B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

TORTS 2001

• 2001 BCCA 739 Wiens et al. v. Krahn
  The appellant was a volunteer at a work party at a farm. He removed physical support he had been giving to a ladder climbed by the plaintiff respondent. The plaintiff fell and was severely injured. This court upheld a finding by the trial judge that the appellant was 30 percent responsible for the accident.
• 2001 BCCA 724 Ward v. Clark
  The defendant, then a Minister of the Crown with particular responsibility for the Crown corporation known as "B.C. Ferries", was invited in a media scrum outside the legislative chamber to comment on criticisms by the plaintiff of a project then underway to build and operate 3 "fast ferries" on one of the major routes. The plaintiff, who has had a lifelong involvement in marine matters and has particular knowledge of such ferries, had for over a year been publicly criticizing the project as well as other aspects of the management of B.C. Ferries. The defendant said to the newspaper reporter who raised the question that the plaintiff was a "disgruntled bidder on this project who is constantly feeding misinformation on this issue". The plaintiff sued for libel based on the publication in the newspaper of the defendant's statement.  The trial judge found that the plaintiff, who had made proposals to supply fast ferries and who was unhappy about the treatment he had received from the corporation and the government, was a "disgruntled bidder" but that none of his criticisms were shown to have been "misinformation". Having found that the statement was defamatory, but that the occasion was one of qualified privilege and that there had been no malice on the part of the defendant, the trial judge went on to hold that the defence of qualified privilege was vitiated because the defendant's language was "disproportionate" and thus was not "germane and reasonably appropriate to the occasion". That finding could not stand in face of the earlier finding that there was no malice because the defendant had an honest and reasonable belief in the truth of what he said and his dominant motive had been to advise the public that the plaintiff, because he was a disgruntled bidder, lacked the necessary objectivity to make valid criticisms of the project. Where the occasion is privileged, and absent malice, the defendant is protected, even if his language was violent or excessively strong (Adam v. Ward, [1917] A.C. 309, 173). On the basis of the judge's finding in favour of the plaintiff, the defendant was entitled to succeed. The action is dismissed.
• 2001 BCCA 674 Alvarez v. Dutt
  Appeal from a judgement dismissing an action for medical negligence. No reversible error.
• 2001 BCCA 594 Baker v. The City of Victoria et al.
  The Department of National Defence, sued as the occupiers of an armoury, was found 50% at fault for injury and loss sustained by the plaintiff who fell into a partially open manhole on the premises. Although the trial judge was satisfied that the DND had a good system of inspection, he decided that in the circumstances it should have provided other safeguards against such a mishap. HELD: Appeal dismissed. The trial judge did not enlarge the standard of care but merely applied existing law to particular facts of this case.
• 2001 BCCA 578 Gook Country Estates Ltd. v. The Toronto Dominion Bank
  The appellant claimed that the respondent Bank wrongly debited its account for $560,750 paid on a letter of credit. The trial judge dismissed the appellant’s claim. Held: appeal dismissed. The Bank was entitled to honour the demand for payment in the form in which it was made.
• 2001 BCCA 576 Miscisco v. Small et al.
  No reversible error in an assessment of damages.
• 2001 BCCA 550 Keller v. Cole
  Plaintiff appeals quantum in personal injury action. Seeks to have factual issues re-tried. Appeal dismissed.
• 2001 BCCA 546 Montgomery v. Luoma
  The defendant doctor appeals from a judgment holding him liable for damages for negligence in failing to diagnose the plaintiff’s condition in a timely way. The defendant asserted the trial judge applied a standard of care not supported by the evidence, and that he erred in finding a causal connection between the diagnosis and the necessity for an operation to correct the condition. The appeal was allowed on the second ground. There was no evidence to support a finding of causation on a balance of probability.
• 2001 BCCA 543 Binnie v. Marsollier
  A jury verdict was set aside because it awarded $7,500 for special damages but nothing under other heads. Since the assessment of damages depended on the plaintiff's credibility a new trial was ordered.
• 2001 BCCA 530 Masunda v. Johnson et al.
  The appeal from dismissal of the plaintiff's for defamation was dismissed for the reasons given by the trial judge.
• 2001 BCCA 444 Tremblay v. McLauchlan
  This appeal is from the order of the trial judge, awarding the plaintiff $519,000 in damages on the basis that the defendant doctor failed to disclose a material risk associated with a neck surgery, and therefore the plaintiff’s consent was not informed. Held: The trial judge properly concluded that the defendant failed to meet the appropriate standard of care with respect to disclosure of a material risk and that a reasonable person in the plaintiff’s position would not have consented to the surgery if advised of the risk. The trial judge erred on the issue of causation, in placing the burden upon the defendant to establish that the injury would have occurred even if another surgeon performed the operation. The judgment for damages consequent on that conclusion must be set aside. The matter is referred back to the trial judge on the question of whether the plaintiff was entitled to damages caused by the loss of disability benefits that would have been available had the plaintiff postponed the operation.
• 2001 BCCA 403 Lemon v. Canada Safeway Limited
• 2001 BCCA 390 Glover v. Magark
• 2001 BCCA 383 Law Society of British Columbia v. Gravelle
  The appeal of an order declaring that a notary had engaged in the unauthorized practice of law by advising on and offering to assist in obtaining the probate of a will, for or in the expectation of a fee, dismissed.
• 2001 BCCA 359 Oliver v. Ellison et al.
  Appeal from judgment dismissing mother's claim for damages for medical negligence for failing to diagnose gestational diabetes and to perform timeously a Caesarean section when fetal distress was occurring.   Hollinrake J.A., Mackenzie J.A. concurring: Appellant should succeed for "unnecessary pain and discomfort during the pregnancy and from undergoing surgery which might or might not have been necessary had her gestational diabetes been brought under control at the earliest possible opportunity" and appropriate award under this head is $35,000 as compensation in tort. There is nothing in tort law that can give rise to a claim in damages for the mother for emotional distress of being delivered of a disabled child. With respect to the issue of "whether as a matter of law a mother can recover loss of earnings arising from devoting herself to her disabled child as long as it is reasonable to do so", it is not open to this Court as a matter of appellate review to reach a different opinion on the evidence and its weight than did the judge below in the absence of error in principle or misapprehension of the facts. Raising issue of contract law now would be unfair to respondents with no apparent unfairness to appellant in declining to entertain a claim in contract in view of how the action proceeded in the court below.   Appeal dismissed against Hospital and respondent Mitchell and allowed against respondent Ellison to the extent of awarding the appellant $35,000 for pain and suffering. Appellant awarded 50% of her party/party costs and 100% of her disbursements.   Southin J.A. dissenting - claim in contract.
• 2001 BCCA 350 Bigcharles v. Lomax
  Appeal from judgment dismissing plaintiff's claim for damages for negligence against doctors arising from spinal cord injury after a motor vehicle accident. Admission of negligence by Dr. Lomax for not ordering a thoracic spine x-ray. Issue of causation - whether injury was complete at the accident site or whether anything done by the medical staff contributed to the extent of the paraplegia.   Appeal dismissed; Southin J.A. dissenting.
• 2001 BCCA 343 JDM Capital Ltd. v. Asiaamerica Equities Ltd.
  Prowse J.A. (for the majority): Appeal from the decision of a trial judge with respect to the quantum of damages awarded for breach of contract. Held: Appeal allowed to the extent of reducing the damages by a further 10 percent to account for the negative contingency of uncertainty in attaining the regulatory approval required for completion of the contract. Newbury J.A. dissenting: The award of damages ought to be reduced by a further 35 percent to account for several negative contingencies not considered by the trial judge.
• 2001 BCCA 334 Manita Investments v. T.T.D. Management Services
  The trial judge dismissed the plaintiff’s claim against a real estate agent for negligent misrepresentation because the plaintiff failed to prove reasonable reliance on the representation, and failed to prove any loss or damage resulting from it. The judge also dismissed the plaintiff’s claim for relief under s.36 of the Property Law Act for either a vesting order, or an easement, in respect of an encroachment onto neighbouring property of a parking lot that formed part of the property purchased by the plaintiff. The first defendants cross-appealed against the judge’s order refusing them costs.   The appeal and cross-appeal were dismissed. There was evidence to support the judge’s conclusions of no reasonable reliance and failure to prove loss or damages. On the claim under s.36, the judge exercised her discretion judicially, having considered the relevant factors and applied the correct legal principles. The cross-appeal on costs was also dismissed.
• 2001 BCCA 305 First National Properties Ltd. v. McMinn
  Appeal allowed from trial judgment imposing liability on a municipal mayor, approving officer (under the Land Titles Act) and Council for abuse of public office — the 'first branch' of that tort discussed by the House of Lords in Three Rivers District Council and others v. Bank of England (No. 3), [2000] 3 All E.R. 1. The mayor and approving officer were exercising powers they had, but the trial judge found malice arising from certain letters written by the mayor, and that the approving officer "participated" in the mayor's conduct. The letters had been written to a possible purchaser of the land, favoured by the mayor because it would create a park on the land. The Council was found to have rejected a rezoning application of the plaintiff as a result of a "settled intention", although no damages were found to have resulted.  On appeal, held the trial judge erred in equating the mayor's hopes to preserve underdeveloped land in its natural state, with "malice" for purposes of the tort. A court must be cautious in characterizing what was essentially a political position concerning land use, a matter of legitimate interest to municipal mayors and councillors, to the kind of ulterior or improper motive required for the tort. Also, the conduct of the mayor had not resulted in loss to the plaintiff, since local opposition to the upzoning of the land had always faced the developer. The approving officer's rejection of the plaintiff's subdivision application had not been expressly found to be a "sham" by the trial judge and no such finding should be inferred. Third, the plaintiff had not sold the land for less than fair market value, but for a price reached in arm's length negotiations with the Province.  Finally, the trial judge had erred in finding the Council had abused its authority (albeit without resulting damages) in the absence of evidence as to the mental state of at least a majority thereof.
• 2001 BCCA 290 Mohamed v. City of Vancouver
  The plaintiff was injured when apprehended by a police dog that a police officer had sent after the plaintiff, believing the plaintiff to be a suspect in a robbery. The officer could not follow the dog immediately, because he had two other suspects, who had stopped in response to his warning, in custody.  The plaintiff’s action for damages alleging negligence and excessive use of force was dismissed by the trial judge. The plaintiff’s appeal was also dismissed, no error of fact or law having been shown.
• 2001 BCCA 274 Canadian Reform Conservative Alliance v. Western Union Insurance Co.
  The Court allowed an appeal from a chambers order denying a duty to defend in a commercial general liability insurance policy. At issue was the interpretation of "advertising activity" in the coverage for "personal injury" and "advertising injury". The insured is seeking indemnification of their costs incurred in defending a defamation claim by Senator Lawson. He alleges the ensured defamed him on their website at senate_reform.org in the spring of 1988 on a page titled "Senate Scandals."
• 2001 BCCA 252 Anderson v. Mill Town Tucking et al.
  Appeal against assessment of damages in a personal injury action. Held: It cannot be said the trial judge erred in any way so the appeal was dismissed.
• 2001 BCCA 248 Gillis v. BC Transit et al.
  The appeal from a finding of liability for a fall on a bus, attributed to fast-cornering by the trial judge was allowed and a new trial ordered. The trial judge erred in referring to the plaintiff’s evidence and as the error related to an issue central to the finding of liability, the order must be set aside.
• 2001 BCCA 241 Dr. Q. v. College of Physicians
• 2001 BCCA 239 Kemp v. Wittenberg
  The trial judge held the defendant oral surgeon liable in failing to disclose the material risks of a surgical procedure and in failing to obtain the plaintiff’s consent to that procedure. He awarded damages totalling $1,254,000. The defendant appealed the finding of liability, alleging that the trial judge had overlooked critical evidence. The plaintiff cross-appealed the award of damages under several heads, alleging various errors.   The defendant’s appeal on liability was dismissed. The evidence relied on by the defendant was really neutral, and the trial judge’s findings were supported by other evidence. The plaintiff’s cross-appeal on damages was allowed in part, and awards totalling $1,547,750 were substituted for those of the trial judge.
• 2001 BCCA 227 M.B. v. British Columbia
  Appeal from a decision allowing a claim by a former foster child against the Crown arising from a sexual assault by a foster parent against the child in 1976. Held: Appeal dismissed (the Chief Justice dissenting) except to the extent of varying the award for damages.  Prowse J.A.: The Crown (through the Superintendent of Child Welfare) was vicariously liable for the sexual assault by the foster father and was also liable on the basis of breach of non-delegable duty. Although the foster father could more accurately be described as an independent contractor rather than an employee of the Crown, this Court’s decision in A.(C.) v. C.(J.W.) (1948), B.C.L.R. (3d) 92 (the "Critchley" decision) makes it clear that a finding of vicarious liability should not be based on the label attached to the relationship, but to the true nature of the relationship between the parties. There was no principled basis for distinguishing this case from Critchley where this Court had upheld a finding of vicarious liability on the part of the Crown. There is also a non-delegable duty upon the Superintendent to ensure that care was taken of children he placed in foster care. That duty arises both on the basis of statutory interpretation of the relevant provisions of the then Protection of Children Act, R.S.B.C. 1960, c. 303 and on the basis of policy considerations similar to those enunciated by the Supreme Court of Canada in Bazley v. Curry, [1999] 2 S.C.R. 534. The Superintendent was the guardian of children in foster care and owed a duty of special diligence to them. Mackenzie J.A. (concurring): The foster parents are independent contractors rather than employees, and the preferred analysis for determining liability against the Crown, therefore, is on the basis of a non-delegable duty. The Chief Justice (dissenting): Chief Justice McEachern would dismiss the action by distinguishing Critchley on the basis that that was a case of institutional care where the Crown exercised inadequate control over the wrongdoer while there is no sufficient control in a foster family setting, and on the further basis that the statutory language and scheme of the Act which directs the Superintendent to place children in foster homes, does not support the imposition of a non-delegable duty upon the Superintendent.
• 2001 BCCA 226 E.D.G. v. North Vancouver School District No. 44
  Appeal from a decision dismissing a claim against the School Board for sexual assaults committed by a school janitor against a student between 1978-1980 when the student was in grades three and four. Held: Appeal dismissed (Prowse J.A. dissenting).    The only issues on appeal were whether the Board was liable to the student for breach of fiduciary duty or breach of a non-delegable duty. The claim for vicarious liability was not pursued on appeal. It was foreclosed by the intervening decision of the Supreme Court of Canada in Jacobi v. Griffiths, [1992] 2 S.C.R. 670.   The claim for breach of fiduciary duty was foreclosed by this Court’s decision in A.(C.) v. C.(J.W.) (1998), 60 B.C.L.R. (3d) 92 (C.A.).   Mackenzie J.A. (the Chief Justice concurring in the result): A non-delegable duty only arises in situations where the individual who committed the torts is an independent contractor, rather than an employee of the Board. Where liability was foreclosed on the basis of vicarious liability, it could not succeed under breach of non-delegable duty. The findings of the trial judge did not support any direct liability on the part of the Board.    Prowse J.A. (dissenting): The Board was liable for breach of its non-delegable duty to ensure that care is taken of students who are statutorily compelled to attend its schools. This duty is a form of direct liability which is independent of any vicarious liability on the part of the Board. A non-delegable duty is based on a combination of statutory interpretation and policy considerations. In this case, both of those factors support a finding of liability.
• 2001 BCCA 221 K.L.B. v. British Columbia
  Tort – Breach of fiduciary duty – Child abuse – Foster care – Liability of the Crown – Limitations   On appeal from a trial judgment holding the Crown liable for damages for abuse of children in foster care. Held that the appeal should be allowed. The claims of the children for physical abuse sound in tort and not breach of fiduciary duty. The finding of the trial judge that the social workers making and supervising the foster care placements were negligent was upheld. Alternatively, the Crown was liable for breach of a non-delegable duty (McEachern C.J. dissenting on this point). However, the trial judge erred in not concluding that the claims for physical abuse were time-barred under the Limitation Act. The claim of one of the plaintiffs for an incident of sexual abuse was not subject to any limitation and damages were awarded for that incident.
• 2001 BCCA 206 Brimacombe et al. v. Dr. J. David Mathews
  The infant plaintiff developed serious disabilities during or immediately after being born by breech delivery. At trial, the obstetrician was found liable and substantial damages were assessed because of his failure to apply traction to the body of the child when there was delay at a critical stage of the delivery.   Held: Hall J.A. dissenting, the appeal should be allowed and a new trial ordered for the purpose of determining whether the conduct of the doctor was negligent error or the exercise of professional judgment in difficult circumstances. The appeal on damages is dismissed for the reasons given by Hall J.A.
• 2001 BCCA 178 Birkenhead v. Bemister
  Dismissal of case on no evidence motion. Fire occurring as a result of backfire of motorcycle - fire spreading to and consuming building. Court of Appeal finding no error in disposition of case on no evidence motion by trial judge since plaintiffs unable to establish a case that would permit a properly instructed jury to infer negligence. Appeal dismissed.
• 2001 BCCA 128 Vigas v. ICBC
  Appeal from a personal injury award. No reversible error found.
• 2001 BCCA 125 M & P Logging Ltd. v. Carrier Lumber Ltd.
  Appeal from judgment awarding damages against the defendants, Andrew Shoaf and Carrier Lumber Ltd., for negligent misrepresentation in the sale of a used D-8 caterpillar tractor. There was evidence to support the trial judge's finding that each of the elements necessary to establish a successful claim for negligent misrepresentation was present and, with respect to the appellants' argument as to the effect of the contract on the tort claim, it was open to the trial judge to hold that the contract did not bar the respondent's claim. With respect to the question raised of whether the mechanics' evidence should have been viewed as expert evidence, the evidence upon which the trial judge based his conclusions was founded primarily upon the mechanics' observations and upon the evidence of the D-8 operator, not upon inferences drawn by the mechanics themselves. In assessing damages in this case, the judge was obliged to assess the damages as best he could, based on the evidence before him. Appeal dismissed.
• 2001 BCCA 95 Fenton (Guardian) v. Baldo
  The infant appellant, by his guardian ad litem, appeals from two trial judgments that resulted in the dismissal of his action in negligence against all of the respondents. Braidwood J.A. (for the Court): The appeal is dismissed. Although there was a potential error when the trial judge granted a non-suit in favour of one defendant while permitting the plaintiff’s claim to proceed as against the remaining defendants, the potential error did not mature in this case. The case against all defendants was dismissed before any defence evidence was called and there was therefore no error. A no evidence motion was appropriate in the circumstances. Because there was no evidence to support which of two possible propositions was correct, there was no evidence that was fit to go to the jury. It was within the trial judge’s discretion under Rule 40 to exclude the evidence of the expert witness and no prejudice was suffered as a result of the exercise of this discretion. The trial judge also properly considered all of the evidence before dismissing the actions.
• 2001 BCCA 80 Shields v. Shortt
  On a summary trial under Rule 18A the trial judge dismissed the plaintiff’s claim for damages for negligence, and failure to obtain consent, in an action against doctors and hospitals. He also refused an adjournment so that expert evidence to support the plaintiff’s claim might be obtained, as he found it to be "almost certainly unobtainable". The appeal was dismissed. The judge did not err in refusing an adjournment, and there was evidence to support his other conclusions.
• 2001 BCCA 61 Korkut v. HMTQ
  Appeal from dismissal of action for damages. Appeal dismissed. If the appellant has any remedy it is by judicial review.
• 2001 BCCA 60 Partridge v. CBC et al.
  There are six defamation actions pending against six defendants all arising out of the same subject matter. An order was made consolidating five of the six actions. The sixth action was not consolidated because it was not requested.  A Master, and a Supreme Court Judge in Chambers declined to order consolidation of the sixth action because it was not requested. Held: Leave to appeal is granted so the Court may consider whether the proper administration of justice displaces counsel's submissions.
• 2001 BCCA 26 Foreman v. Foster
  This was an appeal from the dismissal of an application for summary judgment under Rule 18A in a personal injury case. The chambers judge had decided that a trial with cross-examination in open court was required. Accordingly, there would be a trial by judge and jury, since a civil jury had been requested. The appeal was dismissed, no error on the part of the chambers judge having been shown. Two of the three judges concurred in stating that in British Columbia a trial judge may, if he or she considers that it would be helpful to the jury, and after hearing the arguments of counsel in the absence of the jury, give guidance to the jury on a conventional range of damages which might be appropriate in relation to the plaintiff’s injuries.
• 2001 BCCA 1 Rosvold v. Dunlop
  The court increased damages for lost earning capacity. It considered the trial judge had failed to take account of all the possibilities in his excessively mathematical approach to the assessment of a loss.