B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

CIVIL PROCEDURE 2001

• 2001 BCCA 750 Sit v. Children's & Women's Health Centre et al
• 2001 BCCA 748 Lee v. Young et al.
  A proposed appeal of a decision made by a chambers judge under s. 5 of the Patients Property Act lacked merit and leave to appeal was denied.
• 2001 BCCA 747 Interclaim Holdings Ltd. v. Down et al.
  Applications for leave to appeal judgments for costs of approximately $2 million - leave granted on terms.
• 2001 BCCA 738 J.W. Price Construction v. Elan Construction
  Application for Review of stay of order, on conditions. Application dismissed. No error shown.
• 2001 BCCA 735 Morguard Real Estate Investment Trust v. Davidson
• 2001 BCCA 733 Ebrahimi v. Stevenson
• 2001 BCCA 732 Festing et al. v. Attorney General of Canada
• 2001 BCCA 731 Mott v. P.N.E.
• 2001 BCCA 730 Letourneau v. Min
  Stay of execution grant to the appellant, defendant at trial, for the amount awarded to the respondent plaintiff as damages for loss of future income arising from injuries suffered in a motor vehicle accident. The appeal is arguable. Because the respondent is resident in Hong Kong and has no assets in the jurisdiction, the tests of irreparable harm and the balance of convenience both favour the appellant.
• 2001 BCCA 729 VOC v. Assessor of Area #09
  Leave granted to the Vancouver Oral Centre for Deaf Children Inc., a registered charity, to appeal the decision of a justice of the Supreme Court, who upheld the decision of the Property Assessment Appeal Board, which found the Oral Centre liable for property tax on premises leased by it. The appeal concerns a conflict between the Assessment Act and the Local Government Act concerning the definition of "registered owner" in the Vancouver Charter.
• 2001 BCCA 714 Hutchings v. Hutchings
  The appellant enjoyed substantial success on the appeal and is entitled to her costs.
• 2001 BCCA 713 Mahood v. High Country Holdings Inc.
  Applications to extend time to file notice of appeal and time to file transcripts and appeal books granted. Application that appellants post security for costs denied.
• 2001 BCCA 693 Owners, Strata Plan LMS 1328 v. City of Surrey et al.
  Action dismissed against a principal defendant, and a third party notice struck out, by a case management judge, under Rule 19(24)(a). Appeals allowed on the ground that claims were complex, amendments to pleadings might be allowed, and it was not "plain and obvious" that no cause of action was disclosed.
• 2001 BCCA 687 Kemp v. Wittenberg
  The plaintiff's costs of the application to adduce fresh evidence and any disbursements associated with it are disallowed.
• 2001 BCCA 675 360networks inc. v. Impsat et al.
  Application for a stay preventing payment out of funds interpleaded, pending application for leave to appeal to the Supreme Court of Canada from the division of this Court upholding an order of the Supreme Court of British Columbia directing payment of the monies to 360networks inc., refused. The criteria for a stay, in the Court's view, were not met.
• 2001 BCCA 673 Maruna et al. v. Lopatka
  Despite circumstances that material in issue not formally appended to affidavits in Chambers Court, it would be appropriate for material to be included in appeal books since it was referred to before Chambers Judge — inclusion of material will assist in preparation of a more complete factum and assist Division hearing appeal.
• 2001 BCCA 671 AG of Canada v. No Strings
  Reinstatement of a dismissed appeal refused on the ground that the appeal had no prospect of success.
• 2001 BCCA 667 Times Square Holdings Ltd. v. Shimizu et al.
  A Sanderson order for costs was refused. It would have deprived the successful defendant of his costs because the other defendant was a dissolved company. The proceedings in question were a special case that concerned only the successful defendant. A Sanderson order would have been inappropriate. Costs are awarded in the ordinary way.
• 2001 BCCA 665 Davis v. Sechelt (District)
  An application to extend time to file appeal books was refused on the ground that the appeal had no merit. There was no reasonable prospect that the finding of the trial judge that the claim was out of time would succeed.
• 2001 BCCA 662 Morrow v. Law Society of British Columbia
  Application for review of the order of a chambers judge dismissing Ms. Morrow's application for leave to appeal and for an extension of time to file appeal books. Held: Application dismissed. The chambers judge did not err in finding that the appeal was entirely without merit.
• 2001 BCCA 660 Public Guardian and Trustee of BC v. Canada Life Assurance Company
  Appeal by Public Trustee from order, in accordance with Rule 52(11)(d), directing pleadings to be filed in an action brought by petition concerning insurance funds paid out to mother of infant children rather than to the Public Trustee in action where mother was not a party. Appeal proceeded on assumption leave to appeal had been granted; submissions by counsel for the Public Trustee were made. Application for leave to appeal granted; appeal dismissed.
• 2001 BCCA 659 East Broadway Res. Assoc. v. City of Vancouver et al.
  The appellant Association applied for review of the decision of a chambers judge dismissing its application to reinstate its appeal. On the review, it sought to tender fresh evidence to provide an explanation for the delay in filing its appeal books. Held: application for review dismissed. The fresh evidence was not admissible, as it was available at the hearing before the chambers judge. In any event, it did not provide a sufficient explanation to change the result. The delay caused real prejudice to the respondents, and it would not be in the interests of justice to grant extensions of time to proceed with the appeal.
• 2001 BCCA 656 360networks inc. v. Impsat
  The court dismissed an appeal from an order directing payment out of court to the respondent, 360networks.inc in an interpleader proceeding, generally for the reasons of the chambers judge. The appellants' interest in the proceeding derived from claims they are making in a Brazilian court and in arbitration proceedings for damages for breach of contracts by an indirect Brazilian subsidiary of 360networks.inc. The subsidiary did not make a claim to the funds, although given the opportunity to do so.
• 2001 BCCA 654 Riley v. Columbia Shuswap (Regional District)
  Application for a stay of an order which held that bylaws 627 and 629 were void for uncertainty. Stay granted.
• 2001 BCCA 651 Cranewood et al. v. Norisawa et al.
  An application for a stay of execution was granted but not on the terms of security proposed by the applicant. The applicant's proposal would likely add to the conflict between the parties. Security must be posted in the conventional way for the stay to take effect.
• 2001 BCCA 650 Smyth v. Gill
  Appeal dismissed from trial judge's award of non-pecuniary damages of $50,000 for soft tissue injuries. No basis shown for interfering with trial judge's findings of credibility.
• 2001 BCCA 647 British Columbia (Minister of Forests) v. Jules
  Appellants, Indian bands who are defending against stop-work orders of the Ministry of Forests, appealed from interlocutory orders below that the proceedings be remitted to the trial list under R. 52(11)(d), and dismissing their motion for an order that the Minister pay their entire legal fees and disbursements, in advance and in any event of the cause. Appeal allowed in part and on terms with respect to taxable costs (as defined in Supreme Court Rules), but court has no jurisdiction to require the Minister to "fund" the litigation generally. Proceedings were properly remitted to trial list.
• 2001 BCCA 644 Paul v. Forest Appeals Commissions
• 2001 BCCA 641 O'Brien v. Anderson et al.
• 2001 BCCA 636 Otter Farm & Home Co-op v. Sekhon
  The court decided that one aspect of the respondent's claim was not appropriately decided under R18A because of the potential for contradictory findings of fact on the trial of issues remaining to be litigated between the parties. The appeal was allowed to that extent.
• 2001 BCCA 623 Coast Hotels Limited v. Northwest Hotels Inc. et al.
  This action arose out of a dispute regarding a hotel owned by the appellant Malaspina Investments Ltd., leased by Northwest Hotels Ltd., and managed by Coast Hotels. Differences arose between Coast and Northwest over the management of the hotel and Northwest purported to cancel the management contract. Coast obtained an injunction restraining Northwest from interfering with Coast's management of the hotel until trial. While this dispute was ongoing, Northwest directed money from a bank account it is required to maintain for the hotel to other entities, which it claimed were owed money. These included the appellant. The Supreme Court of British Columbia issued a mandatory interlocutory injunction which required named companies, including Malaspina, to return to the account all amounts received from Northwest since June 21, 2001. Malaspina appeal this mandatory injunction and applied to adduce fresh evidence. Held: Appeal dismissed. The chambers judge was correct in holding that the respondent had established a prima facie case. The issue then became one of balance of convenience. The chambers judge did not err in principle nor did she reach a conclusion unsupported by the evidence when she determined that the balance of convenience lay with the respondent, Coast Hotels. The fresh evidence would not have altered the result of the application
• 2001 BCCA 621 Nutreco Canada v. Agrimarine Industries et al.
  Application for directions as to whether leave to appeal is required from a decision determining an issue of liability following a Rule 18A summary trial. Held: leave is not required. The decision was a final order determining the liability of the appellants.
• 2001 BCCA 608 Simpson v. Davis & Co.
  Limitations – Ultimate Limitation – Amendments   By a 1994 amendment to the Limitation Act the six-year ultimate limitation period for medical malpractice actions was amended to run from the age of majority of minors rather than the date the cause of action arose. The plaintiff commenced an action against doctors out of time under the old ultimate limitation period but within time under the amended provision. The action was commenced more than two years after the plaintiff’s 19th birthday but within two years of the 1994 amendments. Held, allowing the appeal, the action was commenced within time. Section 5 of the 1994-amending Act revived the plaintiff’s two-year limitation period under s. 3 of the Limitation Act commencing on the date of enactment of the amendments.
• 2001 BCCA 607 Coburn v. Nagra
  Application by the plaintiff/respondent to vary the decision of a single justice of the Court of Appeal ordering a stay of execution of a trial judgment, on condition that the judgment proceeds, less $10,000 paid to the plaintiff and a sum paid to plaintiff’s counsel for legal fees, be paid into court. Held: application allowed in part. After examining the authorities on stays of proceedings and injunctions, Saunders J.A. agreed with the single justice that a stay of execution was necessary, as there was a real risk that the appellant would be unable to recover a large portion of the funds if successful on appeal. Saunders J.A. varied the order to allow the monies to be paid to the respondent upon providing satisfactory security. Southin J.A. agreed with the disposition proposed by Saunders J.A. There are two competing rights: the right of the plaintiff not to be deprived of the fruits of victory and the right of the defendant, if appealing the judgment, not to have their right of appeal made nugatory. Low J.A. concurred with both.
• 2001 BCCA 595 Daniel v. ICBC
  Application for indigent status refused.
• 2001 BCCA 593 Roberge v. Huberman
  Appellant applies to reactivate her appeal. Held: application dismissed. The appellant has not established that it is in the interests of justice to reactivate the appeal. The litigation has been protracted; delays in prosecuting the appeal have prejudiced the respondents; and the appeal has a low probability of success.
• 2001 BCCA 592 Emerson v. ICBC et al.
  These are reasons for reinstating an appeal under s. 25(6) of the Court of Appeal Act despite a lengthy delay.
• 2001 BCCA 587 Willoughby Residential Dev. Corp. v. Bradley et al.
• 2001 BCCA 575 626541 BC Ltd. v. 606892 BC Ltd. et al.
• 2001 BCCA 562 East Broadway Residents Assoc. v. City of Vancouver
  These are reasons for dismissal of applications for reinstatement of the appeal under s.25(2) of the Court of Appeal Act and extension of time for filing the appeal books.
• 2001 BCCA 592 Emerson v. ICBC et al.
  Despite extensive delay, this appeal is ordered re-instated under s.25(6) of the Court of Appeal Act. The delay was explained by the unfamiliarity of appellant's then counsel with appeal procedure, personal problems of the appellant herself and, to a lesser extent, slow response from time to time by counsel for respondent. No prejudice to the respondent was shown. Conditions are imposed.
• 2001 BCCA 556 Traynor v. Degroot
  Appeal from order dismissing appeal from order regarding production of documents pursuant to Rules 26(10) and 26(11). Delay in appeal resulted in inadequate time for oral argument and analysis of issues by counsel. Question of whether documents were in the possession or power of the appellant (to which Rule 26(10) applies) or whether they are documents which fall within Rule 26(11), as documents of the expert witness, not addressed in argument. Serious issues of principle not able to be addressed on this occasion. Appeal dismissed.
• 2001 BCCA 554 Gorman v. Tyhurst
  James Stewart Tyhurst, the defendant/appellant applies for an order to have all proceedings, including execution be stayed pending the judgement of the Court of Appeal on the merits of the appeal. The balance of convenience favours the order being granted with one condition. The respondent will proceed to examine the appellant in aid of execution.
• 2001 BCCA 542 Willoughby Residential Dev. Corp. v. Bradley et al.
  The application for a stay of proceedings of an order for specific performance of an agreement for sale of land, was dismissed. The appellant, the beneficial owner of a fifty percent interest in the land, failed to establish that the balance of convenience favoured a stay of proceedings, considering the nature of his interest and his other remedies.
• 2001 BCCA 540 Dyck v. Webster et al.
  Application to review order of a single judge refusing to extend time for appeal. Dismissed. No merit in the appeal.
• 2001 BCCA 539 McCready v. McCready
  Appeal adjourned to enable appellant to obtain new counsel.
• 2001 BCCA 538 Balla v. Fitch Research Corp.
  Supplementary reasons considering issues raised by motion. Motion dismissed. Court of Appeal should not interfere in the management of interlocutory stages of litigation which are the business of the court below in circumstances where there is no doubt of the right of the court below to make the orders sought if it considers it appropriate in the circumstances to do so.
• 2001 BCCA 537 Paul v. Forest Appeals Commission
  Time to file notices of application for leave to appeal to the Supreme Court of Canada extended. The argument that this Court should defer to the Supreme Court in granting an extension was rejected on the ground that the formal order has not yet been settled. The matter should appropriately remain to be decided in this Court.
• 2001 BCCA 534 Harrington v. Dow Corning Corp.
  Application for directions as to whether the order sought to be appealed was final, interlocutory or came within those orders which could be appealed to the Court of Appeal under the Class Proceedings Act without leave to appeal, and if leave was required, for leave to appeal. The order extended time limited for registeration of opt-in and opt-out forms in the class proceeding. Time for such registration had been limited as a term of the settlement agreement earlier approved by the court. Held: leave to appeal was required, and leave to appeal was granted.
• 2001 BCCA 532 Interclaim Holdings Limited v. Down et al.
  Supplementary reasons for judgment to determine content of order to be entered. (Judgment dated 31st January, 2001, 2001 BCCA 65.)
• 2001 BCCA 520 Morrow v. Spec. Comp. Fund of BC
  Motion by P for leave to appeal and extension of time - Order of Court of Appeal in 1988 that no proceedings to be commenced by P without leave of court - no merit to justify extension of time - leave denied on grounds of no merit and proceedings vexatious and barred by 1988 order.
• 2001 BCCA 513 Western Union Inc. Co. et al. v. Re-Con Building Products
  A judge in chambers did not err in dismissing an application for a declaration that the court had no jurisdiction or alternatively for an order that it decline jurisdiction. On a consideration of all factors, B.C. had the closest real and substantial connection to the litigation and the parties. The chambers judge correctly applied the forum non conveniens test.
• 2001 BCCA 498 Lambert Fenchurch Limited v. Specialty Underwriting Services Ltd.
  Appeal dismissed from dismissal of counterclaim for want of prosecution and dismissal of appellant's motion to have respondents held in contempt for failure to produce documents. No basis shown to interfere with orders below.
• 2001 BCCA 485 De Fehr v. De Fehr
  Directions as to requirement for leave to appeal Interim Order requested. Extension of time to file appeal granted to date of filing of notice of appeal of subsequent orders (13 July 2001) with liberty to amend notice of appeal.   Application for indigent status granted.
• 2001 BCCA 482 Fiege v. Rupitz
• 2001 BCCA 481 Coast Hotels Limited v. Northwest Hotels Inc.
  Leave to appeal a refusal of an interlocutory injunction is granted in a case involving the continuance of a hotel management agreement.
• 2001 BCCA 480 626541 BC Ltd. et al. v. 606892 BC Ltd et al.
  Application for leave to appeal and a stay granted with respect loan order for sale of a hotel property in foreclosure proceedings. Application to adduce new evidence as to the value of the property dismissed.
• 2001 BCCA 464 Canada Business Corporations Act and Pacifica Papers et al.
  Participant company in Plan of Arrangement served with process and appearing at hearing and making argument in large measure adopting argument of petitioner. Participant seeking costs and awarded 2/3 of costs at usual scale in Court of Appeal.
• 2001 BCCA 440 Sienema v. British Columbia Insurance Company
  Rule 27(22) - Case management judge declining to make order requiring defendant to disclose names and addresses of witnesses who might have knowledge about value of personal property that was subject of an insurance claim. Defendant insurer alleging that insureds had made false declarations by inflated valuations of personal property destroyed in fire. Defendant arguing that decision of judge should be upheld on basis of it being a discretionary decision and also on the basis that privilege applicable because witnesses had been discovered through efforts of counsel preparing for trial. Court of Appeal not finding it necessary to consider issue of privilege but dismissing appeal on the basis that discretionary decision of case management judge who was familiar with litigation ought not to be disturbed. Appeal dismissed.
• 2001 BCCA 434 Halagan v. Reifel
  Appeal of order declaring respondent to be the beneficial owner of certain escrow shares in a publicly traded company dismissed. Trial judge did not err in determining that a presumption of a resulting trust had been rebutted.
• 2001 BCCA 429 Elms v. Oliver Drabik Carruthers & Chalcraft
  Although the plaintiffs are pursuing a novel action it is inappropriate at this stage of the proceedings to dismiss it for disclosing no cause of action. The defendants' grounds of appeal that the "common issues" in this class action are individual in nature and that the Chambers judge erred in certifying the class action as a preferable procedure were also dismissed.
• 2001 BCCA 425 Williams v. Quigley
  This application to extend the time to file appeal books, and the cross-application for security for costs was dismissed.
• 2001 BCCA 416 Adler Internatonal Investments Ltd. v. Central Okanagan (Regional District)
  Applications for security for costs.
• 2001 BCCA 410 Hwang v. AXA Pacific Insurance Co.
  Appeal from judgment entitling plaintiffs to indemnity for legal costs and disbursements, and amounts paid in settlement of an action against them resulting from subsidence from the plaintiffs' lands onto adjoining lands. It is a fundamental principle that he who seeks the benefit of an instrument must accept its burdens. Appeal allowed; judgment below set aside. Outstanding issues remitted to court below.
• 2001 BCCA 409 577773 BC Ltd. v. B & K Shopping Centre Ltd.
  Application for directions as to whether leave to appeal is necessary; if so, application for leave to appeal and stay pending appeal.
• 2001 BCCA 404 Doern v. British Columbia (Police Complainant Commissioner)
  Application for intervenor status granted. The applicant has an interest in the outcome of the appeal and may be able to bring a different, and useful, perspective to the appeal.
• 2001 BCCA 402 Alentejano v. Palm Springs & European Health Spa
  Application for an order staying the execution of a Supreme Court Certificate of Costs dismissed.
• 2001 BCCA 401 Watson v. I.C.B.C.
  Application for leave to appeal dismissed. The Chambers judge did not err in concluding that R. 66 should cease to apply to the matter. Two days for trial is insufficient in the circumstances.
• 2001 BCCA 393 Ventura Management Inc. v. Hartico Enterprises Inc.
• 2001 BCCA 389 Oak Bay Marina Ltd. v. Gordy
  Application by Human Rights Commission for intervenor status denied, the Commission indicating it did not intend to raise grounds of appeal in addition to those being advanced by the appellant.
• 2001 BCCA 381 Franciscan No. 1 (The) v. Qualicum Producer (The)
  Supplementary judgment to reasons released 2nd April, 2001 (2001 BCCA 244) addressing submissions of counsel for the appellants.
• 2001 BCCA 376 Grassi v. WIC Radio Ltd.
  Appeal regarding costs in action for libel where the plaintiff succeeded against several defendants but where the action was dismissed against several others. Issue of whether and in what circumstances a "Bullock" order may be made entitling a plaintiff who failed against one defendant to recover costs from another defendant against whom the plaintiff has succeeded. Here, the conduct of the defendant broadcaster made it reasonable for the appellant (plaintiff) to include both the City of Vancouver and a police inspector in the suit and therefore a Bullock order is appropriate in this case - the trial judge took too narrow a view of the fundamental basis of such orders. Appeal allowed.
• 2001 BCCA 370 Huang v. Tseng
  Appeal from a decision refusing to set aside a default judgment. Dismissed: Chambers judge did not misapply the principles set out in Miracle Feeds or misapprehend the evidence as alleged.
• 2001 BCCA 369 District of Okanagan-Similkameen v. Blackwell
  Appeal from R. 18A proceedings wherein trial judge had dismissed counterclaim of appellant based on res judicata as to part of claim and lack of merit as to other part of claim sought to be advanced. Court of Appeal concluding that decision of trial judge correct in assessment of possibility of success of claims advanced in counterclaim. Appeal dismissed.
• 2001 BCCA 367 British Columbia (Minister of Forests) v. Roots Reforestation Ltd.
  Leave to appeal denied without prejudice to appealing after trial.
• 2001 BCCA 363 Canada Business Corporations Act and Pacifica Papers et al.
  Applicant is seeking to obtain leave to appeal and a stay concerning an order permitting the circulation of notice to shareholders concerning Plan of Arrangement – applicant arguing contents of notice not sufficient to fairly inform shareholders of situation – Leave and stay refused, on basis that no error demonstrated in judgment of trial court and balance of convenience favouring continuing with process to obtain shareholders approval.
• 2001 BCCA 362 Roxul (West) Inc. v. McCarthy Tetrault
  This appeal is from the dismissal of an application for an interlocutory injunction to restrain an escrow agent from paying money to the vendor of a manufacturing plant. Held: An interlocutory injunction is granted, restraining the release of funds pending further court order or agreement of the parties. The order that the parties give written instructions for the payment of the funds is vacated. The order that the funds be interpleaded is modified so that the funds will be retained by the escrow agent with agreement of all parties, not to be disposed of without further court order or agreement of the parties, or to be interpleaded.
• 2001 BCCA 346 Donald R. McLeod Law Corporation v. Austman
• 2001 BCCA 345 Lasersight Inc. v. Wiese
  ENFORCEMENT OF FOREIGN JUDGMENT – DENIAL OF SUBSTANTIAL OR NATURAL JUSTICE Respondent sought to enforce judgment obtained in Florida court. Appellant had applied for an adjournment of the Florida action on grounds of illness. The adjournment was denied and the trial proceeded in his absence. In the B.C. action, the appellant argued that the Florida judgment should not be recognized because the Florida proceedings offended the rules of natural justice. The judge below rejected that assertion. Held: Appeal dismissed. Although the Florida court acted somewhat harshly in refusing the adjournment application, its process was not so offensive to the principle of natural justice that recognition in B.C. should be denied.
• 2001 BCCA 344 Morriss v. British Columbia
  An appeal of an order dismissing an action under Rule 19(24)(a) on the ground that the action was time barred.
• 2001 BCCA 333 Chouinard v. ICBC
• 2001 BCCA 327 Bygo v. MacDonald, Dettwiler
  The appellant applied for leave to appeal a chambers decision of the B.C. Supreme Court, which declined to order a stay of proceedings under s. 15 of the Commercial Arbitration Act. If successful, the appellant also sought a stay of proceedings pending the appeal. Held: Leave to appeal and stay of proceedings granted. The appeal is directed to proceed expeditiously, with appeal books and factums filed in accordance with a schedule specified herein.
• 2001 BCCA 325 Venesse v. HMTQ
  The chambers judge struck out the action on an application by the defendant under R. 19(24)(a) that the statement of claim disclosed no reasonable cause of action. However, it is the opinion of this court that the statement of claim does show, at least minimally, reasonable alternative claims for damages for breach of contract, loss of mesne profits or damages for trespass. Further, it was not appropriate in the circumstances to render a possible limitations defence police on the plaintiff’s pleading.
• 2001 BCCA 323 Banks v. Shrigley
• 2001 BCCA 298 Taylor-Wright v. CHBC-TV
  Miscellaneous costs issues. Nothing significant. Reasons are the summary.
• 2001 BCCA 296 Cherris v. Bosa Development et al.
  Motion for a stay of an order rescinding the sale and purchase of a penthouse found to be unlivable and an assessment of restitution damages. Refused: plaintiff has ample means to restore the defendants to their original position if appeal successful. Balance of convenience favours the plaintiff.
• 2001 BCCA 292 Tuxedo Mortgage Investment Corp. v. Cragg
  Applications for leave to appeal, stays, and security for costs.
• 2001 BCCA 288 BMF Trading v. Abraxis Holdings Ltd.
  On appeal from a decision referring trust issues to the trial list and granting an injunction preserving the costs until trial. Held, the appeal should be dismissed.
• 2001 BCCA 286 Strata Plan LMS 2019 v. Green
  Application for leave to appeal from the order of a Chambers judge dismissing an application pursuant to R. 52(11)(d). Leave to appeal denied. The Chambers judge was correct in concluding that the proceeding need not be determined by way of a trial.
• 2001 BCCA 280 DR McLeod Law Corp. v. ICBC
  This is a set of reasons for the Court clarifying an order about costs. No legal principle is involved.
• 2001 BCCA 275 Smith v. Global Plastics Ltd.
  Discovery of documents (R. 26(15)); Interrogatories- Appeal from Chambers judge’s order allowed in part. The Chambers judge was correct in holding that the Master was not clearly wrong in refusing to grant the defendants an order pursuant to R. 26(15). As well, the upholding of the Master’s order with respect to relevant interrogatories was correct. However, the Chambers judge erred in upholding the Master’s order with respect to the listing of customer names, in both documents and interrogatories. In this case, the names are not relevant to a matter in question in the action.
• 2001 BCCA 264 Ward v. Clark
  Application to review an order of a chambers judge refusing intervenor status. No reversible error shown. The association’s intention was to argue an issue not joined by the parties. An internenor cannot enlarge the scope of an appeal.
• 2001 BCCA 263 AGBC et al. v. Perry Ridge Water Users
  Leave to appeal refused on issue of whether writ of summons is a nullity because page missing from filed and served copy. Leave to appeal granted on issue of whether there was a transfer if title under the procedures for acquiring an interest in Crown logging roads as it affects the question of whether there was a trespass by protestors.
• 2001 BCCA 261 Delaronde v. Kierkegaard
  Application to review the order of a chambers judge granting a stay of an order of special costs or terms. No legal error demonstrated. Application dismissed.
• 2001 BCCA 257 Koszil v. Bank Canadian National
  Plaintiff appealed against judgment dismissing an action to set aside a previous judgment. Appellant applied to adduce fresh evidence. Held: fresh evidence not admitted and no error shown in judgment appealed against.
• 2001 BCCA 255 Life Investors Insurance Co. of America v. Tis Management Ltd.
  Application for leave to appeal order dismissing application of the plaintiffs below for an interlocutory injunction.  Leave granted.
• 2001 BCCA 217 Hicks v. West Coast General Hospital
  Time for filing appeal books extended.
• 2001 BCCA 204 Bank of Credit and Commerce International (Overseas) Ltd. v. Akbar
  The defendants applied in the S.C.B.C. to set aside an ex parte Mareva injunction, and, by consent, the order was made. Those defendants then sought and obtained an order for special costs. That order was set aside by the Court of Appeal and the matter of costs referred back to the trial court, because the chambers judge had refused to consider further evidence adduced by the plaintiffs on the costs hearing. In a separate application before a different chambers judge, she declined to set aside the injunction against two other defendants. An appeal from her order was dismissed. She did not apply the wrong legal test, and did not misconstrue the evidence.
• 2001 BCCA 201 Bankruptcy of Blair Down
  Submissions received addressing question of whether appeal should be reopened.Application to reopen appeal dismissed.
• 2001 BCCA 200 Rossen v. Kwong
  Appeal from dismissal of action arising out of business relationship. Documents produced do not found cause of action in contract in the events that happened. No claim shown. Appeal dismissed.
• 2001 BCCA 190 FRJ Enterprises Inc. v. Jiwan
  Appeal against an order setting aside a Certificate of Pending Litigation. A previous similar application has been dismissed. Held: The order no new grounds justifying the order appealed against so the appeal was allowed.
• 2001 BCCA 188 Westcoast Transmissions Ltd. v. British Columbia (Assessor of Area #15)
  Application for leave to appeal allowed on three of five issues - proper interpretation of s.21(1) of the Assessment Act, R.S.B.C. 1996, c. 20.
• 2001 BCCA 185 Border Enterprises Ltd. v. Beazer East, Inc.
  Leave to appeal granted to both the plaintiffs and defendant where under Rule 19(24) the Chambers judge dismissed two of the plaintiffs' three causes of action against the defendant.
• 2001 BCCA 182 Byrn v. Mackin
  Application to extend time to file application for leave to appeal and for order for indigent status dismissed.
• 2001 BCCA 181 Squamish Indian Band v. Briggs
  Application for stay of execution and stay of proceedings of order requiring the appellant to give up possession of property on the respondent Indian Band’s reserve. HELD: Application dismissed, subject to temporary stay until March 31, 2001.
• 2001 BCCA 177 A and G Investments Inc. v. Golden View Development Corp.
  The respondents are entitled to one set of costs jointly and severally against the appellants and Power Tek Developments Inc. assessable at Scale 1.
• 2001 BCCA 168 Hicks v. West Coast General Hospital et al.
  Application to review order refusing indigent status and for extension of time for filing appeal books. Applications adjourned to March 5^th to allow for review of affidavits in Supreme Court file.
• 2001 BCCA 167 Plucinski v. Mackenzie
  Application to discharge order refusing to extend time for giving notice of appeal. Issue of whether there is merit in the proposed appeal had been addressed. No reversible error shown in reasons for judgment in court below. Application to vary order dismissed.
• 2001 BCCA 166 Sindher v. Brar
  Out of time Notices of Appeal allowed to stand where circumstances of case highly unusual, (because of relation of these Notices to an extant appeal), and no prejudice would be occasioned by permitting Notices to stand pending resolution of main appeal.
• 2001 BCCA 155 Duszynska v. Duszynski
  Decision refusing indigent status.
• 2001 BCCA 154 Hoyt v. ICBC
  Interrogatories may not be used to obtain the names of witnesses unless they can be shown to be relevant to issues raised in the pleadings. An order striking out interrogatories which sought the identity of witnesses was affirmed.
• 2001 BCCA 153 Vukelich v. Mission Institution
  Application for leave to appeal issues arising in the course of a hearing for costs following a habeas corpus application. leave denied.
• 2001 BCCA 152 Smith v. Global Plastics
  Leave to appeal granted from orders for interrogatories and refusal to divide liability of damages – case ordered to be heard on expedited basis.
• 2001 BCCA 147 Legere v. Legere
  Security for costs application adjourned generally.
• 2001 BCCA 143 Fletcher v. Hyak et al.
• 2001 BCCA 138 R. v. Chan
  An application for the appointment of counsel under s.684 was refused. The lack of merit in both the conviction and sentence appeals, and the appellants’ apparent ability to communicate and express himself with the assistance of a Cantonese interpreter made it not desirable in the interests of justice to appoint counsel.
• 2001 BCCA 137 Toronto Dominion Bank v. Marall Homes Limited et al.
  Application for leave to appeal an order for sale in foreclosure proceedings was dismissed as having no prospect of success. The order was based on evidence and was a proper exercise of discretion by the chambers judge.
• 2001 BCCA 136 Drove v. Mansvelt
  Application for leave to appeal an interlocutory order granting the plaintiff leave to serve notices of motion and affidavits substitutionally on defendant ex juris, for leave to commence a derivative action against foreign defendants. The leave application was dismissed. While the proposed appeal had some merit, that factor was outweighed by the appeal’s lack of importance, the absence of any practical benefit to be obtained from a decision on appeal, and the unnecessary delay it would cause.
• 2001 BCCA 133 Stainer v. ICBC
  On an application for independent medical examinations under Rule 30 the court may impose conditions necessary to put the parties on an equal footing with respect to medical evidence. Such conditions may include an order that reports obtained from independent medical examiners be delivered to the plaintiff, and that the plaintiff deliver up medical reports in her possession. If reports are not obtained from the independent medical examiner, the court may order that the party obtaining the order deliver up documents which record the plaintiff’s history and any observations or findings made by the doctor on physical examination. Notice of expert evidence is governed by Rule 40A(3). The court has the discretion to admit responsive evidence of which notice has not been given.
• 2001 BCCA 121 Jam's International v. Westbank
  1. A Rule 18A application in relation to only one issue in the proceeding should not be granted unless the chambers judge is satisfied that to decidemk the issue will be an efficient use of court time, including Court of Appeal time, having regard to all the other issues in the proceeding. 2. Whether the chambers judge should decide an issue on assumed facts that are not agreed for all purposes of the litigation as a whole? The Court doubted that he or she should. 3. Appeal Allowed. Rule 18A application dismissed.
• 2001 BCCA 120 Emms v. Prince George
  A trial judge ‘s order applying 56(4) of the Limitation Act was upheld by the court. The court did not consider the trial judge’s reasoning with regard to section 6(5)(c) of the Act.
• 2001 BCCA 119 Regional District of Okanagan Similkameen v. Blackwell Stores Ltd.
  The Province of British Columbia was granted intervenor status, for limited purposes, where it was sued in a second action for the same remedies as sought by the plaintiff against the defendant in this action. Its role as intervenor would be limited to advising the Court of its interest in this appeal by reason of the claim pending against it.
• 2001 BCCA 117 BC Rail v. Domtar Inc.
  The parties settled their appeal on the date set for hearing. Counsel for the appellant applied to have the appeal heard even though it was moot. Held: Application dismissed in accordance with the factors set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.
• 2001 BCCA 112 Walters v. Castell
  The Court affirmed a judgment for monies owing based on findings of credibility. One judgment was varied to the extent of relieving one defendant of liability for an award of punitive damages.
• 2001 BCCA 110 AGBC v. Gagne
  The respondent wished to appeal a decision of a Provincial Court judge but he could not afford a transcript for use in the Supreme Court. A judge in Chambers directed the Crown provide a transcript on grounds of "fairness" . Appeal allowed.
• 2001 BCCA 105 Ainsworth Lumber Co. v. A.G. of Canada
  Proceedings for Tax Credit relief ongoing in Tax Court of Canada - Taxpayer respondent proceeding in B.C. Supreme Court for negligent misrepresentation and related causes of action claiming government wronged taxpayer by failing to accurately let it know what future tax liability status it would possess in relation to a manufacturing project. Court of Appeal granting temporary stay of Supreme Court proceedings pending a trial court decision in Tax Court because decision in Tax Court could have a significant impact on cause of action and any damages sought in Supreme Court. Success of taxpayer in Tax Court would militate against further proceeding in Supreme Court.
• 2001 BCCA 103 D.R. McLeod Law Corp. v. ICBC et al.
  Solicitor’s account: client terminated contingency fee agreement shortly after its execution and then retained another solicitor to complete a settlement. First lawyer claimed full 20% payment provided by the agreement. Held: percentage fee payable only if settlement arranged during currency of the agreement as other provisions of the agreement provided for calculation of fees on termination of agreement. Chambers judge fixed fee at 20% of 20%, or about $1,700. Appeal dismissed.
• 2001 BCCA 82 Carla M. Courtenay Law Corporation v. Lalani
  The trial judge set aside a consent order made between a husband and wife setting aside an earlier order granting the wife judgment against the husband in the amount of $250,000. The consent order was made without notice to the wife’s lawyer whose services were terminated by the wife just prior to the order being entered. The lawyer was owed substantial fees by the wife with respect to her work in obtaining judgment against the husband. The lawyer successfully applied as a creditor in the wife’s bankruptcy proceedings to set aside the consent order as having been made without notice to her. Held: Appeal dismissed and decision of the trial judge setting aside the order upheld. An application to vary or set aside a judgment should be made in chambers pursuant to Rule 52(2)(d) of the Rules of Court to ensure that all interested parties, such as the wife’s lawyer, could be given notice of the application.
• 2001 BCCA 76 Turner v. Andrews
  Application by representative plaintiff for a "prospective" order for costs payable out of pension fund was correctly denied by Chambers judge below. The action was an adversarial one, since it alleged breach of duty on the part of pension plan trustees, rather than asking for directions or the resolution of a "difficulty" in the administration of the plan.
• 2001 BCCA 75 Nanaimo Immigrant Settlement Society v. British Columbia
  Certification of class action, brought by "bingo" charities for a declaration of ultra vires and the recovery of licence fees paid under allegedly invalid law, was upheld. Given the threshold questions of law and the circumstances of the plaintiffs in this case, a class action was the "preferable procedure."
• 2001 BCCA 69 Klonarakis v. Gregg
• 2001 BCCA 63 Dunbar v. Dunbar
  Appeal from the decision of a chambers judge dismissing the plaintiff's action under Rule 18A of the Rules of Court allowed and the action remitted to the Supreme Court. The chambers judge overlooked documentary evidence which was relevant to the plaintiff's claim.
• 2001 BCCA 58 Ward v. Zackon
  Appeal from order of Lowry, J. dismissing an application to set aside a settlement as unconscionable dismissed for reasons given by the trial judge.
• 2001 BCCA 56 Ward v. Clark
  Application by B.C. Civil Liberties Association to intervene refused in slander appeal.
• 2001 BCCA 53 McNeill v. British Columbia Packers Limited
  Revised Theory of Case Presented At End of Trial – Claim Dismissed as UnprovenAmendment of Pleadings and Re-Opening of Trial. Appeal from dismissal of plaintiff’s claim for breach of contract and from dismissal of application to amend statement of claim and to re-open the trial. During the trial the plaintiff altered his position on what formed the alleged contract. The trial judge held that because the plaintiff had abandoned reliance on the contract as pleaded and had not pleaded the material facts necessary to establish their new position as argued the action must be dismissed. Held: Appeal dismissed. The appellant had failed to prove the case as pled and as presented initially at trial. The pleadings and counsel’s opening address were not sufficiently broad to encompass the revised theory of the contract presented in counsel’s closing address. The trial judge properly found that the proposed amendment and consequent re-opening of the evidence could not be done without causing prejudice and injustice to the defendant.
• 2001 BCCA 51 CU&C Health Services Society v. Sourdif
  Application to review orders refusing leave to appeal dismissed. No merit in the proposed appeals.
• 2001 BCCA 42 Rowe v. Bobell Express Ltd. et al.
  The court dismissed an application for increased costs made by respondent following dismissal of the appeal.
• 2001 BCCA 41 Walters v. MacDonald
  Application to reinstate appeal, and to extend time to file notice of appeal and settle appeal books. Application allowed on condition that the only issues to be argued are the remuneration issue and the amendment of the judgment below (if required) to conform to reasons for judgments. Appeal removed from inactive list and time for giving notice of appeal extended to day on which notice of appeal was in fact filed. Time to procure appointment to settle books extended to 15th February, 2001.
• 2001 BCCA 29 Morgan v. Edwards
  Claim for expenses on passing of accounts by former administrator. Registrar refusing to recommend any award and Chambers Judge confirming recommendation. Appeal Court ordering award of a portion of sums expended on basis of benefit of some expenditures accruing to estate. Appeal allowed, in part.
• 2001 BCCA 20 Rouxul (West) Inc. v. McCarthy Tetrault
  Application for stay of judgment – Applicant having contractual right to a fund held in escrow to meet claims arising out of a sale of assets agreement – Respondent taking position that claim of applicant is for damages for breach of covenant in purchase sale agreement and asserting that what applicant seeks is pre-judgment security where claim for damages – Respondent asserts no irreparable harm in principle – Stay granted.
• 2001 BCCA 15 Murphy v. Mutual of Omaha Insurance Co.
  Leave to appeal is not required to appeal a determination the amount of "reasonable fees and disbursements of class counsel", which the insurance company had committed to pay under the terms of the settlement agreement resolving the class action. "Fees and disbursements" are not "costs" within the meaning of s. 7 of the Court of Appeal Act.
• 2001 BCCA 5 Canadian Resort Development Corp. v. Swaneset Resort Ltd.
  Costs of trial on Scale 4 for plaintiffs, this court having struck an order for special costs.

YUKON JUDGMENTS

• 2001 YKCA 4 Gonder v. Gonder et al.