B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

REAL PROPERTY 2000

• 2000 BCCA 467   Orange Julius et al v. Surrey et al 

A fire which occurred in a shopping mall was alleged to cause property damage and business interruption losses to tenants in the mall. The fire was alleged to originate in a Christmas display erected by others at the direction of the landlord in a common area of the mall. Clauses in the tenant's lease agreements required them to insure against fire in both their and the landlord's names, and to waive recourse and rights of subrogation against the landlord.

The tenants sued those alleged to be responsible for the erection of the "faulty" Christmas display, as well as the municipality where the mall was located. The defendants brought third party proceedings against the landlord and some of its employees. The landlord also sued the same defendants (other than the City) and the defendants again brought third party proceedings against the landlord and its employees.

On summary trial under Rule 18A the summary trial judge held that the landlord was protected against claims for contribution and indemnity by the lease clauses requiring the tenants to insure for the landlord's benefit. The judge held that the employees, however, were not protected by the insurance clauses as they were not parties to the leases. And he held that the City's third-party claim against the landlord could not be maintained as there was no civil cause of action in the City for breach of its bylaws.

On appeal, the Court affirmed the decision that the landlord was protected from claims by the defendants for contribution and indemnity by reason of the insurance clauses in the lease. The Court also affirmed the decision that there was no cause of action in the City for breach of its bylaws.

However, the Court allowed the employees' appeal holding them entitled to the benefit of the insurance clauses in the leases, applying the principle stated by the Supreme Court of Canada in London Drugs Limited v. Kuehne & Nagel International Ltd., and distinguishing and declining to follow Greenwood Shopping Plaza v. Neil J. Buchanan Ltd..

• 2000 BCCA 5    Ross v. Assessor of Area #10 - Burnaby/New Westminster

The chambers judge in the decision appealed from, held that otherwise similar properties having different zoning should be assessed at the same value. The property at issue was zoned C-4, which permitted both residential and commercial uses. Nearby and otherwise similar properties were zoned RM-6 which permitted only residential uses. The subject property received a higher assessment than did the nearby properties on the basis only of the different zoning. The property owners claimed this violated the principle of equity in taxation. Saunders J.A., for the Court, allowed the appeal. Similarity is a spectrum. While zoning either may overstate or may limit the practical uses of the property, it is a factor which may influence the market value of land. As such, zoning may be a basis on which to assess otherwise similar parcels differently, provided there is evidence that this dissimilarity is reflected in the market value. The Assessment Appeal Board’s conclusion that the market would differentiate in value between the differently zoned land could reasonably be supported by the evidence and the Court, therefore, could not interfere.

• 2000 BCCA 6    Henderson v. Henderson

REAL PROPERTY - The appellant and respondent, when mother-in-law and daughter-in-law, purchased in joint tenancy a small house intending that the appellant should live there and upon her death the property would accrue to the respondent by survivorship. They entered into a written agreement to that effect which had a ten year term. Before the term expired, the respondent was divorced from the appellant’s son and he was awarded an interest in the property under the matrimonial proceedings. At his instigation, the appellant severed the joint tenancy. The parties were unable to agree on matters concerning the property but neither sought to invoke the remedy of partition and sale. The Court fashioned a remedy founded on the doctrine of unjust enrichment under which the mother-in-law may remain in the house for her lifetime and the daughter-in-law is to be compensated for being kept out of possession.

• 2000 BCCA 19     Lai et al. v. Kmat Canada Co.

Commercial Tenancy - Long-term lease - Right of termination by landlord  The tenant Kmart became a wholly-owned subsidiary of the Hudson’s Bay and stopped carrying on its retail department store business under the Kmart name. The store was closed for two months for renovations and reopened under the Zellers’ name. The tenant advertised a "store closing sale" before the store was closed for renovations. The landlord contended that the tenant had discontinued its store operation within the meaning of a clause in the lease entitling the landlord to terminate the lease on 60 days’ notice in such event. Held: By a majority, the actions of the tenant in closing for renovations and changing the name of its store from Kmart to Zellers did not amount to a discontinuance of the store operation. The closing sale was for the purpose of clearing inventory before the renovations and the landlord was under no misapprehension that the store would be closed permanently. Hall J.A. dissenting was of the opinion that the actions of the tenant did amount to a discontinuance of the store operation.

• 2000 BCCA 23    Top Line Industries Ltd. v. International Paper Industries Ltd.

Leases - Illegality - Occupation Rent: A claim for occupation rent by the purported lessor under a lease previously found to be illegal was dismissed on an application of the general rule that in cases of illegal contracts, ‘the loss lies where it lies.’

2000 BCCA 28    CIBC Mortgage Corporation v. Branch et al.
The chambers judge refused to apply the equitable remedy of marshalling and compel the respondent to obtain payment of its mortgage by way of its judgment on Ms. Branch's personal covenant. She also refused to order that the appellant was entitled to execute against the personal assets of Ms. Branch by way of subrogation. The chambers judge interpreted the terms of both the guarantee and the mortgage and determined that both expressly excluded the appellant from seeking recovery or payment against Ms. Branch's personal assets. The court dismissed the appeal. The chambers judge appears to have overlooked a term of the appellant's mortgage that preserved its equitable remedies. Nevertheless, it would be inequitable to order marshalling in this case because the restriction of recourse provision in the appellant's mortgage expressly excludes the appellant from seeking recovery or payment from Ms. Branch's personal assets.

• 2000 BCCA 45    Chiu v. HMTQ

Property Purchase Tax Act - s. 3(2) -Reference in s. 3(2), an "aggravating" provision, to "the same land" applies to aggregate several fractional undivided interests purchased in one lot. The assignment of a unique reverted number to each interest does not affect this point of statutory construction.

2000 BCCA 53    Waugh v. HMTQ
Property Purchase Tax Act- construes "parcel of land" in s. 3.21 in accordance with definition of "parcel" in Land Title Act, as not including undivided interest in a larger lot purchased by the petitioner.

2000 BCCA 71    Ivison et al. v. Schifferns
Under the Partition of Property Act, the chambers judge ordered a sale of property jointly owned by the parties, with the net proceeds to be divided according to the title. The issue on appeal was whether this was the proper apportionment of the proceeds. Saunders J.A., for the Court, allowed the appeal. Section 7 of the Law and Equity Act requires a trial judge to recognize and take notice of all equitable claims. Here, the petitioners had contributed all the cash ($57,000) required to purchase the property and the respondents had made mortgage payments and paid other property related expenses since the 1995 purchase. In the circumstances, the criteria for unjust enrichment were established. Taking into consideration the respondents' contribution by paying for the mortgage and other outgoings, the net sale proceeds should be paid 1/4 to the respondents and 3/4 to the petitioners.

• 2000 BCCA 91  549196 B.C. Ltd. v. Kamloops (City)
  Municipal Act s. 933 – development cost charges – new capital cost burdens.   The City of Kamloops appealed a declaration that development cost charges were not payable on the petitioner’s proposed development. The property in question had been vacant for 20 years, but prior to that had been occupied by a hotel. The chambers judge held that the exception contained in s.933(3)(a) of the Municipal Act applied. As compared to the original development, the proposed development imposed no new capital cost burdens on the City. Held: Appeal allowed. The appropriate point of comparison is the most recent use of the property, active or otherwise, prior to the application for a building permit.
• 2000 BCCA 104    Claridge Development (Hawthorne) Ltd. v. British Columbia
  These are supplementary reasons affirming reasons delivered 1 December 1999. At issue was the interpretation of section 13(3)(1) of the Property Purchase Tax Act.
  
  
• 2000 BCCA 107    Langley Crossing Shopping Centre v. North-West Produce Ltd. et al.
  Landlord and tenant – fundamental breach – termination – notice of intention to seek prospective damages. The issue on appeal was whether a landlord, having terminated a lease by repossessing after a breach, is entitled to recover damages sustained for the balance of the lease term. The trial judge held that sufficient notice had been given of the landlord’s intention to seek prospective damages and on this basis the damages were recoverable. Held: Appeal allowed. Upon fundamental breach of a lease by a tenant the landlord may elect to: (1) maintain the relationship of landlord and tenant and insist on performance by suing for rent or damages; (2) terminate the lease retaining the right to sue for rent accrued due or for damages to the date of termination; (3) re-let the property on the tenant’s account; or (4) terminate the lease with notice of intention to claim for damages for loss of the benefit of the lease over its unexpired term. These remedies are mutually exclusive. In this case, the demand letters asserting the landlord’s intention to exercise generally its rights under the lease did not constitute timely or sufficient notice of its election to seek prospective damages.
  
• 2000 BCCA 121    Assessor of Area #10 - Burnaby/New Westminster v. Intracorp Developments Ltd. et al.
  Assessment Act – tax classification – "used for residential purposes" – construction. The primary question on appeal was at what stage during the construction of a residential project can it be said that the land is used for residential purposes within the meaning of the classification scheme in regulations pursuant to the Assessment Act. The project at issue was a mixed-use development with a designated split of 70% residential and 30% commercial. As of the date of assessment 25% of the excavation was completed. The Assessor classified the property entirely as Class 6 ("business and other"). The Assessment Appeal Board, applying a broad interpretation of the phrase "used for residential purposes" reclassified the property as 70% Class 1 ("residential") and 30% Class 6. The chambers judge affirmed the original classification of the Assessor. Intracorp appealed. Held: Appeal allowed; decision of the Board restored. Once a project has entered into the construction phase, it is a question of fact whether the development manifests a commitment to a residential as distinct from any other use. Where, as in this case, the zoning restricts the use to residential purposes or mixed use with a residential component, the commencement of construction marks the beginning of residential use.
  
• 2000 BCCA 142    CMHC v. North Vancouver (District)
  Municipal Law – Municipal Act – zoning – land use – municipal purpose – standard of judicial review The petitioner CMHC alleged at first instance that the District Council, in enacting bylaws rezoning CMHC land previously designated for residential development to "Parks, Recreation, and Open Space", acted in excess of its statutory jurisdiction, in bad faith and without a proper planning purpose, and that the bylaws were unlawfully discriminatory. The chambers judge found that the bylaws were passed for the legitimate municipal purpose of regulating land use. As this was within the powers granted to the District under the Municipal Act and on the further finding of no improper motive or discrimination, she refused to set aside the bylaws. CMHC appealed. Held: Appeal dismissed. The chambers judge applied an appropriate standard of review. The majority reasons in Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 do not require a "narrow pro-interventionist approach" be taken on judicial review of a council’s exercise of its powers to enact bylaws for municipal purposes. The chambers judge did not err in applying the legal principles laid down in the decision of this court in Macmillan Bloedel v. Galiano Island Trust Committee (1995), 10 B.C.L.R. (3d) 121, a decision which is not confined to issues arising under the Island Trusts Act and which dealt with similar factual issues. While the rezoning of the property effectively restricted residential development and limited the use to which CMHC could put its land, it was not unlawful and was within the District’s statutory authority. The exclusion from the rezoning bylaws of individually owned lots acquired for residential purposes constituted discrimination but was not unlawful as there was a reasonable basis for the differential treatment. The statutory requirements of the Municipal Act in respect of the adoption of a community plan and notice were complied with.
  
• 2000 BCCA 143    A.L. Scott Financial (Newton) Inc. v. Vancouver City Savings Credit Union
  Commercial tenancy – Rule 18 – mandatory injunction Appeal of a mandatory injunction requiring the appellant VanCity to continue its business operations for the duration of the lease. Application for injunction brought under Rule 18 and Rule 45. Held: Appeal allowed. At issue was an application for a permanent mandatory injunction. The main authority relied on by the chambers judge is distinguished on the basis that it was an application for a grant of an interlocutory injunction: Bentall Properties Ltd. v. Canada Safeway Ltd., [1988] B.C.J. No. 775 (Q.L.) (S.C.). The issue of balance of convenience does not arise in relation to an application for a permanent injunction. Where the plaintiff is seeking a mandatory injunction the primary issue to be resolved is whether damages would be an adequate remedy. The procedure adopted in this case was misconceived.
  
• 2000 BCCA 217    Assessor of Area #10 v. SCI Canada Ltd.
  This appeal decides that a funeral home and a crematorium are incidental to a place of burial for the purposes of the Cemeteries Act and as such are exempt from real property assessment and taxation.

• 2000 BCCA 231    Sun Life Assurance Co. v. Ritchie
  These proceedings require an interpretation of s.13 of the Rent Distress Act which imposes a penalty in favour of the landlord against the tenant who fraudulently removes the tenant's personal property from the leased premises. This appeal decides that personal property in the section means goods and chattels and consequently is restricted to tangible personal property. It also decides that the fact that the tenant has assigned a security interest in the goods and chattels to a bank under the Bank Act does not defeat the penalty provision. The goods are still the property of the tenant for the purposes of s.13.
• 2000 BCCA 237    Yeganegi v. Lee
  A vendor, upon the purchaser repudiating or failing to complete by the time specified, is under the wording of the standard Real Estate Board of Greater Vancouver interim agreement entitled to retain the deposit.
• 2000 BCCA 293    365175 B.C. Ltd. v. Malamute Recreations Ltd. et al.
  Landlord under a commercial lease brought an action against the principals of the corporate tenant based on a clause in an Indemnity Agreement they had executed contemporaneously with the execution of the lease. The Indemnity Agreement provided that the individual defendants would enter into a new lease upon default by the tenant. The landlord's appeal from the dismissal of its claim was dismissed on the ground that the landlord had not given reasonable notice to the individual defendants and was pursuing inconsistent remedies.
• 2000 BCCA 295    KBK No. 138 Ventures Ltd. v. Canada Safeway Limited
  The trial judge concluded that a contract between the parties for the purchase and sale of land in Vancouver had been frustrated by a zoning change that dramatically reduced the maximum floor space allowable. Safeway was ordered to return a $150,000 deposit. The appeal was dismissed. The zoning change transformed the contract into something totally different than what the parties intended, thereby satisfying the test for "frustration."
• 2000 BCCA 301    Coquitlam (City) v. Construction Aggregates Ltd.
  Prowse J.A.: Appeal Dismissed. Appellant challenged the validity of the City of Coquitlam’s Soil Substance Removal Bylaw No. 1914, 1988, which allowed the City to collect a volumetric fee for each unit of soil removed by the Appellant. For substantially the same reasons this Court gave in Allard Contractors Ltd. v. Coquitlam (District) (1991), 61 B.C.L.R. (2d) 299, affirmed by the S.C.C. on different grounds, the bylaw was valid under section 92(A) of the Constitution Act, 1867.
• 2000 BCCA 302    Mission City Holdings Ltd. v. Jim Pattison Industries Ltd.
  In construing the plain, ordinary and popular meaning of words in a lease, the interpreter is not bound to apply dictionary definitions but can rely on his or her sense of the meaning in common usage.
• 2000 BCCA 305    418486 B.C. Ltd. v. Pyxis Investment Corporation et al.
  The property was sold for $5.2M. - that fund is held by a receiver in foreclosure action. The mortgage debt is now over $17M. The plaintiffs, who are lien claimants and other creditors, appeal the decision refusing to declare the mortgage unenforceable against them and now seek a stay of the payment of the fund to the mortgagee. If fund paid out, plaintiffs have no practical hope of recovery. STAY ORDERED on terms that plaintiffs provide security for costs of appeal.
• 2000 BCCA 312    Sound Contractuing Ltd. v. City of Nanaimo
  The City of Nanaimo, having previously had what it regarded as a bad experience with the low bidder on a new contract decided that it would receive better value by awarding a construction contract to the second low bidder. The trial judge awarded damages to the low bidder. Held, allowing the appeal, that a recent decision of the Supreme Court of Canada, decided since the date of the trial judgment, authorized the City to make a "nuanced" choice in awarding the contract to the second low bidder.
  
• 2000 BCCA 317    British Columbia v. Baron Entrprises Ltd.
  These appeals are from an order of a judge setting aside an order of a master in a foreclosure action approving the sale of the Tranquille Lands to the highest bidder in a sealed bid process. The Province as mortgagee was given conduct of the sale subject to court approval. The matter came before the master on an application by the Province for approval of a private sale to the respondent 592123 B.C. Ltd. ("592") at $492,000.00. The City of Kamloops was owed about $1M in property taxes but its interest ranked second to the considerable mortgage debt owed to the Province. The City had, however, received assurances from the Province that its taxes would be given priority from any proceeds. Only when the application for approval of sale to 592 was served did the City learn that the Province did not intend to honour its assurances and was willing to sell at a price far below the listing price of $3M. When the application before the master, the City applied for an adjournment to consider its options which it said included the possibility of putting in its own bid. The master adjourned the hearing and directed sealed bids. Of the seven bids submitted, the highest was that of the appellant Wilderness Tours at $1.15M and the second was that of 592 at $1.1M. The master rejected 592’s submission that its bid should be approved because of its proximity to the highest bid and in consideration of the money and time expended in negotiating the private sale. 592 appealed the master’s decision. Baron Enterprises, who had put in the third highest bid at $850,000.00 with an additional promise to consider turning over part of the land for public purposes, also appealed.   In allowing 592’s appeal the judge accepted the submission that the City in applying to adjourn the initial application had committed an abuse of process. The judge also found that the master was bound to give effect to an assurance to 592 by a property agent of the Province that the application for approval would be kept "confidential" until the hearing commenced. The judge held that to maintain the integrity of the system in relation to judicial approval of sales the court should approve the sale to 592 at the original price of $492,000.00.   HELD: No part of the judge’s order is supportable in fact or law. The City acted properly in protection of its interests. Given the facts as they appeared at the first hearing, the master had no realistic choice but to adjourn. The order for sealed bids was fully in accordance with the long established practice of the court. The alternative position of 592, i.e. that the master should have approved its sealed bid, is not accepted. The appeal by Baron Enterprises seeking to have the matter remitted to the chambers judge to assess the relative merit of all bids or to order a new process is dismissed. The appeals by the City and B.C. Wilderness seeking to set aside the judge’s order and restore that of the master are allowed. The case is remitted to the court below for any necessary directions for implementing the sale to B.C. Wilderness.
• 2000 BCCA 328    Squamish (District) v. Great Pacific Pumice Inc.
  Section 14(2) of the Interpretation Act does not operate to exempt from municipal zoning bylaws, land owned by the Crown but leased to a private party.
• 2000 BCCA 338    Hansen v. British Columbia
  Expropriation – Limitation – Expropriation Act s. 20 – Estoppel On an appeal from a decision of the Expropriation Compensation Board holding that the Ministry of Transportation and Highways was estopped from relying on the one-year limitation period in s. 20 of the Act because of a representation from the Ministry’s negotiator to the claimant’s solicitor that the limitation period would run from the date of transfer of possession, Held: The appeal should be dismissed. There was evidence to support the facts found by the Board and on those facts the Board was correct in concluding the Ministry was estopped from asserting that time commenced to run before the possession date.

• 2000 BCCA 344    Kamloops (City) v. Northland Properties Ltd.
  Kamloops by-law limiting use of building to multiple family residential use did not permit use of apartment building as part of appellant’s motel operation (i.e., for short-term or overnight stays).

• 2000 BCCA 352    A and G Investment Inc. v. Golden View Development Corp.
  Appeal from an order in effect approving a "back-up sale" in a foreclosure proceeding dismissed.

• 2000 BCCA 365    Langley Lo-Cost Builders Ltd. v. 474835 Ltd.
  In negotiations to settle a mortgage foreclosure action it was proposed that the parties jointly develop the property. Terms were exchanged in writing and signed. The terms included the repayment of the mortgage out of the proceeds of development. The question on the main appeal was whether the terms constituted a completed agreement or just a stage in the negotiations. It was held, reversing the trial judge, that the agreement was a completed agreement. The trial judge had ruled that the interest provision of the mortgage offended against section 8 of the Interest Act and was void. It was held on the cross appeal that the interest provision was valid and enforceable.

• 2000 BCCA 377    Stasiuk Estate v. West Kootenay Power Ltd.
  Statutory right-of-way – Whether fibre optic cable installed under licence within terms of original grant of easement
  West Kootenay Power licensed Shaw Cable to install a fibre optic cable by attachment to poles on West Kootenay Power’s power line across Stasiiuk’s lands. The trial judge dismissed Stasiuk’s action for trespass on the ground that the licence to Shaw was within the terms of the right-of-way easement. Held: The appeal should be dismissed. The easement was a statutory right-of-way within s. 218 of the Land Title Act and the terms of the grant permitted West Kootenay Power to allow Shaw to install a fibre optic cable under licence.

• 2000 BCCA 382    Doll & Penny's Cafe Ltd. v. City of Vancouver
  Doll and Penny's Café alleged in this appeal that Vancouver Bylaw 6.2, which sanctions restaurant owners who "permit" smoking in restaurant premises, was an improper delegation of enforcement under the Vancouver Charter. The appeal was dismissed.

• 2000 BCCA 415    Pitt Polder Preservation Society v. Pitt Meadows (District)
  Appeal from dismissal of petition seeking order quashing bylaws rezoning lands for mixed-use commercial and residential development. Issues of whether duty of procedural fairness rests on local government to make available to public reports/documents relevant to proposed land use or zoning bylaw in advance of public hearing and whether absence of evidence of prejudice will defeat a complaint of procedural unfairness when the complaint is based on failure to make relevant reports and documents available to the public prior to the public hearing.  Appeal allowed; land use and zoning bylaws set aside.

• 2000 BCCA 524    SME Holdings Ltd. v. Cappeech Coffee Corp.
  Appeal from judgment declaring defendant tenant's option to renew lease was not exercised, ordering vacant possession to the plaintiff and entitling it to a writ of possession, and awarding special costs in favour of the plaintiff. Time when tenant must not be in default of terms of lease is at the date of the expiry of the existing term. Trial judge (correctly) did not decide question of whether the defendant/appellant gave notice to renew conforming with the requirement in the lease as it raised an issue of credibility unsuitable to be determined on application under Rule 18. Appeal allowed, order below set aside, application dismissed, and no award of costs made in this Court or the court below.
• 2000 BCCA 525    Skeetchestn Indian Band et al. v. Registrar of Land Titles, Kamloops
  A certificate of lis pendens founded on a claim of aboriginal title is not registerable under the Land Title Act.
• 2000 BCCA 528    CIBC v. Shire et al
  The Bank appeals an order made after a summary trial dismissing its petition for foreclosure of a mortgage granted by the respondents Shire as collateral security for their guarantees of the indebtedness of a third party ("Vogue") to the Bank. The petition was dismissed at trial on the ground that the Bank, by permitting the outstanding indebtedness of Vogue to rise above the agreed limit upon the line of credit without the express consent of the guarantors had unilaterally varied the contract with the result that the guarantees were discharged. HELD: Appeal allowed. The Bank is entitled to an order nisi of foreclosure. The language of the guarantees permitted the Bank to take certain steps, including increasing Vogue's indebtedness, without jeopardizing the validity of the guarantee.
• 2000 BCCA 546    Martens v. Acheson
  Agreement of purchase and sale - calculation of deferred payment under a murb scheme – trial judge’s assessment of value - contra preferentem  The defendants appealed from an order that they pay the plaintiffs monies owed pursuant to an agreement of purchase and sale. The defendants were required under the agreement to make a deferred payment to the defendants. The amount of this deferred payment was subject to set off on two contingencies. The appeal challenged the trial judge’s calculation of the payment and the finding that one of the defendants remained liable to pay even though he surrendered his interest prior to the event triggering the payment. Held: Appeal dismissed. The trial judge did not err in calculating the value of the deferred payment. Contra preferentem did not apply because the problem was one of assessment rather than interpretation. The individual defendant was liable to pay his portion of the deferred payment because his obligation to the plaintiffs was not released or otherwise discharged by the surrender of his partnership interest.
  
• 2000 BCCA 553   HMTQ v. Imperial Oil

The accused admitted the actus reus of offences charged under the Waste Management Act and the Fisheries Act, namely the discharge of unacceptably toxic effluent into Burrard Inlet. It relied upon the defence of due diligence.  The Court, by a 2-1 majority, held that the due diligence test must be applied to the particular events giving rise to the charges, and not to the accused's general level of good conduct. Here the trial judge's findings that the accused failed to exercise reasonable care in the use of a highly toxic chemical, and in using an effluent separator not adequate to the task, were inconsistent with the defence of due diligence.   The convictions entered by the Summary Conviction Appeal Judge should be affirmed, and the appeal dismissed.

• 2000 BCCA 576    Bradwell v. Scott
  It is not a condition precedent to jurisdiction under s. 6 of the Partition of Property Act for the plaintiff to establish its entitlement to equitable relief. Where the party applying is interested to the extent of 1/2 or more in the subject property, the court must order a sale "unless it sees good reason to the contrary". The Court’s discretion under s. 6 is not limited to cases of "serious hardship", but is a broad discretion to be exercised having regard for all the facts and circumstances of the case. Here, the chambers judge did not err in ordering a sale of the property, and did not err in refusing to direct a trial on oral evidence.
• 2000 BCCA 608    Mid-Pacific Services Inc. v. Ashmar Developments Sierra Resources Ltd. et al.
  Vesting orders for two properties in favour of the Morriss plaintiffs were granted by the Supreme Court of British Columbia in April 1993. The unsuccessful parties, Mid-Pacific Services and Sierra Resources appealed, and in December 1994, the appeals were allowed. However, the vesting orders were not stayed pending appeal, and before the appeal was heard, both properties were transferred to a third party, the Festing defendants. Mid-Pacific and Sierra sued the Morriss plaintiffs and the Festing defendants alleging that they were joint venturers engaged in a scheme to deprive the plaintiffs of their property, and that as the Festing defendants took title with notice of the pending appeal, it took subject to the plaintiffs' "unregistered interest". The plaintiffs also argued that the Festing defendants were guilty of fraud in relying on the Land Title Act to protect its interests. The trial judge held that the Morriss plaintiffs and the Festing defendants were not joint venturers, and that the transfers to the Festing defendants were bona fide. He also held that the vesting orders were valid until set aside on appeal, and that the plaintiffs were without a remedy having failed to protect their position by obtaining orders staying execution pending appeal. Held, the appeals should be dismissed essentially for the reasons of the trial judge.
• 2000 BCCA 610    Queens Avenue Housing Cooperative v. Long et al.
  This was an appeal against a judgment finding that a rent increase was a penalty. As the judgment was based upon an assumption that was not questioned, the appeal was dismissed without any adjudication on the question of penalty.
• 2000 BCCA 611    Wilson v. Russell
  Adjustments made to an assessment of damages to correct a mathematical error in assessing past wage loss and an erroneous assessment of capacity to earn future income. An award of special costs in the issue of liability was reduced to 50% of special costs.
• 2000 BCCA 648    Hedburg v. Heaps
• 2000 BCCA 659    First Island Financial Services v. MacKenzie M.E.F. Management Inc. et al.
  Appeal from judgment dismissing claim against two of the defendants below.  A mortgagee who has called its loan because of fraud on it by the mortgagor has no duty to discover from whom the mortgagor is borrowing the funds to pay it off and no duty to inform the new mortgagor of the fraud practised on it.