B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

CIVIL PROCEDURE 2000

• 2000 BCCA 3 IWA and Community Credit Union v. Liu
  Civil Procedure - Costs in the Supreme Court should follow the event of the new trial.
• 2000 BCCA 4 Fraser River Pile & Dredge v. Can-Dive Services Ltd.
  Civil Procedure - Supplementary Reasons on Costs - Issues of apportionment of costs and increased costs are referred back to the trial court. Costs in the Court of Appeal are awarded to Can-Dive without reduction or apportionment.
• 2000 BCCA 7 Northwood Inc. v. Forest Practices Board
  Appeals – Application to restrain publication of report by Forest Practices Board pending appeal. The appellant applied to restrain publication of a compliance audit report of the Forest Practices Board pending its appeal of the dismissal of its petition pursuant to the Judicial Review Procedure Act on the ground that the portions of the Report exceeded the jurisdiction of the Board under the Forest Practices Code of British Columbia. Held: Application refused. Irreparable harm could be caused to the public interest by further delay in publication of the report and the balance of convenience favoured publication.
• 2000 BCCA 8 Zylstra v. Hughes
  Civil Procedure - Stay of Execution - Partial stay of execution on amounts still owing under the judgment pending the appeal.
• 2000 BCCA 11 Osborne v. Pavlick
  The applications to adduce fresh evidence were dismissed. The action was founded on negotiations and resulting contracts for a purchase and sale of lands owned and a day care operated by the defendants. The trial judge found the defendants had committed both the tort of deceit and breach of contract. The statement of defence and counterclaim did not contain either the plea that Mrs. Pavlick was incapable of entering the contract or that she lacked the mental capacity to form the intent necessary for the tort. On the application as to whether, during the negotiations and making of the bargain, Mrs. Pavlick was of sound mind, the material before the Court of Appeal clearly showed that no issue was joined between the parties as to the mental condition of Mrs. Pavlick at that time. The interests of justice were not served when litigants go to trial on certain issues that are resolved and then seek to put before this Court a wholly new and completely different theory. As for the application about Mrs. Pavlick's incapacity to give instructions and understand the legal process, this issue could have been dealt with at trial which it was not. The applications came too late to assist the defendants.
• 2000 BCCA 13 The Public Trustee v. Hauptman et al.
  Appeal allowed. Reasons to follow.
• 2000 BCCA 15 Bolton et al. v. City of Surrey et al.
  The appellant expressly agreed to the consent dismissal of his action but later changed his mind. The appellant sought to have the consent order set aside by a Chambers judge. The court agreed with the Chambers judge that, based on contract principles, there were no grounds to set aside the order. The appeal was dismissed.
• 2000 BCCA 16 Mahood v. Britannia Beach Holdings et al.
  Leave to appeal applications dismissed in interrelated proceedings under the Company Act and Rule 50 of the Rules of Court.
• 2000 BCCA 17 Cenciarini v. Cenciarini
  Civil Procedure - Mr. Cenciarini applied to extend time to file application to set aside a chamber order.
• 2000 BCCA 27 Houseman et al. v. Sewell Appeal award of increased costs. Appeal allowed.
• 2000 BCCA 34 Kuntz v. McGraw et al.
• 2000 BCCA 36 Quality Concrete Formwork Ltd. v. Vanbots Construction Corporation
  Builders Lien: Bond posted as security: The Court dismissed an application to review the decision of a Chambers Judge refusing a stay of an order releasing a Bond upon the dismissal of the action. As there was no likelihood of success on the appeal, the review was dismissed.
• 2000 BCCA 48 Wagner v. Nelson et al.
  Extension of time refused because appeal having no prospect of success.
• 2000 BCCA 54 Conex Services Inc. v. Bogner Developments Ltd.
  Rate of interest was fixed at prime where the respondent’s breach of contract had deprived the appellant of the opportunity to invest.
• 2000 BCCA 58 Baher v. BCYCFU et al.
  The appellant did not obtain permission from the BC Court House Library Society for after hours access. Mr. Justice Williamson dismissed his application. The appellant then brought a notice of motion for an order that the Court grant him those privileges, but without giving notice to the Society. The chambers judge decided that the proper person to be served with notice was the British Columbia Court House Library Society since the rights of the Society were in issue. The matter was not to be set down without the usual proof that the Society was so served.
• 2000 BCCA 59 Shenzhen City Luohu District Industrial Development Company v. Howon Industries Ltd. et al.
  The application for leave to appeal was refused. The appellant solicitors applied for a payment to them out of impounded funds to defray fees that may be incurred by the clients in their defence. At the root of such an application and order is the notion that defendants should not be deprived of the means of defending themselves. The application was denied by the Chief Justice of the Supreme Court on the ground that he could not tell where justice of the case lay. His decision was an exercise of discretion. The chambers judge did not think the question of public interest truly arose since the defence had been mounted and the refusal to make the order did not deny the defendants' proper representation.
• 2000 BCCA 69 Grinshpun v. UBC
  Appeal dismissed for want of prosecution.
• 2000 BCCA 74 Koszil v. Bank Canadian National
  The chambers judge refused the appellant’s application for a stay of execution pending his appeal of the dismissal of his action. The chambers judge noted that the application was misconceived, for what the appellant needed was an order under s. 10 of the Court of Appeal Act. The action was to set aside a judgment that the respondent had obtained in December 1994. Such an action can be brought on various grounds including material fresh evidence discovered after the judgment and which the person seeking the new trial could not with due diligence have adduced at the original trial. If, in this case, the former bank employee had given the evidence and if the trial judge had accepted it, the respondent may have failed. But at no time before the appellant filed his amended statement of defence and counterclaim did he claim that there had never been a loan. However, the chambers judge could not say that the proposed evidence was immaterial. On the issue of due diligence, the appellant did not give particulars of his failed searches to locate the former bank employee. A "Mr. Mackleston" appeared in the phone book in each of the relevant years with the same address listing as when the former bank employee was cross-examined by the respondent’s counsel. Therefore there was no foundation for a finding that the appellant had exercised all due diligence in attempting to locate the witness. On the issue of due diligence, the chambers judge was not persuaded that there was sufficient merit in the appeal that the interim relief sought ought to be granted. The chambers judge expressly did not put her decision on the footing that the proposed evidence was not material within the authorities.
• 2000 BCCA 76 JJM Construction Ltd. v. Sandspit Harbour Society
  Appeal from award of increased costs in amount of 50% of special costs to respondent Westmar following dismissal of appellant’s action against Westmar and Sandspit. In circumstances of case, there was ample evidence for the trial judge’s discretion to award 50% of special costs. Appeal dismissed.
• 2000 BCCA 84 BCBC v. Saggu et al.
  Plaintiff seeks leave to appeal a stay of a decision of a Supreme Court judge making available to defendant, for purpose of retaining counsel to defend a criminal fraud charge, a fund subject to a Mareva injunction granted on basis that it is alleged to be proceeds of that fraud. Application refused because, although appeal would raise question of some general importance on which there is no authority, greater weight should be given to risk of disrupting criminal proceeding.
• 2000 BCCA 85 Ahenkora v. Ahenkora
  Where there has been serious delay in taking any step in an appeal other than filing Notice of Appeal, but where appellant asserts an intention to proceed and there is some possibility of success, the appeal may be dismissed as abandoned under s. 28(a) of the Court of Appeal Act where it appears that the appeal is being used to delay and harass the respondent.
• 2000 BCCA 90 Langley Lo-Cost v. 474835 B.C. Ltd.
• 2000 BCCA 92 Park v. Park
  Appeal from judgment ordering compensation payment as set-off against respective interests in pensions. Application to adduce further evidence (actuarial) allowed. Matter remitted to court below to address question of proper compensation order, having in mind the actuarial values of the two pensions and the income tax considerations.
• 2000 BCCA 93 JJM Construction Ltd. v. Sandspit Harbour Society
  Application by successful respondent for increased costs of appeal refused. Factum did not seek special order as to costs. Respondent entitled to costs on scale 2.
• 2000 BCCA 98 British Columbia (Minister of Forests) v. Adams Lake Indian Band
  Leave to appeal granted.
• 2000 BCCA 99 British Columbia (Minister of Forests) v. Westbank First Nation
  Leave to appeal refused from decision remitting matter to trial list - leave to appeal granted concerning directions on order of filing pleadings.
• 2000 BCCA 110 291953 B.C. Ltd. v. Canada Safeway Limited
  Appeal from judgment dismissing action for rectification - dismissed.
• 2000 BCCA 111 AG of Canada v. Ellis-Don Limited
  On a motion for leave to amend a pleading the chambers judge determined the effect of an agreement between counsel regarding the pleadings. The court allowed the appeal and gave leave to amend the pleading, ruling the effect of the agreement was matter for trial.
• 2000 BCCA 122 Tejani v. Institute of Chartered Accountants of B.C.
• 2000 BCCA 123 Tejani v. Institute of Chartered Accountants of B.C.
  Review application of a decision of a Chambers judge under s.25(6) of the Court of Appeal Act. No misunderstanding or misapplication of the law. No misunderstanding of the facts. Review application dismissed.
• 2000 BCCA 124 Scott v. Fulton
  This matter involves an appeal of an 18A summary determination in a defamation action which held that certain statements made by the appellant were not statements of opinion but statements of fact. Appeal allowed: the learned trial judge erred in failing to apply the appropriate test in determining whether the statements were fact or comment and consequently did not review all of the materials before him. The trial judge also erred in applying the wrong test in determining how the statements should be characterized. Further, it is appropriate for all the issues of the case to be determined in one full hearing.
• 2000 BCCA 131 Waldman v. British Columbia (Medical Services Commission)
  Respondent successful in result but on narrower grounds than in court below — costs at Scale 1 ordered in favour of respondent.
• 2000 BCCA 150 Auger v. Hume
  Section 29(6)(g) of the Court Order Enforcement Act means that in order to prevent registration of an out-of-province judgment there must be a defence to an action on the judgment, not that there must be a defence to the foreign action on which the foreign judgment was given.
• 2000 BCCA 154 CIBC Mortgage Corporaiton v. Michiyo Branch
  Appeal from the refusal of a chambers judge to grant relief from forfeiture. Dismissed.
• 2000 BCCA 155 Poznekoff v. Binning
  Appeal allowed in part from an order in a case which is a procedural disaster The purpose of the order of this Court is to ensure a proper resolution on the merits.
• 2000 BCCA 156 City of Vancouver v. Jefferson
  Application for extension of time within which to file Notice of Application for Leave to Appeal granted.
• 2000 BCCA 168 Citizens Bank of Canada v. Anthony
• 2000 BCCA 173 Grabber Industrial Products Central Ltd. et al. v. Stewart & Company
• 2000 BCCA 179 Samos Investments Ltd. v. Pattison et al
  Application for leave to appeal and for a stay of proceedings pending determination of the appeal in an action brought under the Class Proceedings Act.
• 2000 BCCA 185 J.W. Price Construction v. Costco Wholesale Corp.
  Written Reasons on Costs<
• 2000 BCCA 188 Belanger v. King et al.
• 2000 BCCA 189 Daflos v. Board of School Trustees No. 42
• 2000 BCCA 191 Shackley et al. v. Champagne et al.
• 2000 BCCA 203 Eamor v. Air Canada Ltd.
• 2000 BCCA 208 JJM Construction Ltd. v. Sandspit Harbour Society The court below ought not to permit a judgment to be drawn up and entered in a matter only partly decided.
• 2000 BCCA 211 Price Waterhouse v. Endeavour
  Chambers application for an order staying an accounting before the Registrar. Held: Application refused. The application relates to an issue on which leave to appeal was refused. It would be inappropriate to hinder a proceeding deliberately excluded from the order granting leave to appeal.
• 2000 BCCA 212 First Island Financial Services Ltd. v. Marall Homes Ltd.
  Direction sought by appellant Bank as to whether leave is required to appeal an order dismissing an appeal from an earlier order declaring a mortgage in favour of the Bank void. Held: No leave required. Although the impugned order was made in foreclosure proceedings it was not in substance a matter to which Rule 50 applies. Accordingly, it does not fall within s.7(2)(c) of the Court of Appeal Act and the appeal can proceed as of right.
• 2000 BCCA 218 Bankruptcies of Down, Street and Barnes
  Civil Procedure
• 2000 BCCA 222 Zaraweh v. Hermon, Bunbury & Oke
• 2000 BCCA 232 Horvath v. Canada
  Extension of time to appeal – Factors to be considered – Application refused. Following the liability portion of a trial split between liability and damages, the Crown applicant sought an extension of time to appeal the decision on the ground of available defences previously overlooked. The Crown first brought a Chambers application to amend the defence which was dismissed. Held, the extension should be refused. The Crown adopted the strategy of seeking relief through the Chambers application and it would not be in the interests of justice to allow an extension to pursue an alternative strategy. The extension was refused but leave to appeal the Chambers decision was granted.
• 2000 BCCA 235 McEwen v. British Columbia Securities Commission
  Application for leave to appeal from a temporary cease trade order of British Columbia Securities Commission. Application found to be premature and application dismissed.
• 2000 BCCA 243 Merrill Lynch Canada v. Pastro and Marshall
  Chambers judge granted injunction, (time limited), at suit of brokerage firm that had previously employed applicants. Non-solicitation covenant found effective. Leave to appeal and application for a stay dismissed as no error demonstrated in decision sought to be appealed.
• 2000 BCCA 250 CU&C Health Services v. Sourdif
  The appellant sought review of an order dismissing an application for leave to appeal an order dismissing an application which set aside a garnishee order. Application dismissed.
• 2000 BCCA 252 Michael Blaxland Personal Law Corp. v. Clendenning
  The appellant law corporation applied to recover fees pursuant to a contingency fee agreement. The application was dismissed by both the Registrar and the B.C. Supreme Court. Held: The appeal is dismissed. The appellant quit the retainer for reasons other than those that would entitle him to a fee. The amount of fees could not be measured until the appeal was completed. The portion of the judgment that had been paid forthwith to the respondent was not an "amount recovered" since it would have to be returned if she lost the appeal.
• 2000 BCCA 253 Bernard v. Warden, Kent Institute
• 2000 BCCA 254 MacMillan Bloedel v. HMTQ
• 2000 BCCA 260 Chief Mountain v. HMTQ in Right of Canada
  Application for leave to appeal an order denying the plaintiffs’ application for an interim injunction. The action is one seeking to declare the Nisga'a' Treaty unconstitutional. The plaintiffs sought an interim order enjoining the proclamation of the federal and provincial legislation bringing the Treaty into force. The application was refused, primarily on the ground that the court should not rule on the constitutionality of legislation before it is passed into law (the legislature had, at the time of the application, passed third reading in the B.C. Legislature and the House of Commons but was still being debated by the Senate). The application for leave to appeal was dismissed on the ground that no error had been demonstrated on the part of the chambers judge.
• 2000 BCCA 261 Arbutus Environmental Services v. Stewart
  A sues B - A then applies to join C & D to the A v B action - this application to add parties dismissed - A then discontinues A v B action and starts a new action in which B, C and D are defendants - defendants assert abuse of process and move to strike C and D as defendants under R19(24)(d) of Supreme Court Rules - motion dismissed and leave to appeal application dismissed - Murray Duff Enterprises Ltc. V. Van Durme et al (1981) 23 C.P.R. 151.
• 2000 BCCA 268 D.R. McLeod Law Corporation v. ICBC
  The appellant, a lawyer, appeared as counsel for himself and his personal corporation to appeal against an order that severely limited their recovery of fees under a contingency fee agreement. The appellants were discharged after the statement of claim was filed and they claimed a right to recover 20% of the plaintiff’s judgment. The appellants were relying upon questioned affidavit material and arguments. The court declined to hear the appellant as counsel in these circumstances.
• 2000 BCCA 269 Maxima Services Rusin
• 2000 BCCA 273 Loewen v. Coquitlam (City)
• 2000 BCCA 274 Albion Securities Company Limited et al. v. Milne et al.
• 2000 BCCA 280 Ferguson Gifford v. Lax Kw'alaams Indian Band
  This is an application for leave to appeal an order striking out a garnishing order after judgment and ordering the funds which had been paid into court on the garnishing order paid out. Assuming, without deciding, that leave is required, leave was granted.
• 2000 BCCA 290 Schultz v. Schultz
  Leave to appeal in costs matter refused because of small amount involved. Law settled by other cases.
• 2000 BCCA 296 British Columbia Assoc. of Optometrists v. Clearbrook Optical
  Public interest statute - enforceability in the absence of the participation of the Attorney General of the Province - general rule as to presence of Attorney General applies where statute mandates a duty to protect the public.
• 2000 BCCA 303 Nesbitt v. Miramar Mining Corporation
  Granted leave so Court might consider the decision of Macdonald J. in Abermin Corp. v. Granges Exploration Ltd. (1990), 45 B.C.L.R. (2d) 188 (S.C.). At issue is the standard of review of a Master's order.
• 2000 BCCA 316 B.C. (Minister of Forest) v. Westbank First Nations
  Pleadings - where petition was ordered to be transferred to trial list and pleadings were ordered to be filed, it was appropriate that petitioner be plaintiff and respondent officials and band be defendants, notwithstanding fact that aboriginal title and rights were key issues in litigation.
• 2000 BCCA 319 Canadian Pacific Railway v. Enderby et al.
  The Chambers judge did not err in holding plaintiff's claim to be statute barred, and correctly concluded that correspondence from the defendants' agent to the plaintiff did not "confirm" a cause of action within the meaning of s. 5(2)(a)(i) of the Limitation Act as interpreted by Podovinikoff v. Montgomery (1984), 58 B.C.L.R. 204 (C.A.).
• 2000 BCCA 326 Goldman, Sachs & Co. v. Sessions et al.
  Leave to appeal was granted on two orders dismissing the plaintiffs’ applications to sever the counterclaim of two of the defendants from the main action. A direction was given that another appeal concerning the production of privileged documents be heard at the same time. Leave to appeal was refused on an order denying production of certain financial documents of the defendant.
• 2000 BCCA 327 North Cowichan (District) v. Jopp Ventures Corp.
  The appellant’s application for a stay pending appeal of an order permanently enjoining it from carrying on activities found to be in breach of a local zoning bylaw was denied. The appellant was also ordered to post security for costs of the appeal.
• 2000 BCCA 331    Global Equity Corporation v. Nexus Ventures Limited
  Application for leave to appeal dismissed.
• 2000 BCCA 348 Babcock v. Canada (Attorney General)
  Documents – Crown immunity – s. 39 Canada Evidence Act – Waiver  On appeal from an order refusing an application to compel production of documents and allow examination thereon following a claim to protection pursuant to a certificate of the Clerk of the Privy Council under s. 39 of the Canada Evidence Act. Held: The appeal should be allowed. Section 39 was restricted to a claim of immunity for Cabinet confidences as a class. The disclosure of some documents without objection could not be retroactively withdrawn by a s. 39 Certificate and the waiver of immunity for some of the documents within the class effectively waived the immunity for the class of documents as a whole. Southin J.A. Dissenting: The doctrine of waiver has no application.
• 2000 BCCA 357 Kent v. Waldock
  Special costs ordered against lawyer in respect of two instances of application of R. 57(37); other instances argued by the appellant were found not to constitute reprehensible conduct or not to have resulted in extra costs or expenses. Discussion of amended R. 57(37) and Young v. Young (1990), 75 D.L.R. (4th) 46.
• 2000 BCCA 370 Jefferson v. Vancouver (City)
  Leave to appeal denied to recipient of a parking ticket who purported to pay 25 Mexican pesos in payment of ticket for "$25".
• 2000 BCCA 371 Griffith et al. v. House et al.
  Applicant found not to be a person who qualifies for indigent status because of his financial position.
• 2000 BCCA 372 Lifestyles Retirement Communities Ltd. v. Guardian Insurance Company and Gerling Global General Insurance Company
  Leave to appeal denied to insurers who sought to rely on contractual "limitation" to oppose amendment to plaintiff's pleadings adding them as defendants. Trial of the questions of "when which damage occurred" was necessary to determine whether the limitation could validly be raised.
• 2000 BCCA 381 Tompkins v. Barden
• 2000 BCCA 383 Liquor Control and Licensing Branch v. Lonsdale Hotel Inc.
  Chambers application for leave to appeal.
• 2000 BCCA 384    Lount v. Bahd; Lount v. Hanson
  Chambers application to adjourn appeal.
• 2000 BCCA 385 Pharoah v. Brace
  Chambers application for extension of time to file appeal books and for security for costs.
• 2000 BCCA 386 In the Matter of Quinsam Coal Corporation; In the Matter of Hillsborough Resources Limited
  Chambers application for leave to appeal.
• 2000 BCCA 389 Exchange Bank & Trust Inc v. British Columbia Securities Commission
  Application for leave to appeal was dismissed. The B.C. Securities Commission did not err in refusing to overturn an order freezing the applicant's assets in this province.
• 2000 BCCA 391 Donald Berman Enterprises Ltd. v. 365946 B.C. Ltd. et al.
  The appellant filed both an application for leave to appeal and a notice of appeal from the decision of a Supreme Court Chambers judge setting aside a default judgment. The appellant applied for leave to appeal in Chambers in the Court of Appeal. The Chambers judge in the Court of Appeal held that leave was required and dismissed the application for leave.
• 2000 BCCA 394 MacMillan Bloedel Ltd. v. HMTQ
  This appeal considers the ordinary meaning of words and the statutory definition of "die" as a shaping device. The court decided that saw blades and knives are not "dies".
• 2000 BCCA 396 Chouinard v. ICBC
  Chambers application for directions and for extension of time to file factums
• 2000 BCCA 401 R. v. Alvarez
  Chambers application for leave to appeal.
• 2000 BCCA 402 In the Matter of Sharp-Rite Technologies Ltd.
  Chambers application for leave to appeal.
• 2000 BCCA 404 Furlan v. Shell Oil Co.
  Jurisdiction - Foreign defendants - Rule 13 - Pleadings - Evidence The defendants/appellants were alleged to have been negligent in supplying resins used in the manufacture of defective polybutylene plumbing supplies. The defendants applied to set aside service on the writ ex juris the ground that they did not conduct business within the jurisdiction and that the issue of jurisdiction had to be decided on evidence not pleadings. A Chambers judge dismissed the application. Held, on appeal, the affidavit evidence of the defendants did not challenge the pleadings on essential factual issues. The cause of action alleged was a tort committed in B.C. and the Chambers judge was correct in dismissing the application to set aside service.
• 2000 BCCA 405 AG Armeno Mines and Minerals Inc. v. Newmont Gold Co.
  Jurisdiction – Foreign defendant – Rule 13 – Plaintiff’s action bound to fail on evidence The plaintiff appealed a decision of a Chambers judge granting the defendant’s application to refuse jurisdiction over a foreign defendant and set aside service of the writ ex juris. Held: Appeal dismissed. While the plaintiff could make out a case for jurisdiction on the pleadings standing alone the defendant had established on uncontradicted evidence that the action would be bound to fail because of an affirmative defence.
• 2000 BCCA 413 Van Mol v. Ashmore
  Application for directions. New trial ordered on damages on the basis of new evidence. All pre-trial procedures to be in effect.
• 2000 BCCA 419 Aber Resources Ltd. v. Winspear Resources Ltd.
• 2000 BCCA 422 MacMillan Bloedel v. HMTQ
• 2000 BCCA 423 Jones v. Humeston
• 2000 BCCA 442 McGrath v. McGrath et al.
  Chambers application for leave to appeal. Application dismissed.
• 2000 BCCA 448 Balla v. Fitch Research Corp.
  Appeal from order setting aside default judgment taken against the defendant, Alliance Semiconductor Corporation, after chambers judge concluded that service on the defendant had not been effected. Acknowledgment of receipt card had been returned unsigned from United States. Affidavit material submitted as to U.S. Postal Service practice provides some support for assertion that writ was delivered but does not make it possible to "feel perfectly confident" that service had reached Alliance. Chambers judge erred in exercise of discretion in not making an order for cross-examination of the deponents on their affidavits. Appeal allowed. Question of whether default judgment should be set aside remitted to the Supreme Court for cross-examination of the deponents on their affidavts.
• 2000 BCCA 453 Edgeworth Construction Ltd. v. Thurber Consultants Ltd.
  Defendant had tendered documents obtained on discovery by another person in another action, without seeking and obtaining the consent of the court under the rule in Hunt v. T&N. Trial judge had not erred in ruling this evidence and interrogatories obtained in a similar way, inadmissible. However, since it was in the interests of justice that it be admitted , and no prejudice was suffered by the plaintiff that could not be remedied by costs, the matter was remitted back to the trial court so that the defendant could make the application and the evidence could be admitted subject to all necessary safeguards for the plaintiff. The court also considered s.6(4) of the Limitation Act, the "postponement" provision,, and said that the trial judge had erred in his alternative ruling that a favourable change in the law ( the reversal of the rule against recovery of pure economic loss in this case) taking place after the plaintiff's alleged damage or even after the damage was reasonably discoverable, would postpone the commencement of the running of time under the provision. None of the law reform commission reports which led to the enactment of the legislation contemplated such a result and it was not a necessary result on the wording of the Act, notwithstanding some obiter dicta in a minority judgment of this court in an earlier case. The provision was concerned with a plaintiff who was unaware of the facts relating to his case, including ignorance of the law, but did not turn matters of law into matters of fact. Thus the case was to be retried to determine when the plaintiff had known or should reasonably have known that it should sue -- assuming the existence of a cause of action.
• 2000 BCCA 457 Roberge v. Huberman et al.
  The respondent’s application for security for costs was dismissed on the basis that to do so would deprive the impecunious appellant of her appeal.
• 2000 BCCA 459 Sinclair v. March
  The plaintiff sought production of documents which the defendant claimed were protected under s. 51 of the Evidence Act. The documents date from 1962 to 1994 and include various correspondence, memoranda, minutes of meetings and reports. The chambers judge ordered that certain documents and files be more fully described and that this description include the name of the committee and under which subsection of section 51 protection was claimed. In addition, the chambers judge ordered the production of a number of other documents relating to a hospital investigation that took place in 1991.  Donald J.A.: Appeal allowed in part. The chambers judge’s ruling that certain documents and files be more fully described was affirmed. The 1991 investigation was concerned with whether the procedure the plaintiff underwent was "frivolous". This is undoubtedly a quality of care or practice concern and it falls squarely within the scope of section 51. The order for production of documents relating to the 1991 investigation was accordingly set aside and an order for further description to the documents in question was made in its place.
• 2000 BCCA 462 Kemp v. Metzner
  The appeal is limited to two issues. The first concerns the meaning to be given to the phrase "bring an action" found in s. 6(4)(b) of the Limitation Act. The second concerns the trial judge's conclusion that the appellant's claim alleging
• 2000 BCCA 465 Cook v. Bowen Island Realty Limited
  Reinstatement of appeal under s. 25(6) of the Court of Appeal Act refused. The case was moot, and although the applicant wished to challenge a finding of liability, in this case where the judgment had been paid to the satisfaction of the plaintiffs, the court should not exercise its discretion.
• 2000 BCCA 469 Bankruptcies of Down et al.
  Application for stay dismissed on consideration of likelihood of success of petition into bankruptcy and extraordinary remedies sought pre-judgment.
• 2000 BCCA 482 Sequoia Springs West Development Corp. v. British Columbia et al.
  Application for leave to appeal award of compensation made by Expropriation Compensation Board for section of property, which had been in the process of being developed as a residential golf course community, used for portion of Inland Island Highway on Vancouver Island. Leave to appeal granted.
• 2000 BCCA 484 Haldorson et al. v. Coquitlam (City)
  Application for leave to proceed with appeal of judgment dismissing petition for an order to set aside bylaws of City of Coquitlam. Delay by appellants. Application refused.
• 2000 BCCA 485 Neufeld v. Foster
  Application for leave to appeal order for costs made following trial of an action for damages for injuries in a motor vehicle accident. Interpretation of offer to settle made prior to trial which makes reference to Part VII (no-fault) benefits.  Legal questions contained in proposed grounds of appeal that are important to the practice have already been determined in Schmitt v. Thomson (1996), 18 B.C.L.R. (3d) 153 (C.A.). Interpretation of wording of offer is not a matter of general importance and has limited utility in the litigation, for it is at an end. Leave to appeal refused.
• 2000 BCCA 486 Yang v. Yang
  Chambers application for leave to appeal an order that the appellant post security for costs in Supreme Court, failing which the action will be dismissed, and for a stay of the order pending appeal. Leave to appeal granted and a stay ordered of the requirement that $30,000 be posted as security for costs pending appeal.
• 2000 BCCA 487 East Broadway Residents Association v. City of Vancouver
  Chambers application for stay. Application dismissed.
• 2000 BCCA 489 Cheema v. Cheema
  Chambers application for directions - issue was whether leave was required for an appeal to be brought. Leave to appeal granted.
• 2000 BCCA 490 Heringa v. Mah
  Chambers applications for stay, and extension of time to file appeal books, transcripts and factum. Application for extension of time to file appeal books, transcripts and factum granted. Application for stay pending appeal granted to corporate defendant on terms.
• 2000 BCCA 493 Bell Expressvu v. Rex et al
  Section 9(1)(c) of the Radiocommunication Act prohibits the unauthorized reception of encrypted subscription programming t.v. signals broadcast by "lawful distributors" in Canada. However, it does not prohibit the reception of such signals which originate in foreign jurisdiction. The chambers judge did not, therefore, err in refusing an injunction against the selling of decoders, and the provision of other services, to Canadian customers enabling them to receive satellite t.v. signals broadcast from the U.S.A.
• 2000 BCCA 496 BCIT (Student Association) v. BCIT
  The appeal of a chambers decision refusing to grant leave to appeal a decision under the Commercial Arbitration Act on the test set out in Domtar Inc. v. Belkin Inc. (1989), 39 B.C.L.R. (2d) 257, is granted. A chambers judge on a leave application is not bound by the Domtar test in the exercise of discretion, and simply must exercise his or her discretion judicially. In the circumstances of this case it was appropriate to grant leave to appeal.
• 2000 BCCA 497 Samos Investments Inc. v. Pattison et al.
  Review of stay of action. Defendants assert collateral attack on order under Company Act – irreparable harm and balance of convenience requirement for stay met by assertion of alleged abuse of process of the court in attacking a judgment of the Supreme Court not appealed. Review dismissed.
• 2000 BCCA 499 Hicks v. West Coast General Hospital et al.
  Application for indigent status dismissed as case has no merit.
• 2000 BCCA 506 Big Country Holdings Ltd. v. Fiddes
  The defendant alleged he had preserved funds through his efforts as counsel. He applied for a stay of the order dismissing his claim to funds pending appeal. Held: The application was dismissed. The defendant had not met the threshold test on the merits which would justify a stay.
• 2000 BCCA 508 Dhalla v. Dhalla
  Application for leave to appeal from release of garnishing order. Court finding that case not raising issues of sufficient import to warrant grant of leave.
• 2000 BCCA 509 Kuntz v. McGraw et al.
  Limitations - vexatious litigation order - increased costs John David Kuntz appealed orders striking out claims in two actions. The issue in both appeals was whether the actions were out of time. The first appeal, No. CA024879, was an appeal from the order of Williamson J. dismissing the action as vexatious and an abuse of the process of the court. The second appeal, No. CA025869, was an appeal from the order of Edwards J. striking out the appellant's claim as being out of time. The respondents in the second action applied for an order pursuant to s. 18 of the Supreme Court Act to the effect that the appellant be required to obtain leave of the Supreme Court before instituting further proceedings against any of the defendants in that action. The respondents in both actions applied for special or increased costs. Held: Appeals dismissed for substantially the reasons of both chambers judges. Order pursuant to s. 18 of the Supreme Court Act granted. Increased costs awarded to the respondents in both actions.
• 2000 BCCA 520 Slocan Forest Products Ltd. et al. v. HMTQ
  The respondents filed returns under the provincial Logging Tax Act showing no tax payable after deducting tax credits under s.127(1) of the Income Tax (Canada) Act. Decision of chambers judge interpreting the word "allowable" in s.2 of the Logging Tax Act upheld.
• 2000 BCCA 522 British Columbia (Minister of Transportation & Highways v. Reon Management Services
  Application for leave to appeal a decision of the Expropriation Compensation Board on the contents of a settlement agreement was granted. An application for a stay of execution was refused.
• 2000 BCCA 526 Hamer-Jackson v. McCall Pontiac Buick Ltd.
  The court declined to order special or increased costs following the decision of the court in Garcia v. Crestbrook Forest Industries Ltd. (1994), 41 C.P.C. (3d) 298.
• 2000 BCCA 530 Prasad v. College of Physicians and Surgeons Chambers application for leave to appeal an order for the production of medical records. Application dismissed.
• 2000 BCCA 535 Spoor and Miller v. Nicholls
  Reinstatement of appeal under s. 25(2) of the Court of Appeal Act and extension of time for filing appeal books.
• 2000 BCCA 541 Crosby v. Joyce
  In a trial by judge and jury, the instructions to the jury did not fully express the theory of the plaintiff on issue of contributory negligence, and accordingly, did not address all necessary legal issues for the jury's consideration.
• 2000 BCCA 548 Taku River v. Redfern Resources
• 2000 BCCA 549 Exchange Bank & Trust Inc. v. BC Securities Commission
  Court of Appeal declined to grant leave to appeal a decision of the Securities Commission refusing to permit cross-examination of Commission staff re an investigation into possible contraventions of the Act by a foreign bank, and to interfere in the Commission's treatment of affidavit evidence proffered by the bank while refusing to produce the deponent for cross-examination in B.C.
• 2000 BCCA 564 Kapelus v. UBC
  Assessment of Costs – Delivery of Notice of Assessment Application pursuant to s. 10(3) of the Court of Appeal Act for an order that the registrar’s certificate of costs be set aside and a new assessment directed. The plaintiff did not appear for the assessment before the registrar and it proceeded without her. The plaintiff claims to have never received notice as to the exact date and time of the assessment. Held: Application refused. The Court of Appeal Rules require delivery of the filed appointment. The defendants’ solicitor proved delivery of notice of the appointment. They were not required to personally serve the notice nor to prove that the documents were received.
• 2000 BCCA 569 Tilleman v. British Columbia (Claims Review Committee Arbitration Board)
  Mr. Tilleman appealed the chambers decision of Newbury J.A. that dismissed for lack of jurisdiction his appeal from a decision of the Claims Review Committee Arbitration Board.   Braidwood J.A. (for the Court) – The appeal is quashed. Newbury J.A. sitting as a single justice did not have jurisdiction to dismiss an appeal for lack of jurisdiction (Endean et al. v. A.G. (Canada) et al., (16 August 2000), Vancouver Registry, CA27451, CA27452 (B.C.C.A.). However, the panel agreed fully with the reasoning of Newbury J.A. and would also dismiss the appeal for lack of jurisdiction. The appeal was also moot since the decision of the Claims Review Committee Arbitration Board under appeal was a decision not to grant an adjournment. An adjournment had since been granted and the appellant had only to apply to the Committee to reschedule the hearing. Costs in the Chambers hearing before Newbury J.A. were to be borne by each party. In all other matters, costs were awarded to the defendants on Scale 2 because of the unreasonable amount of material that the appellant filed on complicated issues that were later dropped.
• 2000 BCCA 572 St-Amand v. Eldorado
  Application to vary order of chambers judge refusing order for indigent status because appeals found to be without merit. Panel of Court of Appeal, reviewing the order, finding no error and dismissing application to vary order of chambers judge.
• 2000 BCCA 577 Cenciarini v. Cenciarini
  Application for indigent status dismissed on the ground that there is no prospect of the appeal succeeding.
• 2000 BCCA 581 Habachuk v. Cooke
  After hearing a motion for judgment pursuant to Rule 18A, the chambers judge set an issue for hearing on the trial list: The parties were agreed that the issue could be determined on the evidence before the chambers judge. The Court of Appeal returned the matter to chambers for disposition.
• 2000 BCCA 591 Omineca Enterprises Ltd. v. British Columbia (Minister of Forests)
  Application to review order of chambers judge refusing leave to appeal from a judgment of Shaw J. dismissing two appeals from decisions of appeal board established under Forest Act in which it was alleged the cancellation of two timber sale harvesting licences failed to conform with statutory requirements.  Applicable authority when issue is whether leave should be given for a statutory appeal is not Chavez v. Sundance Cruises Corp. but Queens Plate Development Ltd. v. Vancouver Assessor, Area 09. Chambers judge's conclusion was founded on proposition that there was "no realistic possibility of success", but question here is whether there is a "substantial" question of law to be argued.  Order refusing leave discharged; leave granted only on issue of law raised in paras. 81 through 87 of Shaw J.'s reasons.
• 2000 BCCA 592 Ferguson v. Ferstay
  Application for security for costs of appeal granted in the sum of $5,000.00.   Application for security for judgment in a defamation action dismissed.
• 2000 BCCA 596 St-Amand v. Residential Tenancy Office et al.
  Application for indigent status dismissed as appeal is without merit.
• 2000 BCCA 597 Canadian Resrt Development Corp. v. Swaneset Resort Ltd.
  Special costs – withdrawal of particulars with criminal connotations not formally done until second day of trial – inference by trial judge that intentionally left to trial date – plaintiff thinking defendant knew that particulars not being pursued.
• 2000 BCCA 600 Consolidated Gulfside Resources Ltd. v. Richman et al.
  Chambers application for leave to appeal an order dismissing application for judgment under Rules 18A and 57. Leave to appeal is refused.
• 2000 BCCA 603 Moellenbeck v. TRW Vehicle Safety Systems Inc.
  CONFLICTS OF LAWS – SERVICE EX JURIS – FORUM NON CONVENIENS The plaintiff had obtained an ex parte order adding the defendant as a party to the action and had served the defendant in Michigan. The defendant sought an order setting aside service ex juris and a declaration that the court would decline jurisdiction on the basis of a limitations defense and a claim of abuse of process. Jurisdiction simpliciter was conceded. The chambers judge refused the defendant’s motion brought under Rules 13(10) and (14(6). Held: Appeal dismissed. The issues raised by the defendant on the motion were not jurisdictional in nature and were inappropriate for determination on an ex juris hearing. The real question was whether this was the proper forum for the action. The defendant would not suffer any disadvantage by having the limitations and abuse of process issues determined within the action.
• 2000 BCCA 605 Harrington v. Dow Corning Corp.
  The court by a majority dismissed this appeal from the first certification order made under the Class Proceeding Act in British Columbia, essentially for the reasons of the case management judge (para. 1 to 68). In doing so, it upheld his decision that an assessment of the risk of a breast implant was an issue common to all members of the classes he certified, the resolution of which would determine a fact necessary to the cause of action. The majority affirmed that the answer to the common question, whether silicone gel breast implants are reasonably fit for their purpose, was one capable of extrapolation to all members of the class. The majority also agreed that the risk assessment could fairly and efficiently be undertaken in a single proceeding at the first stage of a multi-stage proceeding and that a class proceeding was the preferable procedure for that assessment. The majority also agreed (paras. 69 to 101) that the existence of a common issue of fact constituted a sufficient connection to British Columbia to permit non-residents who were not implanted in British Columbia, to opt into the class proceeding.
• 2000 BCCA 609 Gubbels v. Fitterer
  Rule 37 not applicable where a dispute as to whether offer of settlement accepted.
• 2000 BCCA 617 Bankruptcy, Down, Street and Barnes
  Chambers application for security for costs. Application refused.
• 2000 BCCA 623 Gindis v. Brisbourne
  There is no basis for departing from the usual rule that costs follow the event.
• 2000 BCCA 635 Brown v. Lowe
  Chambers application to extend the number of pages in a factum. Application allowed.
• 2000 BCCA 636 Allard v. Montalban
  Chambers application for extension of time to file and service notice of appeal. Application refused.
• 2000 BCCA 641 Alberta Wheat Pool v. Northwest Pile Driving Ltd.
  For the purposes of determining whether the amount of a judgment is more or less than an offer to settle made under Rule 37(23), only pre-judgment interest owing at the date of the offer may be included. Neither pre-judgment nor post-judgment interest payable after the date of the offer is to be treated as part of the judgment for the purposes of this rule.  Here, after applying s.3 of the Negligence Act, the amount of the judgment, including pre-judgment interest to the date of the offer was less than the offer, so the parties’ entitlement to costs was determined in accordance with the apportionment of fault.
• 2000 BCCA 643 Sami's Restaurant Corp. et al. v. W. Hanley & Company Ltd. et al.
  Chambers applications for stay of proceedings and for security for costs. Applications granted.
• 2000 BCCA 647 Taylor Ventures Inc. v. van der Zwan
  Appeal allowed and matter remitted because the Chambers judge relied on statements of the respondent which were not on oath and upon which the appellant had no opportunity to cross-examine.
• 2000 BCCA 650 Bains v. Bhandar
  The successful respondent is entitled to his costs of the appeal and the re-hearing.
• 2000 BCCA 651 Kirby v. Bull Housser et al.
  Dismissal of application to extend time for appeal of summary judgment dismissing appellant’s action. There is no merit in the appeal and the extension application is dismissed in the interests of justice.
• 2000 BCCA 657 East Broadway Residents Association v. City of Vancouver
  An association incorporated to represent property owners appealed an order in the B.C. Supreme Court dismissing the association's application to quash two bylaws. In Court of Appeal Chambers the association applied for an injunction to stop property development pending its appeal, and the respondent City and property owner applied for security for costs. The injunction was refused, and security for costs was ordered. The association applied to vary both Chambers orders. The applications were dismissed. Neither Chambers judge erred in law, and there was no basis for the Court to interfere with the judges' exercise of discretion.
• 2000 BCCA 667 Kelly v. Insurance Company of America
  Chambers application for leave to appeal. Application refused.
• 2000 BCCA 670 Ainsworth Lumber Co. Ltd. v. AG of Canada
  Chambers applications for leave to appeal and continuation of stay. Leave to appeal is refused. The costs of the applications are to be payable by the appellant.
• 2000 BCCA 672 Haldorson v. Coquitlam (City)
  This is an application to a three judge division of this Court to review an order of a chambers judge of this Court refusing to make an order under s. 25(2) of the Court of Appeal Act permitting the appellant to proceed with an appeal. The standard to be applied on such a review, and the standard to be applied on an application under s. 25(2) are both discussed. The application for review is dismissed.
• 2000 BCCA 673 Deputy M.N.R. v. Tioseco
  The issue on the appeal from an application for a jeopardy order under s. 225.2(2) of the Income Tax Act is whether the appeal may be heard without notice to the respondent. The Court, by a majority, declined to hear the appeal ex parte.
• 2000 BCCA 676 Trahan v. R.F. Hauser Shows Ltd. et al.
  Application by respondents for security for costs of appeal dismissed.
• 2000 BCCA 681 Gourmet Gallery Inc. v. Pacific International Development Corp.
  An extension for leave to appeal was granted on the basis a division of the court might find in new evidence reason to set aside judgment for the plaintiff. The other applications for extension of time to appeal were dismissed because no merit had been shown to the appeal.
• 2000 BCCA 684 BCIT (Student Association) v. BCIT
  The matter of costs in the Supreme Court of British Columbia was remitted to that court.  It was ordered there be no costs of the appeal as success was divided.
• 2000 BCCA 694 Kemp v. Metzner
  Referral from Registrar for directions on request to "stay" entry of order.
• 2000 BCCA 700 JLA & Associates Inc. v. Kenny
  Leave to appeal from an order fixing security for costs granted. Those reasons are of no precedential value.