B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

REAL PROPERTY 2001

• 2001 BCCA 744 Canacemal Investments Inc. v. Regions Group of Companies International Trading Ltd.
  Appeal by defendant below from, first, a declaration that the use of leased premises for instruction purposes by Berlitz Canada Inc. is not a use of the premises as a "general business office" or "office package" as set out in articles 9 ("Use of Premises") and 11(b) ("Assignment or Sub-letting Procedures") of the lease and, secondly, that the defendant is in breach of those articles of the lease in the event that the plaintiff does not accept in advance rent payable pursuant to the lease and Berlitz continues to occupy or lease the premises for the purpose of instruction. The question on appeal is whether the "business and/or profession of Instructing", as contained in the Berlitz agreement, is a breach of article 9 of the lease, for if it is, then the tenant had no right to sublease under the concluding paragraph of article 11(b).   The learned judge below did not err in the conclusion to which he came regarding the first declaration and therefore the Court would not set aside the first declaration. The second declaration is a misuse of the process of the court and the appeal is therefore allowed and that declaration is set aside. No award of costs.
• 2001 BCCA 736 Denman Island Local Trust Committee v. 4064 Investments Ltd.
  The Denman Island Local Trust Committee (the "LTC") appeals from a decision quashing five bylaws of the LTC. Bylaws 110-114 amended the Denman Island Official Community Plan to designate development permit areas pursuant to s. 879(1)(a) and (b) of the Local Government Act. The respondent, 4064 Investments Ltd., is the largest landowner on Denman Island. Prior to the adoption of the bylaws, it was engaged in a program of logging its lands. The amending bylaws had the effect of significantly limiting the respondent’s ability to carry on that logging program. For a time after the adoption of the bylaws, 4064 Investments Ltd. carried on with its operation in alleged contravention of the new regulations. The trial judge dismissed LTC's action to enjoin that conduct and quashed the amending bylaws, holding that they were void as beyond the jurisdiction of the LTC pursuant to ss. 879 and 920 of the Local Government Act.    Held (Rowles J.A. dissenting): Sections 879 and 920 of the Local Government Act, when read in context, do not empower local government, in a broad way, to regulate forestry practices in an area designated under s. 879. The appeal concerning bylaw 113 was dismissed. The order declaring bylaws 110, 111, 112 and 114 invalid was set aside and the issue of their validity was remitted to the B.C.S.C. for fresh determination.
• 2001 BCCA 708 S.C.I.C. v. City of Burnaby
  Four issues raised on these appeals by Burnaby. 1. The appeal was dismissed on The Non-Conforming Use Issue. 2. The appeal was allowed on The Vagueness Issue. 3. The appeal was dismissed on The Tree-Cutting Issue. 4. The appeal was dismissed on The Arborist's Report Issue.
• 2001 BCCA 685 Kamloops Estates Ltd. v. Avon Holdings Ltd.
  Appeal from the dismissal of a foreclosure petition on the basis that it was statute barred. The appellant mortgagee received payments during the limitation period from the respondent mortgagor. The appellant did not allocate them to any one of the several debts owed by the respondent. Had any of the payments been put to the subject mortgage or deemed by law to be appropriated to it, the cause of action would have been confirmed. But the appellant could not show that the subject mortgage was the only debt during the relevant time nor that it was the oldest debt. Consequently there was no confirmation and the foreclosure petition was brought out of time. Appeal dismissed.
• 2001 BCCA 640 Diligenti v. HMTQ
  The Court held the chambers judge erred in her application of the Property Transfer Tax Act, S.B.C. 1987, to the facts of the cases. The assessment was restored
• 2001 BCCA 635 Wm. Weseloski & Assoc. v. Currie
  Appeal allowed. Use of a house as a drug and alcohol recovery centre for six women at a time, under paid supervision. Such a use is not contrary to a restrictive covenant in a building scheme preventing "industrial or commercial occupation, business, or enterprise.
• 2001 BCCA 622 456559 B.C. v. Cactus Cafe et al.
  Offer to lease – issue is whether lease of a building or lease of land – InternationalPaper Industries Ltd. v. Top Line Industries Inc. (1996), 20 B.C.L.R. (3d) 41 not applicable because lease of building within s. 73(3) Land Titles Act.
• 2001 BCCA 610 King v. Nanaimo (City)
  The appellant was elected a member of the Nanaimo City Council in 1990. The Council adopted a resolution declaring the appellant’s office to be vacant under what was then s. 214 of the Municipal Act, R.S.B.C. 1996, c. 323. The resolution was based on allegations that the appellant failed to file a proper disclosure statement, as required by s. 90 of the Act, with respect to campaign contributions received by him. His petition seeking to set aside the disqualification was dismissed on the ground he was not qualified to hold office by reason of a breach of s. 201(5) of the Act which prohibits participation in respect of a matter in which the member has a pecuniary interest. Held: Appeal allowed. The chambers judge's finding that the appellant was not qualified to hold office by reason of a breach of s. 201(5) was wrong in law. Nothing in the facts justified the finding that the appellant had a pecuniary interest. The respondent's cross appeal that the appellant was properly disqualified because his disclosure statement was in breach of s. 90(3) of the Act was dismissed on the ground of mootness, in view of the appellant's term of office having already expired. The order for costs made against the appellant in the court below was also set aside.
• 2001 BCCA 548 First Island v. Marrall Homes Ltd. et al.
  The Court dismissed an appeal from an order declaring a collateral mortgage void, the appeal being founded entirely on findings of fact reasonably supported by the evidence.
• 2001 BCCA 545 Salico et al v. Instafund Financial Services et al
  An offer to provide funding in a mortgage commitment letter incorporated by reference a standard "No Obligation to Advance" clause. Under that clause a lender retains a discretion whether to advance funds. Relying on Schwartzman v. Great-West Life Assurance Company et al (1955), 17 W.W.R. 37 (B.C.S.C.), aff'd. (1956) 18 W.W.R. 45 B.C.C.A.) and Adriatic Development Ltd. v. Canada Trustco Mortgage Company (1983), 53 B.C.L.R. 31 at 32 (B.C.C.A.) (leave to appeal refused, [1984] 53 N.R. 319 (S.C.C.)) on a summary trial under R18A, the learned trial judge dismissed the plaintiff's claim for breach of contract based on the lender's refusal to advance funds. An appeal from this judgment was dismissed. In a related foreclosure proceeding, the court affirmed the trial judge's conclusion that no new contract had been formed and that the borrower has no entitlement to monies received on sale of the property.
• 2001 BCCA 448 Times Square v. Shimizu et al.
  The issue in this appeal is whether words of guarantee in the reading of an accepted offer to lease coupled with a signature by the appellant as "guarantor" created an enforceable guarantee by the appellant of the obligations of the corporate tenant under the agreement. The Court allows the appeal, holding (Low, J.A. dissenting) that there was no guarantee in the lease agreement in the absence of a provision with "substantive content" creating a guarantee.
• 2001 BCCA 399 Zaenker v. Kirk
  Appeal dismissed - no error of fact on law demonstrated.
• 2001 BCCA 397 ARA Holdings Ltd. v. Provincial Approving Officer
  Trial judge erred in holding approving officer had failed to exercise his discretion in considering subdivision application. Approving officer had not improperly delegated his authority, nor contravened provisions of the (then) Municipal Act. However, it appeared some reports relied on by the applicant had not been reviewed by the approving officer, making a re-consideration necessary. Thus the trial judge's order for reconsideration would be confirmed.
• 2001 BCCA 392 Golden Valley Golf Course Ltd. v. B.C. (Minister of Transportation)
  An owner of land received an advance payment in respect of an expropriation, and signed a "section 3 agreement" under the Act, contemplating that the Board would determine the compensation payable and any overpayment (secured by mortgage) would be repaid to the expropriating authority. It was known at the time that the advance payment likely exceeded the value. Later, the owner sought to withdraw from the evaluation proceedings. The Board, which included one member who accepted employment with the Province after the hearing but before reasons were issued, held that the owner could not withdraw. On appeal all three members of the Court agreed that the owner was estopped from withdrawing. Newbury and Rowles JJ.A. agreed, however, that due to perception of bias arising from the employment of a Board member, the matter must be reheard by the Board. Hall J.A. dissented on the issue of bias.
• 2001 BCCA 373 City of Coquitlam v. Aweryn et al.
  Appeal dismissed on a by-law enforcement case for the reasons of the trial judge. No error in refusing to exercise her discretion not to order compliance with a by-law permitting only one secondary suite in a residential zone. The appellant’s residence was a five-plex.
• 2001 BCCA 337 Strata Plan VIS4663 v. Little
• 2001 BCCA 309 Kimmons v. Cooper
  Investors in first mortgages elected at maturity to either be paid out or to reinvest in a new first mortgage. Before all investors were paid in full, the mortgage broker and the mortgagors became insolvent. The first mortgages had not been discharged, and the investors who had elected to reinvest held a new second mortgage over the properties. The trial judge ruled on a Rule 18A application that, based on the intentions of the investors and as a matter of fairness, neither group of investors had priority over the other with respect to the original first mortgages. Held: appeal dismissed. The evidence supported the findings of the trial judge that the intentions of all of the investors were that when the investors who had elected to be paid out were paid in full, the original first mortgages would be discharged and the new second mortgage would become a first mortgage, held by the investors who had elected to reinvest. Immediately before the insolvency, no investor in either group would have expected to receive more than his or her proportionate share of the property if it had been sold to pay those who elected payment. The trial judge appropriately applied the principle of fairness.
• 2001 BCCA 283 Redekop Properties Inc. v. Marall Homes Limited
• 2001 BCCA 279 West Shore Ventures v. KPN Holdings Ltd.
  This appeal by a landlord was from the partial allowance of a claim for unjust enrichment between the provider of a letter of credit securing obligations under a lease and the landlord who drew down on the letter of credit on the bankruptcy of the tenant. There was a cross-appeal by the provider of the letter of credit. Cross-appeal allowed; appeal dismissed. Mr. Justice Hall dissented in part and would have dismissed both the appeal and cross-appeal.
• 2001 BCCA 240 Vancouver (City) v. Jaminer
  City by-law prohibiting roof-top signs was found not to impair free expression more than necessary for purposes of s. 1 of the Canadian Charter of Rights and Freedoms. Trial judgment upheld.
• 2001 BCCA 212 Morton Estate v. British Columbia Hydro and Power Authority
  Appeal from the order of a chambers judge dismissing the appellant's petition for a declaration that the expropriation of the appellant's land for the construction of a dam was unauthorized or otherwise invalid. The petition was brought 29 years after the expropriation. Held: Appeal dismissed. The expropriation was properly authorized by the Order in Council passed pursuant to the British Columbia Hydro and Power Authority Act, 1964. The chambers judge was also correct in dismissing the appellant's petition for undue delay.
• 2001 BCCA 203 Petro-Canada v. North Vancouver (District of)
  Municipal Law – Zoning – Use of Premises – Vires   A zoning bylaw amendment that restricted gas stations without full service pumps and service bays was upheld by a Chambers judge as within the zoning power of the municipality. An appeal from the chambers decision was dismissed.
• 2001 BCCA 184 Ferguson et al. v Grampian Holdings Ltd.
  Appeal from dismissal of a claim for commission on a rental property. No error shown in the trial judge’s interpretation of the clause in the commission agreement that stipulated that the commission was payable when the first month’s rent was paid. Since the landlord and tenant agreed to abandon the lease before occupancy, the condition triggering the payment was never fulfilled. The tenant was not ready, willing and able to complete. No error in the trial judge’s refusal to imply an obligation on the landlord to enforce the lease contract. Appeal dismissed.
• 2001 BCCA 160 Bavelas v. Saanich (District)
  Section 596(6) of the Municipal Act, R.S.B.C. 1979, c. 290 (now s. 549 of the Local Government Act) renders a district municipality immune from liability for a nuisance caused by the discharge of water from a highway right of way into a natural watercourse. The interpretation of that section in North Vancouver v. McKenzie Barge & Marineways Ltd. (1965), 51 W.W.R. 193 (S.C.C.) has not been altered by subsequent decisions of the Supreme Court of Canada dealing with the defence of statutory authority. The appeal by the District of Saanich against the trial judge’s finding of liability was allowed.
• 2001 BCCA 87 Boundary Bay Airport Corporaiton v. Assessor of Area #11
  Private corporation which had a lease of part of Boundary Bay Airport and a licence in respect of another part for purposes of "operating ‘the Airport, did not occupy the ‘licensed’ portion "on behalf of the Crown" for purposes of s. 26(1) of the Assessment Act and was therefore subject to assessment.
• 2001 BCCA 50 Vista Village Park Ltd. v. District of Kitimat
  Appeal from Errico J. dismissing petition to set aside a resolution of the District of Kitimat with respect to charges for water rates. Appeal dismissed for the reasons given by the trial judge.
• 2001 BCCA 9 Fraser Park South Estates Ltd. v. Lang Michener Lawrence & Shaw
  Appeal from judgment finding that no damage was caused to the appellant by any breach of duty of the respondents in action alleging that the respondents had committed acts of omission in the conduct of their client's business up to the closing of a transaction for the purchase of development lands in Richmond, including the failure to discover an outstanding Pollution Abatement Order issued under the Waste Management Act and in failing to include in the contract of purchase and sale representations and warranties which would entitle the appellant to recover from the vendor costs remedying whatever leachate problem might occur. Appeal dismissed; Southin J.A. dissenting.