B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

COMMERCIAL 2001

• 2001 BCCA 717    Waddell v. Cintas Corporation et al.
  An action for wrongful dismissal. The employment contract provided that notice of termination shall be the greater of what is provided in the Ontario Employment Standards Act or 4 weeks. The plaintiff was transferred to B.C. from Ontario, fired here, and paid 4 weeks.  The plaintiff alleged that the primary contract was invalid on the ground that it did not meet the minimum requirements of the B.C. Employment Standards Act and therefore he was entitled to notice at common law.  Trial judge dismissed action. He rejected plaintiff's primary argument as well as the contentions that the transfer to B.C. destroyed the substratum of the contract; and that he was both employed by American and parent company and Canadian subsidiary, only one of which held an employment contract.  Appeal allowed: on appeal, the plaintiff brought to light a feature of the 2 statutes which showed a potential for less favourable compensation under the Ontario scheme and therefore contract did not meet minimum requirements of the B.C. Act. Since the case would have to be remitted to assess damages anyway, the defendants were given the opportunity to lead evidence that in practice the Ontario scheme produces the same compensation as B.C. The remaining issue of liability should be tried in accordance with this decision and damages assessed if the plaintiff succeeds.
• 2001 BCCA 695    Singh v. BC Hydro and Power Authority
  The appellant's argument that office memoranda promising job security formed a term of the contract of employment was rejected. However, the promise of job security along with the termination of the appellant's position as he returned to work after suffering depression were circumstances which were exceptional and thus warranting a longer notice period.
• 2001 BCCA 683    Gillies v. Goldman Sachs
  Mr. Gillies appeals from the damage award in this wrongful dismissal action. The trial judge ordered damages based on a 12-month notice period. The 12 months extended the notice period to a date three days before the Initial Public Offering (IPO) of Goldman Sachs shares. The trial judge declined to compensate Mr. Gillies for his lost opportunity to participate in the IPO. Mr. Gillies contends that the learned trial judge erred: in failing to extend the notice period to a date after the date of the IPO and compensating Mr. Gillies for participation in the IPO; in assessing reasonable notice at 12 months, in failing to increase the notice period to award damages as described in Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; and in his assessment of the bonus component of the damage award.    Held: Appeal allowed. On the evidence, it was clear that everyone employed by Goldman Sachs on the relevant IPO dates was entitled to formula restricted stock units and therefore Mr. Gillies was entitled to participate in that portion of the IPO if the period of reasonable notice extended past the IPO date. With respect to the period of reasonable notice, the court agreed with the trial judge that the evidence did not establish bad faith as set out in Wallace. However, the court found that in all the circumstances, including the possibility that the trial judge may have concluded that the IPO was not a benefit available to Mr. Gillies even if the notice period included the IPO date, the notice in this case should be extended to 13 months. Mr. Gillies was therefore entitled to participate in the IPO’s provision of formula restricted stock units. The issues of whether the limiting provisions contained in the IPO applied to Mr. Gillies, and if necessary, the remedy for the lost participation were referred back to the trial court. The court found that the trial judge had not erred in assessing the bonus component of the damage award.
• 2001 BCCA 679    British Columbia (Minister of Transportation & Highways) v. Reon Management Services Inc.
  Contract – Solicitors for parties’ exchanging series of offers and counteroffers in expropriation compensation case – Issue raised as to whether settlement reached – Hearing Officer finding settlement reached – Court of Appeal reversing finding on basis that record demonstrated parties not ad idem on question of interest due on award – Appeal allowed.
• 2001 BCCA 642    Sadler v. City of Surrey et al.
  An action by an ex-employee against his former employer alleging that the employer libelled him in communications to the WCB, a disability insurer, and a new employer is not barred by standard form "adjustment of differences" clause in the collective agreement between the employer and the union to which the ex-employee had belonged.
• 2001 BCCA 628    Pacific Granite v. Trasolini & Sons
  CONTRACT – IMPLIED TERM   On appeal from a summary trial judgment refusing to imply a term in a construction contract based on custom and usage or business efficacy. Held: appeal dismissed. There was no error in the law applied by the summary trial judge and the evidence could reasonably support his conclusions.
• 2001 BCCA 626    Teves v. T.T.M. Bldg. Maintenance Ltd. et al.
• 2001 BCCA 619    Powder Mountain Resorts Ltd. v. British Columbia
  Appeal dismissed from dismissal of actions for breach of contract, abuse of public office and "failure to negotiate in good faith" against H.M.T.Q. and Premier of British Columbia. Since the tort of abuse of public office had been expanded since the trial judgment, that tort is discussed in detail. Facts found by the trial judge were supported by the evidence and did not support either branch of the tort.
• 2001 BCCA 609    Shelter Industries Inc. v. Great Northwest Contracting Ltd.
  Appeal and cross-appeal in action arising from construction of a building by the plaintiff below in which it sued for an amount it alleged remained due on the building contract. By the time of trial, the items in dispute had been substantially reduced and the trial judge gave judgment in favour of the plaintiff in an amount less than that claimed. The defendants claimed deficiencies and sought a reduction in the "extras allowed".  Plaintiff's counterclaim defeated and claim of extras reduced by $1,243.00.  Defendants' claim for "supervision costs" was dismissed by trial judge on footing it had no foundation in law. The trial judge erred in law in refusing it out of hand; however, this Court is unable to sort out the evidence and find the facts and, as the amount in issue does not warrant remitting the matter to the court below, the claim is not allowed. Defendants' claim for loss of rent allowed in the amount of $3,750.00.  Appeal allowed to extent of reducing judgment below by $4,993.00 and cross-appeal dismissed. Plaintiff to pay the defendants one-third of the defendants' disbursements in this Court.
• 2001 BCCA 606    Rava Innovations Inc. v. International Parkside Products Inc. et al.
  On an application for leave to appeal under s.31 of the Commercial Arbitration Act, the test is whether there is "more than an arguable point" or "sufficient substance to warrant the appeal proceeding". B.C.I.T. (Student Association) v. B.C.I.T. 2000 BCCA 496.   In this case, the learned chambers judge refused leave applying the old test of "obviously wrong", as B.C.I.T. had not been decided when she rendered her decision, applying the new test, the result would have been the same. The appeal was dismissed.
• 2001 BCCA 600    Falls Creek Falling Contractors Ltd. v. Pat Carson Bulldozing Ltd.
  CONTRACT — INDEMNITY CLAUSE — ARBITRATION   On appeal from a decision upholding an award by an arbitrator that an amount withheld under a head contract (not before the arbitrator) was a claim within the indemnity clause of the subcontract. Held, by a majority, Newbury J.A. dissenting, that the arbitrator's interpretation was correct and the appeal should be dismissed.
• 2001 BCCA 597    Johnson v. B.C. Securities Commission et al.
  1) The court reviews a British Columbia Supreme Court decision which reviewed a British Columbia Securities Commission proceeding. HELD: The phrase "public interest" as it relates to the British Columbia Securities Act, is not impermissibly vague and is not contrary to the constitution.   2) During the Supreme Court proceedings, Allan, J. excluded testimony of an expert witness for the appellant. HELD: There was no error in doing so.   3) During the Supreme Court proceedings, Allan, J. ruled that s. 142 (then s. 126), of the Act is ultra vires. Held: section 142 is not ultra vires. The decision relied on by Allan J. to arrive at this ruling has been reversed by the Supreme Court of Canada.
• 2001 BCCA 580    Bank of Nova Scotia v. Robertson
  In an action to recover on a guarantee, the trial judge rejected the defendant’s contention that a receiver disposed of assets imprudently and thereby exposed him to greater liability on the guarantee. HELD: Appeal dismissed substantially for the reasons given by the trial judge.
• 2001 BCCA 544    Re:  Bankruptcy of Prescott
• 2001 BCCA 527    Brothes Pascal Rowlands et al. v. The Christian Brothers of Ireland in Canada et al.
  Unincorporated body Christian Brothers of Ireland responsible for starting up Vancouver College Limited and Vancouver College School – incorporated in 1962 as Christian Brothers of Ireland in Canada – Vancouver College Limited shares held in names of 4 Christian brothers – issue as to whether 4 brothers hold Vancouver College Limited shares as members of Christian Brothers of Ireland in trust or otherwise or whether they hold them in their individual capacities albeit with responsibilities as members of Christian Brothers of Ireland – legal effect of incorporation of unincorporated body to a corporate one. Similar but different problems with St. Thomas More Collegiate in Burnaby. Majority concludes that shares of Vancouver College Limited and St. Thomas More Collegiate subject to specific purpose charitable trusts to operate schools in the hands of Christian Brothers of Ireland in Canada.     DISSENT: Shares of Vancouver College Ltd. and St. Thomas More Collegiate Ltd. held by individual Christian Brothers as trustees for specific purpose charitable trusts. Unincorporated associations capable of holding property in qualified sense of holding by members --conscience of individual trustees (not of Congregation or CBIC) bound by obligations of trusteeship. Incorporation of unincorporated body does not require transfer of shares to corporations --CBIC therefore has no interest in the shares. Conflict of laws --Ontario Court of Appeal on doctrine of charitable immunity not applicable in British Columbia. Assets belonging to one specific charitable purpose trust not exibible for claims arising against second charitable purpose trust where two separate corpuses exist and are merely held by same trustee corporation.  
• 2001 BCCA 524    Zaraweh v. Hermon, Bunbury & Oke
  The defendant employer gave working notice of termination to the plaintiff of a length that did not meet the implied contractual term of reasonable notice. The employee sued for general and punitive damages before the end of the working notice. The employer then refused to further employ the plaintiff. On appeal it was held that in the circumstances the commencement of the action by the plaintiff constituted repudiation of the contract, and the inadequate notice by the employer did not amount to repudiation. However, the inadequate notice was a breach of the employment contract which entitled the plaintiff to recover damages commensurate with the amount by which the notice was inadequate. The appeal was allowed in part.
• 2001 BCCA 517    Kobzey v. Sun Life of Canada
• 2001 BCCA 496    Coast Hotels v. Northwest Hotels Inc.
• 2001 BCCA 486    Pacifica Papers Inc. v. 3017970 N.S. Co. et al.
  An appeal from the order of the S.C.B.C. pronounced pursuant to s. 192(4) of the Canada Business Corporations Act R.S.C. 1985, c.44, approving an arrangement between two companies, "Pacifica" and "Norkse" was dismissed. The approving judge held that the arrangement was in all aspects fair and reasonable, and there was no proper basis for interfering with that conclusion, or with the exercise of the broad discretion granted by s. 192(4). It was unnecessary to decide whether the finding that Pacifica was in breach of s. 150(1) was correct or not.
• 2001 BCCA 479    Apex Mountain Resort Ltd. et al v. HMTQ
  The appellants claimed they lost their ski resort because the respondent Province negligently misrepresented its position with respect to aboriginal road blockades on an access road leading to the resort, or alternatively breached an express term of the development agreement for the resort by failing to maintain public access to the resort on the road. Held: Appeal dismissed. The trial judge made no error in concluding that the Province did not fail to divulge material information and that the appellant did not act to its detriment because of any such failure. Nor was there any error in the trial judge’s conclusion that the development agreement contained no obligation on the Province to maintain public access to the resort.
• 2001 BCCA 470    Churchland et al. v. Gore Mutual Ins. Co.
  The Court reconsidered its decisions in Dressew Supply Limited v. Laurentian Pacific Insurance Company, Mindell v. Canadian Northern Shield Insurance Company (1991) 57 BCLR (2d) 198. It was held that where an insured loss occurred other than by fire, the limitation period for an action against an insurer under a multi-peril policy was governed by Part 2 of the Insurance Act, and that the insurer could not incorporate the statutory conditions of Part 5 under the policy.
• 2001 BCCA 469    KP Pacific Holdings Ltd. v. Guardian Insurance Company of Canada et al.
  The majority held that where an insured loss occurred by fire, the limitation period for an action against an insurer under a multi-peril policy was governed by Part 5 of the Insurance Act. The minority dissented, and would have applied the same analysis as adopted in Churchland v. Gore Mutual Insurance Company (Vancouver CA025800).
• 2001 BCCA 432    Graham v. Rogers
  Appeal of awards for past wage loss and future loss of earning capacity in a personal injury action allowed. Trial judge erred in refusing the past pecuniary loss on the basis of a failure to mitigate.
• 2001 BCCA 426    Spoor et al. v. Nicholls et al.
• 2001 BCCA 388    McLaren v. Pacific Coast Savings
  Employment Law - Respondent Manager forced to retire at age 65. Trial court finding that manager entitled to damages in lieu of notice because retirement policy of appellant ambiguous. Court of Appeal not acceding to argument that manager should be found to be bound by an election or estopped from pursuing action on basis of earlier expressions of manager that he anticipated he would retire at 65. Appellant could not demonstrate that it acted on these earlier statements of manager. Appeal dismissed.
• 2001 BCCA 375    Degelder Construction v. Westfair Properties
  Fixed price contract for earthwork with provision for extra payment for required extra work. At conclusion of construction work appellant contractor advanced claim for extra payment. Owner refused to pay and action commenced by contractor seeking construction of contract that it argued entitled it to extra payment. Trial judge on 18A hearing finding that properly construed, contractual language did not support claim advanced by appellant contractor and dismissing claim. Court of Appeal finding trial judge properly construed contractual language and concluding that appeal should be dismissed.
• 2001 BCCA 338    Boisclair v. ICBC
• 2001 BCCA 314    Riva Yachts v. Dunfield et al.
  The trial judge found that transactions between the plaintiff Riva, and the defendant Dunfield were in the nature of a loan, with Dunfield’s shares in a company delivered to Riva as security. Dunfield’s position was that the transaction was a sale of the shares for a certain price, agreed to by Kostiuk, for whose family Riva was a holding company. Kostuik became bankrupt before trial.   A creditor of Kostiuk, Barnes, was added as a party to the appeal, as the assignee of Kostiuk’s trustee in bankruptcy.   A new trial was ordered on the issue of whether there was a sale or a loan, and on whether the money advanced by Riva was in fact owed to Kostiuk. Barnes was entitled to participate in that trial to assert the trustee’s interest.
• 2001 BCCA 313    Seel v. Almac
  Forum conveniens case – Contract for supply of machinery made between BC and Alberta companies proceedings on foot in both provinces – Machinery installed in BC plant – BC found to be appropriate jurisdiction for justice to be achieved between parties.
• 2001 BCCA 303     C.A.S.A.W. v. Alcan Smelters and Chemicals Ltd.
  The appellants claimed that an amendment to the respondents' pension plan to eliminate overtime earnings from the calculation of their pension on retirement adversely affected their right to benefits which had accrued to the date of the change. Held: Appeal dismissed. The trial judge was correct in finding that the benefits accrued to the date of the change were to be calculated based on the employee's earnings and service to that date. Those benefits were preserved by the amendment. The appellants are entitled to their costs paid out of the pension plan because the matter involved a question of the construction or administration of the plan.
• 2001 BCCA 278    Leclair v. Sands & Associates
  Appeal from the decision of a chambers judge dismissing an appeal from a Master’s order. The master upheld the finding of the respondent trustee in bankruptcy that the appellant was an unsecured creditor of the bankrupt. Held: Appeal dismissed. The appellant had priority over other judgment holders but did not have priority over third parties holding mortgages against the bankrupt’s property.
• 2001 BCCA 271    Wong v. Chan
• 2001 BCCA 268    Westbank Holdings Ltd. v. Westgate Shopping Centre Ltd. et al.
  Appeal quashed as wholly lacking in merit. Litigation in this case turned on whether a clause in an agreement was a covenant which ran with the land. The clause in question did not meet the test in Nylan Foods v. Roman Catholic Episcopol Corp. of Prince Rupert (1988) 48 D.L.R. (4^th) 175 (B.C.C.A.) nor could it.. The appeal was quashed under the authority of Bank of Montreal v. Singh (1979) 18 B.C.L.R. 149.
• 2001 BCCA 253    Mosher v. Epic Energy
  The award of damages for breach of an employment agreement was set aside and the appeal allowed. The damage award was based upon the incorrect premise that the plaintiff had acted reasonably in failing to seek employment until nearly sixteen months had elapsed from his departure from the work site, when the evidence disclosed he was always able to obtain alternate employment at the same or higher rate of pay, to completely mitigate his damages.
• 2001 BCCA 245    Bayerische Hypotheken-Und Wechsel-Bank Aktiengesellschaft v. Rieder
  The respondent, a German bank, persuaded the trial judge that the appellant borrowed from it the sum of DM300,000 in 1982 in addition to the sum of DM100,000 that the appellant admitted borrowing. The conclusion of the trial judge was supported by the evidence and the appeal was dismissed.
• 2001 BCCA 244    Franciscan No. 1 (The) v. Qualicum Producer (The)
  Appeal and cross-appeal from judgment awarding damages to the plaintiffs, limited to an amount pursuant to s. 575 of the Canada Shipping Act, resulting from the Qualicum Producer cutting the seine net of the Franciscan No. 1 during a "shotgun" roe-herring fishery.   Cross-appeal regarding finding of negligence against the master of the Qualicum Producer dismissed.    Appeal regarding limitation of owner's liability under the Canada Shipping Act allowed. The nature of the roe-herring fishery compels the sacrifice of safe navigation and good seamanship and an owner knowingly putting his vessel into that adventure ought not to be permitted to say he was without actual fault or privity. Savage Fisher (The) v. Prosperty (The) (2000), 78 B.C.L.R. (3d) 388 (B.C.S.C.) adopted; Sea Queen Fisheries Ltd. v. British Columbia Packers Ltd., [1984] B.C.J. No. 1261 (Q.L.) (B.C.S.C.) overruled. Award for loss of fish made and therefore alternative claim for unjust enrichment does not arise. Claim for punitive damages dismissed.
• 2001 BCCA 243    Elkhorn Developments Ltd. v. Sovereign General Insurance
  The trial judge's refusal to dismiss the respondent's claim under Rule 18A was overturned. The clause at issue was properly construed as promissory warranty within the meaning of s.32(1) of the Marine Insurance Act and not a suspensive condition. The insurance policy was effectively cancelled retroactively by the respondent's agent.
• 2001 BCCA 229    Lind v. Canadian Northern Shield Insurance Company
  Appeal from the decision of a chambers judge finding that an exclusion clause in a homeowners all risk policy did not apply. Held: Appeal allowed. The exclusion clause applied. The prior decision of the Court in Canevada Country Communities Inc. v. GAN Canada Insurance Co. (1999), 68 B.C.L.R. (3d) 94 is distinguishable.
• 2001 BCCA 214    Fraser v. Vancouver Board of Parks & Recreation
  The appellant was a caretaker of a Vancouver park. In exchange for performing certain custodial and watchman duties for the Parks Board he received rent-free accommodation in a residence contained within the Park fieldhouse. The fieldhouse also contained public washrooms and change rooms. The issue on appeal was whether the decision of an arbitrator under the Act was patently unreasonable in finding the tenancy agreement came within s. 34(1). HELD: Appeal dismissed. The arbitrator was not patently unreasonable. Although the words "employed" and "employment" were found in s. 34(1) and the appellant was not an employee under a contract of service, the section, correctly read, referred to those with a tenancy agreement as part of their caretaker’s contract.
• 2001 BCCA 197    Delta Sun Investments Ltd. v. Cheron Holdings Ltd.
• 2001 BCCA 180    Sidak v. Financial Collection Agencies (International) Inc.
  Appeal from a judgment essentially dismissing claim for damages arising out of alleged breach of employment contract (with exception of overtime claim). No reversible errors of law or fact shown in trial judge's reasons. Appeal dismissed.
• 2001 BCCA 179    Kullar v. Co-operators Insurance
  Appeal from judgment on Rule 18A application dismissing plaintiff's action asserting loss under a fire insurance policy. Issue on Rule 18A application had been whether the fire was caused by the intentional or criminal acts of an insured (the appellant's son) and if so whether the loss occasioned by the fire is therefore excluded from coverage.   The forensic report was excluded as evidence and no expert evidence had been provided. Affidavit evidence of police does not indicate any true, personal knowledge within the requirements of 2.71 of the Evidence Act. The respondent has not proven the facts which would bring into operation the exclusion upon which it relies. Appeal allowed.
• 2001 BCCA 173    Royal Bank v. Bruyneel & Company
  Trial judge erred in holding that no duty of care was owed to Bank by borrower whose principal was a C.A. and who prepared financial statements relied on by Bank. Accordingly, Bank could recover for negligent mis-statement for borrowers’ failure to disclose large defalcation of funds.
• 2001 BCCA 161    Malcolm v. Transtec Holdings Limited et al.
  The directors of a parent company attempted to provide benefits for senior officers of a subsidiary company that was without assets or income. They caused funds to be made available to pay dividends on worthless preferred shares and to redeem same such shares. Each officer was to be treated differently depending on whether he was still employed, retired or deceased. The plaintiff, who was still employed received redemption income but he sued claiming the same right to dividends as a retired employee even though the company had no funds to pay dividends. At trial: it was held the directors of the parent company were personally liable for breach of fiduciary duty to these shareholders. Held: allowing the appeal the plaintiff's claim, if any, was against the company and that there had been no breach of fiduciary duty.
• 2001 BCCA 149    Bavaro v. North American Tea, Coffee & Herbs Trading Co. Inc.
  WRONGFUL DISMISSAL – FACTORS IN DETERMINING NOTICE PERIOD - INTERPRETATION OF LETTER OF EMPLOYMENT – WHETHER AWARD FOR VACATION PAY DURING NOTICE PERIOD SHOULD BE UPHELD Appeal from an award of damages for wrongful dismissal. The plaintiff received damages of six months salary, plus damages for vacation, sick days and insurance benefits. The defendant appealed on the basis that the trial judge erred in using the plaintiff’s period of unemployment following dismissal as a measure of the appropriate notice period, misconstrued the bonus clause in the employment letter, and erred in awarding damages for vacation, sick days and insurance benefits. Held: Appeal allowed in part. The award for insurance benefits was set aside because the plaintiff had not shown loss from the cancellation of insurance benefits. In all other respects the award of the trial judge was upheld. It was legitimate for the trial judge to look at the period of unemployment actually experienced by the plaintiff as one of the factors in determining the appropriate notice period. The trial judge’s interpretation of the bonus clause was the proper one. Damages for vacation pay during the notice period are recoverable only where the plaintiff can demonstrate lost opportunity to take a vacation. Here the plaintiff’s evidence showed that he did not enjoy any time off during the notice period and therefore the award for vacation and unused sick days (which converted to a vacation benefit) was upheld.
• 2001 BCCA 131    Bertalan (Estate) v. American International Assurance
  This was an appeal by the insurer from the order of the trial judge that the insured’s death was caused by an accident. At issue was whether an insured’s death caused by the voluntary inhalation of nitrous oxide was an accident. The Court dismissed the appeal. The Court shared the trial judge’s view that the insured’s death was caused by an accident; however, they disagreed with his analysis of the issue. Instead, the Court relied upon the analysis developed in Martin v. American International Assurance Life Company Ltd., 2001 BCCA 130 , released concurrently with this decision. In this case, it was agreed by all that the insured did not intend to cause his own death. In the absence of an intention to commit suicide, the insured must have either miscalculated the amount by which he could reduce the oxygen flow to his brain or inadvertently did not pay sufficient attention to it. That element of mischance or mishap rendered the cause of death an accident.
• 2001 BCCA 132    C.J.A. v. American International Assurance
  The Court allowed an appeal from an order dismissing a claim for accidental death benefits from a group life insurance policy under which the appellant’s deceased husband was insured. It was common ground that the insured’s death was caused by autoerotic asphyxiation. The Court applied the analytical approach enunciated in Martin v. American International Assurance Life Company Ltd., 2001 BCCA 130 , released concurrently with this decision. There was no evidence as to whether the insured had ever attempted autoerotic activity before. In the absence of an intention to commit suicide, the insured must have either miscalculated the amount by which he could reduce the oxygen flow to his brain or inadvertently did not pay sufficient attention to it. That is the element in the event leading to the insured’s death of which the trial judge took no account. That element of mischance or mishap rendered the cause of death an accident.
• 2001 BCCA 130    Martin v. American International Assurance
  The issue on appeal was whether a death caused by an overdose of self-injected Demerol comes within the "Accidental Death Benefit Provision" of a life insurance policy. The trial judge found that the insured’s death was not caused by accidental. The Court allowed the appeal. An accident is equivalent to accidental means and a causation analysis is required. The causation analysis requires one to ask, "would a witness to the event, with the knowledge of all the circumstances, use the word ‘accident’ to describe what happened to cause the insured’s death?" It is necessary to look at the action that caused the injury and all the circumstances surrounding it in a holistic way. Key to this approach is the recognition that an accident may be predicated upon a miscalculation or misapprehension of forces by the insured. In ordinary parlance, intention is the criterion that distinguishes accidents from non-accidents and intention must be inferred from the surrounding circumstances. In each case the trial judge must determine whether on the facts and circumstances of the case, accident has been established. Insurers can limit coverage through appropriately worded exclusion clauses. In this case it was agreed that the insured did not intend to commit suicide. The lethal administration of Demerol by the insured was an accidental overdose and his death was an accident.
• 2001 BCCA 124    Manion v. Western Pulp Limited Partnership
  Appeal from judgment declaring the form of pension under Western's registered pension plan was "LG5" normal form (monthly payments for life of pensioner, guaranteed for five years) rather than a "J & S 60" form (monthly payments to pensioner for life and thereafter 60% to pensioner's surviving spouse) and holding that Western was entitled to deduct certain arrears paid by Fletcher Challenge Canada Ltd. under its registered pension plan in determining the appellant's pension under Western's registered pension plan.  Appeal allowed. Orders set aside and declarations made that appellant's pension under Western's registered pension plan be as stipulated in an appendix applicable to Western's supplementary plan participants and that Western is not entitled to deduct the arrears paid by Fletcher Challenge Canada Ltd. in determining the appellant's pension.
• 2001 BCCA 118    Crosby (Estate) v. Native Fishing Association
  Contract – Breach – Debtor not informed of reduction in life insurance at age 65 On appeal from a judgment dismissing a claim for damages for failure to provide life insurance incidental to a loan. Held, appeal allowed. The defendant was contractually bound to provide life insurance of $150,000 by the terms of the loan agreement and the reduction in insurance under the policy by half at age 65 did not limit the obligation as it was not brought to the debtor’s attention.
• 2001 BCCA 111    Gee et al. v. Helo Investments Ltd. et al.
• 2001 BCCA 83    Shinn v. TBC Teletheatre B.C. et al.
  Damages for Wrongful Dismissal: The Plaintiff was employed in a marketing capacity for three years and three months. The trial judge took an alleged bonus inducement and the failure of the employer to give a more favourable reference into account in fixing 10 months as the period of reasonable notice. The damages assessed by the trial judge included the employer’s contribution to Canada Pension Plan benefits and to Employment Insurance premiums. Held: The alleged bonus inducement and the failure of the employer to give a more favourable reference letter should not have been taken into account in assessing the period of reasonable notice. The employer contributions to employment insurance premiums should not have formed part of the damages as there was no evidence of loss arising from the employer’s failure to make those payments. The employer’s Canada Pension Plan contributions were properly taken into account in assessing damages. The period of reasonable notice should be reduced to 8 months (per Prowse J.A. and Rowles J.A.). Chief Justice McEachern, dissenting on this point, would have reduced the notice period to 6 months.
• 2001 BCCA 65    Interclaim Holdings Limited v. Down
  Appeal from an order dismissing a petition in bankruptcy on grounds that "assignments" of claims and debts to the petitioner were tainted by champerty.    Appeal allowed. The issue of champerty was a red herring. Petition remitted for determination of issue arising on s. 43(1) of the Bankruptcy & Insolvency Act.
• 2001 BCCA 49    Deal S.r.l. v. Cherubini Metal Works Limited
  A builder's lien on land where there was a shed housing large steel moulds used for casting concrete sections of a rapid transit system was set aside at trial. Held: Allowing the appeal, that the lien should be reinstated following the decision of this Court in Boomars Plumbing & Heating Ltd. v. Marogna Bros. Ent. Ltd. (1988), 27 B.C.L.R. (2d) 305 (B.C.C.A.).
• 2001 BCCA 39    Canadian Helicopter Limited v. Interpac Forest Products Ltd.
  In a contract for the use of helicopter logging services, the defendant customers agreed to use a minimum of 1700 hours at $2,725 per hour in a one year period. The contract did not specify a maximum permissible downtime in any given period for maintenance or repairs. The defendant contended the contract was void for uncertainty as a result of this omission. The trial judge held that there was a complete contract and awarded the full amount claimed. The Court confirmed the trial judgment on both liability and quantum. An implied term in the contract requiring the plaintiff to make the helicopter available for the defendants' exclusive use was subject to the usual risks, including downtime for maintenance. Minimum downtime could not however be implied. The evidence supported the trial judge's award for the full amount claimed.  The award of increased costs was set aside. Although there was a significant discrepancy between party and party costs and the plaintiffs actual costs, there was no other special circumstances which would justify an award of increased costs.
• 2001 BCCA 28    ICBC v. Allianz Insurance
  The insureds, using a rented vehicle, had public liability coverage under three policies, a fleet policy, a rental vehicle policy and a composite mercantile policy with motor vehicle coverage.   The decision confirms the trial judgment that the fleet policy was first loss insurance, the composite mercantile policy responded next and there was no coverage for this loss under the rental policy.
• 2001 BCCA 16 Buschau v. Rogers Communications Inc.
  Trial judge did not err in ruling employer was entitled to "contribution holidays" from pension plan payments on application of Schmidt v. Air Products; employer conceded it had wrongly taken cash from pension plan’s surplus and would repay. Trial judge ruled correctly that funds were to be repaid to Plan, not to individual plaintiffs, members of Plan. Intervening merger of Plan with four others did not affect separate existence of trust, or right of all members to invoke rule in Saunders v. Vautier if conditions of that rule were met — to be tried in separate proceedings. Court refrained from deciding whether co-mingling of pension funds on merger constituted a separate breach of trust.