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Posted Friday, March 15, 2024:
Equustek Solutions Inc. v. Jack,
2024 BCCA 104
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2024/03/15
Court of Appeal
The appellants sued several parties for breach of confidence, passing off and conspiracy. At trial, they obtained judgment against some defendants, but not all. They appeal the dismissal of their claims against Lee Ingraham, Colin Marsh and Mike Bunker. They also appeal certain aspects of the damages and costs awards.
Held: Appeal dismissed with respect to the majority of the grounds of appeal, but allowed with respect to the Bullock costs order. There is no merit to the main grounds of appeal, which are essentially challenges to the judge’s findings of fact. The evidence supported the judge’s findings of fact. The judge’s reasons illustrate that she grappled with the large quantity of evidence and the varying theories advanced by the appellants at trial. With respect to the application for a Bullock order, the judge overlooked the appellants’ argument that they should be allowed to claim against the unsuccessful defendants the costs that the appellants must pay the successful defendants. The order at trial is varied to allow the appellants to recover the costs of the successful defendants as against the non-participating unsuccessful defendants.
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Evans v. Berry,
2024 BCCA 103
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2024/03/15
Court of Appeal
The appellant suffered injuries when she was bitten by a dog owned by the respondents while attending a dinner party at the respondents’ home. She sued the respondents in scienter, negligence and occupiers’ liability. The judge dismissed her claims.
Held: Appeal dismissed. The appellant failed to demonstrate that the judge erred in concluding that she had had not established two elements of the scienter test: that the dog had manifested a propensity to cause the type of harm occasioned; and that the respondents knew of that propensity. Nor did the judge err in finding that the respondents had not breached the applicable standard of care.
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North Root Cannabis Ltd. v. 663466 B.C. Ltd.,
2024 BCCA 105
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2024/03/06
Court of Appeal
The appellants filed a notice of appeal with respect to a chambers judgment dismissing their application for summary trial. The respondents apply to quash the appeal on the basis that leave is required. The appellants maintain that leave is not required, but alternatively apply to convert the notice of appeal into an application for leave to appeal, and for leave to appeal. Held: Application to quash dismissed, application to convert the notice of appeal into application for leave to appeal granted, and application for leave to appeal dismissed. Leave is required to appeal an order made pursuant to R. 9 7(11) of the Supreme Court Civil Rules. In these circumstances, the interests of justice are better served by the parties getting on with the action in the court below rather than appealing the discretionary order of the chambers judge.
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R. v. G.J.M.,
2024 BCCA 82
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2024/03/07
Court of Appeal
The Crown appeals a total sentence of two-years-less-a-day of imprisonment plus three years of probation for the respondent’s repeated and prolonged sexual offending against his much younger half-sister, and possession of child pornography. According to the Crown, the judged made numerous errors in principle and imposed a sentence that is demonstrably unfit.
HELD: Leave to appeal is granted; the appeal is allowed; and the sentence is increased to four-and-one-half-years’ imprisonment on the sexual interference counts and six months’ imprisonment consecutive on the possession of child pornography count. The judge erroneously found the respondent’s moral blameworthiness was diminished by his depression, placed him towards the lower end of the trust spectrum, and treated the disruption of his family unit as a mitigating collateral consequence. As a result, she skewed the balance of aggravating and mitigating factors unduly in his favour and failed to give proper effect to his high moral blameworthiness and the harmfulness of his offences. She also failed to impose a sentence that reflected the harm caused by the child pornography offence and misapprehended the evidence on how that offence came to light. In overall consequence, she imposed a sentence that is demonstrably unfit.
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Posted Thursday, March 14, 2024:
Ding v. Canam Super Vacation Inc.,
2024 BCCA 102
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2024/03/14
Court of Appeal
This is an appeal from (1) the dismissal of the appellant’s claims for negligent design and failure to warn, and (2) an order for costs. The appellant’s claims arose from a single vehicle accident involving a tour bus that was not equipped with passenger seatbelts. The bus crashed and rolled on its side. The appellant, who was riding as a passenger, was partially ejected through a side window and seriously injured.
The driver of the bus and the company operating it admitted liability. The trial proceeded against the bus manufacturer, the tour operator, another bus company who sub-contracted the bus charter, and the tour guide. After a 72-day trial, the trial judge dismissed the action. He found the bus manufacturer was not negligent in designing and manufacturing the bus in 1998 without seatbelts and he dismissed the action for failure to warn against the bus manufacturer and the tour operator on the basis that causation had not been proven against either defendant. The judge awarded the appellant only her costs to trial, ordered her and the two defendants who had admitted liability to bear their own costs of the trial, refused to make a Sanderson or Bullock order requiring the unsuccessful defendants to pay the costs of the successful defendants, and awarded the bus manufacturer uplift costs.
The appellant asserts various legal and factual errors in the trial judge’s analysis of the claim against the bus manufacturer for negligent design and against the manufacturer and tour operator for failure to warn. She also asserts three errors in principle in the judge’s costs award.
Held: Substantive appeal dismissed; costs appeal allowed in part. The judge did not err in his negligent design analysis. He stated and applied the correct legal test, properly weighed the evidence and made no palpable and overriding errors of fact. In respect of failure to warn, the judge erred in his causation analysis by failing to properly articulate the nature of the warning that was required. However, despite this error, there is no basis to interfere with his conclusion that the evidence was insufficient to establish factual causation.
In respect of costs, there is no reversible error in the judge’s exercise of his discretion in refusing to make a Sanderson or Bullock order or awarding uplift costs to the bus manufacturer. However, the judge erred in principle in depriving the appellant of her costs of trial against the unsuccessful defendants without a sound basis. The judge’s order to that effect is set aside and substituted with an order that the appellant is entitled to her costs of certain portions of the trial.
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Healey v. Mault,
2024 BCCA 100
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2024/03/14
Court of Appeal
Appeal from an award of $80,000 for loss of future earning capacity. The accident occurred in mid 2016 when the appellant was 24 years of age. She was 29 at the time of trial. Her accident-related injuries are likely to be permanent and will prevent her from accessing future job opportunities that are physically demanding. At the time of the accident, the appellant had a sporadic work history and no clearly defined career path. The judge found that the appellant was able to return to full-time work by January 2018. She did not do so. Instead, at the end of 2018, she moved to a remote property to pursue a personal relationship and her interests in animal husbandry. She has not been gainfully employed since then. The judge rejected the appellant’s position that, but for the accident, there was a real and substantial possibility she would have pursued a career in the marine industry. On the evidence, the appellant’s residual earning capacity from a position requiring sedentary or light work likely exceeds her potential income from the physically demanding work that is now foreclosed to her. The appellant argues that the trial judge erred: (1) by finding no real and substantial possibility that she would have pursued a career in the marine industry; (2) in her application of the capital asset approach; and (3) by making an award that is “inordinately low”. Held: Appeal dismissed. The trial judge’s finding that the appellant had no real and substantial possibility of pursuing a career in the marine industry is grounded in evidence and untainted by palpable and overriding error. It was open to the judge in this case to value the appellant’s capital asset loss at $80,000 using the “annual income method.” The judge made no reversible methodological errors in her approach. The “inordinately low” standard of review will generally be of no assistance on appeals that challenge the valuation of a future loss of earning capacity.
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R. v. Hoffman,
2024 BCCA 98
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2024/03/14
Court of Appeal
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R. v. So,
2024 BCCA 101
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2024/03/14
Court of Appeal
Appeal from conviction for second degree murder following a lengthy judge alone trial. The appellant repeatedly stabbed the victim in a karaoke club after a drunken confrontation he initiated. The appellant testified and acknowledged causing the victim’s death. He sought an acquittal on grounds that he was in an automatistic state at the time of the stabbing and that his actions were involuntary. In the alternative, he argued that the evidence of intoxication raised a reasonable doubt about whether he stabbed the victim with the intent for murder. If the automatism defence was rejected, he sought entry of a conviction on the included offence of manslaughter. On appeal, the appellant submits that the judge: reversed the onus of proof on the issue of intoxication; failed to consider in a “rolled-up” fashion all of the evidence relevant to proof of his intent, including evidence underlying the rejected defence of automatism; failed to give sufficient reasons as to why that evidence did not raise a reasonable doubt on the issue of whether he acted with murderous intent; and, misapprehended evidence given by a toxicologist and forensic psychiatrist called by the defence in support of the automatism and intoxication defences. Held: Appeal dismissed. The judge committed none of the errors alleged.
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Raschpichler v. Raschpichler,
2024 BCCA 94
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2024/03/01
Court of Appeal
The appellant appeals the judge’s order dismissing his application to terminate his obligation to pay spousal support to the respondent as of the date of his retirement. Held: Appeal dismissed. The judge found that the appellant’s retirement was a material change in circumstances before deciding that no variation in spousal support was warranted due to an ongoing entitlement to compensatory and non-compensatory support and the appellant’s historic underpayment of spousal support. The judge’s findings are owed significant deference and are amply supported by the record.
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