B.C. Court of Appeal

The official version of the reasons for judgment of the Court of Appeal is the signed original in the court file. In the event that there is a question about the content of a judgment found on the judgment database, the original of the judgment in the court file takes precedence. Copies of original judgments can be obtained by contacting the Vancouver registry. A photocopying charge is payable. Judgments are best viewed in Internet Explorer 6 or newer. Please click here to download.

Reasons for Judgment Released This Week

Released 6 October 2008:

• 2008 BCCA 393 R. v. Young
  Appeal of conviction for second degree murder allowed and new trial ordered. The trial judge’s charge focussed the jury’s assessment on the actions of the deceased husband immediately before the appellant wife shot him and thus effectively removed self-defence based on the “battered woman syndrome” from their consideration.

Released 3 October 2008:

• 2008 BCCA 385 The Carrier Sekani Tribal Council v. The B.C. Utilities Commission
  Leave to appeal is granted. There are at least two arguable issues worthy of consideration by a division of the Court. In addition, an extension of time for the filing of the leave application is granted and it is directed that the two appeals be heard at the same time.
• 2008 BCCA 389 R. v. Blais
  An appeal from an order quashing the issuance of a subpoena in criminal proceedings was dismissed. The Court discusses considerations touching the compellability of an expert to give evidence in a proceeding to which that person has no ties and in which he or she is otherwise a stranger.

Released 2 October 2008:

• 2008 BCCA 386 Zaenker v. Kirk
  In 1996, the appellants bought two parcels of land, Lots A and C, from the respondents. The lots did not have a source of potable water, but had been supplied with water from a well on a neighbour’s property. At the time of the purchase, the respondents agreed that if the neighbour’s system was terminated, they would provide a replacement water supply system and provide water in the interim. The neighbour’s system was subsequently terminated. In 1997, the appellants sued the respondents for damages arising out of their failure to supply water. At trial they lost, but they succeeded on appeal and the matter was referred back to trial to assess damages. In 1997, the appellants caused a numbered company controlled by them to purchase adjoining land, the S.E. ¼. They found water on that land and thereafter supplied water from it to Lots A and C. Shortly before the damages hearing, the appellants caused the numbered company to purchase another property, new Lot C, on which they also found water. At trial they asserted that this water supply was a replacement system and claimed its cost as damages. The respondents maintained that the water supply from the S.E. ¼ was a replacement system and took the position the appellants had mitigated their damages by its development. Prior to trial, the appellants did not specifically claim damages for the respondents’ failure to provide a replacement water system and the respondents did not plead that the S.E. ¼ water supply was a replacement water system. The trial judge concluded the supply from the S.E. ¼ was a replacement system and the appellants thereby had mitigated their damages. She awarded the appellants the cost of developing the S.E. ¼ water supply, the cost of interim water and the expenses of their unsuccessful attempt to obtain replacement water. She said nothing about the claim to recover the costs of developing the new Lot C water supply. The appellants appealed, asking that the judge’s determination that the S.E. ¼ water supply was a replacement system be set aside and the case remitted to the trial court for an assessment of damages.
  Held: Appeal dismissed.
  It was not necessary for the trial judge to analyze the appellants’ claim based on the law of mitigation. By doing so, she was drawn into considerations of piercing the corporate veil and collateral benefit. The case was simply a matter of ascertaining the costs to the appellants of obtaining the bargained for replacement water system, the costs of the interim supply of water and the expenses of unsuccessful attempts to obtain a replacement supply of water. Only the latter could be characterized as mitigation.

Released 1 October 2008:

• 2008 BCCA 382 Perez v. Galambos
  On 27 February 2008, the appeal of Estela Perez from the dismissal of her action against Michael Galambos and his Law Corporation was allowed: 2008 BCCA 091. Submissions were subsequently made on the question of whether the successful appellant could recover her costs directly against a non-party insurer who defended the action at trial and on appeal on behalf of the insolvent respondents. Held: Costs could not be awarded against the non-party insurer.
• 2008 BCCA 383 Redae v. Workers' Compensation Appeal Tribunal
  Application for indigent status and extension of time to apply for leave refused on the ground that the proposed appeal has no merit.

Released 30 September 2008:

• 2008 BCCA 379 Erickson v. Jones
  The respondents were tenants-in-common of property described as “the Erickson Property”. Prior to its purchase in 1973 by the respondent, Erickson, access was through property owned by the appellant’s predecessor in title, Mr. Loper, who had made inquires that led him to believe that this access, the “old road”, was a public road. The Ericksons became aware of this understanding before they purchased the Erickson Property. In 1977, Mr. Loper asked the Ericksons to agree to move their access to run along a boundary rather than through the middle of his property. They agreed. The appellant was paid to undertake some of the physical work of constructing the “new road”, which, in part, also went through property he owned. In 2002, the appellant bought Mr. Loper’s property and advised the respondents he intended to close the new road. The respondents had used the new road from 1977 to 2002. They sued for a declaration the old road is a public road and they are entitled to use it or, alternatively, for an easement over the new road. The appellant counterclaimed for a declaration the new road is a private road and filed an injunction preventing the respondents from interfering with the closure of the new road.
  The trial judge held the old road was not a public road and granted an equitable easement over the new road based on proprietary estoppel. He also awarded costs to the respondents. The appellant appealed the granting of an easement and costs. No appeal was taken from the judge’s determination the old road was not a public road. Held: appeal dismissed. The modern approach to estoppel is broad. In the circumstances of this case, the test is whether it would be unconscionable to allow the appellant to assert his right to his property to the exclusion of the respondents’ access route. Of concern was the issue of detriment because the old road was not a public road. The respondents’ use of it legally had been on sufferance. Insofar as detriment must be shown to establish an equitable estoppel, it is present in this case by the payment of money to construct and maintain the new road and by the Ericksons’ forbearance in 1977 of pursuing their entitlement to access in reliance on the conduct and acquiescence of Mr. Loper and the appellant. An equitable easement was preferred to a licence in the circumstances of this case. Costs being discretionary, the appellant has shown no error of principle that would permit this Court to interfere.

Yukon Judgments

Released 6 October 2008:

• 2008 YKCA 14 Heynen v. Yukon Territory (Government)
  The appellants’ outfitting concession was cancelled by the Minister of Renewable Resources. An action was started a year later seeking an order quashing that decision. The judge found there was a serious breach of the appellants’ right to procedural fairness but declined to quash the decision because the delay in starting the claim and pressing it to court was unreasonable. He rejected the reasons advanced by the appellants, an effort to resolve the issue with government officials, and said great damage would be occasioned to the system of administration of justice if such delays were countenanced. The appeal is allowed. Exercise of discretion requires consideration of the prejudice to all parties from the exercise of discretion and the seriousness of the breach of natural justice. Given the seriousness of the breach in this case, the serious loss to the appellants by the decision and the minimal prejudice to the respondents, an order is granted quashing the Minister’s decision.