B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

CONSTITUTIONAL / ADMINISTRATIVE 2000

• 2000 BCCA 62 BCIT (Student Association) v. BCIT
  In this case, the chambers judge dismissed a petition for an order setting aside an arbitration decision. The applicants argued that the arbitrators had committed an arbitral error as referred to in section 30 of the Commercial Arbitration Act. The case arises from a lease between BCIT and the Student Association for space in the Campus Centre Building. Pursuant to the lease, the Student Association sought BCIT's approval for two new proposed uses of the space. BCIT refused this approval and the matter was sent to arbitration. A majority of the three-person arbitration board found that BCIT had reasonable grounds under the lease to refuse approval. On appeal, the Student Association argued, as it had before the chambers judge, that the arbitrators had exceeded their jurisdiction in wrongly applying a clause of the lease. Saunders J.A., for the Court, dismissed the appeal. The error allegedly made by the majority of the arbitration board is an alleged error in the interpretation of the lease contract, not an error in jurisdiction. In the event the Student Association is correct that the arbitration board incorrectly interpreted the lease, then such an error would be an error of law on the face of the award. Pursuant to s.30(3), that question is excepted from the review contemplated by s.30 and may only be argued in the event that leave is granted under s.31 of the Act. The issue of leave has yet to be fully heard by this Court and has been referred to a five-judge panel.
• 2000 BCCA 66 Hayes Forest Services Ltd. v. Pacific Forest Products Ltd.
  Section 25 of the Timber Harvesting Contract and Subcontract Regulation, B.C. Reg. 22/96 describes the mandate of an arbitrator to resolve rate disputes between a licence holder and a contractor under replaceable contracts. The arbitrator must take an objective-prospective approach in setting the rate for the year, but in setting the rate he may consider evidence as to actual costs incurred by the contractor in the contract year. The regulation gives the arbitrator a broad discretion to take into account any data or criteria he considers relevant.
• 2000 BCCA 67 Hayes Forrest Services Ltd. v. TimberWest Forest Ltd.
  The arbitrator of a rate dispute under the Timber Harvesting Contract and Subcontract Regulation is in a position similar to a surrogate negotiator for the parties, attempting to replicate what they would have done acting reasonably in the circumstances. However, the arbitrator must take an objective approach and act within the limits imposed by s. 25 of the Regulation.
• 2000 BCCA 89 British Columbia Securities Commission v. Wiebe
  In proceedings by the Securities Commission against a "witness" to enforce a subpoena issued by an investigator appointed under the Securities Act, the witness having asserted that the subpoena was or might have been issued for an improper purpose and wanting disclosure of documents in the investigation with to a view to establishing such purpose, the court below ordered disclosure. Appeal allowed. Nothing in the evidence justified an inference of an improper predominant purpose.
• 2000 BCCA 163 Westbank First Nation et al. v. BC Labour Relations Board et al.
  Labour law – Provincial jurisdiction – Extended care facility operated by a Band-owned company on reserve  The B.C. Labour Relations Board certified the B.C. Nurses’ Union and the B.C. Government Employees’ Union for bargaining units at the appellants’ extended care facility on reserve lands. A substantial majority of the residents were non-aboriginal and the facility was intended to be operated for profit. A petition to quash the certification orders by the Board on the ground that the facility was within federal labour relations jurisdiction, was dismissed in B.C. Supreme Court. Held: On further appeal that the appeal should be dismissed for the reasons given by the Chambers judge.
• 2000 BCCA 166 Nanaimo Bingo v. AGBC
  Appeal allowed from an order containing an inappropriate direction in a constitutional case.
• 2000 BCCA 206 Grabber and Janes v. Stewart
  A petition to enjoin a law firm from acting against the petitioners because the senior partner of the law firm was married to a solicitor who acted for the petitioners was dismissed by a judge in chambers, and that dismissal was affirmed in this Court. The Law Society rules prohibit lawyers from disclosing confidential information to anyone, including spouses, and in the absence of evidence to the contrary there is no presumption or inference that a lawyer will breach his or her duty of confidentiality. There had never been a solicitor-client relationship between the petitioners and the respondent law firm, and the principles expressed in Martin v. MacDonald Estate, [1991] 1 W.W.R. 705 (S.C.C.) should not be extended to apply to the facts of this case.
• 2000 BCCA 219 Dyck v. Lohrer
  In this case, both the plaintiff and the tortfeasor are workers under the provisions of the Workers Compensation Act, and thus enjoy immunity from tort actions. At issue on this appeal was whether s.10 of the Act bars the plaintiff’s recovery of damages from a vicariously liable defendant who is a stranger to the Act. Saunders J.A., for the Court, held that s.10(7) did not apply in these circumstances. Section 10(7) bars the recovery of damages only in circumstances where there are joint tortfeasors, one of whom enjoys immunity under the Act. As that is not the case on this appeal, the plaintiff can recover damages from the vicariously liable defendant. This result applies even if the plaintiff is found to have been contributorily negligent.
• 2000 BCCA 242 Glacier View Lodge Society v. British Columbia (Minister of Health)
  Appeal from judgment on summary proceeding directing submissions as to terms of notice to be given by Minister prior to making an order compulsorily amalgamating the Glacier View Lodge Society with the Comox Valley Community Health Council, and dismissing claim as moot. The Minister had accepted the recommendations of a report of the Honourable Mary Collins and announced that compulsory amalgamation would not be proceeded with. Court of Appeal addressed question of whether there is still a live issue as long as the impugned legislation remains. Appeal dismissed – the courts are not always the best place to resolve issues when "the remedy sought is discretionary and a political resolution is a practical possibility".
• 2000 BCCA 320 Brentwood Pioneer Holdings Ltd. v. B.C. (Provincial Agricultural Land Commission)
  Appeal from an order dismissing a Petition brought under the Judicial Review Procedure Act to quash a 1974 decision made under the Land Commission Act, S.B.C. 1973, c. 46, to include the appellant's lands in the Agricultural Land Reserve and a 1998 decision of the Provincial Agricultural Land Commission refusing to remove the lands from the ALR, is dismissed. The 1974 decision could not be challenged because of subsequent legislation which retroactively ratified the designation of the lands in issue as "agricultural lands" to be included in the ALR. The 1998 decision could not be successfully challenged on the several grounds raised.
• 2000 BCCA 342 Paulus v. Surrey Memorial Hospital
  Appeal by Hospital from judgment ordering that petitioner/respondent be included in call roster after Medical Appeal Board decided not to reverse refusal to appoint petitioner to the Associate Medical Staff of the Hospital, but appointed him to the Consulting Medical Staff (an appointment he already held) and "encourage[d] ... Staff to use his services to share in weekend and holiday coverage", words which are merely precatory, as the Board had no jurisdiction to make them compulsory. S. 37(2) of the Hospital Act does not give a Medical Appeal Board power to vary bylaws promulgated and approved by the Minister under s. 2 of the Hospital Act.  Appeal allowed, order below set aside and petition dismissed.
• 2000 BCCA 351 MacMillan Bloedel Ltd. v. Min. of Forests
  The Forest Act by s.105 requires stumpage to be paid according to policies and procedures approved by the Minister. The policies and procedures at issue in this case are contained in the Coast Appraisal Manual in force on 1 April 1997. When a mathematical error is made in the calculation of stumpage, that Manual by s-ss. 2.3 and 2.4 require a "reappraisal" to be made based on the data available at the date of the error's discovery and correction. A "correction" of the error based on data used in the erroneous calculation is not contemplated by the manual.  Whether notice has been given of a probable error in accordance with the manual's requirement is essentially a question of law, reviewable on the standard of correctness.
• 2000 BCCA 360 Greyhound Canada Transportation Corp. v. Brzozowski
  The Workers’ Compensation Board decided that fishermen returning from work on a vessel out of Prince Rupert through to their homes in Victoria by regularly scheduled bus were not in the course of their employment. They were not barred by s. 10 of the Workers’ Compensation Act from bringing an action for personal injuries. The bus company applied for judicial review on the ground that the decision of the Board was patently unreasonable. The petition was dismissed by a Supreme Court judge in Chambers. Held: On further appeal the decision of the Board was not patently unreasonable and the appeal was dismissed.
• 2000 BCCA 376 Tilleman v. British Columbia (Claims Review Committee Arbitration Board)
  No appeal lies to BCCA from a decision of a Claims Review Committee constituted under the Long Term Disability Plan pursuant to the Public Service Benefit Plan Act for non-union employees of the Province. Application for the quashing of the appeal granted.
• 2000 BCCA 378 Omineca v. Minister of Forests
  Application for leave to appeal denied from decision upholding a decision of Forest Appeal Board. Court finding proposed appeal having no possibility of success.
• 2000 BCCA 392 RCMP v. Christiansen
• 2000 BCCA 395 Northern Mountain Helicopters Inc. v. WCB
  The Workers' Compensation Board and the Attorney General of British Columbia appeal a declaration that the occupational health and safety of the ground crew employed in the petitioner's heli-logging operation is within federal jurisdiction. Held: Appeal dismissed for the reasons given by the Chambers judge below.
• 2000 BCCA 400 R. v. Real Estate Council of BC
  Dismissal of appeal by real estate license against preliminary decision of Commercial Apeals Commission. The Commission had found neither jurisdictional error or abuse of process by Real Estate Council in a disciplinary hearing.
• 2000 BCCA 407 Casamiro Resource Corporation v. British Columbia
  Appeal from decision of Expropriation Compensation Board awarding compensation of $375,000.00 and interest for expropriated Crown granted mineral claims. Board entitled to reject method of valuation in expert evidence as "speculative" and unsuitable to property never in commercial production; Board's failing to take into account values of claims other than 1984 share purchase was not reversible error - no direct evidence given as to whether payments of 1945 transaction were paid; Board did not totally disregard evidence of approval of expenditures. Appellants claimed that Crown barred them from obtaining evidence regarding quality and quantity of minerals present in the Claims. Armory v. Delamirie (1722), 1 Str. 505; 93 E.R. 664, has no application here as the Crown was not a wrongdoer. "Having expropriated the property, it had a legal right to refuse entry to the appellant." Appeal dismissed.
• 2000 BCCA 456 B.C. (Minister of Forests) v. Canadian Forest Products Ltd.
  Canfor appeals a decision that an appeal board, constituted under the Forest Act, on a review of a stumpage appraisal, exceeded its jurisdiction by effectively overturning a Ministry policy of mandatory deciduous utilization. Held: Appeal dismissed. Under the Forest Act, the Board is obliged to apply the policies and procedures approved by the minister, which in this case are set out in the Interior Appraisal Manual. On stumpage appeals, the Board must accept the cutting permit as the basis for the stumpage appraisal and is not permitted to embark on an inquiry as to the legality or fairness of the utilization decision made by the District Manager. That decision can only be considered by way of a judicial review.
• 2000 BCCA 519 Chamberlain v. Surrey School District #36
  Judicial review – School board resolution – School Act s. 76 – Interpretation of "strictly secular" and "highest morality" On appeal from a chamber’s judgment quashing a resolution of the Surrey School Board not approving three books as learning resources for K-1 classes on the ground that the decision not to approve was made upon religious reasons. Held, allowing the appeal, religious influence was not a valid ground for quashing the resolution and strictly secular could not be interpreted to exclude religiously informed positions from influencing school board decisions. The resolution was not discriminatory or inconsistent with the "highest morality" to be inculcated in the public schools.
• 2000 BCCA 539 Cheslatta Carrier Nation v. British Columbia
  Upholds dismissal of action seeking a declaration as to the Cheslatta’s asserted fishing rights. The absence of any allegation, in the pleadings, of any violation or threatened violation of the asserted rights meant that there was no "live controversy"; thus the court below properly exercised its discretion under R. 19(24).
• 2000 BCCA 558 Sowa v. Canada (National Parole Board)
  The appellant raised a number of procedural grounds to attack his continued detention by the Parole Board under s. 129(2)(a)(ii) of the Corrections and Conditional Release Act. His application for habeas corpus on these grounds was dismissed by the court.
• 2000 BCCA 612 Keith-Murray v. Adult Forensic Psychiatric Services
  Appeal from Review Board’s refusal of an absolute discharge. Held: The Board’s decision conformed with the principles expressed in Winko v. British Columbia (Forensic Psychiatric Institute), [1995] 2 S.C.R. 625 and was not unreasonable. Evidence supported the finding of significant risk of serious harm on the basis that the appellant lacks sufficient insight into his mental illness.
• 2000 BCCA 642 Marchand v. Canada (Registrar, Indian and Northern Affairs)
  Section 6(1)(a) of the Indian Act, R.S.C. 1985, c. I-5, states that a person is entitled to be registered on the Indian Register if that person was registered or entitled to be registered immediately prior to April 17, 1985. Ms. Marchand was registered as of that date, although her name should have been deleted under the prior legislation as a result of her marriage to a person who was not so registered. The chambers judge overturned a decision of the Registrar purporting to delete Ms. Marchand from the Indian Registrar and from the Okanagan Band List. The Registrar appealed. Held: Appeal dismissed. The chambers judge properly found that the de facto registration of Ms. Marchand on April 17, 1985 brought her within s. 6(1)(a) of the Act, and also entitled her to registration on the Okanagan Band List.
• 2000 BCCA 653 Dennis v. British Columbia (Supt. of Motor Vehicles)
  In reviews of driver’s license suspensions under the Motor Vehicle Act, the adjudicators used their own expertise to extrapolate the blood alcohol level determined some time after the individual was in care and control of a motor vehicle, to the time he or she was in care and control of the motor vehicle. On judicial review, the chambers judge found the adjudicators erred in using their own expertise as a substitute for evidence and, as a remedy, revoked the suspensions. The Superintendent of Motor Vehicles appealed. Held: the behaviour of alcohol in the body was not a notorious fact of which notice could be taken. Evidence was required and the evidentiary gap could not be filled by the adjudicator’s own expertise. However, the remedy of revoking the suspensions assumed the function of the tribunal. The decision to revoke the suspensions was set aside and the matters were remitted to adjudication under the Act.