Destiny Enterprises Canada Ltd. v. Sang Gab Kim,
2012 BCCA 61
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2012/02/09
Court of Appeal
Appeal from an order of the Supreme Court of British Columbia granting judgment to the plaintiff. The defendant, Sang Gab Kim, signed a personal covenant guaranteeing the obligations of a vendor, E-Mart Food Centre Ltd. (“E-Mart”) under a contract for the sale and purchase of business assets to the plaintiff, Destiny Enterprises Canada Ltd. The vendor’s obligations included a term stipulating that E-Mart had title to the leasehold interest in its store property, and that this interest was assignable to the plaintiff. The contract also specified that if E-mart was unable to provide closing documents by the closing date, E-Mart would buy back, at cost, all inventories it had already sold to the plaintiff.
After the plaintiff had taken purchased inventories from E-Mart and taken possession of the property, but before the closing date, a third party, Richard Kim (“R. Kim”), ousted the plaintiff from the premises and took possession of the inventory. R. Kim acted on the basis that he, and not E-Mart, held a valid lease to the property.
The plaintiff sued the defendant, as personal guarantor of E-Mart’s obligations, to recover the value of the inventory it had lost. The trial judge awarded $134,762.79, which included the sum that the plaintiff had already paid to buy inventory from E-Mart, as well as the value of other inventory purchased by the plaintiff (including a 20 percent markup). The defendant appealed, contending that the trial judge had erred in rejecting the defence of frustration, as well as the argument that Destiny had not acted sufficiently to mitigate its losses. He also submitted that the trial judge had erred in including the markup in the assessment of damages.
HELD: Appeal allowed in part. The defendant failed to show any error in the trial judge’s reasoning with respect to the defence of frustration or the issue of mitigation. However, the inclusion of the 20 percent markup in the award of damages was improper. Accordingly, an award of $123,909.34.is substituted for the award of $134,762.79.
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Morlan v. Barrett,
2012 BCCA 66
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2012/02/09
Court of Appeal
Appeal by the defendants from the damages awarded to the plaintiff as a result of two motor vehicle accidents that occurred in quick succession. As a result of the accidents the plaintiff developed fibromyalgia and was required to change jobs. The defendants argued that the awards for loss of future income earning capacity, non-pecuniary damages, and cost of future care should be reduced. Held: Appeal allowed in part.
The trial judge’s finding that the plaintiff’s future employability had been impaired by the accident was supported by the evidence. However, the judge erred in finding that there was a real and substantial possibility that, but for the accident, the plaintiff would have been promoted into a higher paying position with her pre-accident employer. There was, accordingly, no basis for awarding damages based on the positive contingency of promotion. The loss of future earning capacity award was reduced by $150,000.00 to $275,000.00.
The award of $125,000.00 for non-pecuniary damages was upheld. Although generous, it was not inordinately high.
The award for cost of future care was reduced by approximately $10,000.00 to account for negative contingencies.
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Posted Wednesday, February 08, 2012:
Leroux v. Canada Revenue Agency,
2012 BCCA 63
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2012/02/08
Court of Appeal
The Court allowed an appeal in part, from an order permitting the respondent’s tort claims to continue, to provide a direction that the misfeasance and negligence claims be reformulated in a revised statement of claim. The Court found the claims for misfeasance and negligence are based on the misconduct of Canada Revenue Agency employees, and do not infringe on the exclusive jurisdiction of the Tax Court of Canada. The Court dismissed the cross appeal and agreed with the chambers judge that the respondent’s Charter and Bill of Rights claims based on the lack of a statutory stay of proceedings pending appeal in the Excise Tax Act disclosed no reasonable cause of action.
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R. v. Olazo,
2012 BCCA 59
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2012/02/08
Court of Appeal
Crown appeal from an entrapment ruling. The issue was whether the police acted on reasonable suspicion in soliciting a drug transaction.
In placing a call to a number said to be part of a dial-a-dope operation, the police acted on a tip from an informant of unknown reliability. The trial judge held that the police acted on mere suspicion in making the call and should have confirmed the reliability of the tip prior to doing so.
Held: Appeal allowed; convictions restored. The phone call was part of an investigation to determine whether the party answering was involved in the drug trade. Once that was determined, the tip was confirmed and the police had a reasonable suspicion. Consequently, providing an opportunity to sell drugs thereafter did not amount to entrapment.
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Posted Tuesday, February 07, 2012:
Madill v. Sithivong,
2012 BCCA 62
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2012/02/07
Court of Appeal
The appellants appeal a judge’s award of $760,000 for non-pecuniary damages and loss of future earnings arising out of injuries sustained in an automobile accident on the basis that the judge erred basing the award on the respondent’s pre- and post-accident condition with no regard to causation and in her assessment of the credibility of the respondent and his wife. Appeal dismissed. While another trier of fact may very well have reached different conclusions, there was ample evidence to support the conclusions of the trial judge. She prepared very lengthy and thorough reasons for judgment and made no error in her approach to assessing credibility or in considering causation.
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