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Posted Friday, April 19, 2024:
Lal v. Grewal,
2024 BCCA 149
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2024/04/19
Court of Appeal
A residential real estate transaction did not complete on the date set for closing in 2016. The purchaser sued for specific performance, or in the alternative, damages. The seller defended on the basis that the contract was unenforceable. By the time of trial, the purchaser had purchased a substitute property and sought only damages. The trial judge found that neither party complied with the time of the essence clause at closing, and the contract remained alive at trial. The judge ordered that a new completion date be set. The seller appealed.
Held: Appeal allowed.
The judge did not err in finding that neither party was ready, willing and able to close at the time set for completion of the contract and that this continued the contract until it was terminated. However, by her response to civil claim, the seller repudiated the contract. The purchaser accepted this repudiation by the time of trial, electing damages. The judge was in error to in effect order specific performance in these circumstances, especially more than five years after the original failed closing date. The judge’s order is set aside, and the assessment of damages arising from the seller’s breach of contract is remitted to the trial court.
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Spark Event Rentals Ltd. v. Google LLC,
2024 BCCA 148
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2024/04/19
Court of Appeal
The appellant seeks an order lifting a stay of proceedings in a proposed class action issued in favour of the arbitral process mandated in an agreement between the parties. The appellant submits that the judge erred in finding that the court was not the proper venue to decide the validity of the arbitration agreement. Held: Appeal dismissed. There are two bases on which a court should decide a jurisdictional challenge: (1) in the presence of an exception to the competence competence principle found in the Dell framework; and, (2) where there is a realistic prospect that the arbitrator will not decide the jurisdictional challenge because a “brick wall” stands between the appellant and the arbitrator. Under the Dell framework, the appellant failed to establish an exception to the arbitrator’s primacy on the undisputed factual record. Under the brick wall framework, the chambers judge did not err in his finding that the appellant had not satisfied him of the existence of circumstances that would preclude it from reaching arbitration on the jurisdictional issue.
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Worthington v. Webber,
2024 BCCA 147
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2024/04/19
Court of Appeal
The appellant began constructing a coach house on his property. The respondents, who are neighbouring property owners, filed a petition asserting that the coach house was contrary to a restrictive covenant. The appellant submitted that no charge restricted his use of his property. The chambers judge granted the petition in part, and continued an interim injunction, on the basis that the appellant was required to pursue the matter by bringing a petition to cancel or modify the charge under s. 35 of the Property Law Act. The appellant argues that the judge erred in determining that s. 35 governs a dispute about the meaning and interpretation of an alleged charge against a property. He submits that this Court should decide the issue of enforcement at first instance.
Held: Appeal allowed.
The chambers judge erred in her conclusion that s. 35 applied to this dispute. Section 35 is only a complete code for cancelling or modifying an easement or charge against land and it does not govern the interpretation and enforcement of such interests. That issue regarding the interpretation and enforceability of the indenture on title should be remitted back to the trial court. The interim injunction will expire 30 days after these Reasons, subject to further order.
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Posted Thursday, April 18, 2024:
Mitchell v. Manson,
2024 BCCA 142
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2024/04/18
Court of Appeal
The respondent was injured in a mountaineering accident. The summary trial judge found that a digital waiver signed by the respondent releasing the appellants of all liability could not serve as a complete defence because it specified the date of an earlier trip the parties participated in that summer, when the trip that gave rise to the injury had not yet been organized. No further waiver was proffered or signed. On appeal, the appellants allege, among other errors, that the judge failed to construe the waiver as a whole, and in light of the surrounding circumstances, to find that the parties had intended for the waiver to apply to all trips in which the parties participated that season.
HELD: Appeal dismissed. The judge reviewed the evidence, found no ambiguity in the waiver, which listed one date under “Trip Details”, and concluded that the objective mutual intention of the parties interpreted in the greater context was for the waiver to apply only to the first trip the parties took together, in which no accidents occurred. This decision is entitled to deference and the appellants fail to establish any error of law or principle, or palpable and overriding error.
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R. v. Seangio,
2024 BCCA 143
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2024/04/18
Court of Appeal
The appellant appeals his convictions on seven counts of wilfully committing an indecent act, contrary to s. 173(1) of the Criminal Code, and three counts of exposing himself to a person under the age of 16, contrary to s. 173(2) of the Code. He alleges multiple errors in the judge’s charge to the jury.
Held: Appeal dismissed. First, the judge’s final charge on similar fact evidence properly equipped the jury to determine whether and how to use similar fact reasoning. Second, the judge did not err in instructing the jury that s. 173(2) did not require proof of knowledge or recklessness as to whether the complainants were underage, as there was no air of reality to the defence that the appellant took all reasonable steps to ascertain the complainants’ ages. Third, the judge’s instruction to consider whether a witness has an interest in the outcome was not in error and did not isolate the appellant. Finally, the judge did not err by not including a W.(D.) instruction because her charge adequately conveyed those principles.
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Raiwal Holdings Ltd. v. Fraser Valley Packers Inc.,
2024 BCCA 145
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2024/04/18
Court of Appeal
The appellant appeals an order made in foreclosure proceedings. The appellant received funds from the respondent for the purchase and maintenance of a property to be used for blueberry farming. Starting in 2014, the appellant arranged for various forms of security for the debt to be provided to the respondent. In March 2017, the parties agreed on the terms of a mortgage, which the respondent subsequently registered when the appellant failed to make payment on the due date. At trial, the appellant’s position was that it did not owe a debt to the respondent, and if it did, the claim was barred by the Limitation Act, S.B.C. 2012, c. 13. The judge rejected the appellant’s position. The appellant argues that the judge erred by failing to distinguish between the limitation period applicable to the underlying debt and the limitation period applicable to the mortgage. Held: Appeal dismissed. Considering the reasons as a whole, having regard to the live issues at trial and submissions of the parties, the judge found that the mortgage was part of a new agreement. Given the judge’s findings, he did not err in concluding that the limitation periods for the debt and mortgage obligations arose at the same time and that the respondent’s debt claim was not statute-barred.
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Posted Wednesday, April 17, 2024:
NRI Solutions Ltd. v. Chohan,
2024 BCCA 146
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2024/04/12
Court of Appeal
The appellant appeals an order granting the Chohan Respondents leave to file a third party notice advancing a claim against the appellant for intentional interference with economic relations.
Held: Appeal allowed. The third party notice fails to plead the requisite elements of the tort of intentional interference with economic relations. Specifically, it fails to plead an unlawful act committed against a third party. The third party notice also fails to plead material facts supporting the claim.
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R. v. Henry,
2024 BCCA 132
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2024/04/17
Court of Appeal
Appeal of a sentence of two years less a day for sexual assault. Appellant had had full vaginal intercourse with a friend (and sometime “girlfriend”) who was asleep in his home. Judge rejected his defence based on consensual intercourse. Appellant had no criminal record and judge accepted that the offence was out of character for him. Judge said two years would have been suitable, but reduced it to a provincial term of two years less a day so appellant could remain on Vancouver Island where his supportive family and friends were located. Prior to the hearing of the appeal, the Criminal Code was amended to lift the prohibition on CSOs for persons convicted of sexual assault charged by indictment. In these circumstances, the appellate court proceeds as if an “error in principle” had occurred below and re sentences the offender. In this case, however, CA dismissed the appeal, finding that a CSO would not adequately reflect the goals of general deterrence and denunciation demanded by the seriousness of the offence. Term of imprisonment of two years less a day adopted.
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R. v. Yaman,
2024 BCCA 141
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2024/04/17
Court of Appeal
Appeal from conviction for breaking and entering a residence. The central issue at trial was proof of identity—whether the Crown had proven beyond a reasonable doubt that the appellant was the man involved in the break and enter. The appellant alleges the trial judge erred by: failing to instruct herself on the legal principles governing identification evidence; that she misapprehended a police officer’s evidence; and that she failed to adequately assist the appellant given his status as a self-represented litigant.
Held: Appeal dismissed. The appellant did not demonstrate any legal error with respect to the application of the law governing identification evidence. Nor did the appellant demonstrate any palpable and overriding error in the trial judge’s acceptance of the identification evidence. The judge misstated one aspect of surveillance evidence; however, this misstatement was not material to the trial judge’s reasoning. A review of the record demonstrates the trial judge assisted the appellant such that his defence was brought out with full force and effect.
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Posted Tuesday, April 16, 2024:
Manhas v. Manhas,
2024 BCCA 144
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2024/04/11
Court of Appeal
The appellants, Gurjit Singh Manhas and Rabinder Singh Manhas, appeal from an order finding that certain assets were family property to be divided between Rabinder and the respondent Baljit Manhas in their family law proceeding. The judge also dismissed Rabinder’s claim for spousal support and found that Rabinder owed Baljit $6,975 in retroactive child support. The appellants impugn several of the judge’s factual findings, including his finding that they were not credible witnesses.
Held: Appeal dismissed. The appellants have not met the high threshold for demonstrating an error in the judge’s findings that would warrant appellate intervention.
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Posted Monday, April 15, 2024:
R. v. Toth,
2024 BCCA 139
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2024/04/15
Court of Appeal
This is a conviction appeal. An altercation occurred outside a Costco store between the appellant and another customer, an 86-year-old man, who pepper sprayed the appellant. The altercation ended with the man being pushed by the appellant and striking his head. He died four weeks later. A jury convicted the appellant of manslaughter. The appellant contends the trial judge erred in (1) failing to instruct the jury on the relevance of evidence of his claustrophobia to elements of self defence, (2) failing to give a limiting instruction in respect of lay opinion evidence, and (3) misdirecting the jury on the defence of consent as it applies to assault as the underlying unlawful act in manslaughter.
Held: Appeal dismissed. Considering the charge as a whole in the context of the record and the submissions of counsel, neither the lack of instruction to the jury on the specific relevance of the claustrophobia evidence nor a limiting instruction on lay opinion evidence constitutes reversible error. Although the judge’s instructions on consent were flawed, the error was harmless and resulted in no substantial wrong or miscarriage of justice.
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