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Posted Tuesday, May 15, 2012:
Ballinger v. Ballinger,
2012 BCCA 205
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2012/05/15
Court of Appeal
Appeal from an order of the Supreme Court of British Columbia, dismissing the claimant’s application for review of an earlier order by the Provincial Court of British Columbia. The claimant and respondent were married in 1976 and separated in 2001. In 2006, they signed a consent order, filed in the Provincial Court, requiring the claimant to pay the respondent $3000 per month in spousal support. In 2009, the claimant applied to the Supreme Court for a review of the consent order. The application came before Mr. Justice Saunders, who ordered that proceedings commenced in the Provincial Court be joined with proceedings in the Supreme Court, pursuant to s. 8(1) of the Family Relations Act. The following year, Mr. Justice Armstrong denied the claimant’s application, on the grounds that the Supreme Court lacked jurisdiction.
The claimant appealed, arguing that the application was properly before Armstrong J., and that the latter erred in dismissing it.
HELD BY THE COURT: Appeal dismissed. The only possible grounds for granting the appeal is the order of Saunders J. joining the proceedings in Supreme Court with those in Provincial Court. There was, however, no foundation for this order, since the proceedings in both courts constitute the same matter. The claimant must therefore apply in the Provincial Court to vary or review the order for spousal support.
In concurring reasons, Newbury J.A. reviews overlapping jurisdiction of Provincial and Supreme Courts, and ss. 8(1) and 8(2) Family Relations Act, as discussed in Auxi v. Menton (1994), Legault v. Boyes (1997) and M.Y.A. v. C.A.F. (2011), all decisions of the Supreme Court of British Columbia.
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Pacifica Mortgage Investment Corporation v. Laus Holdings Ltd.,
2012 BCCA 210
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2012/05/15
Court of Appeal
The respondent’s application to delete certain documents from the appellants’ supplemental appeal book is allowed. Further directions given to facilitate the administration of the appeal including confirming that, simply because material is before a judge of this Court on a chambers application, does not mean a division of this Court will consider it when hearing an appeal on the merits. There may be factors relevant to whether leave to appeal should be granted which include information that was not before the tribunal at first instance. When considering the merits of an appeal, this Court confines the inquiry to material that was before the tribunal, subject to admitting new or fresh evidence in appropriate circumstances.
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R. v. Evans,
2012 BCCA 209
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2012/05/15
Court of Appeal
This appeal of a second-degree murder conviction is dismissed. The trial judge did not err in admitting evidence of a “re-enactment” of the crime by the appellant at the crime scene; nor did she err in not giving a W.(D.) instruction as to the appellant’s confession; nor did she err in refusing to leave the partial defence of provocation with the jury. Finally, the evidence was capable of supporting the conclusion that the appellant had one or the other of the intents in murder and there is no basis for this Court finding that the murder verdict was unreasonable and should have been a verdict of manslaughter.
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Posted Friday, May 11, 2012:
Lost Lake Properties Ltd. v. Sunshine Ridge Properties Ltd.,
2012 BCCA 204
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2012/05/11
Court of Appeal
The respondent’s application for increased costs under Rule 60 of the Court of Appeal Rules, based on the appellant having declined an offer to abandon its appeal without costs, is dismissed.
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R. v. Lai,
2012 BCCA 202
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2012/05/11
Court of Appeal
The appellant was convicted of production of marihuana on the evidence that he was found sleeping in a house largely dedicated to cultivation.
The appeal was allowed. The evidence was too weak to sustain the conviction and an acquittal was substituted.
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Posted Thursday, May 10, 2012:
Iezzi v. British Columbia,
2012 BCCA 200
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2012/05/10
Court of Appeal
Appeal from a finding that the action was not barred by the two year limitation period. The judge held that the period was postponed because of the respondent’s personal circumstances and she was justified in waiting until she obtained documentary proof of her claim before commencing the action.
Held: The evidence would not support the finding related to personal circumstances. As for the delay in getting proof, nothing in the record explained why the respondent could not have done much earlier what she did to gather the proof.
Appeal allowed; action dismissed.
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Lush v. Connell,
2012 BCCA 203
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2012/05/10
Court of Appeal
The appellant was rendered paraplegic as a result of medical procedure. Her claim against her doctor was dismissed by a jury. On appeal, she argued that the trial judge erred in a number of ways in allowing the opinion of one of the respondent’s colleagues to be adduced, and by instructing the jury in a manner that suggested that the requisite standard of care included a geographic component, and by instructing the jury that their verdict had to be unanimous, without clarifying that the members of the jury could reach their verdict by arriving at the verdict through different avenues of negligence.
Held: The judge made no error in the admission of the expert’s evidence. The charge to the jury did not suggest that the standard of care included a geographic component. While a judge instructing a civil jury ought to instruct the jury that, while their verdict with respect to liability must be unanimous (unless the instruction permitted after three hours of deliberation is given), where there are different bases upon which the jury members might arrive at a finding of liability, the jury members should be instructed that the avenue they adopt need not be unanimously adopted. In this case there was only one basis upon which the jury could have found against the respondent, so the failure to instruct the jury that the avenue to liability need not be unanimous did not affect the result. The appeal was therefore dismissed.
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