B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

CIVIL 2004

• 2004 BCCA 5 Graham Ind. Svcs. Ltd. v. G.V.W.D. et al
  The low bidder for a construction project sought to withdraw its bid because it contained an arithmatical error, and then argued that the “bid” was not capable of acceptance because it was non-compliant with the tender requirements in material respects. The chambers judge held that, viewed objectively, the bid was non-compliant in material respects and declared that the bid was not capable of acceptance and that no “Contract A” was created between the owner and the bidder.
  The appeal was dismissed. A discretion clause in the instructions to tenderers cannot be used to create a compliant tender out of a non-compliant tender. Such a clause only permits acceptance of tenders with minor irregularities or non-material defects. The judge did not err in holding that, viewed objectively, this tender was non-compliant in material respects.
• 2004 BCCA 6 Weyerhaeuser Co. Ltd. v. IWA - Canada, Local 2171
  This was an appeal from a decision of an arbitrator. In November 2001 Weyerhaeuser gave notice to two groups of employees employed at manufacturing plants that the respective plants were being closed in early 2002. The notices were given pursuant to the then provisions of ss. 64 and 67 of the Employment Standards Act. Many of the employees to whom notice was given were on temporary layoff. In May 2002 the legislature added "temporary layoff" to periods such as leave, lockout and strike as being times when effective termination notice could not be given to employees. The Union filed a grievance claiming the notices given were invalid and the arbitrator agreed in his decision of August 2002. On the appeal by Weyerhaeuser, the Union argued that, (a) there was no jurisdiction to hear the appeal because the appeal did not raise an issue of general law and (b) in any event, the decision was well founded and not patently unreasonable.
  Held: The applicable standard of review here is one of correctness because the essence of the arbitral award concerned the interpretation of a statute of general application. Kinsmen Retirement Centre Association v. Hospital Employees' Union Local 180 (1985), 63 B.C.L.R. 292 (C.A.) applied. The arbitrator erred in law by importing words into the Act that were not contained in the relevant section in 2001. The appeal was allowed and the notices were held to have been validly given by the appellant under the terms of the Act as it existed in 2001.
• 2004 BCCA 7 Anderson v. British Columbia Securities Commission
  Appeal from a decision of the Securities Commission finding that the appellants perpetrated a fraud and made misrepresentations to investors. Held that the Commission erred in finding fraud in the absence of proof of the dishonesty of the appellants. The Commission also erred in finding that the appellants had made misrepresentations to investors. The matter was remitted back to the Commission for reconsideration of the complaint of acting contrary to the public interest and appropriate sanction.
• 2004 BCCA 8 I.C.B.C. v. Blue mountain Collision
  Application to discharge or vary order dismissing an application essential purpose of which was to circumvent Rule 21. Application dismissed. The appeal raises issues of mixed law and fact and therefore a transcript is necessary.
• 2004 BCCA 9 Millership v. HMTQ
  Appellant unable to demonstrate that the findings of fact central to the litigation were not supported by the evidence. Appeal dismissed.
• 2004 BCCA 12 BMF Trading, A Partnership v. Abraxis Holdings Ltd.
  Supplementary judgment (see 2003 BCCA 559) as to costs and disposition of fund in court.
• 2004 BCCA 13 Enns (Guardian ad Litem) v. Voice of Peace Foundation
  Leave to appeal granted from the refusal of a Mareva injunction and an interim injunction issued pending the appeal.
• 2004 BCCA 14 Phillips v. Vancouver Sun
  The Vancouver Sun appealed from two orders of the Supreme Court refusing access to and disclosure of edited copies of a Warrant, Information to Obtain a Warrant and related materials in relation to a search and seizure of Cst. Phillips' office at the Vancouver Police Department on May 28, 1999. A sealing order had been made with respect to those materials by a Justice of the Peace pursuant to s. 487.3 of the Criminal Code. A Provincial Court Judge had varied that order to permit disclosure of the edited materials. That order was quashed by a Supreme Court Judge on the basis that the Provincial Court Judge had no jurisdiction to make the order, and because of error of law on the face of the record. Subsequent proceedings resulted in a second order in the Supreme Court refusing disclosure of the materials. Result: The two Supreme Court orders were set aside and the order of the Provincial Court Judge was reinstated and amended to provide disclosure to the Vancouver Sun of an edited copy of the materials.
• 2004 BCCA 15 Refco Futures (Canada) Ltd. v. SYB Holdings Corp.
  In an action in contract and negligence against a brokerage house, the trial judge erred in failing to take into account the plaintiff/client's contributory negligence. Appeal allowed.
• 2004 BCCA 19 Callow v. School District No. 45 (West Van.)
  Dismissal of vexatious litigant’s attempt to raise issues already settled upheld, as was an order pursuant to s. 18 of the Supreme Court Act.
• 2004 BCCA 20 Bradwell v. Scott
  The appellant appealed from a Supreme Court order that property owned by them and the respondents be sold and the proceeds divided by awarding two thirds to the appellants and one third to the respondents. They argued that the chambers judge made an overriding and palpable error by misunderstanding the appraisal evidence. Appeal dismissed. The chambers judge made no material error, did not misdirect himself in the evidence, did not ignore any relevant evidence and it was open for him to make the finding that he did on the evidence that was before him.
• 2004 BCCA 21 I.C.B.C. v. Linley
  Appeal of a decision under Rule 34 of the Supreme Court Rules dismissed. There was no error in the chambers judge’s conclusion that the appellant had forfeited his insurance coverage by operating a motor vehicle without a licence.
• 2004 BCCA 22 Tahvili v. HSBC Bank Canada
  Appeal of an order allowing the respondent’s action under Rule 18 dismissed on the ground that there was no triable issue. Equitable set-off was not available to the appellant
• 2004 BCCA 23 Mowatt, Sr. v. Anglican Church of Canada
  Appeal seeking costs with reference to an abandoned appeal dismissed.
• 2004 BCCA 25 Instrumenttitehdas Kytola Oy v. Esko
• 2004 BCCA 26 Carrier Lumber v. Joe Martin & Sons
  A Supreme Court judge erred in amending an arbitrator's award on an appeal under the Commercial Arbitration Act, R.S.B.C. 1996, c. 55. The arbitrator resolved a logging rate dispute under regulations made pursuant to the Forest Act, R.S.B.C 1996, c. 157. The judge was incorrect in finding errors of law in the arbitration award. Appeal allowed and arbitration award restored.
• 2004 BCCA 27 Campbell River Woodworkers & Builders' Supply (1996) Ltd. v. British Columbia (Minister of Transportation and Highways)
  The policy underlying costs in expropriation proceedings is set out in s-s. 45(3) of the Expropriation Act, R.S.B.C. 1996, c. 125 - an owner whose property has been expropriated is entitled to recover all costs necessarily incurred for the purpose of asserting a claim for compensation. The only limitation is that the costs must be objectively reasonable. This policy applies to costs in this Court on a statutory appeal from a decision of the Expropriation Compensation Board. Thus, a successful owner is entitled to costs on what, in earlier times, would have been a solicitor-and-client basis. The closest approximation to such an award under the current tariff is an award for special costs. Accordingly, the successful appellant is entitled to costs of the appeal to be taxed as special costs.
• 2004 BCCA 30 Advanced Coatings Inc. v. Angela Fournell
  The appellants sought an anti-suit injunction to restrain a tort action commenced in the state of Georgia by the respondents. The chambers judge dismissed the appellants’ application, finding that the court in Georgia could reasonably have concluded that there was no alternative jurisdiction that was clearly more appropriate. HELD: appeal dismissed.
• 2004 BCCA 35 Assessor of Area #09 - Vancouver v. The Cadillac Fairview Corporation Ltd.
  The Assessor appealed the chambers judge’s order dismissing a stated case concerning the Assessment Appeal Board’s valuation of four office towers on the basis the questions were questions of fact. Appeal allowed and the questions on the stated case answered generally in the negative. The stated case asked questions of law which were required to be answered. There was evidence upon which the Board could properly conclude that only relatively new tenant improvements enhanced the buildings’ market value. The Board did not err in adopting a capitalization rate between the two extremes advocated by the parties. If there is any inconsistency between the method used to determine the market rent and capitalization rate, such inconsistency is to the advantage of the property owner and does not form the basis of an appeal by the Assessor.
• 2004 BCCA 37 Port Chevrolet Oldsmobile Ltd (Re)
  Chambers judge did not err in upholding trustee's disallowance, at creditors' meeting of Canada Customs and Revenue Agency's claim against the debtor, who made a proposal immediately upon receipt of a notice of assessment for over $16 million. The debtor had filed notice of objection to the assessment. At the meeting, CCRA filed a Form 31 (proof of claim) for a somewhat smaller amount. The Court unanimously concluded this discrepancy meant CCRA had not complied with s. 124 of the Bankruptcy and Insolvency Act. Newbury J.A. would also have upheld the judgment below on the general basis that CCRA did not provide any supporting documents or information as required by s. 124.
• 2004 BCCA 38 rpr Developments Corp v. Kvaerner Canada Inc.
  The learned trial judge did not err in concluding that the parties had intended to record their agreement in a letter or in his interpretation of the terms of the agreement contained in that letter. The appeal was dismissed.
• 2004 BCCA 39 Topgro Greenhouses Ltd. et al v. Houweling
  The summary trial judge erred in granting judgment for the plaintiffs. He based key findings on a misapprehension of the evidence. Further, his reasons were not stated in a way that permits effective appellate review. Moreover, fresh evidence was led on the appeal that, if it had been before him and had been believed, might well have led to a different result. The judgment was set aside and the action was remitted to the Supreme Court.
• 2004 BCCA 40 Pacific Hunter Resources Inc. v. Moss Management Inc.
  The Chambers judge erred in dismissing the action for want of prosecution. Among other things, she overlooked the fact that the defendant, by its words and conduct after the delay now complained of, induced the plaintiff to take steps to move the action forward. Moreover, she dismissed the action for want of prosecution after the parties had led their evidence and made submissions on the merits on a summary trial.
• 2004 BCCA 44 Stieber v. Canada (Attorney General)
  Slip and fall case on or near DND property. Held, s. 269(1) of National Defence Act did not apply to bar the plaintiff's claim, which did not relate to a military, departmental or 'public' function as referred to in the section.
  Trial judge had erred in concluding that in corresponding with plaintiff, Crown had waived its right to rely on s. 269(1) if it had applied. Plaintiff's claim remitted to trial.
• 2004 BCCA 46 Clarke (Bankrupt), Re
  Court below did not err in denying appellant leave to sue Trustee in Bankruptcy and Superintendent of Bankruptcy in connection with their conduct of a bankruptcy. Appellant had only suspicions that debtor had undiscovered income and assets, but no evidence.
• 2004 BCCA 48 J. Michael Jensen Boat Sales Ltd. v. McAfee
• 2004 BCCA 50 Batchelder v. Filewich
  Appeal from a judgment holding persons injured in a motor vehicle accident entitled to recover medical expenses without deduction of no-fault benefits beyond a limited amount recovered under a policy issued in an American state.
  Appeal dismissed on the basis of two decisions of this Court, there being no sound reason advanced for reconsideration.
• 2004 BCCA 51 Kelowna (City) v. Heringa
  Owner of land appeals decision finding him in breach of municipal by-law. Appeal dismissed.
• 2004 BCCA 52 Erickson v. Luggi
  A Supreme Court judge has no power under the Society Act to make by-laws for a society. Appeal allowed from order doing so.
• 2004 BCCA 54 Glenayre Manufacturing Ltd. v. Pilot Pacific Properties Ltd.
  Further production of documents tracing movement of funds ordered where court concluded such production necessary to enable plaintiff to fully present its case. Appeal allowed from disclosure order made by chambers judge.
• 2004 BCCA 60 Lee (Guardian ad litem of ) v. Richmond Hospital Society
  Leave to appeal granted.
• 2004 BCCA 63 Querfurth v. Querfurth
  Court below erred in conducting family law hearing in absence of one spouse; and after “varying” his “default order”, placing the onus on that spouse to show why previous re-apportionment was unfair. Remitted to trial list.
• 2004 BCCA 65 Coal Harbour Properties Partnership v. Liu et al
  Application for a stay of the order appealed granted. The stay which prevented payment out of monies held as a real estate sale deposit, favoured the status quo.
• 2004 BCCA 68 Lawson v. McGill and McRae Equipment Corp
  In a civil jury trial the trial judge “expunged” the evidence of a psychologist. The psychologists reports had been in the hands of the jury throughout the trial and the psychologist had given oral testimony. The trial judge did not believe that he could clear the jurors’ minds of the evidence and discharged the jury. He was also of the opinion that the psychologist’s evidence went only to the issue of credibility. She testified that her test results were not valid in that she could not verify the credibility of the plaintiff. She said that for any psychologist this was a requirement in order to have test results upon which the court could rely. With respect to the evidence of the plaintiff’s experts, the trial judge commented that it was appropriate for them to have such credibility opinions and to give them in evidence. However, he held otherwise with respect to the expert psychologist for the defence in that her evidence did not present test results. HELD: The evidence was improperly taken from the jury in that it was relevant to and represented the only defence available to the reports of the plaintiff’s experts. The discharge of the jury was thereby in error. New trial ordered.
• 2004 BCCA 69 Campbell River (District) v. Sound Contracting Ltd.
  The court dismissed an appeal from an order setting aside an arbitration award under s. 30 of the Commercial Arbitration Act, finding s.30(3) did not insulate arbitral error from judicial review.
• 2004 BCCA 71 Arbutus Excavating Ltd. v. Homewood Constr. Ltd.
  The appeal of the dismissal of a claim against the Town of Sidney was dismissed with costs, as abandoned. The order dismissing the claim against Homewood Constructors Ltd. was set aside with costs of the application in the cause, all as agreed.
• 2004 BCCA 72 Kimpton v. Canada (A.G.) and British Columbia (HMTQ)
  The Court dismissed an appeal from an order refusing to certify this action as a class proceeding. The issue was whether either Canada or British Columbia had a private law duty of care to owners of residential units in strata titled buildings built in 1990 to comply with the British Columbia Building Code, 1987. The Court agreed with the chambers judge that the enactment of the Code was an act of lawmaking, immunized from tort liability. It also agreed the appellant could not establish sufficient proximity to give rise to liability on the part of the National Research Council (acting as agent for Canada) for its alleged negligence in drafting and publishing the National Building Code that British Columbia adopted by reference under s.692(1) of the Local Government Act.
• 2004 BCCA 75 Ashe v. Werstiuk
  The appellant, who was the driver of a backhoe, struck the respondent who was crossing a street in mid-block and not at a crosswalk at trial was held to be 75% at fault for the accident. Appeal allowed. The appellant was not at a fault to a greater degree than the respondent.
• 2004 BCCA 80 Buschau v. Rogers Comminication Inc.
  Court below had given its consent under Trust and Settlement Variation Act to the termination of a pension trust on behalf of certain "contingent beneficiaries", and had done so in the erroneous belief that in previous proceedings, Court of Appeal had decided that the rule in Saunders v. Vautier applies to pension plan trusts. Court below had also applied this court's decision in Re Sandwell & Co. Ltd. and Royal Trust Corp. of Canada, in which the question of jurisdiction to consent on behalf of various persons had not been challenged or argued.
  Held, appeal allowed subject to a three-month delay in entering the order, to allow the parties time in which to consider available options in accordance with procedure prescribed by the court.
  Held also:
  1. Rule in Saunders v. Vautier may be invoked to terminate a "modern pension trust", provided usual conditions are met.
  2. In the case of the trust at issue in this case, employer did not have an "interest" that would make its agreement necessary before the rule can be invoked.
  3. The consents of all pension plan beneficiaries and their designated beneficiaries were required for the rule to be invoked.
  4. Knocker v. Youle (1986) is correct, and therefore s. 1(b) of the Trust and Settlement Variation Act does not confer jurisdiction on the court to consent to a termination on behalf of a person who is sui juris and who has an interest, vested or contingent, in the trust. Re Sandwell was wrongly decided and should not be followed.
  5. The court below lacked jurisdiction to consent on behalf of certain designated beneficiaries who could not be located, but who have a (contingent) "interest".
  6. The employer in the case at bar could not now validly "re-open" the plan it had declared closed years ago, without breaching obligation of good faith to existing beneficiaries.
  7. An "arrangement" for which the court's consent is sought under the Trust and Settlement Variation Act must be sufficiently developed to permit the parties and the court to appreciate the material financial consequences thereof. In this case, even if the court had had jurisdiction under the Act, the proposal was so unclear and vague that the court could not have determined whether it was in the interests of specified persons.
• 2004 BCCA 81 Smolensky v. British Columbia Securities Commission
  Appeal from a chambers judgment finding that the confidentiality provision of the Securities Act, s. 148(1), did not infringe the appellant’s Charter rights. Held, by a majority, that the constitutional issues were premature, absent a hearing and decision by the Securities Commission, and the appeal should be dismissed. DISSENTING: Mr. Justice Lambert would have allowed the appeal and granted a stay of proceedings on the ground that s. 148 of the Securities Act infringed Mr. Smolensky’s Freedom of Expression under s. 2 of the Charter.
• 2004 BCCA 85 Chaube v. Campbell
  Applications by the defendants for an extension of time to file their notices of application for leave to appeal and for leave to appeal costs orders made by the trial judge, who refused to give effect to an offer to settle under s. 37 of the Supreme Court Rules and a Calderbank letter made by the two defendants jointly. HELD: Applications dismissed. The applicants have not satisfied the tests for an extension of time set out in Davies v. CIBC. Had the extension been granted, the application for leave to appeal would have been dismissed.
• 2004 BCCA 86 Bedwell v. McGill
  Application for leave to appeal judgment following a summary trial that injuries sustained in a fall the day after a motor vehicle accident were causally related to injuries sustained in the accident. HELD: Leave to appeal denied. It was open to the trial judge to draw inferences from the facts found in the evidence. The matter has no general importance.
• 2004 BCCA 87 Bankruptcy: Advanced Wing Technologies Corp.
  Applications to remove the existing trustee in bankruptcy and substitute a new trustee in bankruptcy, and to lift the stay of proceedings to allow the trustee to take possession of the assets of the bankrupt pending disposition of the appeal.
  HELD: Applications granted.
• 2004 BCCA 88 Anderson (Gaurdian ad litem of) v. Brigtish Columbia (Attorney General)
  Application by appellant, the Attorney General, to postpone filing his factum until thirty days after the decision of the Supreme Court of Canada in Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2002] S.C.C.A. No. 510. Application dismissed. Appellant’s factum to be filed in two weeks from order. Costs to the respondents in any event of the cause.
• 2004 BCCA 90 Gould v. Sandau
  The appellant’s factum contains scandalous allegations, unintelligible and irrelevant statements, and fails to comply with the Rules. Although the appellant is self-represented, basic compliance with the Rules is required. He is directed under s. 10(2)(a) of the Court of Appeal Act to file a revised factum, the time for filing his factum is extended and the appeal is otherwise stayed until he has complied with this direction.
• 2004 BCCA 92 Spiegelberg v. Hubley
  Application for Leave to appeal dismissed.
• 2004 BCCA 93 Preckel v. Brooks
  Adjournment of appeal granted.
• 2004 BCCA 95 North Coast Sea Products Ltd. v. ING Insurance Co. of Canada
  Interpretation of ss79 and 80 of the Marine Insurance Act and the “sue and labour” clause of a “Hull and Machinery” policy. Appeal dismissed.
• 2004 BCCA 96 Collins v. Abrams
  The petitioner wrote newspaper columns concerning Jewish persons and the holocaust which were held by the Human Right Tribunal to constitute violations of s.7 (1) (b) of the Human Rights Code. The petitioner challenged the constitutionality of that section and the tribunal held that although the section constituted a prima facie breach of the petitioners’ right to freedom of expression under s.2(b) of the Charter, the breach was justified under s.1. The petitioner sought judicial review of that ruling in British Columbia Supreme Court, but died before the hearing. The Attorney General of British Columbia applied to dismiss the judicial review proceeding as moot, and the Supreme Court of British Columbia granted that order. An appeal from the dismissal for mootness was dismissed. The petitioner’s widow held copyright to the newspaper columns, but she had no right to continue a constitutional challenge for the alleged breach of her husband’s right to freedom of expression.
• 2004 BCCA 97 The Law Society of British Columbia v. Heringa
• 2004 BCCA 100 Goodrich v. British Columbia (Registrar of Land Titles)
  A springing power of attorney that provides that the power of attorney may only be exercised during a period of mental infirmity, is a power of attorney within section 8(1) of the Power of Attorney Act. Appeal allowed.
• 2004 BCCA 102 Genge v. Cimon
  The respondent conceded that a finding of a civil jury reducing damages by 75% was not supportable on the evidence. Appeal allowed and general damages award of $10,000, but without the reduction, upheld. There is no basis for increasing the award. Also no basis for interfering with jury's nil award with respect to a second action tried at the same time.
• 2004 BCCA 103 Yearwood v. Canada (Attorney General) et al
  The Court upheld an award of damages for breach of an employment contract.
• 2004 BCCA 104 Burrardview Neighbourhood Assn. v. Lafarge Canada Inc. et al
  The Vancouver Port Authority and Lafarge Canada Inc. appealed from the order of the chambers judge granting Burrardview Neighbourhood Association’s petition for a declaration that the Port Authority is not authorized to lease certain port lands to Lafarge for the purposes of constructing an integrated concrete batch plant. Held: The appeal is allowed. The court concluded that the only issue properly before the chambers judge was whether the City of Vancouver’s Zoning and Development Bylaw applied to the subject property. Although the Port Authority holds title to the subject property in its own name and not as agent for the federal Crown, the federal government exercises sufficient control over the Port Authority’s ability to acquire, hold and dispose of real property to make the subject property “Public Property” within the meaning of s.91(1A) of the Constitution Act, 1867. The subject property and proposed development are therefore immune from the application of the City’s Bylaw according to the principle of interjurisdictional immunity. Finch C.J.B.C., speaking only for himself on this point, also concluded that application of the City’s Bylaw would affect a vital part of the exclusive federal legislative jurisdiction over navigation and shipping under s.91(10) of the Constitution Act, 1867 because it directly interferes with the Port Authority’s ability to manage the use and development of port lands in an integrated manner. Finch C.J.B.C. therefore also would have ruled the City’s Bylaw inapplicable according to the principle of interjurisdictional immunity on this alternative constitutional basis.
• 2004 BCCA 106 Xeni Gwet'in First Nations. v. British Columbia
  On the cross-appeal from the dismissal of a claim to defray full costs of further proceedings, Roger William, on his own behalf and on behalf of all the members of the Xeni Gwet'in First Nations Government and on behalf of all members of the Tsilhquot'in Nation argued that s. 15(1) of the Charter and s. 35 of the Constitution Act, 1982 required payment of all costs.
  Cross-appeal dismissed as neither the provincial nor the federal government can be said to have violated any constitutional duty in declining to provide such funding.
• 2004 BCCA 107 J.C. Creations Ltd. v. Vancouver City Savings Credit Union
  Dishonest employee placed address stamp on back of cheques made payable to plaintiff company and deposited them to her account at defendant Credit Union. Address stamp was not name of account into which cheques were deposited. Trial judge held in favour of Credit Union defendant and against plaintiff company that had been defrauded. Court of Appeal allowing appeal, holding that evidence did not permit finding that employee had authority to endorse cheques. Hence, no valid delivery to Credit Union which could not rely on s. 165(3) of Bills of Exchange Act. Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727 referred to.
• 2004 BCCA 108 Kranz v. The Owners, Strata Plan VR 29
  The petitioner applied under s.246 of the Strata Property Act S.B.C. 1998, c.43 to reduce the “unit entitlement” of his strata unit. The chambers judge dismissed his application. On appeal, the petitioner argued the chambers judge erred in his interpretation and application of the Act, and of s.14.13 of the Strata Property Regulations, B.C. Reg. 43/2000; and also erred in his determination of “habitable area”. The petitioner also argued the strata owners were “estopped” by their conduct from arguing that a part of his unit was habitable.
  The appeal was dismissed. The chambers judge did not err in any of the ways alleged.
• 2004 BCCA 110 Collette v. Great Pacific Management Co. Ltd.
  Appeal allowed from the refusal to certify the action for breach of duty in the provision of financial services as a class action. The plaintiff/appellant framed the action to concentrate the claims on common issue and not to rely on individualized allegations of breach of duty not amenable to disposition in class proceedings. Accordingly the action was appropriate for certification and the common issues were defined by the Court.
• 2004 BCCA 111 McAlpine v. Econotech Services Ltd.
  Appeal from the trial decision dismissing the appellant’s claim for wrongful dismissal. The respondent cross-appealed the trial judge’s denial of costs. Held: Appeal dismissed, cross-appeal allowed. The appellant had been away from her full time position for 3½ years because of disability and there was no expectation that she would be able to resume that position. There was evidence on which the trial judge could find that a gradual return to work was not a term of the contract. The appellant did not prove that she was constructively dismissed.
• 2004 BCCA 114 bcMetals Corporation v. American Bullion Minerals Ltd.
  The chambers judge dismissed an application for leave to appeal from an order authorizing a receiver-manager to implement a refinancing because the criteria for granting leave were not met.
• 2004 BCCA 116 Chavez v. Burnaby (City of)
  Plaintiff’s appeal from Rule 18A order dismissing her action in negligence against the City of Burnaby in relation to a tobogganing accident allowed. When all matters are considered together, the plaintiff had a reasonable excuse for failing to comply with the two month notice requirement of the Municipal Act, R.S.B.C. 1979, c. 290, s. 755. In addition, the plaintiff was unrepresented at the Rule 18A application and had difficulties communicating in English. Had her theory of liability been properly put before the summary trial judge, it would have been apparent that this case was not suitable for disposition on Rule 18A. The order dismissing the action is set aside, and the case remitted to the trial court.
• 2004 BCCA 119 Houweling v. Imperial Equestrian Centre Ltd.
  Appeal from an order largely dismissing the appellant’s claim for damages for misrepresentation or negligence in respect of a purchase of real estate said to require substantial remediation prior to use for a nursery business. Appeal dismissed.
• 2004 BCCA 120 Wong v. Real Estate Council of British Columbia
  Huddart J.A. dismissed an application for leave to appeal a decision as to penalty made by the Expropriation Compensation Board following a determination of misconduct.
• 2004 BCCA 126 UniNet Technologies Inc. v. Communication Services Inc.
  Leave to appeal granted from the order of a chambers judge that the B.C. Supreme Court has jurisdiction over the defendant based on arbitration proceedings in B.C. to which defendant is not a party.
• 2004 BCCA 127 Eisbrenner v. Law Society of British Columbia
  Application brought under s. 9(6) of the Court of Appeal Act to vary a chambers order made by Esson J.A. dismissing some of the relief sought on a motion. The relief Esson J.A. had refused to grant included having the applicant’s appeal from a decision of a panel of benchers to disbar him heard at the same time as two appeals in which the applicant had acted before he was disbarred. The applicant failed to show that in refusing to make the orders sought the chambers judge had made any error in law or principle or that he had misconceived the facts. Application to vary dismissed.
• 2004 BCCA 129 McKay v. B.C. Transit
  Supreme Court judge extended the time for appealing a Master’s order which dismissed the action for delay and allowed the appeal. This Court dismissed the appeal on the basis that there was a basis for the exercise of the Supreme Court judge’s discretion.
• 2004 BCCA 130 Restauronics Services Ltd. v. Nicolas
  An employee competed with her employer in the period of working notice. Her argument that she was entitled to do so because she had been constructively dismissed were rejected. She did not elect to treat the contract as at an end. The employer was entitled to nominal damages for the breach of her duty of fidelity. The employer failed to provide that in competing, the employee used the employer's confidential information. Claim for an accounting dismissed.
• 2004 BCCA 133 Booth v. B.C. Life & Casualty Co.
  The insurer’s appeal from the trial judge’s order finding that the insured’s death did not come within the exclusion for “self-inflicted injury, whether intentional or unintentional, sustained while intoxicated” is allowed. The trial judge’s interpretation failed to give any meaning to the word “unintentional” and did not consider this exclusion clause in the context of other clauses in the policy. A proper interpretation must give effect to the clear intention to exclude liability for accidental death benefits where the insured is intoxicated and causes himself injury either intentionally or accidentally. There was no cause unrelated to the insured’s conduct which leads to the conclusion that the insured’s death was not unintentionally self-inflicted.
• 2004 BCCA 134 Javor v. Francoeur
  Appeal from order refusing to enforce foreign arbitrator award. Dismissed for reasons of trial judge.
• 2004 BCCA 137 MacKinnon v. Instaloans Financial Solution Centres (Kelown) Ltd.
  The applicants seek leave to appeal and, if leave is granted, a stay of proceedings until the appeal is heard. HELD: leave to appeal granted; application for the stay proceedings refused
• 2004 BCCA 142 Buschau v. Rogers Communications Inc.
  Supreme Court order misstated amount ordered to be paid by appellant to respondents' pension plan. Appellant discovered error long after order entered and sought rectification of order and recovery of amount overpaid. In court below, Chambers judges ruled the order could not be rectified under slip rule and that error was "unilateral" one and therefore could not be corrected as matter of contract law. Appeals from both rulings allowed. Without deciding on availability of slip rule, court had inherent jurisdiction to correct an order that failed to reflect its manifest intention. If (which was doubted) a contract came into existence between the parties, a mistake on both their parts had occurred and court again had jurisdiction to rectify it. Discussion of "consent order".
• 2004 BCCA 147 Jakobsen v. Wear Vision Capital Inc.
  Appeal dismissed from the order of a Supreme Court chambers judge refusing leave to appeal the decision of an arbitrator that he had jurisdiction to arbitrate the dispute. This Court had jurisdiction to hear the appeal as decided in Sandbar Construction Ltd. v. Pacific Parkland Properties Inc. The chambers judge exercised his discretion in accordance with the principles outlined in B.C.I.T. Student Association v. B.C.I.T. and there was no basis for this Court to interfere with his decision.
• 2004 BCCA 149 Evans v. Umbrella Capital LLC
  Appeal against an order setting aside two garnishing orders in favour of the appellant. The appellant argued the chambers judge erred in finding appellant’s counsel failed in his duty to disclose material facts during the application for the order absolute, specifically in regard to a freezing order on the funds in question by the British Columbia Securities Commission. HELD: Appeal dismissed. Had the relevant circumstances been made known to the chambers judge in the first instance, the order absolute would never have been made. The appellant was not entitled to the order absolute on the merits of the application. The failure of appellant’s counsel to disclose material facts is an additional and independent ground for dismissal.
• 2004 BCCA 153 Soo Logging Co. Ltd. v. British Columbia (Minister of Forests)
  Defendant appeals an award of damages for breach of a road construction contract, granted or plaintiff’s application for summary trial under RFA. The appeal was dismissed. The liability issues before the judge were whether Defendant gave notice of termination in accordance with the terms of the contract, and whether there were changed conditions requiring reconsideration of the road design. The judge decided both issues against the Defendant, and there was ample evidence to support his conclusion. The Court declined to accept submissions on issues not addressed before the trial judge. Subject to a variation in the amount of damages, conceded by the plaintiff, the appeal was dismissed.
• 2004 BCCA 154 Chapeskie v. Canadian Imperial Bank of Commerce
  Appeal allowed from a finding that the plaintiff vendors of a coffee shop were contributorily negligent in connection with a successful claim against the bank for negligent misrepresentation. The finding of contributory negligence could not be reasonably supported on the facts found by the trial judge. The decision of the trial judge rejecting the bank’s claim of set-off was upheld.
• 2004 BCCA 157 Sami's Restaurant Corp. v. Hanley & Co. Ltd.
  Appeal and cross appeal from a judgment interpreting a commercial lease as to rent payable by tenant on overholding, and whether interests payable by landlord on overpayments of rents. Appeal and cross appeal dismissed, generally for the reasons of the trial judge.
• 2004 BCCA 158 U.S.A. v. Manns
  The extradition judge erred in his application of s. 26 of the Interpretation Act to the calculation of the time limited for the Minister to issue an authority to proceed under s. 14(1)(b)(ii) of the Extradition Act. On the correct calculation, the time expired before the authority to proceed was issued and the appellant was, therefore, entitled to be discharged. Accordingly, the appeal from the extradition order was allowed and the surrender order was set aside.
• 2004 BCCA 160 Vancouver City Savings Credit Union In Trust v. Cawker
  Appeal from a judgment releasing the respondents, who were covenantors under a mortgage granted to their daughter, from their obligations on the grounds that the mortgage was modified without notice to them or their consent. Cross-appeal on the question of whether lack of independent legal advice released the respondents from their obligations. Held: Appeal allowed and cross-appeal quashed. The modifications to the mortgage did not release the respondents from their obligations. Manulife Bank of Canada v. Conlin, [1996] 3 S.C.R. 415 had no application to this case, as the respondents were covenantors, not guarantors, under the mortgage. The trial judge correctly held that the respondents were not released from their obligations because they did not receive independent legal advice. The cross-appeal is quashed because it was unnecessary; an appeal is from the order of the trial judge, not the reasons for judgment.
• 2004 BCCA 161 Fortin v. Loukidelis
  Since the Freedom of Information and Privacy Act makes no provision for an appeal to the Court of Appeal from a decision of a Supreme Court justice sitting as an adjudicator in review of a decision of the Commissioner, the appellant’s application to extend time for bringing the appeal, which had been filed out of time, and for a declaration that he is indigent were dismissed and the appeal was dismissed as abandoned pursuant to s-s. 10(2) (e) of the Court of Appeal Act.
• 2004 BCCA 165 Langley (Township) v. Quiring
  Because an application for an injunction arising from a zoning dispute had been referred to the trial list, the related application for an injunction arising from the back of a business licence, being an ancillary issue, should be likewise referred to the trial list. An order for special costs in favour of an adjoining property owner is upheld. The Township’s averments in affidavits in relation to that party, on the Township’s own photographs, were untrue; the case against the party lacked merit, and these matters had been drawn to the attention of the Township, without effect, by counsel.
• 2004 BCCA 166 Resvick v. Behan
  The Court dismissed an appeal from an award of damages said to have been based on inconsistent answers on a confusing verdict sheet.
• 2004 BCCA 168 Lee v. Lee's Benevolent Assoc. of Canada
  Appeal dismissed from an order upholding the validity of a special resolution of the society. Procedural objections to the by-law passed in 2002 were dismissed and the variation in the manner of selecting directors on a geographical basis was permitted by the Society Act.
• 2004 BCCA 169 Lambright v. Brown
  Supplementary reasons on costs.
• 2004 BCCA 172 Houweling Nurseries Ltd. v. Houweling
  Appeal by appellants from order allowing claim in debt by respondents and dismissing counterclaim advanced in trial court by Appellants. Court of Appeal preliminary no error in disposition by trial judge and dismissing appeal.
• 2004 BCCA 174 Nelson v. Hoops L.P.
  Dismissed on an appeal of an order refusing an application for certification of the action as a claim provided under the Class Proceedings Act, R.S.B.C 1996, c. 50.
• 2004 BCCA 177 Reid v. British Columbia Egg Marketing Board
  Appeal of an order certifying a class action. Held: The order identified common issues. The chambers judge had applied correct principles. There was no basis to interfere with the order. Class actions are dynamic. Should adjustment of the issues be required, the parties may apply to the trial court
• 2004 BCCA 182 N.W. Construction (1993) Ltd. v. British Columbia (Workers' Compensation Board)
  The appellant employer was assessed penalties by the WCB for an industrial injury suffered by a worker who fell from a height of more than 10 feet while working unprotected.
  A judicial review failed but the reviewing judge said that the appeal division ought not to have excluded the principal of the appellant during the testimony of two employees.
  The appeal alleged that the Appellate Division’s rejection of the employer’s defense of due diligence was patently unreasonable and that the reviewing judge ought to have acted on his finding that the principal was wrongly excluded and quashed the decision on a breach of natural justice.
  Held: Rejection of due diligence defense was not patently unreasonable.
  On the second ground, the majority upheld the reviewing judge’s decision that the employer could not raise the natural justice issue when it failed to object at the time of the exclusion and no prejudice was shown, the minority view was that the decision to exclude was a discretionary procedural matter entitled to deference and did not deny the employer a fair hearing. At no time was the employer excluded, [its counsel remained throughout], only its principal was directed to leave.
• 2004 BCCA 183 Super-Save Enterprises Ltd. v. Del's Propane Ltd.
  The trial judge dismissed an action for inducing breach of contract. The appeal was dismissed. Knowledge, recklessness and willful blindness discussed. New supply contract valid when the tort is not established.
• 2004 BCCA 184 Zanetti v. Bonniehon Enterprises Ltd.
  Application for order granting indigent status to appeal two orders requiring security for costs and application for extension of time to appeal the first order, dismissed.
• 2004 BCCA 186 430872 B.C. Ltd. v. KPMG Inc.
  The majority found the trial judge erred when she found New Home Warranty was entitled to draw down a Letter of Credit for its own use without regard to the underlying contract between NHW and the appellant. Huddart J.A. (Lambert J.A. concurring) held a demand for payment absent a breach of contract by the appellant would constitute an abuse of the autonomy principle that the Court should enjoin as a fraud on the transaction. Lowry J.A. would have dismissed the appeal.
• 2004 BCCA 188 Aquila Networks Canada (B.C.) Ltd. v. Borgnetta
  The Appellant appealed permanent injunctions restraining him from interfering with the Respondent while the Respondent cleared trees on, encroaching on or likely to fall on that portion of the Appellant’s land over which the Respondent has a right of way, and restraining him from standing within two tree lengths of any tree the Respondent is clearing. Held: appeal allowed in part. The test for a permanent quia timet injunction, as set out in Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441, requires probability of the apprehended behaviour. As the Respondent only sought protection against interference while clearing on the right of way, and the evidence did not address cutting outside the right of way, the Appellant should only be enjoined from interfering with the Respondent while the Respondent is clearing on the right of way. The injunction as to distance was unnecessary.
• 2004 BCCA 189 Delta (Corporation) v. Boundary Bay Airport Corp.
  Appeal from judgment determining a lease. Relief against forfeiture granted pursuant to s. 24 of the Law & Equity Act.
• 2004 BCCA 190 Strata Plan LMS 1463 v. Krahn
  Appeal from the decision of a chambers judge granting the plaintiffs (respondents) leave to add defendants to an existing action and to amend their pleadings. Held: Appeal dismissed. The chambers judge properly applied the decision of this Court in Lui v. West Granville Manor Ltd. (No. 2) (1987), 11 B.C.L.R. (2d) 273, to the circumstances before her. Further, she did not err in permitting the plaintiffs to amend their pleadings to add a new cause of action.
• 2004 BCCA 192 C.P.R. v. Vancouver (City)
  This proceeding relates to CPR’s line of railway which runs for six miles from False Creek to Marpole but which has effectively ceased to be used for railway purposes. The issue is whether a bylaw enacted by the City in 2000 pursuant to its powers under the Vancouver Charter to regulate development, is invalid as being beyond the powers conferred by statute. The bylaw, if valid, designates the whole of the corridor as being capable of being developed only for specified public purposes and thus has the effect of preventing CPR from redeveloping the land so long as the designation continues and without requiring the City or any of the other interested public bodies to purchase the land.
  Held: The chambers judge erred in holding the bylaw invalid. The power to enact the bylaw is clearly conferred by the statute and, in the absence of bad faith (which was not alleged), the court cannot interfere. CPR cross-appealed asserting that the chambers judge erred in refusing to give effect to its alternative argument which was that the bylaw is valid but that, having exercised that power, the City must pay now for the land. That cross-appeal was dismissed as was a cross-appeal contending that if the bylaw cannot be set aside on the ground of ultra vires, it should be set aside because of defects in the procedure followed with respect to the public hearing which was held before the bylaw was passed.
• 2004 BCCA 196 Horvath v. Tate
  Application for leave to appeal the finding of liability in a motor vehicle accident granted. The linked issues of statutory bars and joint and several liability are of sufficient complexity and importance.
• 2004 BCCA 197 Webber v. Canadian Aviation Insurance Managers Ltd.
  Application for an order that the appeal be heard in stages. Application dismissed; the issues are intertwined.
• 2004 BCCA 199 VSA Highway Maintenance Ltd. v. British Columbia
  Appeal dismissed from a judgment that the Province was in breach of its highway maintenance contract with the respondent. The terms of the contract did not allow MOTH to act as a general contractor in performing highway maintenance and repair work.
• 2004 BCCA 201 Jak-B-Jak Investments Inc. v. Sadowick
  Appeal from award of damages for fraudulent misrepresentation inducing the purchase of a business. Court dealt with various specific issues arising out of damage assessment; appeal and cross-appeal partially successful.
• 2004 BCCA 205 Schober v. Walker
  In proceedings under the Legal Profession Act for review of a solicitor's bill of costs, the solicitor took exception to an expert opinion on the ground that the expert had been a partner of a solicitor from whom she had earlier sought an opinion on a bill of costs to a different client and to whom she had disclosed her "practice style, strategies and philosophy, [her] billing practices and the calculation of [her] fees". By motion, the client sought in chambers a declaration that the expert opinion was admissible before the registrar. The chambers judge dismissed the application, applying the doctrine of confidentiality in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235. Held: (1) The proceedings were irregular. There is nothing in the Rules permitting such an application. (2) On the merits, there is no property in a witness. Whatever the solicitor told the ex-partner of the expert concerning her strategy, billing practices, etc., did not fall within any concept of confidentiality because the client whose bill was now in issue had a right to know all such things.
• 2004 BCCA 206 Antonio v. Federici
  Application for an extension of time. The issue with respect to the effect of a Calderbank letter in multiple actions involving the same plaintiff and where I.C.B.C. is insurer of all dependents is of interest to some member of the legal profession and to I.C.B.C.. But, applying Davies v. C.I.B.C. the prejudice to the plaintiff in this case and the interests of justice resulted in a refusal of the extension.
• 2004 BCCA 208 Galaxy Sports Inc. v. Umbro Holdings Ltd.
  Appeal from an order providing that the respondent post security for costs in instalments. Held: Appeal respecting the amount of security to be posted dismissed. Order varied to provide for a specific date for posting the second instalment, and to provide that the security be posted in a trust account held by the appellants' lawyers pending agreement of the parties or further court order.
• 2004 BCCA 209 Chu v. Chen
  In the circumstances of this case a vendor's lien arose between plaintiffs and defendants.
• 2004 BCCA 210 Guide Outfitters Assoc. v. British Columbia (Information and Privacy Commissioner)
  Raincoast (cross-appellant) and another organization had applied under Freedom of Information statute for information about the location of grizzly bear kills in B.C. Ministry of Environment provided some but not all of information, relying upon s. 18(b) of the Act which provides information may be exempted from disclosure if likely to result in harm to conservation of an animal species. Applicants were not satisfied with detail of information about location of kill sites and applied to Commissioner of Act for order requiring more full disclosure. The Commissioner after hearing from parties and receiving information from, inter alia, a representative of appellant, Guide Outfitters, ordered more complete disclosure. Ministry sought judicial review invoking s. 18(b) and appellants sought judicial review, asserting that order of Commissioner flawed because he had not given appellants formal notice of and allowed their full participation in inquiry. Chambers judge dismissed petition of Ministry for judicial review but allowed in part petition of appellants on basis of breach of natural justice. She, however, directed that appellants would not be permitted to again canvas conservation issue previously argued by Ministry before Commissioner. Appellants appealed this limitation of their rights on rehearing that had been ordered and Raincoast and Commissioner cross-appealed seeking to sustain previous order of Commissioner.
  Court of Appeal allowing cross-appeals and dismissing appeal. Court finding that appropriate standard of review was reasonableness, that decision of Commissioner regarding notice and participation by appellants met that standard, that it was not shown that any unfairness had occurred vis-à-vis the appellants and that the chambers judge erred in allowing petition for judicial review brought on behalf of appellants. Deloitte & Touche LLP v. Ontario Securities Commission, [2003] 2 S.C.R. 713 referred to.
• 2004 BCCA 217 Gumpp v. Co-operators Life Insurance Co.
  An action on a policy of disability insurance is barred if not commenced within one year of a clear and unequivocal denial of future benefits.
• 2004 BCCA 218 Fuller (Estate) v. Fuller
  This is an appeal by an executor from the decision of a trial judge finding that the testator's will was invalid on the basis that the testator lacked the requisite mental capacity at the time he executed the Will. Held: Appeal dismissed. The trial judge did not misapprehend the evidence concerning the testator's mental capacity; nor did he err in the manner in which he weighed that evidence.
• 2004 BCCA 221 Pasnak v. Chura
  Appeal by the appellant Pasnak on the valuation of shares upon the winding up of four companies. Appellant claims the right to a number of deductions from the price to be paid for the respondent Chura’s shares based on misconduct. HELD: Appeal dismissed. A shareholder must show direct and special harm in order to maintain a personal action for oppression, otherwise he must seek leave to bring a derivative action in the name of the company. While remedial jurisdiction in oppression cases is broad, it cannot wipe out the separateness of the four corporate entities. Pre-judgment interest is varied to zero.
• 2004 BCCA 223 Roulette v. British Columbia Human Rights Tribunal
  Appeal from an order dismissing application for Judicial Review of decision to dismiss a human rights complaint because of substantial prejudice caused by delay. Appeal dismissed.
• 2004 BCCA 224 Young v. Saanich Police Department
  The court dismissed an appeal from an order dismissing a petition seeking a remedy under s. 24(1) of the Charter for alleged violations of ss. 7, 8 and 15 of the Charter. At issue were acts of various police officers and employees of The Capital Regional Housing Corporation.
• 2004 BCCA 225 Prokopchuk v. Egan
  Various orders made in a matrimonial action were appealed on the ground that no such relief had been sought in the motion before the court. Both parties had failed to adhere to an earlier consent order without seeking to vary its terms. In his motion, the appellant sought, among other things, to have the respondent held in contempt of court. The orders made addressed the substance of the appellant's motion and no error in principle was demonstrated. Appeal dismissed.
• 2004 BCCA 227 Arlin v. Director of Child, Family and Community Service
  Review of order refusing to extend time for appeal.
• 2004 BCCA 228 Garner v. Ganapathi
  Directions given for clarification of the order of the trial court.
• 2004 BCCA 231 Preckel v. Brooks
  Order under appeal set aside in part and matter referred back to the trial court to address issues in plaintiff’s motion. Trial judge erred in holding that he was functus officio.
• 2004 BCCA 232 Oxford Holdings Ltd. v. Peoples Trust Co.
  Appeal adjourned.
• 2004 BCCA 236 Kaila v. Khalsa Diwan Society
  The action is for an order setting aside the results of the 2002 election of the executive of the Society. The appeal is against an order removing plaintiffs’ counsel on the grounds that he acted for some of the defendants in matters arising out of the 1996 election. HELD: Appeal allowed. The test in Martin v. Gray is whether any relevant confidential information was communicated to the lawyer in an earlier proceeding. Here, there was no proper evidentiary foundation for such a finding. Further, the chambers judge erred in finding that there was a close connection between the issues in the earlier litigation and the case at bar.
• 2004 BCCA 237 Mazzei v. British Columbia (Adult Forensic Psychiatric Services)
  Part XX.1 of the Criminal Code authorizes the Review Board to make orders binding the NCR accused but no others.
• 2004 BCCA 240 Apsassin v. British Columbia Oil and Gas Commission
  Application for intervenor status dismissed.
• 2004 BCCA 241 Wiebe v. Gunderson
  On the footing of a change in circumstances since the order under review was made the order was varied.
• 2004 BCCA 242 Verchere v. Greenpeace Canada
  Appeal from judgment awarding damages, amounting to lost wages, for interfering with contractual relations.
  The appellants protested against logging practices on Roderick Island and prevented the respondent employees from using the machinery required to do their work. The appellants argued that they could not be liable unless they knew that under the terms of the respondents' employment contracts the respondents would not be paid if they could not work. The appellants, by unlawful (wrongful) means, caused the breach of the respondents' contract. They knew the respondents would be prevented from performing their obligations to their employer. Appeal dismissed.
• 2004 BCCA 243 Lindner v. Williams
  The appellants held a second mortgage on residential property. The mortgage broker relied on appraisals that were out of date and not intended for use as mortgage security or by third parties and he did not inspect the property. The residential property became the site of a marihuana grow operation and was thereby severely damaged, such that the appellants lost the money secured by the second mortgage. The trial judge dismissed their action against the broker and his company, finding that, although the broker was negligent, the appellants had not proven that they suffered any loss as a result. Held: Appeal dismissed. The trial judge did not err in finding that the relationship between the parties did not give rise to a fiduciary duty. The trial judge also did not err in holding that the appellants had not proven overvaluation of the property at the relevant time. There was no evidence that it was more probable that the damage occurred before the mortgage which would establish an overvaluation as that it occurred after to the mortgage.
• 2004 BCCA 245 Southam Inc. (Pacific Newspaper Group Inc.) v. British Columbia (Assessor of Area No. 14 - Surrey/White Rock)
  This appeal concerned the assessment for property tax purposes of the plant used to print Vancouver's two daily newspapers. The Property Assessment Appeal Board confirmed the assessment of the property for its current use at just over $40,000,000, using the replacement cost approach. The Supreme Court chambers judge allowed the owner's appeal, finding that the Board had erred in assessing the property at its use value rather than market value as required by the Assessment Act, R.S.B.C. 1996, c. 20. The parties agreed the property would sell for $25,000,000 for any other use, and the chambers judge ordered that it be assessed at that value. The Assessor's appeal is dismissed, substantially for the reasons given by the chambers judge.
• 2004 BCCA 246 Cariboo Disposal Services (90) Ltd. v. Slater Iron & Salvage Co. Ltd.
  Appeal from refusal of Supreme Court chambers judge to set aside a final order of foreclosure. Appellant had a conditional contract to purchase the property. Mortgagees obtained final order without notice to the appellant, and mortgagees’ counsel did not disclose all of the circumstances of the contract to the Master who made the order. Held: Appeal allowed. The Court has equitable jurisdiction to exercise its discretion to set aside a final order of foreclosure. On appeal, the appellant must show an error of law or principle. In this case, the chambers judge erred in failing to find that the appellant was entitled under the Supreme Court Rules to notice of the hearing of the application for the final order of foreclosure and that counsel for the mortgagees had not disclosed all of the relevant facts to the Master. She wrongly put the onus on the appellant to intervene in the foreclosure proceedings.
• 2004 BCCA 247 Pacific West Systems Supply Ltd. v. BC Rail Partnership
  Appeal by a landlord contending that the restricted use of the subject lands imposed by the terms of the lease should not have been taken into account in determining the “fair market rental” required by the rent review clause. Appeal dismissed.
• 2004 BCCA 249 A.B. v. B.C. Securities Commission
  Leave to appeal refused from dismissal of application to trial court for injunctive relief staying investigation by Securities Commission.
• 2004 BCCA 250 Rasaiah v. Rose
  The appellant appealed an order of the B.C. Supreme Court providing that jurisdiction over the issue of custody and access for the children rests with that Court, rather than the Circuit Court of Maryland, USA. A consent order of the Maryland court, later deemed an order of B.C. Supreme Court, stated that Maryland was to have jurisdiction despite any change in the respondent’s residence. The respondent moved to British Columbia with the two children in 2000. Held: Appeal allowed. Under s. 49 of the Family Relations Act a court may supersede an extraprovincial order in respect of custody or access only if there has been a material change in circumstances that affects the best interests of the child, and if it is not more appropriate for jurisdiction to be exercised outside British Columbia. There was no material change in circumstances in this case, as the Maryland order was made in contemplation of the respondent’s move to British Columbia. Furthermore, it is more appropriate that Maryland exercise jurisdiction in these child-related matters.
• 2004 BCCA 251 Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management)
  Application for stay of execution and injunctive relief pending appeal dismissed.
• 2004 BCCA 252 Emco Limited v. British Columbia
  Appeal allowed from dismissal of claim for Social Service Tax refund where vendor gave discount to customers for prompt payment.
• 2004 BCCA 253 Doman Industries Ltd. v. Communications, Energy, and Paperworkers' Union, Local 514
  Application for leave to appeal dismissed.
• 2004 BCCA 254 Brown v. Insurance Corp. of British Columbia
  I.C.B.C. appeal from judgment dismissing its claim for recovery of the payment it made to a third party passenger injured when the respondent's vehicle rolled over. The parties left the scene of the accident, the vehicle was reported stolen, but the respondent admitted a few days later he had lied and told the claims adjuster the true events.
  Issues on appeal directed to the interpretation and application of s. 19(1)(3) of the Insurance (Motor Vehicle) Act. Appeal allowed on the application of the section to the facts. Submissions invited on whether the case ought to be remitted to the trial court.
• 2004 BCCA 255 Chouinard. v. Hosseini-Nejad
  Appeal from an order granting the respondent solicitors a lien over all monies awarded in a personal injury trial and arbitration proceedings. The lien was given priority over any right to set-off claimed by I.C.B.C. Held: Appeal dismissed.
• 2004 BCCA 257 Wright v. Wright
  Application to reinstate appeal dismissed.
• 2004 BCCA 258 Yeung (Guardian at litem of) v. Au
  Plaintiff seriously injured in MVA. During the course of proceedings issues arose as to ownership of vehicle. Vehicle had been leased from defendant Transportaction and plaintiff pleaded it was vicariously liable for negligence of driver of auto. Initially counsel for Transportaction accepted in pleadings that Transportaction could be found vicariously liable. Later it was discovered that lease agreement had an option to purchase schedule attached to it. Counsel for Transportaction applied to amend pleadings to withdraw earlier admission and brought Rule 18 application to be dismissed from action. Plaintiff resisted amendment application because information had surfaced late in proceedings and plaintiff was having difficulty finding lessee (father of driver) to obtain information on terms of lease-purchase arrangement. Judge permitted amendment on terms that Transportaction undertake to participate in the trial. Both parties sought leave to appeal. Both applications dismissed on basis it was unlikely Court of Appeal would interfere with discretionary order made by the chambers judge.
• 2004 BCCA259 Enright v. Marwick
  The trial judge did not err in finding that the driver was not at fault when he struck a pedestrian who entered a crosswalk as the driver approached it. Section 179 of the Motor Vehicle Act considered.
• 2004 BCCA 260 Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society
  Appeal under s.100 of the Labour Relations Code, R.S.B.C. 1996, c. 244 of the abritrator's decision dismissing a grievance based on an alleged family status discrimination under s. 13 of the Human Rights Code, R.S.B.C. 1996, c. 210. Arbitrator erred in not finding prima facie discrimination. Appeal allowed and matter remitted back to arbitrator to decide issues of accommodation and, if necessary, damages.
• 2004 BCCA 262 Kennedy v. Brietkopf
  The appeal is dismissed. The trial judge did not misapprehend the evidence or draw erroneous conclusions from it in deciding that the appellant was wholly responsible for a motor vehicle collision at an intersection.
• 2004 BCCA 267 de Araujo v. Read
  A jury awarded damages to the plaintiff for injuries sustained in a motor vehicle accident. The defendant appealed alleging error by the trial judge in not declaring a mistrial on the basis that the remarks of plaintiff’s counsel “caused prejudice to the defendant that no direction in the charge could have removed.” The defendant also alleged that the awards were excessive. Held: New trial ordered. The majority held that the remarks of plaintiff’s counsel “cumulatively” were so inflammatory that a mistrial should have been declared. Smith J.A., while agreeing with the majority as to the inappropriateness of the remarks, would have dismissed the appeal because a new civil jury trial should not be ordered unless a substantial wrong or miscarriage of justice has occurred. The prejudice alleged by the appellant was an excessive award of non-pecuniary damages but the award was not, in his view, inordinately high. Accordingly, no miscarriage resulted.
• 2004 BCCA 269 British Columbia v. Imperial Tobacco Canada Ltd.
  This appeal is confined to the constitutional validity of the Tobacco Damages and Health Care Costs Recovery Act. At the Supreme Court of British Columbia the Canadian manufacturers of tobacco products argued that the Act was not constitutionally valid on these grounds: first, that the Act was extraterritorial in its purpose and effect; second, that the Act infringed on the constitutional principle of judicial independence; third, that the Act was constitutionally invalid because it was impermissibly retroactive; and fourth, that the Act offended the constitutional strictures of the rule of law. The Supreme Court judge decided that the Act was constitutionally invalid by being extraterritorial in its purpose and effect, but that it was not constitutionally invalid on any of the other grounds. On appeal, the same alleged grounds of unconstitutionality were argued. It was decided by each of the members of the division which heard the appeal, in separate reasons concurring in the result, that the Tobacco Damages and Health Care Costs Recovery Act is constitutionally valid legislation.
• 2004 BCCA 270 MacMillan v. Kaiser Equipment Ltd.
  The plaintiff appealed from an order dismissing his action for breach of contract made after a five-day summary trial held under Rule 18A. HELD: Appeal dismissed. The collateral contract alleged by the plaintiff was excluded by the “entire agreement” clause in the parties’ written agreement. As such, conflicts in the evidence relating to the making of that collateral contract did not preclude the use of the summary trial procedure. The trial judge was alive to the conflicts in the evidence, and resolved them where necessary by resort to the extensive documentary evidence before her.
• 2004 BCCA 271 Clark v. Kelowna (City)
  This appeal is from the dismissal of a petition seeking a third mailing address for two living units comprising in each case a third living unit in a generally two unit zone. The appeal turned on the interpretation of the zoning bylaw. The appeal was dismissed, Mr. Justice Lambert dissenting.
• 2004 BCCA 272 Brehnan v. Outback Producs Inc.
  The Court disagreed that a loan agreement required the payment of interest at a criminal rate and varied the chambers judge's order accordingly.
• 2004 BCCA 273 Fiddler v. Sun Life Assurance Co. of Canada
  The defendant insurer’s appeal from the award of $20,000 in aggravated damages is dismissed. There was sufficient evidence before the trial judge to support his conclusion that the insured had suffered mental distress as a result of the insurer’s wrongful termination of long-term disability benefits. Although financial consequences flowing from the breach may be a factor to consider, they need not be proven to give rise to aggravated damages. The amount of the award is not so inordinately high as to warrant interference.
  The plaintiff insured’s cross-appeal from the refusal to award punitive damages is allowed. The trial judge’s failure to find that the insurer breached its duty of utmost good faith is a palpable and overriding error. The insurer’s bad faith conduct is an independent actionable wrong and is a marked departure from the ordinary standards of decent behaviour reasonably expected of an insurer in a “peace of mind” contract. Punitive damages are required in this case to denounce and deter the insurer’s egregious conduct. A rational and proportionate award of punitive damages is $100,000.
• 2004 BCCA 276 Marvin v. Blueberry Hill Holdings Inc.
  The trial judge was not wrong to dismiss the appellant's action for specific performance on an application under Rule 18A. The appellant purchaser had repudiated the agreement by refusing to complete in accordance with its terms and by demanding something for which he had not contracted. The appellant had not sought the return of his deposit or down payment in his statement of claim. The trial judge was not wrong in refusing to re-open the case to deal with that issue
• 2004 BCCA 277 Pitt Meadows (District) v. Ron Jones Ltd.
  A municipality sued for development cost charges which had not been collected from the developer at the time the development permit was issued. The trial judge dismissed the municipality’s action on the ground that the new development, an auto dealership, would not impose any new capital cost burdens on the municipality because the new development was simply replacing the old dealership across the highway. Appeal allowed. When determining whether there would be any new capital cost burdens created by the new auto dealership development, the trial judge ought to have compared the previously vacant and unimproved Lot with the newly developed Lot on which the new dealership was located rather than comparing the likely burden from the old and new dealerships sites.
• 2004 BCCA 278 Samos Investments Inc. v. Pattison
  An order under s.2(3)(b) of the Class Proceedings Act refusing leave to apply beyond the 90 day period specified in s.2(3)(a) is an interlocutory order and leave to appeal from that order is required.
• 2004 BCCA 279 Law Society of B.C. v. Constantini
  Mr. Constantini, since being disbarred in 1986, has persisted in representing corporations in court proceedings in a manner which has created unfair difficulties for opposing litigants. A number of expressions of judicial disapproval and orders made in specific cases enjoining him from acting, including a consent order made in a proceeding brought by the Law Society, have not discouraged him from continuing to abuse the indulgence of the court. The order appealed from prohibits Mr. Constantini from providing any legal advice or services. His appeal from that order is dismissed.
• 2004 BCCA 280 Lafond v. Purslow
  Application for an order pursuant to s. 25 of the Court of Appeal Act that the appeal be taken off the inactive list, and allowing transcripts, appeal books and factums to be filed. Application dismissed.
• 2004 BCCA 281 After Six Inc. v. Black & Lee Formal Wear Rentals Ltd.
  The trial judge decided that the plaintiff’s claim had not been established on the balance of probabilities. He was not clearly and palpably wrong. Appeal dismissed.
• 2004 BCCA 282 Buschau v. Rogers Communications Inc.
  Various technical and other questions dealt with arising out of earlier judgment in this appeal: 2004 BCCA 80. Order now to be entered allowing appeal.
• 2004 BCCA 283 Coal Harbour Properties Partnership v. Liu
  Appeal allowed on a question of whether a partnership’s obligation to execute and deliver title to a strata lot will be discharged if the transfer is effected by one of the partners.
• 2004 BCCA 284 Re: Galaxy Sports Inc.
  Various issues arising under the Bankruptcy and Insolvency Act addressed, including 'standard of review' exercisable by Chambers judge below in respect of certain decisions of Chair of creditors' meeting and Trustee in bankruptcy, admissibility of "fresh evidence" in S.C.B.C. hearing held to approve proposal, and whether hearing below was a trial de novo.
  Court also dealt with claims of landlords of insolvent and s. 65.1 of the Act, and held that leases had not been "surrendered" but terminated, and that landlords were prohibited from claiming damages, on the Highway Properties principle, for loss of future rents.
  Last, claims of directors for alleged wrongful dismissal were held to have been correctly expunged, in absence of evidence of termination of their employment contracts.
  Matter remitted to Trustee to determine amount of rents that have accrued due post-proposal and then for second meeting to consider approval of proposal.
• 2004 BCCA 286 Chief Apsassin v. B.C. Oil and Gas
  The Chambers Judge did not err in determining that the Oil and Gas Commission had not breached its duty to consult and accommodate the appellant Saulteau First Nation when it granted the respondent Vintage Petroleum Canada Ltd., an authorization to drill a test hole within the traditional territory of the Saulteau people. Nor did the Chambers Judge err in failing to accede to the appellants’ constitution challenge to the Oil And Gas Commission Act and related legislation.
• 2004 BCCA 288 Zanetti v. Bonniehon Enterprises Ltd.
• 2004 BCCA 289 The Toronto Dominion Bank v. Erickson
  Application for leave to appeal a final order of foreclosure and sale. Appeal bound to fail and leave refused.
• 2004 BCCA 290 Spehar v. Beazley
  The trial judge awarded non-pecuniary damages at the judicial upper limit and awarded damages for future care based on almost full-time care by qualified care workers. The appellant submitted that the injuries were somewhat different and somewhat less than those suffered by the plaintiffs in the trilogy and cited cases where awards for serious injuries were less than the “cap”. He also contended that a simple “companion” was all that was needed by the respondent.
  HELD: Following Blackstock v. Patterson, devastating injuries are entitled to the maximum award and the respondent’s injuries, while different in nature from those of the plaintiffs in the trilogy, commanded such an award. For cost of future care the principle set forth in Krangle v. Brisco is applicable: “compensation that will provide a reasonably high standard of future care”. Appeal dismissed.
• 2004 BCCA 292 Sneddon v. B.C. Hydro
  In 1980 B.C. Hydro transferred all bus services and related employees to the Metro Transit Operating Company. Of the 3,000 employees, 1,850 accepted a refund of their contributions to the Hydro Pension Plan rather than leave their contributions in the Plan. Some 20 years later they commenced an action claiming Hydro’s contributions plus interest or corresponding benefits. The trial judge dismissed the action. HELD: Appeal dismissed. The scheme whereby the members of the Plan could obtain a refund of their contributions, but not those of Hydro, was statutorily approved. There was no issue of bad faith. The members were all fully informed and consented. Public policy, while an adjunct to statutory interpretation, did not form a basis for the claim.
• 2004 BCCA 293 Banton v. Westcoast Landfill Diversion Corp
  The appellant challenged the validity of the mortgage pursuant to the Fraudulent Preference and Fraudulent Conveyance Act on the basis that it hindered and, in effect, defeated the judgment in its favour. The claim was not allowed because the mortgage had a contractual right to call for the mortgage security on its legitimate past debt granted before the appellant obtained its judgment.
• 2004 BCCA 296 Rana v. Commercial Appeals Commission
  Application to remove the appeal from the inactive list, the appellant’s second, dismissed.
• 2004 BCCA 298 Otter Farm & Home Co-operative v. Sekhon
  The appellant operated a gas station business. The respondent was the supplier of gasoline. Between 1991 and 1999, the respondent provided “pump support”. There was nothing in the written contracts, entered into in 1997, about pump support. The appellant claimed a collateral oral contract. The trial judge dismissed the claim. There were several claims dealt with at trial, on some of which the appellant was successful. The trial judge awarded costs to the respondent. Held: appeal dismissed. The trial judge made no error of fact or law in concluding there was no binding collateral contract for pump support, and properly exercised his discretion in awarding costs to the respondent.
• 2004 BCCA 299 Arishenkoff v. British Columbia
  This was a "test" case in respect of three plaintiffs who alleged physical and psychological injury resulting from their apprehension in the 1950s when their parents, members of the "Sons of Freedom" Doukhobor sect, had refused to send them to school. At that time, the Protection of Children Act permitted the apprehension of truant children, but one of the three, Mr. P., was assumed to have been unlawfully confined when he was apprehended in 1953 and housed with other Doukhobor children. He was released in 1956 at the age of 12. All three plaintiffs alleged they had been sexually abused while living in the care and custody of the Province, but Mr. P.'s complaints in this regard were found by the court below not to constitute sexual misconduct. All three also alleged negligence, breach of fiduciary duty, breach of statutory authority and unlawful confinement against the Province.
  Counsel for both parties asked the judge below to assume Mr. P. had not been aware of a connection between his confinement and his (alleged) injuries, or that he could seek legal recourse, until April 8, 1999. The action was commenced within two years of that date, when he was 56 years of age.
  In Supreme Court, the Province applied under R. 18A to have Mr. P.'s claims dismissed on the ground that they were statute-barred. As well, the Province applied under R. 34 to have certain questions of law determined concerning the operation of the Limitation Act and whether the Crown could be liable for a tort alleged to have been committed prior to the enactment of the Crown Proceedings Act in 1974. If these questions were answered in the Province's favour, three of the plaintiffs, including Mr. P., asked the Court to determine the constitutional validity of s. 3(4)(k) of the Limitation Act. They sought a declaration that s. 3(4)(k), which removes all time barriers for suing in respect of sexual assault or sexual misconduct, offends s. 15 of the Charter in that it demeans or offends the dignity of persons who were abused, but not sexually abused, as children.
  The Court of Appeal generally affirmed the Supreme Court judge's rulings that:
  1. On the authority of this court's decision in B.(K.L.) v. British Columbia (1999) and the discoverability principle, the Crown "could be" liable for a tort which occurred prior to the coming into force of the Crown Proceedings Act in 1974.
  2. However, the 30-year "ultimate limitation" period in s. 8(1)(c) of the Limitation Act applied to bar Mr. P.'s claim for unlawful confinement after October 1995 (30 years after his 21st birthday) at the latest. The same was true of his other claims, all of which were subject to the 30-year "ultimate limitation".
  3. The reference in s. 8 of the Limitation Act to the date on which the right to sue arose, could not be construed to refer to the date in 1974 when the Crown Proceedings Act removed the bar to suing the Province in tort; and in any event, s. 8 imposes a "cut-off" date on claims. It does not itself postpone the running of time or revive an action previously barred.
  4. Since the Limitation Act applies to causes of action that arose both before and after 1974, the common-law discoverability rule does not have application in British Columbia to wrongs committed prior to 1975.
  The Province cross-appealed in order to seek a declaration that B.(K.L.), a decision of a panel of five judges of this court, was wrongly decided. The Court noted that a panel of three could not overrule a panel of five and concluded that although there might be merit to the cross-appeal, it was not necessary to determine the issue in this case.
  On the constitutional challenge to s. 3(4)(k) of the Limitation Act as being underinclusive, the Court affirmed the Chambers judgment below upholding the legislation. Proceeding through the analysis mandated by Law v. Canada (Minister of Employment and Immigration) (1999), the Court agreed that the "comparator group" selected by the plaintiffs — "persons disabled by child sexual abuse" — was not appropriate. Aside from the fact that it was unnecessary to be "disabled" before one could invoke s. 3(4)(k) of the Limitation Act, the legislation draws a distinction not between persons but between "types of abuse" or the type of wrong giving rise to the cause of action. Section 3(4)(k) did differentiate on this basis, which although not an enumerated ground was an "analogous ground" for purposes of s. 15 of the Charter. The disadvantages of child abuse generally had been recognized by Canadian courts and by Canadian legislation, and in addition, many statutory provisions in Canada provide special accommodation to the victims of sexual wrongs.
  As for whether s. 3(4)(k) "discriminates" for Charter purposes, an examination of the four "contextual factors" mandated by Law and in particular, the "correspondence" factor, led the Court to conclude that adults who were sexually abused as children have needs which "particularly affect their ability to bring a cause of action in a timely fashion." The stigma and taboo attached to sexual abuse is recognized in the literature and in cases such as M.(K.) v. M.(H.) (1992), and the evidence filed in this case (mainly by the plaintiffs) supported the fact that victims of sexual abuse have a particular need for relief from limitation provisions in advancing their claims.
  Viewed from the perspective of a reasonable individual who shared the plaintiffs' attributes, the Court could not say that s. 3(4)(k) had the effect of demeaning victims of (non-sexual) child abuse, making them feel less worthy of recognition and participation in Canadian society.
  In the result, the appeal was dismissed. The cross-appeal was also dismissed as being entirely hypothetical in light of the dismissal of the appeal.
• 2004 BCCA 300 Fasslane v. Purolator
  The sole shareholder and officer of the plaintiff (Fasslane) is Mr. Culchesky. He is a member of the Teamsters Union and for many years provided trucking services to the defendant, either in his personal capacity or through the plaintiff. In this action, Fasslane alleges breach of an oral contract by which it undertook to provide trucking services to the defendant. At the outset of the action, the defendant applied for a declaration that the court is without jurisdiction on the ground that the alleged contract is subject to the terms of the collective agreement between the defendant and the Teamsters Union. It asserts that the difference between the parties arises from the collective agreement and that the court therefore has no power to entertain an action in respect of that dispute. The chambers judge dismissed the application on the ground that the contract was “entirely outside” the scope of the collective agreement. In arriving at that decision, the chambers judge made no reference to the body of evidence adduced by the defendant to establish that there is an issue between the parties as to the application of the collective agreement.That being so, under the “exclusive jurisdiction model” laid down by the Supreme Court in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, that issue can be resolved only by arbitration under the collective agreement. The appeal is allowed, the order appealed from is set aside and the action is stayed.
• 2004 BCCA 301 Husain v. Eng
  The summary trial judge made no error in dismissing the appellants’ claim for damages for misrepresentation against their vendor’s realtor on the basis that the appellants did not rely on the alleged misrepresentation since they knew the true state of affairs before theycompleted the purchase of the property. Appeal dismissed.
• 2004 BCCA 303 Schober v. Walker
  Supplementary reasons (to 2004 BCCA 205) determining the appeal was dismissed as irregular.
• 2004 BCCA 306 The Lax Kw'alaams Indian Band v. British Columbia (The Minister of Forests)
  The appellant applied for an order enjoining the respondent from harvesting culturally modified trees in an area for which the respondent had the requisite permits but over which the appellant asserted aboriginal title. The appellant had filed appeals challenging the issuance of the permits and wanted the harvesting stopped until those appeals were heard. Held: Application dismissed. The balance of convenience favoured allowing the cutting to continue.
• 2004 BCCA 309 Coulter v. Ball
  An order for production of documents in the possession of third parties may be made under s.10(2)(a) of the Court of Appeal Act where the documents sought are potentially relevant to an application to adduce fresh evidence on appeal.
• 2004 BCCA 311 Lax Kw'alaams Indian Band v. Minister of Sustainable Resource Mgmt.
  Interim injunction, on limited terms, of logging on two cut blocks ordered, pending determination of earlier heard application for an injunction pending hearing of appeals.
• 2004 BCCA 312 Valley First Financial Services Ltd. v. Trach
  The trial judge did not err in finding that restrictive covenants were unenforceable against departing employees as unreasonable and contrary to public policy. However, he did err in concluding that the departing employees were in breach of duties of fidelity to the former employer. They were not fiduciaries and, as mere employees, their competition with their former employer was not unfair so as to be the basis for an award of damages. Moreover, their covenants to keep confidential information learned during the course of their employment, which the trial judge found they had breached, were intended to protect the confidential information of the former employer's customers and did not prohibit the departing employees from soliciting the customers on the basis of their collective recollection of customer identities. Appeal allowed.
• 2004 BCCA 313 B.C. Securities Commission v. Research Capital Corp.
  The appellant is an investment dealer which admittedly committed an inadvertent breach of a cease trading order issued by Commission staff. It seeks leave to appeal the Commission’s decision with respect to the amount of “administrative penalty” imposed and directing a review of its compliance procedures. Application dismissed on the ground that the case raises no point of general importance and that in any event, there is little chance for success.
• 2004 BCCA 316 North Vancouver (District) v. Sorrenti
  Although the summary trial judge based finding of (civil) contempt for breach of court order on R. v. Edge (1988), a case now limited to cases of “publication contempt”,” the evidence here was sufficient to support the contemnor’s conviction for contempt. His action which constituted the contempt was intentional and there was no evidence suggesting it was accidental or non-intentional. Elements of civil contempt discussed. Court below had not erred in awarding special costs to successful respondent.
• 2004 BCCA 319 Shingler v. Piercy Investments Ltd.
  Application for indigent status dismissed. No merit in proposed appeal.
• 2004 BCCA 320 George Boutsakis, A Partner v. George Bousakis & John Kakavelakis, A Partnership
  Appealed from an order made on the hearing of a R. 18A motion that claim of the plaintiff was determined in other proceedings and therefore was res judicata. The other proceedings were brought by the same plaintiff against another defendant so claim was not res judicata. Appeal allowed.
• 2004 BCCA 323 Oxford Holdings Ltd. v. Peoples Trust Co.
  In an action by Oxford Holdings Limited ("Oxford") against Peoples Trust Company ("Peoples") in relation to the validity of a mortgage granted by Oxford to Peoples, the parties agreed that the third party proceedings against the law firm who drew the mortgage should be adjourned pending the determination of the issues in the action. Held: Appeal allowed and all issues remitted to the Supreme Court to be resolved in one proceeding. The issues in the action and in the third party proceedings were inextricably intertwined. The third party, which was not represented on either the R. 18A application or on appeal, would be prejudiced if the appeal were to proceed.
• 2004 BCCA 325 Grochowich v. Okanagan University College
  The appellant was struck on the back of the head by the handle of a lawnmower protruding from a trailer being towed by a small tractor on a cement pathway on a campus of the Okanagan University College. He brought an action for damages against the College, the operator of the tractor, and the independent contractor who performed landscaping and grounds maintenance work on the campus. In the action against the College, the appellant relied on the Occupiers Liability Act. The College was successful in an application it brought under Rule 18A to have the action as against it dismissed, relying on s. 5 of the Act. The appeal from the order was dismissed as no error in either fact or law had been demonstrated.
• 2004 BCCA 326 Anderson v. British Columbia (Securities Commission)
  A motion was brought by the Executive Director of the B.C. Securities Commission for a stay of execution of an order for costs pending determination of the Director's application for leave to appeal this Court's judgment in Anderson v. British Columbia (Securities Commission), 2004 BCCA 7, to the Supreme Court of Canada. The Director met the requisite test for the granting of a stay and the application was granted under s. 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26.
• 2004 BCCA 328 Louglin v. Nichol and GMAC Leasco Limited
  The plaintiff Loughlin was awarded $10,000 in damages for injuries sustained in a motor vehicle accident. She failed to file a notice of appeal within the time required. The chambers judge dismissed her application for an extension of time to bring the appeal because her refusal to re-open all aspects of a settlement agreement would cause the defendant prejudice. Held: The appeal is allowed and the plaintiff is granted an extension of time for filing the appeal until one week after the date this judgment is pronounced. The chambers judge based his decision on a mistaken view of the facts induced by counsel’s misstatements. No agreement as to the final disposition of the appeal had been concluded between the parties. Counsel’s misstatement to the chambers judge as to the existence of such an agreement and the plaintiff’s position with respect to it, did not bind the plaintiff to that position or prevent the court from granting an extension of time where it is in the interests of justice to do so.
• 2004 BCCA 330 Doman Industries Ltd. v. Hayes Forest Services Ltd.
  The appellant, Hayes Forest Services Limited, sought to enforce an arbitration award against the respondent, Western Forest Products Limited, while the respondent was subject to Orders under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C.-36. Held: appeals dismissed. The supervising judge in the CCAA proceedings applied the proper principles in interpreting the CCAA Orders as barring the enforcement of the award. The enforcement proceedings were barred by the stay of proceedings. The provision of the CCAA Orders allowing the respondent to make payments to logging contractors and giving a degree of special status to replaceable contractors with respect to termination and repudiation of their contract could not be interpreted as making it mandatory that the appellant be paid ahead of other unsecured creditors.
• 2004 BCCA 331 B.C. Teachers' Federation v. British Columbia
  Court declines to hear an appeal it having become, as a result of legislative enactment, academic.
• 2004 BCCA 333 Brazeau v. International Brotherhood of Electrical Workers
  Motion by respondent to dismiss appeal for failure to comply with the rules disposed of by an order requiring appellant to obtain transcripts in compliance with Rule 20. Motion for stay of execution allowed on terms.
• 2004 BCCA 334 CIBC Mortgage Corporation v. the British Columbia Insurance Company
  Reference under s. 28 of the Court of Appeal Act determined by requiring appellants to reset appeal by August 1, 2004.
• 2004 BCCA 335 Hixon v. Roberts
  Appeal dismissed. The trial judge did not err in failing to weigh, as evidence, counsel's statements of questions and answers recorded on the plaintiff's examination for discovery which were neither adopted by the plaintiff during cross-examination nor read into the record on behalf of the defendant pursuant to Rule 40(27)(2)(a), nor did he err in apportioning fault 90% as against the defendant motorist and 10% against the ten-year-old plaintiff cyclist given the defendant's disregard of the obvious risk posed by the plaintiff's erratic movements on his bicycle and the plaintiff's diminished blameworthiness because of his youthful age. Southin J.A. dissenting.
• 2004 BCCA 336 Hutton v. Bitten
  Time extended to file all documents required to prosecute appeal.
• 2004 BCCA 337 Richard v. British Columbia; A.W. and D.W. (Litigation Guardian of) v. British Columbia
  Appeal from an order determining which of two class actions against a common defendant is to proceed. Appeal dismissed.
• 2004 BCCA 339 International Forest Products Ltd. v. Wolfe
  Appeals from conviction for criminal contempt by disobeying the Court’s injunction were dismissed. Appeals from sentences were allowed and the sentences varied to time served.
• 2004 BCCA 340 Jens Hans Investments Co. v. Bridger
  The appellant landlord leased a two-storey commercial building to a numbered company for a total term of ten years. The respondent, a shareholder and director of the tenant, was the indemnifier under the lease. The tenant’s business did not develop as anticipated and less than a year into the lease, the tenant withdrew from the second floor which made up approximately 45% of the total leased space. Over a period of a year, the landlord failed to respond to five separate offers to lease the second floor. Ultimately the tenant went into bankruptcy and the landlord subsequently sold the building. The landlord brought an action against the respondent as indemnifier for the arrears of rent up to the date of the sale of the leased property. The landlord’s action was dismissed. The trial judge held that the landlord had breached a fundamental term of the lease by unreasonably withholding its consent to sublet the second floor. Applying the reasoning in Richview Investments Inc. v. Dynasty Social Club (1997), 29 B.C.L.R. (3d) 348 (C.A.), the trial judge held that since the landlord’s breach had materially increased the risk to the indemnifier, the indemnifier’s obligation was discharged. The appeal was dismissed.
• 2004 BCCA 343 British Columbia (Chief Firearms Officer) v. Fahlman
  The test on a review of a decision of a firearms officer by a Provincial Court judge under ss. 74-76 of the Firearms Act, S.C. 1995 c. 39 is reasonableness based on the record as amplified. The review is not a hearing de novo. Section 5(2) of the statute does not exhaust the matters to be considered on the safety issue under s. 5(1). Appeal dismissed because Provincial Court judge properly applied reasonableness test and no error shown.The test on a review of a decision of a firearms officer by a Provincial Court judge under ss. 74-76 of the Firearms Act, S.C. 1995 c. 39 is reasonableness based on the record as amplified. The review is not a hearing de novo. Section 5(2) of the statute does not exhaust the matters to be considered on the safety issue under s. 5(1). Appeal dismissed because Provincial Court judge properly applied reasonableness test and no error shown.
• 2004 BCCA 344 Vancouver Port Authority v. Delta (Municipality)
  Leave to appeal refused under s. 65(9) of Assessment Act. No arguable grounds of appeal advanced.
• 2004 BCCA 346 BC Hydro and Power Authority v. Terasen Gas (Vancouver Island) Inc.
  Appeal dismissed from an order of the BC Utilities Commission setting rates for the Vancouver Island natural gas pipeline. The special direction to the commission under the Vancouver Island Natural Gas Pipeline Act did not preclude including in the rates of the appellant BC Hydro a contribution to accumulated revenue deficiencies on the system. An appeal by a joint venture of pulp mills raising related issues was also dismissed on the ground that the Commission had not made any reviewable error.
• 2004 BCCA 347 Harrison Hot Springs (Village) v. Kamenka
  The holding of a Triathlon Festival in the Village of Harrison Hot Springs, which resulted in stoppages of traffic, constituted an "obstruction" of a highway within the meaning of s. 532(2) of the Local Government Act. Although it has since been repealed, s. 46(1) of the Community Charter essentially replicates it, and the issue was likely to recur in future. Consequently, the appeal was not moot.
• 2004 BCCA 348 Benoit v. Farrell Estate
  A provincial road-maintenance contractor appealed findings of liability against it on the basis that the trial judge erred in concluding that it was negligent in failing to salt a highway and in concluding that black ice on the highway was a cause of a fatal collision. Further, it contended that the trial judge erred in failing to apportion fault against Mr. Farrell, the deceased driver of one of the vehicles. The Farrell vehicle collided head-on with the Benoit vehicle in the latter's lane of travel. Mr. Benoit had no recollection of the collision. There was no direct evidence of how the Farrell vehicle came to be on the wrong side of the road. Held: The trial judge did not err in finding negligence against the road contractor. There was abundant evidence that its employees were aware of the risk of freezing and failed to spread salt when they reasonably should have done so. That the ice was a cause of the collision is the only rational inference open on the evidence. Other suggested causes were merely speculation. The road-maintenance contractor had the burden of proving fault against Mr. Farrell on a balance of probabilities. The fact that his vehicle was on the wrong side of the highway was evidence from which an inference of fault might drawn but the inference was neutralized by the evidence of adverse weather and road conditions.
• 2004 BCCA 349 International Forest Products Ltd. v. Wolfe
  Appeal from conviction for criminal contempt in an anti-logging protest, on the ground that the proceedings should have been stayed for abuse of process as a result of unlawful acts of employees of the plaintiffs in attacking the protesters’ camp, destroying property and assaulting and threatening occupants. Held that the trial judge did not err in refusing the stay, on the ground that a stay would encourage disobedience of court orders and undermine respect for the law. Appeal dismissed.
• 2004 BCCA 350 Ali v. 656527 B.C. Ltd.
  Appeal from a decree of specific performance of an agreement for the purchase and sale of a residential home where the exercise of an option was disputed.
  Appeal dismissed.
• 2004 BCCA 351 Communications, Energy & Paperworkers' Union of Canada (CEP) Local 433 v. Unisource Canada Inc.
  The Union’s appeal from an arbitrator’s decision dismissing its grievance that the employer’s installation of surveillance cameras violated the privacy rights of Union members is quashed for lack of jurisdiction. The “basis of the award” was not the general law of privacy, but rather the primarily factual determinations whether the employer had a legitimate concern about theft and whether each camera was a reasonable exercise of management rights in the circumstances. Any conclusions of law which the arbitrator reached were drawn from arbitration jurisprudence and are limited to the context of labour management relations. The fact that the award or appeal may have “engaged” Charter values and the Privacy Act does not bring the appeal within s.100 of the Labour Relations Code.
• 2004 BCCA 352 Lorindale Holdings v. BC Assets and Land Corp.
  Appeal from dismissal of a petition for judicial review based on allegations that appellants did not receive natural justice in connection with an application for a shellfish lease. Appeal dismissed. Appellants claimed procedural rights as though they had a competing claim with their neighbour for the same tenure. Respondent Agency refused to process appellants’ application because it failed to meet a basic qualification. There was no lis between the two applicants. The reviewing judge was correct in holding that the Agency did not breach the duty of fairness.
• 2004 BCCA 353 Smith v. Clarke
  Appeal from an order dismissing an appeal from a registrar’s order granting an absolute discharge in bankruptcy proceedings.
• 2004 BCCA 354 Lions Gate Marketing Co. Ltd. v. Used Car Dealers Assn. of Ontario
  The defendant does not require leave to appeal from a summary trial decision which held the defendant liable for defamation but did not determine the issue of damages. The trial judge’s decision settles the substantive merits of the litigation between the parties. There are no issues outstanding with respect to the question of liability. The order does not merely limit the scope of the claim or defences that can be presented at trial, but rather finally disposes of both the plaintiff’s right to recover damages and the defendant’s right to resist recovery. The order should therefore be considered “final” and leave to appeal is not required.
• 2004 BCCA 356 Charlebois v. Vandas
  Defendant appealed a jury award to plaintiff of $110,000 non-pecuniary damages and $50,000 for impairment of future earning capacity for injuries sustained in a motor vehicle accident. Medical opinions the jury ought not to have heard could not have affected the result. Awards of damages not inordinately high. Appeal dismissed.
• 2004 BCCA 358 Collum v. Bank of Montreal
  The appellant signed a guarantee of her husband’s company’s debt in 1993 and then again in 1995. Both guarantees stipulated that the bank could deal with any of the securities as it wished without the guarantor’s consent, but the amount guaranteed under the 1995 guarantee was twice that of the 1993 guarantee. Before the 1995 guarantee was signed, one of the bank’s significant securities as against the company was relinquished in favour of another financial institution, thereby increasing the risk that the appellant would be sued upon the guarantee. That change in security was not disclosed. Upon the company’s bankruptcy, the bank sued upon the 1995 guarantee. Held: appeal allowed. The non-disclosure vitiated the 1995 guarantee. The change in security was material and unusual and there was no reason to relieve the bank of its obligation to disclose.
• 2004 BCCA 359 Esser v. British Columbia (Attorney General)
  By using a forged land transfer document, client of defendant notary public "duped" her into proceeding with conveyance of land belonging jointly to fraudulent client and his ex-wife. Ex-wife sued notary and the Attorney General, the latter in order to obtain compensation from assurance fund under the Land Title Act. Trial judge found notary liable.
  On appeal, majority held that notary had not owed duty of care to ex-wife and that in the circumstances, the standard of care had been met. Notary could not reasonably be faulted for believing what fraudulent client told her. Saunders J.A. dissented.
• 2004 BCCA 360 The Corporation of the Disctrict of Summerland v. Robert-Victor-MacPherson: Kennedy and No Strings Enterprises Ltd.
  The appellants seek leave to appeal the order of a chambers judge pronounced in June 1998. The time for bringing the leave application is long expired and the appellants would first require an order granting an extension of time. However, the filed material does not disclose when the appellants communicated their intention to appeal to the respondent, nor does it provide any reason for the six year delay in bringing this application. In addition, there does not appear to be any merit to the proposed appeal. Leave to appeal is refused.
• 2004 BCCA 361 Pierce v. Chaplin and Sun Life Assurance Co.
  The trial judge found that the appellant solicitor’s conduct of the plaintiff’s claim for entitlement to disability benefits and punitive damages was such that the appellant be held personally responsible for paying a portion of the increased costs, fixed at 75% of special costs, awarded to the defendant insurer. Held, the appellant’s application for leave to appeal is dismissed. The trial judge’s decision is based on the unique factual circumstances of the case and a provision of the Rules which no longer has application. The decision is therefore of no great importance to the profession. In addition, when considered against the limited scope of review applied to a discretionary costs order, the appellant has not identified an arguable ground of appeal sufficient to warrant the granting of leave.
• 2004 BCCA 364 Johnson v. Laing
  A trial judge has no power to reject a jury's verdict on the ground it is unreasonable. If the law is to be changed, the Legislature must do it. The Court of Appeal