonment; effectively 16 years having regard to pre-sentence custody. [2] Mr. Pedersen and Mr. Serrano filed appeals from both conviction and sentence and sought legal-aid funding from the Legal Services Society. Funding was approved for the sentence appeals, but refused for the conviction appeals. They now apply, pursuant to s. 684(1) of the Criminal Code , R.S.C. 1985, c. C-46, for the appointment of counsel for the purpose of advancing their conviction appeals. If such an appointment is made, then the fees and disbursements of counsel will be paid by the Attorney General of Canada: see s. 684(2). [3] For the reasons that follow, I would grant Mr. Pedersen’s and Mr. Serrano’s respective applications on terms. As I will explain, I consider that the interests of justice warrant the granting of state funding, for some, but not all, of their proposed grounds of appeal. General Background [4] On the evening of March 5, 2010, the “Huntress”, a sailing vessel owned by Mr. Pedersen, was observed by a surveillance aircraft in the vicinity of Scott Islands at the north end of Vancouver Island. That aircraft had been deployed at the request of the Royal Canadian Mounted Police in response to information provided by a confidential source that a vessel containing 1,000 kilograms of cocaine had departed Panama for a location off the west coast of Vancouver. That vessel was expected to arrive in March. The flight crew was of the view that the “Huntress” was suspicious because it was unusual to see a sailboat in that area in March due to the weather conditions. As well, it was running without night-time running lights. [5] A male with a North American accent responded to a hail from the aircraft, identified the vessel as the “Huntress”, but was unable to provide the vessel’s call sign or registration. The male identified his last port as Panama and his destination as Port Hardy, British Columbia. [6] Early the following morning—March 6, 2010—the aircraft returned to the area and again located a vessel the crew believed was the “Huntress”. Flying at a high-altitude, the aircraft followed the vessel using a forward-looking infrared camera (“FLIR”). At approximately 4:00 a.m., the vessel was observed to change course and turn towards Shushartie Bay on the east coast of Vancouver Island. A small Zodiac-like vessel was observed travelling from the shoreline to the vessel and back to shore several times. Based on the use of FLIR, it appeared to the crew of the aircraft that after the final trip there was one person on shore and two on the vessel. [7] The officer-in-charge of the investigation believed that what the aircraft’s crew had observed was a “mother ship” drug offload. As a result, he gave instructions to arrest those onboard the vessel when it arrived in Port Hardy. [8] The “Huntress” pulled into Port Hardy Bay and docked at approximately 9:00 a.m. on March 6, 2010. Mr. Pedersen disembarked and was walking on the dock when he was approached by a police officer. In answer to questions from the officer, Mr. Pedersen said he had just come from Panama and pointed out the “Huntress” as his vessel. At this point he was arrested. [9] Mr. Serrano was seen by the police in the cockpit area of the “Huntress”. He was ordered off the vessel and arrested. [10] The police then did a security-sweep of the “Huntress” to ensure that no one else was onboard and to look for weapons. As I will discuss later in these reasons, the police re-boarded the “Huntress” several times to search for evidence and for other investigative purposes. [11] Several hours after the arrests, police officers made their way to Shushartie Bay, where they found 37 duffel bags each containing between 25 and 30 individually wrapped bricks of cocaine covered with a camouflage tarp. A Zodiac-style boat was located nearby. Hand-held radios were also found. [12] The trial lasted some 76 days. Approximately half that time was taken up with various motions and voir dires which took place prior to the jury being empanelled. The grounds of appeal which Mr. Pedersen and Mr. Serrano wish to advance relate, for the most part, to a number of those rulings, including a challenge to the lawfulness of the search of the “Huntress” and the admissibility of evidence found on board. They do not challenge any aspect of the trial judge’s charge to the jury. Proceeding Leading Up to the Present Application [13] The trial judge sentenced Mr. Pederson and Mr. Serrano on July 27, 2011. She also ordered the “Huntress” forfeited to the Crown. [14] On August 15, 2011, Robert A. Mulligan, Q.C., who acted for Mr. Pedersen at trial and continues to represent him, filed a notice of appeal against conviction, sentence and forfeiture. The Legal Services Society agreed to fund the sentence appeal but not the conviction appeal. That refusal was not for financial reasons. On February 16, 2012, Mr. Pederson, acting on his own behalf, filed an application for the appointment of counsel to advance his conviction appeal. [15] On December 8, 2011, Martin F. Allen, who now represents Mr. Serrano but did not act at trial, filed a notice on behalf of Mr. Serrano, appealing sentence only. At the same time, Mr. Allen filed an application for an extension of time within which to file the sentence appeal. The affidavit filed in support of the extension of time—sworn by an articled student with the Legal Services Society—sets out that: (a) within weeks of being sentenced Mr. Serrano applied for legal aid funding to appeal both conviction and sentence; (b) on November 18, 2011, funding was approved for the sentence appeal only; and (c) on November 19, 2011, a referral was issued to Mr. Allen for the sentence appeal. The refusal with respect to the conviction appeal was not for financial reasons. [16] On October 24, 2012, Mr. Allen filed an amended notice of appeal on behalf of Mr. Serrano, appealing both conviction and sentence, together with an application for an order under s. 684 appointing counsel to act on the conviction appeal. [17] In early January 2013, I was assigned to case-manage these appeals. On January 11, 2013, I made interim orders under s. 684 in connection with both conviction appeals, appointing counsel (in effect Mr. Mulligan and Mr. Allen) to act for the limited purpose of advancing full s. 684 applications. At that time, Mr. Mulligan suggested the interim appointment should provide him and Mr. Allen with authority to order the entire trial record, including all motions and voir dires . However, I declined to make such an order and, indeed, specifically included a term in my orders stating that counsel were not authorized to order any transcripts and appeal books. What I did include in my orders was a term that required defence counsel and Crown counsel, [to] cooperate to ensure that material already produced, and in particular all voir dire rulings, transcripts and the written charge to the jury from trial, are provided to each other and be made available for the hearing of the full application under section 684 of the Criminal Code . As a result, when the present applications were argued counsel and I had in hand eight voir dire rulings, counsel’s jury addresses, the written jury charge, the sentencing proceedings, and the reasons for sentence. Regularizing Mr. Serrano’s Appeals [18] Although this matter has been proceeding on the basis that Mr. Serrano has conviction and sentence appeals outstanding before this Court, in the course of preparing these reasons it came to my attention that his application for an extension of time has never been spoken to. At my request, the registry contacted Mr. Allen and Crown counsel, Raymond D. Leong, to inquire how they wished to deal with that matter. In response, Mr. Leong indicated the Crown does not oppose an extension being granted. Accordingly, I order the time for the filing of Mr. Serrano’s amended notice of appeal be extended to October 24, 2012. Test for the Appointment of Counsel [19] Section 684(1) of the Criminal Code provides: A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance. [20] The approach to be taken in considering an application under s. 684 is well known. It was summarized as follows by Madam Justice MacKenzie in R. v. Silcoff , 2012 BCCA 463: [20]      The overriding purpose of s. 684 of the Code is to protect the right to be heard and to ensure the fairness of the proceedings: R. v. Barton and Federici , 2001 BCCA 477 at para. 7. [21]      Appointment of counsel under s. 684 is subject to a two-part test, generally considered in the following order: 1.   The accused must have insufficient means to obtain legal assistance; and 2.   Appointment of counsel must be in the interests of justice. [22]      According to Applications for a Court-Appointed Lawyer Under Section 684 of the Criminal Code (Criminal Practice Directive, 19 September 2011), applicants should generally be able to show that 1) they cannot afford to retain counsel for the appeal; and 2) they applied to the Legal Services Society for legal aid and were refused. [23]      The factors to be considered under the requirement of “interests of justice” were summarized in International Forest Products Ltd. v. Wolfe , 2001 BCCA 632 at para. 6 and 13, 94 B.C.L.R. (3d) 67 (Levine J.A. in Chambers). They are as follows: a.   The points to be argued on appeal; b.   The complexity of the case; c.   Any point of general importance in the appeal; d.   The applicant’s competency to present the appeal; e.   The need for counsel to find facts, research law or make argument; f.    The nature and extent of the penalty imposed; and g.   The merits of the appeal. [24]      As to the merits of the appeal, the threshold requirement is an arguable appeal: R. v. Donald , 2008 BCCA 316 at para. 15, 258 B.C.A.C. 117 (Saunders J.A. in Chambers). [25]      In determining whether an appeal is arguable, regard must be had to the applicable standard of review on the proposed appeal: Lin v. British Columbia (Adult Forensic Psychiatric Services) , 2008 BCCA 518 at paras. 17-18 (Frankel J.A. in Chambers). [26]      Even where other factors favour the appointment of counsel, it will not be in the interests of justice to appoint counsel where an appeal has no merit: R. v. Hoskins , 2012 BCCA 51 at paras. 30-32, 315 B.C.A.C. 238 (Garson J.A. in Chambers). [27]      The Court may consider the opinion of the Legal Services Society that an appeal has no prospect of success, however, the opinion of the Legal Services Society is only one factor: R. v. Chan , 2001 BCCA 138 at para. 8 (Finch J.A., as he was then, in Chambers); R. v. Butler , 2006 BCCA 476 at paras. 7 and 10 (Rowles J.A. in Chambers). See also: R. v. Bath , 2013 BCCA 126 at para. 12 (Chambers), 335 B.C.A.C. 144. [21] As discussed in greater detail below, in this case the critical issue is whether Mr. Pedersen and Mr. Serrano have arguable grounds of appeal. The Crown accepts they do not have either the financial ability to independently obtain legal assistance or the ability to present their appeals without the assistance of counsel. [22] One further point that should be mentioned is that I am of the view it is open to a judge who makes an order under s. 684, to limit the contents of the transcript and the appeal book to that which is necessary to advance the grounds of appeal found to be arguable. In other words, an appointment of counsel will not necessarily carry with it authority to order the entire trial record at public expense:  see R. v. Bernardo (1997), 121 C.C.C. (3d) 123 at paras. 33 – 37 (Ont. C.A.). For example, if there does not appear to be any merit in a proposed challenge to a voir dire ruling, then permission to order the record of that voir dire need not be granted. Proposed Grounds of Appeal [23] Mr. Pedersen’s submissions relate to several proposed grounds of appeal, some of which are specific to him. Mr. Serrano limited his submissions to the ground challenging his arrest, the search of the “Huntress” and the admissibility of what was found on board. However, Mr. Serrano did express support for the grounds put forward by Mr. Pedersen which, if successful, would benefit him. Drug-Detection Dog Evidence [24] Some 11 days after the “Huntress” was seized a police dog handler went on board with a dog trained to detect seven different drugs, namely marihuana, Cannabis resin, cocaine, crack cocaine, methamphetamine, heroin and psilocybin (magic mushrooms). The handler testified the dog reacted in a manner consistent with detecting the scent of one or more of those drugs near some drawers and at the back of the vessel. However, the handler could not say what drug or drugs the dog detected. The police did not find any drugs on the vessel. [25] Mr. Pedersen and Mr. Serrano objected to the admission of the dog handler’s evidence on two bases:  (a) the officer did not have sufficient expertise and experience; and (b) its probative value was low and its potential prejudicial effect high. The trial judge overruled those objections and allowed the Crown to tender the evidence : Oral Reasons re Voir Dire No. 9 (Evidence of Corporal Calibaba) (June 22, 2011). She gave the jury a “special caution” before it heard the evidence and repeated that caution in her charge. [26] On appeal, Mr. Pedersen only seeks to raise the probative/prejudicial point. He submits the evidence of the presence of the odour of some unidentified drug or drugs on board the “Huntress” is of dubious value and ought not to have been heard by the jury. The Crown supports the trial judge’s ruling and the manner in which she dealt with the evidence in her charge. [27] In my view, the issue of the admissibility of the dog handler’s evidence is an arguable ground of appeal that Mr. Pedersen should be permitted to advance before a division of this Court. [28] Although the next matter might have been for me to decide what part of the record is required to argue this issue, the position taken by the Crown has obviated the need for me to do so. This is because Mr. Leong indicated that if this Court determines that the impugned evidence should not have been admitted, then the Crown will seek dismissal of these appeals under s. 686(1)(b)(iii) of the Criminal Code , i.e., on the basis that the admission of that evidence did not give rise to a “substantial wrong or miscarriage of justice”. Mr. Leong says to advance that argument the Crown will require the complete record of the case before the jury. [29] Accordingly, the appointment of counsel will include authority to order transcript that include the entirety of the trial proper (i.e., evidence and proceedings before the jury and submissions/discussions in the absence of the jury), and an appeal book containing all exhibits tendered before the jury, Oral Reasons re Voir Dire No. 9, and the written charge to the jury. [30] As the entirety of the proceedings before the jury will be filed on the appeal, I need not discuss another ground proposed by Mr. Pedersen which concerns the admissibility of evidence as to how he “reacted” during a post-arrest interview. This is because I have already authorized the ordering of the record needed to advance this ground. [31] If upon reviewing the above-mentioned transcript and appeal book Mr. Mulligan and Mr. Allen determine there are other grounds of appeal to be raised on behalf of their respective clients, they are, of course, at liberty to do so. Arrests, Search of the “Huntress”/Admissibility of Evidence [32] As previously mentioned, Mr. Pedersen and Mr. Serrano were arrested shortly after the “Huntress” docked in Port Hardy on March 6, 2010. Immediately following those arrests, the police did a security sweep of the vessel for weapons. Later that day, the vessel was searched and a number of items seized. Thereafter, the police re-boarded the “Huntress” on the following dates: March 7, 2010:          seizure of hand-held radios discovered during the first search but not seized at that time; March 9, 2010:          seizure of diving equipment and photographs taken of the interior of the vessel; March 17, 2010:       “Huntress” now in dry dock, vessel searched, measurements and photographs taken; drug dog taken on board; April 6, 2010:             seizure of compact discs and documents. [33] At trial, Mr. Pedersen and Mr. Serrano asserted the police did not have reasonable grounds to arrest them and that, as a result, the searches of the “Huntress” were unlawful. They sought the exclusion of all of the evidence obtained from the vessel pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act , 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [34] The trial judge found that Mr. Pedersen and Mr. Serrano were lawfully arrested, and that the searches of the “Huntress” on March 6 and 7, 2010, were lawfully conducted pursuant to the common-law power to search incidental to arrest. Although the judge found the subsequent searches unlawful, she nevertheless, in what she described as a “close call”, admitted the evidence obtained as a result of those searches : Oral Reasons for Judgment on Voir Dire No. 1 (March 10, 2011); Oral Reasons for Judgment, Voir Dire No. 1 – Section 24(2) Hearing (May 9, 2011). [35] Mr. Pedersen and Mr. Serrano contend that the trial judge erred in finding their arrests lawful. Their position is that objectively reasonable grounds did not exist. They further contend that if their arrests were not lawful, then all of the evidence obtained from the “Huntress” should be excluded. In response, the Crown says that the trial judge’s finding that the arrests were lawful is supported by the record. The Crown further says that the judge’s decision to admit the evidence she found had been improperly obtained is entitled to considerable deference. [36] Based on what is presently before me, I cannot say that the points Mr. Pedersen and Mr. Serrano seek to raise are not arguable. Accordingly, the appointment of counsel will include authority to order the transcript of Voir Dire No. 1, and include in the appeal book the two Voir Dire No. 1 Rulings mentioned above, and any relevant voir dire exhibits that have not otherwise been ordered reproduced. [37] It should be noted that one of the issues Mr. Pedersen and Mr. Serrano indicate they wish to raise concerns the trial judge’s refusal to compel disclosure of the name of the police officer who provided the lead investigator with information from the confidential source. That request was made during Voir Dire No. 1 and renewed later in the trial:  see, e.g., Oral Reasons for Judgment on Voir Dire No. 5 – Right to Counsel and Abuse of Process, Scott Everett Pedersen (May 9, 2011) at paras. 67 – 71. If this disclosure point is pursued, then that ruling and any others in which the trial judge dealt with this issue should be included in the material filed on the appeal. Issues Relating to Mr. Pedersen’s Statements [38] The trial judge conducted a voir dire to determine the voluntariness of three statements made by Mr. Pedersen. The first statement was made at the time of and shortly after his arrest. The second statement was made during a 45 minute interview that took place on March 7, 2010, while Mr. Pedersen was in custody in Port Hardy. The third statement was an interview that lasted approximately three and one-half hours. That interview took place at the Vancouver Island Regional Correctional Centre after Mr. Pedersen had been remanded into custody, and after he had retained counsel. The trial judge was satisfied beyond a reasonable doubt that all of those statements were voluntary:  Oral Reasons for Judgment on Voir Dire No. 2 – Statements of Scott Everett Pedersen (March 31, 2011). [39] Subsequent to the ruling given by the trial judge on Voir Dire No. 2, Mr. Pedersen applied to the trial judge for exclusion of his statements and a judicial stay of proceedings on the basis of abuse of process. A further voir dire was conducted at which two witnesses were called. However, in adjudicating the issues raised by Mr. Pedersen, the judge took into consideration evidence that had been presented on other voir dires . The judge dismissed Mr. Pedersen’s application:  Oral Reasons for Judgment on Voir Dire No. 5 – Right to Counsel and Abuse of Process, Scott Everett Pedersen (May 9, 2011). [40] Mr. Pedersen seeks to argue on appeal that the police violated his rights by interviewing him at the Vancouver Island Regional Correctional Centre without first notifying his counsel and in the absence of his counsel. He also seeks to argue that the police improperly attempted to persuade him to become an informer. [41] In rejecting those submissions, the trial judge found as a fact that Mr. Pedersen understood his right to counsel and his right to silence, and had no difficulty in exercising his right to silence. She further held, having regard to R. v. Sinclair , 2010 SCC 35, [2010] 2 S.C.R. 310, R. v. McCrimmon , 2010 SCC 36, [2010] 2 S.C.R. 402, and R. v. Ashmore , 2011 BCCA 18, 267 C.C.C. (3d) 108, leave ref’d [2012] 1 S.C.R. v, that there had been no violation of Mr. Pedersen’s rights. Last, the judge was not satisfied that Mr. Pedersen had proven, on a balance of probabilities, that the police attempted to recruit him as an informer. [42] In my view, Mr. Pedersen has failed to demonstrate his proposed arguments have any prospect of success. Given that a trial judge’s findings of fact are entitled to considerable deference on appeal—the standard of review is palpable and overriding error—it is not sufficient simply to assert error in the abstract. In this regard, I note that Mr. Pedersen has not suggested there was no evidence to support the judge’s findings. [43] As for the alleged breach of Mr. Pedersen’s rights, the trial judge’s decision is in accord with the authorities upon which she relied. I see no prospect that a division of this Court would hold otherwise. [44] In the result, I do not authorize the ordering of those portions of the record that relate only to raising the issues I have just discussed. The Post-Arrest Press Conference [45] Approximately one week after Mr. Pedersen and Mr. Serrano were arrested and charged the police conducted a press conference. Senior law enforcement and military officers addressed the media, as did the provincial Solicitor General. At trial, Mr. Pedersen sought a stay of proceedings on the basis this conference amounted to a contempt of court and prejudiced his right to a fair trial. The trial judge dismissed that application:  Oral Reasons for Judgment on Voir Dire No. 5 – Right to Counsel and Abuse of Process, Scott Everett Pedersen (May 9, 2011). However, during jury selection, she conducted a challenge for cause hearing at which prospective jurors were asked the following question: Can you judge this case fairly based soley on the evidence presented in court, despite anything you have read, seen, or heard outside court in the media, including radio, television, newspapers, and the internet, even if what you have read, seen, or heard came from high ranking government officials and police officers? [46] Mr. Pedersen describes what occurred as a “‘trophy’ press conference”. He seeks to argue that the conduct of those who participated in the conference was unacceptable and warrants judicial disapprobation. The Crown’s position is it could never be said that this press conference, which took place more than a year before the jury was empanelled, warranted a remedy as drastic as a stay of proceedings. It further says that any possible prejudice was appropriately dealt with by the challenge for cause procedure. [47] I find it unnecessary to determine whether this issue independently reaches the threshold of an arguable ground. I say that because:  (a) the evidence relating to the press conference was tendered during Voir Dire No. 1, the record of which I have already found should be produced; and (b) I have already found the ruling on Voir Dire No. 5 should be produced. As a result, what is necessary to advance this ground will be before the Court in any event. Disposition [48] In the result, I order: (a)           the time for the filing of Mr. Serrano’s amended notice of appeal be extended to October 24, 2012; (b)           the appointment of counsel for Mr. Pedersen to conduct his conviction appeal, counsel’s fees to be paid in accordance with the prevailing legal-aid tariff; (c)           the appointment of counsel for Mr. Serrano to conduct his conviction appeal, counsel’s fees to be paid in accordance with the prevailing legal-aid tariff; (d)           that counsel for Mr. Pedersen and Mr. Serrano are authorized to obtain, file, and serve, a common transcript and appeal book, containing: (i)         the complete evidentiary record of Voir Dire No. 1 (i.e., the arrest of the appellants and the searches of the “Huntress”); (ii)        Oral Reasons for Judgment on Voir Dire No. 1 (March 10, 2011); (iii)       Oral Reasons for Judgment, Voir Dire No. 1 – Section 24(2) Hearing (May 9, 2011); (iv)       Oral Reasons for Judgment on Voir Dire No. 5 – Right to Counsel and Abuse of Process, Scott Everett Pedersen (May 9, 2011), and any other rulings in which the trial judge affirmed her decision refusing to order disclosure of the name of the police officer who provided information obtained from the confidential source; and (v)        the complete record of the trial before the jury, including the agreed upon challenge for cause question, Oral Reasons re Voir Dire No. 9 (Evidence of Corporal Calibaba) (June 22, 2011), and the written charge to the jury; and (e)          that for the purpose of determining the timelines for these appeals under the Pilot Project Regarding Criminal Conviction/Acquittal Appeals Practice Directive, the date these reasons are released is to be treated as the date on which Mr. Pedersen and Mr. Serrano filed their respective notices of appeal. [49] If counsel for Mr. Pedersen and Mr. Serrano are of the view that additional parts of the record are needed to advance the grounds of appeal I have found to be arguable, then they are at liberty to order those, provided they obtain the prior written approval of Crown counsel. In the event such approval is not given, arrangements can be made through the registry to have this matter brought back before me. Such arrangements can also be made if any counsel considers further case-management would assist in moving this matter forward for hearing. “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Ferrari v. University of British Columbia, 2014 BCCA 18 Date: 20140121 Docket: CA040195 Between: Lee Ferrari Appellant (Plaintiff) And University of British Columbia Respondent (Defendant) And Association of Administrative and Professional Staff Intervenor Before: The Honourable Mr. Justice Frankel The Honourable Madam Justice Garson The Honourable Madam Justice Stromberg-Stein On appeal from:  An order of the Supreme Court of British Columbia, dated August 3, 2012, ( Ferrari v. University of British Columbia , 2012 BCSC 1173, Vancouver Docket No. S115870). Counsel for the Appellant: J. Coutts Counsel for the Respondent: M. Korbin Counsel for the Intervenor A.E. Black, Q.C. and S.T. Mayor Place and Date of Hearing: Vancouver, British Columbia September 16, 2013 Place and Date of Judgment: Vancouver, British Columbia January 21, 2014 Written Reasons by: The Honourable Madam Justice Garson Concurred in by: The Honourable Mr. Justice Frankel The Honourable Madam Justice Stromberg-Stein Summary: The appellant Ferrari appeals from an order staying his civil claim for wrongful dismissal against the University of British Columbia (“UBC”).  UBC applied to the Supreme Court for an order staying the action on the basis that arbitration was the only remedy available to Mr. Ferrari in the face of an arbitration agreement between him represented by the Association of Administrative and Professional Staff (“AAPS” or the “Association”) and the University.  The Supreme Court judge stayed the action pursuant to s. 15(2) of the Commercial Arbitration Act, R.S.B.C. 1996, c. 55, on the basis that the Court lacked jurisdiction to hear the dispute because of the exclusive arbitration clause in the employment agreements that govern the employment relationship between Mr. Ferrari and UBC.  The judge found that the agreement containing the arbitration clause was incorporated within the terms of Mr. Ferrari’s employment. On appeal, Mr. Ferrari appeals on the basis that the order staying his civil claim deprives him of any legal remedy to challenge his wrongful dismissal. Held: Appeal dismissed. The terms of his employment include, and he is bound by, the arbitration agreement.  The fact that his representative association refused to carry forward his grievance does not render the agreement to arbitrate null and void, inoperative, or incapable of being performed within the meaning of s. 15(2) of the Act. Reasons for Judgment of the Honourable Madam Justice Garson: 1.       Introduction [1] This is an appeal of an order staying Mr. Ferrari’s civil claim for wrongful dismissal against the University of British Columbia (“UBC”). [2] UBC applied to the Supreme Court for an order staying the action.  UBC argued that arbitration was the only remedy available to Mr. Ferrari in the face of an arbitration agreement between the Association of Administrative and Professional Staff (“AAPS” or the “Association”) and the University.  The Supreme Court judge stayed the action pursuant to s. 15(2) of the Commercial Arbitration Act , R.S.B.C. 1996, c. 55, on the basis that the Court lacked jurisdiction to hear the dispute because of the exclusive arbitration clause in the employment agreements that govern the employment relationship between Mr. Ferrari and UBC. [3] Mr. Ferrari appeals the judge’s order on the grounds that it deprives him of any legal remedy to challenge his wrongful dismissal. [4] For the reasons that follow, I would dismiss the appeal. 2.       Background Facts [5] In 1990, Mr. Ferrari began working at UBC as a labourer in the Department of Plant Operations.  His employment was governed by a collective agreement between the University and the trade union of which he was a member. [6] Effective November 1, 1999, Mr. Ferrari was permanently appointed to the position of Asset & Material Management Supervisor, a non-union position. [7] As a condition of his appointment, Mr. Ferrari was required to become a member of AAPS, a non-union organization whose membership consists of non-faculty management and professional employees of the University.  AAPS is the recognized bargaining agent for its members, which includes being the exclusive representative of its members in grievance proceedings against the University. [8] By letter dated November 24, 1999, the University confirmed the terms of Mr. Ferrari’s employment and asked him to sign two copies of the letter indicating his acceptance of those terms.  Mr. Ferrari signed the letter, which read in part: Congratulations on your new appointment with the University of British Columbia.  This letter will confirm our offer and your acceptance of the position of Asset & Material Management Supervisor in the Department of Plant Operations (Municipal & Business Services) effective 1999 November 01. Please take time to familiarize yourself with the Agreement for Management and Professional Staff, and the Framework Agreement between the University and the Association of Administrative & Profession Staff (AAPS), which include the terms of your employment with the University. As a condition of employment you are required to become a member of the Association of Administrative and Professional Staff (AAPS).  This Association represents you in dealings with the University.  Please attend the AAPS information session which occurs alternate Fridays (see attached schedule) from 8:45 a.m. to 9:00 a.m. at Human Resources, Room 350 of the General Services Administration Building. There are two copies of this letter enclosed.  The first is for your records, the second is to be signed by you to acknowledge your acceptance of our offer of employment and to indicate your agreement with the terms outlined in the letter.  Please return the signed copy to Financial Services at your earliest convenience as it is required to initiate your new paycheque. [9] In an affidavit filed on the application to stay his action, Mr. Ferrari stated that he did not recall receiving copies of the agreements referred to in the above letter.  At para. 20 of his reasons for judgment, the chambers judge noted that there was no evidence that Mr. Ferrari requested copies of the agreements if, in fact, they had not been provided to him with the November 24 letter.  The chambers judge disregarded Mr. Ferrari’s claim that he did not receive the agreements as a ground for denying their applicability to him.  Mr. Ferrari has not appealed that finding and I need say no more about it. [10] Below, I set out the pertinent sections of the Agreement on Conditions and Terms of Employment (the “ACTE”) and the Framework Agreement (the “FA”) as well as the bylaws that govern AAPS.  Of importance to this appeal are the grievance and arbitration clauses applicable to the termination of an employee’s employment. [11] The University terminated Mr. Ferrari’s employment on September 28, 2010, by letter of the same date.  That letter provides as follows: This letter is further to our meetings with you of September 21 and 24, 2010 and its purpose is to inform you that your employment with the University will be terminated for cause effective immediately. Our decision to terminate your employment is based on the findings from the University’s recent investigation into your fraudulent use and sale of University vehicles. You used the University’s 2001 Cavalier & 2006 Toyota Prius for personal use without authorization over several years beginning in 2003. Your actions are tantamount to theft considering the benefit you derived by the University assuming the cost of the gas, towing charges, insurance, and lease payments. Furthermore, you knowingly and repeatedly drove the vehicle off-campus without the appropriate insurance coverage. In fact you continued this practice despite the University’s policy, which you helped develop, that explicitly states University vehicles are not to be used for personal use. When interviewed, your explanations were inconsistent and you were dishonest and deceitful. Your actions amount to fraud and are completely incompatible with maintaining your ongoing employment with the University. You have fundamentally breached the trust required between the University and our employees. As a result of the investigation, it is evident you owe the University for gas and other expenses. The total amount is still to be determined. We will contact you by separate letter to advise you of this amount and to provide you with instructions on repayment. You will receive a lump sum payment for any outstanding vacation you may have as of today’s date. [12] After the termination of his employment, Mr. Ferrari contacted AAPS to initiate a grievance.  In follow-up to a prior conversation, Mr. Ferrari wrote to AAPS on November 11, 2010, and requested AAPS advise him as to whether it would pursue a grievance on his behalf.  On November 15, 2010, AAPS responded that it would not file a grievance nor arbitrate his termination.  The letter notifying him of the Association’s decision is partially reproduced below: As outlined to you verbally by our Member Services Officer Sharon Cory, AAPS will not be filing a grievance in this matter. In deciding whether or not to file a grievance two overriding matters need to be discerned [ sic ]; first, was the employee afforded due process in the investigation process? Second, is the sanction reasonable in light of the offence? In both cases we feel the University has met its burden. You were afforded representation in the disciplinary meeting at which you were questioned about excessive personal use of a UBC vehicle. Having offered no credible reason for having used the vehicle for substantial personal use we are of the belief that the University was reasonable in concluding that the employment relationship had been irrevocably severed. In discussions with Sharon about the investigation meeting she reported that no credible explanation was ever offered for the use of the vehicle. In considering whether or not to grieve a termination AAPS must be convinced of the merits of the case and that there is some reasonable prospect of prevailing at arbitration. Given the lack of explanation about your use of the vehicle, neither condition is met here. While I understand how difficult this decision will be for you, please be assured that I have carefully consulted with our legal counsel and the Chair of our advocacy committee in coming to the decision not to grieve this termination. [13] Mr. Ferrari denies the truth of UBC’s allegations against him.  He argues that if he is unable to pursue his wrongful dismissal action in a court, he will have no remedy at all for the wrongful termination of his employment.  Mr. Ferrari filed a Notice of Civil Claim against the University on September 6, 2011.  In response, on October 26, 2011, the University filed an application under s. 15 of the Commercial Arbitration Act to stay the proceedings.  That application was granted on August 3, 2012. 3.       Reasons for Judgment of the Chambers Judge: 2012 BCSC 1173 [14] The chambers judge found that the terms and conditions of Mr. Ferrari’s employment were set out in two agreements negotiated between the University and AAPS: the ACTE and the FA.  He found that the ACTE and FA were incorporated by reference into the terms of Mr. Ferrari’s employment contract and that Mr. Ferrari was bound by the agreements.  The chambers judge further held that the legal proceedings commenced by Mr. Ferrari were in respect of a matter that was subject to arbitration pursuant to those agreements. The fact that the dispute did not go to arbitration because AAPS declined to proceed did not negate the fact that Mr. Ferrari was a party to the arbitration agreement as defined by the Commercial Arbitration Act . [15] The chambers judge summarized the parties’ arguments at paras. 14–16 of his reasons for judgment: [14]      UBC submits that it has satisfied the prerequisites for a stay of proceedings which have been stated by the Court of Appeal in Prince George (City) v. McElhanney Engineering Services Ltd. (1995),  9 B.C.L.R. (3d) 368 (B.C.C.A.), (leave to appeal to S.C.C. denied) at para. 22: 1)         a party to an arbitration agreement has commenced legal proceedings against another party to the agreement; 2)         the legal proceedings are in respect of a matter agreed to be submitted to arbitration; and 3)         the application has been brought in a timely manner, i.e. before the applicant has taken a step in the proceedings. [15]      Mr. Ferrari agrees that these tests are applicable but says that he was not a party to an arbitration agreement and, in any event, the agreement is void, inoperative or incapable of being performed because AAPS refused to proceed to arbitration. [16]      Mr. Ferrari also says that employees should not be prevented from pursuing a claim regarding dismissal from employment by reason of their membership in AAPS. If these proceedings are stayed, he argues, he will be left without any recourse for his wrongful dismissal. [16] The chambers judge concluded at para. 32 that the test in McElhanney had been satisfied.  He noted Mr. Ferrari’s argument that the arbitration agreement was inoperative or incapable of being performed because AAPS refused to advance his claim to arbitration.  The judge found that the decision by AAPS not to advance a grievance was one that was open to it under the provisions of the FA and did not render the arbitration agreement incapable of being performed. [17] As to the question of whether Mr. Ferrari was left without a remedy, the chambers judge held at para. 40: [40]      Unlike disputes which are governed by the Labour Relations Code , where an employee may file a complaint under s. 12 of that Code if a union decides not to advance a grievance to arbitration, Mr. Ferrari does not have the right to complain to the Labour Relations Board about AAPS decision not to advance his grievance to arbitration. However, I agree with UBC that Mr. Ferrari is not left without a remedy. In my view it was, and may still be, open to him to proceed against AAPS and allege that AAPS failed in its duty of representing him as his agent, or for breach of its fiduciary duty, in deciding not to advance his grievance. [18] In the result, the chambers judge stayed the action and awarded costs to the University. 4.       Grounds of Appeal [19] Mr. Ferrari argues that the chambers judge erred by: 1.         Determining that the Appellant was a party to an arbitration agreement because he was bound by the ACTE and FA and despite having no control over the arbitration process or the ability to compel the Respondent to arbitrate his dismissal; 2.         Determining that the arbitration agreement was not “void, inoperative or incapable of being performed”, despite AAPS’s refusal to proceed to arbitration in respect of the Appellant’s wrongful dismissal; and 3.         Determining that it is in the interests of justice to deny the Appellant a remedy against the Respondent for his wrongful dismissal. [20] UBC states the issues on appeal somewhat differently: 1.         The Respondent submits that the Chambers Judge did not err by determining that the Appellant was a party to the arbitration agreement or by determining that the arbitration agreement was not void, inoperative, or incapable of being performed. 2.         Contrary to paragraph 13(c) of the Appellant’s Factum, the Chambers Judge did not make any determination about the “interests of justice”, nor was he required to do so.  Rather, in supporting his decision to grant the stay, the Chambers Judge noted that the dispute resolution procedure in the FA and the ACTE has similarities to a collective agreement, applies to some 3,000 AAPS members, and allows for disputes to be resolved efficiently and economically.  He concluded that allowing the Appellant to proceed with his civil action against the Respondent would circumvent and defeat the objectives of this dispute resolution procedure and undermine the purpose of section 15 of the [ Commercial Arbitration Act ] and of this dispute resolution procedure.  The Respondent submits that the Judge did not err in so concluding. [21] The intervenor, AAPS, supports the position taken by UBC. 5.       Application of the Intervenor AAPS [22] AAPS was not a party to the proceedings below.  This Court granted AAPS intervenor status. [23] First, AAPS asserts that the chambers judge appears to have decided that an action against AAPS for failure to represent Mr. Ferrari, or for breach of fiduciary duty, is open to the plaintiff despite the fact that AAPS was not a party to the action and had no opportunity to argue against the availability of those remedies.  Second, AAPS wishes to explain to this Court its perspective on Mr. Ferrari’s argument that he is entitled to a common law remedy for wrongful dismissal, notwithstanding that his employment agreement appoints AAPS  his exclusive representative to pursue, or not, a grievance. [24] Finally, AAPS submits that there are internal remedies available to Mr. Ferrari to dispute its decision not to grieve on his behalf and that he failed to exhaust those remedies before commencing his civil action.  That argument was not made before the chambers judge below.  Given that it was not heard by the court below and since AAPS is an intervenor before this Court, not a party to the dispute, it is my view that this Court ought not entertain its internal remedies argument: Faculty Association of the University of British Columbia v. University of British Columbia , 2008 BCCA 376 at para. 15. 6.       The Agreements, Bylaws and Constitution of AAPS a.       Bylaws [25] As noted by the chambers judge, there are two agreements that govern the terms of employment between Mr. Ferrari, the University and AAPS.  I would add that the Association’s constitution and bylaws are also relevant.  To begin I will review those bylaws important to this case. [26] Article, XIII is the provision of the bylaws that sets up the AAPS Advocacy Committee.  The Advocacy Committee is responsible for representation of its members in employment disputes.  The provision reads in pertinent part: 4.         The Advocacy Committee shall: a.         assist and advise management and professional staff on their rights regarding terms and conditions of employment; b.         provide Association representation regarding employment disputes and grievances. 8.         Subject to the Constitution and By-Laws, the Executive Board may direct the exercise and performance of all powers and duties specified in articles XII to XIII-5 inclusive. [27] Neither the bylaws nor the constitution contain an explicit provision permitting the appeal or review of decisions made by the Advocacy Committee. b.       Agreement on Conditions and Terms of Employment (ACTE) [28] The first of the two agreements negotiated between the University and AAPS was the ACTE.  The relevant portions of that agreement are set out in the following paragraphs. [29] The parties to the ACTE are defined as AAPS and UBC.  One of the grounds upon which Mr. Ferrari appeals, is that he is not defined as a party to the agreement and cannot therefore be bound by it.  I will discuss this argument further below. [30] Article 2 includes the following provision respecting the applicability of common law employment principles: Common law employment principles apply to the employment relationship between the University and employees unless specifically modified by this Agreement. [31] Article 4, “Grievance and Arbitration Procedures” provides as follows: The parties shall resolve grievances in accordance with the negotiated procedures in Section 7.7 of the Framework Agreement. [Emphasis added.] [32] Article 8, “Discipline and Termination” includes the following provisions: 8.1       Progressive Discipline The University and AAPS subscribe to the principles of progressive discipline in cases of culpable behaviour, conduct or performance including, without limiting the generality of the foregoing: • Discipline is intended to be corrective in nature, not punitive; • Discipline is applied with consideration given to the circumstances of a situation including, without limiting the generality of the foregoing, the nature and severity of the misconduct, the position and level of responsibility of the employee, the employee’s work history and any mitigating circumstances; • Discipline is applied in an escalating manner, appropriate to the nature and severity of the misconduct; and • Discipline is not progressive in the event of severe misconduct warranting termination for cause. 8.2       Proof of Just Cause Disciplinary action will be taken only where just cause exists. The burden of proof of just cause rests with the University. 8.3       Right to Representation An employee shall have the right to have a representative from AAPS present at any disciplinary meetings. 8.6       Termination of Employment for Just Cause The University may terminate the employment of any employee without notice for just cause. 8.7       Grievances Grievances arising from the suspension or termination of an employee shall commence at Step 2 (Formal Complaint to a Vice President/Dean) of the grievance procedure (refer to Section 7.7.5 of the Framework Agreement). c.       The Framework Agreement (FA) [33] The Framework Agreement (“FA”) is also an agreement between AAPS and UBC.  It too defines parties as meaning UBC and AAPS.  The purpose of the agreement is stated in s. 3.1: The purpose of this Agreement is to establish a framework for discussing and formally negotiating the terms and conditions of employment of management and professional staff in a manner which exemplifies the vision shared by the University and AAPS. [34] Section 3.3 provides for the recognition of AAPS as a bargaining agent: The University recognizes AAPS as the exclusive representative for all members as defined in Section 4. [35] Section 4.0, “Scope of Bargaining Unit and Exclusions”, states in part: AAPS represents all management and professional employees, except for the following excluded positions [36] With respect to grievances and settlement of disputes, s. 7.7 provides: 7.7.1    Interests of Parties The parties have a clear and direct interest in a procedure that provides for timely resolution in the event that their agreement is violated. An effective procedure must emphasize: · a problem solving approach, · a means for interest reconciliation as close as possible to the point of original, · a mechanism for finality. While individuals may initiate grievances, AAPS will decide whether to advance, settle or arbitrate them . Time limits and other requirements for the performance of this grievance procedure may be extended/amended by mutual consent of the parties. 7.7.7    Step 3 – Arbitration An arbitrator will be selected by mutual agreement of the parties.  If the parties fail to agree on an arbitrator within fourteen days, the Chief Justice of the Supreme Court of British Columbia will be requested to make the selection. The provisions of the Commercial Arbitration Act apply to an arbitration, with the exception of the provisions in the Act relating to costs. Each party to the arbitration will be responsible for its own costs and will pay one half of the costs of the arbitrator and any shared arbitration expenses. [Emphasis added to clause 7.7.1] 7.       Analysis [37] The overarching issue in this case is whether, as a consequence of the operation of the agreements which govern his employment relationship, Mr. Ferrari is left without a remedy for what he asserts is a wrongful dismissal and, if so, is he entitled to maintain his action for wrongful dismissal against his former employer. [38] Section 15 (1)−(2) of the Commercial Arbitration Act , governs this appeal.  Those provisions provide: 15 (1) If a party to an arbitration agreement commences legal proceedings in a court against another party to the agreement in respect of a matter agreed to be submitted to arbitration, a party to the legal proceedings may apply, before filing a response to civil claim or a response to family claim or taking any other step in the proceedings, to that court to stay the legal proceedings. (2) In an application under subsection (1), the court must make an order staying the legal proceedings unless it determines that the arbitration agreement is void, inoperative or incapable of being performed. [Emphasis added.] [39] In McElhanney , Cumming J.A., speaking for this Court, set out the requirements for granting a stay of proceedings under s. 15.  This passage from McElhanney is set out above, in my summary of the chambers judge’s reasons, but for convenience I repeat it here: [22]      There are three prerequisites to the application of s. 15. They are: (a)   the applicant must show that a party to an arbitration agreement has commenced legal proceedings against another party to the agreement; (b)   the legal proceedings must be in respect of a matter agreed to be submitted to arbitration; and (c)   the application must be brought timely, i.e. before the applicant takes a step in the proceeding. ( Gulf Canada Resources Ltd. v. Arochem International Ltd ., supra , at 119-120). [40] Only the first of these three prerequisites is at issue in this appeal. a.       Is Mr. Ferrari a party to the arbitration agreement? [41] I turn to Mr. Ferrari’s first ground of appeal: did the chambers judge err in finding him to be a party to an arbitration agreement with UBC, a prerequisite to the application of s.15 of the Act .  If he is not, UBC cannot rely on s. 15 to stay Mr. Ferrari’s claim.  In my opinion, the chambers judge did not err; Mr. Ferrari is a party to the arbitration agreement. [42] Mr. Ferrari questions how he can be said to be a party to an arbitration agreement if he has no means to commence a grievance and arbitration. [43] In response, UBC says that Mr. Ferrari became a party to the arbitration agreement by agreeing that the FA and ACTE were incorporated into his terms of employment.  Having been incorporated by reference into the terms of his employment agreement, he must logically be a party to the arbitration agreement. [44] The chambers judge concluded that because the FA and the ACTE contain an arbitration agreement, and because that arbitration agreement was incorporated by reference into Mr. Ferrari’s terms of employment with UBC, Mr. Ferrari was bound by the arbitration agreement as a term of his employment with UBC: See University of British Columbia v. Wong , 2006 BCCA 491 at paras. 30−31. [45] In other words, similar to collective agreements in a union context, Mr. Ferrari granted AAPS exclusive representation rights as part of the consideration of his membership in that organization.  I am in full agreement with UBC on this point.  I do not see that much more can be said on this question.  I would not accede to this ground of appeal.  Mr. Ferrari was bound by, and is a party to, the arbitration agreement; thus, the first prerequisite of s. 15 is met. b.       Is the arbitration agreement void or inoperative pursuant to s. 15? [46] Now, I turn to the second ground of appeal; whether the arbitration agreement is void or inoperative in circumstances where, as Mr. Ferrari argues, the enforcement of the arbitration clause leaves him without legal redress for his alleged wrongful termination.  He says that in such circumstances there must be a residual discretion for the court to refuse to enforce that agreement.  Or, he argues, in a slightly different way, that it cannot be said the requirements of s. 15 are met if the arbitration agreement fails to provide any legal redress.  As I discuss below, in my view this arbitration agreement does provide adequate redress: the deficiency, if any, is in the Association’s own bylaws.  However, those bylaws are not a matter involving UBC. In my view, McElhanney clearly establishes that there is no residual discretion for the court to refuse to stay an action if the conditions of s. 15 are met.  I can find no authority to the contrary and to hold otherwise would seem inconsistent with the whole statutory scheme of respect for the arbitral process. [47] Although s. 15 provides a statutory bar to court proceedings that is applicable to this case, it is helpful in my view to examine some of the historical labour relations jurisprudence that trace the court’s deference to the exclusivity of the arbitration process. [48] To begin, there is a well-recognized line of authority, beginning with Webber v. Ontario Hydro , [1995] 2 S.C.R, 929 which holds that “Disputes arising under collective bargaining agreements must be resolved through the grievance and arbitration process established under the agreements, not by lawsuits in the courts”: Pleau Litigation Guardian v. Canada (Attorney General) , 1999 NSCA 159 at para. 1. [49] Importantly, Pleau also held that the dispute resolution process must provide effective redress if the jurisdiction of the court is to be excluded: at para. 21.  It is important to consider the facts of that case in order to understand why it is inapplicable to Mr. Ferrari’s situation. [50] Pleau queried the true nature of the dispute between the parties; specifically, whether the dispute fell within the employment relationship and thus the exclusive arbitration provision of the collective agreement.  Mr. Pleau had reported what he considered to be evidence of misconduct in the operation of a government facility.  He was dismissed from his employment.  He grieved his dismissal successfully but then commenced an action claiming, among other things, conspiracy to cause him damage.  The defendants conceded that the claims could not be referred to an adjudicator as they were outside the subject matter of disputes covered by the agreement to arbitrate.  Mr. Pleau argued that the claim was actionable by him.  It was in this context that Cromwell J.A., as he then was, described three interrelated considerations that underpin the Weber line of authority concerning the exclusiveness of the arbitration process.  At paras. 19−21 he held: [19]      The first consideration relates to the process for resolution of disputes.  Where the legislation and the contract show a strong preference for a particular dispute resolution process, that preference should, generally, be respected by the courts.  While it takes very clear language to oust the jurisdiction of the superior courts as a matter of law, courts properly decline to exercise their inherent jurisdiction where there are strong policy reasons for doing so. [20]      If the legislature and the parties have shown a strong preference for a dispute resolution process other than the court process, the second consideration must be addressed.  It concerns the sorts of disputes falling within that process.  This was an important question in the Weber decision.  The answer given by Weber is that one must determine whether the substance or, as the Court referred to it, the “essential character”, of the dispute is governed, expressly or by implication, by the scheme of the legislation and the collective agreement between the parties.  Unlike the first consideration which focuses on the process for resolution of disputes, the second consideration focuses on the substance of the dispute.  Of course, the two are inter-related.  The ambit of the process does not exist in the abstract, but is defined by the nature of the disputes to be submitted to it. [21]      The third consideration relates to the practical question of whether the process favoured by the parties and the legislature provides effective redress for the alleged breach of duty.  Generally, if there is a right, there should also be an effective remedy. [51] In the case at bar, there is no question that the nature of the dispute falls squarely within the terms of Mr. Ferrari’s employment agreement, thus the decision in Pleau is clearly distinct in that respect.  However, Mr. Ferrari relies on Pleau to argue that he has no effective remedy , and therefore the requirements of s. 15(2) of the Act are not met.  He says that if the chambers judge is correct, the result is that neither an arbitrator “nor the courts would have jurisdiction to determine the rights of the parties”: Pleau at para. 91 citing Nova Scotia Union of Public Employees v. Halifax Regional School Board (1999), 171 N.S.R. (2d) 373 at 379−80 (C.A.). [52] The distinction between this case and Pleau is that this dispute is arbitrable.  It falls squarely within the subject matter of the grievance/arbitration process.  It is the result of that process to which Mr. Ferrari objects.  Mr. Ferrari is in no different position than an employee who is dissatisfied with the terms of settlement of a grievance made by his representative association.  In both cases the grievance procedure has been applied, but it is the result to which the employee objects. [53] In Pleau , at para. 91, Justice Cromwell quotes from his earlier judgment in Nova Scotia Union of Public Employees, Local 2 v. Halifax Regional School Board , in which he in turn cites Weber, for the proposition that “arbitral and court jurisdiction are not always the mirror image of each other; the correlation is not exact.  In some cases, court action may be barred even though there is no remedy available through the arbitration process”.  In the result, Cromwell J.A. held in Pleau that because an employee had the right to grieve but no access to test the outcome by adjudication under the provisions peculiar to that scheme there was no effective redress. [54] Here, Mr. Ferrari objects to the fact that his representative declined to proceed with a grievance and on to arbitration if necessary, not that he had no access to arbitration under the agreements to which he was bound. [55] In General Motors v. Brunet , [1977] 2 S.C.R. 537 at 548 , the Supreme Court of Canada held that, where a collective agreement provides the union with the sole responsibility for deciding whether it will pursue a grievance to arbitration, there is no jurisdiction for a court to hear an employee’s claim simply because the union fails to carry the grievance to arbitration.  The Court conceded that the situation might be different if the union acted in bad faith but noted that good faith is to be presumed.  In General Motors there was no allegation of bad faith. [56] Weber , Pleau and General Motors are all cases involving unions and collective agreements but, in my view, the principles I have drawn from these cases are applicable to this case insofar as they outline the limited jurisdiction of the courts to decide disputes that, either by legislation or agreement, are to be resolved by arbitration. [57] Mr. Ferrari also argues that there is another basis to find that this arbitration agreement, at least as it pertains to him, is not one to which s. 15 of the Act applies.  He says that AAPS, unlike a union, is not independent of the employer.  He argues that his position cannot be likened to a union member who has the benefit of a remedy under s. 12 of the Labour Relations Code , R.S.B.C. 1996, c. 244.  Mr. Ferrari says that in the unionized context, for those disputes that fall within its ambit, s. 12 is an effective means by which an employee can apply to have the union’s duty of fair representation scrutinized by a tribunal. [58] This argument can be resolved by resort to consideration of the duty of fair representation.  The corollary of the exclusive authority to arbitrate, or not arbitrate, is the representative’s duty of fair representation.  A representative must exercise its authority with care, skill and diligence.  It is impermissible for an exclusive bargaining agent to act in a manner that is arbitrary, discriminatory or in bad faith when representing employees: Canadian Merchant Service Guild v. Gagnon et al ., [1984] 1 S.C.R. 509; Gendron v. Supply & Services Union of the Public Service Alliance of Canada, Local 50057 , [1990] 1 S.C.R. 1298; Judd (Re) , [2003] B.C.L.R.B.D. No. 63. [59] In Gendron , L’Heureux Dubé J. cited with approval the description in Gagnon of the principles that underpin the duty of fair representation.  After noting that the principles were drawn from statutory formulations and the common law, she quotes from Gagnon at 1327−1328: The following principles, concerning a union’s duty of representation in respect of a grievance, emerge from the case law and academic opinion consulted. 1.         The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit. 2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion. 3.         This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other. 4.         The union’s decision must not be arbitrary, capricious, discriminatory or wrongful. 5.         The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee. [Emphasis added.] [60] In my view, these principles apply in a general way to a non-union employee association such as AAPS, just as they do a certified trade union: Radhakrishnan v. University of Calgary Faculty Assn. (c.o.b. TUCFA) , 1999 ABQB 713 at paras. 98−102, aff’d 2002 ABCA 182; Angus (Re) , [1989] B.C.L.R.D. No. 200.  Indeed, AAPS acknowledges that it owes a duty of fair representation to Mr. Ferrari.  The question that remains is whether that duty of fair representation constitutes sufficient legal redress for a breach of an employment agreement. [61] By accepting employment in an AAPS position, Mr. Ferrari agreed to appoint AAPS his exclusive bargaining agent with the power to decide whether to advance, settle, or arbitrate grievances.  This does not mean that he is not a party to the arbitration agreement; rather, this means that he is a party to the arbitration agreement in which the power to decide whether to advance, settle, or arbitrate grievances is given to his exclusive bargaining agent, just as he gave the power to his exclusive bargaining agent to negotiate the terms and conditions of his employment that he enjoyed for 13 years prior to his termination.  The fact that AAPS, and not Mr. Ferrari, had the authority to determine whether to advance a grievance or not, is entirely consistent with the nature of the relationship between them – i.e., the relationship of members of a labour organization and the exclusive bargaining agent that represents those members. [62] As argued by UBC and APPS, there is a trade-off in union and employee association collective agreements.  In consideration for granting control over the grievance and arbitration process, the employee receives the negotiated benefits of being a member of such an association. [63] As between the University and Mr. Ferrari, the terms of his employment are covered by the ACTE and the FA.  The Framework Agreement sets out an acceptable stepped process to deal with complaints through the grievance procedure, up to and including arbitration.  The fact that AAPS refused to carry forward a grievance does not, on the face of it, render the agreement to arbitrate null and void, inoperative, or incapable of being performed within the meaning of s. 15. [64] As between Mr. Ferrari and AAPS, it may well be that the Association’s bylaws are inadequate to ensure the necessary scrutiny of its decision not to proceed with his grievance.  However, that is not an issue that arises between Mr. Ferrari and UBC such that Mr. Ferrari should cease to be bound by the arbitration clause. [65] Mr. Ferrari says that if the above is true his only remedy lies in a possible common law claim against AAPS for its failure to properly represent him fairly.  Mr. Ferrari notes that in an action against AAPS he would carry the burden of proof whereas in a wrongful dismissal action where termination for cause is alleged the burden of proof is on the employer.  Mr. Ferrari asserts that leaving him at the mercy of a management-dominated association is not an adequate replacement for access to the courts.  Nevertheless, he is not without a remedy and there is no reason to think that it is an inadequate one, if he chooses to pursue it. [66] As the chambers judge noted, Mr. Ferrari may well have a claim against AAPS based in the duty of fair representation.  Such a claim might embrace the alleged inadequacies of the bylaws under which AAPS considered his grievance.  The absence of any stepped internal review or appeal process might well factor into such an analysis. [67] In summary, it is well recognized in the history of labour relations that the model of exclusive representation of employees by their association or union carries with it a correlative transfer of authority over the grievance process subject only to the association’s duty of fair representation: Vaca v. Sipes (1967), 55 L.C. 11; Fisher v. Pemberton et al . (1969), 8 D.L.R. (3d) 521 (B.C.S.C.); Rayonier Canada (B.C.) Ltd. v. International Woodworkers of America , Local 1-217, [1975] B.C.L.R.B. No.42; Gagnon .  In my view, to accede to Mr. Ferrari’s argument would be inconsistent with this long accepted trade-off.  In the circumstances of his case, Mr. Ferrari’s remedy lies in a claim against his association.  As to the merits of such a claim, I, of course, express no view, nor do I express a view as to whether there is a fiduciary relationship between Mr. Ferrari and AAPS.  These issues would be for a court hearing such an action.  Mr. Ferrari’s complaint about the inadequacies of the AAPS bylaws cannot be foisted on the University of British Columbia such that the agreed to arbitration provision is not binding on Mr. Ferrari and UBC. [68] I conclude that the arbitration agreement is not void or inoperative pursuant to s. 15 of the Act. 8.       Disposition [69] I would dismiss the appeal with costs to UBC. [70] The intervenor, AAPS, is not entitled to costs. “The Honourable Madam Justice Garson” I agree: “The Honourable Mr. Justice Frankel” I agree: “The Honourable Madam Justice Stromberg-Stein”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Henry v. British Columbia (Attorney General), 2014 BCCA 15 Date: 20140121 Docket: CA040901 Between: Ivan William Mervin Henry Respondent (Plaintiff) And Her Majesty the Queen in Right of the Province of British Columbia, as represented by the Attorney General of British Columbia Appellant (Defendant) And City of Vancouver, William Harkema, Marilyn Sims, Bruce Campbell, and Attorney General of Canada Respondents (Defendants) Before: The Honourable Mr. Justice Hall The Honourable Madam Justice MacKenzie The Honourable Madam Justice Stromberg-Stein On appeal from:  An order of the Supreme Court of British Columbia, dated April 18, 2013 ( Henry v. British Columbia (Attorney General) , 2013 BCSC 665, Vancouver Docket S114405). Counsel for the Appellant - Her Majesty the Queen in Right of the Province of BC: Peter Juk, Q.C. & Karen Horsman Counsel for the Respondent - Ivan Henry: A. Cameron Ward & M. Sandford Counsel for the Respondent - Attorney General of Canada: Mitchell R. Taylor, Q.C. & Susanne G. Pereira Place and Date of Hearing: Vancouver, British Columbia December 12 & 13, 2013 Place and Date of Judgment: Vancouver, British Columbia January 21, 2014 Written Reasons by: The Honourable Mr. Justice Hall Concurred in by: The Honourable Madam Justice MacKenzie The Honourable Madam Justice Stromberg-Stein Summary: Plaintiff sought an amendment to pleadings concerning Charter damages for alleged non-disclosure by prosecutors.  HMTQ’s appeal from an order that permitted an amendment alleging “a marked and unacceptable departure from the reasonable standards expected of Crown counsel” in the Respondent’s pleadings is allowed. As amended, the pleadings allege a cause of action against a prosecutor for activity analogous to gross negligence. The Supreme Court of Canada in Nelles v. Ontario, [1989] 2 S.C.R. 170, Proulx v. Québec (Attorney General), 2001 SCC 66, and Miazga v. Kvello Estate, 2009 SCC 51, denied liability against those in a prosecutorial role for anything less than malicious prosecution. This was not altered by the Supreme Court of Canada’s decision in Vancouver (City) v. Ward, 2010 SCC 27, which dealt with Charter damages. The principles enunciated in authorities concerning the award of criminal costs are not applicable to the present case. Reasons for Judgment of the Honourable Mr. Justice Hall: [1] This is an appeal from a decision of Goepel J. (as he was then) pronounced on April 18, 2013, which allowed the plaintiff’s application to amend his pleadings.  The application to amend arose out of a previous decision decided September 24, 2012.  Some of the amendments were of a “housekeeping nature” and not contentious.  The dispute arose from para. 120 of the amendments sought.  The judge described the background thus: [7]        In Henry No. 1 , the Province applied to strike certain paragraphs of the notice of civil claim and dismiss the claim against the Province for damages for negligence and breach of Charter rights. In Henry No. 1 , I dismissed Mr. Henry’s claim in negligence. In regard to the application to dismiss the claim for breach of Charter rights, I found that the Charter allegations were founded upon allegations of malicious conduct and given that finding, that it was not appropriate to strike the paragraphs alleging a breach of the plaintiff’s Charter rights. At para. 72, I said: If the plaintiff intends to argue at the trial of this matter that it is entitled to Charter damages against the Province absent a finding that the acts of the prosecutors were done maliciously, he will have to apply for leave to amend his pleadings to make such an allegation. [8]        The plaintiff has now so applied. The Province opposes the application and argues it does not disclose a cause of action because absent malice, no claim lies against Crown counsel for Charter damages. The City and Canada took no position on the proposed amendments. [2] Ultimately, the judge allowed the plaintiff to amend his pleading to include the following allegation: The various acts and omissions that violated the Plaintiff’s right to disclosure and/or his right to full answer and defence and/or his right to a fair trial, as described in paragraphs 113-119 above, were a marked and unacceptable departure from the reasonable standards expected of the Crown counsel. [3] The appellant, Her Majesty the Queen in Right of the Province of British Columbia, as represented by the Attorney General of British Columbia (“HMTQ”), appeals from the decision of Goepel J. to allow this amendment.  The appellant submits that the judge erred in permitting the appellant to seek relief against prosecutorial actors for conduct that is less than malicious: namely, for acts more akin to negligence.  The Attorney General of Canada, another named defendant, supports HMTQ’s submissions. [4] The appellant submits that lowering the bar from malicious conduct to a species of negligent conduct would have a deleterious effect on the administration of justice.  It puts it this way in its factum: 86.       … As a practical reality, individuals exercising judicial and quasi-judicial functions (judges, prosecutors, securities regulators) do not face personal liability for negligent acts in the course of their duties – they are inevitably indemnified by government.  Reference to fear of “personal liability” in the relevant case law is a shorthand for concerns with allowing prosecutors to be brought into a civil action for a virtual re-trial of the criminal trial after the fact; inviting a civil court to second-guess decisions made along the way; and the impact all of this has on a prosecutor’s professional reputation and integrity.  These are concerns not because a Crown prosecutor will have to pay a damage award out of his or her own pocket, but because of the influence such a process will have on the prosecutor’s constitutional independence, freedom of action, decision-making in the course of a criminal trial, and on the on-going performance of prosecutorial duties. [5] In the U.S., the immunity of prosecutors from civil action arising out of the performance of prosecutors of prosecutorial duties is well nigh absolute: Imbler v. Pachtman , 424 U.S. 409 (1976), 96 S. Ct. 984, and Fields v. Wharrie , 672 F (3d) 505 (2012).  In Canada a different route has been hitherto pursued: Nelles v. Ontario , [1989] 2 S.C.R. 170, 60 D.L.R. (4th) 609, and Miazga v. Kvello Estate , 2009 SCC 51, [2009] 3 S.C.R. 339. [6] The respondent submits that more recent authority, including the case of Vancouver (City) v. Ward , 2010 SCC 27, [2010] 2 S.C.R. 28, is supportive of change along the lines indicated in the amendment ordered by the chambers judge.  The respondent submits that the essence of his case against the prosecutors (for whose actions HMTQ accepts responsibility) is based on non-disclosure of relevant material during the course of the prosecution.  He submits in his factum that some diminution of the scope of prosecutorial immunity is warranted: 86.       In his ruling that the competing interests could be appropriately balanced if the claimant were required to prove, in order for a claim to lie against the Province for Charter damages, that the Crown acted in a manner that was a marked and unacceptable departure from the reasonable standards expected of Crown counsel, Goepel J. set a high threshold of gravity for conduct capable of attracting liability.  In so doing he balanced the competing interests, gave weight to the good governance concerns of the appellant, and crafted a threshold that allowed for the development of this important area of law in a manner consistent with Ward , with s. 24(1) jurisprudence, and with the Supreme Court of Canada’s urgings that the law develop in a manner consistent with an appreciation of the need to hold the state responsible for wrongful convictions that lead to very serious harm. 87.       It is submitted that the test Goepel J. crafted represents a perfect balancing of the competing interests, in that it limits potential litigation to just those rare and serious cases, such as the appellant’s, in which Crown conduct is markedly at odds with what it should be, serious Charter breaches result, and very substantial harm is suffered. [7] As Lamer J. (as he then was), writing for himself, Dickson C.J. and Wilson J., observed in Nelles , supra , the action for malicious prosecution has ancient roots.  It was a remedy invoked more often in the era when most prosecutions were instigated and carried through by private interests.  In order to succeed, a plaintiff was required to establish that the proceedings were initiated by the defendant, that the proceedings terminated in favour of the plaintiff, the absence of reasonable and probable cause and the existence of malice.  Malice was to be inferred when it appeared the proceedings had been conducted for other than the legitimate purpose of enforcing the law. [8] In the modern era of mostly public prosecutions, there has been less occasion for and less likelihood of such proceedings.  The reasons why this is so can be discerned from the modern prosecutors’ role.  Lamer J. said this at 191-192 of Nelles : As regards the proper role of the [page 192] Crown Attorney, perhaps no more often quoted statement is that of Rand J. in Boucher v. The Queen , [1955] S.C.R. 16, at p. 23-24: It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [9] The quoted comments of Rand J. are reflected in the aphorism that “The Crown never wins and the Crown never loses”.  The ideal should be that the prosecutor acts as a minister of justice.  Of course, such an ideal situation may not always be observed or attained. [10] In Imbler , a majority of the U.S. Supreme Court held in favour of absolute immunity of prosecutors engaged in a criminal trial. Imbler was a civil rights action under 42 U.S.C. 1983, by a person who had successfully appealed from a homicide conviction.  It appeared from the record that the prosecutor defendant had acted in an improper fashion by adducing evidence known to be suspect.  Powell J. for the majority said this in the course of his opinion at 422-424: The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust. One court expressed both considerations as follows: “The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case. ... The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded, and we would have moved away from the desired objective of stricter and fairer law enforcement.” Pearson v. Reed , 6 Cal. App. 2d 277, 287, 44 P. 2d 592, 597 (1935). See also Yaselli v. Goff , 12 F.2d, at 404-406. 20  The immunity of a judge for acts within his jurisdiction has roots extending to the earliest days of the common law.  See Floyd v. Barker , 12 Coke 23, 77 Eng. Rep. 1305 (1608). Chancellor Kent traced some of its history in Yates v. Lansing , 5 Johns. 282 (N.Y. 1810), and this Court accepted the rule of judicial immunity in Bradley v. Fisher , 13 Wall. 335 (1872). See n. 12, supra . The immunity of grand jurors, an almost equally venerable common-law tenet, see Floyd v. Barker, supra , also has been adopted in this country.  See, e.g., Turpen v. Booth , 56 Cal. 65 (1880); Hunter v. Mathis , 40 Ind. 356 (1872). Courts that have extended the same immunity to the prosecutor have sometimes remarked on the fact that all three officials – judge, grand juror, and prosecutor – exercise a discretionary judgment on the basis of evidence presented to them. Smith v. Parman, supra, Watts v. Gerking , supra . It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as “quasi-judicial” officers, and their immunities being termed “quasi-judicial” as well. See e.g., Turpen v. Booth, supra , at 69; Watts v. Gerking, supra , at 661, 228 P., at 138. The common-law rule of immunity is thus well settled. We now must determine whether the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under § 1983. We think they do. [11] Powell J. went on to observe at 428: [W] e find ourselves in agreement with Judge Learned Hand, who wrote of the prosecutor’s immunity from actions for malicious prosecution: “As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Gregoire v. Biddle , 177 F.2d 579, 581 (C.A.2 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950). [12] It was in response to submissions based on this line of U.S. authority that Lamer J. observed in Nelles at 195-197: It is said by those in favour of absolute immunity that the rule encourages public trust and confidence in the impartiality of prosecutors. However, it seems to me that public confidence in the office of a public prosecutor suffers greatly when the person who is in a position of knowledge in respect of the constitutional and legal impact of his conduct is shielded from civil liability when he abuses the process through a malicious prosecution. The existence of an absolute immunity strikes at the very principle of equality under the law and is especially alarming when the wrong has been committed by a person who should be held to the highest standards of conduct in exercising a public trust. (See Filosa, op. cit., at p. 982, and Marilyn L. Pilkington, “Damages as a Remedy for Infringement of the Canadian Charter of Rights and Freedoms” (1984), 62 Can. Bar. Rev. 517, at pp. 560-61.) Regard must also be had for the victim of the malicious prosecution. The fundamental flaw with an absolute immunity for prosecutors is that the wrongdoer cannot be held accountable by the victim through the legal process. As I have stated earlier, the plaintiff in a malicious prosecution suit bears a formidable burden of proof and in those cases where a case can be made out, the plaintiff’s Charter rights may have been infringed as well. Granting an absolute immunity to prosecutors is akin to granting a license to subvert individual rights. Not only does absolute immunity negate a private right of action, but in addition, it seems to me, it may be that it would effectively bar the seeking of a remedy pursuant to s. 24(1) of the Charter . It seems clear that in using his office to maliciously prosecute an accused, the prosecutor would be depriving an individual of the right to liberty and security of the person in a manner that does not accord with the principles of fundamental justice. Such an individual would normally have the right under s. 24(1) of the Charter to apply to a court of competent jurisdiction to obtain a remedy that the court considers appropriate and just if he can establish that one of his Charter rights has been infringed. The question arises then, whether s. 24(1) of the Charter confers a right to an individual to seek a remedy from a competent court. In my view it does. When a person can demonstrate that one of his Charter rights has been infringed, access to a court of competent jurisdiction to seek a remedy is essential for the vindication of a constitutional wrong. To create a right without a remedy is antithetical to one of the purposes of the Charter which surely is to allow courts to fashion remedies when constitutional infringements occur. Whether or not a common law or statutory rule can constitutionally have the effect of excluding the courts from granting the just and appropriate remedy, their most meaningful function under the Charter , does not have to be decided in this appeal. It is, in any case, clear that such a result is undesirable and provides a compelling underlying reason for finding that the common law itself does not mandate absolute immunity. It is also said in favour of absolute immunity that anything less would act as a “chilling effect” on the Crown Attorney’s exercise of discretion. It should be noted that what is at issue here is not the exercise of a prosecutor’s discretion within the proper sphere of prosecutorial activity as defined by his role as a “minister of justice”. Rather, in cases of malicious prosecution we are dealing with allegations of misuse and abuse of the criminal process and of the office of the Crown Attorney. We are not dealing with merely second-guessing a Crown Attorney’s judgment in the prosecution of a case but rather with the deliberate and malicious use of the office for ends that are improper and inconsistent with the traditional prosecutorial function. [13] Lamer J. ultimately concluded for reasons of public policy that absolute immunity for prosecutors should not be the rule in Canada.  He expressed his conclusion thus at 199: There is no doubt that the policy considerations in favour of absolute immunity have some merit. But in my view those considerations must give way to the right of a private citizen to seek a remedy when the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim. In my view the inherent difficulty in proving a case of malicious prosecution combined with the mechanisms available within the system of civil procedure to weed out meritless claims is sufficient to ensure that the Attorney General and Crown Attorneys will not be hindered in the proper execution of their important public duties. [14] In Nelles , McIntyre J. concurred in the result but preferred to base his decision on the consideration that it would not be appropriate to decide this issue on a pre-trial motion.  La Forest J. also concurred in the result but left open Charter implications to be considered when required.  L’Heureux-Dub é J. dissented and would have opted for the rule of absolute immunity in effect in the U.S. [15] The result in Nelles was to preserve a plaintiff’s ability to seek damages against a prosecutor for abuse of process or malicious prosecution if a prosecutor intentionally acted to subvert justice.  The case of Proulx v. Québec  (Attorney General) , 2001 SCC 66, [2001] 3 S.C.R. 9, of which more will be said later, is an illustration of a situation in which a plaintiff successfully sued a Crown attorney for such conduct.  In Miazga , the subject of prosecutorial responsibility was revisited.  The background of Miazga is succinctly set forth in a portion of the headnote: Three children made allegations of sexual assault against their biological parents, their mother’s boyfriend and the respondents, who were the children’s foster parents and members of the foster parents’ extended family. Charges were subsequently laid and M, a provincial Crown attorney, prosecuted the case against the parents and the mother’s boyfriend. All three were convicted, and the convictions were upheld by the Court of Appeal. The Supreme Court of Canada overturned the convictions, but concluded that the evidence of the children was sufficient to order new trials against the parents. Meanwhile, taking under advisement the trial judge’s comments urging that the children not be made to endure another criminal proceeding, M negotiated a plea bargain with one of the accused (who is not a respondent in this case). The charges against the respondents were stayed. Some years later, all three children recanted their allegations against the respondents. The respondents commenced a civil suit for malicious prosecution against a number of individuals involved in the proceedings against them, including M. [16] The plaintiffs succeeded at trial in their action and the decision was sustained by a majority in the Saskatchewan Court of Appeal.  On further appeal to the Supreme Court of Canada, the appeal was allowed and the actions dismissed.  Charron J. delivered the judgment of the Court.  In the course of her reasons, she made a number of observations that appear to have relevance to the present proceedings: 8 The high threshold for Crown liability was reiterated in Proulx , where the Court stressed that malice in the form of improper purpose is the key to proving malicious prosecution. In the context of a case against a Crown prosecutor, malice does not include recklessness, gross negligence or poor judgment. It is only where the conduct of the prosecutor constitutes an “abuse of prosecutorial power”, or the perpetuation of a “fraud on the process of criminal justice” that malice can be said to exist (paras. 44-45). Having regard to the defendant prosecutor’s mixed motives, the Court was satisfied that Proulx was one of those “highly exceptional” cases in which Crown immunity for prosecutorial misconduct should be lifted, and the defendant found liable for malicious prosecution. 51        … [T]he public law doctrine of abuse of process and the tort of malicious prosecution may be seen as two sides of the same coin: both provide remedies when a Crown prosecutor’s actions are so egregious that they take the prosecutor outside his or her proper role as minister of justice, such that the general rule of judicial non‑intervention with Crown discretion is no longer justified. Both abuse of process and malicious prosecution have been narrowly crafted, employing stringent tests, to ensure that liability will attach in only the most exceptional circumstances, so that Crown discretion remains intact. 80        … [E] ven if the plaintiff should succeed in proving that the prosecutor did not have a subjective belief in the existence of reasonable and probable cause, this does not suffice to prove malice, as the prosecutor’s failure to fulfill his or her proper role may be the result of inexperience, incompetence, negligence, or even gross negligence, none of which is actionable: Nelles , at p. 199; Proulx , at para. 35. Malice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice. The third and fourth elements of the tort must not be conflated. 81        As discussed earlier, a demonstrable “improper purpose” is the key to maintaining the balance struck in Nelles between the need to ensure that the Attorney General and Crown prosecutors will not be hindered in the proper execution of their important public duties and the need to provide a remedy to individuals who have been wrongly and maliciously prosecuted. By requiring proof of an improper purpose, the malice element of the tort of malicious prosecution ensures that liability will not be imposed in cases where a prosecutor proceeds, absent reasonable and probable grounds, by reason of incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence. [17] The respondent submits that in cases like the present one, in which Charter damages are sought, the legal landscape has been altered by the case of Ward , supra .  In that case, police officers had been found to have acted wrongly in strip searching a plaintiff and seizing his car after arresting him for an alleged breach of the peace.  A trial judge found that there had been an unreasonable search and seizure and also a wrongful imprisonment by the authorities detaining the plaintiff longer than necessary.  The trial judge declined to find bad faith on the part of the police but decided to award $5,100 in Charter damages for the wrongful search and the seizure of a vehicle.  He also awarded $5,000 in damages for the wrongful imprisonment.  The latter award was not appealed.  On appeal concerning the search and the car seizure, a majority of this Court sustained the Charter damages award but the dissenting judge found that in such a case where the police activities were mistaken but not malicious, a Charter damages award was not appropriate.  On further appeal to the Supreme Court of Canada, the decision of the majority in this Court was generally sustained. [18] The respondent points to certain language of the Chief Justice in support of his argument that courts ought to be given a very broad mandate to award Charter damages under s. 24(1) of the Charter in appropriate cases: [16] Section 24(1) empowers courts of competent jurisdiction to grant “appropriate and just” remedies for Charter breaches. This language invites a number of observations. [17]      First, the language of the grant is broad. As McIntyre J. observed, “[i]t is difficult to imagine language which could give the court a wider and less fettered discretion”: Mills v. The Queen , [1986] 1 S.C.R. 863, at p. 965. The judge of “competent jurisdiction” has broad discretion to determine what remedy is appropriate and just in the circumstances of a particular case. [18]      Second, it is improper for courts to reduce this discretion by casting it in a strait-jacket of judicially prescribed conditions. To quote McIntyre J. in Mills once more, “[i]t is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or cut down this wide discretion”: Mills , at p. 965. [19] The respondent here seeks damages against the prosecutors for malicious prosecution, abuse of process, and misfeance in public office and, as well, seeks an award of Charter damages for what is said to have been egregious breaches of disclosure obligations.  The respondent, in essence, argues that the prosecution was in itself an abuse of process that merits damages for malicious prosecution and, in addition, the alleged disclosure failures should attract an award of Charter damages. [20] I note that in his earlier reasons, Goepel J. had found that negligence would not afford a proper basis for a damages remedy against the prosecutors.  However, it seems to me that the amendment he permitted does embody a form of negligence akin to that species often referred to as “gross negligence”, a type of conduct that allowed recovery in earlier times in motor vehicle cases involving gratuitous passengers:  see McCulloch v. Murray , [1942] S.C.R. 141, [1942] 2 D.L.R. 179, and Gordon v. Nutbean , [1969] 2 O.R. 420, 5 D.L.R. (3d) 503 (H.C.).  In the case of Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 39 O.R. (3d) 487, 160 D.L.R. (4th) 697 (Ct. J. (Gen.Div.)), a plaintiff succeeded in a damages claim where it was found police failure to warn the citizenry about a rapist on the prowl in a metropolitan area was grossly negligent.  In certain provinces, legislation has been enacted to protect municipalities from liability except for gross negligence.  Similarly, there exists in certain provinces, good samaritan legislation that protects health practitioners providing emergency assistance from liability absent gross negligence.  Case law defines gross negligence inter alia as “a very marked departure from the standard of responsible and competent drivers” or “very great negligence”:  see Kingston (City) v. Drennan (1897), 27 S.C.R. 46, and Roy v. McEwan , [1969] 2 O.R. 530, 6 D.L.R. (3d) 43 (H.C.).  The language of the amendment ordered here seems to me redolent of the language used in the gross negligence authorities.  This would amount to a new head of liability against prosecutors.  The respondent submits this is requisite to ensure a plaintiff is not left without a proper remedy for prosecutorial misconduct even though there exist remedies for malicious prosecution and (possibly) misfeance in office. [21] In the case of Hill v. Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41, [2007] 3 S.C.R. 129, the Supreme Court of Canada found it would be appropriate in certain situations to hold police liable for negligent investigation.  This was necessary because “the existing remedies for wrongful prosecution and conviction are incomplete and may leave a victim of negligent police investigation without legal recourse”: at para. 35.  The Court, by a majority, found that the tort of negligent investigation is available in Canada although, in the result, it was held the police investigation in that case did not breach the applicable standard. [22] In the present case, it is clear that there is the potential remedy of malicious prosecution against the prosecutors.  In a case like Hill , such a remedy against police officers would be hard to envisage.  The route to potential police liability for damages would lie through tortious conduct of a negligent character.  There is no lack of an existing remedy in this case, as was said to be the case in Hill . [23] Is the existing remedy an effective one to allow recovery to a victim of prosecutorial misconduct?  The case of Proulx demonstrates that malicious prosecution can be an efficacious remedy to one harmed by prosecutorial misconduct.  In that case, a prosecutor had determined in 1986 that insufficient grounds existed to indict the plaintiff for the murder of his former girlfriend due to deficient identification evidence.  Several years later, the prosecutor decided during defamation proceedings that the plaintiff brought against a radio station and a police investigator who had worked on the file, that the criminal case should be reopened and prosecuted.  After the Court of Appeal of Qu é bec had overturned the conviction of the plaintiff as unreasonable, the plaintiff sued the prosecutor for malicious prosecution.  He was awarded damages of over a million dollars.  A majority of the Supreme Court of Canada sustained the decision in favour of the plaintiff.  The majority made these observations in the course of the reasons: 34 In our view, the charges brought against the appellant were based on fragments of tenuous, unreliable and likely inadmissible evidence. They were accurately characterized by Rioux J. at trial and LeBel J.A., dissenting, in the Court of Appeal, as being grounded in mere suspicion and hypotheses. As such, it could not serve to prove the appellant’s guilt beyond a reasonable doubt. This being the case, we are of the view that the proceedings at issue were not based on reasonable and probable cause. 42 The tangled relationship between the criminal proceedings initiated against the appellant, and the appellant’s defamation suits against Tardif and André Arthur, also suggests that the prosecution was motivated by an improper purpose . The prosecutor knew about the defamation suits, and that Tardif was retired by the time Paquet came forward. Nevertheless, he allowed Tardif to resume work on the case, even though he was in a conflict of interest and had no authority to conduct an investigation or to gather evidence. The prosecutor also knew that Paquet had been in contact with Tardif for several weeks before police authorities were contacted. He was further aware that Paquet had “often” seen newspaper photographs of the appellant in the past, but chose to come forward only in 1991. The prosecutor also knew about the first identification session with Tardif, in which Paquet was shown a photo of the appellant with all but his eyes covered, and Tardif was allowed to be present during the second identification session held in the prosecutor’s office. 43        One might ask why the prosecutor did not question Tardif’s involvement in the case or scrutinize the credibility of a witness who was brought forward after having first been in contact with the CHRC radio station, and then with Tardif. In our opinion, this juxtaposition of events shows the importance of the prosecutor’s duty not to allow the criminal process to be used as a vehicle to serve other ends, in this case the ends of Arthur and Tardif in attempting to defend against the appellant’s defamation action. The Crown made the decision to prosecute with the full knowledge that prosecuting the appellant would potentially assist the defendants in the defamation actions. This was thus more than a simple abdication of prosecutorial responsibilities to the police or, in the case of Tardif, to a former police officer. Rather, the prosecutor lent his office to a defence strategy in the defamation suits and, in so doing, was compromised by Tardif’s manipulation of the evidence and the irregularities that took place during the 1991 investigation process . [Emphasis added.] Thus, because the prosecution was pursued for an improper purpose, it was possible to find that the prosecutor’s conduct was malicious.  A substantial award of damages was achieved by the plaintiff at trial and sustained by the Supreme Court of Canada. [24] In my opinion, if a plaintiff demonstrates malicious conduct, a prosecutor could be liable for tort and Charter damages, subject always to double recovery considerations.  This allays Lamer J.’s concern in Nelles that a plaintiff could be without a remedy for a breach of Charter rights.  The case of Proulx is recent high authority that demonstrates that proceedings in malicious prosecution can afford an effective remedy for a wronged plaintiff. [25] However, that said, it is clear that the remedy has restrictions that have always been associated with the action for malicious prosecution.  The reasons lie in what is sometimes termed “governance issues”.  This is simply a shorthand way of expressing the concerns adumbrated in the American authorities and in Nelles and Miazga about affording scope for the exercise of prosecutorial duties and discretion.  As Charron J. observed at para. 51 of Miazga , the remedies for prosecutorial misconduct “have been narrowly crafted, employing stringent tests, to ensure that liability will attach in only the most exceptional circumstances, so that Crown discretion remains intact”.  The majority observed at para. 35 of Proulx that “a suit for malicious prosecution must be based on more than recklessness or gross negligence.”  The majority at para. 4 also referred to the earlier judgment of the Court in Nelles in noting that “Crown liability is engaged in only the most exceptional circumstances.” [26] Goepel J. expressed the view that standards developed in criminal costs cases could be helpful in defining the parameters of Charter damages in a case like this one, and that the principles from those cases could address “good governance concerns” for limiting damage awards.  In my opinion, the costs cases are not a relevant paradigm for the present situation.  The costs remedy has been fashioned by and serves to afford criminal courts a method to control their own processes.  McLachlin C.J. observed in R. v. 974649 Ontario Inc ., 2001 SCC 81, [2001] 3 S.C.R. 575: 80 Although sparingly used prior to the advent of the Charter , superior courts have always possessed the inherent jurisdiction to award costs against the Crown: R. v. Ouellette , [1980] 1 S.C.R. 568; R. v. Pawlowski (1993), 12 O.R. (3d) 709 (C.A.), at p. 712. In recent years, costs awards have attained more prominence as an effective remedy in criminal cases; in particular, they have assumed a vital role in enforcing the standards of disclosure established by this Court in R. v. Stinchcombe , [1991] 3 S.C.R. 326. See, for example: Pawlowski , supra ; Pang , supra ; R. v. Regan (1999), 137 C.C.C. (3d) 449 (N.S.C.A.). 81        Such awards, while not without a compensatory element, are integrally connected to the court’s control of its trial process, and intended as a means of disciplining and discouraging flagrant and unjustified incidents of non-disclosure. Deprived of this remedy, a provincial offences court may be confined to two extreme options for relief – a stay of proceedings or a mere adjournment – neither of which may be appropriate and just in the circumstances. Since untimely pre-trial disclosure will rarely merit a stay of proceedings when the court can protect the fairness of the trial with a disclosure order ( O’Connor , supra , at paras. 75-83; Canada (Minister of Citizenship and Immigration) v. Tobiass , [1997] 3 S.C.R. 391, at paras. 90-92), denying the provincial offences court the jurisdiction to issue a costs award may deprive it of the only effective remedy to control its process and recognize the harm incurred, even in cases involving unjustified and flagrant disregard for the accused’s rights. In these circumstances, the issuance of a costs award is a quintessential example of “the development of imaginative and innovative remedies when just and appropriate” that Lamer J. identified as essential to the meaningful enforcement of Charter rights through the s. 24 guarantee ( Mills , supra , at p. 887). [27] I view the costs remedy as a summary type of process integral to the criminal trial process that can afford a speedy remedy for perceived prosecutorial lapses.  As a remedy, it is very distinct from the relief being sought in the case at bar.  In my respectful view, it was erroneous for the chambers judge to rely on costs cases when deciding whether to allow the amendment that was sought in this case. [28] There is a consistent line of authority from the Supreme Court of Canada stipulating the parameters of civil liability for prosecutorial misconduct.  The respondent submits that Ward altered the situation.  But Ward was not a case about wrongful prosecution.  It was a case about police activity.  In the passage from Ward set out at para. 19, supra , the Chief Justice does indeed endorse a broad discretion in courts to grant awards of Charter damages.  She did, however, go on in para. 39 of the reasons to note that in some situations, good governance considerations could operate to militate against such awards.  I consider that the following passage from the reasons of the Chief Justice is particularly apposite in the present case: [43] Different situations may call for different thresholds, as is the case at private law. Malicious prosecution, for example, requires that “malice” be proven because of the highly discretionary and quasi-judicial role of prosecutors ( Miazga v. Kvello Estate , 2009 SCC 51, [2009] 3 S.C.R. 339), while negligent police investigation, which does not involve the same quasi-judicial decisions as to guilt or innocence or the evaluation of evidence according to legal standards, contemplates the lower “negligence” standard ( Hill v. Hamilton‑Wentworth Regional Police Services Board , 2007 SCC 41, [2007] 3 S.C.R. 129). When appropriate, private law thresholds and defences may offer guidance in determining whether s. 24(1) damages would be “appropriate and just”. While the threshold for liability under the Charter must be distinct and autonomous from that developed under private law, the existing causes of action against state actors embody a certain amount of “practical wisdom” concerning the type of situation in which it is or is not appropriate to make an award of damages against the state . [Emphasis added.] [29] In my opinion, it would be an unwarranted extension of the language in Ward to find that the Supreme Court of Canada was altering the principles set forth in Nelles and Miazga .  Ultimately, the issue of the limits of civil liability for alleged prosecutorial misconduct has about it a large component of policy.  That is clear from the American authorities and was expressly acknowledged in Nelles .  If the ambit of liability is to be expanded as the respondent urges, I consider that the legislature or a court of last resort could make such a change.  As an intermediate appellate court, this Court is clearly bound by pronouncements of the Supreme Court of Canada and I consider those pronouncements currently foreclose negligence as a foundation for prosecutorial liability. [30] I had earlier observed that the amendment ordered by the chambers judge would provide for prosecutorial liability if the plaintiff could establish a species of what I would term gross negligence.  I have indicated above why I consider this would not be in accord with existing Supreme Court of Canada jurisprudence.  I have also explained why I do not consider the recent case of Ward to have altered the situation.  I consider that the chambers judge ought to have refused the amendment to the pleadings sought by the respondent plaintiff.  I would allow the appeal and dismiss the application to amend. “The Honourable Mr. Justice Hall” I agree: “The Honourable Madam Justice MacKenzie” I agree: “The Honourable Madam Justice Stromberg-Stein”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Leung v. Chang, 2014 BCCA 28 Date: 20140121 Docket: CA041020 Between: Elizabeth Foo-Yun Chang Leung, Executrix of the Estate of Hsieu Chang, also known as Chen Hsieu Chang, also known as Chang Chen Hsieu, Deceased Respondent (Plaintiff) And Da Wei Chang Appellant And Dai Hon Chang and Dan Dai Sing Chang Respondents (Defendants) Before: The Honourable Mr. Justice Donald The Honourable Madam Justice Saunders The Honourable Mr. Justice Frankel On appeal from: Supreme Court of British Columbia, June 3, 2013 ( Leung v. Chang , 2013 BCSC 976, Vancouver Registry S083532) Oral Reasons for Judgment Appearing for Appellant: V. Chiang (daughter) Counsel for the Respondent, Elizabeth Foo-Yun Chang Leung: J.D. Whyte Place and Date of Hearing: Vancouver, British Columbia January 21, 2014 Place and Date of Judgment: Vancouver, British Columbia January 21, 2014 Summary: The appeal is from an order admitting a last will and testament into Probate. Held: appeal dismissed. There was evidence before the judge to support her findings of fact, and the principles of law applied by the judge are correctly stated. [1] SAUNDERS J.A. : Mr. Chang appeals from the order of Madam Justice Dardi made June 3, 2013. The order admitted the last will and testament dated July 10, 2000, and a codicil dated July 6, 2005, together as the last will of Hsieu Chang into probate, cancelled caveats registered against real property, and dismissed an appeal from a Master’s order. [2] Mr. Chang has not appeared today. Ms. Chiang, his daughter, appeared on his behalf, asking for an adjournment for medical reasons. The application was opposed by the respondent Ms. Leung. Mr. Justice Donald has explained why we have proceeded. He has also explained that we have the written arguments of the parties in the form of factums, and the other material filed on the appeal including, importantly, the reasons for judgment leading to the order appealed. [3] As is our custom, we have read the factums, and reasons for judgment, and reviewed the material filed as we considered necessary for preparation for the hearing today. I have relied upon that material in reaching my conclusions on the appeal. [4] The deceased Ms. Chang is the mother of the appellant, two other male children who take no part in this appeal, and the respondent Ms. Leung, who is her daughter and the sister of Mr. Chang. [5] Ms. Chang died on May 25, 2007. A residential property in Surrey is the only asset of significance on the estate’s probate inventory. Originally, the appellant Mr. Chang was registered as a joint tenant with his parents on title of that property. However, throughout the 1990s the relationship between Mr. Chang and his parents soured and in 1998 the parents severed the joint tenancy, leaving Mr. Chang with a 1/3 interest as a tenant in common. [6] In her will of 2000 Ms. Chang bequeathed $10 to Mr. Chang with the remainder of the estate to be divided between her other children. Ms. Chang stated in the will that the minimal bequeath to Mr. Chang reflected both their poor relationship and the financial assistance she had provided Mr. Chang in the form of his interest in that Surrey property. In her codicil, Ms. Chang gave as additional reasons for limiting Mr. Chang’s inheritance, his receipt of proceeds of sale of property in Shanghai and her view he did not need her financial support. Mr. Chang opposed Ms. Leung’s application for probate of her mother’s estate. Ms. Leung then sought to strike Mr. Chang’s claims, and sought a grant of probate. Her application was allowed in 2009. On Mr. Chang’s appeal of that order, this court set the order aside and remitted the matter for determination of issues of undue influence and testamentary capacity. Accordingly, the matter was heard by the trial court, leading to the order appealed. [7] In her reasons for judgment, the judge set out correctly the legal framework that must be applied in a dispute over the validity of a will when the presence of suspicious circumstances raises issues of capacity, undue influence, absence of knowledge and fraud. [8] In her reasons, the judge first analyzed whether each of the will and codicil were duly executed. The will was prepared by a notary public who had several years of experience at the time Ms. Chang’s will was executed. The codicil was prepared by a lawyer with several years of experience. Both the notary public and the lawyer testified at trial concerning the process of executing the documents and their belief that Ms. Chang understood the contents of the documents which they had read to her. The judge found that both instruments met the legal requirements of the Wills Act , R.S.B.C. 1996, c. 489, thus creating a presumption of validity. [9] Next, the trial judge examined whether there were any suspicious circumstances sufficient to rebut the presumption of validity, starting with the issue of capacity. The judge examined the evidence of capacity of the testatrix’s doctor and granddaughter, as well as Ms. Leung, the notary and the lawyer, and concluded there were no facts capable of arousing suspicion as to Ms. Chang’s capacity. [10] The judge addressed Mr. Chang’s submission that a lack of mental capacity was demonstrated by his mother in her reference to Mr. Chang benefitting from the Shanghai and Surrey properties. He said she knew they were not hers, and yet still purported to dispose of them in her will. The judge concluded that there was no evidence that Ms. Chang had alienated any beneficial interest in the Surrey property prior to her death and there was no cogent evidence to call into question ownership of the Shanghai property. The judge accordingly was not persuaded that the statement regarding the Shanghai property in the codicil was capable of giving rise to suspicious circumstances or calling into question the testatrix’s testamentary capacity. [11] The trial judge noted that both the notary and lawyer were experienced professionals, fluent in Mandarin and Cantonese languages, whose practices included taking instructions from clients, like Ms. Chang, who spoke only those languages. The judge found the evidence of the lawyer and the notary supported the conclusion that Ms. Chang was competent to make a will, and was free of undue influence when she executed the instruments. [12] The judge next analyzed whether the provisions of the last will were rational on its face. There she admitted Ms. Leung’s testimony concerning her mother’s statements of disappointment and distress concerning Mr. Chang. She concluded that the will was rational on its face. [13] Last, the judge examined Mr. Chang’s claim that Ms. Leung had exerted undue influence and coerced the testatrix into making the will. The judge found that the testatrix made the last will independently and of her own free-will. She further found that at no time did Ms. Leung initiate any steps or attempt to influence her mother in making that will. She concluded that Mr. Chang had failed to demonstrate that his mother had acted under undue influence. [14] In his factum Mr. Chang asks the Court to set aside the order and award him sole title of the Surrey property, appoint him as the legal representative of Ms. Chang’s estate and award him costs against Ms. Leung personally. [15] He says that the will and codicil are invalid because they are illegal documents. He says the respondent hid relevant evidence to his detriment and that she did not perform her duties as executrix honestly. He submits that the Surrey property was not the testatrix’s to dispose of and says that it was up to Ms. Leung to prove that he received the proceeds of the sale of the Shanghai property as recited in the codicil. He takes issue with the trial judge’s dismissal of his applications to adjourn the trial and her refusal to allow certain questions. [16] Mr. Chang further asserts that a document referring to the Surrey property should not have been accepted as evidence since the change from joint tenancy to tenancy in common was improperly effected. He raises other issues concerning the listing of assets in the estate. He challenges the findings of fact concerning suspicious circumstances and undue influence. [17] As I understand Mr. Chang’s arguments set out in his factum, some of the matters raise issues that were not part of the trial, such as the state of title of the Surrey property. We do not consider issues not put before the trial court and accordingly I propose to say no more about the issues raised for the first time before us. [18] Nor would I accede to the complaints of Mr. Chang about the proceedings in the trial court, in particular the dismissal of his applications to adjourn the trial and the refusal to allow certain questions to be asked. We show considerable deference to trial judges in the management of litigation. Nothing that is said in the factum in complaint of the manner in which the trial was conducted demonstrates any error in principle or misunderstanding of the circumstances such as might persuade us to interfere with the result on the basis that a fair trial was not conducted. It appears that Mr. Chang was provided full opportunity to advance his case. [19] Mr. Chang’s significant complaint as set out in his factum concerns the findings of the trial judge on the issues of suspicious circumstances, undue influence and the mental capacity of the testatrix. [20] It is well known that as an appeal court we do not lightly interfere with the findings of fact of a trial judge. In particular, where there is evidence to support the findings of a judge we may not interfere. [21] The submissions of Mr. Chang in his factum on suspicious circumstances and undue influence challenge findings of fact of the judge. There was, however, evidence before the Court which supported the findings of fact that Mr. Chang challenges. It was for the trial court to determine whether that evidence was reliable and to find the facts from the evidence before the judge. I would not interfere with those conclusions. [22] Last is the issue of burden of proof. Mr. Chang contends that it was up to Ms. Leung to establish that the will was not executed under undue influence. That is not an accurate understanding of the law. In general terms, the burden of proof lies upon the person who makes the assertion. In this case, it was for Mr. Chang to prove undue influence. He called no evidence to support that allegation and the judge rightly dismissed that claim. [23] For these reasons I would dismiss the appeal. [24] DONALD J.A. : I agree. [25] FRANKEL J.A. : I agree. [26] DONALD J.A. : The appeal is dismissed. “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Mazur v. Lucas, 2014 BCCA 19 Date: 20140121 Docket: CA039410 Between: Dianne Mazur Appellant (Plaintiff) And Lawrence Lucas, Primus Automotive Financial Services Canada Company, Compagne de Services de Financement Automobile Primus Canada and Jon Haddon Moss Respondents (Defendants) Before: The Honourable Mr. Justice Groberman The Honourable Madam Justice MacKenzie The Honourable Madam Justice Stromberg-Stein On appeal from:  An order of the Supreme Court of British Columbia, dated September 19, 2011 ( Mazur v. Lucas , 2011 BCSC 1685, Vancouver Docket M073918). Counsel for the Appellant: D.W. Lahay Counsel for the Respondent: A.M. Gunn, Q.C. Place and Date of Hearing: Vancouver, British Columbia November 20, 2013 Place and Date of Judgment: Vancouver, British Columbia January 21, 2014 Written Reasons by: The Honourable Madam Justice Stromberg-Stein Concurred in by: The Honourable Mr. Justice Groberman The Honourable Madam Justice MacKenzie Summary: The appeal is from a jury award of damages for injuries in a motor vehicle. The grounds of appeal allege improper cross-examination of a witness; misdirection on loss of future earning capacity; inconsistent verdicts for past and future earning capacity; and the length of jury deliberations. The respondents’ cross-appeal with respect to an order requiring them to pay the trial costs. Held : The appeal and cross-appeal are dismissed. Reasons for Judgment of the Honourable Madam Justice Stromberg-Stein: Overview [1] On March 10, 2006, Dianne Mazur was injured in a car accident. The respondents admit liability and admit that Ms. Mazur’s soft tissue injuries developed into pain disorder. The issue at trial was the assessment of damages, particularly with respect to income loss. [2] At the time of the accident Ms. Mazur was 52 years old. She had worked as a legal secretary at Clark Wilson LLP from 1979 until August 29, 2005, when she took a disability leave of absence. Ms. Mazur maintains she planned to return to Clark Wilson and work until retirement at age 65 or 70, but due to the accident she never returned to work and it is unlikely she ever will. [3] A key issue at trial was the extent to which the car accident reduced Ms. Mazur’s ability to work and caused her past income loss and/or loss of future earning capacity, or whether these losses could be attributed to her pre-existing conditions. Ms. Mazur had a history of depression, anxiety, and panic attacks, as well as workplace, personal and family stress, culminating in her taking a leave of absence three days after her on-again, off-again, bipolar, alcoholic, then-boyfriend’s attempted suicide. The factual finding regarding causation would impact all of the heads of damages. [4] In addition to causation, there were issues of failure to mitigate ( failure to become more active, continue to exercise, lose weight, quit smoking, participate in volunteer activities, and get appropriate psychiatric treatment to address her pain disorder), and credibility (failure to disclose her attempted suicide at age 17, surveillance videos suggesting she may be exaggerating her level of pain and disability, and inconsistent self-reports to various health care providers). [5] Ms. Mazur’s yearly income, had she returned to Clark Wilson, would have been approximately $68,000. The total potential income loss for the years 2006 through to the date of the trial in 2011 was calculated by an economist to be in excess of $334,000. Ms. Mazur’s potential loss of future earning capacity was estimated in the range of $410,000 to $664,000, depending on when she would have retired. [6] There have been two jury trials. Both parties issued jury notices. The first jury award was overturned on appeal. This is an appeal from the second jury award. Procedural History [7] The first jury trial took place from October 13 to 29, 2009, following Ms. Mazur’s rejection of the respondents’ $60,000 offer to settle. After deliberating for more than a day, the jury awarded Ms. Mazur damages as follows: a) Non-pecuniary loss            $   55,000 b) Past loss of income           $ 145,000 c) Future loss of income        $ 307,000 d) Special damages               $     3,400 e) Future care costs              $     8,000 The total award after deductions was $506,062.81. [8] The respondents appealed on the basis that hearsay evidence contained in several expert reports was withheld from the jury. More specifically, in his medical report, Dr. O’Shaughnessy, a psychiatrist who testified on Ms. Mazur’s behalf, referred to opinions from Dr. Gibson, Ms. Mazur’s treating psychiatrist, and Dr. Solomons, a psychiatrist who examined her at the request of her disability insurer. As Dr. Gibson and Dr. Solomons were not being called as witnesses, the judge redacted any reference to their opinions and prohibited the respondents from cross-examining Dr. O’Shaughnessy on their opinions. This Court found this was an error that resulted in pivotal evidence being withheld from the jury: Mazur v. Lucas , 2010 BCCA 473 (“ Mazur v. Lucas ”). This Court concluded the jury was left with a potentially distorted and incomplete picture of the expert evidence. This amounted to a substantial wrong or miscarriage of justice because “a jury apprised of all of the relevant information might very well have arrived at a different verdict”: para. 51. This Court ordered a new trial, leaving the issue of costs to the discretion of the second trial judge. [9] On 17 August 2011, between the first and second trial, the respondents made a settlement offer of $300,000, plus costs. Ms. Mazur’s counter offer for $600,000 was rejected by the respondents. [10] At the second trial, held August 29 to September 19, 2011, the jury awarded Ms. Mazur damages as follows: a) Non-pecuniary loss            $  25,000 b) Past loss of income           $  53,000 c) Future loss of income        $        0.0 d) Special damages               $    6,000 e) Future care costs              $        0.0 The total award before deductions was $84,000. While all components of the award were lower, the most significant difference was that the second jury awarded nothing for future income loss [1] . Issues on Appeal [11] Ms. Mazur appeals the jury’s damages award from the second trial. She seeks a new trial based on the following grounds: 1. The cross-examination of Nadia Morrison, the Director of Human Resources at Clark Wilson LLP, included improper questioning that was not cured by the trial judge’s charge; 2. The trial judge misdirected the jury on loss of future earning capacity; 3. The jury award for past and future earning capacity is inconsistent; and 4. The jury’s deliberations were too short to properly consider the evidence. [12] The respondents’ cross-appeal with respect to the order requiring them to pay costs for the second trial. [13] For the reasons that follow, I would dismiss both Ms. Mazur’s appeal and the respondents’ cross-appeal. Position of the Parties Ms. Mazur’s Position [14] Ms. Mazur maintains the second trial proceeded largely in the same manner as the first trial. In her written submissions to this Court, Ms. Mazur delineates the differences between the first and second trials as follows: There were some differences between the first and second trials.  For example, in the second trial although counsel for the Defendant chose not to cross-examine Dr. O’Shaughnessy with respect to Dr. Solomons’ opinion, the Defendant called Dr. Solomons to testify.  But, as noted by Madam Justice Humphries, Dr. Solomons provided an opinion for Ms. Mazur’s employer’s insurance plan and played a limited role early in the history of Ms. Mazur’s psychological treatment.  Dr. Solomons said that Ms. Mazur had no disabling psychiatric condition when he saw her (on September 5, 2007), but he was not asked to deal with the motor vehicle accident and did not give an opinion on Pain Disorder.  The Pain Disorder was a central, and undisputed, issue in this action. In addition to calling Dr. Solomons to testify, in the second trial, the Defendant also tendered expert reports from Dr. Werry, an orthopaedic surgeon and Dr. Prout, a neurologist.  Orthopaedic and neurological injuries were not at issue in this trial.  None of the defendant’s orthopaedic or neurological experts could, or did, opine on the central issue of this case, which was [Ms. Mazur’s] Pain Disorder. [15] Ms. Mazur submits this Court overturned the first jury verdict on the basis that medical opinions supporting her case were not put before the jury. The new witnesses called by the respondents added nothing to the central issue of the trial, which was whether Ms. Mazur’s pain disorder affected her ability to work, both in the past and in the future. She argues the dramatic variation in the jury awards can only be explained by the respondents’ prejudicial cross-examination of Ms. Morrison and/or by judicial error with respect to the instruction on loss of future earning capacity. In addition, Ms. Mazur maintains the jury verdict is inconsistent because the jury determined she would have returned to work at some point, as evidenced by their award for past income loss, but then failed to make an award for loss of future earning capacity.  Further, given the short time the jury deliberated, the jury could not have considered all the evidence. The Respondents’ Position [16] The respondents take issue with Ms. Mazur’s characterization of the differences between the first and second trials. In their written submissions they delineate the differences between the two trials as follows: [T]he second trial did not proceed in largely the same way as the first. A number of matters unfolded differently at the second trial: (a)        [Ms. Mazur] called two additional experts to testify who did not testify at the first trial: Dr. Anne Parker (psychiatrist) and Cynthia Morin (an occupational therapist whose report, if accepted, would have greatly increased [Ms. Mazur’s] entitlement for cost of future care); (b)        the Defendants called three additional experts to testify who did not testify at the first trial: Dr. Solomons (psychiatrist), Dr. Alister Prout (neurologist), and Dr. Donald Werry (orthopaedic surgeon); (c)        the Defendants called Drs. Philip Teal and Prout to testify that [Ms. Mazur’s] carpal tunnel syndrome was unassociated with the Accident, and after their testimony [Ms. Mazur] dropped this element of her claim; (d)        the Defendants called Dr. Werry in order to rule out any potential physical causes of [Ms. Mazur] pain disorder and leave only psychiatric causes; (e)        although Dr. Solomons assessed [Ms. Mazur] for her employer’s insurance plan, and therefore played a more limited role than other experts in [Ms. Mazur’s] care, he obtained important facts from [Ms. Mazur] relating to her original position that supported the Defendants’ position on causation; (f)         because of the change in strategy in calling Dr. Solomons to testify at the second trial, it was no longer necessary to ask Dr. O’Shaughnessy more than limited questions in cross-examination about Dr. Solomons’ opinion; (g)        in cross-examination the Defendants were able for the first time to ask Dr. O’Shaughnessy about the opinions of Drs. Solomons, Gibson, and Borkenhagen; (h)        the Defendants were able to conduct much fuller cross-examinations of the lay and expert witnesses due to there no longer being a restriction on questions relating to hearsay evidence; (i)         [Ms. Mazur’s] cross-examination at the second trial was different due to the expert reports no longer being redacted as well as changes in [Ms. Mazur’s] own testimony; and (j)         because [Ms. Mazur] did not attend the St. Paul’s Hospital Pain Clinic until after the first trial, this evidence was received for the first time at the second trial. [17] The respondents take the position that the quantum verdict merely demonstrates that the jury resolved causation against Ms. Mazur, finding she would not have returned to work, regardless of the accident. The respondents submit there was ample evidence to support rejecting Ms. Mazur’s claim for future loss of income earning capacity, such as Ms. Mazur’s pre-existing depression, anxiety, personal stresses, and work-place conflicts. Additionally, the jury was entitled to reduce any award based on her failure to mitigate her losses, as Ms. Mazur did not attempt to return to work or address the health issues resulting from her inactive lifestyle and smoking. [18] The respondents argue in any event, the jury charge, taken as a whole, reveals no misdirection and Ms. Mazur’s counsel did not object to the jury instructions at trial. The respondents maintain the quantum verdicts are not inconsistent, and the duration of the jury’s deliberations provides no basis for appellate intervention . Analysis 1.       Cross-examination of Nadia Morrison [19] Ms. Morrison, Clark Wilson’s Human Resources manager, testified about Ms. Mazur’s excellent work performance as well as some challenges she had adjusting to working with different lawyers. Ms. Morrison testified about the circumstances leading up to Ms. Mazur taking a leave of absence. She described significant improvement in Ms. Mazur’s mood prior to the accident and expected Ms. Mazur would eventually return to work. [20] The respondents’ trial counsel sought to impugn Ms. Morrison’s credibility by attempting to elicit evidence of bias, suggesting Ms. Mazur’s working conditions at Clark Wilson contributed to her stress, anxiety and depression prior to the accident. [21] The respondents’ cross-examination opened by noting that Ms. Mazur was being represented by a lawyer from Clark Wilson. The respondents’ counsel put the suggestion to Ms. Morrison that personal injury cases are generally dealt with by contingency fee agreements and that Clark Wilson possibly stood to gain from any award Ms. Mazur received. Ms. Morrison stated she had no knowledge of the fee arrangement. Ms. Mazur’s counsel did not object to this line of questioning and even re-examined the witness in this area. [22] After the witness and the jury were excused, Ms. Mazur’s counsel asserted the questions were improper, suggesting counsel was insinuating that Ms. Morrison’s testimony was influenced by the likelihood that her firm had a financial interest in the outcome of the trial.  He asked the judge to tell the jury to disregard this evidence in her charge. Counsel did not make a mistrial application. [23] In her final charge to the jury, the trial judge referenced the cross-examination of Ms. Morrison and  instructed the jury as follows: The defendants say there is reason for Ms. Morrison to be biased in her evidence.  I should note, however, that while it is entirely up to you to decide if you thought Ms. Morrison had any reason to be biased in her evidence, that not only is there no evidence to support a suggestion that the law firm of Clark Wilson might benefit from this lawsuit, such a consideration is not relevant to your deliberations.  I do not believe [counsel for the respondent] was suggesting through her questions that you should draw such an inference.  She was merely reciting a number of factors that you might properly consider as to bias.  In any event, such a consideration, that is, whether Clark Wilson might benefit from this lawsuit, is irrelevant to your considerations. [24] There was no objection to this instruction. However, on appeal, Ms. Mazur submits this instruction was ambiguous, confusing and insufficient. She contends that the comments resulted in placing an irrelevant and highly prejudicial notion in the minds of the jury that any award would benefit Ms. Mazur’s lawyer.  Ms. Mazur believes the jury was influenced by the suggestion that the law firm stood to gain financially. [25] I agree with the respondents that the questions put to Ms. Morrison on cross-examination appropriately probed any potential bias arising out of her dual role as a witness from the law firm employing Ms. Mazur and as a management employee of the law firm representing Ms. Mazur. The cross-examination of a witness with respect to potential bias is a legitimate subject of questioning. [26] The judge’s instructions were straightforward and correct in law. She properly left the jury with the task of evaluating Ms. Morrison’s evidence and, in particular, of assessing whether her interest in portraying her firm in a favourable light compromised her objectivity. The judge also explained to the jury that there was no evidence to suggest that Clark Wilson had a pecuniary interest in the outcome of the case and, in any event, no basis on which it could find that any such interest might have influenced Ms. Morrison’s testimony. [27] I am of the view that the impugned instructions were comprehensible and unobjectionable. I am strengthened in this view by the fact that the appellant’s trial counsel raised no objection to them. Counsel was in a good position to assess the adequacy of the instructions in the context of the evidence and of the charge as a whole, and his failure to object is, in my opinion, telling. I would not accede to this ground of appeal. 2.       Jury instruction on loss of future earning capacity [28] Ms. Mazur asserts the trial judge misstated the criteria for determining loss of future earning capacity, leading the jurors to believe they could not make an award for loss of future earning capacity unless they found she would return to her legal secretary job. [29] The respondents say Ms. Mazur is focussing on a single sentence but that the charge, taken as a whole, contains no misdirection. In any event, there was no evidence to support the possibility Ms. Mazur would have pursued any other employment than full-time legal secretarial work at Clark Wilson. [30] The judge instructed the jury on loss of future earning capacity as follows: Now we move on to future loss…The plaintiff is seeking to be compensated for the loss of a capital asset, namely, her ability to earn income in the future. This is a capital asset that every person is presumed to have in the law, an ability to earn income. The plaintiff says she would have been able to earn income in the future if the accident had not occurred, and as a consequence of the injuries she suffered as a result of the accident she will be unable to earn income in the future. As you know, the defendants' position is that the plaintiff is unemployable, but that is not the fault of the defendants. The plaintiff would never have returned to work anyway regardless of the accident because of her pre-existing depression, anxiety, and panic attacks and her inability to cope with work stresses. Since this is a future loss or a hypothetical event, the standard of proof is not a balance of probabilities.  You must assess the possibility that a particular event would have occurred or not occurred. If you find that an event is a real possibility and not merely guesswork, you must express that possibility in your award. This is a matter of looking into the future and nothing can be certain. You must assess the likelihood of Ms. Mazur continuing in her full-time legal assistant job if the accident had not happened, and you must also determine the age at which she would likely retire. Once again, you must take into account the contingencies of life that make such losses uncertain: lay-offs, unrelated illnesses, other hardships of life, as well as positive contingencies such as promotions or raises in pay. The plaintiff submits that Ms. Mazur's loss can be approached mathematically, that is, by taking the figure Ms. Mazur should have been earning in 2011, which Mr. Lahay calculated under the previous heading at $68,000, deciding how long she would have continued to work into the future, for instance, age 65, and obtaining a lump sum at present value using Mr. Carson's multiplier at Exhibit 5, Tab 7. That is, for age 65 the multiplier is 6.016 and for age 70 the multiplier is 9.763. Despite the mathematical approach suggested to you by the plaintiff, I am sure you realize this cannot be a precise calculation. You are gazing into a crystal ball. You are making the best and fairest determination you can on the basis of the evidence you have heard. You are required to arrive at a present value lump sum figure which will fairly and reasonably compensate Ms. Mazur for future financial loss which you find has been caused by the accident. As with all of your awards for damages, the award must be fair and reasonable to both parties. Future losses are not subject to deduction for tax, unlike the past losses. I am just thinking that if you do have difficulty with the present value tables and you just want to come up with a raw figure that counsel can apply the present value tables to, that is another way of approaching it, but I must know that is what you did. So I have to know whether you are applying the tables or not. So, as I say, please, if you have any questions at all about this aspect of it, please clarify them in a question and give it to the sheriff. [31] Ms. Mazur raised no objection to this aspect of the jury charge either on review of the written draft charge or after the judge’s delivery of the oral charge. Her failure to object is a significant factor for consideration on appeal. [32] The judge’s charge should be considered in light of the closing submissions of both counsel. Ms. Mazur’s counsel made the following submissions to the jury: Future loss of earnings. This is quite different, quite different in a couple of respects. Our courts regard your capacity to work and earn an income as a capital asset, something you are born with. If you impair that capital [asset] you are entitled to be compensated. We don’t have to show Dianne was prevented from working at Clark Wilson, we have to show her capital asset was impaired, and there's no question it has been. Once we show that, she is entitled to be compensated for the impairment of that capital asset. So my friend may say, well, you have to be able to prove she would go back to Clark Wilson. We don't have to. We have to show that her ability to work has been impaired. That in and of itself gave rise to her right to compensation. As another important distinction between past and future income we only have to show a significant possibility, we don't have to show a balance of probabilities, so the standard of proof is lower…. So we say the loss of income going into the future would be 68,000 a year. That was the last year that Dianne would have been earning income, that’s the rate it would have been this year, so she's losing $68,000 a year for as long as you decide she would have continued working. Now, this is where it gets a little bit trickier. You may or may not have heard of the time value of money. Keep in mind your job is to put Dianne in the same position she would have been in, which means she would have been working at Clark Wilson , she would have earned $68,000 this year, some figure the year after that and some figure the year after that, she wouldn't get it all today. You can't do that. You have to award a lump sum. That means you have to award her money she would earn into the future... [W]e say there's no reason to conclude Dianne would work till 65, we say she would have stayed there as long as Clark Wilson would have her, to use her words, and you heard lots of evidence about other long-term employees of Clark Wilson, one of whom, Marcel Meyer, is 70 years of age, still working, no plan to retire. Now, I'm not going to ask you to take into account what society does these days, take into account the evidence in this trial. Dianne has told you work was central to her life, it was her identity. She planned to stay there as long as Clark Wilson would have her and she said she was happy when the legislation came in that prevented employers from firing people at 65, or terminating their employment. I say it's reasonable to conclude Dianne would have worked to age 70 ... Now, my friend is going to argue that you should apply negative contingencies to these figures, you should conclude that Dianne's future at Clark Wilson would have been spotty. Well, I'm going to tell you to keep in mind the 26 years leading up to the accident which were spotless. My friend is going to say no, you should conclude that there would be problems after she returned to work. Those are the negative contingencies. What you may do is you may conclude, and there's no specific science for this, we don't consider damages to be a mathematical calculation. When you have lots of evidence it makes it easier and you can do kind of a calculation, but when you don't have as much information as we do have here, you do what's called an assessment. So there's no specific science to this. When you calculate the future loss of income and you have a range that I've given you, anywhere from 410 to 665, you can conclude, because we don't know, that if we think there may have been problems with Dianne returning to work or if she may have had to take time off from work from time to time, you can apply a discount. You can say, well, I think there's a 10 percent chance or a 15 percent chance or a 20 percent chance and you can discount the figure by that percentage. Essentially what my friend is going to argue when it comes down to it is all right, the pain disorder may be a factor, but we say there were other factors, and what we call that is apportionment of damages. So you get to say, well, I think the pain disorder is 90 percent of it, the other factors may have caused Dianne to be off work 10 percent of the time and that's how you arrive at these figures, so you get to decide those things. My submission is that I think given Dianne's history, given the evidence you've heard, given the fact that she is being treated for depression and is not likely to have a recurrence, apply these contingencies they should be very modest to the figures that I've provided you. [33] Thus, counsel emphasized that the issue was not whether Ms. Mazur would have returned to work at Clark Wilson had the accident not occurred, but rather whether she had a capacity to earn money that was diminished as a result of the accident. That said, counsel recognized that the evidence did not point to any likely source of income other than employment at Clark Wilson, and made specific submissions on the likelihood that the plaintiff would have returned to that employment. [34] Ms. Mazur’s counsel properly addressed the jury on the legal test for determining entitlement for loss of future earning capacity. He stated correctly that the question was whether there was a significant possibility that Ms. Mazur’s pain disorder impaired her ability to work; and so long as the jury concluded that but for the accident Ms. Mazur could have worked, she was entitled to some form of compensation for loss of future earning capacity. He also noted that the jury had the ability to apportion that loss between the pain disorder and Ms. Mazur’s pre-existing conditions. [35] The defendants’ submissions to the jury on loss of earning capacity were as follows: Now we will move on to future loss…The plaintiff is seeking to be compensated for the loss of a capital asset, namely, her ability to earn income in the future. This is a capital asset that every person is presumed to have in the law, an ability to earn income. The plaintiff says she would have been able to earn income in the future if the accident had not occurred, and as a consequence of the injuries she suffered as a result of the accident she will be unable to earn income in the future. As you know, the defendants' position is that the plaintiff is unemployable, but that is not the fault of the defendants. The plaintiff would never have returned to work anyway regardless of the accident because of her pre-existing depression, anxiety, and panic attacks and her inability to cope with work stresses. Since this is a future loss or a hypothetical event, the standard of proof is not a balance of probabilities.  You must assess the possibility that a particular event would have occurred or not occurred. If you find that an event is a real possibility and not merely guesswork, you must express that possibility in your award. This is a matter of looking into the future and nothing can be certain. You must assess the likelihood of Ms. Mazur continuing in her full-time legal assistant job if the accident had not happened, and you must also determine the age at which she would likely retire. Once again, you must take into account the contingencies of life that make such losses uncertain: lay-offs, unrelated illnesses, other hardships of life, as well as positive contingencies such as promotions or raises in pay. Despite the mathematical approach suggested to you by the plaintiff, I am sure you realize this cannot be a precise calculation. You are gazing into a crystal ball. You are making the best and fairest determination you can on the basis of the evidence you have heard. You are required to arrive at a present value lump sum figure which will fairly and reasonably compensate Ms. Mazur for future financial loss which you find has been caused by the accident. As with all of your awards for damages, the award must be fair and reasonable to both parties [36] The respondents’ counsel encouraged the jury to adopt the very line of reasoning the judge erroneously incorporated into her charge. Counsel emphasized sections of Ms. Mazur’s doctors’ and therapists’ reports that discussed her feelings of being overwhelmed working for multiple lawyers at Clark Wilson, her reluctance to return based on her feelings of failure, and the interpersonal conflicts she faced there. These remarks related to the question of whether Ms. Mazur would have returned to work at Clark Wilson, and not necessarily whether her pain disorder impaired her ability to return to work more generally. [37] I agree with Ms. Mazur that this statement in the charge to the jury is clearly wrong. The issue before the jury was not whether Ms. Mazur would have returned to her position at Clark Wilson, although that consideration would have informed their analysis. Given that the respondents admitted the accident caused Ms. Mazur’s pain disorder, the jury should have been directed to assess, in a general way, whether the pain disorder would have impacted her ability to earn an income in the future. Instead, the jury was told to consider whether Ms. Mazur would have returned to her position at Clark Wilson. [38] The proper test for determining loss of future earning capacity is whether there has been a loss of capacity that deserves to be compensated: Perren v. Lalari , 2010 BCCA 140 at para. 12. [39] The question on this appeal, therefore, is whether this error could have had any practical impact on the jury’s award; that is, whether this misdirection resulted in a substantial wrong or miscarriage of justice because a jury apprised of all the relevant information might very well have arrived at a different verdict: Mazur v. Lucas at para. 51. If the error could not have had such an impact, the misdirection was harmless, and did not result in any injustice. [40] In assessing the impact of the misdirection, the charge must be considered as a whole and in conjunction with the entirety of the evidence and the jury addresses of counsel: Lennox v. New Westminster (City) , 2011 BCCA 182 at para. 25, leave to appeal ref’d, [2011] S.C.C.A. No. 257. [41] For the reasons dealt with below, I find that the error did not amount to a substantial wrong or miscarriage of justice because a properly instructed jury would not have arrived at a different verdict. There was no objection to the charge at trial when timely intervention would have permitted the trial judge to take corrective steps. Counsel’s inaction supports the presumption that the instruction could not have been seriously misleading or unfair, leading to an injustice. Nature of the Error [42] As this Court noted in the first appeal of this case, a new trial is an extraordinary remedy and should only be granted when the interests of justice plainly require it. Additionally, this Court noted that “[a]n appellant cannot ask for a new trial as a matter of right on a ground of misdirection or other error in the course of the trial when no objection was made in respect of the matter at trial”: Mazur v. Lucas at para 45, citing Arland and Arland v. Taylor , [1955] 3 D.L.R. 358 (Ont. C.A.). [43] The onus is on Ms. Mazur to demonstrate that the judge’s misdirection amounted to a substantial wrong or miscarriage of justice, warranting a new trial. [44] Appellate review of civil jury instructions will focus on the charge as a whole. Even if one statement within a charge amounts to a misdirection, “it is the charge as a whole that must be considered to determine whether the misdirection may have misled the jury or whether the issues were placed before it fairly”: Alden v. Spooner , 2002 BCCA 592 at para. 20, leave to appeal ref’d, [2002] S.C.C.A. No. 535. [45] The jurisprudence supports two approaches for determining loss of future earning capacity. The first comes from Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.), and was later termed the “real possibility” approach by Finch J.A. (as he then was) in Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260, 53 B.C.A.C. 310, or the “mathematical approach”. This approach is most appropriate where a plaintiff’s loss of future earning capacity can be easily quantified and was the approach Ms. Mazur advocated for at trial. [46] The second approach, is the “capital asset” approach from Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.). This approach is useful where the future is harder to determine. It guides the trier of fact to consider the consequences of an injury as an impairment of a capital asset. When determining how to quantify the value of that impairment, Brown proposed that the trier of fact consider whether: 1.         The plaintiff has been rendered less capable overall from earning income from all types of employment; 2.         The plaintiff is less marketable or attractive as an employee to potential employers; 3.         The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and 4.         The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market. [47] Regardless of the approach, there was no onus on Ms. Mazur to prove that she would have returned to her job at Clark Wilson. However, “mere speculation of future loss of earning capacity” is insufficient to justify damages, and “[a] plaintiff must always prove… that there is a real and substantial possibility of a future event leading to an income loss”: Perren at para. 32. This standard of a real and substantial possibility is lower than a balance of probabilities but higher than mere speculation: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27. [48] The trial judge erred in her instruction to the jury insofar as she made it seem that Ms. Mazur’s right to compensation for future loss of income was tied specifically to her returning to Clark Wilson, rather than returning to any form of employment. However, there was still a burden on Ms. Mazur to establish her loss, which would have required the jury to find that, but for the accident, she would have gone back to some form of employment. Did the Error Impact the Verdict? [49] As stated above, the key issue on this appeal is whether the misdirection amounted to a substantial wrong or miscarriage of justice. Given the nature of this issue, it is helpful to review Ms. Mazur’s evidence and the medical evidence regarding her ability to return to work. Eleven medical experts testified at the trial. The jury heard evidence from three orthopaedic surgeons who concluded that there was no identifiable connection between Ms. Mazur’s pain symptoms and any physical injury. Two neurologists also testified; one of which testified that he could not identify a neurological basis for Ms. Mazur’s pain. The jury heard from three psychiatric experts as well as Ms. Mazur’s treating psychiatrist, each of whom gave a different account of the causes of Ms. Mazur’s disability and whether she would have returned to work. Additionally, Ms. Mazur’s general practitioner and a rehabilitation consultant were called upon to testify. [50] The respondents submit that the jury refused to compensate Ms. Mazur for a loss of future earning capacity because it accepted that Ms. Mazur was unemployable at the time of the accident, as supported by the medical evidence. Alternatively, the respondents submit the jury was entitled to reduce her claim on the basis that she failed to mitigate her losses. However, Ms. Mazur asserts this does not accord with the jury’s decision to award her some past loss of income. [51] Before turning to the evidence, I note that Ms. Mazur’s credibility was likely a troublesome issue for the jury. Her testimony was, at times, confused, vague and inconsistent. For example, during her cross-examination she was adamant that her job was not a significant stressor in her life prior to her leave of absence in 2005. This contradicted the accounts she provided during each of her medical examinations as well as statements she made under oath in her first trial. On my review of the record, Ms. Mazur’s testimony likely offered very little assistance to the jury. [52] Ms. Mazur testified she would have gone back to work in April 2006 after finishing a group therapy session at Peace Arch. She told the jury that she missed the routine of work and would have stayed at Clark Wilson until she retired at the age of 65 or 70. [53] Ms. Mazur testified that she was prepared to go back to work on January 23, 2006, however she seemed confused by the questioning and could have meant that she was, at that date, anticipating a future return to work. A claim that she was able to return to work in January of 2006 was not supported by the expert evidence. Her family doctor at the time, Dr. Borkenhagen, made the following note on January 23, 2006: “Re return to work. Memory, focus, concentration, all still shot”. A report dated January 25, 2006 for her disability insurance set out the basis for her claim as “[e]xtreme anxiety and frequent panic attacks beginning August 29 th , ‘05”. [54] There was also extensive evidence that prior to Ms. Mazur’s leave of absence she was having work conflicts and difficulties. In October of 2003 she filled out a health-related questionnaire indicating the major stress in her life was “work”. Outside of the courtroom she admitted feeling “constantly overwhelmed by the workload”. Ms. Mazur acknowledged she had conflicts while working for a junior lawyer and felt she had failed as a result of that experience. She was rejected for a pay increase and an opportunity to work for a senior lawyer. There was evidence from Ms. Morrison that Ms. Mazur had been referred to a counselor through work on August 20, 2005, prior to her boyfriend’s suicide attempt, although Ms. Mazur denied this at trial. [55] Ms. Mazur filled out a form in June of 2008 stating, “[w]ith the exception of poor concentration and memory I do feel I could do most parts of my regular work if there wasn’t so many demands of my time and the time constraints imposed by the lawyers I work with.”  She felt overwhelmed and guilty turning down work.  She acknowledged that the poor concentration and memory were problems before the accident. She told Dr. Parker, her treating psychiatrist, that she wondered how much of her pain was stress-related or psychosomatic. Her migraines appeared to be largely caused by work or social stress, as they stopped when she stopped working. [56] The respondents challenged Ms. Mazur’s assertions that she would return to work by seeking to demonstrate that Ms. Mazur’s depression was a long-standing issue that had come to a head prior to the accident and was the source of her ongoing disability, not any injury attributable to the accident. They sought to portray Ms. Mazur as extremely unhappy at her job, thereby impugning the credibility of her claim that she was actively trying to return to work prior to the accident. [57] To support their claims, the respondents noted that Ms. Mazur met with Cynthia Morin, a vocational rehabilitation expert, in November 2008. They discussed the prospect of her returning to work part-time or doing legal transcription work from home. She never asked Clark Wilson for different work or any accommodation. She did not look for any work based on the recommendations of the vocational rehabilitation expert. [58] The respondents also pointed to the medical evidence to support their claim that Ms. Mazur’s pre-existing mood disorders were preventing her from returning to work, not the accident. [59] Roughly five weeks after the accident, Dr. Wilson, Ms. Mazur’s general practitioner, completed an assessment and concluded it was “unknown” when she would return to work due to a “current pre-existing disability”. At trial he stated that he was not treating her for any psychological conditions so the details of the stressors in her life were not his primary focus, but he did note in December of 2007 that she was “unhappy about returning to work”. Dr. Wilson wrote a letter to Ms. Mazur’s insurance company in September 2008 stating her depression was still preventing her from returning to work. [60] Dr. Randall Locht, an orthopaedic surgeon, submitted a report dated June 30, 2008, at the request of Ms. Mazur’s disability insurer. He assessed Ms. Mazur’s neck and back pain. He wrote in his 2008 report “ [t]he musculoskeletal neurological assessment cannot identify any other organic conditions complicating Ms. Mazur's recovery and preventing her from returning to productive employment... psychosocial factors complicating Ms. Mazur's recovery is beyond my level of expertise”. He found she had no physical pain preventing her from working and recommended that she return to work. He testified at trial that “[i]t's well known that a lot of patients with neck and back pain problems, one of the main -- and -- and why they're off work -- is because of their dissatisfaction with work”. [61] Dr. Ollie Sovio, a second orthopaedic surgeon, assessed Ms. Mazur and submitted a report dated January 27, 2009. He testified that her complaints of physical pain did not match the findings of his examination. He thought her failure to return to work could be attributed to “ [n]on-physical factors, whether they be psychiatric problems, [or] whether they be other factors such as secondary gain issues”, described as being the avoidance “of unpleasant surroundings, meaning work return”. Dr. Sovio could not “ assign the disability to any physical injury” and was “at a loss to recommend any further physical treatment or investigation”. [62] Dr. Donald Werry, the third orthopaedic surgeon, assessed Ms. Mazur in May 2011. He concluded that any soft tissue injury Ms. Mazur may have suffered in her neck and low back from the accident likely healed within three to six months. [63] Dr. Phillip Teal, who practices emergency medicine and neurology, prepared a report in April 2009. He attributed Ms. Mazur’s hand pain to carpal tunnel syndrome, not the accident. This finding was supported by Dr. Alister Prout, the second neurologist who assessed Ms. Mazur. Dr. Teal’s prognosis was that Ms. Mazur should be able to return to work as a legal secretary within six months, but considered her time on long-term disability to be a “complicating factor” because it was evidence of a “pre-existing problem”. He testified: “I couldn't find adequate physical explanations, neurologic or -- or physical or musculoskeletal explanations for her pain…  I have to think that psychological factors are probably playing a major component here rather than the physical issues”. [64] Dr. Kevin Solomons was a psychiatrist who examined Ms. Mazur at the request of her disability insurer. He has extensive experience treating mood disorders. He believed that Ms. Mazur’s work conflicts were at least partially responsible for her taking the stress leave. He noted in his report that she resented her employer. He found that her personality traits, which led to her taking a leave, were likely still part of her reasons for not returning to work. He recommended in his report that “[i]n the absence of a psychiatric illness that prevents her working… she would be able to return to work soon” with some accommodation from her employer. He included in his report that since her mood had improved in January 2006, her reluctance to return to work was probably due to secondary factors, such as conflicts at work. Dr. Solomons did not think Ms. Mazur’s depression was debilitating her from working in 2006. [65] The jury also heard from Dr. Anne Parker, the psychiatrist who b egan treating Ms. Mazur in October 2008 after her former psychiatrist, Dr. Gibson, retired. Dr. Parker’s evidence was likely given little weight by the jury, as it contradicted evidence from other experts in two important areas. First, Dr. Parker gave evidence that “ Dianne loved her work. It was a huge part of her life ”. However, these remarks were not corroborated by any of the other doctors who assessed Ms. Mazur for the trial . Her report did not contain any references to statements Ms. Mazur made elsewhere about feeling overwhelmed. On cross-examination, Dr. Parker resiled from her report on the question of whether Ms. Mazur would ever return to work. Second, Dr. Parker put in her report that “[t]here has been no evidence of any depression whatsoever since at least July 2009”, which again contradicted every other medical report and, to some extent, Ms. Mazur’s own testimony (emphasis added). [66] Ms. Mazur asserts on appeal that this expert evidence was not relevant to the main issue of her claim: the extent to which her pain disorder was the cause of her ongoing disability. Pain disorder is a psychiatric condition that does not necessarily have a physical explanation. The key experts to the appeal were the psychiatrists called to testify about this condition; specifically, Dr. Roy O’Shaughnessy for Ms. Mazur, and Dr. Paul Janke for the defendants. [67] Dr. O’Shaughnessy assessed Ms. Mazur on May 22, 2008, and again on January 12, 2011. Dr. Janke assessed Ms. Mazur in April 2009. [68] On my review of the evidence, Dr. O’Shaughnessy and Dr. Janke agreed on many things. They agreed Ms. Mazur had obsessive compulsive personality traits that made her more likely to develop anxiety and depression. They agreed that the stress from Ms. Mazur’s personal, family, and work conflicts all contributed to the onset of her depression in 2005. They agreed Ms. Mazur was clinically depressed and had anxiety at the time of the accident and that this made her vulnerable to developing the pain disorder. They agreed she had a pain disorder and that it was the result of her depression combined with her injuries from the accident. They agreed that, by 2009, her depression was in remission, although they disagreed as to the extent of that remission. [69] The primary disagreement between Dr. O’Shaughnessy and Dr. Janke was with regard to the nature of her pain disorder as it related to her depression, or, in other words, the nature of Ms. Mazur’s “original position”. [70] Dr. O’Shaughnessy described Ms. Mazur’s pain disorder as being distinct and separate from her depression (although he admitted they are related and can have overlapping symptoms). He testified that Ms. Mazur’s depression was in remission when he assessed her in 2008, therefore it was the pain disorder (not the depression) that continued to disable Ms. Mazur. He explained that the pain experienced with pain disorders is “real” in a subjective sense but it is hard to measure objectively. In 2008, Ms. Mazur had developed an “obsessional pre-occupation” with her pain . By 2008, Ms. Mazur “ was experiencing a lot of pain fear, pain avoidance. She had become very passive, not doing anything for fear of pain.  That led to further deconditions which itself aggravates the pain ”. [71] To put it another way, Dr. O’Shaughnessy seemed to be saying that at the time of the accident Ms. Mazur had a treatable form of depression. The accident resulted in a pain disorder, which had not been successfully treated. But for the accident, Ms. Mazur’s depression would be in remission and she would have been able to return to work. The pain disorder is a new condition and it is responsible for her ongoing disability. [72] Dr. Janke appeared to consider Ms. Mazur’s pain disorder and depression to be different sides of the same coin. He described Ms. Mazur’s depression as being the consequence of years of maladaptive personality traits and interpersonal problems that had never been resolved. While her depression resulted in a pain disorder (and became the focus of Ms. Mazur’s treatment), he believed that even without the pain disorder, Ms. Mazur would still be disabled. Her symptoms had not changed after the accident (she continued to lack focus, struggle with memory, and be socially isolated) and she still had “ profound complaints about depressed mood ”. The difference was that she was blaming her pain rather than her depression. [73] Dr. Janke was critical of Ms. Mazur’s non-disclosure of her suicide attempt when she was 17; the duration and quantity of medications she was taking for physical pain and anxiety; the reasons she left her volunteer work (feeling overwhelmed and undervalued); and her discontinuation of her exercise programs. On Dr. Janke’s account, Ms. Mazur’s ongoing disability was the result of her original position -- her personality structure of obsessive compulsive tendencies, a self-centered nature, and problems with interpersonal relationships -- because none of the factors that caused her depression had been resolved. [74] Given these differences in Dr. O’Shaughnessy and Dr. Janke’s account of Ms. Mazur’s pain disorder, the question as to whether Ms. Mazur would have returned to work, but for the accident, was left for the jury to determine. As the summary above demonstrates, there was a substantial amount of evidence to support a jury finding that Ms. Mazur was unemployable at the time of the accident, and her pre-existing conditions accounted for her ongoing disability. [75] The trial judge’s instruction to the jury that they had to assess the likelihood of Ms. Mazur continuing her full-time legal secretary job at Clarke Wilson was clearly erroneous and, in isolation, would be cause for ordering a new trial. However, on this appeal, Ms. Mazur is focussing on a single sentence in the jury charge, which taken as a whole involved no other misdirection. I agree with the respondents that, in the context of all of the evidence and the charge as a whole, the impact of the error was harmless. Furthermore, her counsel did not object to the wording of the charge, even though he was given the opportunity to comment on it before it was delivered. This indicates that the error was not considered to be egregious at the time. [76] The onus was on Ms. Mazur to prove her case. With regard to her claim for loss of future earning capacity, that meant proving that she would have returned to some form of employment. There was no evidence of any real possibility that Ms. Mazur would have pursued any employment other than legal secretarial work. Indeed, Ms. Mazur’s own submissions were that, but for the accident, she would have returned to Clark Wilson . The fact that Ms. Mazur did not allude to, let alone establish the possibility of, returning to some other employment other than her legal secretary position likely explains why the trial judge made the comment she did. [77] The jury was told to compensate Ms. Mazur for the loss of a capital asset if there was a possibility her injuries impaired her ability to earn income. There was ample medical evidence to suggest that Ms. Mazur’s pre-existing conditions were preventing her from returning to work, not anything attributable to the accident. This was a finding the jury was rightfully invited to make. [78] In my view there is no basis for appellate intervention on grounds of misdirection and I would dismiss this ground of appeal. 3.       Inconsistency in quantum [79] Ms. Mazur maintains the damage award is inconsistent because the jury awarded her $53,000 for past wage loss, and nothing for loss of future income earning capacity. She argues the jury was not entitled to find that she would have returned to work, but for the accident, while also finding that her pre-accident condition would have prevented her from working after the trial. [80] The respondents assert the verdict is supported by the jury’s belief that, but for the accident, Ms. Mazur’s pre-accident condition would have permitted her to work only a short time (six to 12 months) or that she would have chosen not to work to avoid the recurrence of depression. [81] The respondents also point to concerns with Ms. Mazur’s credibility and her failure to mitigate her loss as possible explanations for an award for past wage loss but not future loss of income earning capacity. [82] The assessment of damages is within the purview of the jury. This Court will be reluctant to interfere with a jury award in the absence of finding that the verdict is plainly unreasonable or unsupported by the evidence. That cannot be said in this case where, understandably, the jury was struggling with Ms. Mazur’s credibility and related concerns. Additionally, t his quantum is also consistent with the evidence from the orthopaedic surgeons, who believed her physical injuries would have healed within three to six months. [83] In my view this argument does not form a basis for appellate intervention. I would dismiss this ground of appeal. 4.       Duration of jury deliberations [84] The jury deliberated from 3:10 pm to 6:12 pm on September 19, 2011, before returning with an award of $84,000. Ms. Mazur asserts the jury could not have considered all the evidence because it deliberated only two hours (three may be more accurate, based on the trial judge’s reasons and transcript) following a trial requiring 15 days of court time. [85] The standard of review for a complaint of unfairness in the trial process is whether a reasonable person informed as to what took place in that proceeding would be apprehensive that the appellant did not receive a fair hearing . [86] The respondents point to the oath taken by the jurors; the Jury Act , which anticipates a unanimous verdict after three hours; and the fact that the jurors would have been familiar with the evidence by the end of the trial as factors refuting Ms. Mazur’s claim of unfairness. I agree with the respondents that the duration of jury deliberations provides no basis for appellate intervention. [87] In my view, t here is no evidence to support Ms. Mazur’s assertion she did not receive a fair trial. I would dismiss this ground of appeal. Cross-Appeal 1.       Costs [88] Costs for the first trial were left to the discretion of the second trial judge. The trial judge awarded Ms. Mazur her costs for the first and second trial: Mazur v. Lucas , 2011 BCSC 1685. Reasoning that the appeal court implied that the costs of first trial should be considered in light of the award on the second trial, the judge observed that the award on the second trial exceeded the defendants’ offer to settle on the first trial so Ms. Mazur was entitled to her costs for the first trial. With respect to the costs of the second trial, the judge considered each factor in Rule 9-1(6) of the Supreme Court Civil Rules , B.C. Reg. 168/2009. She gave significant attention to Rule 9-1(6)(d), which permits a judge to consider “any other factor”. She concluded the discrepancy between the awards from the first and second trials was not explained by the result of the first appeal. The trial judge awarded Ms. Mazur her costs of the second trial, concluding Ms. Mazur acted reasonably in declining to accept the respondents’ second offer to settle given the quantum of damages she received after the first trial. [89] In their cross-appeal factum, the respondents argue the trial judge erred in considering the first appeal as relevant to the costs for the second trial. They say this error caused the judge to ignore the costs consequences of their second offer to settle and this Court should order Ms. Mazur to pay the respondents’ costs after August 17, 2011. [90] The award of costs was entirely discretionary. Absent an error in principle, there is no basis for appellate intervention. The trial judge thoroughly and carefully reviewed all relevant factors identified in Rule 9-1(6) and held that in all the circumstances Ms. Mazur should have her costs of the second trial. I find no error in principle in the exercise of her discretion in favor of Ms. Mazur. I would dismiss the respondents’ cross-appeal. 2.       Repayment of part-payment on account of the first trial award [91] On November 25, 2009, the respondents commenced an appeal of the first trial. The parties negotiated a part-payment of $250,000 to Ms. Mazur in exchange for a consensual stay of execution on the first trial order. The respondents have filed a Notice of Motion seeking a repayment order. [92] I would order Ms. Mazur to repay the respondents the amount by which the part-payment on account of the first trial award exceeds her ultimate net entitlement as against the respondents. Conclusion [93] I would dismiss Ms. Mazur’s appeal.  I would dismiss the respondents’ cross-appeal. I would make the repayment order against Ms. Mazur. “The Honourable Madam Justice Stromberg-Stein” I Agree: “The Honourable Mr. Justice Groberman” I Agree: “The Honourable Madam Justice MacKenzie” [1] Trial 1 Jury Award Trial 2 Jury Award Non-pecuniary damages $55,000 $25,000 Past income loss $145,000 $53,000 Future income loss $307,000 nil Special damages $3,400 $6,000 Future care cost $18,000 nil Total $528,400 $84,000 Time jury deliberated Approximately 1 day Approximately 3 hours Defendants’ formal offer to settle $60,000 ( 11.4% of final award) $300,000 ( 357% of final award)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Ghavim v. Jamali, 2014 BCCA 21 Date: 20140122 Docket: CA040344 Between: Farideh Ghavim Respondent (Claimant) And Ali Jamali Appellant (Respondent) Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Groberman The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated September 28, 2012 ( Ghavim v. Jamali , Vancouver Docket E103039). The Appellant appeared in person, along with translator Mohammed Sajedi Counsel for the Respondent: R.W. Millen Place and Date of Hearing: Vancouver, British Columbia November 29, 2013 Place and Date of Judgment: Vancouver, British Columbia January 22, 2014 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Groberman Summary: On summary trial, a significant amount of income was imputed to the appellant to account for rental income the appellant was held to be receiving from properties in Tehran. As a result, the remaining assets of the marriage were transferred to the respondent as a one-time spousal and child support payment. On appeal, the appellant argued the matter should have been reset for a full trial, the summary trial judge departed from established rules of evidence, and the summary trial judge conducted himself in such a manner as to give rise to a reasonable apprehension of bias. Held: appeal allowed. The combination of different types of interventions by the summary trial judge created the appearance that the appellant had not received a fair trial. Reasons for Judgment of the Honourable Mr. Justice Willcock: Introduction [1] This is an appeal from the following orders made on September 28, 2012 following a summary trial in matrimonial proceedings: a) an order that the sum of $32,023.65, then held in trust by the respondent’s counsel, be released to the respondent as a one-time lump sum payment of spousal support; b) an order requiring the appellant to pay child support to the respondent in the amount of $515 per month based on an imputed income of $66,000 per annum; c) an order the appellant pay $29,717 to the respondent to account for retroactive child support payments for the period of October 1, 2010 to October 1, 2012 and other special expenses; and d) an order requiring the appellant to pay $32,023.65 as a one-time lump sum spousal support payment to the respondent. Background [2] The parties were married in Iran on March 8, 1989, and separated in Canada in 2009. Matrimonial proceedings were commenced in the British Columbia Supreme Court in September 2010. After some interlocutory proceedings the respondent brought an application for summary judgment on August 10, 2012. That application was heard on August 27, 2012 and the summary trial was adjourned to September 28, 2012, to permit the appellant to retain counsel. When the summary trial commenced the appellant was self-represented. The evidence before the summary trial judge consisted of four affidavits, two sworn by each party. [3] The affidavits addressed the property owned by the parties both here and in Iran, and their respective incomes. The respondent deposed that the parties jointly own a luxury apartment and a plot of land in Tehran’s shopping district; the value of those two properties is said by the respondent to have been appraised at a combined value in excess of $1.6 million. She says that the apartment property generates rental income that she estimates, with the aid of the appraisers at $7,000 per month. [4] The affidavits describe in detail the manner in which the parties and the court had dealt with the proceeds of the sale of the former matrimonial home amounting to $255,952.70 prior to the summary trial application. [5] In support of her application for summary judgment, the respondent took the position the appellant had wrongly received a share of the proceeds that ought to have been held in trust and she was entitled to all of the remaining family assets in Canada. She argued that it would make no sense to wait until November 26, 2012, the date upon which the five-day trial was set to begin, to address the division of assets and her entitlement to child and spousal support; she argued she had little hope of actually receiving child support and believed it would be impossible for her to acquire an interest in the family property in Iran. [6] The respondent deposed to the family’s lifestyle and to her belief that tax-free Iranian-generated rental income was the principal means of support that had been available to the family. She deposed to her belief that the appellant earned “$50,000 or more” a year from the rental property in Tehran but that her children had received no support from their father since the parties’ separation and were both working to pay their expenses. [7] In response, the appellant swore affidavits on August 24, 2012, and September 21, 2012. The appellant deposed that he had insufficient time to prepare for a summary trial. He disputed the respondent’s evidence with respect to the value of family assets, the basis for the claim for support, and the suggestion that he had substantial rental income. He claimed to earn very little rental income from the Iranian property. He produced a document he identified as the lease of the Tehran apartment which indicates it is rented for 500,000 rials per month or, what is said to be CAD $40. He claimed the respondent had kept $30,000-$40,000 worth of family jewelry in a safety deposit box at a bank in West Vancouver. [8] The appellant acknowledged receiving approximately $80,000 from the sale of the family home in 2009 and claimed to have used that money to pay off debts incurred in the two years before swearing his affidavit. He claimed to have an annual income of approximately $12,000 and to have debts in excess of $200,000. [9] In reply, the respondent noted that the appellant had not produced an appraisal or evaluation of the Tehran apartment. She deposed to her view the rental agreement produced was “fake”. She denied having any jewelry in a safety deposit box and claimed the appellant had removed gold from the family home. The Summary Trial [10] When the matter came on for hearing in chambers, the respondent was represented by counsel. The appellant appeared on his own behalf. Mr. Nejat, formerly acting as counsel for the appellant, appeared by order of the court. The hearing began with a lengthy review of the manner in which the proceeds of the sale of the matrimonial home had been dealt with by the parties and their counsel, and was focused upon the conduct of Mr. Nejat. [11] Before addressing the application for summary judgment on its merits, the judge was harshly critical of the manner in which Mr. Nejat had paid out funds to his client that ought to have been dealt with only at the direction of both parties. The  judge was critical of Mr. Nejat appearing in court to speak to applications founded upon the presumption that he continued to hold funds in trust, long after he had paid them out to the appellant. He was critical of Mr. Nejat for seeking to have the respondent consent to the payment of funds to his client when Mr. Nejat knew he no longer held those funds in trust. Further, the judge was critical of the manner in which Mr. Nejat had applied for, and obtained, an order removing himself as counsel of record, having appeared to have misled the court with respect to the position taken by the respondent’s counsel on that application. [12] After considering the conduct of the appellant’s former counsel the judge considered submissions in support of the respondent’s application. The respondent asked the court to impute income of $50,000 per annum to the appellant. Respondent’s counsel advised the court that although the appellant claimed to have income of only $12,000 per annum, he had received rental income from the Iranian properties during the course of the marriage, which was used to support the family. The respondent could not quantify the income received, as it was all received in cash. [13] Counsel advised the court the child support for someone earning $50,000 per year was $458 per month for one child. The needs of the children were described by counsel; the youngest child of the marriage required dental work, the cost of which was described in the affidavit material. [14] The respondent claimed her own income was $12,000 per annum. [15] Counsel for the respondent reviewed the deposits made to the appellant’s bank account in 2009 as documented in exhibits to the affidavits: $79,000 in May and approximately $51,000 in the period from May through to August 2009. [16] The judge then questioned the appellant with respect to his occupation, his employment, his income, his banking, and his assets. The judge asked the appellant to take off his watch and show it to him and to open his wallet and tell him how much money it contained. The judge observed that the appellant was carrying a lot of money for a person with no income. The appellant claimed to have brought that money to court to pay for his interpreter. [17] Initially, upon questioning by the judge, the appellant could not describe the source of the deposits to his bank account in 2009, other than the $79,000 sum that he received from his lawyer as proceeds of the sale of the matrimonial home. When there was some uncertainty or equivocation with respect to how much had been deposited in the appellant’s account, the judge asked the appellant to “quit playing games” and reminded him that he could be held in contempt. The judge told the appellant that he found the fact the appellant could not remember where money deposited in his account in 2009 came from, was hard to believe. [18] The judge then questioned the appellant about his property in Tehran. The appellant estimated the apartment’s value to be in the range of CAD $200,000-$300,000; he claimed to receive $50 per month in rent for the apartment. When questioned with respect to his ability to pay child support, he indicated he has no work experience in Canada and was not able to earn more than he was making. The appellant said he had been employed in a number of menial positions, including newspaper delivery, but claimed to be disabled by what he referred to as “heart issues”. [19] On further questioning by the judge, the appellant indicated there were debts of about $250,000 against the apartment in Tehran, leaving little equity in the property. When the judge suggested to him that if there was only $50,000 equity in the apartment it would be fair to give title to the apartment to the respondent in return for payment of $25,000, the appellant agreed and the judge suggested he might make such an order. Judgment Appealed From [20] The judge held there was substantial property (in the apartment) held by the parties in Iran but that there was a dispute with respect to its value. He noted the appellant claimed the property was worth $300,000 with a mortgage against it of about $250,000 and that it brought in rental income of only $50 per month, while the respondent argued that the property was worth in excess of $1 million and that it generated rental income of approximately $7,000 per month. The judge discussed, at length, the history of proceedings and the inappropriate payment of the proceeds of the sale of the matrimonial home to the appellant by his counsel, Mr. Nejat. [21] The one remaining child of the marriage, born on November 10, 1993, was to be in the sole custody and guardianship of the respondent. [22] The judge was satisfied on the evidence that the respondent had rental income of approximately $7,000 per month, based on the deposits made to his account. The judge referenced what the appellant said in court but reached a conclusion on what he referred to as “the balance of the evidence.” Weighing what appears to have been regarded as the appellant’s testimony, the court accepted there would be some expenses associated with renting the Iranian property and found that a reasonable amount of net income to the appellant from the property would be $4,500 per month, which would generate $54,000 per year in income. Adding that to his income of $12,000 per year in Canada brought his income for child support purposes to $66,000 per annum. Child support was ordered at sum of $515 per month. The arrears in child support from October 1, 2010 to the date of judgment, over 25 months, were held to amount to $12,675. [23] The court was satisfied that a dental surgery expense of $4,591 was required for one of the children and that a tuition payment of $15,000 should be considered to be a special expense. Given the respondent’s income of $12,000, the section 7 expenses were apportioned 85% to the appellant and 15% to the respondent. The appellant was ordered to pay $12,750 in section 7 expenses. The total arrears in child support, including those expenses, was held to amount to $29,717. The judge reapportioned the remaining $32,023.65 held in trust by the respondent’s counsel entirely to the respondent as a one-time lump-sum spousal support payment. That order was said to be made in light of the appellant having retained the benefits of the family assets in Tehran exclusively since separation and was also based on the difference in income-earning capacity between the parties. There was otherwise no explicit judgment in relation to the value of family assets or their division. The respondent was awarded costs on scale B against the appellant throughout. Issues on Appeal [24] The appellant says the judge: a) failed to exercise his discretion to direct the respondent’s counsel to have the matter reset for a full trial, as originally scheduled, in order to ensure all issues were fully and properly canvassed; b) departed from established rules of evidence and procedure when hearing from and addressing the appellant; and c) conducted himself in such a manner as to give rise to a reasonable apprehension of bias and did not bring an impartial mind to bear upon the case. [25] The appellant says the manner in which he was questioned by the judge would suggest to a reasonable person that he was under cross-examination and that the proceeding did not follow the path of a summary trial. The appellant says these were marked departures from established rules of evidence and procedure and, in light of his language difficulties, give rise to a reasonable apprehension of bias. He says it was wrong of the judge to suggest that he might order a transfer of the property in Iran to the respondent in exchange for payment to the appellant of his estimate of the apartment’s value, when he did not have the jurisdiction to do so. Last, he says he did not have an opportunity to make closing submissions other than to answer questions. [26] In response, the respondent’s counsel says there is a strong presumption of impartiality and a reviewing court should not lightly make a finding that there is a reasonable apprehension of bias. That apprehension should be assessed in the context of the trial as a whole. The respondent concedes that trial fairness may be undermined by interventions but refers to R. v. Russell, 2011 BCCA 113, and the cases cited therein, in support of the proposition that fairness must be assessed in the context of the trial as a whole. In the case at bar, the respondent says the summary trial must be seen in light of the long and difficult road the parties took to get there, and the judge’s familiarity with that arduous process. [27] The respondent says there is no basis in the record for suggesting the  judge conducted the hearing in anything other than an even-handed and fair manner. She argues the judge was merely endeavoring to assist the appellant in presenting his case and to ensure the appellant addressed the evidence on which any decision in the matter might be based. The respondent acknowledges that the questioning of the appellant with respect to his watch and the money in his wallet was unusual but argues that this questioning did not suggest the judge was prejudging the issues before him, nor did these questions prevent the appellant from giving his evidence. [28] The respondent says that while the judge was very critical of the appellant’s former counsel and frustrated by his misconduct, that frustration was directed only at Mr. Nejat and not at the appellant who, as the respondent put it, “escaped from the hearing without a reprimand by the court.” The respondent says the appellant was given an opportunity to make closing submissions and submissions on the authenticity of certain evidence led by the respondent, and to file evidence supporting his arguments in the case. The respondent says the judge relied on the substantial deposits of cash made into the appellant’s bank account and upon sworn testimony from the respondent as evidence upon which he based his calculation of the appellant’s income from Iran. [29] In response to the submission that, in the circumstances, it was unfair to proceed with a summary trial, the respondent says the appellant had years to comply with the requirement that he produce documents setting out his financial position. Having not done so, it is not open to him to say the judge ought to have adjourned the trial to permit him to make such disclosure as had been sought from him over an extensive period of time. The respondent says the appellant’s responses to the judge satisfied him that there was no additional relevant evidence that existed and could be produced. On the whole of the evidence, the judge was able to find the facts necessary to grant summary judgment and it was reasonable in the circumstances for him to do so. Discussion [30] The question we must address on this appeal is whether a reasonable person informed as to what had taken place would be apprehensive that the appellant did not have a fair trial: M.G.G. v. C.E.T. (1994), 98 B.C.L.R. (2d) 102, 8 R.F.L. (4th) 1 (C.A.), per Finch J.A. (as he then was) at para. 14. [31] In R. v. Russell , this Court cited with approval the following passage from R. v. Stucky , 2009 ONCA 151 at para. 72: ... [I]t is important to emphasize that no trial is perfect. Accordingly, the record must be assessed in its totality and the interventions complained of in a given case must be evaluated cumulatively, not as isolated occurrences, from the perspective of a reasonable observer present throughout the trial. As stated by Doherty J.A. in R. v. Stewart (1991), 62 C.C.C. (3d) 289 (Ont. C.A.), at p. 320: It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettable but of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness. [32] It must be borne in mind that this appeal is from a summary trial, pursuant to Rule 11-3 (the “Rule”) of the Supreme Court Family Rules (the equivalent of Rule 9-7 of the Supreme Court Civil Rules , previously R. 18A of the Supreme Court Rules ). The summary trial rule has been described by this Court as perhaps one of the most important procedural rules. It reflects the objectives embodied in the Rules : securing the just, speedy, and inexpensive determination of proceedings on their merits including, so far as is practicable, the consideration of proportionality. Care must be taken, when summarily determining claims pursuant to the Rule, to recognize the preeminent objective of determining cases fairly on their merits. Because judgment on a summary trial will deprive the parties of a full trial, it is particularly important to observe the safeguards incorporated in the Rule, which are intended to ensure the proper attainment of justice. As this Court noted in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202, [1989] B.C.J. No. 1003 at 214 : The procedure prescribed by R. 18A may not furnish perfect justice in every case, but that elusive and unattainable goal cannot always be assured even after a conventional trial and I believe the safeguards furnished by the rule and the common sense of the chambers judge are sufficient for the attainment of justice in any case likely to be found suitable for this procedure. Chambers judges should be careful but not timid in using R. 18A for the purpose for which it was intended. [Emphasis added.] [33] Judgment pursuant to the Rule is only available where the dispute can be determined on evidence tendered in the forms specifically enumerated in Rule 11-3(5) : affidavits; answers to interrogatories; examination for discovery transcripts; admissions; and expert reports and cross-examination of deponents ordered pursuant to Rule 11-3(12): Gichuru v. Pallai , 2013 BCCA 60. [34] The transcript of the proceedings in this case does not, on its face, appear to be the transcript of a summary trial. At the outset of the summary trial, no explanation was given to the appellant of the nature of the application or the preliminary question that must be addressed on a summary trial: whether the issues raised by the application were suitable for disposition under the Rule. [35] The hearing began with a lengthy review of the manner in which the funds in trust had been dealt with by Mr. Nejat and his conduct through the previous hearings before the court. Mr. Nejat was examined by the summary trial judge with respect to his conduct, that which the court clearly found to be unprofessional, deserving of rebuke, and calling for the attention of the Law Society. [36] There were brief submissions in support of the application for summary judgment by the respondent’s counsel, who summarized the respondent’s affidavit evidence. [37] After an adjournment, the judge posed questions of the appellant through an interpreter. The appellant was not asked whether he was prepared to respond to the case for summary judgment; he was not told he was being called upon to make submissions; and he was not sworn or affirmed. No order was made pursuant to Rule 11-3(12) for the cross-examination of either of the deponents. It cannot have been clear to the appellant whether his answers would be regarded by the judge as evidence or submissions. The reasons clearly incorporate as evidence some of the statements made by the appellant in response to questions. His answers to questions posed by the judge appear to have been relied upon in weighing the appellant’s credibility. [38] Some of the questioning of the appellant by the judge might have conveyed the impression the judge disbelieved the appellant or was placing his authority on the side of the respondent. [39] It was suggested to us in argument that the judge was dealing with a litigant that had difficulty leading his case and that questioning was necessary to ensure he had raised any issue that ought properly to be considered on the summary trial. While questioning of a party by a trial judge is occasionally necessary, in the case at bar it appears that issues were canvassed in a manner that clearly reflected doubt and scepticism on the part of the judge. Further, some potentially relevant matters raised by the appellant were not addressed by the judge. The appellant mentioned “heart issues” and claimed his legs “require an operation.” He claimed to be disabled but was not asked to explain the disability, to describe his heart problem, or to explain what kind of operation he required. The questioning does not appear to have been intended to tease helpful evidence from the appellant or to clarify his position. [40] The appellant was not advised that he might seek leave pursuant to Rule 11-3(12) to cross-examine the respondent on her affidavit in order to subject her testimony to equivalent scrutiny. Nor was he advised that he should take advantage of the opportunity to make closing submissions to the court. He was certainly not advised that he might urge upon the court alternatives to a summary judgment. He was not advised that the court was about to give reasons for judgment at the conclusion of the series of questions posed by the trial judge. Given the manner in which the hearing proceeded, each of these matters was of considerable importance to the appellant. Cumulatively, the absence of such advice raises concerns in the context of this case. [41] The appellant may have been aware that the proceedings before the judge might result in judgment. He also might have been aware a summary trial would preclude him from having an opportunity to make his case at trial. If so, it is not because he was so advised by the judge at the hearing and it is not clear from the record he knew that to be the case. [42] The judge was clearly, and rightly, concerned with respect to the conduct of the appellant’s former counsel and the manner in which the case had proceeded before coming to him. There had clearly been disregard for court orders resulting in significant funds being put out of the reach of the respondent. In the circumstances, it was understandable that the judge might have sought to bring an early end to litigation and to give some immediate relief to the respondent who had long waited for child support and appeared to have been deprived of an opportunity to claim a larger share of the family assets. Notwithstanding those facts, it is my view that the manner in which the summary trial proceeded before the judge was problematic. [43] In my view, this is a case where the combination of different types of intervention by the judge created the appearance of an unfair trial. We are, of course, not concerned here with whether the appellant was, in fact, prejudiced by the interventions but whether a reasonably-minded person who had been present throughout this hearing would consider that the appellant had not had a fair trial. I am of the view that the judgment in this case should be set aside and the matter should be remitted to the Supreme Court. In my view, there ought to be no impediment to the matter coming on for hearing by way of summary trial and I would grant leave, pursuant to Rule 11-3(16) of the Supreme Court Family Rules , to the respondent to renew the application for summary judgment in the Supreme Court. “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Lowry” I agree: “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Madden v. Dahl, 2014 BCCA 23 Date: 20140122 Docket: CA040826 Between: Bryce William Madden Respondent (Plaintiff) And Diane Noelle Dahl Appellant (Defendant) Before: The Honourable Madam Justice Newbury The Honourable Madam Justice D. Smith The Honourable Madam Justice Garson Supplementary Reasons to Madden v. Dahl , 2013 BCCA 373. Counsel for the Appellant: F.A. Schroeder Counsel for the Respondent: S.L. Specht Place and Date of Hearing: Vancouver, British Columbia August 16, 2013 Place and Date of Judgment: Vancouver, British Columbia August 16, 2013 Written Submissions Received: November 7 and 21, December 4, 2013 Date of Supplementary Judgment: January 22, 2014 Supplementary Reasons of the Court Summary: The mother appealed from an order of a Supreme Court judge that, on appeal, set aside and varied a custody and access order made by a Provincial Court judge under the Family Relations Act, awarding the father primary residence of the parties’ two children with specified access to the mother. The mother’s appeal was dismissed. She subsequently filed for bankruptcy. The father obtained an order from the Supreme Court allocating 25 percent of the costs of the proceedings in that court to the issue of child support. He sought a similar order from this court. Held: Application dismissed. The sole issue on appeal related to the children’s living arrangements. The issue of child support was never raised or addressed. Supplementary Reasons for Judgment of the Court: [1] In Madden v. Dahl , 2013 BCCA 373, we dismissed an appeal by the appellant mother from an order of a Supreme Court judge that, on appeal, set aside and varied a custody and access order made by a Provincial Court judge pursuant to the Family Relations Act, R.S.B.C. 1996, c. 128 [ FRA ]. The sole issue on appeal before this Court related to the primary residence of the parties’ two children. The dispute arose in the context of a mobility issue. Upon separation, the father continued to reside in the matrimonial home in a community in northern British Columbia, where the children had been raised, and the mother resided at the home of her parents in a community in the Okanagan where she had moved. The Provincial Court judge awarded the parties joint custody of the children with alternating primary residence between the parties every school year. The respondent father successfully appealed that order to the Supreme Court, which awarded him primary residence of the children with specified access to the mother. On appeal to this Court, the order of the Supreme Court was upheld. [2] Section 23 of the Court of Appeal Act, R.S.B.C. 1996, c. 77, provides that “[u]nless the court or a justice otherwise orders, the party who is successful on an appeal is entitled to costs of the appeal including the costs of all applications made in the appeal.” We are advised that counsel agreed upon costs of the appeal at $6,948 for the father. Thereafter, the mother filed for bankruptcy based on the extent of her liabilities for legal fees and court costs related to the proceedings. We are further advised that there are arrears of child support which remain unpaid by the mother. [3] In light of these events, the father applied to the Supreme Court judge for an order allocating a percentage of the costs of the proceedings to the issues of child and spousal support. The anticipated effect of this allocation is that the portion of the costs allocated to support will survive bankruptcy and subsequent discharge pursuant to s. 178(1)(c) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 [ BIA ]. The Supreme Court judge acceded to this request and ordered that 25 percent of the costs of the proceedings in the Supreme Court be allocated to the issues of child and spousal support. [4] Before this Court, the father applies for a similar order pursuant to s. 9(1)(c) of the Court of Appeal Act, which provides that the court may “make or give any additional order that it considers just.” In particular, the father seeks an order that “50% (or such other amount as the Court deems appropriate) of the costs awarded to the Appellant in the appeal of this matter decided August 16, 2013 are apportioned to the issue of child support for the purposes of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3.” He submits that a higher allocation from this Court is appropriate “based on the matter progressing to a higher level of Court on [the mother’s] application.” [5] With respect, we are of the view that the order requested is not available to the father. The sole issue on appeal related to the primary residence of the children. The matter of child support was never raised or addressed in any manner before this Court. Accordingly, we find ourselves unable to accede to the father’s request and dismiss the application. “The Honourable Madam Justice Newbury” “The Honourable Madam Justice D. Smith” “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Szechuan Chongqing Seafood Restaurant (1993) Ltd. v. Wang, 2014 BCCA 25 Date: 20140123 Docket: CA040772 Between: Szechuan Chongqing Seafood Restaurant (1993) Ltd. Respondent (Plaintiff) And Yi Tong Wang Appellant (Defendant) Before: The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Willcock The Honourable Mr. Justice Goepel On appeal from:  An order of the Supreme Court of British Columbia, dated March 8, 2013 ( Szechuan Chongqing Seafood Restaurant (1993) Ltd. v. Wang , 2013 BCSC 397, Vancouver Docket S117111). Counsel for the Appellant: W.J. McMillan Counsel for the Respondent: H.H. Van Ommen, Q.C. and N.R. Hurlburt Place and Date of Hearing: Vancouver, British Columbia November 26, 2013 Place and Date of Judgment: Vancouver, British Columbia January 23, 2014 Written Reasons by: The Honourable Mr. Justice Chiasson Concurred in by: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Goepel Summary: The appellant agreed to purchase the assets of the respondent’s restaurant business subject to a number of Buyer’s Conditions, one of which was that he be satisfied that consents and approval required to effect the transaction “have been or will be obtained”.  He waived the conditions.  The appellant was to have possession of the assets on closing.  The premises in which the business was being conducted were leased.  The written consent of the landlord was required if the premises were to be occupied by an entity other than the respondent.  The landlord advised the respondent that it would consent to the appellant’s occupancy and would do so in writing if necessary.  The appellant refused to complete contending that the landlord’s written consent was a condition precedent to his occupancy of the premises.  The trial judge dismissed the appellant’s claim for the return of a deposit and ordered that he pay damages to be assessed on the basis that, by waiving the condition, the appellant assumed the risk that consent would not be obtained. Held: appeal dismissed for different reasons.  Because the contract was silent on the appellant’s right to occupy the premises, it was necessary to imply a term that he would be given occupancy of the premises on closing. Obtaining the landlord’s consent to the appellant’s occupancy was the respondent’s obligation (Hutchingame v. Johnstone).  The fact that the appellant had an opportunity to consider and be satisfied with the lease and to be satisfied that the required consents were or would be obtained did not alter that fact.  The obligation to obtain consent and the risk it might not be obtained did not shift to the appellant because he removed the Buyer’s Conditions.  Consent was obtained. Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] This appeal considers the effect of the removal by a buyer of conditions in a contract for the purchase and sale of business assets on the obligation of the vendor to provide occupancy of the business premises to the buyer. Background [2] On August 22, 2011, the parties entered into a contract whereby the appellant was to purchase a restaurant business operated by the respondent.  The purchase price was $395,000.  It was to be paid in two tranches on October 4, 2011 and March 31, 2012.  The parties used a standard form contract from the Real Estate Board of Greater Vancouver, with handwritten modifications and three addenda.  The contract was subject to a number of “Buyer’s Conditions” as follows (with handwritten modifications italicized): 4.         BUYER’S CONDITIONS: The Buyer’s offer set forth above is subject to the satisfaction or waiver in writing by the Buyer not later than September 10 , yr.  2011 (the “Due Diligence Period”) of the condition that the Buyer, acting reasonably, is satisfied that the Business and the Business Assets being purchased and assumed pursuant to this Contract conform in all material respects to the Business and the Business Assets represented to the Buyer prior to the date hereof, including, without limitation, the Buyer being satisfied with the following (whether or not previously provided to the Buyer): (a)        the financial statements for and financial condition of the Business; ( May to August, 2011) [initials] (b)        the terms of all contracts, licenses, leases and permits to be assigned to the Buyer; (c)        the liabilities to be assumed by the Buyer (if any); (d)        the ability of the Buyer to obtain an assignment of the lease of the Business premises (if any); and the lease agreement [initials] (e)        that all other consents and approvals required to effect this transaction have been or will be obtained. The foregoing condition is for the sole benefit of the Buyer. [3] An addendum to the contract provided: The Buyer and the Seller agree the payment terms as follows [ sic ]: (i)         The Purchase Price [$395,000] will be payable by two instalments: $280,000 will be payable on October 4, 2011, the rest and balance of [$115,000] will be payable on MARCH 31, 2012. (iii)       The lease will remains under the name of the Seller and will transfer to the Buyer on April 1, 2012 and the Seller will help the Buyer in his efforts for the transfer of name between the landlord and the Buyer or the Seller agrees to remain as tenant and the Buyer will responsible the rental and payable the Seller directly [ sic ]. [4] The lease of the premises provided: 13.01 Consent Required Except to an Eligible Corporation the Tenant will not, and will not permit a subtenant to, assign this Lease in whole or in part, or sublet all or part of the Premises, or mortgage or encumber this Lease or the Premises or part thereof, and will not permit the occupation or use of all or any part thereof by others other than an Eligible Corporation, without the prior written consent of the Landlord in each case, which consent will not be withheld unreasonably except that it may be withheld in any event if the permitted use of the Premises stipulated in Section 7.01 would be changed.  It will not be unreasonable for the Landlord to consider the following factors before giving or withholding its consent: Any covenants made by the Landlord with another tenant of the Shopping Centre, the financial background and status, business history, capability in the Tenant’s line of business and the quality of merchandise of the proposed assignee, sublessee or occupant. The consent by the Landlord to an assignment or subletting will not constitute a waiver of its consent to a subsequent assignment or subletting.  This prohibition against assignment or subletting includes a prohibition against an assignment or subletting by operation of law.  If this Lease is assigned or if all or part of the Premises is sublet or occupied by anybody other than the Tenant, in any case without the consent of the Landlord when required, the landlord may collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, sublease, occupancy or collection will be considered a waiver of this covenant, or the acceptance of the subtenant or occupant as Tenant .  Despite an assignment the Tenant remains fully liable under this Lease.  An assignment of this Lease, if consented to by the Landlord, will be prepared by the Landlord or its solicitors, and all legal costs of its preparation will be paid by the Tenant. [Emphasis added.] [5] The Buyer’s Conditions had to be satisfied or waived by no later than September 10, 2011.  The appellant removed these conditions on September 9, 2011 and that day paid a required $50,000 deposit.  Completion of the transaction was to take place on October 4, 2011. [6] Subsequent to removing the Buyer’s Conditions, the appellant asked the respondent to assist him in obtaining a five-year extension of the lease, which was set to expire on October 31, 2013.  The respondent approached the landlord’s agent, which wrote on September 15, 2011 as follows: RE:  Assignment of Lease for premises at Unit 205 – 1668 W. Broadway, Vancouver, BC. With reference to the intention to assign the lease agreement from current tenant, Szechuan Chongqing Restaurant Ltd. & Szechuan Chongqing Seafood Restaurant (1993) Ltd. to the potential buyer, Yi Tong Wang, please note the following terms: 1.         The Lease will stand as it is. 2.         The current tenant Szechuan Chongqing Restaurant Ltd. & Szechuan Chongqing Seafood Restaurant (1993) Ltd., will be held liable for the balance of the current lease term. 3.         1 option for the term of 5 years will be granted to the prospective tenant. 4.         Prospective tenant, pays a security deposit of $46,000; 5.         Legal and administration fee of $840.00 ($750.00 + $90.00 HST) relating to preparation of the assignment of lease document would be paid by the tenant(s); 6.         We will hold back $1,000.00 from Szechuan Chongqing Restaurant Ltd. for operating expenses to be reconciled at year end. 7.         The outstanding rent arrears $40,591.94 ($63,591.94 – deposit $24,000 + $1,000 Holdback) to be paid to Unicorn Properties Ltd.; 8.         The effective date of the assignment is October 1, 2011; 9.         If the prospective tenant is a company, the principal of the company shall be the covenantor to the Lease. Should the above mentioned terms and conditions are agreed, please sign below and return a signed copy to us.  Upon receipt of your agreement we will prepare the legal document for your signature. [7] Neither the appellant nor the respondent signed and returned the letter.  The respondent advised the appellant that his concurrence was required before it could sign.  There is no evidence why the appellant did not sign, although on appeal he states that the terms were onerous and unacceptable to him. [8] Ms. Woo, a representative of the landlord’s property manager, stated in her affidavit that sometime after the September 15, 2011 letter she attended a meeting with the respondent’s representatives, the appellant and the appellant’s advisor, the purpose of which was “to discuss the assignment and extension of the Lease and the purchase by the [appellant] of the [respondent’s] business and assets”.  The appellant and his advisor asked many questions.  According to both Ms. Woo and Ms. Wong, the respondent’s director and secretary, the appellant stated that he would get back in touch but never did. [9] In her affidavit, Ms. Wong stated that Ms. Woo advised that she “was not concerned about who operated the business provided [the respondent] remained as a tenant and continued to be responsible for all obligations under the Lease.”  Ms. Woo confirmed this and deposed that “[i]f asked we certainly would have documented our consent to the [appellant’s] occupation of the premises in writing.” [10] On September 27, 2011, counsel for the respondent asked counsel for the appellant for a response to the landlord’s terms for an assignment and extension of the lease as set out in the September 15, 2011 letter.  On the same day, counsel for the appellant replied, stating that he had pressed his client for instructions, but had not heard from him.  On September 28, 2011, new counsel for the appellant advised the respondent that his client took the position there was not a binding contract between the parties.  Among the grounds advanced for this position was the contention that the landlord had not consented to the appellant operating the business on the premises. [11] On September 30, 2011, counsel for the respondent replied, taking issue with the assertions in the letter from counsel for the appellant.  Among other things, she stated: I have confirmed with [the landlord’s agent] that if so requested, the Landlord will issue a letter … confirming it has no objection to [the appellant’s] operation of the business at the Leased Premises.  This is a non-issue in view of [the] Landlord’s cooperation. She added: As you correctly point out, [the appellant’s] latest request is different from the terms of the Contract.  If [the appellant] now no longer wants the outright assignment and 5 year renewal option, then everything will simply close according to the original terms of the Contract. [12] The appellant did not respond to the September 30, 2011 letter.  The transaction did not close on October 4, 2011 as stipulated in the contract.  On October 7, 2011, new counsel for the respondent wrote to counsel for the appellant noting the letter of September 28, 2011 “in which you advised that your client was repudiating the Contract and refused to close the transaction on the closing date.”  He stated that the respondent accepted the appellant’s repudiation and that it “will be seeking damages, not limited to the deposit, for your client’s breach of contract.” [13] The respondent sued the appellant for damages.  The appellant counterclaimed for the return of his deposit.  The chambers judge dismissed the appellant’s claim, declared that he breached the contract and ordered that he pay damages to the respondent, to be assessed. [14] I would dismiss this appeal for the reasons that follow which differ from the reasons of the trial judge. Chambers judgment [15] After reviewing the basic facts, the judge stated at para. 28 that “[p]rior to Completion, [the respondent] knew that [the landlord] would consent to [the appellant’s] occupancy of the business’s premises until the time of an assignment of the lease.” [16] The judge’s analysis is not lengthy.  I reproduce it in full. [46]      The issue is whether or not there is any need for the Court to imply a condition that Szechuan was obligated to obtain Unicorn’s [the landlord’s] consent for Mr. Wang’s occupancy of the Business’s premises as of October 4, 2011. In my view, the answer is found in the Buyer’s Conditions. [47]      The Buyer’s Conditions provided Mr. Wang with a due diligence period, which allowed him to satisfy himself with respect to the Business and Business Assets he wished to purchase. In particular, Mr. Wang had time to satisfy himself with respect to the “lease agreement” (Buyer’s Condition 4(d)). He also had time to satisfy himself “that all other consents and approvals required to effect this transaction have been or will be obtained” (Buyer’s Condition 4(e)). [48]      In my view, the language of Buyer’s Condition 4(e) is clear: it refers to “ all other consents and approvals” [emphasis of the chambers judge]. This language captures Unicorn’s consent to Mr. Wang’s occupancy of the Business’s premises as of October 4, 2011. It also captures Unicorn’s consent to the assignment of the lease upon the payment of the balance on March 31, 2012 (or occupancy beyond this date). [49]      If Mr. Wang, acting reasonably, could not satisfy himself as to the ability to obtain the necessary consents and approvals, he would be under no obligation to complete and his deposit would be returned. [50]      Although not relevant to the case at bar, as the crossed-out language of Buyer’s Condition 4(d) shows, it may not be unusual for a buyer to first satisfy himself or herself that the assignment of the lease of the vendor’s business premises will be obtained before removing or waiving “Buyer’s Conditions”. [51]      I also note that Szechuan was generally required to assist Mr. Wang. “Terms and Conditions: 17) Further Assurances” provides: The parties will execute and deliver all such further documents and instruments and do all such further acts and things as may be required to carry out the full intent and meaning of this Contract and to effect the transactions contemplated thereby [emphasis of the chambers judge]. [52]      There was no reason that Mr. Wang could not have spoken with Unicorn or its property manager in order to obtain the desired consents prior to waiving the Buyer’s Conditions. Privity of contract does not come into play; Szechuan was required to do “all such further acts and things”. On our particular facts, Mr. Wang did meet with Unicorn’s property manager, albeit after he removed or waived the Buyer’s Conditions, to discuss the assignment of Unicorn’s lease and its extension beyond its scheduled term ending October 31, 2013. [53]      If Mr. Wang had obtained Unicorn’s consent, Mr. Wang’s solicitors could have then prepared and, on the Completion Date, provided Szechuan with the necessary documents. Szechuan would have been required to execute these documents (see “Terms and Conditions: 1) Assignment and Assumption of Benefits and Liability”). [54]      In short, Mr. Wang had a due diligence period in which he could satisfy himself that all consents required to effect the transaction had been or would be obtained. By removing the Buyer’s Conditions on September 9, 2011, Mr. Wang assumed the risk associated with obtaining the necessary consents, including occupancy as of the Completion Date and any future assignment of the Unicorn lease to him. He cannot now say that Szechuan has failed to obtain the necessary consents. [55]      It is trite law that a court will look to the language used by the parties to a contract and will be reluctant to imply conditions. Here the language is clear and there is no need for the Court to imply terms or otherwise fill a gap. Positions of the parties [17] The appellant asserts that the judge erred in failing to find that the landlord’s written consent to his occupancy of the premises was a condition precedent to performance of the contract; and he also erred in finding that the appellant had waived the requirement for written consent and in finding that the respondent was ready, willing and able to perform the contract. [18] The respondent states that it was not necessary to imply a condition precedent because the contract provided for any required conditions.  It supports the judge’s conclusion that the appellant waived “the condition that captured the Landlord’s written consent” and that it was ready, willing and able to perform the contract. [19] The respondent also contends that even if the judge was incorrect on the condition issue, the appellant is not entitled to rely on an unfulfilled condition because he “caused the condition to be impossible to fulfill”. Discussion [20] I agree with the chambers judge that an issue is whether there is need for the court to imply a condition that the respondent was obliged to obtain the landlord’s consent for the appellant to occupy the premises, but I do not agree with his conclusion that it is not necessary to imply such a condition.  I also do not think the answer is found in the Buyer’s Conditions.  It is found in the terms of the contract. [21] There does not appear to be an express provision that the appellant was to occupy the premises, but looking at the contract as a whole, it is apparent that this was the agreement of the parties.  The contract, which is entitled “Contract of Purchase and Sale for Business Assets”, was for the purchase and sale of “the property, assets and undertaking of the business” including business assets set out in a schedule.  The respondent was required to deliver possession of the business assets on the completion date, October 4, 2011.  The scheduled business assets did not include the lease or a right to conduct the business on the premises.  Pursuant to an addendum, the lease remained with the respondent until April 1, 2012 when the second tranche of the purchase price was due. [22] There are a number of provisions in the contract that show the parties intended the appellant to occupy the premises on October 4, 2011.  The Buyer’s Conditions state that the contract is for the sale of the business as well as the business assets, as does the respondent’s acceptance of the appellant’s offer.  Although the proviso addressing goodwill was struck from the contract form, the contract provides for the use of the Chinese and English names of the business.  In several addenda, the legal description is referred to as “sale of business only”.  In an addendum, the respondent agreed to continue working with and consulting for the business. [23] The parties did not suggest that they did not intend the appellant to occupy the premises on October 4, 2011.  I am satisfied the appellant was buying an operating business and that it was an implied term that he would occupy the premises in which the business had been operating. [24] Because the appellant had time to undertake due diligence before removing the conditions, the judge appears to suggest that the appellant should have sought the landlord’s consent for his occupancy.  The judge concluded that once the appellant removed the Buyer’s Conditions, he “assumed the risk associated with obtaining the necessary consents”.  I do not agree. [25] Obtaining the landlord’s consent to the appellant’s occupancy was the respondent’s obligation ( Hutchingame v. Johnstone , 2007 BCCA 74 at paras. 11-12; although the case concerned consent to the assignment of a lease, in my view, it is equally applicable to consent for occupancy).  The fact that the appellant had an opportunity to consider and be satisfied with the lease and to be satisfied that the required consents were or would be obtained did not alter that fact.  The obligation to obtain consent and the risk it might not be obtained did not shift to the appellant because he removed the Buyer’s Conditions. [26] The conditions gave the appellant the right to be satisfied “with … the terms of all … leases … to be assigned to the [appellant]”, with “the lease agreement” and “that all other consents and approvals required to effect this transaction have been or will be obtained.”  Explicitly not a condition was that he be satisfied with his ability “to obtain an assignment of the lease of the Business premises”.  That provision in the standard form contract was struck out on the face of the contract. [27] The appellant removed these conditions on September 9, 2011.  He no longer had the right not to complete the transaction if he was not satisfied with the terms of any lease to be assigned to him, with the lease agreement itself or that other consents had been or would be obtained.  That is, the contract then was final and binding on its terms. [28] The appellant apparently was satisfied that all required consents were or would be obtained.  To put it another way, whether he was satisfied or not, he gave up his right not to complete the transaction for that reason.  I do not think the appellant thereby “assumed the risk associated with obtaining the necessary consents, including occupancy”.  The appellant being satisfied that the consents were or would be obtained did not obviate the respondent’s obligation to obtain them if that was required by the contract.  If it were to fail to do so, the appellant would have whatever remedies that would be applicable. [29] Occupancy was a condition of the contract because the appellant could not conduct business there without it.  As between the respondent and the appellant, the respondent was obliged to give occupancy to the appellant as of October 4, 2011. [30] It may be that the appellant was not entitled to insist on the written consent of the landlord to his occupancy, but arguably that requirement was necessary for him legally to occupy the premises.  As between the respondent and the landlord, technically written consent to the occupation of the appellant was required.  That must be put into context. [31] The consent could not be withheld unreasonably.  The obligation appears to be somewhat ambiguous because the consent provision envisions occupancy without consent (see para. 4 herein).  In that event, the occupier is obliged to pay rent and the tenant remains liable on the lease.  This is mirrored in the third provision in the contract addendum.  It also is consistent with the position taken by the landlord. [32] It is clear on the evidence that the respondent took steps necessary to ensure that the appellant could occupy the premises.  The respondent obtained the concurrence of the landlord to the appellant’s occupancy.  It so informed the appellant.  If written consent were required, it would have been available.  There is no basis on which it can be said that the respondent was not ready, willing and able to perform the contract on the completion date.  It so advised the appellant on September 30, 2011.  The respondent was able to give the appellant occupancy of the premises as of October 4, 2011. [33] In the September 30, 2011 letter, the appellant was asked whether he wanted to pursue an assignment of the lease with an extension to the term or whether he wanted to complete the transaction as set out in the contract.  The appellant did not respond. [34] The appellant took no steps to perform the contract.  The September 28, 2011 letter by the appellant’s counsel conflates consideration of a lease assignment, which was not a condition of the contract, with occupancy.  In the September 15, 2011 letter from the landlord’s agent, occupancy was not addressed.  The letter concerns an assignment of the lease.  It was written after the respondent, consistent with its obligation to assist the appellant, approached the landlord on his behalf concerning an assignment of the lease. [35] In his October 7, 2011 letter, counsel for the respondent stated that his clients accepted the appellant’s repudiation of the contract.  Insofar as counsel was referring to the appellant’s counsel’s letter of September 28, 2011, he was not correct.  The respondent rejected that repudiation and affirmed the contract on September 30, 2011, but the appellant’s failure to take any steps to complete the transaction on October 4, 2011 was a further repudiation, which the respondent was entitled to and did accept ( Guarantee Co. of North America v. Gordon Capital Corp. , [1999] 3 S.C.R. 423; Hadcock v. Georgia Pacific Securities Corp. , 2006 BCCA 536). Conclusion [36] In my view, the appellant was not entitled to refuse to complete the transaction.  Although I disagree with his reasons for doing so, the judge correctly dismissed the appellant’s claim for the return of his deposit and ordered that the respondent is entitled to damages to be assessed. [37] I would dismiss this appeal. “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Tsai v. Tsai, 2014 BCCA 22 Date: 20140123 Docket: CA040533 Between: David Tsai Appellant (Plaintiff) And Gamaliel Tsai, also known as John Tsai, Joseph Tsai, and Christian Tsai by his Litigation Guardian, Marie Rachelle Losier Respondents (Defendants) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Harris On appeal from:  An order of the Supreme Court of British Columbia, dated December 11, 2012 ( Tsai v. Tsai , 2012 BCSC 1863, Victoria Docket S098072). Counsel for the Appellant: R.D. Holmes, Q.C. J.J. Weisman Counsel for the Respondent: G.N. Harney Place and Date of Hearing: Vancouver, British Columbia November 18, 2013 Place and Date of Judgment: Vancouver, British Columbia January 23, 2014 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Madam Justice Saunders The Honourable Madam Justice Kirkpatrick Summary: Appeal from a decision that found there was no binding agreement between the appellant and his parents to transfer a property to him. HELD: Appeal dismissed. The appellant’s arguments on appeal amounted to a significant recasting of the case from how it was argued at trial. The appellant raised new issues on appeal that required findings of fact that the trial judge was not asked to make. The trial judge was entitled to decide the case as it was pleaded and argued before him. Reasons for Judgment of the Honourable Mr. Justice Harris: [1] This appeal concerns the ownership of a commercial property, referred to as “Newport”.  Newport was owned within the Tsai family and at various times registered ownership was transferred among family members.  At the time of the trial, title was registered in the names of Joseph Tsai and his son Christian.  The plaintiff is Joseph’s brother, David Tsai, who claimed that title to Newport properly belonged to him.  He had at one time held registered title and alleged that the transfer of title to Joseph and Christian was improper.  He contended that they could not rely on registered title as proof of ownership. [2] Newport had originally been owned by David and Joseph’s parents, Gamaliel and Kwei Tsai.  Registered title was at one time transferred to Joseph and then back to the parents, before title was registered in David’s name.  Subsequently, the father, using a power of attorney, transferred registered ownership from David to Joseph and Christian. [3] The trial judge identified the issue before him as whether there was an agreement between David and his parents that he would receive ownership of Newport in consideration for agreeing to marry a Chinese wife of his parents’ choosing.  David argued Newport was transferred to him because he fulfilled his side of the bargain.  As the trial judge saw it, the issue was whether David had proven the agreement and, if so, whether the parents (or father, Gamaliel) had breached the agreement either because they did not have beneficial ownership to transfer to David in the first place (having previously transferred it to Joseph, as Joseph alleged) or because they purported subsequently to transfer legal and beneficial ownership to Joseph, which they had no right to convey having already transferred it to David. [4] The trial judge dismissed David’s action.  Although he did not accept that at the time David became registered owner Joseph owned the beneficial interest in Newport, he rejected David’s case that legal and beneficial ownership of Newport was transferred to fulfil his parents’ obligations under the alleged agreement.  He found that David had not proven the agreement on which he rested his case.  As a result, he found that David had never owned the beneficial interest in Newport and that the transfer of the registered interest in Newport to Joseph and Christian did not violate David’s rights.  In the result, he held that the current state of registered title reflected legal and beneficial ownership of Newport. [5] David contends that the trial judge made a series of errors.  Before delving into the substance of this appeal, I pause to say this.  The points David takes on appeal involve a substantial recasting of the case he advanced at trial.  He raises issues on appeal that were not argued before the trial judge.  Central to his argument is the contention that the trial judge erred by focusing on whether there was a contract to transfer Newport to him.  David now argues, as but one example, that the trial judge took too restrictive an approach to the nature of the consideration capable of rebutting the presumption of resulting trust.  Quite apart from any contract, such “consideration” passed, and David took beneficial as well as legal ownership. [6] In respect of this and other arguments I would dismiss the appeal.  In my view, the trial judge was entitled to decide the case as it was pleaded and argued before him.  His conclusions rest on findings of fact that were open to him on the evidence and relevant to the issues as they were presented to him.  Before us on appeal, David attempted to introduce new arguments not put to the trial judge and in respect of which a proper factual foundation does not exist.  I would not accede to those grounds of appeal. Background [7] I do not intend to canvass the evidence or facts in any detail beyond what is required to set the issues on appeal in context.  The evidence and facts found by the trial judge are extensively reviewed in his reasons.  It may, however, be useful to set out a brief chronology and summary of some of the background to the trial and the appeal. [8] The Tsai family immigrated to Canada in 1965.  The family at that time consisted of the father, Gamaliel, mother, Kwei, and five children.  Four of the children immigrated with the family and three more children were born in Canada.  Among the children were sons, David, Joseph and Daniel, each of whom played a significant part in the events underlying this action. [9] The family worked hard and, alongside other endeavours, the parents accumulated a substantial portfolio of real estate in the Victoria area.  It was not uncommon for the parents to register title in the names of their children and to change the registered owner from time to time.  The general purpose for doing so appears to have been to protect the properties from creditors but not to actually convey ownership to the child registered on title. [10] Among the properties purchased by the parents was Newport, which was a commercial property housing a photography studio.  It was bought in 1974 and registered in the parents’ names. [11] In 1987, Joseph became the registered owner of Newport, ostensibly in consideration for a payment of approximately $105,000.  The trial judge accepted evidence that the money used to purchase the property was likely posted by Gamaliel, rather than Joseph. [12] On November 23, 1988, Joseph transferred registered title back to his mother and father. [13] On November 3, 1989, Gamaliel transferred his one half registered interest.  One quarter was transferred to his wife (who then held three quarters of the title) and one quarter was transferred to David. [14] On March 1, 1991, Kwei transferred her registered interest to David, who at this point held the entire interest in Newport. [15] In March 1991, David, as landlord, and Gamaliel, as tenant, entered a lease agreement for Newport.  The lease was for 15 years with a 5-year right of renewal.  It enabled Gamaliel to collect the rents and pay the expenses, essentially controlling the property, for only $1 per year. [16] In August 1991, David granted Gamaliel a power of attorney in relation to a number of properties, including Newport, which was registered in the Land Title Office in March 1994. [17] David married on March 19, 1994. [18] In November 1994, David signed a declaration of trust declaring that he held Newport in trust for his parents.  Shortly afterwards, David met with a chartered accountant, Fred Wong, to discuss tax issues.  Mr. Wong’s notes from this meeting indicate that the properties in David’s name were held in trust for his parents.  The trial judge found these notes to contain an admission that, at that time, David knew he held Newport in trust for his parents: para. 151. [19] On November 21, 2002, Gamaliel transferred registered ownership from David to Joseph and Christian, using the power of attorney. [20] The chronology set out above is the bare bones of some critical events underlying the action.  Evidence relating to many other events was canvassed by the trial judge.  For current purposes it is useful to point out that there is no dispute that the parents wanted David to sponsor and marry a Chinese woman of their choosing.  It is not in dispute that in or about 1988 they discussed with David the idea of his marrying a woman from China.  Jia Qi Chen, who was studying medicine in China, was identified as a suitable bride.  It took several years to arrange Jia Qi Chen’s immigration, from roughly 1988 to the end of 1993. The trial judgment [21] The trial judge defined the issue before him in the following terms: [67]      The central factual and legal issue in this case, because it is the foundation of David’s claim, is whether, as he asserts, there was an oral contract with his parents under which he would receive Newport. [22] The trial judge’s appreciation of the essence of David’s case was based in part on David’s argument which opened with these words: “David Tsai made a bargain with his parents … that if he married a Chinese woman he would get the Newport Property.”  David did not resile from that assertion, although he did argue that the issue before the Court was not the enforceability of the arrangement, but the fact that the bargain was acted on.  In other words, according to his written submissions, the property was transferred to David “pursuant to the bargain” and David “received the legal and beneficial interest in the Newport Property in 1991 because he was committed to marry Jia Qi Chen”. [23] The judge’s identification of the issue he had to decide was defined by David’s pleadings.  The trial judge set out the pleadings in his reasons as follows: [68]      In the Third Amended Statement of Claim, which amendment was proposed during argument, David advances the claim as follows: 11. In or about 1988, Mum and Dad asked the plaintiff to marry a Chinese woman of their choosing. ... 13. In or about 1990, the plaintiff told Dad and Mum he was prepared to sponsor Jia Qi Chen to Canada for purposes of marriage.  The plaintiff said he would marry Ms. Chen on the condition that he receive the Newport property. ... 22. On or about March 19, 1994 the plaintiff married Jia Qi Chen further to the agreement he had with his dad and mum that he would marry Ms. Chen on the condition that he receive the Newport property. ... 34. The agreement that the Plaintiff would marry Ms. Chen on the condition he receive the Newport Property advanced the time when the plaintiff would receive the property to the time when he agreed to the marriage. [24] On several occasions throughout the judgment the trial judge reiterated that the essential or central factual and legal issue was whether the parents transferred Newport because of the alleged agreement.  The agreement was the foundation of David’s claim and the basis for concluding, if proven, that the parents intended to transfer the beneficial interest to him.  In my view, the trial judge was entirely correct in reasoning that David advanced no other basis for his claim to the beneficial interest in Newport.  David did not allege he received Newport as a gift.  Nor did he allege the grounds advanced on appeal, that something less than a contractual agreement can be sufficient to rebut the presumption of resulting trust.  In brief, the judge decided the case he was asked to decide. [25] The trial judge proceeded to analyze and weigh the evidence to decide whether David had proven the bargain he alleged.  He concluded that David had failed to prove the existence of the agreement and, accordingly, failed to prove that he owned the beneficial interest in Newport.  On route to that conclusion, the trial judge accepted that the parents did have the beneficial interest in Newport to transfer to David, if in fact they intended to do so.  He reached that conclusion because he rejected Joseph’s claim that he owned the beneficial interest in Newport, even though he had transferred registered title back to his parents in 1988. [26] The trial judge’s reasons for judgment are lengthy.  They involve a detailed examination of the evidence that was probative of the issue the trial judge was asked to decide.  Weighing the evidence to make findings of fact involved assessing the credibility of the witnesses including, most importantly, David, Joseph, Daniel and Gamaliel, each of whom he found seriously wanting on critical points.  The trial judge tested their evidence against a limited documentary record, as well as the subsequent conduct or statements that were relevant to the intentions of the parties at the time of the material transfers. [27] I refer the reader to the careful analysis undertaken by the trial judge, but I would add several comments pertinent to this appeal.  It is clear to me that in his analysis, the trial judge kept in sharp focus the central issue: whether the evidence disclosed an agreement that was acted upon and proved that the parents intended to transfer beneficial ownership of Newport to David.  In particular, the trial judge made proper use of after the fact conduct, statements, and documents to help assess the parties’ intentions at the time of the transfer .  David raised the trial judge’s use of after the fact conduct on appeal; however, I find the judge properly applied the principles governing the use of such evidence as stated in Pecore v. Pecore , 2007 SCC 17 at para. 59. [28] I set out below some extracts from the reasons for judgment that capture the heart of the trial judge’s conclusions: [225]    Upon a consideration of all of the evidence, I have concluded that David has failed to prove that he made an agreement with his parents that they would transfer Newport to him beneficially if he sponsored and married Jia Qi Chen. [226]    I did not find David’s evidence in light of all of the evidence at trial persuasive that such an agreement existed.  As I mentioned in these reasons, I did not find David’s evidence compelling and I think that there were strong elements of wishful thinking underlying many aspects of it. [227]    The agreement is of great significance in this case.  It is the foundation of the plaintiff’s case… However, in the absence of an agreement, his parents were free to change their minds before they disposed of Newport, and that is what they have done. [228]    … I find the existence of such an agreement to be inconsistent with the surrounding circumstances as a whole, particularly the subsequent declaration and statements by David that he held the property in trust for his parents.  If David had received Newport beneficially before he signed that declaration, as he asserts is the case, he would have not signed that declaration of trust or would at least have specifically objected to it.  The fact that the parents had their children hold properties for them in trust was not an unusual occurrence. [229]    If David and his parents had made the agreement that he alleges, I expect that that there would be some contemporaneous reference to it in some document but none was shown. [230]    Given the transfer of title, the sponsorship and the parents’ desire that their sons marry Chinese women, there is obviously circumstantial evidence supporting the oral agreement.  The parents’ proclivity to transfer their properties and offer them to their children as inducements for certain things provides some background that might suggest that the existence of such an agreement was not unreasonable.  I have considered that without Newport going to David, the parents may not have provided for David the way that they have for other children; but does that support the alleged agreement? [231]    Other extrinsic evidence points against the agreement David alleges.  I found David’s explanation that his parents transferred a ¼ interest and later a ¾ interest to avoid property transfer tax to be an odd and not very compelling explanation. [232]    If there was an agreement, I think that it is reasonable to consider that it would likely be advanced at the forefront of the litigation: why was it so slow being pleaded?  It should have been obvious that the agreement, if it existed, would be relied on as the basis upon which David received beneficial title to Newport, but it was not pleaded until the trial of this action, and not actually formally advanced until the third amended pleading which was proposed during argument. [234]    David and his wife testified about the existence of an agreement but described it in different ways; none of the other children (other than Daniel) testified that they were aware of the Newport for sponsoring and marrying agreement David alleges… I reject Daniel’s evidence that he was told of the agreement by his mother (and his father) - it is inconsistent with his apparent belief at the time that David was not the beneficial owner of Newport but a trustee. [236]    Of much more significance in this case than the late pleading of the alleged agreement is the conduct of David that was inconsistent with a belief in the existence of the agreement he asserts…  The following I find were inconsistent with David believing he entered into the agreement that he alleges that he became the beneficial owner on the condition of sponsoring and marrying Jia Qi: · in November 1994, after his marriage, David signed a declaration that he held Newport in trust for his parents; · during the meeting in 1994 shortly thereafter with Fred Wong, the chartered accountant, David acknowledged that he held certain properties (including Newport) in trust for his parents and that the decision as to what to do with the properties awaited the parents’ instructions; · During the negotiations with Zebra in 2001, and in emails drafted with the assistance of Daniel (a lawyer), David referred to himself as a trustee and his parents as beneficiaries of the Newport property; · after David learned of the transfer of Newport to Joseph and Christian, David, I find, does not appear to have mentioned to his parents or to his siblings the specific oral agreement that he relies on; · David never claimed the income from Newport as his. [237]    I recognize that the parents have transferred other properties beneficially to their children and in the past may have indicated a general intention that David would receive Newport, but the evidence does not show that they ever acted on that possible intention, and most importantly, it does not show that they made an agreement that he would receive Newport if he sponsored and married a particular young female doctor from China. [239]    The evidence of David about getting the Newport Property and his control over the various properties by David is, in part, based on his expectations, and more on his wishful thinking about what he expected his parents to do in terms of succession planning…There is, in my assessment, a strong element of wishful thinking in David’s recollection of the events surrounding Newport. [240]    I have to take into account the father’s evidence that he did not intend to transfer ownership to David by his transfer in 1989 and by his wife’s transfer in 1991.  Frankly, I do not place great weight on what the father now says that his intention was at that time, as he has a long-standing practice of transferring titles to create illusions to protect himself from creditors. [242]    Of greater weight to the question of true ownership is the fact that even after the transfer to David, the parents purported to be the beneficial owners of Newport in fact and declared the income and paid the expenses, rather than David. [249]    … The father may have wanted to show David as a man of means for the purposes of the application to sponsor his wife or may have wanted to keep the parents’ properties away from creditors.  Perhaps given Joseph’s own difficulties, the parents put Newport, like others, in David’s name for “creditor-proofing”.  Perhaps they did it because they expected that they would ultimately transfer beneficial title to David. [252]    I think that David’s case is rooted in disappointment from an expectation that he would get Newport.  David’s testimony weaves through facts and documents to attempt to present a coherent case.  Although his marriage to Jia Qi after the transfer of Newport provides some surface attraction to his contention, the plaintiff’s case falls down when considered in light of the whole of the evidence.  I find it difficult to accept that he did not appreciate the power of attorney gave his father power over Newport, that he did not appreciate that the lease was really only a creditor-avoidance device, or that the declaration of trust actually meant that he held Newport, among other properties, in trust for his parents.  His comments to the accountant Henry Wong indicated he understood that he held the properties, including Newport, in trust. [254]    David’s case is not supported by a robust reading of the documents.  He limits the declaration of trust, he ignores the power of attorney powers, and he never states clearly in contemporary documents that Newport belongs to him. [255]    Accordingly, I find that insofar as David is concerned, there was no breach by his father of the duties under the power of attorney when Gamaliel, through the power of attorney, conveyed title to Joseph and Christian in 2002.   I agree with Ms. Fisher, counsel for Gamaliel, that in order to establish that Gamaliel breached a fiduciary duty by using the power of attorney, the plaintiff must first establish he had a beneficial interest in Newport.  Because David has not proven the agreement that he alleges, and he did not have beneficial ownership in Newport, the claim against Gamaliel for breach of fiduciary duty and breach of contract must fail. [256]    Without an enforceable agreement, there is no consideration for the transfer and the transfer to David was gratuitous.  That would [give] rise to a presumption of a resulting trust, a trust I find that he in fact acknowledged at the time.  In the absence of a proven agreement, there is no allegation of gift and the presumption of resulting trust in favour of his parents would not have been rebutted. [258]    I conclude that in 2002 whether prompted by Joseph (which appears likely) or otherwise, the parents, who then had beneficial title to Newport, conveyed the title to Newport beneficially to Joseph and his son Christian. [29] It is obvious that the trial judge’s findings of fact are predominantly the result of his assessment of the credibility of the various witnesses when tested against the documents and probabilities of the circumstances.  As such, this Court owes them a high level of deference.  The findings of fact were not seriously challenged on appeal, although David does argue that the trial judge misread documents such as the power of attorney and the declaration of trust and should not have relied on conduct after the transfers in 1989 and 1991 to the extent he did.  On my review of the evidence and the trial judge’s reasons, these assertions have no merit. On Appeal [30] David contends that the trial judge made a series of related errors in dismissing his action.  He submits, first, that the trial judge erred in requiring David to prove a legally enforceable contract with his parents in order to rebut the presumption of resulting trust.  David argues the trial judge set the bar too high and the presumption can be rebutted by evidence of “consideration” for the transfer falling well short of an enforceable agreement. [31] Secondly, the trial judge erred in failing to appreciate that whether David received Newport as a gift was a live issue on the pleadings, properly interpreted. [32] Thirdly, David contends the defendants were not entitled to defeat his claim to Newport by arguing that the transfer of registered title occurred to mislead immigration authorities about his financial means as an immigration sponsor.  David argues that the trial judge should not have considered this rationale for the transfer because the defendants did not have clean hands and cannot rely on their improper conduct as a basis for claiming a continuing interest in the property. [33] Finally, David argues that the trial judge failed to give proper effect to s. 23(2) of the Land Title Act , R.S.B.C. 1996, c. 250 [ LTA ], which provides in substance that registered title is conclusive evidence that the registered title holder is indefeasibly entitled to both legal and beneficial ownership of the property, subject only to the exceptions provided in the section such as proof of fraud.  David argues that, in the circumstances of this case, the effect of s. 23(2) is to displace the presumption of resulting trust.  Accordingly, the trial judge erred in relying on the presumption in concluding that David did not receive beneficial ownership of Newport when he received registered title.  Rather, the trial judge should have given effect to the statute and treated David’s registered interest as conclusive evidence of ownership and found the subsequent transfer to be of no legal effect. Did the trial judge err by requiring proof of an enforceable agreement to rebut the presumption of resulting trust? [34] I have already observed that the issues raised on appeal recast the case and the issues from how they were presented to the trial judge.  As noted above, David’s case at trial was that he received Newport from his parents because he had an agreement with them that he would receive it if he agreed to marry a Chinese woman of their choosing, which he did.  That was the case he pleaded in his Third Amended Statement of Claim.  The trial judge was correct to describe the alleged agreement as “the foundation of the plaintiff’s case” and to characterize his “essential claim” as one of “contractual entitlement”: paras. 27, 20. [35] It follows that the trial judge’s statements of legal principle must be read in light of the case as it had been framed by David and the issues he raised in support of his claim.  The trial judge, for example, concluded that unless David proved the agreement the transfer would be gratuitous because it occurred without consideration.  Similarly at para. 60 he observed: [60]      … Apart from the promise to sponsor and marry, the consideration under the alleged agreement, there is no consideration for the transfers in 1989 and 1991 and, in the absence of an agreement for good consideration, there would be a presumption of a resulting trust in favour of the parents at that time: Pecore v Pecore 2007 SCC 17 (CanLII), [2007] 1 SCR 795. [36] I do not take these statements to be asserting a general principle of law that transfers are gratuitous or engage the presumption of resulting trust if they occur outside the context of an enforceable contract supported by consideration.  The judge is not suggesting that other lesser or different forms of “consideration” are insufficient to support a non-gratuitous transfer in other circumstances.  He is simply framing an analysis that is applicable to the case he was asked to decide.  David said the transfer occurred because of an agreement that he performed, the consideration for which was marrying a Chinese wife of his parent’s choosing.  He did not suggest that there was any other consideration supporting the transfer or that there was an alternative basis to consider the transfer non-gratuitous.  In the context of the case, if he failed to prove the agreement, the foundation of his case, the trial judge’s conclusion that the transfer was gratuitous or engages the presumption of resulting trust is simply an application of principle to the specific circumstances in issue. [37] Moreover, although the trial judge does say that “[w]ithout an enforceable contract, there is no consideration for the transfer and the transfer to David was gratuitous” (at para. 256), I do not think, reading the reasons as a whole, that the judge in fact placed any weight on the legal enforceability of the agreement in analyzing the case.  It is clear throughout his reasons that he is examining whether there was in substance an agreement, a bargain, or an arrangement that David would receive Newport if he married a Chinese woman.  The legal enforceability of any such bargain was not the issue for the trial judge. [38] Setting to one side the potential implications of s. 23(2) of the LTA for the moment, the trial judge’s statement in para. 256 that “[i]n the absence of a proven agreement, there is no allegation of gift and the presumption of resulting trust in favour of his parents would not have been rebutted”, is a correct statement of the law as it applies to the case the trial judge was asked to decide. [39] I would make two additional comments.  First, in my view, the trial judge was correct in observing that David did not allege that he received Newport as a gift: para. 20.  His initial pleadings claimed only that he had received Newport from his parents.  His Statement of Claim was amended to articulate the foundation of his entitlement to Newport, which was the agreement.  Nothing in the defendants’ pleadings can fairly be read as admitting Newport was gifted to David.  Given the parties’ pleadings, the judge was entitled to decide the case on the basis that whether or not Newport was gifted to David was not in issue. [40] Secondly, I do not think the trial judge’s conclusions ultimately turn on the application of the presumption of resulting trust.  Certainly, the trial judge considered the presumption and what would be required to rebut it.  He used it as an organizing principle for the analysis in the reasons.  However, the trial judge was alive to the fact that the presumption allocates burdens of proof, but that its significance only becomes evident after all the relevant evidence has been weighed and the facts found.  If all of the necessary facts can be found, it is unnecessary to resort to the presumption to decide the case.  In such circumstances, the presumption is not applied to determine the outcome. [41] In this case, although certainly the trial judge concluded that David did not rebut the presumption, he went further and found facts that disposed of David’s claim to have ever owned the beneficial interest in Newport.  One such critical finding was that David acknowledged he held Newport on trust for his parents while he was its registered owner.  The trial judge identified a number of occasions when David acknowledged that fact.  Not the least of them was in the Declaration of Trust, which, in my view, the trial judge was entitled to treat as an admission and acknowledgement.  The acknowledgment that he held Newport on trust is critical to the intention of the parties, including of course the parents, when the transfer occurred.  The trial judge’s conclusion that David held Newport in trust for his parents is a finding of fact based on weighing the evidence and not the consequence of applying a presumption to ground a conclusion. [42] The fundamental problem with David’s position on this appeal is the extent to which he now takes new positions that were not argued before the trial judge.  As is well known, this Court is loath to entertain new issues advanced for the first time on appeal.  Generally, leave to introduce a new issue is denied if raising the issue requires new evidence to be led. [43] In Athey v. Leonati , [1996] 3 S.C.R. 458 at para. 51, 140 D.L.R. (4th) 235, Major J. for the Supreme Court of Canada stated: 51        … The general rule is that an appellant may not raise a point that was not pleaded, or argued in the trial court, unless all the relevant evidence is in the record: John Sopinka and Mark A. Gelowitz, The Conduct of an Appeal (1993), at p. 51. [44] The general principles for entertaining new issues on appeal were recently reviewed in Devine v. Devine, 2012 BCCA 509 at para. 45: [45]      An appeal court should only allow a new issue on appeal where “the interests of justice require it and where the court has a sufficient evidentiary record and findings of fact” to decide the issue ( Quan v. Cusson , 2009 SCC 62 at para. 37, [2009] 3 S.C.R. 712, citing Wasauksing First Nation v. Wasausink Lands Inc. (2004), 184 O.A.C. 84 at para. 102, 129 A.C.W.S. (3d) 2 (Ont. C.A.)).  In balancing the interests of justice, the court will consider potential prejudice to the other party.  As Prowse J.A. stated in O’Bryan v. O’Bryan (1997), 43 B.C.L.R. (3d) 296, 97 B.C.A.C. 62, “the prohibition against permitting one party to raise a new issue on appeal for which the evidentiary groundwork was not fully laid in the trial court is primarily to prevent prejudice to the party against whom the issue is raised” (at para. 24) as “evidence might have been led at trial if it had been known that the matter would be an issue on appeal” (at para. 23).  Issues of pure law are more likely to be granted leave than issues that require the leading of evidence ( Emmett v. Arbutus Bay Estates Ltd. (1994), 95 B.C.L.R. (2d) 339 at para. 9, 48 B.C.A.C. 26, citing R. v. Vidulich (1989), 37 B.C.L.R. (2d) 391 at 398-399, 8 W.C.B. (2d) 52 (C.A.). [45] In my view, David’s attempt to recast this case must fail for the reasons just described.  The issues he raises require evidence and findings of fact the trial judge was not asked to make.  To permit them to be advanced now would be prejudicial to the defendants. [46] David argues the trial judge should have considered whether, failing proof of an agreement, the evidence established a sufficient “nexus” between David’s marriage to Jia Qi on the one hand, and the transfer of Newport to David on the other, to constitute sufficient “consideration” to conclude the parents intended to transfer the beneficial interest to David. [47] With respect, I disagree.  The trial judge was not invited to consider whether some “consideration” other than what was involved in the alleged bargain would support a transfer of the beneficial interest.  The only “nexus” advanced by David was the alleged agreement.  Assuming some different or lesser consideration might have been sufficient to transfer the beneficial interest, that issue should have been pleaded or properly put in issue.  It was not.  If it had been, the evidence that was led may well have been different.  The trial judge would have had to embark on a different analysis of the evidence to find the relevant facts.  It is too late to raise this issue on appeal. [48] I have already accepted that the trial judge made no error in concluding that David did not allege a gift.  He cannot be faulted for failing to consider explicitly whether the parents intended a gift.  In any event, the findings of fact that he did make are inconsistent with finding a gift.  Those findings are entitled to deference.  Again, I would not entertain this argument on appeal. [49] The trial judge examined every aspect of the relationship between the sponsorship, marriage and transfer to determine whether the parents intended to transfer beneficial ownership.  He concluded that they did not intend to make such a transfer.  I do not think that finding can be challenged on the facts in the absence of a palpable and overriding error.  It is evident to me that the trial judge made no such error. Did the trial judge err in entertaining the assertion that the transfer was intended to mislead the immigration authorities about David’s financial means? [50] David argued on appeal that the judge erred in considering the defendants’ explanation that the transfer was a sham to mislead the immigration authorities into believing David was a person of financial means capable of sponsoring Jia Qi.  David argues if that explanation cannot be considered then under s. 23(2) of the LTA there would be conclusive evidence that he owned Newport beneficially. [51] Again, this argument was not made to the trial judge and it was not an issue at trial.  If it had been, it might have affected what evidence was admissible as well as the evidence that was admitted.  If it had been advanced, the trial judge would have been called on to consider whether the argument was correct and to make the necessary findings of fact.  As it is, the trial judge did review various possible explanations for the transfer of registered title to David, including the possibility that it was a sham.  However, the trial judge did not find that this was the reason for the transfer.  At best the trial judge merely found it was one possibility among several, as his findings of fact were limited to those relevant to whether the parents intended to transfer beneficial ownership to David.  Moreover, to the extent that the transfer to David might have been for an improper purpose, the relevance of David’s involvement and complicity in the transaction would have had to be considered.  This in turn would have required further findings of fact. [52] The trial judge was not asked to embark on this inquiry and, in my view, we ought not to entertain this entirely new argument on appeal.  This issue does not raise a pure issue of law in respect of which all the necessary findings and evidence are in the record. Section 23(2) of the Land Title Act [53] I have reached the same conclusion with respect to the argument advanced to us with respect to the effect of s. 23(2) of the LTA .  Mr. Holmes argued that s. 23(2) is, by its terms, a legislative enactment that declares registered title to be conclusive evidence of legal and beneficial ownership, subject only to certain limited statutory exceptions.  In this case, the only applicable exception relates to fraud.  The relevant parts of this provision are as follows: (2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following: (i) the right of a person deprived of land to show fraud, including forgery, in which the registered owner has participated in any degree; [54] Mr. Holmes argues the effect of this section is to oust the application of the presumption of resulting trust.  He contends that the line of cases in which registered title has been found to be subject to the presumption of resulting trusts goes beyond what is supportable in law.  In his submission, such cases are (or should be) restricted to relations between joint purchasers, particularly those who go on title as joint tenants.  He invites this Court to declare the law to be so. [55] Mr. Holmes’ argument is that the trial judge erred in relying on the presumption of resulting trust to defeat David’s registered interest because s. 23(2) required that he accept registration as conclusive evidence of beneficial as well as legal ownership.  He says David was in substance alleging that Joseph and Christian acquired their title fraudulently.  Accordingly, their title should have been set aside and effect given to s. 23(2).  In short, Mr. Holmes contends that the trial judge ought to have started his analysis by accepting that David’s registered title in 1991 was conclusive evidence that he was the beneficial owner of Newport and then concluded that Joseph had acquired his registered title by fraud. [56] I do not think we ought to allow this issue to be raised on appeal for a number of reasons.  Not the least of which is that this argument is, in any event, problematic. [57] Mr. Holmes accepted in argument that even if the presumption of resulting trust is ousted by the operation of s. 23(2), it would always be possible to prove the existence of an unregistered resulting trust between a transferor and transferee.  Mr. Holmes conceded that his argument was really about where the burdens lie.  He acknowledged the possibility of a resulting trust existing that was inconsistent with registered title.  In that situation, he said, if the transferee denied the trust he would be guilty of equitable fraud and the statutory exception in s. 23(2)(i) would apply.  In this case, the trial judge found as a fact that David held title on a resulting trust because he acknowledged that he did so.  As between David and his parents, David held Newport in trust for them (or, at the very least, his mother).  This would mean that on Mr. Holmes’ analysis David’s assertion of title would be a fraud. [58] Clearly, the trial judge was entitled on any approach to examine the facts to determine as between David and his parents what interest David took when he went on title to Newport.  That is what he did when he examined whether David acquired Newport because of the agreement.  The trial judge was not invited by David to approach the case on the basis that s. 23(2) was conclusive evidence of his ownership and the onus was on the defendants to establish that David was denying the existence of a resulting trust.  In my view, it is not open, at this stage, for David to recast the case in this way. [59] While David did plead that his father’s use of the power of attorney to transfer registered title from David to Joseph and Christian was a breach of fiduciary duty, the trial judge dismissed that allegation.  Specifically, he found Gamaliel did not breach his fiduciary duty in using the power of attorney to transfer title.  I agree with the reasoning of the trial judge on this point. [60] The trial judge was not invited to consider whether the transfer to Joseph and Christian fell within the exception set out in s. 23(2)(i).  However, in order to do so, the trial judge would have had to determine what interest David had in Newport.  This is a critical finding preliminary to being able to determine whether Joseph and Christian received that interest through fraud in which they participated.  The trial judge, of course, concluded that David did not have a beneficial interest.  The trial judge was not invited to decide whether the starting point of his analysis should be that title registered in David’s name was conclusive evidence of beneficial ownership.  Nonetheless, I am not convinced, given the trial judge’s findings, it would have made a difference to his conclusions. [61] As I have already observed, the trial judge did refer to the presumption of resulting trust but the case did not ultimately turn on it.  David’s failure to prove the agreement he alleged opened the door to the application of the presumption, but the trial judge found as a fact that there was a resulting trust that was acknowledged by David.  His ultimate conclusion was not dependent on the presumption. [62] Finally, in this case, registered title to Newport at the time of trial was in the names of Joseph and Christian.  On David’s argument, they would be entitled to set up their title as conclusive evidence of beneficial ownership.  The onus would then be on David to prove they had received it fraudulently and that they had participated in the fraud.  He would, I think, therefore have had the onus of demonstrating that they had acquired an interest in Newport that was properly his.  That would require proof of his interest, which, of course, he had attempted to do by proving the agreement.  This was the very issue the judge decided.  It is far from clear to me that this argument advanced on appeal in any substantial way alters what the trial judge did or lays a foundation to think the result would have been any different if the judge had approached the case in the way David now suggests he should have done. [63] It follows that I am not persuaded that this case calls for a decision by this Court about the full scope of the application of the presumption of resulting trust in the face of s. 23(2).  The issue does not arise on the facts.  I will, however, note that this Court very recently considered the relevance and applicability of the presumption in the context of a joint tenancy that did not involve joint purchasers: Bergen v. Bergen , 2013 BCCA 492.  While the case is not directly on point for this appeal, I refer to it in response to the argument that s. 23(2) and the jurisprudence dictate that the presumption only properly applies in cases of joint purchasers. Conclusion [64] The trial judge decided the case as he was asked to decide it.  He was not asked to address the issues in the way Mr. Holmes put them to us on appeal.  The trial judge found on the facts that David held Newport on a resulting trust, which he acknowledged, and that he had not proven that he acquired the beneficial interest by agreement.  In my view, we ought not to consider the case on the basis suggested by Mr. Holmes.  He raises points not argued before the trial judge that call for findings of fact the judge was not asked to make. [65] In the result, I would dismiss the appeal. “The Honourable Mr. Justice Harris” I agree: “The Honourable Madam Justice Saunders” I agree: “The Honourable Madam Justice Kirkpatrick”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Neville v. National Foundation for Christian Leadership, 2014 BCCA 38 Date: 20140124 Docket: CA040695 Between: Ken Neville and Monica Neville Appellants (Plaintiffs) And National Foundation for Christian Leadership and Her Majesty the Queen in Right of the Province of British Columbia Respondents (Defendants) Before: The Honourable Mr. Justice Donald The Honourable Mr. Justice Frankel The Honourable Madam Justice D. Smith On appeal from: Supreme Court of British Columbia, February 6, 2013 ( Neville v. National Foundation for Christian Leadership , 2013 BCSC 183, Vancouver Registry S061523) Oral Reasons for Judgment Counsel for the Appellant: L.A. Goldbach Counsel for the Respondent, National Foundation of Christian Leadership: J.R. Shewfelt Place and Date of Hearing: Vancouver, British Columbia January 24, 2014 Place and Date of Judgment: Vancouver, British Columbia January 24, 2014 Summary: The trial judge did not err in dismissing the claim that a donation was a gift, and if it were not, no trust obligation arose. Reasons endorsed by this Court. [1] DONALD J.A. : This appeal is from the dismissal of a claim relating to a failed tax scheme. [2] The appellants gave $6,250 to the respondent, National Foundation for Christian Leadership, and received a receipt for tax deduction purposes as though the money were a donation. The Foundation warned donors that the receipt may not be accepted as valid by Canada Revenue Agency (“CRA”). That caveat may well have had to do with the nature of the overall scheme which involved the Foundation’s grant of a bursary to a donor’s child or grandchild enrolled at Trinity Western University in an amount roughly equal to the gift. [3] In due course, the appellant’s daughter received a bursary for slightly more than the donation. CRA rejected the appellant’s receipt for a reason upheld in the tax court and Federal Court of Appeal, (the Supreme Court of Canada refused leave), namely the absence of an arm’s length relationship between the donor and the bursary recipient. [4] The trial judge found that the transaction between the appellants and the foundation was a gift and, alternatively, if it was not, no unjust enrichment occurred because the appellants got a bursary for their daughter and a risky tax receipt; everything they had bargained for. Either way, the appellants have no claim in trust or otherwise. [5] I respectfully agree with the trial judge’s reasons for judgment and, like him, I am unable to see any law or policy supporting the claim. I would dismiss the appeal. [6] FRANKEL J.A. : I agree. [7] D. SMITH J.A. : I agree. [8] DONALD J.A. : The appeal is dismissed. “The Honourable Mr. Justice Donald”