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Posted Thursday, April 25, 2024:
Boonstra v. Boonstra,
2024 BCCA 153
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2024/04/25
Court of Appeal
This appeal arises from a decision by a Supreme Court judge to order spousal support, both retroactive and ongoing. The judge reviewed a prior order for spousal support (made in 2016) and decided the support should continue, albeit at a slightly increased amount based on updated information. The appellant sought to have his support obligation terminated. The judge declined to do so. There were two main issues on appeal: 1) whether the judge properly included the appellant’s pension benefits as income for purposes of the spousal support analysis, allowing for some double recovery by the respondent; and 2) whether the judge erred by taking the appellant’s Veterans Affairs Benefits into account as part of his overall “means” in deciding spousal support. In a cross-appeal, the respondent contended that the latter benefits must be treated as income, as a matter of law.
HELD: Appeal and cross-appeal dismissed. A judge’s review of a spousal support order is subject to a highly deferential standard on appeal. On the record in this case it was open to the judge to include the appellant’s pension benefits as income, even in the face of some double recovery. It was also open to the judge to consider the Veterans Affairs Benefits as part of the appellant’s “means” in choosing a Spousal Support Advisory Guidelines range for spousal support. This Court has previously endorsed such an approach. The position raised in the cross-appeal effectively asks for that decision to be overturned and requires a five-member division. The respondent made no such application.
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Pavlov v. Edwards,
2024 BCCA 155
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2024/04/25
Court of Appeal
The appellant appeals a summary trial order finding him liable up to the amount of his guarantee, which secured a part of a vendor-take-back loan in a commercial transaction. The judge found that the respondents’ application primarily concerned the interpretation of a series of contracts regarding the loan and proceeded summarily. On appeal, the appellant argues that the issues were not suitable for summary determination and that the judge erred in her interpretation of the agreements.
Held: Appeal dismissed. The judge was aware of the substance of the appellant’s counterclaims along with other pending issues and decided to proceeded summarily on narrow issues concerning the interpretation of the contracts. The judge’s discretion to do so is owed deference. The appellant established no extricable error of law in the judge’s interpretation of the relevant agreements, and her conclusion, again, is owed deference.
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R. v. Ordway,
2024 BCCA 154
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2024/04/25
Court of Appeal
The appellant appeals his sentence of 18-months’ imprisonment, to be followed by 18 months of probation. He was convicted by a jury on one count of assault causing bodily harm. He submits the judge erred by: (1) erroneously finding as an aggravating factor that he knew the complainant was confined when he assaulted her; (2) erroneously making independent findings of fact to the effect that he aided and abetted in the complainant’s unlawful confinement; (3) imposing an abstention from alcohol and illicit drugs in the probation order; and, in light of these errors (4) imposing a demonstrably unfit sentence.
Held: Application to extend time to seek leave to appeal the sentence is granted, as is leave, but the appeal is dismissed. The judge appropriately applied the Ferguson factors in her fact-finding analysis to resolve ambiguities in the jury’s findings. In the circumstances of this offence, it was open to the judge to find the abstention clause would further the appellant’s rehabilitation. The judge did not make any reviewable errors nor was the sentence imposed demonstrably unfit.
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Posted Monday, April 22, 2024:
Prokam Enterprises Ltd. v. British Columbia Farm Industry Review Board,
2024 BCCA 151
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2024/04/22
Court of Appeal
Appeal from an order dismissing the appellant’s application for judicial review of a decision of the British Columbia Farm Industry Review Board (the “Board”). The Board implemented a review process into whether allegations made by the appellant Prokam Enterprise Inc., a potato producer, in a notice of civil claim could be substantiated and if not, what resulting orders should flow from that finding. The appellant argues that the review process was procedurally unfair because the Board’s finding that the appellant is a “rogue producer”; and that the appellant’s allegations as set out in the notice of civil claim had “no evidentiary foundation” were beyond the proper scope of the review.
Held: Appeal dismissed. While the review process attracted a duty of procedural fairness, there was no breach of that duty. In effect, the appellant takes issue with the language used by the Board in support of its conclusion rather than the result. Moreover, the Board’s observations about the lack of an evidentiary foundation for Prokam’s allegations did not amount to a finding of misconduct on the part of Prokam. Finally, any consequences flowing from the Board’s findings will only be decided after a further phase of the review that has not yet occurred.
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R. v. Thomas,
2024 BCCA 150
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2024/04/22
Court of Appeal
The appellant challenges his convictions of two counts of sexual assault. He submits that the trial judge erred by misapprehending his evidence on certain peripheral matters, and applying uneven scrutiny to his evidence and the evidence of the complainant. He further argues that the judge erred in her application of the law of sexual assault. Held: Appeal dismissed. The trial judge did not make any palpable and overriding errors in her assessment of the evidence. The judge correctly stated and applied the principles in relation to the actus reus and mens rea for sexual assault.
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