B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

CIVIL 2008

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• 2008 BCCA 1 Speckling v. Communications, Energy and Paperworkers' Union of Canada (Local 76)
  The respondents' application for an order for security for costs is granted. The appeal is stayed pending the deposit of the security for costs.
• 2008 BCCA 3 Dyke v. British Columbia Amateur Softball Assn.
  Appeal from dismissal of claim under Occupiers Liability Act arising from a head injury caused by a foul ball during a softball game. The appellant was standing in an unprotected area rather than in the dugout, her preferred location, because the dugout was flooded. The trial judge defined the standard of care as providing a safe place, not necessarily the most convenient place, for the appellant to carry out her scorekeeping duties. Such a place was provided. No reversible error shown; appeal dismissed.
  The judge denied liability on the alternate ground that if the respondent had a duty to provide a dry dugout, a "clear line" could be drawn between the respondent's failure to drain the dugout and the appellant's choice of where to stand. This was an error. "Clear line" and "last clear chance" were eliminated by contributory negligence legislation.
• 2008 BCCA 6 Bedwell v. McGill
  Appeal from decision of trial judge challenging (i) apportionment of 50% of fault for the subject motor vehicle accident to the appellant, (ii) the damage award for cost of future care, and (iii) the refusal to award damages for loss of income earning capacity.
  Held: appeal allowed in part. The majority held that although the trial judge did not err in finding some fault on the part of the appellant, the judge did err in not giving effect to the fact that the appellant was the dominant driver, and only 25% of the fault should have been apportioned to the appellant. It was unanimously held that (i) the reasons of the trial judge were adequate, (ii) there was no error in the assessment of damages for future care costs, and (iii) there was no error in the refusal to award damages for loss of income earning capacity.
  The issue of costs was not dealt with. A five-judge panel is to be convened to reconsider Smith v. Knudsen, 2004 BCCA 613, 247 D.L.R. (4th) 256.
• 2008 BCCA 10 Lising v. Kent Institution
  The appellant appealed from an order dismissing his habeas corpus application. Between the date the appeal was filed and the date the appeal came on for hearing, the factual foundation for the habeas corpus application had ceased to exist and the relief sought on the appeal had become academic. Held: The appeal was moot and the court declining to exercise its discretion in favour of hearing the appeal.
• 2008 BCCA 12 Bakker v. Nahanee
  Application for leave to appeal dismissed.
• 2008 BCCA 13 Boutsakis v. Kakavelakis
  Largely unsuccessful appeal on procedural grounds in long running dispute between two partners who co-own a commercial property leased to family members. Discussion of some limitation and procedural issues.
• 2008 BCCA 14 Birrell v. Providence Health Care Society
  Leave to appeal is allowed.
• 2008 BCCA 18 Wolseley Canada Inc. v. Emco Corporation
  Application for leave to appeal dismissed.
• 2008 BCCA 19 Walker v. Schober
  Client's appeal from the order of a Supreme Court chambers judge who allowed a lawyer's appeal from a registrar's decision to reduce her accounts in a matrimonial proceeding from $21,055 to $6,000. The chambers judge decided that the registrar had exceeded his jurisdiction in finding the lawyer's conduct "most discreditable", on the ground that amounted to a finding of professional misconduct within the exclusive jurisdiction of the Law Society, and made factual errors. Held: appeal allowed. The registrar did not exceed his jurisdiction in commenting on the lawyer's conduct in the context of a review of the lawyer's accounts, and made no errors of fact. Comments by the Court on ex parte proceedings in matters involving custody and access.
• 2008 BCCA 23 Bohun v. Segal
  The defendant appealed from a finding of liability in this medical negligence case involving a delayed diagnosis of the plaintiff’s breast cancer. The plaintiff cross-appealed from the trial judge’s assessment of damages. Held: appeal allowed; cross-appeal dismissed, except to the extent of preserving a $25,000 award for psychological damage. The trial judge erred in applying the material contribution test of causation. The unique and highly accurate medical and scientific evidence provided a sufficient and appropriate basis for conducting a “but for” analysis. While the evidence did establish that the delay increased the plaintiff’s risk of death, this is not enough to satisfy the “but for” standard. The plaintiff had to show that the delay was, more probably than not, the cause of her damage (lost years). In this case, the delay in diagnosis resulted in a 20% relative increase in the plaintiff’s risk of death, and therefore represented a causation probability of 20%. The plaintiff failed to meet the burden of proving causation on a balance of probabilities.
• 2008 BCCA 24 Shieh v. Certified General Accountants Association of British Columbia
  Mr. Shieh did not comply with a number of Court of Appeal Rules. He brought applications for orders allowing him to deviate from them and for indigent status. One of his requests was to dispense with the obligation to have an address for service within British Columbia and to use instead an address in the United States. Prowse J.A. refused his application and directed him to provide an address in the Province by November 16, 2007 and adjourned his applications to December 4, 2007. No address for service in the Province was supplied. The respondent brought an application returnable December 4, 2007 seeking to have the appeal dismissed as abandoned. Held: appeal dismissed as abandoned. Supplying an address for service within the Province was a condition to proceeding with Mr. Shieh’s applications. Mr. Shieh having failed to do so, the only application before the Justice was the respondent’s application to dismiss. Mr. Shieh remained in violation of the Rules and had not complied with the order of Prowse J.A. On this basis his appeal should be dismissed (Stromotich v. Stromotich; Farmers Insurance Co. of Oregon v. Brown; International Hi-Tech Industries Inc. v. FANUC Robotics Canada Ltd.). In addition, he made it clear he did not intend to provide an address for service in British Columbia. The failure to provide an address for service in the Province made the administration of his appeal unworkable.
• 2008 BCCA 26 Murphy v. Wynne
  Mr. Murphy appeals from the order of Mr. Justice Groberman of 14 July 2006 striking out Mr. Murphy’s statement of claim and dismissing his actions against all defendants. He applies for various remedies including orders that this appeal be removed from the inactive list, that an earlier order requiring him to post security for the costs of appeal be set aside, that a five judge panel be appointed to hear his appeal, and that he be granted indigent status.
  HELD: Applications dismissed. It would not be in the interests of justice to remove this appeal from the inactive list. There is no prospect of success in an appeal of Mr. Justice Groberman’s order of 14 July 2006. In light of this disposition, Mr. Murphy’s other applications are all moot. They are therefore dismissed as well.
• 2008 BCCA 27 Sutherland v. The Attorney General of Canada
  The Attorney General of Canada and the Vancouver International Airport Authority appeal from the order of Mr. Justice Holmes of the Supreme Court of British Columbia of 2 November 2006 in which he apportioned costs between the parties, despite the defendants’ success in having the action dismissed in its entirety on appeal to this Court.
  HELD: Appeal allowed. The trial judge erred in apportioning costs. He failed to take a relevant factor into consideration, namely that the defendants, the parties who ultimately succeeded, did not prolong the case unnecessarily through their conduct of the nuisance issue. He took an irrelevant factor into consideration in suggesting that the defendants should not have thought they had much chance of success in defending against the allegation of nuisance. Lastly, he misdirected himself in finding that the defendants “ignored” the recommendation of the EARP Panel. As a result of these errors, this Court is justified in interfering with the trial judge’s order for costs. Both defendants are entitled to their full costs at trial without apportionment on scale 5.
• 2008 BCCA 29 Abakhan v. Halpen
  Appeal by plaintiff from judgment for contribution by co-guarantors. The plaintiff had acquired the remnant debt from the creditor and sought contribution from his co-guarantors. Held: The plaintiff was not entitled to sue his co-guarantors for the amount of the remnant debt; the benefit he gained being held for all. The amount of contribution by the co-guarantors was their proportional amount of all amounts paid by the appellant to the creditor.
• 2008 BCCA 31 Hayes Forest Services Limited v. Weyerhaeuser Company Limited
  Hayes and Weyerhaeuser entered into an agreement for Hayes to manage operations in an area being logged by Weyerhaeuser. Hayes was paid its costs and was to receive a percentage of the “gain” on costs, being the difference between baseline costs to which the parties had agreed and actual costs. That is, the lower the actual costs, the greater the gain. The Agreement contained a commitment to arbitrate. The parties disagreed whether Hayes was obliged to expense certain costs in the year in which they were incurred or whether it could “inventory” the costs and expense them in the year in which the timber concerning which the costs were incurred was harvested. An arbitrator interpreted the relevant provisions of the Agreement to require Hayes to expense the costs in the year in which they were incurred. He also held the parties had reached an agreement concerning the costs for a specific year in dispute. Hayes disagreed with the award and sought leave to appeal the arbitrator’s decision. Leave was granted, in part, on the basis the interpretation of the provisions of a contract is a question of law: British Columbia v. Surrey School District No. 36. The Supreme Court appeal judge allowed the appeal, concluding the arbitrator’s interpretation of the Agreement was incorrect, certain provisions of the Agreement were in conflict and inoperable and the alleged settlement made did not make business sense. Appeal to this Court allowed.
  The Commercial Arbitration Act authorizes appeals from arbitral awards on a point of law by agreement or with leave. This limited right of appeal flows out of a 1982 Law Reform Commission report. There are policy reasons for its inclusion in the domestic arbitration legislation in contrast to the International Commercial Arbitration Act. Considering the scope of review and the discretion of judges whether to grant leave to appeal, it is essential to ensure that leave is granted on questions of law only. To do otherwise is to defeat the policy of the legislation to foster the effective and efficient resolution of disputes by arbitration. Other than when the task narrowly is to determine the meaning of the words in a contract, generally the interpretation of a contract is a question of mixed fact and law (Petty v. Telus Corp.; MacDougall v. MacDougall). The scope of the questions in this case inevitably led the appeal judge to substitute his views of the relevant factual matrix and good business sense for that of the arbitrator, which the judge was not entitled to do.
• 2008 BCCA 32 Stanton v. Stanton Estate
  Appeal from order declaring the will of her husband valid. Held: appeal dismissed. There was no reason to interfere with the conclusions reached by the trial judge: first that Mr. Stanton possessed the requisite testamentary capacity at the time he made his new will, and second, that the circumstances surrounding the making of the will were not suspicious.
• 2008 BCCA 33 Johnson v. Global Television Network Inc. (CH Vancouver Island)
  The trial judge found that Mr. Johnson had been constructively dismissed. The judge concluded that mandatory retirement was not a term of the employment contract between Mr. Johnson and his employer, and awarded damages based on a period of notice that extended beyond his 65th birthday.
  The appeal was allowed in part. Based on Mr. Johnson’s own testimony, it was a term of his employment contract that he retire on the first day of the month following his 65th birthday unless his employer consented to a continuation of his employment beyond that date. The employer had not given such consent. Mr. Johnson was only entitled to have received notice of termination of his employment from the date of his constructive dismissal to the date on which his employer could have required him to retire.
• 2008 BCCA 35 A.L. Sott Financial (FIR) Inc. v. PDF Training Inc.
  A.L. Sott owned property in Vancouver and entered into an Offer to Lease the property with the PDF Training, a company controlled by Mr. Cooke and Ms. Palfreyman. They guaranteed PDF’s obligations under the Offer to Lease. Dubrulle, which operates a culinary school, also was owned by Mr. Cooke and Ms. Palfreyman. Dubrulle was to occupy the premises. Mr. Cooke obtained a key for the premises and substantial physical work was undertaken in the building. The Offer to Lease contained a provision stating PDF would “pay to the Landlord a management fee of __% of the Basic Rent”. A.L. Sott delivered to PDF a draft landlord’s form of lease in which the number “5” was inserted in the blank. PDF refused to accept the insertion and took the position there was no agreement to pay a management fee. A.L. Sott insisted on a management fee. PDF refused to sign a lease requiring such a fee and ultimately decided not to lease the property. A.L. Sott sued claiming PDF was in breach of the lease agreement, seeking damages for trespass as a result of the physical work done in the building and punitive damages. PDF counterclaimed asserting A.L. Sott had repudiated the Offer to Lease. The trial judge held there was no agreement to pay a management fee and A.L. Sott was obliged to deliver a lease without such an obligation. Its failure to do so constituted a fundamental breach of the Offer to Lease, which entitled PDF to treat the contract as repudiated. PDF communicated its acceptance of the repudiation to A.L. Sott. The trial judge awarded damages to PDF on the counterclaim. The trial judge concluded PDF, Mr. Cooke and Ms. Palfreyman were liable in trespass, but dismissed the claim of trespass against Dubrulle. A.L. Sott appealed seeking judgment against PDF for unpaid rent, $250,000 against Mr. Cooke and Ms. Palfreyman as guarantors, increased damages for trespass, punitive damages and special costs, but only if its claim for punitive damages were successful, judgment against Dubrulle and dismissal of the counterclaim of PDF. Mr. Cooke, Ms. Palfreyman and PDF cross-appealed seeking dismissal of the trespass claim, setting aside the trespass damages and an increase in the damages for breach of contract. Held: appeal and cross-appeal dismissed.
  It was a conceptual error to link punitive damages to special costs. Damages is a remedy connected to a substantive wrong. Special costs flow out of the conduct of litigation. Construction of the provisions of a contract generally is a question of mixed fact and law. The findings of fact of a trial judge must be respected. It was not demonstrated that she committed any overriding and palpable error reaching her conclusions concerning the obligations of the parties under the Offer to Purchase or in determining the trespass claim. The judge committed no error in principle in assessing damages and refusing to award punitive damages. There was no basis upon which this Court could interfere.
• 2008 BCCA 38 Saugestad v. Saugestad
  Appeal by the testator’s widow to vary a will under the Wills Variation Act. The estate of the testator was disposed of by will entirely to the two adult sons of the testator on the grounds stated in the will “that I have provided for her with other means... The appellant was the testator’s second wife and both the testator and the appellant were retired. The two sons were unmarried and starting on their careers. The appellant received the matrimonial home, RRSPs and the testator’s pension outside the will and she had a one-half interest in two investment properties held as tenants in common with the testator. The testator’s half interest passed to the sons under the will. The appellant had assets of approximately $950,000 on the testator’s death compared to approximately $225,000 when she married the testator 11 years earlier. The sons would each receive an inheritance of approximately $1 million. The trial judge concluded that the testator was entitled to prefer the claims of the sons starting their careers with limited resources and modest incomes to the appellant’s wish to maintain an expensive lifestyle. The appellant had sufficient assets to maintain herself in comfortable circumstances.
  The trial judge upheld the will except for a variation giving the appellant a cash legacy of $29,000 and a life interest in the testator’s one-half interest in one of the investment properties. Held, the trial judge’s order should be upheld, except to the extent that the appellant’s life interest in the investment property should be converted to the entire interest of the testator in the property.
• 2008 BCCA 40 British Columbia Ferry Services Inc. v. Canadian Transportation Accident Investigation and Safety Board
  Appeal raising a question of whether discretion was exercised properly in dismissing an application for relief from an obligation to hold computer data in confidence. Appeal dismissed.
• 2008 BCCA 42 Fisher v. Lakeland Mills Ltd.
  Ms. Fisher joined the respondent company when she was 48 years old as a receptionist/secretary with duties that eventually included accounts payable and receivable. When she was 65 years old she was assured by the company president she could remain at work as long as she wanted. Subsequently, because a part-time employee left the company, Ms. Fisher was asked to take on shipping duties. These required computer skills with which she was unfamiliar and which she found difficult. She advised the company president that she was unable to do the shipping work and felt she had to retire. He did not counter her views. Ms. Fisher brought an action alleging she was dismissed constructively. The trial judge agreed and awarded her 10 months pay in lieu of notice. Ms. Fisher appealed stating she was entitled to more notice, including four months notice because she had been assured of continued employment (Singh v. British Columbia Hydro) and one month’s notice based on improper conduct by the company (Wallace v. United Grain Growers). The company cross-appealed asserting Mr. Fisher was not dismissed constructively. Held: appeal and cross-appeal dismissed. The shipping duties were a fundamental change in Ms. Fisher’s employment contract. The company president’s silence was an affirmation of Ms. Fisher’s view she had to do the shipping or leave and constituted constructive dismissal. Ten months’ notice was not clearly outside the appropriate range (Burry v. United Communications Inc.) It is likely Singh damages were not sought at trial, but, in any event, they are not appropriate in this case. Ms. Fisher did not alter her position as a result of the assurance. The company president’s silence did not amount to egregious conduct. Wallace damages are inappropriate in this case.
• 2008 BCCA 43 Aksidan v. Canada (Attorney General)
  Appeal from a judgment dismissing an action against the federal Crown for damages for sexual assault of aboriginal elementary school students by a teacher at a teacherage connected to a community school on an Indian reserve. The school was administered by a school district established under provincial legislation and the claims against the school district and the teacher were settled before trial. Held, appeal dismissed. The federal responsibilities for the care and safety of Indian children at the school had been delegated by agreement to the Province and the school district and there was no residual responsibility in the federal Crown under the Indian Act that could support a duty of care in negligence or breach of fiduciary duty in the circumstances.
• 2008 BCCA 45 Romfo v. 1216393 Ontario Ltd.
  In the cross-applications before the court, procedural issues in appeals from orders pronounced at different times in relation to different defendants were raised. The plaintiffs were successful in their several actions against 1216393 Ontario Inc. and Tylon Steepe Development Corporation for specific performance of agreements for sale. The plaintiffs’ position at trial was that their alternative claim alleging misrepresentation against the defendant Dennis Kretschmer was not going to be pursued if an order for specific performance was granted. The claim against Kretschmer was dismissed at a hearing subsequent to the release of the reasons for judgment on the specific performance claim. The corporate defendants appealed the order for specific performance. The plaintiffs then brought an appeal from the dismissal of their alternative claim and joined all the defendants as parties to the appeal, even though no relief was sought against the corporate defendants. The corporate defendants’ application to strike the plaintiffs’ appeal as against them in the plaintiffs’ appeal from the order dismissing the alternative claim against the individual defendant was granted. The defendants’ further application to strike the plaintiffs’ appeal on the ground that the appeal was brought out of time was dismissed. The plaintiffs’ cross-motion to extend the time within which to appeal was accordingly dismissed as unnecessary.
• 2008 BCCA 46 Bronson v. Hewitt
  Applications for leave to appeal from two interlocutory orders of a case management judge, ordering a chronological list of documents, and refusing leave to file a further amended statement of claim.
  Both applications dismissed, as not meeting the test for leave on discretionary interlocutory orders.
• 2008 BCCA 50 Lam v. Halliday-Sumner
  Supplementary Reasons as to Costs.
• 2008 BCCA 51 Ashton Mining of Canada v. Vesuna
  Application for security for costs dismissed.
• 2008 BCCA 52 B.B. v. M.B.
  Motion to reactivate appeal allowed, and the time for filing the appellant’s factum extended. Although this case is close to the line it is in the interests of justice to allow the appeal to proceed, particularly in view of the fact that the appellant’s record, appeal books and transcripts have been filed. The cross-appeal is also reactivated. The respondent is entitled to costs of the motion in any event of the appeal.
• 2008 BCCA 53 Richard v. H.M.T.Q. (British Columbia)
  Applications to vary the order of a justice deferring the standing of a non-party to bring an appeal, and to quash the appeal as an abuse of process, dismissed. A Supreme Court chambers judge ordered that a law firm be removed as class counsel due to the manner in which the law firm dealt with conflicting instructions from representative plaintiffs concerning conflicting interests of members of the class. The law firm was granted leave to appeal, and the issue of its standing to bring the appeal was deferred to the panel that heard the appeal. The representative plaintiffs, who had changed counsel, did not want the appeal to proceed, and brought the applications. Held: Deferring the issue of standing to the panel was not an error of principle; the issue of standing is intertwined with and inseparable from the substantive issues on the appeal. It is not an abuse of process to allow the appeal to continue.
• 2008 BCCA 57 Joe v. Paradis
  The appellant’s action for damages for injuries suffered as a passenger in a single vehicle accident was dismissed when the jury upheld a defence of voluntary assumption of risk (volenti). Held, appeal allowed and new trial ordered. There was no evidence to support a finding that the appellant had agreed to waive the legal liability of the respondent for negligence in the event of an accident. The trial judge erred in leaving the volenti defence with the jury and the jury’s verdict was perverse in the absence of any evidence to support it.
• 2008 BCCA 59 R & J Siever Holdings Ltd. v. Moldenhauer
  Judgment was granted against the appellant following a Rule 18A summary trial in an action of which the appellant claimed to have no knowledge and at which no one appeared on his behalf. The appellant, a resident of Alberta, had not been served personally with the writ and statement of claim. He applied to set aside the judgment, along with the appearance and the pleadings filed by a solicitor on his behalf, on the basis that the solicitor had acted without his knowledge or authority. The chambers judge dismissed his application, holding that by reason of the appearance the appellant was deemed to have been served by virtue of Rule 11(3) and that the solicitor had his apparent authority to act for him in the action thereafter. The chambers judge failed to make the critical finding of fact whether the solicitor had been authorized by the appellant to act on his behalf. If the solicitor had no such authority, the appearance, the pleadings, and the judgment were nullities and the appellant would have been entitled to have them set aside ex debito justitiae. Accordingly, the appeal was allowed and the application remitted to the Supreme Court for a fresh hearing.
• 2008 BCCA 60 Fontaine v. Canada (Attorney General)
  Leave to appeal is not required.
• 2008 BCCA 62 Giles v. Westminster Savings Credit Union
  These reasons for judgment address the issue of costs. There is no good reason to defer the ruling on costs. The Credit Union and Thomas did not have identical interests on appeal. As a result, each is entitled to recover its separate costs of the appeal against the appellants. The facts in this case do not warrant an order for special costs in Thomas’s favour. As a result, Thomas is entitled only to an award of ordinary costs. The respondents Oliver and Drabik are not entitled to recover any costs on the appeal. Their status on the appeal was more similar to that of an intervenor than that of a party. There is no reason to depart from the usual rule that costs should not be awarded to an intervenor.
• 2008 BCCA 65 ICBC v. Patko
  The plaintiff ICBC appeals from the order of the British Columbia Supreme Court pronounced by Madam Justice Fisher in chambers on 15 February 2007 dismissing its application for a Mareva injunction restraining ICBC from paying to the defendant Jonathen Patko (J. Patko) the sum of $200,000. ICBC agreed to pay that sum to J. Patko to settle his claim for damages for injuries and other losses suffered as the result of an accident in August 1986. This accident was caused by the negligence of ICBC’s insured, J. Patko’s mother, Janet.
  HELD: The appeal is dismissed and the partial stay ordered by Madam Justice Fisher and continued by Madam Justice Levine is set aside. Madam Justice Fisher did not err in following the flexible approach described in Mooney v. Orr (1994), 100 B.C.L.R. (2d) 335 (S.C.) (Mooney No. 2). She did not err in holding that ICBC had failed to show there was a real risk that the defendant would dissipate the asset. Madam Justice Fisher did not err in referring to some case authorities not cited to her by either party. This Court will not interfere with the judge’s exercise of her discretion.
• 2008 BCCA 66 Bevo Farms Ltd. v. Veg Gro Inc.
  Appeal by a purchaser from a judgment holding it liable to pay invoices for goods sold and delivered. The buyer declined payment because it advanced a counterclaim for loss of profits consequent on the “late” delivery of goods, the original shipment of which had been lost in a road accident.
  At issue was whether property in the lost goods had passed to the buyer at the time of their loss.
  The appeal was dismissed. Under both the terms of the agreement, and the Sale of Goods Act, property in the goods passed to the buyer when the seller delivered them to the carrier. There was no evidence to rebut the passing of property under s. 36(1), and the contract of carriage was not unreasonable (s. 36(3)).
• 2008 BCCA 67 Harrison v. British Columbia (A.G.)
• 2008 BCCA 69 Weyerhaeuser Company Limited v. Hayes Forest Services Limited
  Appeal from an order declaring that an assignment of a logging contract substituted the assignee for the assignor as a party to the contract for all purposes. Chambers judge correct in determining that law of novation did not apply and in interpreting the contract. Appeal dismissed.
• 2008 BCCA 74 Savage v. British Columbia (Securities Commission)
  Leave to appeal Securities Commission decision denied. Appeal had little or no chance of success, did not involve a question of law or of public importance, and arguments regarding lack of full disclosure having been made to the applicant were misconceived.
• 2008 BCCA 75 Kerr (Litigation Guardianof) v. Creighton
  Appeal from finding that the driver of a vehicle was 85% liable for injuries suffered by a cyclist when he was struck while crossing a road. Held: In concluding that the collision occurred in a crosswalk, the trial judge erred in admitting evidence of the cyclist’s previous conduct in crossing the crosswalk as evidence of habit, and made palpable and overriding errors in drawing inferences not based on proven facts. The finding that the collision occurred in the crosswalk was crucial to the finding that the appellant was negligent. The appeal is allowed, the judgment of the trial judge set aside, and the respondent’s action is dismissed.
• 2008 BCCA 77 Hoelzler Construction Ltd. v. Seidler
  The appellant property owners appealed from a judgment holding them liable to the respondent building contractor for repairs of fire damage to the appellants’ commercial building. After the fire, the appellants’ insurer appointed an adjuster to repair and reconstruct the building. The adjuster hired the respondent building contractor. The main issue on appeal was whether the trial judge had erred in holding the adjuster to be the appellants’ agent in contracting with the respondent for the repair work.
  The appeal was dismissed. Given the appellants’ participation and acquiescence in the repair process, there was evidence before the trial judge that the appellants had consented to the adjuster hiring the respondent contractor to do the work. The appellants also exercised effective control over the contract between themselves and the respondent contractor. The trial judge did not err in finding that adjuster was the agent of the appellants, nor did he err in concluding that a contract existed between the appellants and the respondent contractor under which the respondent could sue for the balance owing for work done and materials provided.
• 2008 BCCA 80 Taylor Ventures Ltd. (Trustee of) v. High Meadow Holdings Ltd.
  Appeal raising two questions: whether the determination title to property was fraudulently conveyed renders a mortgage granted by the transferee for valuable consideration void in the hands of an assignee with knowledge of the circumstances under which the title was conveyed, and whether an acknowledgment of the debt to avoid an action on the mortgage from becoming time-barred is binding on the proper title holder as a successor in title to the transferee that granted the mortgage. The first question was answered in the negative; the second in the affirmative. Appeal dismissed.
• 2008 BCCA 81 Kitimat (District) v. British Columbia (Minister of Energy and Mines)
  Appeal raising the question of whether the terms of an agreement made in 1950 between the government and an aluminum producer pursuant to authorizing legislation for the use of public water resources to generate hydro-electric power for the development of a smelter at Kitimat precludes compromising the operation of the smelter at full capacity in order to permit some of the power generated to be sold. The question was answered in the negative. Appeal dismissed.
• 2008 BCCA 82 Gardiner v. 857 Beatty Street Project
  Mr. Gardiner appealed from the decision of a chambers judge dismissing his application for judicial review of the decision of a Dispute Resolution Officer acting under the Residential Tenancy Act (S.B.C. 2002, c. 78) (the “RTA”) who found that she had no jurisdiction to resolve the rental dispute between the parties. Held: Appeal dismissed. The chambers judge did not err in concluding in these circumstances that the RTA did not apply to the “live/work” studio rented by Mr. Gardiner on the basis that the premises fell within the exclusion under s. 4(d) of the RTA as being “living accommodation included with premises that (i) are primarily occupied for business purposes, and (ii) are rented under a single agreement.”
• 2008 BCCA 83 Checkman Holdings (Calgary) Ltd. v. Spur Valley Improvement District
  Appellant sought compensation for delayed development alleged to have been caused by an ongoing but never completed expropriation process initiated by respondent for an easement of right-of-way under the Water Act. This Act does not contain a provision similar to that found in the Expropriation Act providing for compensation even if such proceedings are abandoned. Trial judge found no compensation payable based on his analysis of legislative regime and earlier authorities. Court of Appeal agreed with this analysis and dismissed appeal.
• 2008 BCCA 84 Topgro Greenhouses Ltd. v. Houweling
  Application for review of judgment of chambers judge. Court of Appeal found no error in judgment of chambers judge and dismissed application for review.
• 2008 BCCA 85 Purple Echo Productions, Inc. v. KCTS Television
  Ms. Raskin is a broadcaster in British Columbia and the principal of Purple Echo. KCTS is a public television station located in Seattle, Washington, United States of America. Purple Echo and KCTS entered into an agreement for the production and broadcast of a number of television programs featuring Ms. Raskin. Thirteen programs were aired. Contending KCTS did not perform properly its obligations under the agreement, Purple Echo sued KCTS in British Columbia. The writ was served on KCTS in Seattle without leave of the court. KCTS brought an application pursuant to Supreme Court Rules 14(6)(a) and (b) and Rule 14(6.1) for an order striking out the writ and statement of claim or dismissing or staying the proceedings on the grounds that the court has no jurisdiction or, alternatively, that the court ought to decline jurisdiction. Although Purple Echo did not plead jurisdictional facts, it was agreed that it was entitled to establish such facts by adducing evidence. Purple Echo attempted to do so through a number of affidavits. Focusing on Rule 14(6)(b), the Chambers judge concluded Purple Echo had not established territorial competence as required by the Court Jurisdiction and Proceedings Transfer Act. The parties agree the judge proceeded on the basis the burden of proof on Purple Echo was the balance of probabilities. The judge concluded alternatively that Washington State was the more appropriate forum for the litigation. He ordered a stay of the British Columbia action. Purple Echo appealed, asserting the judge used the wrong burden of proof, the evidence established an arguable case for territorial competence and KCTS did not establish Washington State was the more appropriate forum. Held: appeal allowed. Although the entered order referred only to the stay declining jurisdiction, in the interests of justice it is regarded as including a stay of proceedings under Rule 14(6)(b), so that it accords with the actual orders made by the judge (Court of Appeal Act, ss. 9, 19).
  The judge erred applying the balance of probabilities as the burden of proof. On a plain reading, Rule 14(6)(a) does not require proof of jurisdictional facts on a balance of probabilities. An arguable case will suffice. It would be a startling departure from existing jurisprudence if the consideration of jurisdiction were confined solely to the pleadings with no opportunity for a plaintiff to support jurisdiction with evidence. The nature of the inquiry and the burden of proof does not change merely because evidence is adduced. Rule 14(6)(b) entitles a defendant to challenge jurisdiction even if a plaintiff were able to meet the requirements of Rule 14(6)(a). The burden of proof remains an arguable case. As a matter of principle, if there were no arguable case on either the pleadings or evidence that the facts, if true, would establish jurisdiction, the pleadings would be struck or the action dismissed or stayed. If an arguable case were made out, the case would continue with jurisdiction potentially still a live issue. In light of Rule 14(6.4), Rule 14(6)(c) allows a defendant to keep jurisdiction as a live issue even if it were to apply and lose an application under Rule 14(6)(a) or (b). If this were the case, jurisdiction would be determined finally with the burden on the plaintiff to prove territorial competence on a balance of probabilities. In this case, the evidence established an arguable case. KCTS’s application under Rule 14(6)(b) should have been dismissed. The judge also erred concluding Washington State was the more appropriate forum because he did not consider the interests of the parties as mandated by s. 11(1) of the Act and, in particular, the prima facie entitlement of Purple Echo to its chosen forum.
• 2008 BCCA 88 Roeske v. Brickwood Holdings Ltd.
  Ms. Roeske was a movie stunt performer who was injured in two accidents within a few weeks of each other. She asserts she sustained a traumatic brain injury in one or both accidents and claimed damages for that and other injuries sustained in the accidents. The parties adduced a significant amount of expert medical evidence and Ms. Roeske called a number of non-medical witnesses to attest to a significant change in her outlook and personality subsequent to the accidents. Also, Ms. Roeske has probable multiple sclerosis, diagnosed subsequent to the accidents. The trial judge found her condition changed significantly subsequent to the accidents, but concluded she did not prove on a balance of probabilities that the accidents caused the change in her condition. The judge assessed damages for brain injury, but did not award such damages because he did not find Ms. Roeske sustained brain injury in the accidents. He awarded $7,500 and $15,000 in damages for injuries sustained in the first and second accidents respectively. Ms. Roeske appealed seeking damages for the alleged head injuries. She alleged three errors: erroneous conclusion from the evidence of non-medical witnesses; misapplied medical evidence; misinterpreted medical evidence.
  Held: Appeal dismissed. The judge was entitled to find the evidence of the non-medical witnesses unreliable as to the time of the onset of the change in Ms. Roeske’s condition. He analyzed the indicia of potential brain injury, taking into account Ms. Roeske’s recollection of events immediately after the accident and her conduct at that time and concluded she did not suffer a loss of consciousness or a significant alteration in consciousness. In the absence of either, a diagnosis of brain injury is questionable. The judge was entitled to interpret the medical evidence in question, which related to neurological test results, but, even if he were wrong, he placed little reliance on the test results in reaching his conclusion Ms. Roeske failed to prove causation on a balance of probabilities.
• 2008 BCCA 91 Perez v. Galambos
  While the appellant was employed by the respondent, she loaned to the respondent’s law practice, without security, some $200,000. In the bankruptcy proceedings, the respondent acknowledged to the trustee that he owed the appellant approximately $200,000. The secured creditors received all of the money realized from the winding up of the practice and the appellant did not recover anything. The automatic stay of proceedings against the respondent pursuant to the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, was lifted by leave of the court on 19 October 2004, in order to allow the appellant to bring an action against the respondent, other than an action in debt. If successful in her action, the appellant anticipated being able to pursue the respondent’s professional liability insurer in separate and subsequent proceedings under the Insurance Act. The trial judge dismissed her action. The issues on the appeal are whether the relationship of the respondent to the appellant, his employee and sometime client, was that of a fiduciary and, if so, whether he breached fiduciary duties owed to her. The appeal is allowed and judgment granted to the appellant for $200,000.
• 2008 BCCA 92 Canadian Bar Assn. v. British Columbia
  Appeal from dismissal of the action on the bases that the appellant Association lacks standing to bring the claim and that the statement of claim be struck under Rule 19(24) as disclosing no reasonable claim. The Association also appeals from the order of costs.
  HELD: appeal dismissed. This Court first considered the validity of the claims raised in the pleadings and determined that the statement of claim did not meet the requirements of the Rules of Court. The pleadings are simply too general to permit the enquiry sought or the relief contended for. As to the issue of standing, this Court decided that it should not resolve the Association’s standing absent a statement of claim that satisfies the minimum standards of Rule 19(24). Finally, this Court found no valid basis to depart from the usual order that the successful parties should have their costs.
• 2008 BCCA 93 Executive Inn v. Tan
  Order of chambers judge that a mediation be held in Singapore and that all parties attend in person upheld. Most of parties resided in Singapore. Court dismissing provisions of s. 16(b)(iv) and s. 23 of Notice to Mediate (General) Regulaton.
• 2008 BCCA 97 Kralik v. Mount Seymour Resorts Ltd.
  Plaintiff was injured when he failed to board ski chairlift properly, and had to jump to the ground. He suffered a fractured humerus and as result was precluded from jobs requiring lifting or reaching with right arm. Trial judge found ski lift attendant was negligent in failing to stop the lift when plaintiff encountered difficulty, but ruled against contributory negligence on plaintiff’s part. Defendants appealed liability and the award of $300,000 for loss of earning capacity. Appeal allowed. Trial judge erred in failing to allocate any responsibility to plaintiff for “momentary lapse of attention”. Plaintiff had not taken reasonable care for his own safety when he grabbed onto chair as it ascended. Plaintiff found 50% responsible on appeal and $300,000 award found to be clearly excessive in light of fact that plaintiff has a Ph.D. in mathematics and the contingency that he will retrain and return to that field. These had not been reflected in the award. Reduced to $75,000.
• 2008 BCCA 98 Sierra Club of Canada (British Columbia) v. British Columbia Utilities Commission
  Administrative Law: Appeal with leave from orders made by the British Columbia Utilities Commission denying costs sought by three of several participants in two proceedings. The appellants contended the Commission erred in law in that its decisions on costs were patently unreasonable. They also contended they were denied procedural fairness. The record disclosed no support for the appellants’ contentions. Appeal dismissed.
• 2008 BCCA 101 Romfo v. 1216393 Ontario Inc.
  Application for directions as to whether leave to appeal required and, if leave is required, for leave to appeal an order dismissing an application for double costs where the offer was made to three defendants who were not sued jointly. In the circumstances described, leave to appeal would be required and leave to appeal would be refused. The point the plaintiffs wish to appeal has already been determined by this Court.
• 2008 BCCA 103 British Columbia (Assessor of Area #09 - Vancouver v. Arts Umbrella)
  The issues on appeal, which turns on questions of statutory interpretation, concern the correct classification for assessment purposes of property used by the respondent, Arts Umbrella, on Granville Island in Vancouver. Whether the Arts Umbrella property comes within Class 8 of the Prescribed Classes of Property Regulation, as the court below found, or whether it falls into Class 6, as the Assessor contends, turns on the proper interpretation of the terms “meeting hall” and “non-profit fraternal organization” found in s. 8(b) of the Regulation. Appeal dismissed. The property used by Arts Umbrella is a meeting hall. The Arts Umbrella organization comes within the meaning of the phrase non-profit fraternal organization, Newbury J.A. dissenting on that point.
• 2008 BCCA 104 InterLink Business Management Inc. v. Bennett Environmental Inc.
  Appeal from a decision overturning the award of an arbitrator finding that the respondent had breached a fiduciary duty to the appellant and had erred in interpreting the agreement between the parties. Held: the decision of the appeal judge that the arbitrator erred in law in finding a breach of fiduciary duty was sustained. The conclusion that the arbitrator had erred in interpreting the contract was reversed and the arbitrator’s decision was restored. The decision of the arbitrator on that issue was not unreasonable and was not otherwise reviewable on appeal under the Commercial Arbitration Act.
• 2008 BCCA 105 McIlvenna (litigation guardian of) v. Viebig
  Appeal from an order dismissing the action after a five day trial. The action arose out of a collision between the appellant cyclist and the respondent driver.
  HELD: Appeal allowed and a new trial ordered.
  Per Hall J.A.: The trial judge failed to address a question essential to the resolution of the case, namely, where the collision occurred. While there is some basis to conclude it occurred within the intersection, there is also some evidence suggesting it occurred outside. A new trial is necessary to consider this issue.
  Per Saunders J.A.: While the trial judge accepted the location of the collision as the intersection, he failed to address the essential question posed by the case: whether there was an imminent hazard of collision if the cyclist and driver both continued at the same speed on the same course. A new trial is necessary to answer this question.
  Per Tysoe J.A. (dissenting): The appeal should be dismissed. No reversible error by the trial judge was demonstrated.
• 2008 BCCA 106 Romfo v. 1216393 Ontario Inc.
  Application to vary a chambers order dismissed. The order refused an application to quash the appeal against Kretschmer on the argument that the appeal was out of time and no error could be alleged against the dismissal of the claim against him. Held: No error on timeliness. When the trial judge awarded specific performance against the corporate defendants the plaintiffs agreed to dismiss the claim against Mr. Kretschmer as unnecessary. The appeal against him is taken against the possibility that if this court found an error in the specific performance result, then the plaintiff will proceed against him. The appeal is sufficiently rooted in an allegation of error to be properly founded.
• 2008 BCCA 107 British Columbia (Minister of Forests) v. Okanagan Indian Band
  Appeal from an order of a case management judge severing the trial of issues of aboriginal rights and aboriginal title under Rule 39(29) of the Supreme Court Rules. Held, appeal dismissed, Donald J.A. dissenting: the advanced costs order did not preclude severance and the severance of the trial on the issue of justification of the infringement of the aboriginal right to harvest timber for domestic purposes from the larger issues of aboriginal title was within the discretion of the case management judge and should not be disturbed
  In dissent, Donald J.A. would set aside the severance order because it amounted to a radical amendment of the advance costs order; it unfairly restricted the plaintiffs’ claim; and it will not produce a more effective or efficient resolution of the primary constitutional issue.
• 2008 BCCA 110 Deo v. Wong
  Trial judge erred in finding a causal connection between motor vehicle accident and a knee problem, therefore cross appeal allowed. Damages reduced by $7,000. Appeal dismissed.
• 2008 BCCA 112 Makowsky v. John Doe
  Appeal of an order dismissing an application to have a judge recuse himself. A perception of bias was said to exist because the judge’s son was employed by the 50 lawyer firm defending the action. Appeal dismissed for the reasons given by the judge.
• 2008 BCCA 113 Brookmount Explorations Inc. v. Dadon
  Appeal from the Supreme Court order that refused to set aside a judgment in default of appearance is dismissed. No error demonstrated.
• 2008 BCCA 114 Shah v. Stainless Cleaning Inc.
  Plaintiff alleged she had been injured when she slipped and fell in a Zellers store. Janitor had allegedly been negligent in leaving floor dangerously wet. Plaintiff and janitor spoke briefly after the fall; plaintiff consulted solicitor within days of her fall but was unaware janitor was not an employee of Zellers until four months later. Plaintiff began her action, in negligence and for breach of Occupier’s Liability Act, against Zellers and janitor two years and six days after her fall. Chambers judge below held that janitor’s “identity” had been within plaintiff’s “means of knowledge” from the date of her injury, so that running of time was not postponed under s. 6(4) of the Limitation Act. and action was statute-barred
  Held: Appeal dismissed. Discussion of s. 6(4) and Karsanjii Estate and Krusel v. Firth. Janitor was primary defendant in any negligence action and any reasonably diligent plaintiff would have determined his “identity”, i.e., name and employment status, immediately. Janitor’s existence was clearly known to plaintiff. No error by court below shown.
• 2008 BCCA 115 Tran v. Aujla
  Appeal of an order that imposed constructive trust on defendants in respect of property which plaintiff had helped them purchase, in circumstances that left the financial arrangements between the parties unclear. Held: Appeal allowed. Trial judge had erred in finding a separate subsequent loan by plaintiff to defendants; and accepting that plaintiff was entitled to a 50% interest in the property, defendants were entitled to a credit for various expenditures of work and money in the determination of “profits” to be shared on sale.
• 2008 BCCA 116 Armstrong v. Clark
• 2008 BCCA 117 Hastings Park Conservancy v. Vancouver (City)
  Appeal from the dismissal of a petition challenging (i) the validity of a zoning by-law permitting the use of slot machines at Hastings Park and (ii) the ability of the City of Vancouver to enter into an operating agreement with the operator of the Hastings Racetrack.
  Appeal dismissed. The zoning by-law is not void or invalid on any of the grounds asserted by the appellant (namely, (i) improper delegation of zoning authority, (ii) uncertainty, (iii) improper fettering of discretion, (iv) breach of procedural fairness, (v) the doctrine of legitimate expectations and (vi) lack of jurisdiction over permanent public parks). Irrespective of whether Hastings Park is a permanent public park and irrespective of whether the City of Vancouver has the jurisdiction to pass zoning by-laws in respect of permanent public parks, the City had the power pursuant to the Pacific National Exhibition Enabling and Validating Act to authorize the use of slot machines at Hastings Park and to enter into the operating agreement with the operator of the Hastings Racetrack.
• 2008 BCCA 119 Evans v. Ali
• 2008 BCCA 120 Hayes Forest Services Limited v. Weyerhaeuser Company Limited
  Order made in the Supreme Court refusing leave to appeal from an arbitral award is not an interlocutory order requiring leave to appeal. Radke applies only to orders that determine discrete issues in an action.
• 2008 BCCA 121 Lee v. Lee's Benevolent Association of Canada
• 2008 BCCA 124 Melnikov v. Insurance Corporation of British Columbia
  An application to remove the appeal from the inactive list – Court of Appeal Act, s. 25(2) - was scheduled and heard several days after the appeal was dismissed as abandoned pursuant to s. 25(5). There is jurisdiction to treat the application as one to reinstate the appeal under s. 25(6). Under s. 25(6), the applicant faces a more onerous test than he would if the application were to remove the appeal from the inactive list. The applicant had formed the intention to appeal in a timely way and reinstatement did not prejudice the respondent. The delay was inordinate and nothing had been done to prosecute the appeal since its initiation in August 2006. The applicant’s explanation that he had been out of the country was not acceptable, but he also had been waiting for the decision of the Law Society on a complaint he made concerning the conduct of the proceeding under appeal. Although mistaken in his belief the result of the Law Society review would be material to his appeal, his belief was sincere. The appeal is weak, but is not bound to fail and may raise an important point of statutory interpretation in the context of the somewhat unusual facts of the case. The results of the proceeding under appeal have been of considerable significance to the applicant. Appeal reinstated. Applicant directed to file an appeal record by May 21, 2008 and to abide by the timing prescribed by the Rules.
• 2008 BCCA 125 Kurucz v. Con
• 2008 BCCA 126 Greater Vancouver Sewerage and Drainage District v. Ecowaste Industries Ltd.
  The appellant Ecowaste Industries Ltd. operates a private waste facility which receives primarily non-recyclable demolition, land clearing and construction waste from within the Lower Mainland. Under bylaws passed by the respondent, Ecowaste was charged disposal fees for waste received at its site. Ecowaste paid the fees for a time but then refused to make further payments, asserting that the bylaws were invalid. The respondent was successful in its action to recover the unpaid fees. Determination of the issues on Ecowaste’s appeal turned largely on the statutory provisions of the waste management legislation in place at the time the bylaws were enacted. Ecowaste’s further argument that the disposal fee was an ultra vires tax rather than a valid regulatory charge ancillary or adhesive to a regulatory scheme failed. Appeal dismissed.
• 2008 BCCA 130 Pugliese v. Clark
  Mr Pugliese appealed from a decision of a chambers judge upholding a decision of the Financial Services Tribunal (the “FST”), which, in turn, upheld the decision of the Registrar of Mortgage Brokers whereby he stated that he would not consider a further application by Mr. Pugliese for registration as a mortgage broker until 2014. Mr. Pugliese did not challenge the length of time stipulated before the Registrar would consider a further application for registration, but only the jurisdiction of the Registrar to stipulate any period of time before he would consider a future application. Held: Appeal dismissed. Prowse J.A. (Hall J.A. concurring): Assuming a standard of review of correctness, the Registrar had implicit jurisdiction under the Mortgage Brokers Act, R.S.B.C. 1996, c. 313 to impose a period of time during which he would not consider a further application for registration. Such a power was “practically necessary” to enable him to effectively and efficiently protect the public interest and to carry out his licensing role with respect to individuals whom he had found to be unsuitable or objectionable as applicants. Evidence of systematic abuses of the registration system was not necessary before the Registrar could make such an order. Chiasson J.A. in concurring reasons grounded jurisdiction in the Registrar’s mandate to protect the mortgage industry. He also found that, although not appealed, the judge’s order quashing a third order made by the Registrar should not have been made because that order had not been appealed to the FST.
• 2008 BCCA 133 Fawcett v. Western Canadian Coal Corp.
  Appeal of an order dismissing an application to convert a petition into an action to be tried. Appeal dismissed.
• 2008 BCCA 134 Shell Canada Products v. Lazy F-D Ranches and Hay Sales Ltd.
  Appeal from judgment for monies claimed for goods sold and delivered. The judge found there was a credit agreement between the parties which bound the respondent to pay interest. The defendant denied any obligation to pay interest.
  Appeal dismissed. There was evidence on which the Court would find an agreement to pay interest.
• 2008 BCCA 139 Somers v. Wesnoski
  The appellant appealed from a judgment in a motor vehicle accident case awarding her general damages and damages for the cost of future care but refusing to award damages for past loss of income or future loss of earning capacity.
  The appellant submitted that the reasons for judgment were inadequate to permit appellate review. The appellant also submitted that the trial judge was inconsistent in finding that her need for future care arose in part from the accident but in declining to award damages for past and future income losses.
  Held: appeal dismissed.
  The reasons for judgement permitted adequate appellate review. There was nothing inherently inconsistent in the trial judge's findings which arose out of a careful weighing of the evidence at trial, in particular, the conflicting opinions of the psychiatrists called by the parties.
• 2008 BCCA 142 Le Soleil Hospitality Inc. v. Louie
  Review of a refusal of a Court of Appeal justice in Chambers to extend time for filing an appeal from first order in a “split” summary trial where no notice of appeal was filed until a second (of three) orders made by trial judge. New evidence indicated applicant was misadvised re need to appeal first order. Held: Interests of justice warranted setting aside order of C.A. Chambers judge and extending time such that both orders could be appealed.
• 2008 BCCA 144 Telus v. Telecommunications Workers Union
  The appellants appealed from an order of costs against them arising from proceedings in which they had been found guilty of civil contempt of court. Nine of the appellants were ordered to pay special costs and two were ordered to pay party and party costs to Telus which had conducted the contempt proceedings. The order included provisions which enjoined “all others… from paying or in any other way funding or contributing to the funding, either directly or indirectly” of the costs. Held: The order of special and party and party costs, apart from the provisions requiring the appellants to personally pay the costs, was justified. The contempt proceedings were against the individual appellants. The TWU was not the “real” party to those proceedings and the costs of the others arrested were dealt with in a separate judgment from which there had been no appeal. However, there was no basis in these circumstances for the order precluding anyone other than the appellants personally from paying or assisting the appellants in paying their costs. The reasons given by the trial judge for including these provisions revealed errors in principle.
• 2008 BCCA 148 Barker v. Hayes
  The Vancouver Police Department and Kevin Barker appealed an order dismissing their petition for judicial review of a decision of the B.C. Human Rights Tribunal concerning a complaint filed by the respondent alleging discrimination on the grounds, among others, of sexual orientation. The complaint alleged that the respondent had been refused a chauffeur’s permit on the basis of his pagan beliefs and “BDSM lifestyle”, the latter referring generally to bondage and discipline, domination and submission, and sadism and masochism. A preliminary jurisdictional question was raised by the Tribunal as to whether sexual orientation includes BDSM. The Tribunal decided it was not clear that sexual orientation does not include BDSM and accepted the complaint for filing. The appellants’ petition for judicial review of the Tribunal’s decision was dismissed as premature. The appeal from the order dismissing the petition failed.
• 2008 BCCA 150 McCreight v. Currie
  The court varied an order under s. 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 to reduce the deduction for potential Part 7 benefits to a value supported by the evidence.
• 2008 BCCA 151 Joyce v. Dorvault
  Appeal by way of cross appeal on two aspects of an assessment of damages arising out of injuries suffered in a motor vehicle accident. Dismissed.
• 2008 BCCA 152 Beacock v. Wetter
• 2008 BCCA 153 Gibbens v. Co-operators Life Insurance Company
  In having unprotected sex, plaintiff contracted a herpes virus that attacked his spine, resulting in transverse myelitis and paralysis from abdomen down. He claimed coverage under employer’s group insurance plan for “bodily injuries occasioned solely through external, violent and accidental means”. At trial, court applied Supreme Court of Canada decision in Martin v. American Int’l Assurance Life Co. and the “expectation test”, concluding paraplegia was caused by “accidental means” because plaintiff had not expected to become paralyzed by having unprotected sex.
  On appeal, insurer argued that “expectation” test is appropriate only where there is doubt as to whether insured intended death or injury, and not where the injury is due to a “disease” or other “natural” cause. Discussion of Martin and of Wang v. Metropolitan Life Insurance Co. (Ont. C.A.), 2004). Of equal importance to insured’s expectations is whether the injury is “accidental” or due to “accident” in the ordinary meaning of the words. “Accident” does not usually refer to an illness per se or an unexpected but totally “natural” event such as a heart attack. Normally some unexpected mishap or “external” factor is present. Here, plaintiff’s transverse myelitis did not arise “naturally”, but from an external factor or unlooked-for mishap – the introduction of herpes virus. It should therefore be regarded as “accidental”. Alternatively, if “expectation” test was determinative, it was clear plaintiff had not expected to become paralyzed.
  Court also considered “external” and “violent”, words which have not been dealt with at length by Canadian courts, but subsumed into “accidental”. In case-law, “violent” seems to mean due to something other than disease or other natural cause, although one would not think this is its meaning in ordinary parlance. However, giving due regard to precedent in an insurance context, Court took view that plaintiff’s paralysis qualified as injury occasioned through “violent, external and accidental” means. Appeal dismissed.
• 2008 BCCA 154 Elk Valley Coal Partnership v. Westshore Terminals Ltd.
  Issue of granting of leave to appeal from award of an arbitrator. Question before arbitrator concerned construction of a clause in a contract referring to "original intention" of parties. Respondent successfully argued before chambers judge that arbitrator may have erred in considering negotiations between parties and in construing the relevant clause in the agreement in too narrow a fashion.
  Court of Appeal allowing appeal from order of chambers judge granting leave to appeal. The issues in this case were found to be primarily factual or at best issues of mixed fact and law. Such issues do not afford a proper basis for the granting of leave to appeal on grounds of alleged errors of law. Hayes Forest Services Limited v. Weyerhaeuser Company Limited, 2008 BCCA 31, referred to. If chambers judge had had the benefit of this decision, handed down by this Court subsequent to the decision granting leave to appeal, his decision would likely have been to refuse leave to appeal. Appeal allowed and application for leave to appeal from decision of arbitrator dismissed.
• 2008 BCCA 155 Speckling v. British Columbia (Labour Relations Board)
  Appeal of the dismissal of the appellant’s petition for judicial review of certain decisions of the Labour Relations Board as out of time under section 57 of the Administrative Tribunals Act. Appeal dismissed. The chambers judge was correct in his finding that the time limit for judicial review under section 57 of the Administrative Tribunals Act applies to decisions made both before and after the coming into force of this section. The chambers judge did not err in refusing to grant an extension of time for judicial review.
• 2008 BCCA 156 Basi v. Levert
  Appeal from order discharging a “restriction on title” and dismissing the appellant’s claim for specific performance.
  Held: appeal allowed in part. Despite the fact this case is fraught with procedural irregularities, there is no possibility the appellant will succeed on his claim for specific performance. However, as the procedure was so flawed and misinformation was provided to the court by counsel for the respondent, no order for costs should be made in this Court or in the court below. The appeal is allowed only to the extent of setting aside the order of costs.
• 2008 BCCA 164 Ellis v. Star
  Appeal by the defendant from awards of damages for future overtime and post retirement earning capacity losses by a police officer who moved from the tactical operational side of police work to an administrative position following a hand injury in a motor vehicle accident. The trial judge also made an “in-trust” award to the plaintiff for yard work carried out by his wife following the accident. Held that there was evidence to support the awards for overtime and post-retirement losses and there were no grounds to set aside or vary those awards. The in-trust award could not be supported on the facts found by the trial judge and the appeal against that award was allowed.
• 2008 BCCA 165 Crookes v. Yahoo
  Appeal determining libellous statements posted on the internet, but subject to limited access, cannot be presumed to have been published in this jurisdiction.
• 2008 BCCA 167 Reilly v. Bissonnette
  The plaintiff appealed the dismissal of his malicious prosecution claim by the summary trial judge, arguing that the claim was unsuitable for disposition under Rule 18A and the summary trial judge had misapprehended or ignored important evidence in reaching his decision. The Crown cross-appealed the summary trial judge’s decision to allow the plaintiff’s negligence claim to proceed to a full trial upon viva voce evidence, arguing that the claim should have been statute-barred.
  Held: The appeal was allowed and the cross-appeal was dismissed. The summary trial judge did not have sufficient evidence before him to make determinations regarding credibility, state of mind and the existence or absence of reasonable and probable grounds for the laying of charges against the plaintiff. As a result, the malicious prosecution claim was unsuitable for disposition under Rule 18A. The negligence claim was not statute-barred, due to a recent Supreme Court of Canada decision stating that the limitation period for a claim of negligent investigation begins to run when the plaintiff is able to establish that the police activity was wrongful. In the present case, the plaintiff was not able to establish that the police activity was wrongful until his acquittal at trial, and the limitation period began to run on the day of his acquittal.
• 2008 BCCA 171 Bagnell v. Vancouver Police Board
  Appeal by the Vancouver Police Board from an order dismissing its application to have the claim against it struck out pursuant to Rule 19(24) on the basis it discloses no reasonable claim. Argument that the Police Act by its terms indicates that no private law duty owed to claimants suing under the Family Compensation Act for damages related to death of an individual arising from a taser incident. Held: appeal dismissed. It is not plain and obvious that the claim against the Board could not succeed and matter should be left for adjudication at trial when facts fully developed.
• 2008 BCCA 172 Paradigm Holdings Ltd. v. Ngan & Siu Investments Co. Ltd.
  Appeal from an order for specific performance of a contract for the sale of two commercial strata lots. The trial judge found that the purchase price was to be calculated based on the total square footage shown on the registered strata plan. However, the strata plan was out-of-date; the actual square footage of one of the lots had been increased by renovations which were not shown on the registered strata plan.
  Held: appeal allowed. The trial judge erred in posing the question to be answered and in considering extrinsic evidence of the parties’ intentions in the absence of an ambiguity in the words of the contract. According to the natural and ordinary meaning of the words of the contract, the purchase price was based on the area of the two units being 3,200 square feet, and the price was to be adjusted if there was a discrepancy when the buyer attempted to verify that this figure was correct. The method of verification was up to the buyer, but the buyer was not entitled to rely on a method of verification that it knew or ought to have known was inaccurate. The adjustment clause was not triggered, and the buyer repudiated the contract when it took the position that the purchase price had been reduced below the specific amount set out in the contract. The action is dismissed, and the seller’s counter¬claim for damages allegedly suffered when it evicted the tenant of one of the units in order to give vacant possession to the buyer is remitted to the Supreme Court.
• 2008 BCCA 173 Strauss v. Albrico Services (1982) Ltd.
  Appeal from a dismissal of an action for wrongful dismissal contending the judge erred in finding the plaintiff suffered no loss. Appeal dismissed.
• 2008 BCCA 176 Shuswap Lake Utilities Ltd. v. Mattison
  The plaintiffs at trial appealed from the order of the chambers judge striking their writ of summons and statement of claim on the basis that the plaintiffs’ challenge to the decision of an administrative body and failure to seek an appellate remedy as provided in the relevant statute was an abuse of process, and the court had no jurisdiction to hear the claim. The appellants argued (among other grounds) that the chambers judge erred in striking their writ of summons and statement of claim on this basis.
  The appeal was dismissed. While it is not an abuse of process per se to launch a challenge to the decision of an administrative body by way of writ and statement of claim seeking declaratory relief when a statutory right of appeal is available, in the circumstances of this case, the behaviour was an abuse of process.
• 2008 BCCA 179 Carlson v. Tylon Steepe Development Corp.
  Appeal from an order granting specific performance of certain contracts for the sale of strata properties, and from an order awarding real-time transcript expenses. The appellant vendors entered agreements to sell strata lots to the respondents at a specified price. The contracts for purchase and sale contained a clause limiting the purchaser’s remedy to a return of its deposit in the event of vendor default. One of the appellants, K, made representations to the appellants that the sale contracts would not be cancelled. After a substantial increase in the market value of the properties, the appellants purported to cancel the contracts. The respondents did not accept this repudiation and called on the vendors to complete the sales. The trial judge found there was a fundamental breach by the vendors and that K’s conduct rendered the deposit clause unenforceable. In the alternative, he found the appellants were otherwise estopped, on the basis of K’s representations, from asserting the deposit clause against some of the respondents. Held: The appeal from the order for specific performance is dismissed. The vendors fundamentally breached their contract. Application of the deposit clause would be unconscionable and unfair in the circumstances. Acceptance of repudiation is not a pre-condition to application of the fundamental breach doctrine in the face of an unfair and unconscionable provision. The remedy of specific performance is appropriate in the circumstances. Appeal from the order for real-time transcript expense allowed.
• 2008 BCCA 180 Swift v. Kung
• 2008 BCCA 182 Macaraeg v. E Care Contact Centres Ltd.
  Ms. Macaraeg’s employment with E Care was terminated. She sued for wrongful dismissal claiming damages for pay in lieu of notice and overtime for herself and on behalf of a class of E Care employees who were not paid for overtime. Her contract of employment did not provide for overtime pay, but the Employment Standards Act contains a minimum statutory entitlement to overtime wages. E Care brought an application seeking the answer to two questions: whether the statutory overtime rights are implied terms of Ms. Macaraeg’s employment contract; is she entitled to bring a civil action to enforce her statutory rights? The chambers judge concluded payment for overtime was an implied term of the employment agreement and the ESA does not preclude pursuance of payment for overtime in a civil action for breach of the employment contract. E Care appealed. The Director of Employment Standards was granted intervenor status on the appeal. Held: appeal allowed.
  On appeal, Ms. Macaraeg’s assertion the Class Proceedings Act provides independent support for her overtime claim was rejected. The CPA confers no substantive rights; it is procedural legislation.
  The cases relied on by the chambers judge do not support the general proposition that rights conferred by employment standards legislation are incorporated into employment contracts. The correct analysis begins with the decision of the Supreme Court of Canada in Orpen v. Roberts: generally statutorily conferred rights are not enforceable by civil action, subject to the intention of the legislators on an examination of the statute as a whole, that enforcement by civil action be available. The intention of the legislature can be obtained by considering the statutory enforcement regime: if it were adequate, a civil action would not be necessary; if it were inadequate, a reasonable inference is that the legislators intended the rights not to be pyrrhic and to be enforceable by civil action. In such cases, the rights are enforced through a recognized cause of action. It is at this stage in a case like this that consideration of implied contractual terms enters the picture: the cause of action is breach of contract.
  In this case, the questions should have been posed in reverse order. That is, the answer to the first question posed flows from the answer to the second. If Ms. Macaraeg were confined to enforcing her right to overtime through the ESA, the right would not be incorporated into her contract of employment. If she were entitled to sue, overtime would be an implied term of her contract and actionable. An analysis of the ESA as a whole leads to the conclusion that the legislature did not intend the rights conferred by the statute to be enforceable in a civil action.
• 2008 BCCA 183 Kwon v. Jung Developments Inc.
  Application for directions as to whether leave to appeal is required and, if so, leave is requested to appeal the decision of a chambers judge to set aside a consent judgment.
  Mr. Jung executed, on behalf of himself and the respondents, a consent judgment in favour of the appellant in the amount of $13,245,199 plus pre-judgment interest in relation to a previously granted $12,745,199 demand promissory note that did not contain a reference to interest. When told that he would not be paid from the proceeds of a financing, the appellant instructed his lawyer to proceed with the consent judgment. The lawyer commenced an action and caused the consent judgment to be entered.
  The chambers judge set aside the consent judgment on the basis that it was an abuse of process because it included interest that was not payable under or by virtue of the promissory note.
  Held: leave is required to appeal the decision of the chambers judge, and leave to appeal is granted. Leave is required because the decision of the chambers judge did not finally dispose of the matter in dispute. Leave is granted because the appeal is of significance to the practice and to the action itself, there is an arguable appeal of sufficient merit to warrant consideration by a division of the Court and the progress of the action will not be unduly hindered.
• 2008 BCCA 184 Okanagan Land Development Corporation v. Stonecraft Management Ltd.
  Applicant sought to appeal from order of Master fixing an amount of security in order to remove liens from property. The order of Master is an interlocutory order and leave is required.
• 2008 BCCA 186 Blattgerste v. Heringa
  Appeal from an order for the dissolution of two companies. Two issues were raised: whether the judgement was properly rendered, given the judge died before signing the reasons for judgment he had prepared, and whether the application for the relief which was sought by way of a petition ought to have been converted to an action. Appeal allowed: Huddart and Frankel JJ.A. deciding it could not be concluded the judge’s unsigned reasons were necessarily finalized, and Lowry J.A. deciding the matter was not appropriate for disposition on a petition.
• 2008 BCCA 190 Liverpool Hotels Ltd. v. British Columbia (Attorney General)
  After the deadline had passed for the appellant to appeal its tax assessment to the minister under the Social Service Tax Act, the commissioner adjusted the assessment to account for two tax remittances which were overlooked in the original audit. The appellant sought to appeal the adjustment as if it were a “reassessment” which, arguably, would have given the appellant the same right to appeal as from the original assessment. The commissioner refused to treat the adjustment as a reassessment. On judicial review, the reviewing judge found that the adjustment was a reassessment but limited the scope of the proposed appeal to the amount of the two overlooked remittances.
  Held: appeal dismissed. The commissioner has the jurisdiction to correct a manifest error in the audit calculations without calling upon her power to reassess. The audit adjustment was not a reassessment.
• 2008 BCCA 191 City of Vancouver v. Access Collateral Pawnbrokers Ltd.
  Application for leave to appeal from the decision of a summary conviction appeal court judge dismissed. The only question of law the appellant sought to raise on appeal concerned the validity of the by-law under which it had been convicted. This issue was not raised at trial or in the summary conviction appeal proceedings and the respondent would be prejudiced if it were raised for the first time on appeal.
• 2008 BCCA 192 Bodnar v. 367463 Alberta Ltd.
  Application for leave to appeal from the order of a case management judge adding defendants to a class action proceeding pursuant to Rule 15(5)(a)(iii) of the Rules of Court. Held: Application dismissed. The applicants did not meet the merits test for leave to appeal or demonstrate that the proposed issues on appeal were of significance to the practice.
• 2008 BCCA 195 Howe Sound School District No. 48 v. Killick Metz Bowen Rose Architects and Planners Inc.
  Appeal from judgments following summary trial under Rule I8A dismissing actions against architects for negligence and breach of contract on the ground that the actions were commenced out of time and barred by a contractual limitation period of six years from the date of substantial performance. Held, appeals dismissed. The trial judges did not err in concluding that the contractual limitation excluded the postponement provisions of s. 6 of the Limitation Act and the actions were commenced out of time. There was no error in the trial judges’ conclusions that the date of substantial performance was a factual issue appropriate for summary trial disposition.
• 2008 BCCA 197 Martin v. Vancouver (City)
  Appeal from the dismissal of a petition for judicial review. The appellant was the Chair of the City of Vancouver Board of Variance when Vancouver City Council rescinded the appointments of all five members of the Board. The Board members brought a petition for judicial review, which was dismissed. The appellant alone appealed. He argued that the chambers judge erred in finding that Council acted in good faith, was entitled to rescind the appointments without reasonable cause, and owed no duty of procedural fairness to the Board members. Held: appeal dismissed. An analysis of the provisions of the Vancouver Charter, in particular s. 572(2.1), leads to the conclusion that the legislature intended Council to have the power to rescind appointments to the Board without articulating any cause. The Board is not an independent tribunal with security of tenure. As the decision to rescind the appointments was general and policy-driven, rather than specific and administrative, Council was not required to provide the appellant with notice or an opportunity to be heard. Council did not act in bad faith.
• 2008 BCCA 201 Kruk v. Ho
  Appeal from an order dismissing the appellant's action on the ground that it was commenced after the six-year ultimate limitation period for medical negligence. The appellant claimed the trial judge erred in finding the limitation period commenced at the time the doctors failed to diagnose him in 1994, and that the limitation period commenced at a later date, when his disease had progressed. Held: appeal allowed. The trial judge misconceived the principle to be applied in determining when the limitation period for medical negligence begins, and therefore erred in failing to address the question of when the appellant suffered damage from the respondents’ negligence. It could not be determined from the conflicting evidence when the limitation period began.
• 2008 BCCA 202 Samra v. Guru Nanak Gurdwara Society
  In proceedings brought under s. 85 of the Society Act, the chambers judge made an order declaring invalid all membership forms received by the appellant, Guru Nanak Sikh Gurdwara Society, and by other members of the executive of the Society, other than those received pursuant to an open process which had been approved by the executive of the Society. The main issue at trial was whether there had been a default in compliance with the bylaws of the Society in the enrolment of members. On appeal the appellants argued, among other things, that the chambers judge had erred in determining the issues on a summary trial under Rule 18A. No error in principle was shown in the judge’s statement of the applicable law or his application of the law to the facts he found. The Society’s complaints of error respecting the use of the summary trial procedure and in the admission of evidence were without merit. Appeal dismissed.
• 2008 BCCA 203 Nason v. Nunes
  Appeal concerned liability of driver whose truck went off the road and rolled over, injuring passengers, the plaintiffs. Trial judge found that driver had driven with reasonable care. On appeal, plaintiffs argued that as a matter of law, trial judge should have inferred negligence from facts truck had gone off the road and driver had lost control, citing Savinkoff v. Seggewiss (BCCA, 1996) and Gauthier and Co. v. The King (SCC 1945).
  Held: Appeal dismissed. To extent Savinkoff implied a legal presumption of negligence is to be made whenever a car goes off the road in a single-car accident, it should be regarded as superseded by Fontaine v. British Columbia (Official Administrator) [1998] 1 S.C.R. 424, 46 B.C.L.R. (3d) 1 where SCC said such presumption would effectively amount to strict liability. While trier of fact may draw a factual inference of negligence in a particular case, Fontaine rejected the making of a presumption as a matter of law. No reason to interfere with trial judge’s approach to onus or findings of fact had been shown in this case.
• 2008 BCCA 204 International Forest Products Ltd. v. Sandhu
  Appeal of an order dismissing a petition for judicial review of a decision of a member of the Human Rights Council finding discrimination in the denial of severance pay for certain employees. There were inadequate grounds for a finding of discrimination on a prima facie basis. Appeal allowed. Order of tribunal quashed.
• 2008 BCCA 205 618061 B.C. Ltd. v. The Village of Anmore
  The Village of Anmore had jurisdiction to enter into a latecomer agreement requiring a developer to pay 100% of the costs of a road within its subdivision which is required for access to a subdivision of neighbouring lands. The neighbour will build the road, it not yet having been constructed by the first developer who is proceeding in stages, but who is required to build the road as a condition of developing the remaining lands.
• 2008 BCCA 206 Le Soleil Hospitality Inc. v. Louie
  Appeal dismissed substantially for the reasons of the trial judge.
• 2008 BCCA 208 Kwikwetlem First Nation v. British Columbia Utilities Commission
  Leave granted to appeal the decision of the British Columbia Utilities Commission made February 21, 2008 that it should not consider the adequacy of consultation and accommodation efforts on the Interior to Lower Mainland Transmission Project as part of its determinations in deciding whether to grant a certificate of public convenience and necessity for the project.
• 2008 BCCA 209 Dawson Truck Repairs Ltd. v. Insurance Corporation of British Columbia
  As a result of an employee’s negligence, the engine of a truck, which was serviced by Dawson, over-sped during a road test. The engine itself was damaged extensively and parts of it flew into the cab of the truck causing additional damage. Dawson had a “Garage Policy” that included coverage for damage to customers’ vehicles. It contained an exclusion for loss or damage that consisted of, or was caused by, mechanical fracture, failure or breakdown of any part of the motor vehicle, unless the loss or damage was coincidental with other loss or damage for which indemnity was provided under comprehensive or collision coverage. ICBC paid for the cab damage, but took the position the engine damage was excluded. Dawson sued. At trial, the judge held the exclusion did not apply because the proximate cause of the engine damage was the negligence of the employee and not mechanical fracture, failure or breakdown. Held: appeal allowed. The judge erred by not considering whether the damage to the engine consisted of mechanical fracture, failure or breakdown, which clearly it did. The exclusion applied. The exception did not apply because the cab damage was caused by the mechanical fracture, failure or breakdown of the engine. It was not damage for which indemnity was provided under the policy. In a case such as this, where potentially some damage is covered and some is not, and there is a chain of causation, the inquiry is what caused the type of loss or damage for which indemnity is claimed. Labelling the originating cause or other causes in the chain as the “proximate cause” is of little assistance and is likely to confuse.
• 2008 BCCA 210 Gosse v. Farkvam
  Appeal dismissed from an order restraining the appellants from building a gate across a lane that obstructed access to the respondents’ property. The appellants claimed that the respondents had not pleaded an action in nuisance, and were therefore not entitled to injunctive relief. Held: The statement of claim pleaded the material facts for an action in nuisance, and injunctive relief. As the respondents had removed the gate and claimed no legal right to re-erect it, the appeal was moot.
• 2008 BCCA 213 Majomaki Holdings LLP v. Wong
  Leave to appeal not required for appeal from sentence of imprisonment of 21 days for contempt of court, and sentence stayed pending appeal. The appellant claims the trial judge made no clear finding whether the contempt was civil or criminal, and applied sentencing principles applicable to criminal contempt. For the purposes of this application, court proceeded on the basis that the contempt was civil.
• 2008 BCCA 216 Fast Fuel Services Ltd. v. Michelin North America (Canada) Inc.
  Procedure – Renewal of a writ of summons: Appeal from an order refusing renewal. Appeal allowed. Judge erred in assessing factors of prejudice and plaintiffs’ fault.
• 2008 BCCA 217 Gibson v. Insurance Corporation of British Columbia
  A new trial was ordered in a personal injury action because the trial judge's reasons for judgment were inadequate to permit proper appellate review.
• 2008 BCCA 218 Nguyen v. Johnson
  The appellant’s action for damages for injuries sustained in a motor vehicle accident was dismissed on the ground that the action was brought outside the limitation period. At the time of the accident, the appellant was driving a vehicle leased by her husband in which she had no property interest. The appellant argued that the trial judge erred in failing to hold that payments made by ICBC to repair the leased vehicle, to provide a substitute rental vehicle and to reimburse the appellant’s husband for the deductible amounted to a confirmation of the appellant’s cause of action against the respondent under s. 5 of the Limitation Act, thereby extending the limitation period governing the appellant’s claim. Similarly the appellant argued that the trial judge erred in failing to hold that a letter sent to her by an ICBC claims supervisor constituted confirmation of the appellant’s cause of action. The trial judge correctly applied the provisions of s. 5 of the Limitation Act to the facts when dismissing the action. Appeal dismissed.
• 2008 BCCA 220 Kerslake v. Kim
  Appeal from a jury verdict holding defendant driver solely to blame for a motor vehicle accident. A new trial was ordered. The judge did not instruct the jury on the provisions of s. 158 of the Motor Vehicle Act, and that non-direction amounted to a misdirection in the circumstances of the case. A re-trial was also ordered on the assessment of damages.
• 2008 BCCA 221 Mill Creek Developments Ltd. v. P & D Logging Ltd.
  Application by the appellant for a stay of execution, and by the respondent for security for costs. Held: Stay refused; security for costs ordered. To protect the appellant’s interests, an additional order was made with the consent of the parties, requiring the respondents to give the appellant notice of their intention to convey or dispose of their interests in certain properties.
• 2008 BCCA 222 D.H. (Guardian ad litem of) v. British Columbia
  J.H., a young boy, was sexually assaulted by an offender on probation for sexual offences against boys. At least some of the assaults occurred after the offender received permission from his probation officer to reside in a suite in the same residence as J.H. and his family, in the face of a probation order prohibiting unsupervised contact with children. J.H.’s mother, D.H., told the probation officer that the offender had no contact with her children, which was not true, and had permitted the offender to have unsupervised contact with J.H. despite being told by the probation officer not to leave her children alone with him. The trial judge allowed the claim in negligence against British Columbia on the basis the Province was vicariously liable for the negligence of the probation officer. He found that the probation officer was negligent in allowing the offender to reside in the same residence as J.H. and his family, and in failing to provide D.H. with information regarding the nature of the criminal record. Damages of $540,000 were awarded in favour of J.H. Fault was apportioned as follows: 75% the offender, 20% British Columbia, 5% D.H. The Province appeals from the finding of negligence, the quantum of damages, the refusal of an extension to file a counterclaim and the apportionment of fault. The mother, D.H., cross appeals from the apportionment of fault contending that she is not at all at fault.
  HELD: The appeal is allowed in part; the cross appeal is dismissed.
  The claim in this appeal is sufficiently novel that it cannot be said to fall within a recognized category of recovery. Applying Anns, this Court found there was sufficient forseeability of harm and that the relationship between J.H. and the probation officer was sufficiently proximate such that a prima facie duty of care was established. This Court rejected British Columbia’s argument that because the probation officer was exercising a statutory discretion, immunity applied unless the discretion was exercised maliciously or in faith. Whether the exercise of discretion by a public official compels immunity from liability depends on the function in issue and the role the official was playing in the circumstances giving rise to the action. In supervising an offender’s compliance with the terms of a probation order a probation officer is functioning at an operational level, not a high policy level. Applying Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, the exercise of discretion is properly reflected in the standard of care.
  The appropriate standard of care is that of a reasonable probation officer in similar circumstances. This Court agreed that the probation officer did not meet the standard of care required of him in permitting the offender to reside in a suite in the face of a probation order prohibiting such an arrangement. However, this Court found that the failure to tell D.H. that the sexual offences were against young boys, in light of the warning given to D.H. that he was not allowed unsupervised contact with children and that she should never leave them alone with him, did not amount to a breach of the standard of care. The probation officer provided an adequate warning to D.H.
  This Court agreed that causation was established, and concluded the damage award to D.H. was not so inordinately high as to indicate a wholly erroneous award of damages. Also, the trial judge made no error in principle in refusing an extension of time for filing of the counterclaim.
  Apportionment of fault is based on the respective deficiencies in the actions of the parties. Based on this Court’s conclusion that the failure of the probation officer to provide certain information was not a proper basis for a finding of fault, the relative degrees of fault should be modified. Greater prominence must be given to the failure by D.H. to comply with the term of the order prohibiting the offender from unsupervised contact with children and her falsehood to the probation officer that he had no contact with her children. In these circumstances the relative degree of fault is comparable. The appeal is allowed to the extent of apportioning fault equally between D.H. and British Columbia.
• 2008 BCCA 223 Fournogerakis v. Barlow
  Procedure: Appeal raising a consideration of the applicability of the principle of res judicata in unusual circumstances. Appeal allowed.
• 2008 BCCA 224 Silver v. Kohut
• 2008 BCCA 225 Kimpton v. Victoria (City)
  Appeal from an order that struck certain paragraphs of the plaintiff’s statement of claim allowed. The sections of the Local Government Act relied upon in the R. 19(24) application to strike establish a summary procedure for setting aside a municipal bylaw. These sections are not a statutory bar to Mr. Kimpton’s right to bring a common law action for a declaration that that the impugned bylaw was a nullity.
• 2008 BCCA 226 Team Transport Services Ltd. v. Klair
  Chambers judge did not err in dismissing petition seeking an order for removal of arbitrators from hearing the respondent's complaint. Reasonable apprehension of bias not shown.
• 2008 BCCA 231 United Food and Commercial Workers' Union, Local 1518 v. British Columbia Labour Relations Board
  The Union’s appeal from the dismissal of its application for judicial review of a decision of the Labour Relations Board on the ground of apprehension of bias was dismissed. No error was demonstrated.
• 2008 BCCA 232 Johnson v. Workers' Compensation Board
  Appeal of judicial review allowed. The chambers judge granted the review application on an issue not before the Workers’ Compensation Appeal Tribunal whose decision was under review. Matter referred back to trial court in chambers for resolution of undetermined issues.
• 2008 BCCA 234 Shaw Cablesystems Limited v. Concord Pacific Group Inc.
  The chambers judge ordered a hearing on a point of law regarding whether a strata corporation must permit either the installation or use of telecommunications infrastructure in the common property pursuant to the easement granted to strata lot owners under section 69(1)(b) of the Strata Property Act. The chambers judge gave negative answers to both questions of law. Appeal from the order of the chambers judge dismissed.
  The appellant admitted that the strata council is entitled to refuse a proposed exercise of the easement if it has a reasonable concern that the proposed exercise would unduly burden the servient tenement. This admission was sufficient to dispose of the appeal; the questions of law at issue were phrased in absolute terms. Furthermore, an easement cannot be enforced abstractly without any factual context and without the dominant and servient tenements before the Court.
• 2008 BCCA 235 Yaremy v. Insurance Corporation of British Columbia
  Application for directions as to whether leave is required to appeal an order, made on an application brought under Rule 18A, to have an action dismissed on the ground that it is time-barred. The summary trial judge held that the limitation period had been postponed. Held: Leave to appeal required. The order sought to be appealed is interlocutory, and does not fall within the exception for “split trials”.
• 2008 BCCA 236 Nomani v. The Owners, Strata Plan LMS 3837
  Appeal from the dismissal of the appellant’s petition seeking various relief under the Strata Property Act including the appointment of an administrator, a declaration of significant unfairness, and free access to leased common property as an exercise of statutory easements granted by section 69 of the Act. The chambers judge also awarded special costs against the appellant with respect to a previous adjournment application.
  Appeal dismissed except that the special costs award is remitted to the Master who heard the adjournment application.
  While a lease of common property cannot trump the section 69 easement, the section 69 easement does not necessarily permit owners free access to the leased common property. The record amply supports the refusal of relief with respect to the other claims. The reasons of the chambers judge disclose no error of law that would permit this Court to interfere with those decisions or to direct a trial of any of those issues.
• 2008 BCCA 237 Buchy v. Villars
  Application for security for trial and appeal costs. As trial costs had not been certified, that aspect of the motion adjourned generally. Security for appeal costs ordered despite impecuniosity of appellant, given doubtful merits of appeal.
• 2008 BCCA 241 Ciric v. Raytheon Canada Limited
  Employment law: Appeal raising a question of whether by virtue of a unilateral contract an employer who gave an employee working notice of termination was obligated to pay her severance as well. Appeal allowed. If an offer to pay severance was extended, it was withdrawn before it was accepted.
• 2008 BCCA 244 Te Kiapilanoq v. British Columbia
  The plaintiffs appealed the orders of Parrett J. striking their representative action and adding the Squamish Nation as a defendant. The Squamish Nation takes the position that leave to appeal is required and seeks directions to that effect. Held: leave to appeal is required. An order adding parties is procedural (Birrell v. Providence Health Care Society) and comes within s. 7(1)(b) of the Court of Appeal Act. The judge specifically left open the plaintiffs’ ability to pursue claims as individuals and did not finally dispose of any community held rights. The situation is analogous to orders staying proceedings in class actions (A.W. and D.W. v. H.M.T.Q. in Right of B.C. and Samos Investments Inc. v. Pattison et. al.).
• 2008 BCCA 246 McArthur v. Telus Communications Inc.
  The appellants, former employees, unsuccessfully sued their employer, the administrator of their pension plan, for a declaration that they were entitled to certain pension benefits on a proper construction of the plan and, in the alternative, damages for breach of fiduciary duty. The trial judge dismissed their action after a fourteen-day trial but awarded them their special costs of the action payable out of the pension plan, relying on Re Buckton, Buckton v. Buckton, [1907] 2 Ch. 406 (Eng. Ch. Div.). HELD: The appeal was dismissed. The cross appeal of the award of special costs was allowed. The principles laid down in Re Buckton do not apply to proceedings taken by way of an action commenced by writ of summons. Nor do they apply to appeals. The respondent, who was successful throughout, is entitled to recover its costs of the trial, the appeal, and the cross appeal.
• 2008 BCCA 247 Lam v. Ernest & Twin Ventures (PP) Ltd.
• 2008 BCCA 248 Ashton Mining of Canada Inc. v. Vesuna
• 2008 BCCA 250 Sharbern Holding Inc. v. Vancouver Airport Centre Ltd.
  Application for review of the decision of a chambers judge dismissing the appellant’s application to strike out portions of the respondent’s factum. Held: application dismissed. The division hearing the appeal should not be deprived of full argument on the issues. The authorities of this Court counsel a cautious approach by a single judge in chambers to striking out portions of a factum. The chambers judge applied those principles in the context of this case. He made no error of law or principle, and did not misconceive the facts.
• 2008 BCCA 254 McPhee v. British Columbia
  Appeal from dismissal of the appellant’s action for injuries suffered in a single-vehicle accident. The appellant claimed that his vehicle slipped on black ice on the highway. The trial judge dismissed the action on the basis that the appellant had not met the burden of proof. Held: appeal dismissed. The trial judge’s findings of fact were well-supported by the evidence, his reasons for judgment were adequate for appellate review, he did not err by deciding the case based on the burden of proof, and he was under no obligation to compare the relative probability of the possible explanations for the accident.
• 2008 BCCA 258 McIlvenna (Litigation guardian of) v. Viebig
  Application for a different disposition of appeal refused.
• 2008 BCCA 260 Cragg v. West Vancouver (District)
• 2008 BCCA 263 Pine Valley Mining Corporation v. Marubeni Corporation
  In accordance with a procedure established in proceedings under the Companies' Creditors Arrangement Act, the judge administering the CCAA process refused to imply a provision allowing termination on reasonable notice int