- 2000
BCCA 354 Baker v. Quasar Realty Ventures Inc.
- 2000
BCCA 397 Hosseini-Nejad v. Roy
The trial judge awarded $1,185,000 for organic brain damage. An appeal and a
cross-appeal were dismissed, Mr. Justice Hall dissenting on the appeal. Athey v.
Leonati considered.
- 2000
BCCA 460 O'Brien v. Anderson
Damages for personal injuries - appellants assert palpable or overriding error
on findings of fact - correct test is palpable and overriding error - Toneguzzo-Norvell
v. Burnaby Hospital, [1994], 1 S.C.R. 114, 121, Stein v. The Ship "Kathy
K", [1976] 2 S.C.R. 802, 806-8 - future loss of income damages reduced as a
matter of principle. Huddart J.A. dissenting on issue of quantum of damages for future
loss of income. S. 55 Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c 231 as amended -
court ordering damages to be paid periodically - s. 55 operative as at time of judgment
for damages.
- 2000 BCCA 463 No. 1 Collision v. I.C.B.C. et al
No. 1 Collision was a body shop which did superb work. It charged more than I.C.B.C.'s
authorized prices. I.C.B.C. cancelled its vendor number as a body shop and it sold its
business. No.1 Collision claimed against I.C.B.C. for damages flowing from the economic
torts of unlawful interference with economic interests, intimidation and restraint of
trade. The actions was dismissed. Mr. Justice Donald and Mr. Justice Hall dispose of this
appeal by dismissing it on the basis of the findings of facts of the trial judge. Mr.
Justice Lambert dissents.
- 2000
BCCA 492 Balla v. Fitch Research Corp.
Supplementary reasons concerning judgment of Arkell J. assessing damages against
Alliance Semiconductor Corporation. Judgment of Arkell J. dated 10 July 1998 set aside.
- 2000
BCCA 505 Alberta Wheat Pool v. Northwest Pile Driving Ltd.
A fire caused by the negligence of a contractor using welding equipment, and
contributed to by the fault of the property owner for failure to have an adequate fire
protection system in place, resulted in substantial damage to the owner's wooden dock. The
trial judge apportioned fault 75% to the contractor and 25% to the owner, applying by
analogy motor vehicle cases where a plaintiff contributed to his own injuries for failure
to wear an available seatbelt. The contractors appeal against the apportionment of fault
was allowed, a majority of the court holding that the trial judge erred in applying the
seatbelt cases. In the circumstances fault should be apportioned 50-50, as it was not
possible to assign differing degrees of fault.
- 2000
BCCA 534 Bilawchuk v. Prince George (City) et al
Ice hockey game in arena occupied by defendant City - Plaintiff a participant in game
checked into boards where wire mesh supported by poles and injured as a result of poles
not being firmly held together as one unit - issue of repair and maintenance of supporting
poles - C.A. dismissing appeal on ground that evidence before trial judge to support
finding of liability.
- 2000
BCCA 567 442246 BC Ltd. v. 0909 Management Inc.
Breach of fiduciary duty and negligence – Breach date rule – Damages for
transactional negligence On appeal from a judgment assessing damages against a solicitor
for breach of fiduciary duty. Held, appeal allowed. The loss sustained by the
plaintiffs/respondents was caused by the solicitor’s negligence and not his breach of
fiduciary duty, which did not involve either material nor disclosure or a secret profit.
Damages were assessed in negligence for the fair market value of the lost asset at the
date of breach.
- 2000
BCCA 570 Meagher v. College of Physicians and Surgeons of British
Columbia
Appeal from decision of chambers judge dismissing appeal against a finding by the
College that the appellant, a psychiatrist, was guilty of infamous conduct by having
sexual relations with a patient. Appeal dismissed: the chambers judge did not err in
having regard to the advantage possessed by members of the medical profession in assessing
certain aspects of the evidence, and in therefore deferring in some degree with their
conclusions.
- 2000
BCCA 573 Emmonds v. Makarewicz
The defendant surgeon was held liable at trial for damages sustained by the
plaintiff from a "spill" of retained kidney stones in the course of removing the
gallbladder by a laparoscopic procedure which, at the time of the operation in 1991, was a
new technique. The first such operation in B.C. was in 1990. The stones were removed 14
months later by a conventional cholecystectomy. That surgery caused adhesions which caused
pain and disability for a further four year period until complete relief was obtained from
a third operation which removed the adhesions. In finding the defendant liable for the
pain and disability suffered in the five year period from the first operation to the
third, the trial judge accepted that the defendant, in carrying out the first operation,
had followed the general practice of surgeons in not "converting" to the open
procedure to remove the stones as soon as the spill occurred and in treating a spill of
stones as a matter which rarely led to problems. The trial judge went on to hold that,
because the general practice was in his view negligent, the defendant was at fault in
following it. Held: The question whether the common practice beginning in 1991 was
negligent is one requiring clinical expertise and therefore is one which the court is not
competent to judge: ter Neuzen v. Korn, [1995] 3 S.C.R. 674. However, the
judge's finding that the defendant should have known that there had been a massive spill
and retention and that he was negligent in failing to inform his patient of that provided
an alternative basis for liability. In that respect, the defendant's conduct was not
within the general practice. Had he not been negligent in that regard, the plaintiff's
problems would have been resolved in a much shorter period of time. In the circumstances,
the appeal should be allowed only to the extent of reducing the damage award by 40%.
- 2000
BCCA 571 Ainscough v. Rankin et al.
Dismissal of an appeal from a judgment following trial dismissing an action for
professional negligence. The trial judge fully considered the evidence, reached findings
of fact supportable by the evidence and properly applied the law.
- 2000
BCCA 622 Williamson Pacific Developments Inc. v. Johns
This appeal from an order dismissing the solicitor's negligence action because damages
were not proved, was dismissed. This rendered the cross-appeal on the finding of breach of
duty of care moot. As a result of the actions found by the trial judge to constitute
negligence, the plaintiff was in pocket, not out of pocket, and had no basis for recovery.
- 2000
BCCA 629 Taylor-Wright v. CHBC-TV
Appeal from decision of trial judge holding TV station liable to both plaintiffs for
defaming them in a series of news broadcasts reporting on a court proceeding. The
defamatory content of the reports was mainly derived from affidavits filed in the Registry
but not used in open court at the time their contents were broadcast. Reports of the
contents of documents filed or intended to be filed in a court registry were held by the
Supreme Court of Canada in Manning v. Hill to give rise to qualified privilege. However,
the trial judge rightly held that the defence of qualified privilege failed because the
reports fell short of being fair. Query: does the extension of qualified privilege to
documents not used in open court create such a risk of injustice that it should be
reconsidered or repealed by statute?
- 2000
BCCA 630 Letvad v. Fenwick
This is a medical malpractice action arising out of surgery performed in July 1993.
Action begun against surgeon and hospital in July 1995. In April 1999 the plaintiff
applied to add two other physicians as defendants and to amend the claim against the
hospital to add a cause of action in contract. Those orders were made in June 1999. Held:
The orders for joinder are set aside, that allowing an amendment is set aside insofar as
it pleads a new cause of action. The chambers judge erred in holding that she had
jurisdiction to join the two physicians under Rule 15(5)(a)(ii). This is not a case where
joinder was necessary to ensure that all matters between the original parties can be
effectually adjudicated upon. The chambers judge also erred in making the order under Rule
15(5)(a)(iii). The fact of the claims being statute barred almost 4 years before the
application is not conclusive. But the inordinate delay for which no satisfactory
explanation was given precluded a finding that the presumption of prejudice was overcome.
The same considerations apply to preclude amending to add a new cause of action.
- 2000
BCCA 639 Pressler v. Lethbridge and Westcome TV Group Ltd.
Appeal by defendants below from judgment awarding damages on claim of defamation and
cross-appeal by plaintiffs below seeking punitive damages. The trial judge having
committed no error in finding for the plaintiffs, the appeal was dismissed. The
cross-appeal was allowed and punitive damages awarded against the defendant Lethbridge
whose avowed purpose of which the defamation was a part was to chase the plaintiffs out of
the town where they resided.
- 2000
BCCA 674 RS II Productions Inc. v. B.C. Trade Development Corp.
Complex film financing transaction in which defendant repudiated guarantee obligation.
In first appeal, held trial judge erred in relying on "accidental" performance
unknown to all parties and estoppel should apply to prevent plaintiffs from relying on
performance in these circumstances. Further, defendant had given plaintiffs reasonable
time in which to perform and repudiation was justified. In second appeal, in obiter,
court found trial judge did not err in declining to "create" exception to
doctrine of privity to allow plaintiff RS II Productions Inc. to recover damages, and no
other exception was proven.
- 2000
BCCA 682 Foreman v. Foster
Appeal of a trial judge’s decision to decline to assess
damages on a Rule 18A application in a personal injury case where liability was admitted.
Appeal dismissed, with reasons to follow.
2000
BCCA 686 Thompson v. Greater Victoria Hospital Society et al.
The court dismissed the appeal against an order dismissing a claim against a doctor. It
allowed the appeal of the order dismissing a claim against the hospital defendants. At
issue was the trial judge’s consideration of circumstantial evidence in a medical
negligence case.