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COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. McCotter, 2014 BCCA 27 Date: 20140127 Docket: CA035120 Between: Regina Respondent And William James McCotter Appellant Restriction on Publication: A publication ban has been imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify undercover officers. This publication ban applies indefinitely unless otherwise ordered. Corrected Judgment: The publication ban was corrected on February 17, 2014 to read “that could identify undercover officers”. Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Hall The Honourable Mr. Justice Groberman On appeal from:  An order of the Supreme Court of British Columbia, dated June 22, 2006 (conviction) and May 16, 2007 (sentence) ( R. v. McCotter , 2007 BCSC 1646, New Westminster Docket X065536). The Appellant appeared in person Counsel for the Respondent: E. Campbell Place and Date of Hearing: Vancouver, British Columbia January 8, 2014 Place and Date of Judgment: Vancouver, British Columbia January 8, 2014 Place and Date of Reasons: Vancouver, British Columbia January 27, 2014 Written Reasons by: The Honourable Mr. Justice Hall Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Groberman Summary: Sentence appeal to reduce the parole eligibility period for two counts of second degree murder from 20 years to something nearer 15 years dismissed.  After some premeditation, the appellant beat his ex-girlfriend and her partner to death.  Appellant had not desisted from the violent attack even though urged to cease by other persons present at the scene.  Twenty-year parole ineligibility order is consistent with similar cases involving multiple homicides and the murder of a former partner. Reasons for Judgment of the Honourable Mr. Justice Hall: [1] On January 8, 2014, this Court dismissed the sentence appeal of the appellant with reasons to be delivered later.  These are the reasons. [2] A jury convicted the appellant of two counts of second degree murder on June 22, 2006.  The crimes occurred on December 2, 2001 near Langley, B.C.  At trial, counsel for the appellant sought to advance a plea of not criminally responsible by reason of a mental disorder, but the jury did not accept this.  This Court dismissed an appeal from conviction on February 3, 2012.  The appellant suggested he may seek to appeal to the Supreme Court of Canada but has not yet taken steps to do so. [3] The appellant murdered a former girlfriend and her new partner.  There was some delay between conviction and that aspect of sentencing concerning parole eligibility.  The delay was said to be occasioned by a change of counsel and some injuries suffered by the appellant.  He had been sentenced to the requisite statutory penalty of life imprisonment immediately after conviction.  On May 16, 2007, an order was made by the sentencing judge, McKinnon J., that the appropriate period of parole ineligibility ought to be fixed at 20 years.  His reasons are indexed at 2007 BCSC 1646. [4] The crimes occurred within a few weeks after a probation order expired that required the appellant to not have contact with his former girlfriend.  There was evidence in the record that the thought processes of the appellant were not entirely normal, but the sentencing judge at para. 10 of his reasons, supra , stated that the evidence, in his view, “was a long way short of establishing a mental incapacity capable of excusing culpability”.  The judge also observed at para. 8 that the appellant had not approved of his trial counsel advancing an incapacity defence but counsel “attempted to walk a very fine line between seeking a manslaughter conviction and having him declared not criminally responsible”. [5] Concerning the crimes themselves, I note the comments of the judge: [14]      Although I have been on this court more than 20 years and have seen much violence inflicted upon victims, I am hard pressed to remember a more violent, vicious attack. [15]      The victims were essentially defenceless from the start.  Both had relatively high blood alcohol readings which, particularly in the case of Mr. Heasman, rendered them quite helpless. [16]      Mr. McCotter proceeded to inflict a vicious beating upon both victims even after they were down and out.  When bystanders tried to intervene, he grabbed a two-by-four; threatened would-be rescuers, and then proceeded to pound the victims mercilessly with it causing such trauma that both died as a result. [6] It would be fair to say that the crimes bore the hallmarks of the too frequent obsessive conduct of those who cannot accept disengagement from an intimate relationship.  The appellant had expressed an intention to “teach a lesson” to his former partner.  He had also purchased steel-toed boots to assist in the assault, which included kicking and beatings with a two-by-four. [7] At the time of that aspect of sentencing concerning parole eligibility, it was common ground that, in this class of case, the period of parole ineligibility would be at a minimum 15 years.  The judge expressed the view that the case was “close to one of first degree murder,” conviction for which results in the fixing of parole ineligibility at 25 years.  The judge also found the appellant suffered psychological problems which, if not treated, would result in his continuing to be very dangerous.  He had a history of not cooperating with medical professionals in the past.  Given his history, the prognosis for improvement could not be otherwise than bleak. [8] The appellant appeared to suggest that parole eligibility ought to have been fixed at a lower level, referring to cases where an ineligibility period of 15 to 17 years had been fixed.  He also made reference to the facts of another case, which must be the case of R. v. Machell , 2003 BCCA 688, 190 B.C.A.C. 294.  There an individual had travelled from Alberta to Summerland, B.C. where he shot to death his estranged wife and her mother.  Although charged with first degree murder, a plea arrangement was worked out whereby a plea was entered to two counts of second degree murder and a joint submission of 20 years parole ineligibility.  That appellant sought unsuccessfully to withdraw the pleas and then proceeded with conviction and sentence appeals which this Court dismissed. [9] The gravamen of the appellant’s submission about the Machell case seems to be that the facts there were more aggravated because of the allegedly more premeditated actions of Mr. Machell, who had travelled from Alberta to effect his nefarious purpose. [10] The appellant also made reference to R. v. Bertrand (1997), 91 B.C.A.C. 298, 148 W.A.C. 298, where this Court upheld an order fixing parole ineligibility at 20 years.  The accused had stabbed to death his wife and her parents while family law proceedings were ongoing.  The appellant seemed to suggest in his submission about the relevance of this case that killing three people should be considered more serious than killing two people.  I suppose that may be an arguable proposition but fixing a period of parole eligibility is always going to require consideration of the particular circumstances of the case and the situation of the offender.  Any multiple homicide is a most serious crime. [11] In her submissions, Crown counsel referred to certain principles about parole ineligibility recently enunciated by this Court in R. v. Bennight , 2012 BCCA 461 at para. 18, 560 W.A.C. 250: -     There are two broad groupings of cases where parole ineligibility is extended beyond 10 years: parole ineligibility periods from 12 to 15 years and parole ineligibility periods from 15 to 20 years. The latter group of cases relates to cases at the highest order of moral culpability or dangerousness: Cerra, at para. 26 (per Donald J.A.). -     The possibility of a parole ineligibility period greater than 20 years remains in exceptional circumstances: Cerra, at para. 36 (per Ryan J.A.). -     Orders extending the period of parole ineligibility are highly discretionary and are part of the sentence pursuant to s. 673 of the Criminal Code. Such orders are therefore appealed pursuant to s. 687(1). An [appellate] court should only interfere with a trial judge’s sentencing order if the court is convinced it is not fit or it is clearly unreasonable: Shropshire, at paras. 47-48. [12] Crown counsel submitted the period fixed by McKinnon J. was not unfit based on these considerations: -     There were two victims; -     The offences arose from an intimate relationship; -     There was considerable planning and deliberation; -     The appellant stated his intention to punish Ms. Anderson over a month before the murders; -     The appellant prepared for an assault by purchasing a jock strap and protector cup and wearing those as well as steel-toed boots; -     The appellant lay in wait while Ms. Anderson and Mr. Heasman consumed alcohol, making them more vulnerable to attack; -     The appellant viciously assaulted both victims, not stopping when they were motionless on the ground; -     Despite being interrupted, the appellant returned to his motionless victims and continued to assault them with a two-by-four piece of wood; and -     The appellant stopped his attack only when two or three bystanders intervened. [13] Crown counsel also referred to a passage from the Bennight case at para. 27 where it was said that dangerousness by reason of an abnormal mental condition of the offender was relevant in fixing a period of parole ineligibility. [14] At the proceedings before McKinnon J., Crown counsel sought a period of parole ineligibility of 18 to 20 years but “closer to the 20 year range”.  Counsel for the appellant submitted that a period in the range of 15 years would be appropriate.  The judge found 20 years to be the appropriate period of parole ineligibility.  His reasons included considerations of a measure of premeditation, the extreme violence of the offences, and the circumstance that the appellant, by reason of his persistent psychological difficulties, constituted a continuing threat to public safety. [15] The Supreme Court of Canada has made it clear that reasonable deference should be afforded to decisions of trial judges about sentence: R. v. Shropshire , [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657; R. v. Nasogaluak , 2010 SCC 6, [2010] 1 S.C.R. 206. [16] In the case of R. v. Hoang , 2002 BCCA 430, 167 C.C.C. (3d) 218, a case referred to by Donald J.A. in R. v. Cerra , 2004 BCCA 594, 192 C.C.C. (3d) 78, Saunders J.A. noted that cases where parole ineligibility periods in the order of 20 years were imposed included multiple death cases. Cerra was a case of a single homicide, inflicted by a protracted beating.  The cases of Machell , Bertrand, and R. v. Kianipour , 2003 BCCA 703, 181 C.C.C. (3d) 391, were all cases of multiple homicides that resulted in orders of parole ineligibility of 20 years.  These decisions were sustained by this Court. Machell involved the killing of two people, whereas the cases of Bertrand and Kianipour involved triple homicides.  The latter two cases were near identical fact patterns in that a partner and parents-in-law were murdered in both instances. [17] In the recent case of R. v. Purdy , 2012 BCCA 272, 291 C.C.C. (3d) 309, a man who killed his estranged wife by inflicting several stab wounds was ordered to be ineligible for parole for 19 years.  On appeal, this decision was sustained.  In the course of her reasons, MacKenzie J.A. noted it would be a proper consideration in fixing a period of parole ineligibility to take into account prospects for rehabilitation.  I consider that in the instant case, this appellant has demonstrated poor prospects for rehabilitation. [18] In the present case, the sentence imposed concerning parole eligibility is consistent with those imposed for multiple homicides in Machell , Bertrand, and Kianipour .  It is the same as that imposed in Cerra , a case like the present of a vicious beating and exceeds by one year that imposed in the case of Purdy .  The similarity between Purdy (as well as Machell, Bertrand , and Kianipour ) and the present case is the murder of a former partner.  Having regard to those precedents, there can be no suggestion that the sentence imposed here is not properly within the range of sentences imposed in similar cases.  I consider the order of McKinnon J. was a fit disposition. [19] Because of these considerations set forth above, it was appropriate to dismiss this sentence appeal. “The Honourable Mr. Justice Hall” I agree: “The Honourable Madam Justice Newbury” I agree: “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Mapara v. Ferndale Institution (Warden), 2014 BCCA 49 Date: 20140128 Docket: CA040831 Between: Sameer Mapara Appellant (Petitioner) And Bobbi Sandhu, Warden of Ferndale Institution Barb van Vugt, Warden of Mission Institution Respondents (Respondents) Before: The Honourable Madam Justice Garson The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Willcock On appeal from: Supreme Court of British Columbia, February 14, 2013 ( Mapara v. Sandhu , Vancouver Registry No. 26236) Oral Reasons for Judgment Counsel for the Appellant: J. Martin Peters Counsel for the Respondent: L.Y. Bantourakis Place and Date of Hearing: Vancouver, British Columbia January 28, 2014 Place and Date of Judgment: Vancouver, British Columbia January 28, 2014 Summary: The appellant, Sameer Mapara, is a federally incarcerated inmate who was involuntarily transferred from minimum to medium security. He subsequently brought a petition for an order in the nature of habeas corpus with certiorari in aid. Mr. Mapara appealed from the dismissal of that petition, but after the petition was dismissed, and before the appeal was heard, he was transferred back to minimum security. Held: Appeal dismissed. First, the appeal was moot. Secondly, all the factors, as set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R 342, militated against the court exercising its discretion to hear the appeal. [1] A. MACKENZIE J.A. : Sameer Mapara is a federally incarcerated inmate who was involuntarily transferred on July 5, 2012 from minimum to medium security. In response, Mr. Mapara brought a petition for an order in the nature of habeas corpus with certiorari in aid. The petition was dismissed on February 14, 2013, and Mr. Mapara appeals from that order. [2] I agree with the respondents, Bobbi Sandhu and Barb Van Vugt, the respective Wardens of Ferndale and Mission Institutions, that this appeal is now moot because Mr. Mapara was returned to minimum security on November 25, 2013, on the basis of good behaviour. Thus, the factual foundation for his habeas corpus application no longer exists and the relief he seeks on appeal has become academic. [3] Furthermore, I am not persuaded we should exercise our discretion to hear the appeal, which I would dismiss as moot. Background [4] Following his conviction for first degree murder, Mr. Mapara was sentenced to life in prison with no eligibility for parole for 25 years. He was serving his sentence at Ferndale Institution, a facility for offenders classified as a minimum security risk. On June 1, 2012, Mr. Mapara was transferred to Mission Institution, a medium security facility, and placed in segregation. This transfer is not the subject of this appeal. [5] On June 20, Mr. Mapara was returned to Ferndale pending a full review of his status. On July 5, 2012, Mr. Mapara was involuntarily transferred on an emergency basis to Mission Institution. [6] Mr. Mapara was provided with documents setting out the basis for his transfer, and exercised his right to provide a written rebuttal. On August 22, 2012, after considering Mr. Mapara’s rebuttal, the respondent Warden for Ferndale Institution provided written reasons approving the increase in Mr. Mapara’s security classification from “minimum” to “medium” and his involuntarily transfer to Mission Institution (the “Transfer Decision”). The provisions of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“ CCRA ”) and the Corrections and Conditional Release Regulations , S.O.R./92-620 relating to the system of classification and reclassification on which the placement of inmates into different levels of security is based, is described in Khela v. Mission Institution (Warden) , 2011 BCCA 450 at paras. 6 and 7. [7] The Transfer Decision was based on Mr. Mapara’s history, in particular, his conduct at Ferndale Institution where he was thought to have displayed a pattern of inappropriate behaviour. The correction authorities found he made misrepresentations regarding a fundraiser proposal and producing misleading documentation on an unknown charitable organization called the “365 Foundation”. The correction authorities learned Mr. Mapara and several members of his family were, or had been, directors. [8] In brief, an important feature of Mr. Mapara’s criminal offence history involves his questionable financial dealings. A psychological assessment by Dr. Ronald LaTorre of January 12, 2011 included this caution: “Any ‘grandiose’ financial dealings will require close supervision. This should be considered part of his offense ( sic ) cycle at this time.” [9] On December 13, 2012, Mr. Mapara filed an application for habeas corpus, challenging the Transfer Decision and seeking this relief: 1. An order in the nature of habeas corpus with certiorari in aid directing the respondent(s) to forthwith reinstate Mr. Mapara’s minimum security classification; and 2. An order directing the respondent(s) to return Mr. Mapara to the general inmate population of Ferndale Institution or be transferred to the general inmate population of Kwìkwèxwelhp Healing Village forthwith; 3. An order for costs. [10] On February 14, 2013, Mr. Justice Silverman dismissed Mr. Mapara’s habeas corpus application. [11] On April 24, 2013, Mr. Mapara filed this appeal. In his amended notice of appeal , filed September 4, 2013 , he asserts the judge erred in finding disclosure regarding the Transfer Decision was adequate and erred in finding that this decision was reasonable. [12] On May 22, 2013, Mr. Mapara applied to the correction authorities for a reduction in security classification and a voluntary transfer from Mission Institution to Ferndale Institution. [13] On October 11, 2013, the correction authorities completed an “Assessment for Decision” to address Mr. Mapara’s application. The Assessment for Decision recommended Mr. Mapara’s security classification be reduced to “minimum” and that he be voluntarily transferred back to Ferndale Institution. [14] On November 12, 2013, the respondent Warden of Mission Institution approved the reduction in Mr. Mapara’s security classification to minimum and his transfer to Ferndale Institution. Thus, on November 25, 2013, Mr. Mapara was physically transferred to Ferndale Institution. The mootness analysis [15] The leading case on mootness is Borowski v. Canada (Attorney General) , [1989] 1 S.C.R. 342 which established a two-step analysis for deciding whether an appeal ought to be dismissed on the grounds it is moot: a.         has the required tangible and concrete dispute disappeared and the issues become academic; and if so b.         should the court exercise its discretion to hear the case in any event? (See also Lising v. Kent Institution, 2008 BCCA 10 at para. 14). [16] The doctrine of mootness is part of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision will not resolve some controversy which affects or may affect the rights of the parties. Generally, once the court has determined the matter is moot, it ought not to hear the appeal: Borowski (at 353). [17] Mr. Mapara argues his appeal is not moot, stating: 8. Contrary to the assertion of the [respondents] in paragraph 26 of their submissions, Mr. Mapara has not attempted to resurrect a moot appeal by changing the relief he has sought. Mr. Mapara specifically raised before the Chambers Judge the lack of reasonableness of his Transfer Decision. Mr. Mapara has appealed to this Court, inter alia , this same issue. This substratum of the litigation has not disappeared. Pursuant to the first stage of the Borowski test, the decision of this Court with regards to the reasonableness of the Transfer Decision “will have the effect of resolving a controversy which affects or may affect the rights of the parties” [Citations omitted] [18] Of note, he submits, “This Court found in Khela that in determining lawfulness it is entitled to consider whether the deprivation of liberty was reasonable. As noted by Mr. Justice Chiasson in Khela an unreasonable decision is not lawful.” He seeks “… a decision overturning Mr. Justice Silverman’s decision on the basis that the Transfer Decision was unreasonable and, accordingly, the Respondents have not met their onus to show that Mr. Mapara’s deprivation of liberty was lawful”. [19] I do not agree with Mr. Mapara that his appeal is not moot. As this Court observed in Lising (at para. 17) , “ The writ of habeas corpus is a prerogative writ at common law, the purpose of which is to allow the timely examination of the legality of imprisonment.” Here, as in Lising , the deprivation of liberty which was the subject matter of the habeas corpus application was Mr. Mapara’s increase in security classification and transfer up to a higher security prison. [20] In similar circumstances, the Court in Lising had no difficulty in determining the appellant’s transfer back to a lower security correctional facility, following his formal request through correction authorities and before the hearing of the appeal, made his grounds of appeal, and the relief sought, academic. The Court concluded, “In other words, the raison d’etre of the habeas corpus application no longer exists and the appeal from the order dismissing the application is moot” (Para. 18). [21] Similarly, I conclude Mr. Mapara’s appeal is moot. It is academic because the factual foundation for the habeas corpus application no longer exists and the relief sought on appeal has become academic. Mr. Mapara has already obtained the relief sought in his notice of petition of a reduction in his security classification to “minimum”, and a return to a minimum security institution. [22] On appeal, Mr. Mapara frames the relief he seeks, in part, as an order, “quashing the decision of the Warden of Ferndale to involuntary ( sic ) transfer Mr. Mapara on the basis that it was unreasonable and not in compliance with the CCRA and the CCRR Regulations ( sic)” ; however, such an order cannot be made on habeas corpus for which the available remedy is release. As this Court said in Khela: [86] The object of an order for release in the context of a case such as this is to return the prisoner to the status quo prior to the decision that deprived him or her of liberty. In my view, the appropriate order in this case would have been to order that Mr. Khela be returned to a medium security institution. This is consonant with the order made by the Supreme Court of Canada in [ May v. Ferndale Institution , 2005 SCC 82]. [88] In addition, the order that the transfer decision is null and void is an order quashing the decision. That form of relief is available only in the Federal Court. The correct order in this case would have been to release Mr. Khela from detention in Kent Institution and to return him to incarceration in a medium security institution to be dealt with there as the prison authorities considered appropriate. Thus, I agree with the respondents the request for an order quashing the Transfer Decision cannot provide a basis on which to argue the appeal is not moot. I conclude it is clearly moot. Should the appeals be heard? [23] In deciding whether to exercise its judicial discretion at the second stage of the Borowski test, the court considers, in a non-mechanical way, the extent to which each of the following three basic rationalia for enforcement of the doctrine apply ( Borowski at 358 - 363): a.         the requirement of an adversarial context, including the role of adverse collateral legal consequences; b.         the concern for judicial economy; and c.         the need for the court to demonstrate awareness of its proper law making function. No adversarial context [24] In Borowski , Sopinka J., for the Court, explained the requirement of an adversarial context may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. He said, “For example, although the litigant bringing the proceeding may no longer have a direct interest in the outcome, there may be collateral consequences of the outcome that will provide the necessary adversarial context” (359). [25] Mr. Mapara submits that collateral consequences exist in this case. He argues, “This Court’s ruling on the reasonableness of the Warden of Ferndale’s decision to transfer, the fact of the transfer and the substance of the reasons to transfer will have a long term impact upon [me]. These are the collateral consequences that warrant this appeal proceeding.” [26] Mr. Mapara adds that all transfers are entered by the Correctional Service of Canada (the “CSC”) into a system. He submits the status of these recordings is shared by CSC for all conditional release decisions and are included in Parole Eligibility Reports. Therefore, Mr. Mapara submits a decision by this Court on the reasonableness of the Transfer Decision will impact his future applications, especially for parole. [27] I do not find Mr. Mapara’s arguments to be persuasive. [28] There are no intervenors in this case and no collateral consequences for Mr. Mapara that go beyond the realm of speculation should this appeal not be determined. Because this is a habeas corpus appeal, the only concrete impact could have been on the deprivation of Mr. Mapara’s liberty by transfer to a medium security institution. However, that transfer has been superseded by subsequent events. [29] Mr. Mapara’s assertion that a decision in this appeal will affect future correctional decisions involving him, or his prospect of future parole applications, is without a proper evidentiary basis. [30] Any effect on Mr. Mapara’s parole applications or other correctional decisions, and the corresponding considerations involved in those decisions, have no foundation at this point. It is common ground Mr. Mapara will only be eligible for day parole in 2024 and for full parole in 2027. As the respondents say, Mr. Mapara’s rapid return to minimum security based on good behaviour could figure just as, if not more prominently, than his transfer to medium security. [31] Significantly, as this Court said in Lising , the existence of the Transfer Decision will not have an impact on parole or other applications. Instead, it is the substance of the conduct on which the Transfer Decision was based that may affect parole. The conduct, and the records maintained by the CSC with respect to Mr. Mapara’s conduct, will not be affected by a decision on this appeal. At most, such a decision would be a finding as to the adequacy of disclosure of the information and reports on which the Transfer Decision was based. [32] As the respondents note, habeas corpus applications are concerned solely with release. I agree with their statement that, “Mr. Mapara’s remedy for allegedly inaccurate allegations and/or records of allegations is not habeas corpus , but instead to request under the [ CCRA ] that the records be corrected, and to seek judicial review.” [33] Overall, I agree with the respondents that this appeal lacks an adversarial context to warrant this Court hearing a moot appeal. As this Court concluded in Lising : [31] In summary, the appeal from the order dismissing the appellant’s habeas corpus application is academic for there is no longer a live controversy between the parties. Contrary to the submissions of the appellant, this is not a case in which there are collateral consequences to the appellant riding on the outcome of the appeal. Judicial economy [34] In Borowski (at 360 - 362) Sopinka J. also explained the second broad rationale for the mootness doctrine: concern for judicial economy. He said this concern will be answered if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it. The concern for judicial economy may be answered if: a) the court’s decision will have some practical effect on the rights of the parties even without the effect of determining the controversy that gave rise to the action; b) the appeal raises an issue of a recurring nature but of necessarily brief duration that might otherwise evade review; or c) the appeal raises an issue of public importance where a resolution is in the public interest. [35] Mr. Mapara argues this appeal involves special circumstances and raises issues of public interest to warrant this Court hearing the appeal. As to special circumstances, he submits, “The expense of scarce judicial resources is warranted as a decision on the reasonableness of the Warden of Ferndale’s decision will affect Mr. Mapara’s rights throughout his life sentence.” Again, there is insufficient support for this statement. [36] Regarding public interest, Mr. Mapara contends this case is “one of many in which the Respondents have orchestrated mootness in order to avoid scrutiny by this Court”. He submits this “practice” by the respondents is short lived and difficult to review, and therefore justifies a determination on appeal. I find no support for Mr. Mapara’s broad allegation of such a practice. The example he provides is based on hearsay, does not indicate a pattern, and fails to establish such an “orchestrated mootness”. [37] Mr. Mapara’s arguments do not address the concern for judicial economy. The outcome of this appeal would have no practical effect on Mr. Mapara because the deprivation of liberty arising from his transfer to a medium security institution is no longer in effect. As the respondents point out, the entire judicial proceeding has been directed to compelling a transfer back to minimum security at Ferndale Institution, but that has now occurred and this Court cannot make any meaningful order: Webber v. Anmore (Village), 2012 BCCA 390 at paras. 20 - 21. [38] Nor is the issue raised necessarily a matter of short duration so as to inevitably become moot in every case. Instead, as in Lising, this appeal was made moot by circumstances specific to the appellant. His habeas corpus application could have been heard on short notice and the appeal expedited. But Mr. Mapara did not even make his habeas corpus application until December 2012, months after the authorities made the Transfer Decision. [39] In addition, Mr. Mapara’s own successful application to transfer back to Ferndale was peculiar to him. Other inmates would not inevitably make such an application, nor is there a sufficient foundation in the evidence that correctional institutions routinely engage in a practice of transfers back to reduced security while a habeas corpus appeal is outstanding. [40] Finally, the public interest does not require this appeal be heard because the Supreme Court of Canada, on October 16, 2013, heard and reserved its decision in Khela to appeal to SCC granted, [2012] S.C.C.A. No. 14. Its decision will address both issues Mr. Mapara raises on this appeal: (1) on an application for habeas corpus , what is the scope of review by a provincial superior court of a CSC decision that adversely affects an inmate’s liberty, and does it differ from that of the Federal Court on an application for judicial review; and (2) On an application for habeas corpus , what is the scope of review by a provincial superior court of the sufficiency of CSC disclosure to an inmate, and does it differ from that of the Federal Court on an application for judicial review? In these circumstances, there is no utility in this Court making a pronouncement on the state of the law on those very issues. The Court’s adjudicative function [41] Finally, I am sensitive to a court’s role as the adjudicative, and not the legislative, branch of government. This Court concluded in Lising (at para. 28), quoting from Borowski , “In other words, the court ought not to supplant the legislature’s primary role as a law-making body and ‘[p]ronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding in the role of the legislative branch’” (at 362). [42] In summary, I do not find that any of the factors militating in favour of exercising our discretion to hear this moot appeal are present in this case. Disposition [43] In the result, I would dismiss the appeal as moot. [44] GARSON J.A. : I agree. [45] WILLCOCK J.A. : I agree. [46] GARSON J.A. : The application to quash the appeal is granted and the appeal is dismissed. “The Honourable Madam Justice A. MacKenzie”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Henry v. Canada (Attorney General), 2014 BCCA 30 Date: 20140128 Docket: CA038128 Between: Rose Henry, Clyde Wright and Helen Eddlestone Appellants (Plaintiffs) And The Attorney General of Canada and The Chief Electoral Officer of Canada Respondents (Defendants) And British Columbia Civil Liberties Association Intervenor Before: The Honourable Madam Justice Ryan The Honourable Madam Justice D. Smith The Honourable Mr. Justice Hinkson On Appeal from an Order of the Supreme Court of British Columbia, dated May 3, 2010 ( Henry v. Canada (Attorney General) , 2010 BCSC 610, Vancouver Registry, Docket Number S080662). Counsel for the Appellants: B.B. Olthuis M.S. Oulton S.L. McHugh Counsel for The Attorney General of Canada: H.J. Wruck, Q.C. A.J. Semple Counsel for The Chief Electoral Officer: M. Chenier J. Parisien Counsel for The British Columbia Civil Liberties Association: M.P. Good D.W. Burnett G.J. White Place and Date of Hearing: Vancouver, British Columbia February 4 & 5, 2013 Place and Date of Judgment: Vancouver, British Columbia January 28, 2014 Written Reasons by: The Honourable Madam Justice Ryan Concurred in by: The Honourable Madam Justice D. Smith The Honourable Mr. Justice Hinkson Summary: This appeal concerns the voter identification requirements in the Canada Elections Act pertaining to personal identification and residence.  The appellants appeal the order of the trial judge dismissing their action for a declaration under s. 52 of the Charter that these sections are of no force and effect.  The trial judge found that the voter identification requirements did violate s. 3 of the Charter but were demonstrably justified under s. 1.  The appellants argue the trial judge erred in law or in principle in her conclusions with respect to both s. 1 and s. 3. Held: appeal dismissed.  The voter identification provisions are a facial breach of s. 3; the appellants did not establish that the trial judge erred in her understanding or application of s. 3.  The trial judge did not err in her conclusion that there were no alternative, less drastic means of achieving the legislative goals nor in her conclusion that the salutary effects of the provisions outweighed the deleterious effects. Reasons for Judgment of the Honourable Madam Justice Ryan: Introduction [1] Section 3 of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 , (the “ Charter ”) provides: 3.         Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. [2] The appellants, Rose Henry, Clyde Wright, and Helen Eddlestone, allege that amendments made in 2007 to the Canada Elections Act , S.C. 2000, c. 9 (the “ Canada Elections Act” or the “ Act ”) pertaining to voter identification requirements with respect to personal identity and residence infringe their rights under s. 3 of the Charter .  They appeal the May 3, 2010 order of Madam Justice L. Smith dismissing their action for a declaration under s. 52 of the Charter that certain sections of the Act are, as a consequence, of no force and effect. [3] Justice Smith found that the voter identification requirements did violate s. 3 of the Charter , but were demonstrably justified under s. 1.  The trial decision is indexed as Henry v. Canada (Attorney General) and may be found at 2010 BCSC 610. [4] For the reasons that follow, I agree with the conclusion of Justice Smith.  As a result, this appeal must be dismissed. The Impugned Sections [5] The challenged sections of the Canada Elections Act collectively put into place voter identification requirements relating to voting on election day (“polling day”), registering to vote on polling day and voting in advanced polls.  The key provision at issue is s. 148.1(1) which refuses the vote to those unable to prove their identity and residence in accordance with the new provisions of the Act .  It provides: 148.1(1)  An elector who fails to prove his or her identity and residence in accordance with subsection 143(2) or (3) or to take an oath otherwise required by this Act shall not receive a ballot or be allowed to vote. [6] I will set out subsections (2) and (3) of s. 143, in full, later in these reasons.  Briefly, they require that an elector show one piece of government-issued identification with a photograph, name and address, or, two pieces of identification, each of which establishes the elector’s name and at least one of establishes his or her address.  An elector may also establish identity and address by taking an oath and being vouched for by another qualified elector.  Prior to the amendments an elector was not required to show identification to vote.  He or she needed only to state his or her name and address to the poll clerk who would confirm the information on the list of electors and issue a ballot.  If there was doubt about the elector’s identity, the elector could be required to swear an oath. [7] The appellants do not take issue with Parliament’s prerogative to require voters to prove identity and residence.  They object to the way in which the legislation requires that proof.  The appellants’ position is that the legislation unconstitutionally disenfranchises persons who would otherwise be entitled to vote.  All of the sections of the Act challenged by the appellants may be found in Appendix A of these reasons. The Canadian Electoral System [8] As set out above, s. 3 of the Charter gives each citizen the right to vote “in an election of members of the House of Commons or of a legislative assembly”.  This right reflects Canada’s constitutional character as a Parliamentary democracy.  The issues raised by this appeal can only be understood in that context. [9] Canada’s electoral system is known as “first-past-the-post” or “the single member plurality system”.  In this system, which has been essentially unchanged since Confederation, one Member of Parliament is elected in each defined electoral district to represent the residents in that riding in Parliament.  As a result, Canadians do not have the right to vote at large but rather the right to vote in a specific electoral district, choosing among various candidates who stand for election as the Member of Parliament for that riding. [10] The single-member plurality system, by necessary implication, places the notion of “residence” at the centre of our electoral system.  The definition of “residence” in the present Act is broad.  It has not always been so.  As Dan McDougal, Assistant Secretary to the Cabinet, described in his affidavit of 18 March 2009: 16. Previous residency rules were stricter.  For instance, the Dominion Elections Act, 1920 required voters to have been resident in Canada for 12 months and resident in the electoral district for at least two months before the issue of the writ (s. 29(1)(c)) to be qualified to vote.  While this rule met policy objectives such as indicating a connection between the elector and the district, it also disqualified electors who may have recently moved.  This residency requirement was repealed in 1960 at the federal level (S.C. 1960, c. 39 s. 115. 17.  There have developed significant legislative and operational efforts to assist in determining the residence of electors without permanent addresses.  The Act has been amended to allow temporary residences, shelters, hostels, and similar institutions that provide services to those who have no other residence to be deemed as a residence for the purpose of a federal election [11] Section 6 now provides: 6. Subject to this Act , every person who is qualified as an elector [earlier defined in s. 3 as a Canadian citizen, 18 years of age or older on polling day] is entitled to have his or her name included in the list of electors for the polling division in which he or she is ordinarily resident and to vote at the polling station for that polling division.  [Emphasis added.] [12] Section 8 of the Act sets out comprehensive rules to establish an elector’s residence.  It ensures that every person eligible to vote has a place of ordinary residence, can be registered to vote at that address and can vote at the polling station established for the polling division where the address is located.  It provides: (1) The place of ordinary residence of a person is the place that has always been, or that has been adopted as, his or her dwelling place, and to which the person intends to return when away from it. (2)        A person can have only one place of ordinary residence and it cannot be lost until another is gained. (3)        Temporary absence from a place of ordinary residence does not cause a loss or change of place of ordinary residence. (4)        If a person usually sleeps in one place and has their meals or is employed in another place, their place of ordinary residence is where they sleep. (5)        Temporary residential quarters are considered to be a person’s place of ordinary residence only if the person has no other place that they consider to be their residence. (6)        A shelter, hostel or similar institution that provides food, lodging or other social services to a person who has no dwelling place is that person’s place of ordinary residence. [13] Further, if the rules in s. 8 of the Act are not sufficient to determine a place of ordinary residence for the elector, s. 9 allows an election officer to determine ordinary residence by reference to “all the facts of the case.” [14] While all Canadians are qualified to vote, they are not entitled to do so unless their name is included on the list of electors for the polling division in which the elector is ordinarily resident (s. 149 of the Act ). The Chief Electoral Officer (the “CEO”) and staff prepare the list of electors. [1] [15] As part of his legislative mandate, the CEO maintains the Register of Electors which is updated from time to time and during an election period (ss. 44 – 55 of the Act ).  It is from the Register of Electors and by other methods, such as door-to-door canvassing, that the CEO, aided by other electoral officers, prepares a “preliminary list of electors”, a revised “preliminary list of electors” and finally the “list of electors” used at the polling stations on polling day (ss. 93 – 107 of the Act ). [16] This appeal is concerned with new voter identification requirements to vote or register to vote on polling day or at an advanced poll.  It is not concerned with the way the list of electors is drawn up prior to the date of the election. Background to the Voter Identification Amendments [17] Section 535 of the Canada Elections Act requires that the CEO submit a report to the House of Commons setting out any amendments that are considered desirable for the better administration of the Act .  The CEO filed a report in September of 2005 after the 2004 election but, because of an intervening general election in 2006, the House of Commons Standing Committee on Procedure and House Affairs did not consider it until the early fall of 2006.  It was during the course of the hearings of the Committee that members raised the issue of voter fraud.  In its tabled report, entitled “ Improving the Integrity of the Electoral Process: Recommendations for a Legislative Change” the Committee expressed its view that electoral fraud, and the means for reducing the potential for such fraud, were issues that had to be addressed to preserve the integrity of the electoral process.  As noted by the trial judge, the Committee wrote at pp. 25 – 27 of its report: Many Canadians have expressed concern about the potential for fraud and misrepresentation in voting.  Members of the Committee share this concern.  While we have no means of knowing how widespread this problem is, the fact that it exists undermines the integrity of the electoral process. ... At present, there is no requirement that voters show any identification before being able to vote, so long as their names are on the list.  In our society, most important activities require that an individual be able to furnish some form of proper identification, often with a photograph.  In the case of voting, we do not believe that it would be unreasonable to impose a similar requirement.  Moreover, it would bring home to voters the seriousness and public importance of what they are about to do: exercise a valued and fundamental democratic right. ... Traditionally, Canada has tried to make voting as easy as possible, but if confidence in the system is undermined, it becomes necessary to make changes.  Obviously, it is not our intention to impose any measures that would discourage voting, nor do we want to make voting more difficult than necessary.  The credibility and legitimacy of the system, however, require that procedures be adopted to ensure that only those persons who are entitled to vote do so, and that they are who they say they are.  This is essential to preserve the integrity in the electoral system. The Committee’s concerns about adequate proof of identification and residency, and proof of a person’s eligibility to vote were shared by the witnesses who appeared before the Committee and who made written submissions.  All of the parties currently represented in the House of Commons support a more effective method of ensuring voter identification, including photo identification, with alternatives available for persons who are unable to furnish the required identification.  The Committee wishes to make it clear that voter information cards should not entitle a person to cast a ballot.  This was never the intent of these cards, although, in practice, they appear to often be used for this purpose.  Given the problems with how they are delivered or disposed of, this must be clarified.  Members of the Committee are also disturbed that voters seem to be able to use magazine subscription labels and utility bills to establish their identity.  Although such documents may be useful in establishing one’s address, they are no substitute for adequate identification. [18] In addition to the concerns raised about the way in which voters had been permitted to identify themselves and their place of residence, the Committee also expressed unease about the high number of election day registrations that had taken place in the past election and noted that the CEO had agreed to conduct an audit in the riding of Trinity-Spadina in Toronto where approximately 10,000 voters had registered on polling day. [19] The Government tabled its response to the report in October of 2006: Government of Canada, Government Response to the Thirteenth Report of the Standing Committee on Procedure and House Affairs: “Improving the Integrity of the Electoral Process , ” 1st Session, 39th Parliament, 20 October 2006 .  It indicated that it would be introducing a bill which would implement most of the Committee’s recommendations.  It referred to some of the issues surrounding potential voter fraud in this way: Measures to reduce the potential for fraud or error that could result in voting by individuals not entitled to vote The bill will implement a number of Committee recommendations that will assist in reducing the potential for fraud or error that could impair the integrity of the voting system by allowing voting by individuals who are not entitled to vote.  The Committee heard evidence from political parties and Committee members of instances in which non-citizens have voted.  Concerns were also raised about voter information cards that are sent by Elections Canada being left in bundles in apartment buildings, leaving open the opportunity for individuals seeking to defraud the system to use these cards as evidence of their entitlement to vote. The nature of our voting system makes it difficult to conclusively determine how widespread voter fraud may be.  However, each instance that comes to light affects public confidence in the integrity of our electoral process and even a small degree of fraud can affect the results of a close election.  In addition, some individuals may vote out of a mistaken belief that they are eligible to do so rather than due to any malicious intent.  The proposed legislative reforms will go a significant way in preventing these opportunities from arising[.] [20] Bill C-31, containing the voter identification provisions, was passed and received Royal Assent on June 22, 2007.  A further bill was enacted to remedy an overlooked issue with respect to rural and northern areas that have areas in which there are no assigned residential addresses or mail delivery.  That bill, Bill C-18, received Royal Assent on December 14, 2007. Voter Identification Requirements Relevant to this Appeal [21] As noted earlier, prior to the 2007 amendments, an elector did not have to show personal identification to vote; he or she needed only to state his or her name and address to the poll clerk at his or her polling station, who would confirm this information on the list of electors and issue a ballot.  If poll staff had any doubts as to the elector’s identity, they could require the elector to swear an oath. [22] The amended Act now requires an elector to prove his or her identity and residence by prescribed means before he or she can cast a ballot in a federal election. [23] Section 143 now provides: 143.(1)  Each elector, on arriving at the polling station, shall give his or her name and address to the deputy returning officer and the poll clerk, and, on request, to a candidate or his or her representative. (2)        If the poll clerk determines that the elector’s name and address appear on the list of electors or that the elector is allowed to vote under section 146, 147, 148 or 149, then, subject to subsection (3), the elector shall provide to the deputy returning officer and the poll clerk the following proof of his or her identity and residence: ( a ) one piece of identification issued by a Canadian government, whether federal, provincial or local, or an agency of that government, that contains a photograph of the elector and his or her name and address; or ( b ) two pieces of identification authorized by the Chief Electoral Officer each of which establish the elector’s name and at least one of which establishes the elector’s address. (2.1)     For greater certainty, the Chief Electoral Officer may authorize as a piece of identification for the purposes of paragraph (2)( b ) any document, regardless of who issued it. (2.2)     For the purposes of paragraph (2)( b ), a document issued by the Government of Canada that certifies that a person is registered as an Indian under the Indian Act constitutes an authorized piece of identification. (3)        An elector may instead prove his or her identity and residence by taking the prescribed oath if he or she is accompanied by an elector whose name appears on the list of electors for the same polling division and who ( a ) provides to the deputy returning officer and the poll clerk the piece or pieces of identification referred to in paragraph (2)( a ) or ( b ), respectively; and ( b ) vouches for him or her on oath in the prescribed form. (3.1)     If the address contained in the piece or pieces of identification provided under subsection (2) or paragraph (3)(a) does not prove the elector’s residence but is consistent with information related to the elector that appears on the list of electors, the elector’s residence is deemed to have been proven. [2] (3.2)     Despite subsection (3.1), a deputy returning officer, poll clerk, candidate or candidate’s representative who has reasonable doubts concerning the residence of an elector referred to in that subsection may request that the elector take the prescribed oath, in which case his or her residence is deemed to have been proven only if he or she takes that oath. (4)        If the deputy returning officer is satisfied that an elector’s identity and residence have been proven in accordance with subsection (2) or (3), the elector’s name shall be crossed off the list and, subject to section 144, the elector shall be immediately allowed to vote. (5)        No elector shall vouch for more than one elector at an election. (6)        An elector who has been vouched for at an election may not vouch for another elector at that election. (7)        The Chief Electoral Officer shall publish each year, and within three days after the issue of a writ, in a manner that he or she considers appropriate, a notice setting out the types of identification that are authorized for the purpose of paragraph (2)( b ). The first annual notice shall be published no later than six months after the coming into force of this subsection. [24] Accordingly, s. 143(2) of the Act requires that to vote at the polls in an election, an elector must show one piece of government-issued identification with a photo, name, and address (e.g., a driver’s licence) or two pieces of identification, each of which establishes the elector’s name and at least one of which establishes his or her address.  If the address on the document proving identity does not contain a residential address, the elector will have proved residence if the address is “consistent” with the information contained on the list of electors.  Alternatively, under s. 143(3), an elector may prove his or her identity by both taking the prescribed oath and having another elector who lives in the same polling division vouch for him or her.  An elector may vouch for only one elector; an elector who has been vouched for may not vouch for another elector.  The same procedures apply both to an elector who is already on the list of electors and to an elector who seeks to register on polling day. [25] Section 143(2)(b) of the Act requires the CEO to issue and amend a list of approved identification which the CEO must publish annually and within three days of an election writ being issued.  The version in effect in April 2009 provided: Identity Cards Health Card Social Insurance Number Card Birth Certificate Driver’s Licence Canadian Passport Certificate of Indian Status Certificate of Canadian Citizenship or Citizenship Card Credit/Debit Card with elector name Canadian Forces Identity Card Veterans Affairs Canada Health Card Employee Card issued by employer Old Age Security Identification Card Public Transportation Card Student Identification Card Library Card Liquor Identification Card Canadian Blood Services/Héma-Québec Card Hospital Card Fishing Licence Wildlife Identification Card Hunting Licence Firearm Acquisition Card/Firearm Possession Card Outdoors Card and Licences Provincial/Territorial Identification Card Local Community Service Centre Card (CLSC) Original Documents (containing name and address) Credit Card Statement Bank Statement Utility Bill (residential telephone, cable television, public utilities commission, hydro, gas or water) Attestation of Residence issued by the responsible authority of an Indian Band or reserve Local Property Tax Assessment School, College or University Report Card or Transcript Residential Lease, Residential Mortgage Statement or Agreement Canada Child Tax Benefit Statement Income Tax Assessment Notice Insurance Policy Government Cheque or Government Cheque Stub with elector name Statement of Employment Insurance Benefits Paid (T4E) Canada Pension Plan Statement of Contributions/Québec Pension Plan Statement of Participation Statement of Old Age Security (T4A) or Statement of Canada Pension Plan Benefits (T4AP) Statement of Benefits from provincial workplace safety or insurance board Statement of Direct Deposit for provincial works or provincial disability support program Vehicle Ownership Vehicle Insurance Attestation of Residence issued by the responsible authorities (shelters, soup kitchens, student/senior residences, long-term care facilities ) Letter from public curator. [Emphasis added.] [26] As it stands, the CEO’s approved list of identification permits homeless and other vulnerable persons who possess no government-issued identification or other paper linking them to a place of residence, to prove their identity and place of ordinary residence through the use of attestations.  An official from a shelter, for example, can issue a letter of attestation stating that an individual uses the facility as a residence.  Poll staff then check the signature on this letter of attestation against a list of approved signatures. [27] In practice, the CEO publishes the list in a permanent fashion on-line, and makes changes to that list as needed from time to time. The Appellants’ Experience in the 2008 General Election [28] Rose Henry voted in the 2008 general election.  She is a member of the Snuneymuxw First Nation and is an anti-poverty activist who has at times been homeless.  In early 2007, she lived at a residential address in Victoria.  She was homeless for much of 2007 and 2008.  In late 2008, she returned to the residential address.  When she attended her polling station to vote she presented her driver’s licence and was able to vote.  She deposed it was “pure luck” she could vote in 2008 because she had happened to return to the residential address before the election.  In discovery, she testified that she also had other sufficient documents with her to vote, and that had it been required, other electors with her could have vouched for her. [29] Clyde Wright voted in the 2008 general election.  He is a member of the Gitanmaax Band of the Gitxsan First Nation.  He lives in the Downtown Eastside of Vancouver and has frequently been homeless.  It is hard for him to obtain identification; when he does obtain it, it is often stolen.  He proved his identity in the 2008 election by a letter of attestation from the Pivot Legal Society and a community services centre card.  However, he fears he will not be able to vote in future elections because he lacks a “residential address”. [30] Helen Eddlestone did not vote in the 2008 general election.  She was 86 years old and visually impaired, but she was mobile with assistance of a cane and lived on her own with some help from her daughter.  In the early morning of the 2008 general election, she brought her voter information card with her to the polling station, where staff informed her she needed to show identification.  The identification she had with her did not comply with the Act .  She suggested the polling staff ask if anyone present could vouch for her, as she could not see who was in the polling station.  The staff did not do this.  One staff member offered to make telephone enquiries.  Ms. Eddlestone waited but the staff member did not return.  She left the polling station after an hour without having voted.  She did in fact have sufficient identification in her home to vote, but she was unable to see these documents.  She also did not call her daughter for help or return to vote later in the day because her cat had a veterinary appointment and Ms. Eddlestone was too tired to walk back to the polling station. [31] The appellants filed other affidavit evidence that many homeless people in Vancouver are unsheltered and that theft of identification amongst the homeless is common.  Canada filed material regarding the existence of various organizations that help homeless, vulnerable and low income individuals obtain identification. [32] At trial the Attorney General of Canada (“Canada,” or “the AGC”) conceded the appellants had standing to challenge the legislation in question.   The AGC took the position, at trial and in this court, that the appellants had not proved causation in this case, that is, that the voter identification requirements caused, or would cause, a failure to vote.  Given that I would dismiss the appeal on the grounds put forward by the appellants, I have found it unnecessary to address the causation issue in these reasons. Reasons for Judgment The Section 3 Charter Breach [33] The trial judge found that s. 148.1(1), which denies a ballot to those electors who are unable to prove their identities on election day, creates a new condition precedent to voting that did not exist previously.  Justice Smith found that this constituted a facial breach of s. 3 of the Charter .  Referring to the decision of this Court in Hoogbruin v. British Columbia (Attorney General) (1985), 24 D.L.R. (4th) 718, 70 B.C.L.R. 1 (B.C.C.A.) she said: [190] Section 148.1(1) denies a ballot to a registered elector who is unable, on election day, to prove his or her identity and residence to the satisfaction of Elections Canada officials, pursuant to the Act .  On its face, it limits access to the right to vote to those who are able to satisfy the identification requirements, and its evident purpose is to create that limit.  The question is whether this provision is inconsistent with the guarantee of electoral rights under s. 3 of the Charter . [191] Prior to the enactment of s. 148.1(1) of the Act , any citizen on the Register of Electors who appeared at the appropriate polling station and identified herself or himself was able to vote.  Since the enactment of s. 148.1(1), only those registered electors who provide the required documentary identification or a person to vouch for them are able to vote; other registered electors are disenfranchised.  The purpose of the legislation is to create a new condition precedent to voting.  In Hoogbruin , the condition precedent of personal attendance at the polling station was held to be a limitation on the right to vote that contravened s. 3 of the Charter .  Similarly, in this case, the condition precedent that registered electors must provide identification is inconsistent with the s. 3 Charter guarantee. [34] The trial judge went on to articulate her conclusions in the language of the most recent expression by the Supreme Court of Canada as to the purpose of s. 3 found in Figueroa v. Canada (Attorney General) , 2003 SCC 37, [2003] 1 S.C.R. 912 [ Figueroa ].  She said: [192]    Paraphrasing the words of Iacobucci J. in Figueroa at para. 36, if the legislation interferes with the capacity of each citizen to play a meaningful role in the electoral process, it is inconsistent with s. 3, and any benefits of the legislation (in furtherance of countervailing collective interests) must be considered under s. 1.  Section 148.1(1) does interfere with the entitlement to cast a vote for those citizens who are unable to produce the required identification and thus interferes with their capacity to play a meaningful role in the electoral process. [35] The trial judge went on to find that the impugned provisions also offend s. 3 in their effects.  She found that the plaintiffs established there is more than a remote or theoretical possibility that the provisions in issue could have the effect of impeding their electoral rights.  Ms. Henry and Mr. Wright’s evidence shows a reasonably-founded belief they may not be able to vote in the future; Ms. Eddlestone’s ability to vote was impeded by the new requirements, even if they were not the sole cause of her failure to vote.  Justice Smith referred to the evidence of Ms. Graves, a City of Vancouver employee who works with homeless people, that many homeless people are unsheltered and have no documentation.  In summary, the existence of economically or physically disadvantaged people and voters in rural areas is not theoretical.  The provisions will increase cost and inconvenience to some of society’s most vulnerable citizens.  A possible consequence is that some people will be unable to cast ballots.  In the words of the trial judge: [209]    I find that the evidence shows that the identification requirements imposed by the Act will have the effect of increasing the burden on citizens – particularly economically disadvantaged and homeless citizens, citizens who live in rural or remote communities, and citizens who are disabled – in exercising their right to vote in elections for Members of Parliament.  I find that a possible consequence is that some eligible citizens (though likely few in number, given the extensive measures Elections Canada has taken to facilitate voting) may be unable to cast a vote in future elections. [210]    In my view, the plaintiffs have established that the impugned provisions, in their effect, interfere with the right of each citizen to play a meaningful role in the electoral process. [36] Justice Smith then turned to the question whether the impugned provisions were justified under s. 1 of the Charter , applying the test from R. v. Oakes , [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 [ Oakes ]. Reasonable Limits under Section 1 Context and Deference [37] Before applying the Oakes test, Justice Smith discussed the contextual analysis that determines the level of deference owed to Parliament. [38] The trial judge examined the case law where different levels of deference were paid to the legislature.  She concluded that while areas such as electoral finance and access to debates may attract more deference to Parliament’s expertise, an individual’s right to place a ballot in a box is not such an area.  That said, because the impugned provisions form part of a broader scheme that allows for numerous ways of establishing identity, she found that in this case “there must be a level of deference” (para. 255).  She reasoned that although the nature of the right weighs heavily on the side of stringent scrutiny of the legislation, some deference is owed because of the inability to measure voter fraud accurately and Parliament’s construction of mechanisms that maximize opportunity for qualified electors to cast a ballot. Pressing and Substantial Objective and Rational Connection [39] The respondent, the Attorney General of Canada (in these reasons also referred to as “Canada” or “the AGC”), asserted two discrete but related objectives of the impugned legislation:  a) protecting the integrity of the vote, and b) maintaining public confidence in the integrity of the electoral system.  The AGC further particularized the objectives as: 1.       To address the harm of fraud; 2.       To address the potential for fraud; 3.       To address the public perception of fraud and the potential for fraud; 4.       To address mistakes and inaccuracies in the electoral system and the conduct of elections thereby ensuring that the electoral system and the conduct of elections is, and is perceived to be, fair, secure and effective; and, 5.       To ensure that only eligible voters cast their votes. [40] Justice Smith found the objectives of preventing voter fraud and maintaining confidence in the electoral system to be pressing and substantial.  Citing the low standard for rational connection, she found the provisions were rationally connected.  No party takes issue with these specific aspects of her Oakes analysis on appeal.  In fact, the appellants conceded that the objectives of the impugned legislation were pressing and substantial, and almost all the provisions rationally connected to it.  However, they did not agree that “requiring proof of residence” was connected, nor the vouching process.  The trial judge dealt with these complaints in her minimal impairment analysis. Minimal Impairment [41] The appellants argued the legislation is not minimally impairing for three reasons:  it requires electors to have an address; does not permit multiple or serial vouching; and only permits vouching for someone in the same polling district. [42] The trial judge rejected the appellants’ first argument.  She accepted the AGC’s position that the Act does not require a voter to have an address to vote.  Through the vouching procedure, a voter without a civic or mailing address can be placed on the list of electors for the polling district in which they ordinarily reside.  As noted earlier, the CEO’s approved list of identification allows homeless people without a civic address to use a shelter, for example, as their ordinary residence for the purpose of voting. [43] Carrying on with her analysis, the trial judge observed that laws of general application are by necessity not tailored to individuals; the courts must analyze the provisions in a societal context.  She concluded that the question is not whether a more advantageous arrangement for a particular claimant could be devised.  Justice Smith found that Parliament’s objectives would not be met by looser vouching procedures or the ability to swear a statutory declaration without a voucher.  In both cases, the possibility of personation is higher.  If someone could swear an oath without any other evidence of their identity or residence, then he or she would leave behind “a piece of paper with a signature [that] would be meaningless” (para. 366).  A serial voucher, for example, could vouch for many other people without any sort of paper trail. [44] The trial judge concluded that there were no alternative, less drastic measures to achieve Canada’s objectives and the scheme fell within a range of reasonable alternatives.  In the result, the trial judge found the impugned provisions passed the minimal impairment hurdle. Proportionate Effects [45] Justice Smith found the deleterious effects did not outweigh the salutary effects of the legislation.  While she found the evidence showed no systemic electoral fraud in federal elections, she observed that the secret nature of voting makes it impossible to know the full extent of fraud.  In addition, there have been actual cases of fraud prosecuted by Elections Canada.  The Act makes erroneous or fraudulent voting significantly less likely; it also provides reassurance to “those who are concerned about electoral fraud, and thereby would tend to enhance confidence [in the system]” (para. 400). [46] The trial judge did not confine her analysis of deleterious effects to the specific appellants, noting the court can take a societal perspective.  She reviewed at length surveys conducted by Elections Canada about the new voting laws following certain by-elections.  The surveys identified potential identification problems in a rural Saskatchewan riding with a high proportion of Aboriginal voters and problems with polling stations in seniors’ residences.  However, the surveys were such that it was not possible to determine conclusively that any individual voter did not vote solely because of the new identification requirements.  In the end, Justice Smith found at para. 473 it would be: a fair inference that, among millions of Canadians who were eligible to vote, for a small number, the voter identification requirements played some role in deterring them from voting − as they did for Ms. Eddlestone. These deterrent effects would likely be greater on the Canadians who are economically disadvantaged, are seniors, live in rural or remote areas, or have disabilities. It is also a fair inference that the requirements ... in very rare cases ... might altogether prevent some electors from voting. [47] Ultimately, she found the deleterious effects did not outweigh the benefits.  The salutary effects were “modest” but the new Act will lower the risk of fraud and increase confidence.  The deleterious effects are “very modest, amounting to the most part to minor inconvenience for a minority of electors” (para. 480).  Further, Parliament cannot be held to the standard of perfection. [48] In summary, she found the provisions infringed s. 3 but were justified under s. 1. The Grounds of Appeal [49] The appellants set out four grounds of appeal.  They submit that: a) The learned trial judge erred in law or in principle by failing to find the s. 3 violation extended beyond interference with the right to play a meaningful role in the electoral process; b) The learned trial judge erred in law or in principle by according excessive deference to Parliament; c) The learned trial judge erred in law or in principle by misapplying the proportionality aspect of the Oakes test by finding that the impugned provisions are minimally impairing of the right to vote; and d) The learned trial judge erred in law or in principle by finding that the salutary effects of the impugned provisions outweigh their deleterious effects. The First Ground of Appeal Positions of the Appellants and Respondent [50] The appellants and the respondent both disagree with the way in which the trial judge characterized the breach.  Thus the meaning and purpose of s. 3 of the Charter became a central issue for both parties on this appeal. [51] The appellants took the position that the trial judge fell into error by reducing the content of s. 3 of the Charter to “the right to play a meaningful role in the electoral process.”  They accept that this is the purpose of the guarantee, but, echoing McLachlin C.J.B.C. (as she then was) in Dixon v. British Columbia (AG) (1989), 59 D.L.R. (4th) 247 at 256, 35 B.C.L.R. (2d) 273 (B.C.S.C.) they argue that s. 3 must contain both procedural and substantive rights if it is to achieve its purpose.  They argue that procedural rights are granted by the express words of s. 3, i.e., the right of a citizen “to vote in an election of members of the House of Commons or of a legislative assembly” and “to be qualified for membership therein.”  A purposive analysis of these express words, they say, reveals that the purpose of the section is to grant to citizens the right to play a meaningful role in the electoral process.  Implicit rights follow from that purpose and so ancillary or corollary rights must be read into the section to fulfill its role beyond the simple act of voting and being qualified for membership in the House of Commons or legislative assembly.  The ancillary rights include such things as the right to have one’s vote count for the same as other valid votes. [52] The appellants say that their case is centered on the procedural aspect of s. 3.  They argue that any limitation on the right to physically place a ballot in the box constitutes a breach of s. 3 which must be justified under s. 1 of the Charter .  They disagree with the importance the trial judge placed on the fact that Ms. Eddlestone did not vote in the election because of a number of reasons, one of which was the voter identification rule.  They say that it was enough for Ms. Eddlestone to show that the identification rule was one of the causes.  They say that Ms. Eddlestone was prevented from voting on account of the voter identification provisions, and that the breach of the right was therefore a denial (rather than a mere interference) with the franchise.  The appellants say that requiring electors to produce acceptable identification before they vote is no doubt “an impediment to their right to play a meaningful role in the electoral process”, but it is more than that.  They argue that the gravamen of the breach in this case is the disenfranchisement of any qualified elector who cannot produce accepted identification.  The appellants say that the trial judge’s s. 1 analysis was premised on an incomplete understanding of the extent of the breach.  Had the trial judge fully comprehended its breadth, she would not have found that the legislation was demonstrably justified under s. 1 of the Charter . [53] The respondent defends the order dismissing the application on two bases.  First, the AGC presses the argument that the trial judge ought to have dismissed the application on the footing that the appellants had not established a s. 3 breach.  The AGC cites R. v. Perka , [1984] 2 S.C.R. 232 at 240, 13 D.L.R. (4th) 1, for the well-known proposition that a respondent is entitled to advance all arguments that sustain a trial judgment, even those that did not find favour in the trial court.  Second, the respondent says that if the impugned legislation does breach s. 3, the trial judge was correct in finding that it is justified under s. 1 of the Charter . [54] On the first point the AGC submits that the trial judge erred in this case by failing to critically examine what the right to vote entails.  Once the nature and purpose of the right to vote are understood in the context of the Canadian electoral system, “it becomes clear”, the AGC says, “that the identification requirements [of the impugned legislation] do not limit, or interfere with or deny the right.  Rather, the identification requirements protect and enhance the right to vote.”  It is the position of the AGC that a review of the case law [3] reveals the complexity of s. 3.  He argues that the right contains a number of core elements: 1.       The right to have one’s voted counted; 2.       The right and expectation of citizens to have a fair electoral process so that the s. 3 right does not become a hollow and empty one; 3.       The right to have one’s vote count for the same as other valid votes cast in their electoral district – relative parity of voting power; 4.       The right to be represented by a candidate with at least a plurality of votes in a district; and 5.       Representation by population. [55] The AGC submits that all of the core elements must be examined in determining whether s. 3 has been breached.  He argues that the right to cast a ballot is only one aspect of the right to vote.  The AGC asks rhetorically – what good is the right to put a ballot in the box if, for example, that ballot is not counted, or not counted equally with every other ballot in the box?  The essential point made by the AGC is that the identification requirements of the impugned legislation are designed to enhance the right to vote by seeking to ensure that only qualified electors vote, that they only vote once, and that they vote only in the proper electoral district.  Had the trial judge undertaken a proper analysis, the AGC submits, she would have concluded that the impugned sections do not breach the appellants’ Charter rights. Analysis [56] In my view, the appellants have correctly identified how the jurisprudence from the Supreme Court of Canada has come to define the contents and operation of s. 3.  I agree with the appellants that any interference with the right to put a ballot in the box must be justified under s. 1 of the Charter . [57] To repeat, s. 3 of the Charter provides: 3.         Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. On the face of it, the rights given under s. 3 of the Charter are restricted only by citizenship and connection to an electoral district.  This follows from the wording of s. 3 of the Charter which provides that citizens have the right to vote “in an election of members of the House of Commons or of a legislative assembly”. [58] Early Charter jurisprudence explored the idea that s. 3 “presupposes certain attributes of the voter which are inherent but not expressed in s. 3.”  In R. v. Badger (1986), 51 C.R. (3d) 163 at p. 171, 30 D.L.R. (4th) 108, (Man. Q.B.), Justice Scollin opined that it is pedantic to classify such things as age and residence as “limits” to the right.  In his view they are simply its “rational dimensions.”  This analysis is similar to the one made in the case at bar by the AGC.  However, the analysis was not adopted in subsequent cases.  This is made clear in Harvey v. New Brunswick (Attorney General) , [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142 [ Harvey ], where the scope of the specific words of s. 3 was at issue. [59] In Harvey the Supreme Court of Canada examined legislation (s. 119(c) of the Elections Act , R.S.N.B. 1973, c. E-3) which provided that a member of the New Brunswick legislature would, upon conviction for an illegal or corrupt practice, be disqualified from running as a candidate for five years.  The question was whether the legislation violated s. 3 of the Charter .  The positions of the parties were set out by La Forest J. at paras. 21 and 22: [21]      … The appellant’s position is straightforward.  Section 3 of the Charter , he maintained, provides an unqualified right for every citizen of Canada to vote and to seek public office.  In support of this position the appellant relied on the fact that the rights protected by s. 3 are “preferred” rights in that they are not subject to the notwithstanding clause found in s. 33 of the Charter .  In short, he insists that any restriction on the rights contained in s. 3 must be justified under s. 1 of the Charter . [22]      The competing viewpoint, urged on the Court both by the respondents and by the Attorney General of Canada, is that the rights guaranteed by s. 3 are not absolute but contain inherent limitations that need not be justified under s. 1 of the Charter .  More specifically, they argue, when a contextual approach is applied to s. 3, and the specific language used in the section is taken into account, the validity and consistency of s. 119(c) become clear. [60] La Forest, J. then turned to analyze the two positions: [27]      This then becomes a central question: what is meant by the expression found in s. 3 of the Charter that “[e]very citizen of Canada has the right to vote in an election of members of … a legislative assembly and to be qualified for membership therein”, and what is the purpose behind the right? The respondents argue that the right to effective representation is at the heart of the right to be qualified for membership in a legislative assembly. Since the disqualification provisions of s. 119 of the Elections Act exist to preserve the integrity of the electoral process, and thereby help to ensure effective representation, they are in accord with s. 3 of the Charter . Similarly, the Attorney General of Canada focuses first on the language of s. 3, arguing that the use of the word “qualified” indicates that inherent in the right to be a candidate are limitations that are necessary to ensure effective representation. He goes on to argue that regard must be had to the appropriate historical context underlying the right. In particular, he notes that there has been a continual evolution of candidate eligibility requirements and disqualifications throughout Canadian history; that disqualifications such as those found in s. 119 have their origin in the widespread election corruption that was prevalent in the early years of confederation; and that disqualifications for corrupt or illegal election practices are to be found in many foreign jurisdictions. [61] La Forest J. stated his conclusions in this way: [28]      While these arguments may initially appear persuasive, I agree with the appellant that the provisions of s. 119(c) are prima facie unconstitutional as violating his rights under s. 3 of the Charter . My reasons are twofold. First, there is the language of s. 3. Admittedly in the English version the words “right to be qualified” are somewhat ambiguous. The use of the word “qualified” suggests that certain criteria must be met before a citizen can run for office. However, since there exists a right to be qualified, it would appear that qualification is automatic regardless of any criteria set out by statute. If it was Parliament’s intent to confer on every citizen the right to be a candidate, clearer language should have been used. But we are not left in doubt. A more precise statement of the right appears in the equally authoritative French text, which uses the phrase “ Tout citoyen canadien est éligible aux élections ”. The word “ éligible ”translates as “eligible” in English and is defined in Le Nouveau Petit Robert (1994), at p. 733, as one who has met the relevant conditions so that they can be chosen. This suggests that the English version of s. 3 should be read as “[e]very citizen … is qualified for membership therein”. In short, while the English version is somewhat lacking in clarity, the French version is straightforward and indicates that the right to be a candidate and to sit as a member of Parliament or a legislative assembly should be read in a broad manner. [29]      Secondly, and in my view this is decisive, to accept the respondents’ position would be to remove the balancing of interests from s. 1 and incorporate it in s. 3 of the Charter . In their oral submissions counsel for both the respondents and the Attorney General of Canada argued that any given qualification or limitation should first be weighed against the interests represented by s. 3 to determine if there was a violation of that section. Such an approach runs counter to the recent practice of this Court. [30]      In interpreting the right to vote under s. 3 this Court, and Canadian courts in general, have taken the approach that the justification for limitations on the right must be grounded in s. 1 of the Charter . As I have earlier noted, I do not believe the wording in the second part of s. 3 justifies taking a different approach to the right to stand for election and become a Member of Parliament or a legislative assembly. This is in accord with this Court’s well established approach of reading Charter rights broadly and putting the burden of justifying limitations upon the state. In B. (R.) v. Children’s Aid Society of Metropolitan Toronto , [1995] 1 S.C.R. 315, at pp. 383-84, in the context of freedom of religion under s. 2( a ) of the Charter , I emphasized the importance of carrying out any required balancing of rights under s. 1: This Court has consistently refrained from formulating internal limits to the scope of freedom of religion in cases where the constitutionality of a legislative scheme was raised; it rather opted to balance the competing rights under s. 1 of the Charter ; see R. v. Jones , supra , and R. v. Edwards Books and Art Ltd. , supra . A similar approach was taken in the context of s. 2( b ) of the Charter , freedom of expression. In R. v. Keegstra , supra , Dickson C.J., writing for the majority, stated that s. 1 was better suited than s. 2( b ) to facilitate the necessary balance between state and individual interests In my view, it appears sounder to leave to the state the burden of justifying the restrictions it has chosen. Any ambiguity or hesitation should be resolved in favour of individual rights. Not only is this consistent with the broad and liberal interpretation of rights favoured by this Court, but s. 1 is a much more flexible tool with which to balance competing rights than s. 2(a). [62] In concluding that the words of the section granted an absolute right to both vote and stand for election, La Forest J. rejected what he saw as the contextual approach set out in the earlier case, Reference Re Provincial Electoral Boundaries (Sask.) , [1991] 2 S.C.R. 158, 81 D.L.R. (4th) 16 [ Saskatchewan Reference ] . He said : [23]      In order to choose between these two fundamentally different viewpoints, the logical place to start is with this Court’s previous treatment of s. 3 of the Charter . While the Court has not yet examined the right to be an elected member found in the second part of s. 3, it has on several occasions had the opportunity to consider the right to vote enshrined in the first part of the section. The fullest treatment of the right to vote appears in McLachlin J.’s majority reasons in Reference Re Prov. Electoral Boundaries (Sask.) , [1991] 2 S.C.R. 158 [“ Saskatchewan Boundaries case ”]. At issue there was whether the purpose of the right was to guarantee equality of voting power or effective representation. Beginning at p. 179, McLachlin J. first considered the manner in which the content of a Charter right is to be determined. She identified the general principle, emerging from R. v. Big M Drug Mart Ltd. , [1985] 1 S.C.R. 295, as being that Charter rights should be interpreted in a broad and purposive manner having regard to the appropriate historical and social context. From this general principle she identified three particular considerations that were relevant to the interpretation of the right to vote: (1) that the Charter is part of the living tree that is the Canadian constitution and that as such, “the past plays a critical but non-exclusive role” (p. 180) in determining the scope of Charter rights; (2) that practical considerations should be borne in mind when undertaking constitutional interpretation; and (3) that the Court must be guided by the ideal of a “free and democratic society” as enunciated by Dickson C.J. in R. v. Oakes , [1986] 1 S.C.R. 103. [24]      Applying these considerations to the first part of s. 3, McLachlin J. concluded that the right enshrined by the right to vote was the right to effective representation. She stated, at pp. 188-89: In summary, I am satisfied that the precepts which govern the interpretation of Charter rights support the conclusion that the right to vote should be defined as guaranteeing the right to effective representation. The concept of absolute voter parity does not accord with the development of the right to vote in the Canadian context and does not permit of sufficient flexibility to meet the practical difficulties inherent in representative government in a country such as Canada. In the end, it is the broader concept of effective representation which     best serves the interests of a free and democratic society. Based on this interpretation, McLachlin J. went on to find that the electoral boundaries in question did not violate s. 3 of the Charter since they could be justified on the grounds of effective representation and did not need to be justified under s. 1. [25] In contrast to this approach is that used by this Court and others in dealing with particular statutory disqualifications of voters. In Sauvé v. Canada (Attorney General) , [1993] 2 S.C.R. 438, the Court found that the voting disqualification for inmates found in the Canada Elections Act , R.S.C., 1985, c. E-2, violated s. 3 and could only be justified under s. 1 of the Charter . Similarly, the federal disqualifications of mentally incompetent persons and federally appointed judges, and a provincial disqualification of absentee citizens have all been found to be prima facie unconstitutional; see Canadian Disability Rights Council v. Canada , [1988] 3 F.C. 622 (T.D.); Muldoon v. Canada , [1988] 3 F.C. 628 (T.D.); and Re Hoogbruin and Attorney-General of British Columbia (1985), 24 D.L.R. (4th) 718 (B.C.C.A.). [26]      Professor Peter Hogg in Constitutional Law of Canada (3rd ed. 1992 (loose-leaf)) would apply the same logic to disqualifications in respect of the candidacy right in the second part of s. 3. He states in vol. 2 at s. 42.2: The qualifications of a member of the House of Commons or a legislative assembly are prescribed by statute in each jurisdiction, and various citizens are disqualified … All disqualifications of citizens are, of course, now contrary to the Charter, unless they can be justified under s. 1. In support of this position Professor Hogg cites the Nova Scotia Supreme Court Trial Division case of MacLean v. Nova Scotia (Attorney General) (1987), 76 N.S.R. (2d) 296. There Glube C.J.T.D. held that a provincial statute which retroactively imposed a five-year disqualification on running in a provincial election violated s. 3 of the Charter . She arrived at this result on what she saw as the clear wording of s. 3 (at p. 305): On the plain meaning of the words in s. 3 of the Charter , I find that an attempt to put limits on membership qualification violates Mr. MacLean’s right as a citizen to be qualified for membership in the House of Assembly of Nova Scotia. [Emphasis added.] [63] I take from this that any legislation which has the effect of encumbering the explicit words of s. 3 breaches the right and must be justified under s. 1 of the Charter. However the AGC disagrees and says that the subsequent decision in Figueroa clarified the approach to take.  The AGC submits that Figueroa has defined the full right in s. 3 as the right “to play a meaningful role in the electoral process.”  If this is the case, he argues, the right is multi-faceted and all of its elements ought to be considered when determining whether legislation constitutes a breach of s. 3.  I do not read Figueroa in that way. [64] The issue in Figueroa was whether federal legislation that restricted the right of candidates of smaller parties to list the party’s name on the ballot and to issue tax receipts contravened s. 3 of the Charter .  In determining the content of s. 3 Iacobucci J., for the majority, said this at paras. 19 and 20: ... On its face, the scope of s. 3 is relatively narrow:  it grants to each citizen no more than the bare right to vote and to run for office in the election of representatives of the federal and provincial legislative assemblies.  But Charter analysis requires courts to look beyond the words of the section.  In the words of McLachin C.J.B.C. (as she then was), “[m]ore is intended [in the right to vote] than the bare right to place a ballot in a box”.  [Citation omitted.] In order to determine the scope of s. 3, the Court must first ascertain its purpose. [65] Iacobucci J. then looked to a number of earlier cases, including Saskatchewan Reference. [66] The issue in Saskatchewan Reference was whether proposed changes to electoral boundaries that resulted in a variance in voter populations between rural and urban ridings violated s. 3 of the Charter .  For the majority, McLachlin J. (as she then was) defined the issue in para. 46:  “The question for resolution on this appeal can be summed up in one sentence:  To what extent, if at all, does the right to vote enshrined in the Charter permit deviation from the democratic principle of “one person-one vote” rule?”  In determining the answer to that question McLachlin J. concluded that the right permitted deviation on the grounds of practical impossibility or the provision of more effective representation.  First, she noted absolute parity is impossible.  As she put it, voters die and voters move making it impossible to ever guarantee the same number of voters in each district.  Secondly, as McLachin J. reasoned at para. 54: ... [S]uch relative parity as may be possible of achievement may prove undesirable because it has the effect of distracting from the primary goal of effective representation.  Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent diversity of our social mosaic.  These are but examples of considerations which may justify departure from absolute voter parity in the pursuit of more effective representation: the list is not closed. [67] In my view, McLachlin J. was here deciding whether an absolute right to voter parity was guaranteed by s. 3.  She was defining the contents (as opposed to purpose) of the right itself.  She concluded that s. 3, for the reasons she gave, did not guarantee absolute voter parity. [68] McLachlin J. was not, as some have suggested, balancing the rights of the urban voters against those of the rural voters in assessing a possible breach.  In Figueroa the minority opinion, written by LeBel J., reached the conclusion that Saskatchewan Reference decided “that some diminution of one aspect of effective representation (parity) can ultimately result in the provision of more effective representation” (at para. 117).  The majority opinion, expressed by Iacobucci J., specifically disagreed with that interpretation.  Iacobucci J. read the case as ultimately deciding that the considerations afforded to rural voters did not breach the s. 3 rights of urban voters.  He said at para. 23: The issue in that case was not whether the departure from absolute voter parity could be justified by virtue of the benefits that it provided to rural voters, but whether the departure from absolute voter parity was consistent with s. 3, not because the departure provided for the more effective representation of rural voters, but rather, because it did not interfere with the right of urban voters to an effective representation in the legislative assembly .  [Emphasis added.] And later at para. 33: ... As discussed throughout, the purpose of s. 3 is to protect the right of each citizen to play a meaningful role in the electoral process. Where the impugned legislation is inconsistent with the express language of s. 3, it is unnecessary to consider the broader social or political context in order to determine whether the legislation has this effect . But where the legislation affects the conditions in which citizens exercise those rights it may not be so obvious whether the legislation has this effect. Consequently it may be necessary to consider a broad range of factors such as social or physical geography, in order to determine whether the legislation infringes the right of each citizen to play a meaningful role in the electoral process subject to countervailing collective interests.  Those interests fall to be considered under s. 1.  [Emphasis added.] [69] Three things follow from these cases.  First, s. 3 contains a bundle of rights derived from its explicit words and from its purpose of guaranteeing the rights of citizens to play a meaningful role in the electoral process.  The explicit rights are procedural and spelled out in the section.  The implicit rights are substantive and may require resort to a broad range of factors to determine.  To paraphrase Iacobucci J. in Figueroa , the implicit rights are the conditions under which the right to play a meaningful role in the electoral process are expressed.  Infringement of any of the rights constitutes a breach of s. 3. [70] It follows from all of this that the s. 3 right to cast a ballot for a candidate in a federal or provincial election is limited only by the specific wording of the section, that is, by citizenship and residence.  Any other impediment to the ability of an elector to cast a vote constitutes a facial breach of the section.  Where legislation, such as the legislation in question in this case, has the double effect of breaching the rights of some citizens while enhancing the rights of others, the duty of the court is to first isolate the breach and then to determine whether it is justifiable under s. 1.  If the impugned legislation also has the effect of enhancing an aspect of the right, it is a factor to take into consideration in the s. 1 analysis. Conclusion [71] I have rejected the respondent’s position as to the correct test to apply in determining a breach of s. 3 of the Charter .  I accept the appellant’s articulation of the test to apply.  I agree with the appellants that the impugned legislation is a facial breach of s. 3.  That said, I am of the view that the appellants have failed to demonstrate that the trial judge fell into error in her application of the test. [72] The legislation in issue in this case refuses a vote to electors who cannot produce proof of identification that meets the standards set out in the Act .  As such, it is a violation of the clear words of s. 3, the guarantee of the right to cast a ballot in an election for members of the House of Commons.  The breach need not be characterized as anything beyond that.  I agree with the appellants that it was unnecessary for the trial judge to cast the breach in terms of the purpose of the section.  But in doing so the trial judge did nothing more than state the obvious.  A citizen plays a meaningful role in the electoral process when he or she casts a vote and any interference with that right is a breach of s. 3.  This is what the trial judge was saying when she said: [192]    Paraphrasing the words of Iacobucci J. in Figueroa at para. 36, if the legislation interferes with the capacity of each citizen to play a meaningful role in the electoral process, it is inconsistent with s. 3, and any benefits of the legislation (in furtherance of countervailing collective interests) must be considered under s. 1. Section 148.1(1) does interfere with the entitlement to cast a vote for those citizens who are unable to produce the required identification and thus interferes with their capacity to play a meaningful role in the electoral process .  [Emphasis added.] [73] The appellants’ first ground of appeal also includes the argument that the trial judge did not appreciate the extent of the breach, that is, that she saw it as an impediment to vote rather than a disenfranchisement.  I do not agree.  In my view the trial judge clearly viewed the breach as a disenfranchisement of voters who could not present the required identification when they came to vote.  To repeat her words again: [191] Prior to the enactment of s. 148.1(1) of the Act , any citizen on the Register of Electors who appeared at the appropriate polling station and identified herself or himself was able to vote.  Since the enactment of s. 148.1(1), only those registered electors who provide the required documentary identification or a person to vouch for them are able to vote; other registered electors are disenfranchised .  The purpose of the legislation is to create a new condition precedent to voting.  In Hoogbruin , the condition precedent of personal attendance at the polling station was held to be a limitation on the right to vote that contravened s. 3 of the Charter .  Similarly, in this case, the condition precedent that registered electors must provide identification is inconsistent with the s. 3 Charter guarantee.  [Emphasis added.] [74] In my view, the appellants have not established that the trial judge erred in her understanding or application of s. 3 of the Charter .  I would not accede to the first ground of appeal. The Second Ground of Appeal [75] If legislation which is found by a court to breach the Charter is to stand, the state must justify it pursuant to s. 1, which provides: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [76] The appellants take issue with the way in which the trial judge stated and applied the test that the government was obliged to meet in justifying the breach under s. 1.  They express their second ground as this: b)         The learned trial judge erred in law or in principle by according excessive deference to Parliament. [77] As Chief Justice McLachlin stated in Sauvé v. Canada (Chief Electoral Officer) , 2002 SCC 68, [2002] 3 S.C.R. 519 [ Sauv é No. 2 ]: [7 ] To justify the infringement of a Charter right, the government must show that the infringement achieves a constitutionally valid purpose or objective, and that the chosen means are reasonable and demonstrably justified: R. v. Oakes , [1986] 1 S.C.R. 103.  This two-part inquiry − the legitimacy of the objective [whether the objective is pressing and substantial] and the proportionality of the means − ensures that a reviewing court examine rigorously all aspects of justification.  Throughout the justification process, the government bears the burden of proving a valid objective and showing that the rights violation is warranted − that is, that it is rationally connected, causes minimal impairment, and is proportionate to the benefit achieved [whether its salutary benefits outweigh its deleterious effects]. [78] The only serious issues before the trial court in the justification stage of the case at bar were whether the AGC had established that the legislation did not minimally impair the Charter right, and had established that the salutary effects of the legislation outweighed its deleterious effects.  Before embarking on these two parts of the Oakes analysis Justice Smith discussed the question of what deference, if any, the court ought to pay to Parliament when examining legislation that interferes with the right to vote. [79] Deference is the attitude which might be assumed by the court in assessing whether legislation that is found to constitute a breach of the Charter can be justified under s. 1.  The role of deference when s. 3 of the Charter is in issue was discussed in Sauv é No 2. That case dealt with a section of the Canada Elections Act that denied the right to vote to prisoners serving a sentence in a penitentiary. The Chief Justice, speaking for the majority, held that the right to vote holds a special place in our democracy.  She concluded that any attempt by the government to interfere with it must be closely scrutinized. [9]        ...The right to vote is fundamental to our democracy and the rule of law and cannot be lightly set aside. Limits on it require not deference, but careful examination.  This is not a matter of substituting the Court’s philosophical preference for that of the legislature, but of ensuring that the legislature’s proffered justification is supported by logic and common sense. [13]      The core democratic rights of Canadians do not fall within a “range of acceptable alternatives” among which Parliament may pick and choose at its discretion.  Deference may be appropriate on a decision involving competing social and political policies. It is not appropriate, however, on a decision to limit fundamental rights.  This case is not merely a competition between competing social philosophies.  It represents a conflict between the right of citizens to vote − one of the most fundamental rights guaranteed by the Charter − and Parliament’s denial of that right.  Public debate on an issue does not transform it into a matter of “social philosophy”, shielding it from full judicial scrutiny.  It is for the courts, unaffected by the shifting winds of public opinion and electoral interests, to safeguard the right to vote guaranteed by s. 3 of the Charter . [14] Charter rights are not a matter of privilege or merit, but a function of membership in the Canadian polity that cannot lightly be cast aside.  This is manifestly true of the right to vote, the cornerstone of democracy, exempt from the incursion permitted on other rights through s. 33 override.  Thus, courts considering denials of voting rights have applied a stringent justification standard: Sauvé v. Canada (Attorney General) (1992), 7 O.R. (3d) 481 (C.A.) (“ Sauvé No. 1 ”), and Belczowski v. Canada , [1992] 2 F.C. 440 (C.A.). [15]      The Charter charges courts with upholding and maintaining an inclusive, participatory democratic framework within which citizens can explore and pursue different conceptions of the good.  While a posture of judicial deference to legislative decisions about social policy may be appropriate in some cases, the legislation at issue does not fall into this category.  To the contrary, it is precisely when legislative choices threaten to undermine the foundations of the participatory democracy guaranteed by the Charter that courts must be vigilant in fulfilling their constitutional duty to protect the integrity of this system.  [Emphasis added.] [80] At trial and in this Court, the AGC took the position that the reasoning in Sauvé No. 2 did not apply to the case at bar. Sauvé No. 2 , he said, dealt with a deliberate disenfranchisement of prisoners designed to enhance respect for the law and as a part of punishment.  It is almost opposite to the situation in this case where the purpose of the legislation is not symbolic, but designed to enhance the integrity of the vote.  The AGC encouraged the trial judge to apply a less stringent test.  The appellants, stressing that the essence of the breach was disenfranchisement, urged the trial judge to decline to pay deference to Parliament at all stages of the justification analysis. [81] An examination of the reasons for judgment reveals that the trial judge carefully considered Sauvé No. 2 and other cases which dealt with voter disenfranchisement.  She also looked at cases which dealt with election laws, such as R. v. Bryan , 2007 SCC 12, [2007] 1 S.C.R. 527 (legislation prohibiting broadcasting election results before polling stations have closed) and Harper v. Canada (Attorney General), 2004 SCC 827, [2004] 1 S.C.R. 827 (legislation restricting third party election advertising), where the courts paid deference to Parliament in applying the s. 1 test.  The trial judge recognized that the last two cases were decided on the basis of s. 2(b) of the Charter , freedom of expression, but nonetheless concluded: [249] I do not believe that what the Supreme Court said in Sauvé No. 2 has been displaced by a general requirement to defer to Parliament in all challenges to electoral laws.  Assessing the constitutionality of schemes for regulating electoral broadcasting, funding of political parties, access to all-party debates, and the like entails reviewing multiple competing considerations in an area where Parliament might bring to bear superior expertise and capacity to make nuanced judgments.  On the other hand, the constitutionality of provisions limiting the individual exercise of the franchise – particularly qualification and disqualification from voting – is not such an area. [250] The legislation at issue in this case includes a provision explicitly limiting the exercise of the franchise (s. 148.1(1)), but mainly consists in a detailed scheme allowing for a number of different ways to establish identity and residence when voting.  Thus, this challenge to the voter identification requirements bears characteristics of both the issue in Sauvé No. 2 and the issue in Harper .  It is comparable to Sauvé No. 2 in that one provision in the legislation denies the ballot to persons who fail to provide the required identification.  It is comparable to Harper in that the other impugned provisions set up a detailed voter identification scheme involving nuances and the balancing of competing logistical and administrative considerations. [251] Bearing those general considerations in mind, I turn to an assessment of the contextual factors specified in Thomson Newspapers :  (a) the nature of the harm and the inability to measure it; (b) the vulnerability of the group protected; (c) subjective fears and apprehension of harm; and (d) the nature of the infringed activity. [82] Turning to the arguments of the parties, Justice Smith said: [252] In support of deference, Canada’s position regarding the first factor [in Thomson Newspapers ] is that the harm in this case – voter fraud and error, actual, potential, and perceived – is by its nature, and due to the secrecy of the vote, very difficult to measure.  Turning to the second factor, Mr. Wruck [counsel for the AGC] says that the group protected is legitimate voters, who are vulnerable to feeling that their democratic voice is not being respected and who must rely on government action to protect the integrity of the vote.  He says with respect to the third factor that, as in Bryan , public confidence in the electoral process is an objective of the impugned provisions and that “the subjective perceptions of Canadian voters that the electoral system is fair is a vital element in the value of the system” (at para. 25).  Finally, relating to the fourth factor, he characterizes the nature of the “infringed activity” as the ability of a voter to cast a ballot without any verification of the voter’s identity and residence.  He argues that Parliament requires some deference to its arbitration between the democratic values of accessibility and integrity in designing an electoral process that reinforces the effective representation of all electors by making every legitimate vote meaningful. [253] The plaintiffs emphasize the fourth factor and the fact that it is a right at the core of the s. 3 rights – the very ability to cast a ballot in an election – that is infringed. [254] I agree that the first and third factors indicate that some deference is warranted.  I particularly note that it may be difficult to prove that the public’s faith in the integrity of the electoral system will be enhanced by the voter identification provisions, or to prove that the voter identification requirements are a superior deterrent to fraudulent or mistaken voting.  The fourth factor, the nature of the infringed activity (i.e., the exercise of the franchise), weighs heavily on the other side of the scale. [255] The foundational importance of the right to vote has already been discussed in these Reasons.  The Court must exercise great care in determining whether the state has justified denying the right to vote to those who would otherwise be entitled to cast a ballot. However, when assessing whether Parliament has devised mechanisms for voting that maximize the opportunity for all qualified electors to cast a ballot while maintaining the integrity of the system, there must be a level of deference .  [Emphasis added.] [83] To sum up, the trial judge held that a level of deference should be accorded to Parliament in determining the apprehension and nature of the harm it sought to address through the impugned legislation.  She observed that it is difficult to prove the voter identification requirements were a superior deterrent to fraudulent voting or that the measures taken would enhance the electoral system.  Finally, she found that a level of deference was owed in assessing whether the mechanisms chosen by Parliament maximized the opportunity for all qualified electors to cast a ballot while maintaining the integrity of the system.  In so doing, the trial judge attempted to forge a s. 1 analysis, which might be more appropriate to the case before her, which she considered to be more nuanced than Sauvé No. 2 . [84] That said, I am of the view that it was not open to the trial judge to formulate a new test which permits Parliament “some level of deference.”  This conclusion seems unavoidable given what was said by the Supreme Court of Canada in Figueroa .  As discussed earlier, Figueroa was a case, not about the core right to put a ballot in the box, but one that fell under the expanded definition of the right to vote. There, the majority clearly endorsed the stringent approach.  Iacobucci J. said this at para. 60: Before beginning [the s. 1] analysis, I note this Court’s prior conclusion that limits on s. 3 require not deference, but careful examination : Sauvé [No.2] , supra at para. 9.  As the Court observed in that case, s. 3 is one of the Charter rights that cannot be overridden by the invocation of s. 33 of the Charter . This highlights the extent to which s. 3 is fundamental to our system of democracy and indicates that great care must be exercised in determining whether or not the government has justified a violation of s. 3.  [Emphasis added.] [85] Paragraph 9 of Sauvé No. 2 is reproduced above at para. [72].  It clearly rejects deference in favour of “careful examination”, and “logic and common sense”. [86] The appellants submit that the trial judge erred in determining that some deference ought to be paid to Parliament’s choices and that this error along with the error in categorizing the breach “echo throughout the entirety of the trial judge’s s. 1 reasoning.”  That said, they point only to one place in the reasons for judgment where the trial judge refers to a deferential test.  It is found in the section of her reasons dealing with minimal impairment, to which I will now turn. The Third Ground of Appeal [87] The appellants state their third ground of appeal as this: c)         The learned trial judge erred in law or in principle by misapplying the proportionality aspect of the Oakes test by finding that the impugned provisions are minimally impairing of the right to vote. [88] The appellants submitted that the voter identification requirements were not minimally impairing in that they did not include a “failsafe” provision allowing 1) an elector without sufficient documentation to swear an oath and vote, or 2) serial or multiple vouching by electors outside the polling district. [89] The appellants submit that the trial judge erred when she accepted that the tests to apply were set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, 127 D.L.R. (4th) 1, and Alberta v. Hutterian Brethren of Wilson Colony , 2009 SCC 37, [2009] 2 S.C.R. 567.  The appellants allege that it was an error to rely on statements of law on minimal impairment from cases in the freedom of religion ( Hutterian Brethren ) or freedom of expression contexts ( RJR-MacDonald ).  They say the trial judge failed to consider s. 3 case law in her minimal impairment analysis. [90] The trial judge set out the tests at paras. 319 and 320: [319] In RJR-MacDonald , the minimal impairment analysis was explained in these terms by McLachlin J. (as she then was), at para. 160 (and quoted in Hutterian Brethren at para. 54): As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective.  The impairment must be “minimal”, that is, the law must be carefully tailored so that rights are impaired no more than necessary.  The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement . ... On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.  [Citations omitted; emphasis added.] [320] Chief Justice McLachlin discussed minimal impairment further in Hutterian Brethren .  After quoting the above passage from RJR-MacDonald , she continued, at paras. 54-55: ... In this manner, the legislative goal, which has been found to be pressing and substantial, grounds the minimum impairment analysis.  As Aharon Barak, former President of the Supreme Court of Israel, puts it, “the rational connection test and the least harmful measure [minimum impairment] test are essentially determined against the background of the proper objective, and are derived from the need to realize it”: “Proportional Effect: The Israeli Experience” (2007), 57 U.T.L.J. 369, at p. 374.  President Barak describes this as the “internal limitation” in the minimum impairment test, which “prevents it [standing alone] from granting protection to human rights” (p. 373).  The internal limitation arises from the fact that the minimum impairment test requires only that the government choose the least drastic means of achieving its objective .  Less drastic means which do not actually achieve the government’s objective are not considered at this stage. I hasten to add that in considering whether the government’s objective could be achieved by other less drastic means, the court need not be satisfied that the alternative would satisfy the objective to exactly the same extent or degree as the impugned measure.  In other words, the court should not accept an unrealistically exacting or precise formulation of the government’s objective which would effectively immunize the law from scrutiny at the minimal impairment stage.  The requirement for an “equally effective” alternative measure in the passage from RJR-MacDonald , quoted above, should not be taken to an impractical extreme.  It includes alternative measures that give sufficient protection, in all the circumstances, to the government’s goal: Charkaoui v. Canada (Citizenship and Immigration) , 2007 SCC 9, [2007] 1 S.C.R. 350.  While the government is entitled to deference in formulating its objective, that deference is not blind or absolute.  The test at the minimum impairment stage is whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner. [91] Having stated the test the trial judge thoroughly examined the evidence.  She then said this at paras. 367-369: [367]    The question at this stage is whether Canada has established that there are no alternative, less drastic means of achieving both of Canada’s legislative objectives in a real and substantial manner. [368] The plaintiffs submit that a “failsafe” provision of the nature they suggest (allowing an elector who arrives without the requisite documentation, and without another elector to vouch for him/her, to vote upon swearing a statutory declaration) is a less impairing but equally effective means of achieving the purposes of the legislation.  I am not convinced that they are correct.  The objectives of preventing fraud and enhancing confidence in the election system would not be as well met by a system with the suggested provision because such a provision would not prevent personation nearly as effectively. As well, I do not think that a scheme that permitted serial or multiple vouching, or vouching by persons from outside the polling district, would meet the objectives of preventing fraud and enhancing confidence in the election system as well as the more restrictive provisions for vouching that are now in effect. [369] No doubt the list of documents authorized by the CEO could be further expanded or the vouching provisions could be made more flexible without completely destroying the effectiveness of the scheme, but the question is whether the scheme falls within a range of reasonable alternatives.  As was stated in RJR-MacDonald , while the law must be carefully tailored so that the rights are impaired no more than necessary, the tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. Looking at the scheme as a whole, taking into account the broad range of options available for proof of identity and residence, and the delegation to the CEO of the ability to continue to fine-tune and expand that range of options, I am satisfied that there are no alternative, less drastic means of achieving both of Canada’s legislative objectives in a real and substantial manner. I conclude, therefore, that Canada has established that the provisions are minimally impairing.  [Emphasis added.] [92] Although the trial judge stated the test in the words of RJR-MacDonald , that is, whether the scheme fell within a “range of reasonable alternatives” she went on to find that no range of reasonable alternatives existed.  Justice Smith looked at the “reasonable alternatives” proffered by the appellants and rejected them as unworkable.  She did so because she found that in both alternatives suggested by the appellants, particularly in the case of a bare oath, there is a meaningless paper trail that cannot be used to detect or punish fraud. [93] I agree with the conclusion of the trial judge.  On the evidence, there were no alternative, less drastic means of achieving the legislative goals in a real and substantial manner.   It was not necessary for her to defer to Parliament.  In the result, I would not accede to this ground of appeal. The Fourth Ground of Appeal [94] The appellants state their final ground of appeal as this: d)         The learned trial judge erred in law or in principle by finding that the salutary effects of the impugned provisions outweigh their deleterious effects. [95] In this part of their argument, the appellants take issue with the trial judge’s findings but they do not identify specific legal errors. [96] The appellants submit that the trial judge overemphasized the salutary effects of the legislation and failed to characterize the deleterious effects as serious.  The appellants assert three factual errors. [97] First, the appellants take issue with the findings of the trial judge that the new provisions make it more difficult to perpetrate electoral fraud and less likely errors will occur.  In their factum they say that they “do not accept” that personation was a “significant or demonstrated problem.”  However, that it was a significant problem was never in issue.  The trial judge reasoned, on the basis of ample evidence that it was a demonstrated problem, though a rare one.  On this point the trial judge took the view that while Canada has a clean voting system and that personation and error are rare, these problems do occur from time to time (para. 400).  She noted too, that electoral fraud has an unknown quality to it given the secret nature of the ballot.  She might also have concluded that the evidence demonstrated that if anyone was minded to commit voter fraud, it would be relatively easy to do. [98] In the end, Justice Smith concluded that a move from the honour system to an identity system would serve to make rare events of fraud and error rarer (para. 402).  The appellants submit that this conclusion is “illogical and palpably erroneous” because the pre-amendment procedures protected against fraud.  This argument cannot be sustained.  It fails to meet the plain logic argument that moving from an honour system to an identity system will better protect against fraud. [99] Next, the appellants took issue with the trial judge’s finding that the legislation would enhance voter confidence in the system for those concerned about voter fraud.  They submitted that not only did the AGC fail to introduce evidence regarding public perceptions of abuse of the electoral system, but that it was erroneous and circular for the trial judge to say that the fact that Members of Parliament supported the legislation indicated that there was public concern.  The appellants argued that the mere fact that Parliament passed the impugned legislation cannot stand on the “asset side of the ledger”.  As the appellants’ put it:  “The entire rationale for the Charter is upended if we accept popular support or legislative will as evincing a salutary effect.” [100] In my view this misses the point.  As I commented earlier, it is logical that a move from the honour system to an identity system would serve to make rare events of fraud and error rarer.   It is self-evident that increasing the safeguards against the potential for fraud would enhance voter confidence in the electoral system.  The electoral regime is a foundational aspect of Canada ’s democratic process.  As Rothstein and Moldaver JJ.A. noted recently in Opitz v. Wrzesnewskyj , 2012 SCC 55 at para. 38: Fair and consistent observance of the statutory safeguards [of the Canada Elections Act ] serves to enhance the public’s faith and confidence in fair elections and in the government itself, both of which are essential to an effective democracy. [101] Finally, the appellants submit that the modest salutary effects of the legislation could not outweigh the deleterious effects of the legislation. [102] There was some evidence before the trial judge that suggested that in rural ridings with higher Aboriginal populations, voters were more concerned about their ability to comply with the new procedures.  However, the trial judge also found that it was well-founded in the evidence that Elections Canada undertakes campaigns to inform voters and actively expands the list of acceptable identification.  In the end, she found the deleterious effects of the legislation to be very modest with true cases of disenfranchisement likely to be extremely rare (para. 480). [103] Thus the analysis came down to a decrease in a rare problem versus the very small possibility that a voter, likely from a disadvantaged group, will not be able to vote.  I cannot say that the trial judge was wrong in failing to find that the deleterious effects of very rare disenfranchisement outweighed the salutary effects of the legislation.  The appellants have not been able to reasonably attack the final conclusion of the trial judge where she said at para. 481: The [appellants] submit that precluding even one voter from casting a ballot would be a significant deleterious effect.  Indeed, that would be a deleterious effect, as would be the creation of inconvenience that discourages voters from coming to the polls.  In an ideal world, no elector would ever be inconvenienced or precluded from voting by any aspect of the electoral system.  However, that is not the constitutional requirement.  Just as it cannot be constitutionally required for an individual polling station to be set up for each individual voter, a system of voter identification need not be such that not one person is ever inconvenienced or precluded from voting by its requirements.  The state has a positive obligation to create an electoral system that is sensitive to the needs of all electors and that maximizes access in every way possible, but a standard of absolutely perfect access cannot be imposed. [104] It follows that I would not accede to this ground of appeal. The Arguments of the other Parties [105] The Chief Electoral Officer of Canada is a respondent to this litigation.  I have not referred to his factum as it contained only helpful background material and urged the Court to delay the effect of an order setting aside the legislation should one have been made. [106] The British Columbia Civil Liberties Association is an intervenor in this appeal.  The intervenor confined its submissions to the proportionate effects stage of the s. 1 Oakes test.  It made arguments about the nature of the evidence that ought to have been put forward by the AGC, submitted the public support for an impugned measure could only in the rarest of cases provide a basis for showing the salutary effects of a measure, and, that where the affected rights-holder is a member of a vulnerable group he or she should be entitled to a relaxed evidentiary standard in demonstrating the deleterious effects of an impugned measure. [107] I have not found it necessary to address these arguments in my reasons.  I believe my reasons make it clear that the evidence put forward by the AGC was sufficient, that the argument about public support for an impugned measure missed the mark in this case, and that the disadvantaged group was able to prove facts without the need of a relaxed standard. Conclusion [108] I would dismiss the appeal. “The Honourable Madam Justice Ryan” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Mr. Justice Hinkson” Appendix A *143 (1)  Each elector, on arriving at the polling station, shall give his or her name and address to the deputy returning officer and the poll clerk, and, on request, to a candidate or his or her representative. (2) If the poll clerk determines that the elector’s name and address appear on the list of electors or that the elector is allowed to vote under section 146, 147, 148 or 149, then, subject to subsection (3), the elector shall provide to the deputy returning officer and the poll clerk the following proof of his or her identity and residence: (a) one piece of identification issued by a Canadian government, whether federal, provincial or local, or an agency of that government, that contains a photograph of the elector and his or her name and address; or ( b ) two pieces of identification authorized by the Chief Electoral Officer each of which establish the elector’s name and at least one of which establishes the elector’s address. (2.1) For greater certainty, the Chief Electoral Officer may authorize as a piece of identification for the purposes of paragraph (2)(b) any document, regardless of who issued it. (2.2) For the purposes of paragraph (2)( b ), a document issued by the Government of Canada that certifies that a person is registered as an Indian under the Indian Act constitutes an authorized piece of identification. (3) An elector may instead prove his or her identity and residence by taking the prescribed oath if he or she is accompanied by an elector whose name appears on the list of electors for the same polling division and who (a) provides to the deputy returning officer and the poll clerk the piece or pieces of identification referred to in paragraph (2)(a) or (b), respectively; and (b) vouches for him or her on oath in the prescribed form. (3.1) If the address contained in the piece or pieces of identification provided under subsection (2) or paragraph (3)(a) does not prove the elector’s residence but is consistent with information related to the elector that appears on the list of electors, the elector’s residence is deemed to have been proven. (3.2) Despite subsection (3.1), a deputy returning officer, poll clerk, candidate or candidate’s representative who has reasonable doubts concerning the residence of an elector referred to in that subsection may request that the elector take the prescribed oath, in which case his or her residence is deemed to have been proven only if he or she takes that oath. (4) If the deputy returning officer is satisfied that an elector’s identity and residence have been proven in accordance with subsection (2) or (3), the elector’s name shall be crossed off the list and, subject to section 144, the elector shall be immediately allowed to vote. (5) No elector shall vouch for more than one elector at an election. (6) An elector who has been vouched for at an election may not vouch for another elector at that election. (7) The Chief Electoral Officer shall publish each year, and within three days after the issue of a writ, in a manner that he or she considers appropriate, a notice setting out the types of identification that are authorized for the purpose of paragraph (2)(b). The first annual notice shall be published no later than six months after the coming into force of this subsection. 148.1 (1) An elector who fails to prove his or her identity and residence in accordance with subsection 143(2) or (3) or to take an oath otherwise required by this Act shall not receive a ballot or be allowed to vote. (2) If an elector refuses to take an oath because he or she is not required to do so under this Act, the elector may appeal to the returning officer. If, after consultation with the deputy returning officer or the poll clerk of the polling station, the returning officer decides that the elector is not required to take the oath, and if the elector is entitled to vote in the polling division, the returning officer shall direct that he or she be allowed to do so. 161.(1) An elector whose name is not on the list of electors may register in person on polling day if the elector ( a ) provides as proof of his or her identity and residence the piece or pieces of identification referred to in paragraph 143(2)( a ) or ( b ), respectively, which piece or one of which pieces must contain an address that proves his or her residence; or ( b ) proves his or her identity and residence by taking the prescribed oath, and is accompanied by an elector whose name appears on the list of electors for the same polling division and who § (i)  provides the piece or pieces of identification referred to in paragraph 143(2)( a ) or ( b ), respectively, which piece or one of which pieces must contain either an address that proves his or her residence or an address that is consistent with information related to him or her that appears on the list of electors, and § (ii) vouches for him or her on oath in the prescribed form, which form must include a statement as to the residence of both electors. ... (6) No elector shall vouch for more than one elector at an election. (7) An elector who has been vouched for at an election may not vouch for another elector at that election. *169.(1) Every elector whose name is not on the revised list of electors may register in person before the deputy returning officer in the advance polling station where the elector is entitled to vote. (2) An elector shall not be registered unless he or she ( a ) provides as proof of his or her identity and residence the piece or pieces of identification referred to in paragraph 143(2)( a ) or ( b ), respectively, which piece or one of which pieces must contain an address that proves his or her residence; or ( b ) proves his or her identity and residence by taking the prescribed oath, and is accompanied by an elector whose name appears on the list of electors for the same polling division and who (i)  provides the piece or pieces of identification referred to in paragraph 143(2)( a ) or ( b ), respectively, which piece or one of which pieces must contain either an address that proves his or her residence or an address that is consistent with information related to him or her that appears on the list of electors, and (ii) vouches for him or her on oath in the prescribed form, which form must include a statement as to the residence of both electors. * The sections denoted by an asterisk are not in issue, but are included here for contextual clarity. [1] The Office of the Chief Electoral Officer of Canada is an independent, non-partisan body set up to support the Chief Electoral Officer of Canada (the “CEO”) who is appointed under s. 16 of the Canada Elections Act by resolution of the House of Commons to hold office during good behaviour. [2] This information includes an elector ’s Postal Code. [3] Dixon v. British Columbia , [1989] B.C.J. No. 583 at p. 6-7; Haig v. Canada (Chief Electoral Officer) , [1993] 2 S.C.R. 995 at p. 45-46; Reference Re: Provincial Electoral Boundaries (Sask.) , [1991] 2 S.C.R. 158 at paras. 50 and 55; and Harvey v. New Brunswick (Attorney General) , [1996] 2 S.C.R. 876 at para. 37.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Nardulli v. C-W Agencies Inc., 2014 BCCA 31 Date: 20140128 Docket: CA040455 Between: Vito Nardulli Respondent (Plaintiff) And C-W Agencies Inc. Appellant (Defendant) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Harris On appeal from:  An order of the Supreme Court of British Columbia, dated November 13, 2012 ( Nardulli v. C-W Agencies Inc. , 2012 BCSC 1686, Vancouver Docket S090014). Counsel for the Appellant and Respondent on cross-appeal: D.P. Church, Q.C. I. Schildt Counsel for the Respondent and Appellant on cross-appeal: G. Holeksa R. Germann Place and Date of Hearing: Vancouver, British Columbia November 19 and 20, 2013 Place and Date of Judgment: Vancouver, British Columbia January 28, 2014 Written Reasons by: The Honourable Madam Justice Kirkpatrick Concurred in by: The Honourable Madam Justice Saunders The Honourable Mr. Justice Harris Summary: At trial, the plaintiff claimed damages for wrongful dismissal and profit share during his employment and in the notice period. The trial judge awarded him 21 months’ wages in lieu of notice and profit share for the period of his employment. His claim to profit share in the notice period was dismissed as was his claim to special costs. Held:  appeal allowed in part; cross appeal dismissed. The judge’s finding that the plaintiff was wrongfully dismissed and the award of 21 months’ wages was upheld, as was the decision not to award special costs. However, the judge erred in the award of profit share. The profit share plan was never implemented. Although the plaintiff was eligible for a discretionary bonus, the employer properly exercised its discretion in deciding not to pay an additional bonus to the plaintiff. Reasons for Judgment of the Honourable Madam Justice Kirkpatrick: [1] Vito Nardulli was employed by C-W Agencies Inc. (“C-W”) from 1986 to 2008, except for a nine month period beginning in January 2006, when he was dismissed for cause. He was rehired in October 2006. In September 2008, C-W informed Nardulli that he was not entitled to payments under an alleged profit sharing plan. Nardulli was asked to sign a release waiving any right to share in C-W’s profits. Nardulli refused, sought legal advice and commenced an action against C-W on January 2, 2009. In his statement of claim, Nardulli pleaded that at all material times, it was a term of his contract of employment that he was entitled to participate in a company profit sharing plan as an integral part of his remuneration. He claimed it was a breach of his contract of employment to refuse payment. [2] On January 22, 2009, C-W terminated Nardulli’s employment for cause. Nardulli subsequently amended his claim to include damages for wrongful dismissal. [3] Nardulli’s claims were tried in the Supreme Court over 37 days between October 2010 and June 2011. The trial judge delivered very long reasons indexed as 2012 BCSC 1686. The judge awarded Nardulli $262,500 in damages for wrongful dismissal and $1,332,149 “for profit sharing”, $582,149 of which was to be remitted to Canada Revenue Agency on account of tax, and $750,000 to be paid to Nardulli. [4] The judge held that an additional sum of $895,000 paid to or on behalf of Nardulli were gifts which were not, as C-W alleged, to be taken into account in determining his profit share. [5] C-W appeals the order. [6] With respect to Nardulli’s “profit share”, C-W alleges the judge erred: in deciding the issue of profit sharing on a legal basis that was not pleaded or argued at trial; in finding that a bonus formed an “integral part” of Nardulli’s compensation; and, having found that Nardulli was entitled to a discretionary bonus, failing to consider whether C-W had reasonably exercised its discretion to refrain from paying a bonus to Nardulli. [7] With respect to wrongful dismissal, C-W contends the judge erred in concluding that the scope of Nardulli’s employment was unclear and by failing to consider accumulated cause in finding whether or not Nardulli was wrongfully dismissed. [8] Nardulli cross-appeals on the grounds that the judge erred in not awarding him an amount for profit share during the notice period and in refusing to award him his special costs. Facts [9] The reasons for judgment fully set out the evidence. I need not repeat it here. The essential facts relevant to the appeal are as follows. [10] C-W’s business is primarily the international marketing and resale of lottery tickets purchased in Canada and elsewhere to purchasers outside of Canada. [11] Randall Thiemer was, until his death in 2008, the sole shareholder and director of C-W. Sometime in 2000 he announced his intention to implement an employee profit sharing plan. [12] A draft profit sharing plan was prepared by C-W’s lawyers on or about November 15, 2000. It was to be effective from September 1, 2000. [13] The profit sharing distributions under the draft plan required C-W’s board of directors to determine the amount available for distribution, the persons entitled to participate in the plan, and the number of units awarded to each participant for the year. [14] The draft profit sharing plan stated that the distribution amount would be 25% of available cash. The available cash was to be calculated based on the total cash flow from operating activities for the year, less 2.5% of sales as a reserve of working capital and fixed assets and 1.5% of sales as a reserve of prepaid sales. [15] Profit sharing distributions were to be calculated using a specific formula set out in clause 5.5 of the draft plan. [16] Under the draft plan, Nardulli was to receive two unit entitlements for the year ending August 31, 2001. [17] A resolution approving the draft profit sharing plan by the C-W board of directors, of which Thiemer was the then sole director, was never signed by Thiemer. [18] Nardulli commenced employment with C-W in March 1986 and eventually worked his way up to Vice-President Operations. Nardulli became drug dependent and his work performance suffered. His employment was terminated for cause in January 2006. He did not, at that time, claim entitlement to profit sharing. When Nardulli was rehired in October 2006, he was reinstated with the same benefits and annual salary of $150,000, effective from October 1, 2006. [19] At about the time Nardulli returned to work in October 2006, he told Thiemer that he and his family had suffered financially following his dismissal. Thiemer offered to purchase a house for Nardulli. Within weeks, Thiemer gave Nardulli $150,000 (for household furnishings and to pay for drug rehabilitation) and purchased a home for him for a total of approximately $895,000. There is some evidence that suggests Thiemer purchased the house for Nardulli rather than advancing him cash as Thiemer was concerned Nardulli would use the money unwisely. [20] These payments, or the promise of them, coincided with Nardulli informing Thiemer in mid-October 2006, that Michael McLoughlin, who was C-W’s CEO from 2004 (and who fired Nardulli in January 2006), was setting up a competing business and was circulating unflattering photographs of Thiemer. Thiemer immediately terminated McLoughlin’s employment. [21] In the years following the announcement of the profit sharing plan, some employees had raised with Thiemer their wish to be paid “profit share”. Around the same time that Thiemer paid $895,000 to Nardulli, he also paid sums to other employees from his personal accounts, some of which were noted to be “profit draws”: a) on October 11, 2006, Thiemer paid $250,000 to Nick Belmonte; b) on October 17, 2006, Thiemer paid $250,000 to Al DeJoseph; c) on October 17, 2006, Thiemer paid $500,000 to Frank Vogt; d) on October 18, 2006, Thiemer paid $300,000 to Marisol Malates; e) on October 22, 2006, Thiemer paid $400,000 to Ted Weir; and f)   on November 23, 2006, he paid a further $250,000 to Nick Belmonte. [22] These payments were in addition to two other payments that had been made earlier in the year as a result of DeJoseph and Belmonte confronting Thiemer about not receiving their profit share: a) on June 23, 2006, Thiemer paid $250,000 to Al DeJoseph; and b) on September 21, 2006, Thiemer paid $250,000 to Nick Belmonte. The cheque request form for the payment to Belmonte indicated that it was for an “Advance on Profit Sharing”. [23] The foregoing amounts paid by Thiemer to employees were less than, or more than, or equal to the amount payable under the draft profit sharing plan. However, it is clear, as the judge found, that the payments were not made in accordance with the formula in the draft plan. [24] Thiemer died on August 21, 2008. Prior to his death, Thiemer retained Brian Gardiner, a chartered accountant and certified fraud examiner, to undertake an analysis of the amounts Thiemer had paid to various C-W employees in October 2006 so as to achieve “parity” among the employees. [25] A complicating feature in this trial was that Thiemer had died and there was little evidence as to his intentions with respect to the profit sharing plan. [26] Critical evidence of Thiemer’s intentions came from a recorded telephone conversation in which Thiemer instructed Gardiner to undertake the analysis to achieve “parity” in the amounts Thiemer had paid C-W employees from his personal accounts in 2006. The telephone instructions made on August 21, 2007 were tape recorded by Gardiner and include the following: There’s a lot of people’s pay that really don’t have any semblance to each other, uh you know people and the profit sharing plan which never worked out and I don’t think ever will, but uh you know with everybody thinking there were profit coming you know I’m supposed to make it so and I was doling out money, you know so, from my personal account to make it so and so you know but I don’t want it out of my personal account in the Cayman’s, or out of my personal account in Canada and a I want it out of the company and what I would like to do is do an audit and see who got what and how they, how they you know, you know sort of parity if any ... . . . You know some people are under balance, some people are way over balance on their profit draws and I just, I just paid them out as for loans, personal loans and that sort of thing and I just want to pacify them, except as bonuses I guess . [Emphasis Added.] [27] Gardiner affirmed Thiemer’s view of the non-existence of the profit sharing plan: Q         Any discussions with Mr. Thiemer about these payments to employees? All this work you had done? A.         We talked about the issue of the profit-sharing plan, and he told me that he had never successfully completed the implementation of a public profit-sharing plan. He told me that he understood it was his obligation to communicate to his senior people that there wasn’t one. [28] These instructions reflect the very unusual circumstances of this case. It is plain that Thiemer, as the company’s sole shareholder, treated C-W as his own financial fiefdom. Thiemer was, in essence, C-W. He paid very significant sums from his personal accounts in the expectation that they would eventually be “run through the company” and he would be repaid the sums he had advanced on behalf of the company. [29] After conducting the review, Gardiner prepared documents dated June 25 and 26, 2008 which identified payments to C-W employees as “profit share/bonus”. The payments were confirmed by Thiemer initialling both documents. The document dated June 26, 2008 included the following statement: The payments in 2005 and 2006 noted above as #1-9 were each, the net after tax amount of the profit share/bonus advanced to by Randy [Thiemer] on behalf of C-W. Accordingly C-W should be declaring the payments at the grossed up amounts and remitting the taxes due. [30] The payment described as item #2 was the $150,000 payment to Nardulli on October 11, 2006. The paragraph immediately following the list of payments referred to the funds that had been advanced for the purchase of a house that was registered in Nardulli’s name. [31] Following Thiemer’s death, Gardiner completed the task assigned to him to “even up” the payments to C-W employees by way of a written schedule setting out his recommendations to the board of directors for amounts he defined as “discretionary bonuses”. The schedule was adopted by directors’ resolution on September 23, 2008. Nardulli was excluded from the schedule and therefore was not entitled to further payment. A note to the schedule explains that in 2006 Thiemer had provided Nardulli with $150,000 and funds to purchase a house. The note further explains that Nardulli was fired for cause in 2006 and therefore ineligible for “profit sharing”. [32] When Nardulli was advised that the payments made to him in 2006 would be treated as bonuses, he told Gardiner he could not afford to pay tax on the amounts he had received. Gardiner testified that because there was no profit sharing plan, the parity issue had to be resolved through discretionary bonuses, or, in Nardulli’s case, by characterizing the advances as gifts, so as to allow Nardulli to avoid paying tax. Gardiner testified that in order for Nardulli to avoid paying tax on these amounts, he decided to characterize the payments to Nardulli as “gifts” unrelated to his employment with C-W. [33] On November 4, 2006, Nardulli demanded to be paid his alleged profit share, a demand that astounded Gardiner since Nardulli had already received a “gift” of $895,000. On November 26, 2008, Nardulli went on medical leave and never returned to work. As noted, he commenced his action against C-W on January 2, 2009 and was dismissed for cause on January 22, 2009. Discretionary Bonus and Profit Sharing Issues [34] In her reasons, the judge summarized her factual findings with respect to the profit share issue, albeit in the context of determining whether a bonus would have formed part of Nardulli’s compensation during the notice period (at para. 555): 1.   Mr. Thiemer promised profit sharing to the senior management employees; 2.   A Profit Sharing Plan was drafted but not formerly implemented by Mr. Thiemer; 3.   Mr. Nardulli was to have been a participant in the Profit Share Plan; 4.   Mr. Thiemer continued to promise profit sharing to various senior employees over the years and, with other senior employees, expressly contracted on behalf of C-W to pay profit sharing under the Profit Sharing Plan, even though the Plan was never formerly implemented; 5.   Since around 2000, the salaries of senior management were capped at $150,000, and there were no salary increases in recognition of the fact that senior management employees would receive profit sharing in lieu of any salary increases; 6.   Mr. Thiemer made payments to Mr. Belmonte as an “advance” on his profit sharing; 7.   Mr. Thiemer acknowledged to Mr. Gardiner that although the Profit Sharing Plan never worked out, everyone believed that they would be receiving profit sharing, and he had “to make it so” and was “doling out money...to make it so”; 8.   Mr. Thiemer asked Mr. Gardiner to determine what payments he had made from his personal account as profit draws, and to “even out” the payments and arrange for those payments to be made by C-W; 9.   Mr. Gardiner based the calculation of the profit sharing payments in part on the terms of the draft Profit Sharing Plan; 10. Mr. Gardiner recognized that Mr. Thiemer’s house purchase for Mr. Nardulli and the $150,000 occurred before Mr. Nardulli was rehired, and was a gift from Mr. Thiemer; and 11. The house and the $150,000 was not an advance on profit sharing, or otherwise related to Mr. Nardulli’s employment. [35] The judge then stated: [556]    Where the Court concludes that the bonus constituted an integral part of the plaintiff’s salary, and the process of determining the bonus under the contract involves an element of discretion, the court will proceed on the basis that this discretion must be exercised reasonably and in accordance with objective criteria: Ivanore v. Bastion Development Corp . (1993), 47 C.C.E.L. 74. [557]    Mr. Gardiner described the payments he determined as discretionary bonuses. However, the payments Mr. Thiemer personally made were considered by him to be profit draws. I accept that they were discretionary because there was no established formula; the discretion must be exercised reasonably and objectively. ... [560]    Furthermore, I do not think that C-W can argue that the Profit Sharing Plan never existed, yet at the same time argue that under the terms of the Plan Mr. Nardulli is not entitled to profit sharing because he was terminated for cause. In any event, Mr. Nardulli may have been terminated for cause in January 2006, but when he was rehired in October 2006 it was on terms that all of his benefits be reinstated, which would include those under the Profit Sharing Plan or the profit draws Mr. Thiemer knew that the senior management employees reasonably expected was an integral part of their overall compensation. C.        Disposition of Profit Sharing Claim [561]    I accept Mr. Nardulli’s argument that the evidence supports a finding that C-W created a reasonable expectation of a Profit Sharing Plan, and those expectations were crystallized into an entitlement to receive payment when Mr. Thiemer paid ‘advances’ on profit sharing to senior management employees in 2006. [562]    The Profit Sharing Plan document was drafted and finalized, except for Mr. Thiemer’s signature. Mr. Thiemer then advised the senior management that the Plan existed and that it was meant to provide significant remuneration as a way to recognize the senior management employees’ devotion to C-W over the years. It was also written into Mr. DeJoseph’s contract when he was hired. [563]    The oral representations made by Mr. Thiemer were intended to have contractual force. He recognized that the employees expected to receive profit sharing. Raises were not given and senior management salaries were left at $150,000 in lieu of the intended profit share payments. When employees confronted Mr. Thiemer about profit sharing or salary increases, he did not deny the existence of profit sharing or try to back out of his promise to pay profit sharing. In fact, he did the opposite. [564]    Although Mr. Thiemer paid several C-W employees substantial amounts that were to be ‘advances’ on the profit shares under the Plan, he does not appear to have followed a formula or to have pegged the payments to anything in particular. However, there is no evidence that he did not appreciate what he was doing. [36] Nardulli’s fundamental pleading was that C-W’s profit sharing plan was a material term of his contract of employment. C-W’s defence, which the judge appears to have accepted, was that C-W never implemented the profit sharing plan. [37] The trial judge found that the payments made by Thiemer to Nardulli in October and November 2006 were in the nature of a gift. The judge concluded that the amounts paid to Nardulli were gifts unrelated to his employment with C-W because they were offered at a time when he was not employed by C-W. On that basis, she considered that the “gifts” should not have precluded Nardulli from an award of profit share. In my opinion, that conclusion is incompatible with the evidence that Nardulli was reinstated to his employment as of October 1, 2006, and the evidence that the payments were actually made after he returned to work. It also ignores the June 2008 document initialled by Thiemer that indicated the $150,000 payment to Nardulli was “profit share/bonus”. Gardiner designated the $150,000 payment as a “gift” solely for the purpose of allowing Nardulli to avoid paying tax on the amount. Furthermore, it ignores the factual context in which the “gifts” were made − at a point in time when Thiemer was rehiring Nardulli, a long-time employee whose re-employment effectively meant he had never left the company. [38] The trial judge also found, incongruously, that although the profit sharing plan was not implemented, Nardulli was nonetheless entitled to profit sharing based on Thiemer’s “oral representations” which were “intended to have contractual force”. She concluded that this created a “reasonable expectation” of payment, which “crystallized into an entitlement” following the “advances” on profit sharing paid to other employees in 2006. [39] The judge agreed with C-W, however, that Nardulli was not entitled to any profit sharing payments in the notice period. [40] On appeal, C-W’s position with respect to the finding that Nardulli was entitled to profit sharing was stated as follows: (a)      Nardulli’s claim, as pleaded and argued at trial, was for payment under a specific “profit sharing plan”. Having determined that no such “profit sharing plan” was implemented, it was not open to the Court to grant an award on the basis of a discretionary bonus; (b)      to the extent it was open to the Trial Judge to make an award on the basis of a discretionary bonus, she erred in doing so, as Nardulli did not establish any contractual right to receive such a bonus; and (c)      even if Nardulli did establish a contractual right to receive a bonus, the bonus was still discretionary in nature and C-W acted reasonably in concluding that Nardulli was not entitled to any bonus payment. [41] C-W’s first position — that it was not open to the judge to grant an award on the basis of a discretionary bonus, since this was not pleaded — has some force. However, I do not need to address it because, although I conclude that Nardulli had some kind of entitlement as a result of the oral representations made by Thiemer, in this case the discretion not to give him a bonus over and above what he had already received was reasonably exercised. Moreover, C-W’s submission that the award should not have been made on the basis of “discretionary bonus” is somewhat anomalous because the order appealed from refers to Nardulli’s entitlement to “profit sharing”; it does not refer to a discretionary bonus. [42] This anomaly may be explained by the fact that the judge’s reasons are unclear as to the precise characterization of Nardulli’s entitlement. Doing the best I can with the findings that are supported by the evidence, I conclude that Nardulli was not entitled to profit sharing as contemplated by the draft profit share plan. However, the evidence does support a finding that he was eligible for a discretionary bonus that was aimed at achieving parity among the employees of C-W. In my view, the critical question is whether C-W reasonably exercised its discretion in refusing to pay Nardulli a discretionary bonus because he had already received $895,000. I conclude C-W did reasonably exercise its discretion. [43] My reasons for these conclusions follows. [44] Central to Nardulli’s argument as to profit sharing was that C-W “created a reasonable expectation” of a profit sharing plan that “crystalized” when other employees were paid amounts described as profit share, a submission the judge accepted (at para. 561). [45] However, the proper legal question to be asked was not whether Nardulli had a reasonable expectation of a profit sharing plan, but rather, whether C-W was under a legal obligation to pay profit share. As stated in Lavarack v. Woods , [1966] 3 A.E.R. at 690: “The general rule as stated by Scrutton, L.J. in Abrahams v. Herbert Reiach, Ltd. , [1922] 1 K.B. 477, that in an action for breach of contract a defendant is not liable for not doing that which he is not bound to do, … The law is concerned with legal obligations only and the law of contract only with legal obligations created by mutual agreement between contractors - not with the expectations, however reasonable, of one contractor that the other will do something that he has assumed no legal obligation to do. [46] Nardulli did not have a written employment contract. The essential terms of his employment were recorded on the Employee Personnel Notification Form submitted on October 17, 2006 which states “reinstate all benefits and pay rate”. The fundamental issue before us is the nature of the “benefits”, if any, to which Nardulli was entitled under his contract of employment. That determination cannot rest, as the judge assumed, on payments made to other employees because their contracts were as between them and C-W. [47] It is difficult to reconcile the judge’s finding at para. 555 that the draft profit share plan was “never formerly implemented” (by which I understand the judge to mean it was not implemented) with her finding at para. 562, that Nardulli’s “expectation” of profit sharing “crystallized into an entitlement” when Thiemer paid “advances” on profit sharing to senior management employees in 2006. [48] There can be no question that Thiemer told his employees in 2000 that he wanted them to share in the profits of the company they had helped to build. [49] There is also no doubt that Thiemer recognized that the formal profit sharing plan “had never worked out”, but that he nonetheless wanted his employees to be compensated for their part in the company’s success. Indeed, in some instances the payments made by Thiemer to others from his personal accounts in October and November 2006 were noted as related to “profit sharing”. [50] Most significantly, as the judge acknowledged at para. 564 of her reasons, Thiemer’s payments to other employees were not made in accordance with the draft profit sharing plan, and were not “pegged … to anything in particular”. [51] Profit sharing plans, such as the draft plan in this case, typically call for profit sharing to be paid on the basis of a formula that reflects the profitability of the company. These have also been called “formula bonuses”: Leduc v. Canadian Erectors Inc. (1996), 18 C.C.E.L. (2d) 216 at paras. 46−47 (Ont. Ct. Jus. Gen. Div.). If the profit sharing plan had in fact been implemented, it would have created a contractual right to a non-discretionary profit-sharing bonus. [52] On the other hand, non-formula bonuses, while they too may reflect the success or profitability of the company, are awarded on a discretionary basis. Such discretion may take into account a myriad of factors. However, they are not paid on the basis of a formula. [53] The judge found that the payments made to the employees did not in fact follow any formula. This, in and of itself, is compelling evidence that the draft profit sharing plan was not implemented. In finding that there was no formula, the judge was precluded from finding that the payments were made pursuant to a non-discretionary, formula-based profit sharing plan. [54] In my opinion, the judge’s finding that he was entitled to profit sharing as contemplated by the draft profit share plan cannot be sustained. The finding does not give effect to the recorded evidence that Thiemer acknowledged that the plan “never worked out”. The plan was, as the judge found, “not implemented”. Neither Thiemer nor C-W, by course of conduct over eight years, confirmed the existence of the plan (i.e., by making payments specifically in accordance with the draft plan). Indeed, Nardulli never demanded payment of profit share when he was dismissed in 2006. At the very most, the payments made in 2006 were to pacify employees for the fact that the profit share plan had never been implemented. [55] That leaves to consider whether Thiemer’s oral representations and conduct gave rise to a different kind of entitlement —such as a discretionary bonus. For ease of reference, the judge’s reasons on this point are repeated: [556]    Where the Court concludes that the bonus constituted an integral part of the plaintiff’s salary, and the process of determining the bonus under the contract involves an element of discretion, the court will proceed on the basis that this discretion must be exercised reasonably and in accordance with objective criteria: Ivanore v. Bastion Development Corp . (1993), 47 C.C.E.L. 74. [557]    Mr. Gardiner described the payments he determined as discretionary bonuses. However, the payments Mr. Thiemer personally made were considered by him to be profit draws. I accept that they were discretionary because there was no established formula; the discretion must be exercised reasonably and objectively. [56] I acknowledge that these paragraphs are inconsistent with the later finding that Nardulli was entitled to profit sharing. I conclude the judge either conflated entitlement to profit sharing under the draft plan with entitlement to a bonus, or considered that the quantum of the bonus should reflect what would have been paid under a notional profit share plan. [57] In any event, Nardulli had the burden of proving a legal entitlement to a bonus. As I have observed, the proof necessary to establish entitlement to any kind of bonus was made more difficult because Thiemer’s testimony was not available. As well, interpreting entitlements based on an oral agreement has additional challenges. As the Court remarked in DeCotiis v. Viam Holdings Ltd ., 2010 BCCA 368 at para. 21: As G.H.L. Fridman notes in The Law of Contracts in Canada (5th ed., 2006) “[i]n the case of a completely oral contract there is greater flexibility in the nature of the evidence that is admissible to prove the contents of the contract and the meaning of the language used by the parties.” (At 440.) This flexibility follows intuitively from the recognition that oral contracts must often be construed without the key interpretive tool used to understand written contracts – the words of the agreement. [58] To determine the nature of the obligation, if any, that arose from Thiemer’s promises to pay “profit share” the court must apply an objective standard in order to protect the reasonable expectations of the parties: DeCotiis at para. 22. [59] This question is typically asked in the context of whether an employee is entitled to bonus payments during the notice period. In that context there is no debate about the factors to be considered in determining whether a bonus forms an integral part of the employee’s compensation. These factors look to the employer’s course of conduct, and include: (a)        whether a bonus was received in previous years; (b)        whether bonuses were required in order to remain competitive with other employers; (c)        whether bonuses were historically awarded and the employer had ever exercised his discretion against the employee; and (d)        whether the bonus constituted a significant component of the employee’s overall compensation. Gillies v. Goldman Sachs Canada Inc ., 2000 BCSC 355 at paras. 62−63, appeal allowed on other grounds, 2001 BCCA 683. [60] Although Gillies deals with the question of whether a plaintiff was entitled to bonuses that would have been earned during the notice period, I consider those factors may also be usefully applied to the question of whether a plaintiff was entitled to a bonus during the employment period. The factors provide objective criteria by which to measure the reasonable expectations of the parties. [61] There is no dispute that before October 2006, Nardulli had never been paid anything resembling a profit share or bonus. C-W relied on the judge’s conclusion that the payments Nardulli received in October and November 2006 were not bonus payments, but rather gifts and that, therefore, those payments could not be classified as “past bonus payments”. However, with respect, the judge overlooked the fact that the “gifts” were merely characterized as such by Gardiner in order to allow Nardulli to avoid tax he would have had to pay had they been declared bonuses. In substance, however, the payments were in the nature of a bonus. [62] There is some evidence of a pattern of paying bonuses in the 2006 payments to other employees and the 2008 payments made to achieve parity. Those payments were, as the judge acknowledged, not made on any objective basis and were entirely arbitrary, a finding that refutes the existence of a profit sharing plan, but supports a finding that a bonus was an integral part of the employment contract. [63] There was no evidence that bonus payments were necessary for C-W to remain competitive. Indeed, Nardulli’s annual salary of $150,000 seems to have been generous compensation for the work he performed. However, C-W employees’ salaries were capped at $150,000 and a bonus that recognized the profitability of the company could validly be considered a significant component of Nardulli’s overall compensation. [64] It is clear that, after Thiemer’s death, Gardiner, who had been designated by Thiemer to determine a mechanism for achieving parity, concluded the amounts to be paid were to be discretionary bonuses. This evidence, along with the other factors, supports the existence of a discretionary bonus as a term of employment. The judge alluded to this in her reasons and accepted that the decision to pay discretionary bonuses had to be exercised reasonably and on the basis of objective criteria (at para. 556): Ivanore v. Bastion Development Corp. (1993), 47 C.C.E.L. 74 (B.C.S.C.). However, having stated that the discretion had to be exercised reasonably, the judge did not address the question of whether C-W had exercised its discretion reasonably. [65] The question then is whether C-W properly exercised its discretion in declining to pay Nardulli an additional discretionary bonus. [66] As I have noted, the judge did not address this issue. Pursuant to s. 9(1)(a) of the Court of Appeal Act , this Court may make any order that could have been made by the trial judge. The evidence is sufficient to allow us to determine the issue omitted by the judge. In my opinion, C-W acted entirely reasonably when it took into account the amounts previously paid to Nardulli. The objective criteria adopted in Gardiner’s recommendation was the substantial “gift” Nardulli had received from Thiemer, which was given in the context of an employment relationship, and which Thiemer apparently sought to recover through the company. To conclude otherwise would reward Nardulli in a way that was completely out of proportion to any of C-W’s other employees and contrary to Thiemer’s express directions that he wanted there to be parity in the payments he had made to employees in 2006. [67] It follows that I would allow the appeal from that part of the order awarding Nardulli an amount for profit share. It also follows that I need not address Nardulli’s cross-appeal that he was entitled to an amount for profit sharing during the 21-month notice period. Wrongful Dismissal [68] The trial judge reviewed in detail Nardulli’s employment history with C-W from 1986 until his final termination in 2008, as well as what can only be described as his unusual relationship with Thiemer. I say “unusual” because, as the judge found, Thiemer tolerated much of Nardulli’s misconduct and was evidently reluctant, likely because of their close personal relationship, to fire him. [69] Nonetheless, Nardulli’s employment was terminated by McLoughlin, with Thiemer’s approval, on January 16, 2006. The grounds for dismissal included repeated absences from work; arriving late and leaving early; being unavailable to meet with fellow managers and subordinates; sleeping in his office; continued substance abuse; and finding that the performance of his duties as the Manager of Operations was “completely inadequate and unacceptable”. [70] As noted, Nardulli was rehired on or about October 17, 2006 at his former salary of $150,000, with benefits, reinstated effective October 1, 2006. His employment record originally indicated that he was hired as “VP Operations”, but Thiemer changed the designation to the lesser position of “Manager” Operations. [71] The judge found that the scope of Nardulli’s duties on his return to work was unclear and that he was effectively Thiemer’s personal assistant or courier. This finding is contrary to Nardulli’s pleading in which he described himself as an “executive” and claimed that he performed the duties of Vice-President Operations for 15 years. It is also contrary to Nardulli’s evidence that his duties upon returning to C-W remained the same as they had been prior to his termination in January 2006. The evidence of C-W was to the same effect. The judge’s erroneous finding is also at odds with the manner in which she assessed the notice period. Contrary to her finding that Nardulli was Thiemer’s “courier”, she assessed the notice period in part on the basis that “he held a senior management position with a supervisory role”. [72] C-W appeals the finding that it did not have sufficient cause to dismiss Nardulli. It bases this argument partly on the judge’s finding that Nardulli essentially performed the duties of a courier and that this implicitly meant that he was not fulfilling his duties as a manager. However, the judge’s erroneous finding cannot be determinative of the issue of whether Nardulli was performing his duties as manager of operations, nor the issue of whether his misconduct warranted dismissal. [73] C-W alleged an array of grounds for just cause from the date of his rehiring in 2006, including unauthorized absences; failing to fulfill job responsibilities of a senior manager; bullying and harassing other employees; failing to co-operate in a company-wide audit following the theft of equipment; and viewing and storing pornographic material on C-W’s computer. [74] The judge reviewed in extensive detail the evidence of C-W’s allegations and parties’ respective positions as to each of the alleged grounds of cause (63 pages of the reasons were devoted to this review). [75] C-W’s fundamental argument is that the judge considered each of the grounds of just cause in isolation and thereby failed to have due regard to the cumulative effect of Nardulli’s misconduct: see Atkinson v. Boyd, Phillips & Co . (1979), 9 B.C.L.R. 255 (C.A.), where this court allowed an appeal on that basis. [76] I am not persuaded the judge failed to consider Nardulli’s pre-2006 misconduct or the alleged misconduct following his rehiring. A careful review of her reasons show that while she did indeed consider each of the grounds of alleged cause, she did so to determine the individual merit of each ground. As I have said, she reviewed the evidence thoroughly and ultimately concluded that the “totality of the evidence” did not support a finding of just cause (at para. 414). That conclusion signifies that all of Nardulli’s alleged misconduct was taken into account. These are findings of fact that deserve deference. [77] Furthermore, the judge’s findings in this respect rested in large measure on the credibility of witnesses. It is well established that an appellate court will not interfere with such findings absent palpable and overriding error: Lensen v. Lensen , [1987] 2 S.C.R. 672. I am not persuaded that the judge erred as alleged. She had ample opportunity to consider Nardulli’s misconduct. She concluded it did not rise to the level of just cause, a finding that was available on the evidence. In substance, C-W’s arguments on appeal amount to an invitation for us to retry the case which is, of course, not the appellate function. I would not accede to this ground of appeal. Special Costs [78] Nardulli cross-appealed, alleging the judge erred in failing to award him special costs. His claim to special costs was based on the ground that C-W had, as the judge noted in her reasons, filed voluminous material” and "left no stone unturned” (at para. 5). The trial judge also issued separate reasons on the matter of costs: 2013 BCSC 441. [79] We indicated at the hearing of the appeal that the appeal from the order dismissing special costs could not succeed. The judge heard many days of evidence and produced extensive reasons for judgment. She heard argument on the costs issue but concluded “this isn’t a case, in my view, that merits an award of special costs. It was a hard fought case”, but did not exhibit conduct that was scandalous or reprehensible. [80] It is settled law that costs awards are highly discretionary and deserve appellate deference. An appellate court should set aside a costs award only “if the trial judge has made an error in principle or if the costs award is plainly wrong”: Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9 at para. 27, [2004] 1 S.C.R. 303. I am not persuaded the judge erred in principle or failed to exercise her discretion. [81] I would not accede to the cross-appeal relating to the special costs issue. Summary [82] I would allow the appeal from the award in respect of profit sharing. I would dismiss the appeal from the award with respect to damages for wrongful dismissal. I would dismiss the cross-appeal in respect of the claim to special costs. [83] As success has been divided, I would order that each party bear their own costs of the appeal. I would not disturb the award of trial costs. “The Honourable Madam Justice Kirkpatrick” I agree: “The Honourable Madam Justice Saunders” I agree: “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Warner v. Cousins, 2014 BCCA 29 Date: 20140128 Docket: CA040476 Between: Christel Lee Warner Appellant (Plaintiff) And Stephen Ward Cousins and S.W. Cousins Construction Ltd. Respondents (Defendants) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Levine The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated November 22, 2012 ( Warner v. Cousins , 2012 BCSC 1737, Kamloops Registry No. 45079). Counsel for the Appellant: T.L. Robertson, Q.C. W.S. Taylor L.N. Martin Counsel for the Respondent: G. Ginter Place and Date of Hearing: Vancouver, British Columbia September 30, 2013 Place and Date of Judgment: Vancouver, British Columbia January 28, 2014 Written Reasons by: The Honourable Madam Justice Saunders Concurred in by: The Honourable Madam Justice Levine The Honourable Mr. Justice Willcock Summary: The appellant appealed from an award of damages in her personal injury action arising from a motor vehicle collision. Liability was admitted. The judge stated that mitigation was considered in assessing damages, but did not describe the scale by which damages were affected or find the behaviour that amounted to a failure to mitigate. She found as well that the plaintiff had “no ambitions” to upgrade her occupational qualifications. Held: Appeal allowed and a new trial ordered. The reasons for judgment fatally obscure the scale and basis of the damages awarded, and the finding of “no ambitions” was based on assumptions not supported by the evidence. Reasons for Judgment of the Honourable Madam Justice Saunders: [1] Ms. Warner suffered injuries to her lower and upper back, her chest, her neck and her shoulders on January 13, 2009 when a truck driven by the respondent Stephen Cousins collided with the vehicle she was driving, at the intersection of 6 th Avenue and Columbia St., Kamloops, British Columbia. She commenced an action for damages for personal injury. [2] At trial, liability was admitted by Mr. Cousins; the contest concerned the scale of damages. This depended upon the extent of the injuries and their long-term effects upon Ms. Warner, both on her need for on-going care and the limitations that the injuries may place upon her ability to earn income. Madam Justice Hyslop did not accept Ms. Warner’s theory of the scale of damages and, after a seven-day trial, awarded the following damages: for non-pecuniary damages $50,000.00 for past wage loss $58,383.25 for loss of future earning capacity $40,000.00 [3] Ms. Warner appeals this award. She contends that errors of fact and law have led to an award that is significantly lower than it should be. She asks us to increase damages or, in the alternative, to order a new trial. [4] At the time of the accident in January 2009, Ms. Warner was 28 years old and employed by Royal Inland Hospital as a licensed practical nurse assigned to a surgical ward. On the day of the accident, she was on sick leave as a result of a snowboarding injury she suffered on December 30, 2008. She anticipated that the injury would keep her from work for four to six weeks. However she did not return to work until March 8, 2010, nearly 14 months after the motor vehicle accident. She attributed the extended absence to the injuries suffered in the automobile collision. [5] Ms. Warner testified that in March 2010, her employer allowed her a graduated return to work but said she had difficulties assuming her duties on a consistent basis because of the sequelae of the collision. She testified that employment restructuring at the hospital and on-going difficulties from her accident injuries caused her to transfer to a casual position as a licensed practical nurse, which allowed her greater flexibility in the frequency of her shifts and the types of work she preferred. Soon after her return to work in 2010, Ms. Warner became pregnant. She began maternity leave in April 2011. Ms. Warner testified that her injuries from the accident continued to cause her difficulties at work up to the time of her maternity leave. The judge noted, however, evidence that she applied for and was awarded a full-time “relief” position in March 2011, as well as a full-time “float” position in July 2011. As I understand it, Ms. Warner did not actually fill either of these positions, a result that is not unusual in the dynamics of staffing the hospital. [6] Ms. Warner testified that the injuries suffered in the collision caused debilitating headaches, social withdrawal, depression and anxiety which prevented a return to work as a licensed practical nurse on a full-time basis. She also contended at trial that the injuries prevented her from achieving her ultimate career goal, that of becoming a registered nurse. Ms. Warner testified that her scholastic ability would have allowed her to attain that goal, and she explained that she had become a licensed practical nurse as a first concrete step in nursing, one that enabled her to earn money before taking the longer, more expensive, registered nurse program. She testified doing so would allow her a second year placement in the registered nursing program, that is, she would obtain some credit for her licensed practical nurse qualification. [7] In respect to household duties and other non-work activities, Ms. Warner testified that for a period of time after the accident she was unable to perform household activities and for these relied upon her partner. She said she still had physical limitations that made certain aspects of caring for her infant son difficult, and that she was unable to participate in many activities she had enjoyed before the accident. She attributed a diminished lifestyle to the ongoing effects from the accident. [8] The defendants vigorously contested the depth and cause of Ms. Warner’s lasting complaints. They said that the physical injuries suffered by Ms. Warner had resolved relatively quickly, and that she was fit to work full-time when the return-to-work program at the hospital was completed. They contested her stated ambition to become a registered nurse, and disputed her assertions of debilitating migraine headaches caused by the accident, saying such headaches were consistent with her pre-accident state of health. They also disputed her alleged inability to engage in certain household and physical activities, and said further that her claim lacked particulars that would give it substance. [9] As is not uncommon in such cases, expert evidence was adduced from doctors, a physiotherapist, a massage therapist, a rehabilitation specialist, a vocational specialist and an economist. [10] The judge rejected much of the bases of Ms. Warner’s claim and found Ms. Warner lacking in credibility in significant areas of her testimony. The judge found: 1.       Ms. Warner was not truthful or had overstated her evidence concerning migraine headaches; 2.       Ms. Warner had suffered from migraine headaches since her teenage years; 3.       any headaches Ms. Warner suffered as a result of the accident “were cervicogenic in nature and did not occur very often” and if she “did have migraine headaches, they did not increase in frequency as a result of the accident”; 4.       Ms. Warner suffered moderate soft tissue injuries to her neck and shoulders, had some headaches of a cervicogenic nature, and “should have been able to go back to work full-time when the return-to-work program ended”; 5.       Ms. Warner had no ambitions to become an RN; and 6.       There was insufficient evidence to find that Ms. Warner’s day-to-day activities and social life had been permanently impacted by the accident. [11] The judge summarized her conclusions on the injuries in assessing non-pecuniary damages: [245]    The injuries suffered by the plaintiff in this motor vehicle accident consist of moderate soft tissue damage to her neck and shoulders, a soft tissue contusion to the chest, and a mild soft tissue injury to the lower back. The latter two resolved themselves quickly. [12] In assessing loss of future earning capacity the judge said in respect to Ms. Warner’s evidence she had wished to become a registered nurse: [193]    If the plaintiff had any serious ambition to enter the school of nursing, she would likely have made inquiries after the completion of her LPN course and would have started to complete the pre-requisites in order to fulfil her ambitions. Instead, she has asked the court to believe that she started to fulfill this ambition while suffering from injuries from the motor vehicle accident which she claims have left her debilitated and unable to work. I do not accept this evidence. Rather, I find that her online inquiries and enrolling in a biology course were calculated acts intended to bolster her claim that the motor vehicle accident derailed her plans to become a RN. [194]    I find the plaintiff had no ambitions to become a RN. And in respect to Ms. Warner’s ability to work as a licensed practical nurse she said: [252]    I found that the plaintiff was able to work full-time after completing the graduated return-to-work program. I assess the plaintiff’s loss of future earning capacity as some loss of a capital asset. Therefore, as a result of the injuries the plaintiff suffered, she may very well from time to time suffer a future loss of income, despite being able to return to work as a LPN on a full time basis. [13] The judge did not accept the claim for cost of future care. She said: [257]    The only recommendations that were made for future care were Botox treatments and perhaps over-the-counter medication and counselling, the latter of which the plaintiff has resisted. Dr. Robinson gave evidence as to the cost of Botox. I concluded that the plaintiff’s migraine headaches had not been exacerbated by the motor vehicle accident. [258]    In order that there be an award for cost of future care, there must be evidence of such. There is no evidence here. Accordingly, I do not award anything for cost of future care. [14] The judge noted, further, that an argument was made to the effect Ms. Warner had failed to mitigate her damages. On this, she said, in its entirety: [254]    The defendants claim that the plaintiff did not mitigate her damages by failing and outright refusing to take counselling as recommended by Drs. Anderson, Boyce, Craig and Lawrence. [255]    In coming to the awards given, I have considered any failure to mitigate. Grounds of Appeal [15] Ms. Warner contends that the judge made palpable and overriding errors in determining her experience of migraine headaches, in finding that she should have been able to work full-time after her graduated return to work program concluded, and in finding that she had no ambitions to become a registered nurse. She says these errors caused the judge to fail in her analysis and findings of fact regarding Ms. Warner’s prognosis. This in turn, she says, led the judge to assess inordinately low damages for non-pecuniary loss and loss of earning capacity, and no damages for cost of future care. [16] Ms. Warner contends as well that the judge erred in law by failing to consider material evidence and by failing to apply the correct legal principles. For example, Ms. Warner complains that the judge referred to a failure to mitigate without determining whether she had failed to mitigate or indicating to what degree that factor affected the damages awarded. Last, Ms. Warner contends that the judge held her to an unreasonably high standard of proof which resulted in an unfair trial. [17] The respondents say that much of Ms. Warner’s appeal focuses upon findings of fact that are based upon the judge’s assessment of credibility and thus beyond our interference, or that are based upon evidence that was before the judge and thus beyond our interference. They say the main hurdle Ms. Warner faced was in persuading the judge that her symptoms not only did not resolve but had become more debilitating, as she claimed. They say this enquiry put Ms. Warner’s credibility to the test, required her to prove that her ability to function in the work for which she was trained was now beyond her because of the injuries suffered in the accident, and required her to establish that other lines of work which she otherwise would have been willing and capable of performing were not pursued because of those injuries. It is beyond the role of this court, they say, for us to interfere with the judge’s conclusions on these matters. [18] As to the scale of damages the respondents contend that the non-pecuniary damages are within the range reflected in similar cases. They deny any error of principle or law. Last, they submit that several of Ms. Warner’s complaints concern matters on which no evidence was adduced, or that otherwise simply were not proved. Discussion [19] It is useful to remember, as our starting point on the appeal, that this court may not interfere lightly with findings of fact. In Lines v. Gordon , 2009 BCCA 106, 306 D.L.R. (4 th ) 1, we summarized at para. 8 our approach on questions of fact, drawn from a long line of cases leading to Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235: Only where there is not a proper evidentiary foundation for a finding of fact in the sense evidence has been misapprehended or there is no evidentiary foundation for the finding (a palpable error), and the error is material to the outcome (overriding), may this Court interfere. [20] The same approach applies to questions of mixed fact and law, but as to questions of law or principle, we look for correctness: Housen v. Nikolaisen . [21] The deference accorded the trial court on questions of fact carries over to the assessment of damages, whether by a judge or a jury. That approach to damages flows from their character; a damages assessment is by definition a fact finding exercise. The deferential approach has long been recognized. The famous statement of our role on assessment of damages in Nance v. British Columbia Electric Railway Company Ltd. , [1951] A.C. 601 at 613-14, [1951] 3 D.L.R. 705 (P.C.), has equal force today: Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance.  Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately  low or so inordinately high that it must be a wholly erroneous estimate of the damage ( Flint v. Lovell , [1935] 1 K.B. 354, approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries, Ld. , [1942] A.C. 601).  The last named case further shows that when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by a court of appeal, be even wider than when the figure has been assessed by a judge sitting alone.  The figure must be wholly “out of all proportion” ( per Lord Wright, Davies v. Powell Duffryn Associated Collieries, Ld. , at 616). [22] As in challenging findings of fact, Ms. Warner faces a high hurdle in overcoming the judge’s view of her credibility, which is particularly within the purview of the trial judge. [23] The classic approach to credibility found in this Province’s jurisprudence, oft-quoted, was provided by Mr. Justice O’Halloran in Faryna v. Chorny , [1952] 2 D.L.R. 354, [1952] 4 W.W.R. 171 (B.C.C.A.) at 357. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. [24] Bearing these principles of deference and the practical considerations spoken of in Faryna v. Chorny in mind, I turn to Ms. Warner’s complaints as to the damages awarded. She challenges most particularly three key conclusions of the judge, the issue of migraine headaches suffered by her, her fitness to return to full-time work at the hospital at the conclusion of the return to work program, and the judge’s conclusion that Ms. Warner “had no ambitions to become a RN”. Her submissions on these matters engage the judge’s conclusions on credibility and the absence of explanation in the reasons for judgment for some of the findings, including as to the basis of the sums awarded. [25] For the reasons that follow I respectively conclude that the order must be set aside. [26] Although Ms. Warner raised several areas of complaint, I will confine my discussion to three areas, the judge’s treatment of the mitigation issue, the reasons advanced for finding that Ms. Warner had no ambition to become a registered nurse, and the absence of an explanation for the bases of the damages award. [27] I will start with what may appear as the tail-end aspect of the reasons for judgment but which illustrates what I will term an opaqueness within them: the view taken by the judge on mitigation of damages. The reasons for judgment recite the defendants’ contention that Ms. Warner’s refusal to take counselling recommended by four doctors, Drs. Anderson, Bryce, Craig and Lawrence, demonstrated a failure on the part of Ms. Warner to mitigate her loss. Earlier in the reasons the judge referred to the doctors’ recommendations for counselling: by Dr. Anderson, in 2010: “Dr. Anderson recommended ‘counselling for anxiety/distress”; by Dr. Bryce, assessment in November 2009: “He also noted there was a ‘significant psychological component’ to her injuries, referring to her nightmares and sleep disturbance. He recommended psychological counselling, as he believed this would give ‘her confidence with her expected normal functional and psychological outcome”; by Dr. Craig, assessment on September 22, 2010: “He wondered whether there was any ongoing anxiety, and was of the opinion that there should be further treatment and investigation, including counselling”; and by Dr. Lawrence, psychological assessment in April 2011: “Ms. Warner could benefit from mental health treatment from a counsellor, psychologist, and/or psychiatrist with experience with motor vehicle or work related injuries and chronic pain.” [28] While it was certainly open to the judge to find that Ms. Warner did not do all that she could have reasonably done to heal herself, and thus failed to take reasonable steps to reduce her damages, on my reading the reasons for judgment do not decide that issue. Further, even if one reads paras. 254 and 255 of the reasons replicated above as finding there was a failure on Ms. Warner’s part to mitigate her damages, the effect of those paragraphs is to obscure the scale of damages found by the judge and to avoid stating what and when Ms. Warner’s omissions amounted to an unreasonable failure to reduce her damages. In other words, those paragraphs do not demonstrate the full scale of damages and the proportionate effect of the failure to mitigate. To put it another way, one cannot say from the reasons for judgment whether the various heads of damages awarded are 100%, 90%, 50% or even 10% of the damages that would have been awarded absent the mitigation issue. Because the reasons for judgment cloak the absolute amount of damages suffered by Ms. Warner, both Ms. Warner and this court are left to wonder whether the judge concluded, for example, that Ms. Warner’s injuries impaired her future earnings and that she could have avoided most of the loss by participating in counselling, or whether the loss is very near the amount that was assessed and the failure to take counselling was found to have little impact on recoverable damages. This obscurity impairs the reviewability of the order, and makes difficult any appellate check on the scale of damages awarded. The same may be said of the non-pecuniary damages awarded, and even the past wage loss claim, as to which the timing of the recommendations for counselling would be relevant. [29] It may be that this cloud over the damages analysis is fatal to the order. In the words of Mr. Justice Hall in Pett v. Pett , 2009 BCCA 232, 93 B.C.L.R. (4 th ) 300 para. 17, there is “very little by way of a road map” explaining the judge’s conclusions on quantum of damages, on the substance of the failure to mitigate, or on the scale of the consequences of the failure to mitigate. [30] Equally troublesome, in my view, is the judge’s treatment of Ms. Warner’s professed ambition to become a registered nurse. [31] The law is clear in regards to assessment of damages for loss of future earnings. If there is a real and substantial possibility of the future event leading to an income loss, as contrasted with mere speculation, that possibility must be taken into consideration in an assessment of damages: Athey v. Leonati , [1996] 3 S.C.R. 458, at para. 27, 140 D.L.R. (4 th ) 235; Smith v. Knudsen , 2004 BCCA 613, 247 D.L.R. (4 th ) 256 at para. 29; Pett v. Pett . Against this standard, the judge’s finding that Ms. Warner had “no ambitions” to become a registered nurse is significant to Ms. Warner’s claim in respect to lost future earning capacity. The finding of “no ambitions” is tantamount to a finding that there was no substantial possibility of Ms. Warner’s becoming a registered nurse, and completely avoided discussion of how likely achievement of that goal was, the effect of her injuries upon her ability to achieve it, and any other contingencies that would bear upon that possibility, such as parenting demands. [32] The question, then, is whether the judge erred in her conclusion that Ms. Warner had “no ambition” to become a registered nurse. [33] Acknowledging the deference we must accord to the judge’s assessment of credibility of a witness, I respectively consider that the reasons given for dismissing entirely the career ambition advanced by Ms. Warner rest upon overly speculative assumptions by the judge. The judge gave two reasons for rejecting Ms. Warner’s evidence: first, that had attainment of registered nurse qualification been Ms. Warner’s ambition “she would likely have made inquiries after the completion of her LPN course”, and, second, that if Ms. Warner held that ambition she “would have started to complete her prerequisites in order to fulfill her ambitions”. One could characterize these two assumptions as the judge taking judicial notice of invariable behaviour of a person in the witness’s position. With respect, I do not see either of these propositions as self-evident, nor in my respectful view do they accord with the practical circumstances of training in the world of nursing care. Ms. Warner testified, and there is no reason to disbelieve, that licensed practical nurses, if admitted to the nursing program, enter the second year, filling spaces in the program vacated by first year nursing students who have dropped out. In other words, there is a recognized path to upgrading from a licensed practical nurse to a registered nurse. I would expect that the experience of this nursing cross-over and of incremental acquisition of vocational qualification is well known, if not to the world generally, to those working side-by-side in health care facilities. Further, I respectfully suggest that it is not in accord with the preponderance of probabilities that a practical and informed person would consider investigating the details of a training program as elemental to an intention to pursue the goal. At most the absence of investigation establishes that the individual had not moved to an imminent pursuit of the stated goal. [34] Nor, in my respectful view, does the fact that Ms. Warner had not started any course prerequisite to the registered nursing program lead naturally to an inference that she did not intend to pursue the program. That fact, on its own, is equally consistent with her stated plan of working as a licensed practical nurse for a period of time. The judge did not address that practical aspect, alone or in the context of the relatively brief time – less than two years – that she had held her licensed nursing qualification prior to the accident. Nor, significantly, did the judge recognize that Ms. Warner had demonstrated ambition to upgrade her qualifications in the past when she left early childhood education in which she had a diploma, for the program that qualified her as a licensed practical nurse. [35] Last, on the issue of upgrading, the judge found that the enquiries made after the accident by Ms. Warner into the registered nursing program were “calculated acts to bolster her claim that the motor vehicle accident derailed her plans to become a RN”. At its heart, this is a finding of fraudulent conduct. On my understanding of the two factors that based the judge’s conclusion that Ms. Warner had “no ambition” to become a registered nurse, it seems to me that this finding cannot be sustained. [36] It may be that even without the assumptions of behaviour of a person wishing to upgrade a nursing qualification, Ms. Warner may not have established a substantial possibility she would become a registered nurse. We do not know, however, absent consideration of Ms. Warner’s evidence on this matter free of unsupported assumptions such as are found in the reasons for judgment, how that question would be resolved. Nor can we discern the impact of the speculation on the assessment of credibility which founds other conclusions adverse to Ms. Warner. I conclude that the judge’s treatment of the evidence relating to Ms. Warner’s professed ambition to become a registered nurse seriously undermines the judgment. [37] As a last matter, I would comment on the absence of explanation in the reasons for judgment for the scale of the non-pecuniary damages and for the damages for loss of future earning capacity. I have already addressed the obscurity of these damages caused by the reference to mitigation. Assuming, for the purposes of this discussion, that the amounts awarded are very near the absolute loss that the trial judge found Ms. Warner suffered, there are no findings by the judge on the degree or nature of the loss of enjoyment of life and loss of amenities that might explain the not insignificant award for non-pecuniary loss. Nor is there a reference point to explain the fashion in which Ms. Warner’s “capital asset” has been impaired for purposes of the assessment of future loss. Absent some explanation, even if brief, the case is like Pett v. Pett , with very little of a roadmap. [38] I respectfully conclude from these three areas of concern that the order of the judge must be set aside. While it is within our authority to substitute an award of damages as was done in Pett v. Pett, the issues required to be decided in this case do not lend themselves to that procedure. In my view the case should be remitted to the trial court for a new trial. [39] I therefore would allow the appeal, set aside the order, and remit the matter for a new trial. I would leave the issue of costs of the first trial to be determined on the second trial. “The Honourable Madam Justice Saunders” I AGREE: “The Honourable Madam Justice Levine” I AGREE: “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Lam v. Chiu, 2014 BCCA 32 Date: 20140129 Docket:  CA040615 Between: Miguel Lam Respondent (Plaintiff) And May Mee Ling Chiu Appellant (Defendant) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Frankel The Honourable Madam Justice Bennett On appeal from:  An order of the Supreme Court of British Columbia, dated July 25, 2013 ( Lam v. Chiu , 2013 BCSC 34, Vancouver Docket No. S118154). Counsel for the Appellant: W.J. McMillan and D.M. Field Counsel for the Respondent: E.G. Wong Place and Date of Hearing: Vancouver, British Columbia October 17, 2013 Place and Date of Judgment: Vancouver, British Columbia January 29, 2014 Written Reasons by: The Honourable Mr. Justice Frankel Concurred in by: The Honourable Madam Justice Newbury The Honourable Madam Justice Bennett Summary: Appeal by C. from a judgment based on her failure to repay an undocumented loan for $100,000.00 in cash.  C. denied the existence of the loan.  The trial judge accepted the evidence of J. and L. that the loan was made from a large amount of cash J. kept in L.’s safe.  When C. refused to repay the loan, it was repaid by L. who took an assignment from J.  L. then sued C. On appeal, C. argued that the trial judge: (a) erred in admitting notes L. testified he made to keep track of the money in the safe; (b) failed to consider or misapprehended evidence; (c) failed to properly assess the credibility of J. and L.; and (d) failed to provide sufficient reasons.  Held:  Appeal dismissed. Having failed to object to the admissibility of the notes at trial, C. was not entitled to do so on appeal.  The trial judge neither failed to consider nor misapprehended any evidence.  It was open to the judge to make the credibility findings she did.  She provided sufficient reasons for those findings. Reasons for Judgment of the Honourable Mr. Justice Frankel: Introduction [1] This appeal concerns an undocumented loan between strangers for $100,000.00 in cash.  It is an example of how at times the truth can be stranger than fiction. [2] May Mee Ling Chiu appeals from a judgment in favour of Miguel Lam, based on a finding that she borrowed money from Alan Johnson.  When Ms. Chui did not repay the loan, Mr. Johnson assigned it to Mr. Lam, who then sued Ms. Chiu. [3] The loan was arranged by Mr. Lam at a time when he and Ms. Chiu were involved in a romantic relationship.  The circumstances of the loan can be described as unusual, in part because Ms. Chiu was not asked to acknowledge it in writing and because the funds came from a much larger amount of cash Mr. Johnson kept in the safe at Mr. Lam’s pharmacy.  Mr. Johnson and Ms. Chiu did not know each other. [4] The central issue at trial was credibility.  Mr. Lam and Mr. Johnson gave evidence concerning cash being kept in the safe.  Both testified the loan was made to Ms. Chiu and later repaid by Mr. Lam (in cash).  Ms. Chiu testified she did not know Mr. Johnson kept money in Mr. Lam’s safe and denied the existence of the loan.  The trial judge, Madam Justice Gray of the Supreme Court of British Columbia, rejected Ms. Chiu’s evidence.  Although the evidence of Mr. Lam and Mr. Johnson was not without difficulties, the judge was satisfied, on a balance of probabilities, that the loan had been made. [5] Ms. Chiu seeks a new trial on the basis that the trial judge erred in several respects.  She says the judge wrongly relied on a prior consistent statement of Mr. Lam’s, being notes he testified he made to keep track of the money he was holding for Mr. Johnson.  Ms. Chiu also says the judge failed to consider or misapprehended evidence, failed to properly assess the credibility of Mr. Lam and Mr. Johnson, and failed to provide sufficient reasons for her decision. [6] For the reasons that follow, I would dismiss this appeal. Factual Background [7] What follows is a general outline of the case.  Other aspects will be discussed in relation to the grounds of appeal. [8] Mr. Johnson became a customer at Mr. Lam’s pharmacy in 1998.  Over the years, a friendship developed between them. [9] In 2006, Mr. Johnson asked Mr. Lam if he could store cash in the pharmacy’s safe.  Mr. Lam agreed, on the basis that he would not be responsible if any of the money were stolen.  Mr. Johnson testified that the cash came from his savings and an automobile accident settlement of approximately $65,000.00.  The cash had been in a safety deposit box at a bank before Mr. Johnson took it to the pharmacy.  Mr. Johnson moved the money in part so his then girlfriend would not find out about the settlement proceeds and because he was concerned that having a large amount of money would affect his entitlement to government benefits. [10] Mr. Johnson brought cash to the pharmacy, usually in $5,000.00 bundles.  Mr. Lam kept a running total of the money he kept in the safe for Mr. Johnson on pieces of scrap paper. [11] Ms. Chiu (a divorcee) is a little older than Mr. Lam (a widower).  They met in December 2007, started dating in early 2008, and, in the spring of 2008, became engaged to be married.  Before meeting Mr. Lam, Ms. Chiu successfully speculated in real estate.  She owns Ultimate 24K Gold Co. Ltd. (“Ultimate”), a retail jewellery store which she opened in 1992.  (As discussed later in these reasons, there was confusion in the evidence as to when Ms. Chiu and Mr. Lam met.  This resulted in a successful mid-trial application by Mr. Lam to amend his pleadings with respect to when the loan was made.) [12] Mr. Lam testified Ms. Chiu was present in the pharmacy on at least one occasion when Mr. Johnson brought in cash and that he explained to her the arrangement he had with Mr. Johnson.  Ms. Chiu denied knowing Mr. Johnson kept cash in the safe. [13] According to Mr. Lam, in the spring or summer of 2008 Ms. Chiu asked him if Mr. Johnson would lend her $100,000.00, to be repaid in one year with 10% interest, as she needed money to restock her store.  She said she would be attending an annual jewellery show in Hong Kong that September. [14] Mr. Lam approached Mr. Johnson, who agreed to loan the money to Ms. Chiu.  Mr. Johnson testified he did not ask Ms. Chiu to sign any document evincing the loan as he and Mr. Lam were friends and Mr. Lam had agreed to repay the money if Ms. Chiu did not.  Mr. Lam said he took the $100,000.00 from the safe in August 2008, and delivered it to Ms. Chiu in a paper bag.  Ms. Chiu denied receiving the money. [15] Ms. Chiu testified she attended the jewellery show in Hong Kong where she purchased only some figurines.  She also visited her mother. [16] According to Mr. Lam, in early August 2009 he asked Ms. Chiu about repaying the loan.  Mr. Lam testified Ms. Chiu asked for a further six months to pay.  Mr. Johnson testified that Mr. Lam told him Ms. Chiu wanted a further six weeks. [17] In late 2009 the relationship between Mr. Lam and Ms. Chiu began to fall apart; they became upset with each other for various reasons.  Eventually, their relationship ended. [18] Mr. Johnson testified he expressed his concern about the non-repayment of the loan to Mr. Lam.  They both said that Mr. Lam repaid the loan, in cash, in December 2009. [19] Mr. Johnson assigned the loan to Mr. Lam in early 2010.  They signed a written assignment in January 2010 which reads (in part): A.         The Assignor [Mr. Johnson] agreed, in or about August 2007, to lend $100,000 in cash to Ms. May Mee Ling Chiu, borrowing either on her own behalf or as an agent for Ultimate 24K Gold Co. Ltd (“Ms. Chiu” and “Ultimate” collectively being the “Borrower”); and B.         The Borrower and the Assignee [Mr. Lam] were to be jointly liable to repay to the Assignor, within one year, $100,000 together with an additional $10,000 in interest (the “Contract”); and C.        Following default under the Contract by the Borrower, the Assignee paid $100,000 to the Assignor in or about December 2009[.] [20] Mr. Lam testified that his efforts to have Ms. Chiu repay the loan failed.  On August 15, 2010, after Mr. Lam and Ms. Chiu had been estranged for several months, he went to her store and, using a pen video camera, secretly recorded their conversation.  The trial judge found what Ms. Chiu said during this conversation to be “equivocal” with respect to the existence of the loan. [21] On August 16, 2010, Mr. Lam commenced an action against Ms. Chiu. [22] On March 10, 2011, Mr. Johnson swore an affidavit setting out the circumstances in which the loan was made and repaid.  It is inconsistent with the evidence he gave at the trial in a number of respects.  In particular, Mr. Johnson deposed that the loan was made in 2007.  When confronted with the inconsistencies he said he was unhappy about having to swear the affidavit and read it quickly, without paying attention to details. The Pleadings with Respect to When the Loan was Made [23] Mr. Lam’s original notice of civil claim filed August 16, 2010, alleged that “on or about August 2007” he agreed to loan Ms. Chiu $100,000.00 (at 10% interest) with repayment to begin in August 2008.  It was further alleged the loan was to be paid in full by August 2009, and that although Mr. Lam had demanded repayment, Ms. Chiu had neglected or refused to pay. [24] In her response to civil claim, filed September 3, 2010, Ms. Chiu generally denied the facts set out in Mr. Lam’s notice. [25] On February 9, 2011, Mr. Lam filed an amended notice of civil claim in which he alleged that “on or about August 2007” he agreed to help Ms. Chiu obtain a $100,000.00 loan from a “friend/customer” named “Allan”, whose last name he wished to keep confidential.  The notice further alleged that Allan lent the money to Ms. Chiu who did not repay it; and that Mr. Lam repaid it, without interest, in the fall of 2009. [26] In her amended response, filed on February 25, 2011, Ms. Chiu denied having borrowed money from either Mr. Lam or Allan. [27] On November 7, 2011, Mr. Lam filed a further amended notice of civil claim, in which he alleged that “on or about August 2007” he agreed to facilitate Ms. Chiu or Ultimate borrowing $100,000.00 from Mr. Johnson.  It was further alleged that Mr. Lam repaid the loan, without interest, in the fall of 2009, and that Mr. Johnson assigned to Mr. Lam “any and all causes of action against [Ms. Chiu] and Ultimate.” [28] Ms. Chiu filed a further amended response on December 2, 2011, in which she denied having borrowed money from either Mr. Lam or Mr. Johnson. [29] The trial commenced on January 23, 2012.  Mr. Lam was the first witness.  His testimony was based on a chronology in which he and Ms. Chiu started dating in early 2007. [30] After Mr. Lam completed his evidence the trial judge allowed his counsel to call Ms. Chiu as an adverse witness: Lam v. Chiu , 2012 BCSC 441, 30 C.P.C. (7th) 403.  Ms. Chiu initially testified she met Mr. Lam in early 2007, which was consistent with her evidence on discovery. [31] During Ms. Chiu’s testimony documents were produced concerning her purchase of a condominium in October 2007.  As that purchase took place before she met Mr. Lam, she realized she had been mistaken in her previous testimony as to when certain events occurred.  In particular, based on the condominium purchase, she now testified they started dating in early 2008, not in early 2007.  This occurred on the ninth day of the trial. [32] After Ms. Chiu completed her evidence the trial judge adjourned the matter for approximately two months for the calling of further witnesses.  Before that occurred, Mr. Lam applied to amend his pleadings based on his having met Ms. Chiu in 2006 or 2007.  The trial judge granted that application: Lam v. Chiu , 2012 BCSC 677, 98 C.B.R. (5th) 153.  The judge ordered Ms. Chiu to produce further documents and to attend further examinations for discovery. [33] Mr. Lam filed an amended notice of civil claim on April 30, 2012, alleging that the loan was made in 2007 or 2008. [34] When the trial resumed, both Mr. Lam and Ms. Chiu were recalled.  Mr. Lam testified that some of the dates he had given in his previous testimony were incorrect because, at the time he testified, he mistakenly believed he first met Ms. Chiu in December of 2006 and that they had started dating early in 2007.  He said he now realized they met in December 2007 and that the loan was made in August 2008.  He said that the date of the loan set out in the assignment was wrong because he gave the wrong date to the lawyer who prepared it.  Ms. Chiu was examined with respect to her financial circumstances and those of her company, particularly after September 2008. [35] Mr. Johnson was called as a witness by Mr. Lam after the pleadings were amended. Trial Judge’s Reasons [36] The primary issue for the trial judge was credibility.  She reviewed the evidence of Mr. Lam, Mr. Johnson, and Ms. Chiu in some detail.  In the end, she was satisfied as to the existence of the loan.  She concluded the portion of her reasons headed “Credibility and Factual Conclusions” as follows: [84]      Overall, I found Mr. Lam’s evidence on the key matters to be credible and consistent with the relevant documents. His answers were careful but responsive and complete.  His answers did not appear to be tailored, and did not go as far as one would expect a story to go if it were fabricated. [85]      [Mr. Johnson]’s evidence is not conclusive on the question of whether Ms. Chiu borrowed the funds, because [Mr. Johnson] did not deal directly with Ms. Chiu about the making of the alleged loan.  It would be possible at least theoretically for Mr. Lam to have lied to [Mr. Johnson] about Ms. Chiu’s request for the loan.  However, it is improbable that Mr. Lam would have wanted to borrow money from [Mr. Johnson] and fabricated the explanation that it was for Ms. Chiu.  At the time of the alleged loan, Mr. Lam and Ms. Chiu were engaged to marry.  The evidence suggests that Mr. Lam was in a strong financial situation, and there was no reason for Mr. Lam to wish to borrow funds personally and pretend that they were for Ms. Chiu. As a result, there would not have been any reason for Mr. Lam to have concocted a story that Ms. Chiu wanted to borrow money. [86]      [Mr. Johnson]’s evidence supports Mr. Lam’s evidence that Mr. Lam was keeping cash for [Mr. Johnson] at the pharmacy, that Mr. Lam asked for the loan saying that it was for Ms. Chiu, that there was a delay in repayment, and that Mr. Lam ultimately paid [Mr. Johnson] $100,000. [87]      On balance, I considered [Mr. Johnson]’s evidence to be unreliable concerning details, but generally reliable about the most significant events.  It is improbable that [Mr. Johnson] would invent the story about storing money at the pharmacy because it is an unusual story, because there is an explanation based on his illness, and because the Scrap Ledger Notes provide some support. [88]      As stated, Ms. Chiu’s evidence was difficult to assess because she testified as an adverse party witness and through an interpreter. I found her evidence to be incomplete and unsatisfactory regarding her own and Ultimate’s financial circumstances. [89]      The most compelling evidence on the overall question of credibility is the evidence of [Mr. Johnson], which supports Mr. Lam’s evidence, and the evidence of the improvement in Ultimate’s financial circumstances following the making of the alleged loan. It is improbable that [Mr. Johnson] and Mr. Lam concocted the story about Mr. Lam storing money for [Mr. Johnson] because it is an unusual story, and because the Scrap Ledger Notes are more likely to have been created at the times [Mr. Johnson] deposited money than later for the purposes of supporting a concocted story. It is improbable that Mr. Lam would have borrowed money personally from [Mr. Johnson] because Mr. Lam did not appear to have any need for money at the relevant time.  It is more probable that Ms. Chiu borrowed the money.  Ultimate had been losing money, giving Ms. Chiu a reason to borrow cash.  Ms. Chiu continues to believe that Mr. Lam treated her badly and owes her something for what he got from her during the relationship, which gives her a motive to retain the borrowed funds. [90]      On the balance of probabilities, I prefer Mr. Lam’s evidence except on details like dates, and conclude that in August 2008, Ms. Chiu asked Mr. Lam to arrange the loan for her and received the $100,000 loan funds in cash.  I also accept the evidence of Mr. Lam and [Mr. Johnson] that Mr. Lam repaid the principal amount of $100,000 in late 2009, and that [Mr. Johnson] did not require any payment of interest. Grounds of Appeal [37] In her factum, Ms. Chiu raises the following grounds of appeal: The trial judge erred in law by relying on a prior consistent statement for the truth of its contents. The trial judge erred in law by failing to consider relevant evidence. The trial judge erred in failing to properly assess the credibility of Mr. Lam and [Mr. Johnson]. The trial judge misapprehended the evidence on the 2009 Financial Statements. The trial judge failed to provide sufficient reasons for judgment. Analysis Prior Inconsistent Statement/Scrap Ledger Notes [38] This ground relates to the admissibility of what the trial judge referred to as “Scrap Ledger Notes”, being notes Mr. Lam testified he made to record the movement of money in and out of the safe. [39] During examination in-chief, Mr. Lam gave the following answer when asked how he kept track of Mr. Johnson’s money: I kept track of the money in a piece of paper.  Whenever he brought the money, I would add it up.  Whenever he requested some money back, I would subtract it. [40] Mr. Lam identified two pieces of paper as being ones on which he had recorded money received from and returned to Mr. Johnson.  Both were portions of invoices for purchases for his pharmacy, one dated May 9, 2008, the other June 11, 2009.  On the back of each, Mr. Lam had written a plus or minus amount beside which he wrote the current balance.  In some cases the date of a transaction was also recorded. [41] With reference to the notes, Mr. Lam stated: A          Okay.  It shows here that in December 2007 I facilitated to the loan of a hundred thousand dollars to May.  And there is another notation from Allan on the -- in the middle top of the page which shows that he had $95,000 with me at the pharmacy at the moment.  The total amount $195,000 is the hundred thousand dollars from the loan plus the 95,000 that was stored at the pharmacy at that time.  As he kept bringing money, $5,000, I would just add it up from 195 - to $200,000, and it went on all the way until December 17th when I repaid the hundred thousand dollars loan to him, and I gave him the $75,000 I was storing in the pharmacy. Q         Mr. Lam, what is that at the end? A          At the end there’s a circle with a slash.  It just means that -- that Allan didn't have any more money stored in the pharmacy, and I have given the hundred thousand dollars to him. [42] At this point, Mr. Lam’s counsel asked that the notes be marked as an exhibit.  In response to a question from the trial judge, Ms. Chiu’s counsel stated he had no objection and asked that the originals, as opposed to copies, be marked.  This was done. [43] Mr. Lam went on to testify, in-chief, that there had been similar pieces of paper that he had discarded when there was no longer room for a new entry.  He said that when he ran out of room he would write the then current balance on the top of a new piece of paper and throw the old one away. [44] Ms. Chiu’s counsel used this exhibit in cross-examining Mr. Lam and Mr. Johnson.  For example, when Mr. Lam was questioned about the notation “(Given to May Chiu) Owe 100,000”, at the top of the first piece of paper, he said it was not made at the time of the loan and that he could not recall when he made it.  Mr. Johnson was questioned about the notation “Sept 2007” in his handwriting which appears under “(Given to May Chiu) Owe 100,000”.  He could not recall when or why he made it. [45] Ms. Chiu now objects to the notes becoming evidence at trial.  She submits their admission offends the rule that generally prohibits the introduction of a prior consistent statement:  see R. v. Stirling , 2008 SCC 10 at paras. 5 – 7, [2008] 1 S.C.R. 272; R. v. Dinardo , 2008 SCC 24 at paras. 36, 37, [2008] 1 S.C.R. 788. [46] In my view, it is too late for Ms. Chiu to raise this objection.  It is clear from the trial record that her counsel affirmatively chose not to object to the notes becoming evidence.  Further, I do not accept Ms. Chiu’s submission that after the amendment to Mr. Lam’s pleadings was permitted it was too late to object.  She suggests, albeit indirectly, that if the original pleadings had alleged a loan in 2008, then an objection would have been made when the exhibit was tendered.  However, if the amendment changed her position with regard to her trial strategy and the admissibility of the notes, then it was open to her to apply to the trial judge to exclude the notes or declare a mistrial.  Ms. Chiu did neither.  Rather, after the pleadings were amended she continued to use the notes in cross-examination and, in closing submissions, relied on answers given by Mr. Lam and Mr. Johnson concerning some of the notations in challenging their credibility. [47] If a party objects to the admissibility of evidence, then that objection should be made in a timely manner, namely at the time the evidence is tendered.  This is particularly so in civil cases.  As Chief Justice Macdonald stated in Hall v. Geiger , [1930] 3 D.L.R. 644 at 644 (B.C.C.A.), “The Court assumes that where no objection is taken to evidence, it is not regarded as of any prejudice to the defendant, the person who might have taken the objection.”  See also: McBryde v. Womack , 2013 BCCA 260 at paras. 52 – 57, 44 B.C.L.R. (5th) 209; Bransford v. Yilmazcan , 2010 BCCA 271 at para. 24, 320 D.L.R. (4th) 535; Mallet v. Alberta (Motor Vehicle Accident Claims Act, Administrator) , 2002 ABCA 297 at paras. 62 – 65, 15 Alta. L.R. (4th) 231.  Indeed, this Court’s jurisprudence reflects a reluctance to permit a party to raise an objection to a jury charge in a civil case for the first time on appeal: Basra v. Gill (1995), 99 B.C.L.R. (2d) 9 at para. 15 (C.A.), leave ref’d [1995] 2 S.C.R. v. [48] Another consideration is that had a timely objection been taken, Mr. Lam might have been able to establish a basis for admitting the notes.  In his factum, Mr. Lam advances several such arguments to which Ms. Chiu has filed a reply.  However, because of the position taken by Ms. Chiu at trial, this Court does not have available the record necessary to deal with all of those arguments.  The following statement by Mr. Justice Doherty in R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.), is equally apt in civil cases: [12]      It would be wrong for this court to undertake the analysis required to decide whether the evidence was admissible based on a record in which none of the relevant considerations were explored because the defence chose not to litigate the admissibility of the evidence at trial.  Absent any suggestion of ineffective representation at trial, or some other adequate explanation for the absence of any objection to admissibility at trial, I would not give effect to an argument that comes down to the contention that an accused should receive a new trial on the ground that had he chosen to challenge the admissibility of evidence at trial he might have been successful. [49] I would not accede to this ground of appeal. Misapprehension of Financial Statements [50] Mr. Lam tendered financial statements for Ms. Chiu’s company, Ultimate, through her as an adverse witness.  Those statements had been prepared by an accountant from information provided by Ms. Chiu. [51] Ms. Chiu was examined extensively about the changes in the company’s financial position from 2007 through 2009.  The unaudited financial statements for the year ending December 31, 2009, were of some significance to the trial judge.  Ms. Chiu contends the judge misapprehended that evidence and, as a result, improperly drew inferences adverse to her. [52] In discussing the financial statements, the trial judge said this: [57]      Ultimate’s unaudited financial statements show inventory purchases in 2009 of about $159,000, being about $100,000 more than the inventory purchases recorded for 2008.  They show inventory at the end of 2009 of about $186,000, which is similar to the year end of 2008 which was reported at $188,000.  The bank loans (including overdraft) at the end of 2009 have been reduced by about $12,000 from 2008 (leaving a $1,000 balance), and the amount due to the shareholder at the end of 2009 has been reduced by about $30,000 to about $275,000.  This represents an improvement of about $42,000, which is more than the reported operating profit of only about $23,000. The financial statements do not explain how Ultimate was able to reduce these other figures by a total of about $19,000 more than the operating profit. [58]      The operating profit appears in the financial statements to be the result primarily of the reduction in expenses in 2009 of about $53,000 compared to 2008.  The reduction results primarily from two line items.  The advertising and promotion expenses in 2009 are reported as about $20,000 less than 2008, and the management wages in 2009 as about $31,000 less. [59] The discrepancy between the operating profit of about $23,000 and the reduction in liabilities of about $42,000 is consistent with Ultimate having the benefit of cash which is not reported in the financial statements , although it could also relate to errors such as misreporting of inventory. [Emphasis added.] [53] The trial judge referred to the financial statements in assessing Ms. Chiu’s credibility: [83]      I considered the following regarding Ms. Chiu’s evidence: . . . b)   Ultimate’s financial statements show operating losses in 2007 and 2008.  Ultimate’s customers might have been more attracted to new inventory, and so new inventory might have led to increased sales.  Ultimate’s financial statements show both a significant increase in purchases of inventory in 2008 and 2009, and a profit in 2009 of about $23,000.  The operating profit is insufficient to explain the reduction in liabilities of about $42,000. The financial statements do not fully explain Ultimate’s financial position, and that is consistent with cash transactions failing to appear in Ultimate’s books. Ultimate bought a significant amount of inventory on a consignment basis, such that Ultimate paid for the inventory only if Ultimate sold the inventory.  However, Ultimate did not need to purchase all inventory in this way.  As a result, it is plausible that Ultimate needed funds to purchase more inventory and that Ms. Chiu wanted funds to do so, even if Ultimate paid most of its suppliers over time; c)   Ms. Chiu’s personal living expenses significantly exceed the salary she takes from Ultimate.  Some of Ultimate’s business transactions are in cash.  As a result, it is plausible that she is frequently involved in cash transactions, and mixes up Ultimate’s cash with her own; d)   Ultimate’s financial statements show an increase in inventory purchases in 2009 compared to 2008 of about $100,000 .  While the financial documentation did not show Ultimate receiving those funds, neither was there any explanation of the source of the additional $100,000 in inventory purchases. Ms. Chiu testified that she received periodic sums of cash from her children and ex-husband, but she called these sums “pocket money” and suggested that they were relatively modest; e)   Ultimate’s financial records were confusing and incomplete, and Ms. Chiu did not appear to understand them.  However, Ultimate is a relatively small business, and Ms. Chiu relied on someone else to maintain the financial records; f) Ms. Chiu’s evidence about inventory purchases at particular times was inconsistent and confusing. However, she has operated Ultimate for about twenty years.  It is not surprising that it would be difficult for her to remember particular years and particular purchases; g)   Around the time of the alleged loan, Ms. Chiu took advances from a line of credit.  This would not likely have been necessary if Ms. Chiu had received $100,000 from [Mr. Johnson] or Mr. Lam, and therefore supports Ms. Chiu’s denial of the making of the loan.  However, she may have chosen to keep her cash transactions separate from banking transactions; h)   There is no record of a deposit in the range of $100,000 into any account of Ms. Chiu’s or Ultimate’s around the time of the alleged loan.  However, it appears that Ms. Chiu often deals in cash; . . . m)  Ms. Chiu and Ultimate made significant document disclosure, but there were problems with it, including the production of documents during trial, the creation of documents during trial, and the production of a portion of a bank statement regarding her older sister’s account.  While this could be an attempt to suppress evidence, it appeared to be related to Ms. Chiu’s lack of sophistication about the court process and business documents. [Emphasis added.] [54] Ms. Chiu submits that the trial judge misread the 2009 financial statements, particularly in respect to the apparent improvement in Ultimate’s financial position in 2009.  She says that as she did not prepare those statements or the documents on which they were based, she could not give reliable evidence as to their contents.  She also notes that no other witness gave evidence with respect to the statements. [55] Ms. Chiu contends that in finding there had been an unexplained improvement in Ultimate’s financial position in 2009, the trial judge failed to have regard to such things as the reductions in the expenses from 2008 to 2009 for advertising and promotion, and management wages.  She says that it is not clear whether the statements were prepared on a cash or accrual basis.  In effect, she argues that nothing in the financial statements supports an inference there was an injection of cash into her business in 2009. [56] I am unable to accept Ms. Chiu’s submission.  To begin, it is clear from para. 58 of the trial judge’s reasons that she was aware of the decrease in the expenses for advertising and promotion, and management wages. [57] The trial judge was also aware that the financial statements were unaudited and did not fully explain Ultimate’s financial position.  Nevertheless, she was entitled to draw reasonable inferences from the evidence before her.  On its face, the 2009 statements evinced an improvement in Ultimate’s financial picture for which Ms. Chiu could not fully account.  As well, Ms. Chiu did not call evidence to address issues arising from the financial statements. [58] In my view, the trial judge did not misapprehend the financial statements and made no palpable and overriding error in the inferences she drew.  Accordingly, I would not accede to this ground of appeal. Failure to Consider All Relevant Evidence/Assessment of Credibility [59] These two grounds are intertwined and can be dealt with together. [60] Ms. Chiu submits that the trial judge failed to address a number of inconsistencies in the evidence of Mr. Lam and Mr. Johnson and did not meaningfully address their credibility.  Citing this Court’s judgment in Mariano v. Campbell , 2010 BCCA 410 at para. 50, 9 B.C.L.R. (5th) 318, Ms. Chiu says that the judge did not seize the substance of the critical issues.  I disagree. [61] The critical factual issue for the trial judge was whether the loan had been proven on a balance of probabilities.  The narrative of events concerning the making and repayment of the loan related by Mr. Lam and Mr. Johnson was, as the judge aptly described it, unusual and improbable.  Ms. Chiu denied the existence of the loan.  The testimony given by each of them was fraught with inconsistencies. [62] To determine whether there was a loan, the trial judge had to deal with credibility; what she stated in para. 2 of her reasons as being “the primary issue in this case”.  Later, she described the question of what evidence to accept as being “particularly difficult”:  para. 77. [63] As I have already mentioned, the trial judge reviewed the evidence of each witness in some detail.  She noted inconsistencies and contradictions, some of which she found more troubling than others.  In the end she rejected the evidence of Ms. Chiu and accepted the evidence of Mr. Lam and Mr. Johnson, not in its entirety, but with respect to the significant events. [64] It cannot be denied that trial judges are best placed to determine issues of credibility; they occupy a “singular perch” in that regard: R. v. C.L.Y. , 2008 SCC 2 at para. 21, [2008] 1 S.C.R. 5.  As Mr. Justice Dickson (as he then was) stated in dissent in Taylor v. Asody , [1975] 2 S.C.R. 414 at 423, a trial judge has the great advantage of seeing and hearing the witnesses, of observing demeanour, noting nuances of expression, detecting dissimulation.  These are aids to judgment which cannot be reflected in the written record of a case and are, therefore, aids denied to an appellate court. [65] More recently, in F.H. v. McDougall , 2008 SCC 53, [2008] 3 S.C.R. 41, Mr. Justice Rothstein stated: [70] The trial judge was not obliged to find that F.H. was not credible or that his evidence at trial was unreliable because of inconsistency between his trial evidence and the evidence he gave on prior occasions. Where a trial judge demonstrates that she is alive to the inconsistencies but still concludes that the witness was nonetheless credible, in the absence of palpable and overriding error, there is no basis for interference by the appellate court. [71]      All of this is not to say that the concerns expressed by Rowles J.A. were unfounded.  There are troubling aspects of F.H.'s evidence.  However, the trial judge was not oblivious to the inconsistencies in his evidence. The events occurred more than 30 years before the trial. Where the trial judge refers to the inconsistencies and deals expressly with a number of them, it must be assumed that she took them into account in assessing the balance of probabilities. Notwithstanding its own misgivings, it was not for the Court of Appeal to second guess the trial judge in the absence of finding a palpable and overriding error. [72]      With respect, I cannot interpret the reasons of the majority of the Court of Appeal other than that it disagreed with the trial judge’s credibility assessment of F.H. in light of the inconsistencies in his evidence and the lack of support from the surrounding circumstances.  Assessing credibility is clearly in the bailiwick of the trial judge and thus heightened deference must be accorded to the trial judge on matters of credibility.  As explained by Bastarache and Abella JJ. in R. v. Gagnon , [2006] 1 S.C.R. 621, 2006 SCC 17 at para. 20: Assessing credibility is not a science.  It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.  That is why this Court decided, most recently in [ H.L. v. Canada (Attorney General , 2005 SCC 25, [2005] 1 S.C.R. 401], that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [Emphasis added.] [66] Further, as stated by Chief Justice McLachlin in R. v. R.E.M. , 2008 SCC 51 at para. 64, [2008] 3 S.C.R. 3, “a trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial.” [67] In my view, the trial judge’s reasons reflect that she did “grapple with” the credibility of each witness.  That she did not discuss every matter that could possibly be said to relate to the credibility of Mr. Lam or Mr. Johnson does not mean she misapprehended or ignored aspects of the evidence. [68] Ms. Chiu also submits that the trial judge erred in her credibility findings by “failing to appreciate the inherent improbabilities in Mr. Lam’s story”, and by “improperly [relying] on the unusualness of [Mr. Lam’s] story as evidence of his and [Mr. Johnson’s] credibility”.  Once again, I disagree. [69] The trial judge considered the circumstances as related by Mr. Lam and Mr. Johnson to be unusual.  Immediately before discussing their evidence and that of Ms. Chiu she said this: [78]      The fact of Mr. Lam keeping cash for [Mr. Johnson] at the pharmacy is unusual, as is a cash loan of $100,000 and the absence of any documentation of the loan at the time it was allegedly made.  The evidence of Mr. Lam, Ms. Chiu, and [Mr. Johnson] was that they all often engage in cash transactions, which is unusual and makes it more difficult to determine what conduct is most probable in this case. [70] Ms. Chiu’s position was (and remains) that Mr. Lam and Mr. Johnson concocted their evidence of an undocumented cash loan so that they could, by means of a lawsuit, cheat her out of $100,000.00.  In my view, it was open to the trial judge to consider, as but one factor in her analysis , the improbability that two persons intent on cheating another would set about to do so in such an unusual way:  see paras. 84 – 90 of the trial judge’s reasons set out in para. 36 above. [71] I would not accede to these grounds of appeal. Failure to Provide Sufficient Reasons [72] Ms. Chiu submits that the trial judge’s reasons “were not responsive to the issues and the parties’ key arguments”.  In her factum she says that: It is not possible for this court to discern how the trial judge arrived at her assessment of the facts nor is it evident the trial judge recognized and dealt with the most significant contradictions in, and confusing elements of, the evidence. [73] This ground can be dealt with summarily.  It is but a variation of the grounds challenging the trial judge’s credibility findings which I have already rejected. [74] In Shannon v. Shannon , 2011 BCCA 397, 22 B.C.L.R. (5th) 296, Madam Justice Smith reviewed the authorities dealing with a trial judge’s obligation to provide reasons that explain the result, tell the losing party why he or she lost, provide a basis for appeal, and satisfy the public that justice has been done.  In the course of that discussion, Smith J.A. stated: [5]        The function of reasons for judgment is to explain what the trial judge has decided and why he or she reached that decision: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.) at p. 525; and [ R. v. R.E.M. 2008 SCC 51 [2008] 3 S.C.R. 3] at para. 17.  Reasons for judgment should demonstrate “a logical connection between the ‘what’ – the verdict [the decision] – and the ‘why’ – the basis for the verdict [the decision]”, when they are read as a whole in the context of the evidence and the live issues at trial, and the submissions of counsel: R.E.M. at paras. 16 and 17.  Reasons for judgment do not require a judge to show how his or her decision was reached by “expound[ing] on evidence which is uncontroversial, or detail[ing] his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned” ( R.E.M. at para. 20). [Emphasis in original.] [75] In the present case, the reasons given by the trial judge explained both “what” she found and “why” she found it.  Accordingly, this ground also fails. Disposition [76] I would dismiss this appeal. “The Honourable Mr. Justice Frankel” I AGREE: “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Powell v. Levesque, 2014 BCCA 33 Date: 20140129 Docket: CA039041 Between: Wendy Elaine Powell Respondent (Claimant) And Helene Mary Alice Levesque Appellant (Respondent) Corrected Judgment: The heading on the front page was corrected on January 30, 2014. Before: The Honourable Madam Justice D. Smith The Honourable Madam Justice Bennett The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated April 20, 2011 ( Powell v. Levesque , Victoria Docket No. 99-3109). Counsel for the Appellant: N.J.W. Reid Counsel for the Respondent: R.L. Taylor Place and Date of Hearing: Victoria, British Columbia December 3, 2013 Place and Date of Judgment: Vancouver, British Columbia January 29, 2014 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Madam Justice Bennett The Honourable Mr. Justice Willcock Summary: The appellant and respondent separated after an eight-year marriage-like relationship. They executed a separation agreement that divided their assets, allocated their debts, and provided that the appellant would pay the respondent spousal support on terms. Subsequently the respondent commenced an action to vary the agreed upon support and for a share of the appellant’s Canadian Armed Forces pension. The parties resolved the action in a consent order that expressly set aside the terms of the separation agreement and provided for the respondent’s spousal support and a division of the appellant’s pension. After twelve years of paying spousal support and upon her retirement from the military after 26 years of service, the appellant applied to vary her support obligation. The chambers judge dismissed the application on the basis that the appellant had failed to establish a material change in circumstances. Appeal allowed. The appellant’s retirement from the military with its attendant reduction in income was a material change of circumstances. Her earning capacity was also diminished as a result of health issues. Although the respondent had an ongoing need for support as a result of her disabilities and serious health issues, the appropriate order, after a consideration of SSAG, was the termination of the appellant’s spousal support obligation. Reasons for Judgment of the Honourable Madam Justice D. Smith: A. Overview [1] This appeal revisits the threshold issue of when a change of circumstances is material for variation of a spousal support order under s. 96(1) of the Family Relations Act, R.S.B.C. 1996, c. 128 [ FRA ], and, if established, what is an appropriate variation of the previous order. It should be noted that in this case the variation application was determined before the March 18, 2013 implementation of the Family Law Act, S.B.C. 2011, c. 25 and therefore was governed by the provisions of the FRA. B. Background [2] The appellant and respondent lived together in a marriage-like relationship for eight years, between June 1990 and June 1998. At the date of separation the appellant was 34 and the respondent was 43. During their relationship, the appellant was a member of the Canadian Armed Forces (“CAF”) and worked as a steward in the navy. The respondent is disabled and has a number of medical problems which render her unemployable. [3] In June 1998, following the breakdown of their relationship, the parties executed a separation agreement in which they agreed to: (i) a division of their assets; (ii) the repayment of debts totalling $64,537.80 by the appellant; (iii) the payment of monthly spousal support of $500 by the appellant to the respondent, with an annual cost of living (“COLA”) increase of four percent to commence on the 1 st day of the month after the debts of $64,537.80 were fully paid; (iv) the continuation of the appellant’s spousal support obligation until such time as the respondent died, married or commenced cohabitation with another in a marriage-like relationship; and (v) a prohibition to the respondent from seeking “a settlement with respect to [the appellant’s] pension plan for as long as [the appellant] provides monthly support payments … or if [the respondent’s] situation changes.” [4] On July 6, 1999, the respondent commenced an action in the Supreme Court of British Columbia against the appellant seeking, among other things, a variation of the agreed upon spousal support and a share of the appellant’s military pension. The action resulted in a final order, by consent, granted on July 23, 2001 (the “Consent Order”). By the date of the Consent Order the appellant had made substantial payments on the debts she was obliged to pay under the agreement and had paid contractual spousal support for three years. [5] The first paragraph of the Consent Order provided: THIS COURT ORDERS: 1.         That the separation agreement entered into by the parties on June 14, 1998, is hereby set aside and is replaced in [its] entirety by the terms as follow herein [6] In particular, the Consent Order also provided for a division of the appellant’s pension: 9.         That the plaintiff is entitled to one half of the [Defendant’s] pension available through her employment with the Department of National Defence for the period during which the parties cohabited, that being from June 15, 1990 to June 14, 1998 and the Defendant shall execute and deliver such further assurances, acts, deeds, authorities and all such further instruments as may be reasonably required for the purposes of carrying out and giving full effect to the division. [7] The remaining joint debts and certain other personal property were allocated to each of the parties, the appellant was required to maintain the respondent as a beneficiary on the term life insurance policy of $80,000 that was available to her through her CAF employment, and the appellant was ordered to pay the respondent the sum of $8,000 forthwith. The appellant complied with all of these terms. [8] In regard to spousal support, the Consent Order required the appellant to pay spousal support on the following terms: 7.         That the Defendant shall pay to the Plaintiff a monthly sum of spousal support as set out herein: a)         Commencing January 1, 2002 and continuing on the first day of each and every month thereafter the amount of $500.00; and b)         Upon complete payment of the debts as set out in Paragraph 3 herein [$64,537.80], the spousal support shall be varied to include a cost of living increase of four percent per year calculated from the date of this Order. [9] Several years after the Consent Order the appellant’s circumstances changed. The appellant’s circumstances [10] In August 2008, after 26 years of service, the appellant, at age 44, retired from the military on a full pension. She had completed her contracted 25 years of service and had begun to experience health issues. In 2003 she required brain surgery. Subsequently she sustained a knee injury while in active service in the Golan Heights. The injury led to symptoms of stiffness, cramping and swelling, which were aggravated by running (to the point of becoming swollen and causing her to limp). She was referred to physiotherapy but was unable to continue with that program upon being posted to sea. This in turn caused her symptoms from the knee injury to reoccur. She now has degenerative arthritis in the knee joint and has been advised that surgery is unlikely to provide her any benefit. She also suffers from iron-deficiency anemia. [11] Around this time, the appellant had a desire to be closer to her father who resided in Ontario and was ill. Following her retirement, she moved to Ontario where she obtained part-time employment with Tim Hortons. [12] In 2006 the appellant’s military pension was divided in accordance with the terms of the Consent Order. The division was effected by way of a transfer to the respondent of a lump sum of $44,562.99 into a locked-in RRSP. The consequence of the division was a reduction in the appellant’s gross monthly pension benefit of $237.57. [13] Immediately before her retirement, the appellant had a gross annual employment income of $66,000 (or $5,500 monthly). Following retirement, her annual income included her divided pension benefit (at a gross monthly amount of $2,577 and net amount of $1,456.56) and some part-time employment. The chambers judge found the appellant’s total annual income to be $52,000, which was comprised of annual pension income of $29,000 and annual employment income of $23,000 (in 2010). He also found the appellant had $49,000 in an RRSP (from her military severance) and owed about $28,000 in debt. The respondent’s circumstances [14] Throughout the relationship, and after its breakdown, the respondent has experienced a number of health issues. At the hearing of the variation application she tendered evidence that her health was deteriorating and her prognosis was guarded. She now also suffers from an ambulatory disability. [15] In 2006 the respondent cashed in her locked-in RRSP from the pension division. Those monies have since been spent. She has no assets to speak of and has debts of $25,000. Her monthly income (as of January 2011) was a combination of Canada Pension disability benefits ($936.60), social assistance ($169.82) and spousal support ($657.97) totalling $1,764.39. The four percent annual COLA provision has increased her monthly support from $500 to $657.97 (as of December 2010). [16] There is no issue that the respondent has a significant need for support. C. The Judgment [17] The chambers judge dismissed the appellant’s variation application on the basis that she had failed to establish the threshold issue of a material change of circumstances. He found that while she had paid spousal support for 12 years, first under the separation agreement and then pursuant to the Consent Order, the medical reason for her “early retirement” was not sufficiently compelling (para. 9). He stated: [26]      I accept that retirement, while its inevitability hardly qualifies as unexpected, can constitute a substantial and continuing change sufficient to entitle a court to vary or rescind a maintenance obligation. [27]      The authorities tendered by counsel, when read together, persuade me that whether retirement does support a variation or rescission in any case depends upon, to some extent the timing and the reason for retirement. That is, a person who retires at an age when retirement is reasonably to be expected, or who must retire early for medical or other sufficient reasons, may well be in a position to persuade a court that the change triggered by retirement is “substantial, unforeseen and of a continuing nature”, in the language of Proudfoot J.A. in Carter v. Carter [(1991), 34 R.F.L. (3d) 1 (B.C.C.A.)] , as quoted in T. v. T. [ T.(T.L.A.) v. T.(W.W.) (1996), 24 R.F.L. (4 th ) 51] at paragraph 34. [28]      Here, Ms. Levesque retired at a relatively young age. While her knee condition no doubt made some aspects of her military employment quite uncomfortable, the evidence falls short of establishing that her knee condition was sufficiently disabling as to amount to a medically reasonable explanation for early retirement . [29]      In any event, Ms. Levesque can, and has been, supplementing her military pension with civilian employment. Again, her knee condition may make some aspects of employment uncomfortable, and may preclude other employment completely, that is employment for which she would otherwise be suited by reason of education, training or experience, however the evidence falls short of establishing that the work she is doing, I understand at a Tim Hortons outlet, is the only work available or that she may be unable to continue such work because of medical concerns. [Emphasis added.] [18] The chambers judge also considered the role of the parties’ separation agreement in the variation application, stating: [32]      It is relevant, in considering whether a material change has been shown, to bear in mind that the order for which variation or rescission is sought is one that the parties bargained between them and agreed to incorporate into a consent order. This is not inconsistent with finding that the court can vary or rescind, it merely points to the contractual nature of the provisions now under review as a circumstance to be considered. [33]      This means, among other things, what might otherwise seem a generous spousal support obligation, at least in its duration, should not be reopened because of its generosity, and that the court should be careful to apply the material change test properly, in spite of the apparent generosity of the consent order. [19] In the result, the judge concluded that “[a]llowing for what I have already said about when retirement of the payor might constitute material change, I have not been shown that such a change on the evidence in this case exists.” D. Issues on Appeal [20] The appellant lists 12 grounds of appeal; however, for the purpose of this appeal I am satisfied they may be reduced to the following: 1.       Did the chambers judge err in finding that the appellant’s retirement from the CAF did not constitute a material change in circumstances? 2.       Did the chambers judge err in finding that the appellant’s reduced income after retirement did not constitute a material change in circumstances? 3.       Did the chambers judge err in giving weight to the parties’ separation agreement on the variation application? 4.       Did the chambers judge err in failing to consider the double recovery aspect of the respondent’s continued receipt of spousal support at a level based in part on the appellant’s divided pension income? [21] The appellant further submits that had the chambers judge found the appellant had established a material change of circumstances, he would have been guided by the Spousal Support Advisory Guidelines (“ SSAG” ) and determined that an appropriate variation order would have been to terminate the appellant’s spousal support obligation after 12 years. [22] I do not propose to address the last ground of appeal as I find it unnecessary to do so in order to determine this appeal. The appellant also seeks to adduce fresh evidence in the appeal regarding the effect of her ongoing and additional health issues on her employability and attendant diminishment in her financial circumstances. Again, I do not propose to address that application as I find it unnecessary to the determination of this appeal. E. Discussion [23] In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, a decision that was rendered after the decision under appeal, the Supreme Court of Canada reiterated the two-fold test for variation of a support order under the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.) from Willick v. Willick, [1994] 3 S.C.R. 670 (for child support orders) and G.(L.) v. B.(G.), [1995] 3 S.C.R. 370, (for spousal support orders). The Court stated: [31] Willick described the proper analysis as requiring a court to “determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances” (p. 688). In determining whether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making of the prior order or variation. The onus is on the party seeking a variation to establish such a change. [32]      That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terms” (p. 688). G.(L.) confirmed that this threshold also applied to spousal support variations. [24] The Court added that whether a material change of circumstances has been demonstrated will depend on the actual circumstances of the parties at the time of the order (para. 34) and in general will require some degree of continuity, not merely a temporary set of circumstances (para. 35). [25] The Court further confirmed that the threshold test for variation is the same whether or not the previous support order incorporated provisions from an agreement between the parties. It reiterated (at para. 36) that the question remains: “Has a material change of circumstances occurred since the making of the order? (See Willick; G.(L.); Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920.)” [26] The circumstances in L.M.P. involved an application to vary a spousal support order pursuant to s. 17(1)(a) of the Divorce Act . The issue was whether the separation agreement executed by the parties before the divorce proceedings was a factor to be considered in determining the former husband’s application to vary the initial spousal support order. The majority concluded that it was not because s. 17(4.1) did not include “agreement” in the list of factors to consider in determining if the threshold test of a material change in circumstances had been established. [27] The Court distinguished the test for variation in s. 17(4.1), which refers only to whether a “change in the condition, means, needs or other circumstances of either former spouse has occurred”, from the test for an initial order in s. 15.2(4), which requires the court to consider “any order, agreement or arrangement relating to support of either spouse”. If an agreement specifies or defines what type of change will or will not give rise to variation, courts should attempt to give effect to the parties’ intention where those provisions are incorporated into the initial or previous order, as those provisions are presumed to have met the objectives for spousal support in s. 15.2(6) (paras. 33, 38-39). The Court further clarified: [39]      … Even significant changes may not be material for the purposes of s. 17(4.1) if they were actually contemplated by the parties by the terms of the order at the time of the order. The degree of specificity with which the terms of the order provide for a particular change is evidence of whether the parties or court contemplated the situation raised on an application for variation, and whether the order was intended to capture the particular changed circumstances. [Emphasis added.] [28] While the variation application in this case was made pursuant to s. 96(1) of the FRA, the relevant provisions of the FRA are similar to those in the Divorce Act . In granting an initial order, s. 89(1) of the FRA directs the court to consider, among other factors, “an express or implied agreement between the spouses that one has the responsibility to support and maintain the other.” However, in determining a variation application, s. 96(1) states that “the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.” Thus, in both enactments there is no provision for the court to consider the terms of the parties’ separation agreement on a variation application. [29] As to the appropriate order to be made if a material change of circumstances is established, the court must limit itself to making a variation order that is justified by that change “unless the circumstances require the rescission, rather than a mere variation of the order” ( L.M.P. at paras. 47, 50). F. Application to this Case [30] Cases involving sick or disabled spouses are challenging as the payee spouse generally has an ongoing if not permanent need for support. However, need is not the sole criterion for entitlement to ongoing spousal support. Section 96(1) requires the court to consider “changes in the needs, means, capacities and economic circumstances of each person affected by the order ” sought to be varied (emphasis added). (i)       Did the chambers judge err in finding that the appellant’s retirement from the CAF did not constitute a material change in circumstances? [31] With respect, in my view the chambers judge erred in finding that the appellant’s retirement from the military was not a material change of circumstances. This error likely occurred due to the judge’s misapprehension of the evidence that the appellant had elected to take “early retirement” when in fact she had elected to retire after completing 25 years of service. Thereafter, she had no obligation to continue with her military employment and after 26 years of service was entitled to retire and receive her full pension. By then, the respondent had also received and spent her proportionate share of the appellant’s pension. [32] The judge’s misunderstanding of the basis upon which the appellant decided to retire is also evident in his remarks (at para. 26) in which he acknowledged that retirement (as opposed to early retirement) can constitute a material change in circumstances. The judge further observed that while retirement in general is inevitable and therefore not unexpected, the date of actual retirement is not typically known in advance of its actual occurrence. The date of the appellant’s actual retirement was clearly not known to the parties when they entered into the July 23, 2001 Consent Order. [33] In Ross v. Ross (1994), 7 R.F.L. (4 th ) 146 (B.C.C.A.), this Court held (at para. 15) that the law does not require payor spouses to maintain spousal support at a level that forces them to continue to work after becoming eligible for full retirement benefits. The appellant in this case, although only 44 years of age at the time of her retirement, could not be compelled to remain at that employment after she had completed her 25 years of service in order to maintain her spousal support obligation under the Consent Order. Moreover, the appellant’s increasing physical limitations arising from her knee condition, which the judge acknowledged “no doubt made some aspects of her military employment quite uncomfortable” (para. 28), clearly influenced her decision to retire despite her attempt to continue with her military employment for an additional year after she had completed her obligatory service. [34] The evidence did not support the judge’s finding that the appellant took early retirement. Nor was there any evidence that the appellant chose to retire in order to avoid her support obligation or any of her other financial commitments under the Consent Order, all of which she had met. In my view, her retirement was a material change in circumstances as the primary source of her income changed from employment to pension and her level of income decreased significantly thereafter. (ii)      Did the chambers judge err in finding that the appellant’s reduced income after retirement did not constitute a material change in circumstances? [35] The appellant’s level of income for the purpose of the variation application was found by the chambers judge to be $52,000 (being $29,000 pension income and $23,000 part-time employment income). The trial judge appeared to conclude (at para. 29) that the appellant’s earning capacity was greater than her annual employment income of $23,000 from Tim Hortons. However, the evidentiary basis for this finding is unclear to me and it would seem that based on this finding the judge imputed a higher level of income to the appellant that was never identified or explained. [36] The appellant’s $43,000 decrease in annual employment income was clearly a material change in circumstances. Even if her annual pension income of $29,000 is factored into the income analysis, and the double recovery issue and its exceptions (as discussed in Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413 at paras. 61-65) are ignored, the appellant’s income, after retirement, decreased by $14,000 (from $66,000 to $52,000). In my view, such a decrease, in the context of these parties’ standard of living, was sufficient to meet the threshold test of a material change in circumstances. [37] In summary, the appellant’s decision to retire after 26 years, having completed 25 years of service in the CAF, and in the face of increasing health issues, was not in my view unreasonable. This resulted in a decrease in her level of employment income of $43,000 and in her total income (after her pension benefit had been divided with the respondent) of $14,000. There was no evidence to support a finding that she had a greater earning capacity than what she was able to earn at Tim Hortons. In my view, the appellant met the threshold test of a material change in circumstances for variation of the spousal support provisions of the Consent Order. (iii)      Did the chambers judge err in giving weight to the parties’ separation agreement on the variation application? [38] L.M.P. limits the consideration to be given to a separation agreement on a variation application. While the parties’ separation agreement was a relevant factor in granting the Consent Order, the chambers judge in my view erred in giving it any further weight in determining the variation application. It is unnecessary to consider a separation agreement in a variation application, as the agreement is presumed to have been fully considered when the initial order was made. [39] In this case, there was a compelling reason for giving no weight to the parties’ separation agreement: the parties had expressly agreed in the Consent Order that the provisions of the separation agreement were to be set aside and replaced by the provisions of the Consent Order. [40] In these circumstances, I am of the view the judge erred in considering the parties’ separation agreement in determining whether the appellant had established a material change of circumstances. (iv)     What is an appropriate variation order? [41] The respondent’s entitlement to spousal support is based on need. During the parties’ relationship, the appellant supported the respondent and the respondent became financially dependent upon that support. Following the parties’ separation, the respondent’s contractual support and the court-ordered support in the Consent Order was necessary in order to assist the respondent in addressing the economic hardship that she experienced as a result of the breakdown of the relationship. The issue, then, is whether, after 12 years, and in face of the appellant’s material change in circumstances and the respondent’s continuing need, the appellant should be required to pay some amount of spousal support. [42] The quantum of support includes both amount and duration. In considering an appropriate order, this Court has cautiously applied SSAG in variation and review proceedings following a fact-specific inquiry: see Beninger v. Beninger, 2007 BCCA 619 , 47 R.F.L. (6th) 11 ; Domirti v. Domirti, 2010 BCCA 472, 10 B.C.L.R. (5th) 281; Morck v. Morck, 2013 BCCA 186, 44 B.C.L.R. (5th) 235. The circumstances that gave rise to the respondent’s initial entitlement to support remained essentially the same for the variation application. The respondent continues to have few assets, she is unable to work by reason of her disability and other serious health issues, and she has an ongoing need for support. The appellant continues have the larger income albeit it has significantly decreased since the Consent Order. In these circumstances, I am satisfied SSAG can offer guidance in determining the appropriate order. [43] Assuming an eight-year relationship, an annual income of $52,000 for the appellant, and an annual income of $13,277 for the respondent, the SSAG “without child support” formula yields a range of spousal support in the amount of $387-$516 and a duration in the range of 4-8 years. At the time of the application, the appellant had paid spousal support of $500, which had increased to $658 (as of December 2010), for a period of 12 years. In these circumstances, I am of the opinion that the appellant’s obligation to pay spousal support has been discharged and the respondent’s entitlement to spousal support is at an end. [44] In the result, I would allow the appeal, set aside the order of the chambers judge, and order that the provisions of the Consent Order relating to spousal support be rescinded and the appellant’s spousal support obligation be terminated. “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice Bennett” I AGREE: “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Felger, 2014 BCCA 34 Date: 20140129 Docket: CA040495 CA040496 Between: Regina Appellant And Timothy Lee Felger and Natasha Kaye Healy Respondents Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Frankel The Honourable Madam Justice Garson On appeal from:  An order of the Supreme Court of British Columbia, dated October 26, 2012 ( R. v. Felger , 2012 BCSC 2078, Chilliwack Docket 58401-3). Counsel for the Appellant: P.A. Eccles Counsel for the Respondent Felger: K.R. Beatch R.P. Thirkell Counsel for the Respondent Healy: D.F. Henderson Place and Date of Hearing: Vancouver, British Columbia December 13, 2013 Place and Date of Judgment: Vancouver, British Columbia January 29, 2014 Written Reasons by: The Honourable Madam Justice Garson Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Frankel Summary: The Crown appeals the acquittals of the respondents on charges of trafficking in marihuana and possession for the purposes of trafficking. The respondents operated a store that sold marihuana paraphernalia. The store had a posted sign that said police officers were not allowed entry without a warrant. Undercover officers attended the store and purchased marihuana from the respondents. This evidence was excluded on the basis that it constituted a search that infringed the respondents’ rights under s. 8 of the Charter. Held: Appeal allowed, acquittals set aside and a new trial ordered. Section 8 of the Charter protects a reasonable expectation of privacy. This has both a subjective and objective component. In this case the sign could not serve to create a reasonable expectation of privacy where it was otherwise unreasonable. There was no “search” pursuant to s. 8. Reasons for Judgment of the Honourable Madam Justice Garson: I.        Introduction [1] These Crown’s appeals raise the question of whether an individual may create a right to privacy under s. 8 of the Charter , in a publicly accessible retail establishment, by posting a sign prohibiting entry by police officers. [2] For the reasons that follow I would allow the appeal and direct a new trial. The sign prohibiting entry by police officers did not operate to create privacy rights under s. 8 of the Charter . The trial judge erred in finding that the police officers’ entry to the retail premises and their purchase of marihuana from the respondents was a breach of their rights to privacy, and in finding that the evidence of their observations of what took place there was not admissible. Background Facts [3] The Crown appeals the acquittal of Mr. Felger and Ms. Healy on joint charges of trafficking in marihuana, and with respect to Mr. Felger, a charge of possession for the purposes of trafficking. [4] Mr. Felger owned and operated the DaKine Store located in Abbotsford, British Columbia. The store sold a variety of marihuana-related products. Mr. Felger employed Ms. Healy at the store. On his store window, adjacent to the door, Mr. Felger posted a sign which read:  “No Police Officers Allowed In The Store Without A Warrant. Especially Badges #315 & 325.”  On November 28, 2005, Mr. Felger’s lawyer wrote to the Chief of Abbotsford Police Department instructing that no police officers were permitted to enter the store without a warrant. [5] On December 28, 2005, the Chief Constable responded in writing, in part, as follows: However, as you are aware, there are occasions when police officers are in fact allowed to enter premises without a search warrant, such as under certain statutory authority or under common law such as the Godoy case. There may also be provisions in some of the City By-laws or under any Good Neighbour Agreement that Mr. Felger may be a party to, which may allow access to this premises by the policy without a warrant. The Abbotsford Police Department works within the law and the Charter of Rights, but to imply to Mr. Felger that the police can only enter into his premises with a search warrant may lead to some misunderstanding. I trust that you will clarify the situation with your client. [6] Having received information that marihuana was being sold to minors, undercover officers entered the store and purchased marihuana on five separate days:  May 6, 7, 8, 12 and 13, 2009. In the course of their investigation the officers also observed other individuals purchase marihuana from the respondents. [7] The respondents were jointly charged with three counts of trafficking in marihuana. Mr. Felger was charged with three additional counts of trafficking in marihuana and one count of possession of marihuana for the purpose of trafficking. [8] Following a voir dire the judge refused to admit any of the evidence tendered by the Crown on the basis that it had been obtained in breach of s. 8 of the Canadian Charter of Rights and Freedoms . The respondents were acquitted of all charges. II.       Reasons for Judgment on the Voir Dire :  2012 BCSC 2078 [9] The admissibility of the officers’ evidence was determined in a voir dire . The respondents argued that the officers breached their s. 8 rights to privacy by entering retail premises from which the owner had explicitly barred their entry. Thus, the question on the voir dire was whether, by restricting police entry to the store, the respondents could be said to have an expectation of privacy in an otherwise publicly accessible retail premises. [10] The trial judge held that both Mr. Felger and Ms. Healy had a reasonable expectation of privacy with respect to the store. As lessee, Mr. Felger was in possession of the property and “had the right to exclude any person or persons from the premises unless they had some lawful authority to enter” (at para. 48). Mr. Felger was also present each time the police officers entered the store. As an employee, Ms. Healy had the right to enforce her employer’s policies regarding who could and could not enter the store, and also had a personal reasonable expectation of privacy (at paras. 48−49). [11] According to the trial judge, the central issue was the extent to which the respondents’ reasonable expectation of privacy in the store had been waived (at paras. 50−51): Where individuals have a reasonable expectation of privacy with respect to premises, they may alter their reasonable expectation of privacy by their actions. They may waive, reduce or modify their reasonable expectation of privacy, either expressly or impliedly. To put it another way, individuals who have an expectation of privacy with respect to premises may grant another person a licence to enter the premises, either by express grant or by implication. In my view, it is this issue of waiver or licence that is of fundamental importance in this case. [12] The implied waiver in this case was the fact that DaKine was a retail store open for business to the public. At paras. 69−71, the trial judge determined that Mr. Felger had, by posting a sign and sending a letter to the police department, limited this waiver and maintained his privacy rights in the premises with respect to police officers: Defence submits that in the present case the prima facie implied waiver was subject to an important restriction and that the reasonable expectation of privacy was expressly maintained with respect to police officers. In my opinion, it was open to Mr. Felger to limit his implied invitation by barring a class of persons, namely, police officers who could enter the Store unless they were otherwise authorized. Mr. Felger made his prohibition of police entering without a search warrant known to the APD through the letter to the Chief Constable. He also posted a Sign in large letters next to the front door making it apparent to any police officer who attended at the door. The restriction was imposed not just on uniformed police officers or persons who Mr. Felger knew or believed to be police officers. It was a restriction imposed on all police officers. It is my view that Mr. Felger expressly maintained and asserted a reasonable expectation of privacy by delivering the letter and posting the Sign. I do not think his reasonable expectation of privacy was diminished or negated because the undercover officers may have neglected to read the Sign or because the Chief Constable neglected to inform all police officers. [13] At the voir dire , the Crown argued that the actions of the undercover police officers did not fall within s. 8 because they did not constitute a “search”. The officers only entered the store to purchase marihuana, which the store sold to members of the public, and did not engage in any activities beyond that. [14] The trial judge did not accept this argument. He found that the actions of the undercover police officers did constitute an unreasonable search of the premises in breach of s. 8 of the Charter . The trial judge summarized his findings at paras. 86−87: In the present case, as I have indicated, the police officers did not have any invitation to enter the premises. They were expressly prohibited from doing so. Further, the undercover police officers did not go to the Store for the sole purpose of purchasing marihuana. They went to the Store for several purposes in addition to buying or attempting to buy marihuana. They intended to and did make observations for the purpose of gaining evidence inside the Store relating to an investigation into the suspected offences of possession of marihuana for the purpose of trafficking in marihuana and trafficking. They intended to and did make observations of what appeared to be sales of marihuana inside the Store. They made note of the smell of burning marihuana. They made observations when they were in the front part of the Store into the rear part, watching Mr. Felger weighing quantities of marihuana. I am satisfied that these actions by the undercover police officers do constitute an intrusion into the reasonable privacy interests of the accused and are searches within the meaning of s. 8 of the Charter . They were not authorized and constitute unreasonable searches in my opinion. The evidence as to the observations made once inside the Store, visual and olfactory, is evidence that, in my view, was obtained in a manner that infringed s. 8 of the Charter . It is evidence that must be expunged from the Information to Obtain a Search Warrant under which the further searches and seizures were made and it is subject to scrutiny under s. 24(2) of the Charter . [15] As for the evidence of the marihuana purchases, the trial judge acknowledged that this might not have been “a search or seizure per se ”, but that it was “inextricably tied” to the other evidence collected in breach of s. 8 (at para. 89). [16] The Crown made no arguments that the evidence should nevertheless be admitted under s. 24(2) of the Charter and the respondents were acquitted. III.       Issues on Appeal [17] The overarching issue in this case is whether the trial judge erred in finding an unreasonable search had taken place within the meaning of s. 8 of the Charter . Embedded within this issue are the following questions: a) Did the undercover officers intrude on the respondents’ reasonable expectation of privacy?  If the answer is no, then there was no search and there cannot have been a s. 8 breach. b) If the answer to the first question is yes, was the intrusion reasonable or justifiable? [18] This reflects the two distinct inquiries that must be made under a s. 8 analysis: R. v. Edwards , [1996] 1 S.C.R. 128 at para. 45. [19] This appeal focusses on the first inquiry—the respondents’ reasonable expectation of privacy. As I see it, the question is whether an individual may shape his or her right to privacy in a personal, subjective and individual way. IV.      Discussion A.       Position of the Crown Appellant [20] The Crown summarizes its position on appeal at para. 23 of its factum: It is the Crown Appellant’s position that the trial judge erred in holding that the state action in this case intruded on any recognized privacy interest of the Respondents and constituted a search within the meaning of s. 8 of the Charter . The police actions did not breach any objectively reasonable expectation of privacy the Respondent’s held in their business premises: by inviting the public at large to enter and purchase the items they had on offer they waived any reasonable expectation of privacy they may have held in these publicly accessible areas of their business. The police did not exceed the limits of that invitation when they entered the business premises and purchased marihuana from the Respondents. These purchases did not constitute a search within the meaning of s. 8 of the Charter . [21] The Crown argues that the limit the respondents sought to place on police officers entering the premises could not apply to undercover police officers and that, “The trial judge’s unprecedented finding that it does, guts the ability of the state to investigate a multitude of criminal activities, including drug trafficking, a factor [the judge] never turned his mind to.” [22] The Crown says storekeepers can undoubtedly bar certain individuals or a defined class of individuals from entering their place of business. However, no court has accepted the proposition that someone can immunize himself or herself from investigation of criminal acts by posting a sign saying “No police allowed.” [23] The Crown relies on jurisprudence from Canada and the United States to support the proposition that an undercover operator’s entry into private premises at the invitation of an accused, implied or express, for the purposes of arranging a drug transaction does not breach a person’s reasonable expectation of privacy and is therefore not a “search” within the meaning of s. 8: Hoffa v. U.S. , 385 U.S. 293 (1966); Lewis v. U.S. , 385 U.S. 206 (1966); R. v. Fitt (1995), 96 C.C.C. (3d) 341 (N.S.C.A.), aff’d [1996] 1 S.C.R. 70; R. v. Contant , 2008 QCCA 2514, 63 C.R. (6th) 133, leave to appeal ref’d [2009] 1 S.C.R. vii; R. v. Gallaugher , 1999 CanLII 2242 (Ont. C.A.); [1999] O.J. No. 174; R. v. Roy (18 November 2008), Kelowna 63075 (B.C.S.C.), aff’d 2010 BCCA 448. The Crown argued that the respondents extended an invitation to the public to enter the store, and that invitation included undercover officers posing as members of the public. [24] In conclusion, the Crown says the undercover investigation did not intrude on any legally recognizable privacy interest. To warrant Charter protection the Crown says, the privacy right asserted must be objectively reasonable. [25] Finally, the Crown argues, in the alternative, that if the evidence is found to have been obtained in breach of s. 8, it should nevertheless be admitted pursuant to s. 24(2) of the Charter . B.       Position of the Respondents [26] The respondents say the trial judge did not err in finding that evidence was obtained in a manner that breached their Charter rights. [27] Mr. Felger relies on the trial judge’s finding that his expectation of privacy was “enhanced” by the provisions of the Trespass Act , R.S.B.C. 1996, c. 462 (at para. 77). He argues that where an individual seeks to maintain his privacy, for whatever reason, the police are still free to engage in any lawful method of investigation that does not breach the individual’s expectation of privacy. But he maintains that there is no principled reason why an individual cannot preserve a general prohibition against police entering private property without permission (or without some other lawful authority). He does not distinguish between uniformed or undercover officers in this regard. [28] Mr. Felger does not dispute the proposition that when police officers are invited onto private property or into a residence to carry out an undercover drug transaction they are not engaged in a search:  see Contant , Gallaugher . However, Mr. Felger contends that the undercover police officers entered the store both to conduct a search and to buy marihuana. He also argues that, importantly, the trial judge found the evidence surrounding the purchase of marihuana was “obtained in a manner” that breached his rights even if obtaining that evidence did not actually involve a search. C.       Legal Principles [29] The respondents contend that this appeal involves findings of fact made by the trial judge and that this Court cannot intervene absent a palpable and overriding error. [30] While it is true that the issue of whether the police have breached a person’s reasonable expectation of privacy is a question of fact, the issue of whether the trial judge identified and applied the proper legal test is a question of law. In my view, this case is about the proper legal test for establishing a reasonable expectation of privacy and the application of that test to the facts of this case. A standard of correctness applies to both. [31] Section 8 of the Canadian Charter of Rights and Freedoms , spells out the right to privacy: Everyone has the right to be secure against unreasonable search and seizure. [32] Section 8 recognizes the longstanding right of every person to the control and enjoyment of his or her own property. In R. v. Colet , [1981] 1 S.C.R. 2, Ritchie J., writing for the Court, recognized and described these longstanding rights (at 8): In the final analysis this appeal raises the all important question of whether the property rights of the individual can be invaded otherwise than with specific statutory authority. It is true that the appellant’s place of residence was nothing more than a shack or shelter which no doubt was considered inappropriate by the City of Prince Rupert, but what is involved here is the longstanding right of a citizen of this country to the control and enjoyment of his own property, including the right to determine who shall and who shall not be permitted to invade it. The common law principle has been firmly engrafted in our law since Semayne’s case [77 E.R. 194, 5 Co. Rep. 91 a] in 1604 where it was said “That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose ...”. This famous dictum was cited by my brother Dickson in the case of Eccles v. Bourque [[1975] 2 S.C.R. 739] in which he made an extensive review of many of the relevant authorities. He was there dealing with a case of police officers entering private property for the purpose of effecting an arrest and in so doing he made reference to the limitation of the extent of the general application of Semayne’s case at p. 743 saying: But there are occasions when the interest of a private individual in the security of his house must yield to the public interest, when the public at large has an interest in the process to be executed. The criminal is not immune from arrest in his own home nor in the home of one of his friends. And later on the same page he observed: Thus it will be seen that the broad basic principle of sanctity of the home is subject to the exception that upon proper demand the officials of the King may break down doors to arrest . [Emphasis in original.] [33] In R. v. Kokesch , [1990] 3 S.C.R. 3, Justice Sopinka for the majority held that police officers had violated the accused’s rights under s. 8 by conducting a warrantless search of the perimeter of a dwelling house. At the time, the police did not have reasonable grounds for believing that the “place” contained illegal drugs. In the absence of lawful authority, the perimeter search was held to be unreasonable within the meaning of s. 8. Sopinka J. explained the historical roots of, and reasons for, the constitutional recognition of the right to privacy (at 29): From the point of view of individual privacy, which is the essential value protected by s. 8 of the Charter , this illegal intrusion onto private property must be seen as far from trivial or minimal. Even before the enactment of the Charter , individuals were entitled to expect that their environs would be free of prowling government officials unless and until the conditions for the exercise of legal authority are met: see Eccles v. Bourque , [1975] 2 S.C.R. 739; and Colet v. The Queen , [1981] 1 S.C.R. 2. The elevation of that protection to the constitutional level signifies its deep roots in our legal culture. La Forest J. put it this way in Dyment , [[1988] 2 S.C.R. 417], in words that commend themselves to me (at pp. 427-28): Grounded in man’s physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state. [34] In R. v. Evans , [1996] 1 S.C.R. 8, police received a tip that the accused was in possession of marihuana for the purpose of trafficking. They did not have sufficient grounds to obtain a search warrant. They knocked on the accused’s front door and, on its being opened, smelled marihuana. They immediately arrested the accused. The Supreme Court held that the search was unreasonable within the meaning of s. 8. In his concurring reasons for judgment Sopinka J. noted that there is an implied invitation to permit entry onto private property to knock on the door, but that “waiver” of privacy rights is only to the extent of permitting convenient communication with the occupant of the dwelling. In discussing whether the knock on the door constituted a “search”, Sopinka J. wrote at paras. 11 and 15: What then is the purpose of s. 8 of the Charter ? Previous decisions of this Court make it clear that the fundamental objective of s. 8 is to preserve the privacy interests of individuals. As this Court stated in Hunter v. Southam Inc. , [1984] 2 S.C.R. 145, at p. 160, the objective of s. 8 of the Charter is “to protect individuals from unjustified state intrusions upon their privacy”. Clearly, it is only where a person’s reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8 of the Charter comes into play. As a result, not every form of examination conducted by the government will constitute a “search” for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a “search” within the meaning of s. 8. In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The “waiver” of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized by the “implied licence to knock”. Where the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied licence to knock, the implied “conditions” of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder. [35] In R. v. Edwards , [1996] 1 S.C.R. 128, the Supreme Court had an opportunity to further refine its articulation of privacy rights. In this case, without a warrant, the police had searched the apartment of the accused’s girlfriend. The accused asserted that he had s. 8 privacy rights over that apartment. In holding that the accused could not assert his own privacy rights over the property of a third party, Cory J. (for the majority) held first that there are two distinct questions which must be answered in any s. 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy. At para. 45, Cory J. set out a framework for a subjective/objective analysis to determine if there was a s. 8 breach: A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicable to the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure against unreasonable search or seizure can be derived. In my view, they may be summarized in the following manner: 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey , [1987] 1 S.C.R. 588, at p. 619. 2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter , supra . 3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated. See Pugliese , supra . 4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings , supra . 5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso , supra , at p. 54, and Wong , supra , at p. 62. 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (i)         presence at the time of the search; (ii)        possession or control of the property or place searched; (iii)       ownership of the property or place; (iv)       historical use of the property or item; (v)        the ability to regulate access, including the right to admit or exclude others from the place; (vi)       the existence of a subjective expectation of privacy; and (vii)      the objective reasonableness of the expectation. See United States v. Gomez , 16 F.3d 254 (8th Cir. 1994), at p. 256. 7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner. [36] In R. v. Tessling , 2004 SCC 67, [2004] 3 S.C.R. 432, Binnie J. applied and further refined the description of privacy rights from Edwards . He noted that “s. 8 protects ‘people, not places’, but used the notion of place as an analytical tool to evaluate the reasonableness of a person’s expectation of privacy” (at para. 22). The issue before the Court in Tessling was whether the use of FLIR technology to fly over a house in order to detect heat generated by marihuana grow operations was an unreasonable search. In concluding that it was not, Binnie J. considered the competing demands of privacy and security. At one end of the spectrum he described the “midnight knock on the door [as] the nightmare image of the police state”, but stated that “[a]t the same time, social and economic life creates competing demands”. He noted, “The community wants privacy but it also insists on protection. Safety, security and the suppression of crime are legitimate countervailing concerns. Thus s. 8 of the Charter accepts the validity of reasonable searches and seizures. A balance must be struck ...” (paras. 14 and 17, emphasis in original). [37] In striking that balance Binnie J. further noted that not every form of examination would constitute a search (at para. 18): “… On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a ‘search’ within the meaning of s. 8”; Evans , supra , at para. 11. It is only “[i]f the police activity invades a reasonable expectation of privacy, [that] the activity is a search”; R. v. Wise , [1992] 1 S.C.R. 527, at p. 533. [38] Finally, Binnie J. tailored the “totality of the circumstances” test considered in Edwards to the circumstances of the case before him. At para. 32 he set out a modified version of the Edwards test: (1) Did the Respondent Have a Reasonable Expectation of Privacy? [32] On the facts of this case, we need to address: 1. What was the subject matter of the FLIR image? 2. Did the respondent have a direct interest in the subject matter of the FLIR image? 3. Did the respondent have a subjective expectation of privacy in the subject matter of the FLIR image? 4. If so, was the expectation objectively reasonable? In this respect, regard must be had to: a. the place where the alleged “search” occurred; b. whether the subject matter was in public view; c. whether the subject matter had been abandoned; d. whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality? e. whether the police technique was intrusive in relation to the privacy interest; f. whether the use of surveillance technology was itself objectively unreasonable; g. whether the FLIR heat profile exposed any intimate details of the respondent’s lifestyle, or information of a biographical nature. [39] The Court then went on to address each factor in turn. This analytical framework was also used in R. v. Patrick , 2009 SCC 17, where Binnie J. held that Mr. Patrick had not had a reasonable expectation of privacy in the contents of the garbage bags he left in the laneway for garbage collection. Binnie J. therefore concluded that it was not a “search” within the meaning of s. 8 when the police took those bags. [40] Before I apply the Edwards / Tessling test to the facts of this case there are two further overlapping lines of authority that need to be addressed. The first is a line of authority to the effect that there is no expectation of privacy in a publicly accessible place of business. The second line holds that where an undercover police officer is “invited” to a place that is normally private, such as a home, the invitation, even though it is unknowingly extended to an undercover officer, waives any expectation of privacy. [41] Roy demonstrates both principles. Mr. Roy was convicted of trafficking in marihuana after inviting an individual into his home for the purpose of conducting a drug transaction. That individual turned out to be an undercover officer. Lowry J.A. writing for the Court first noted that the question was whether the appellant had waived or abandoned his expectation of privacy such that no search or seizure occurred. He continued at paras. 28, 32−33: Here, in much the same way as in Contant and Joseph , the undercover officer attended the residence of the accused for the purpose of concluding a drug transaction. The appellant had refused to complete one aspect of the transaction -- viewing the purchase money -- in any location other than his private residence. By so doing, the appellant converted his residence to a place of business and thus altered his reasonable expectation of privacy in his home. The appellant’s argument that the police exceeded his invitation to view the purchase money by virtue of the ulterior purpose of collecting evidence against him is without merit. This case differs from Evans in which the police had two purposes for knocking on the accused’s door -- to speak with the accused and to conduct a search by sniffing the air for marihuana -- only one of which was authorized by the implied invitation to knock. The infringement in Evans occurred because the police pursued the unauthorized purpose of searching for marihuana. Here, the complaint is with respect to how the police chose to use the information they obtained through pursuing an authorized purpose. These two situations are distinct. Police do not require authorization to use information they properly obtain through undercover operations. In the absence of the appellant having established that the police violated the reasonable expectation of privacy that, in the absence of his express invitation, he would have had, there was no s. 8 search and seizure conducted. It follows that it is then unnecessary to go on to the second stage of the analysis and consider whether any search or seizure was unreasonable. See also Contant at paras. 22−35; Gallaugher ; and Patrick . [42] R. v. Fitt (1995), 96 C.C.C. (3d) 341 (N.S.C.A.), aff’d [1996] 1 S.C.R. 70, Hallett J.A. for the Court held at 345: A business establishment that is open to the public with an implied invitation to all members of the public to enter has no reasonable expectation of privacy from having a police officer enter the area of the premises to which the public is impliedly invited [citations omitted]. D.       Application to the Facts of this Case [43] I now return to the Edwards / Tessling factors (modified to fit this case) in order to determine whether, in the totality of these circumstances, the respondents had a reasonable expectation of privacy. As seen above, there is both a subjective and objective aspect to the analysis. For the purposes of this case I have largely adopted the factors as they were set out in Patrick at para. 27: 1. What was the subject matter of the evidence gathered by the police? 2. Did the respondents have a subjective expectation of privacy in the information that was collected? 3. If so, was the expectation objectively reasonable? This includes a consideration of: a. the place where the alleged search occurred and whether there is public access to the premises; b. whether the subject matter of the “search” was in public view; c. whether the information that marihuana was available for purchase was known to members of the public; d. whether the search methods were intrusive in relation to the privacy interest. [44] The subject matter of the evidence gathered by the police was the information that marihuana could be purchased by members of the public, the purchased marihuana itself, and various observations including the smell of burned marihuana, and the respondents weighing marihuana and retrieving it from the back of the store. The information the police intended to obtain was whether marihuana was being sold at the store. [45] There is no difficulty in finding a subjective expectation of privacy in the information that was collected, at least with respect to the police. The business was owned and operated by Mr. Felger and he had demonstrated a subjective intention to exclude all police officers from the premises. I will assume that his employees had the same intention and that the respondents subjectively expected that they would be able to carry on their business free from the eyes of the police. [46] The next question is whether this subjective intention to exclude all police officers was objectively reasonable. I do not believe that it was. The “search” occurred in a retail premises that was open to the public. Both Mr. Felger and Ms. Healy, his employee, were present operating the retail premises when the police attended. Although the trial judge found that there were living quarters in the store, there is no evidence that the observations made by the officers extended to these quarters. The expectation of privacy in a publicly accessible store during business hours is obviously lower than in a dwelling place. [47] At this point I will also address the respondents’ reliance on the tort of trespass. The question of whether the undercover officers trespassed does not resolve the s. 8 issue. Trespass is a property law concept that is based on identifiable physical boundaries. The property right of exclusion does not require a consideration of broader societal interests, and need not be reasonable, unlike the analysis in s. 8. In fact, courts have “emphatically rejected any requirement of a connection between the rights protected by s. 8 and a property interest in the premises searched” ( Edwards , at 146). A proprietary interest is neither necessary nor sufficient to establish a reasonable expectation of privacy. Rather, it is one factor that might be relevant to consider in the totality of the circumstances. [48] Turning to the next factor, the information the police sought to obtain was available to any member of the public who sought out this information. While it may be that not every member of the public who came into the store knew that marihuana was available for purchase, it is clear that this information was publicly accessible. [49] The final factor in determining whether the respondents had a reasonable expectation of privacy looks at the search methods employed by the police. The evidence of the activities of the undercover officers in entering the store and purchasing drugs from the respondents is summarized in the information to obtain. These facts are not in dispute on this appeal. On five different days, undercover officers attended the store and bought marihuana. While they were making these purchases they made various observations about the store, the respondents and other patrons in the store. Both respondents freely and readily engaged in conversation about the drug transactions with the officers and with other members of the public purchasing drugs. The police were not intrusive and did not seek to obtain, nor did they obtain, any information that was not already available to the public. [50] As noted already, the question of the reasonableness of the expectation of privacy also incorporates a balancing of societal interests in privacy with the legitimate interests of law enforcement ( Tessling , at para. 17). In my view, in balancing those societal interests, an objectively reasonable expectation of privacy in a retail store could not be achieved simply by posting a sign excluding law enforcement officers. This would give too much weight to the subjective aspect of the s. 8 analysis. Privacy for the purposes of s. 8 must be assessed on an objective basis: would an objective observer construe the activities as being carried out in a private manner?  In this case, and considering that s. 8 “protects people not places”, the overwhelming evidence is that the activity of selling drugs was done in a public setting. There is an element of artifice in the respondents’ claim to privacy in a place in which they were publicly and brazenly selling marihuana, conduct that is currently unlawful. I conclude that the respondents had no reasonable expectation of privacy in conducting the business of the DaKine store, regardless of whether Mr. Felger had excluded police officers from the premises or not. [51] There is no evidence as to whether Ms. Healy was aware of Mr. Felger’s attempts to exclude police officers from the store. However, it is unnecessary to consider if Ms. Healy had a different subjective expectation given my conclusion about the lack of an objective expectation of privacy. [52] As there was no reasonable expectation of privacy in the retail premises, it is unnecessary to answer the second question of whether any search or seizure was unreasonable. [53] I would allow both appeals, set aside the acquittals, and direct a new trial. “The Honourable Madam Justice Garson” I agree: “The Honourable Madam Justice Newbury” I agree: “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Barnes Estate v. Barnes, 2014 BCCA 37 Date: 20140130 Docket: CA41327 Between: Jaymie Michelle Barnes, as Administrator of the Estate of Maymie Irene Barnes , and Diana Irene Barnes, as Administrator of the Estate of Maymie Irene Barnes Respondents (Petitioners) And Eric David Barnes Appellant (Respondent) Before: The Honourable Madam Justice Bennett (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated October 8, 2013 ( Barnes Estate v. Barnes , 2013 BCSC 1848, Victoria Docket 10-4510). The Appellant: Self-represented Counsel for the Respondent: J.M. Hutchison, Q.C. Place and Date of Hearing: Vancouver, British Columbia December 12, 2013 Place and Date of Judgment: Vancouver, British Columbia January 30, 2014 Summary: The appellant applied for indigent status in the appeal. The respondent applied for security for costs and an order that the appeal be stayed until security was deposited. Held: Application for indigent status granted and respondents’ applications dismissed. The appeal has some merit and the appellant meets the financial threshold for indigency. An appellant who has been declared indigent cannot be ordered to post security for costs. Reasons for Judgment of the Honourable Madam Justice Bennett: I.        Nature of the Application [1] There are two applications before the Court. [2] Jaymie Michelle Barnes, who is one of the administrators of Maymie Irene Barnes’ estate applies in her personal capacity for an order that the appellant, Eric Barnes, deposit security for costs in the amount of $15,000; that the appeal be stayed until the ordered security has been deposited; and that the respondents may apply for an order dismissing the appeal if the ordered security is not deposited. It is not entirely clear to me how Ms. Barnes can appear in her personal capacity as she appears only to be a party in her capacity as an estate administrator. Given my conclusion on the applications, I need not address this issue. [3] Eric Barnes, the appellant, applies for indigent status in this appeal and a substituted address for service. II.       Background and Procedural History [4] The appeal is part of an ongoing dispute over who is included in the term “issue” in the Will of Maymie Irene Barnes (the “testatrix”) dated June 19, 1992. Paragraph 3(3) of the Will divided her estate as follows: To divide the residue of my estate equally between my two sons, ERNEST ROY BARNES and KENNETH EARLE BARNES, or to pay or transfer all the said residue of my estate to the survivor if one of them shall predecease me PROVIDED that if any issue of such deceased son shall be living at my death such issue shall take in equal shares per stirpes the share of the residue of my estate to which such son of mine would have been entitled if living at my death. [5] Ernest Roy Barnes is the father of Diana Irene Barnes and Eric David Barnes. Kenneth Earle Barnes is the father of Jaymie Michelle Barnes and Steven Paul Barnes. Both sons named in para. 3(3) predeceased the testatrix. This chart lays out the family tree: The testatrix Her children Her grandchildren Maymie Irene Barnes Kenneth Earle Barnes Jaymie Michelle Barnes (no children) Steven Paul Barnes (1 child) Ernest Roy Barnes Diana Irene Barnes (no children) Eric David Barnes (3 children) [6] Since all of the parties in this action have the same last name, I will refer to them by their first names in order to avoid confusion. Jaymie and Diana, as administrators of the estate, applied to the Supreme Court of British Columbia on November 9, 2010, for directions on the proper distribution of the estate according to the Will. At the same time, Eric applied to the court for a declaration that Jaymie and Steven were not the biological children of Kenneth, the testatrix’s son and a named beneficiary, and therefore were not his “issue” within the meaning of the Will. These applications were heard together by Madam Justice J.A. Power on December 11, 2012 and March 25 and 26, 2013. [7] Eric’s argument relied heavily on DNA evidence indicating that Jaymie was not the biological daughter of Kenneth. Justice Power held that the term “issue” included Jaymie and Steven, regardless of whether or not they were Kenneth’s biological children. The Will was created when Jaymie and Steven were adults and there was no evidence that the testatrix thought that Kenneth may not be their biological father. Justice Power held that if the testatrix had not intended to include Jaymie and Steven she would not have referred to Kenneth’s “issue” in the Will. She found that although the meaning of “issue” was ambiguous, both the Will and the surrounding circumstances made it clear that it was the testatrix’s intention to include Jaymie and Steven in the Will. [8] Although it was not necessary to dispose of the issue, Justice Power also addressed the DNA evidence. She held that the circumstances surrounding the collection of Kenneth’s DNA were suspect and that in any event she was not convinced that Jaymie and Steven were not the biological children of Kenneth. III.       Legal Principles [9] Jaymie seeks an order that Eric be required to post security for costs and Eric seeks an order that he be granted indigent status. An appellant who has been granted indigent status should not subsequently be ordered to post security for costs. In J.J. v. Coquitlam School District No. 43 , 2010 BCCA 182 at para. 6, Lowry J.A. held: [6]        …Where indigent status has been granted, it can only have been on the basis the appellant is impecunious and there is sufficient merit in the appeal that it cannot be said to be bound to fail. It could not then be appropriate to order the appellant to post security. [10] On this basis I will first decide whether Eric meets the requirements for indigent status. [11] According to Rule 56, this Court may find a person indigent, and exempt that person from paying certain fees. The purpose of granting indigent status was discussed in Trautmann v. Baker , [1997] B.C.J. No. 452 at para. 4 (Hall J.A in Chambers): [4]        … As I see it, the underlying rationale for the granting of indigent status is to ensure that no litigant will be denied access to the courts by reason of impecuniosity. … [T]he concern of the court must be that no arguably meritorious case should be prevented from getting a hearing merely because a person is without the financial resources to carry on with the litigation. [12] There are two criteria the chambers judge must consider in determining whether indigent status should be granted: (1) the likelihood of success of the appeal; and (2) the financial position of the appellant: Duszynska v. Duszynski , 2001 BCCA 155 at para. 3 (Ryan J.A in Chambers). A.       Merits of the Appeal [13] Indigent status will not be granted in appeals that are “bound to fail” or that have “no reasonable basis”. A number of cases express this principle, including Jensen v. Jackman , 2010 BCCA 6 at para. 18 (Garson J.A. in Chambers). B.       The Financial Position of the Applicant [14] The court must ask “whether the applicant’s financial situation is such that requiring him to pay the fees would deprive him of the necessaries of life or effectively deny him access to the courts”: Ancheta v. Ready , 2003 BCCA 374 at para. 7 (Ryan J.A. in Chambers). [15] The term “indigent” is not defined in the Court of Appeal Act or the Rules but a person will be indigent if, although he or she may have some means, is “needy or poor” or “lacking the necessaries of life”: Griffith v. House , 2000 BCCA 371 at paras. 3-4 (Hall J.A in Chambers); Pesic v. Pesic (3 November 1994), Vancouver DU020 at paras. 4-5 (Southin J.A in Chambers). [16] A person who receives unemployment benefits or social assistance may be indigent; see Jong v. Jong , 2002 BCCA 322 at para. 8, where Smith J.A. (in Chambers) held that the applicant met the financial requirement of indigency. IV.      Discussion A.       Indigent Status [17] Eric is 54 years old and has three children; the youngest is 17 years old and has a serious illness. He lives with his wife, who is also ill and unemployed. Eric is unemployed and his only sources of income are from two disability pension plans. His estimated monthly expenses exceed his income by approximately $500. He has some assets, including a house valued at $282,000, which is heavily mortgaged. [18] Eric is clearly in financial hardship. Despite the fact that he owns his own home, he cannot meet his current modest living expenses. In my opinion, Eric meets the financial criterion for indigent status. [19] In his notice of appeal Eric states that the chambers judge erred in not finding that the DNA evidence was determinative of the question before the court. His argument is based on the assumption that “issue” refers exclusively to biological lineage. [20] The question of the meaning of the term “issue” when interpreting a will is an arguable question. The threshold for merit is not high, and it cannot be said that the appeal is “bound to fail”. In my view, Eric has met this threshold. Given the complex issues raised in this case, he may wish to consider consulting the Access Pro Bono legal services available in British Columbia. [21] While Eric has met the low threshold, I only point out that the size of the estate is diminishing, and would recommend that the parties consider resolution. [22] The application to grant indigent status is allowed. B.       Address for Service [23] Eric Barnes no longer has an address for service in British Columbia as required by Rule 39(3). Eric may be served by mailing documents to his address in Quebec: 63 rue du Plateau, Beaumont, QC G0R 1C0 or to his FAX number at 1-418-833-0083. C.       Security for Costs [24] Having granted Eric indigent status, the law, as noted above, is clear that I should not grant security for costs in these circumstances. This application is dismissed. [25] In summary, the application for indigent status is granted, the application to change the address for service is granted and the application for security for costs is dismissed. “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Marquez v. Zapiola, 2014 BCCA 35 Date: 20140130 Docket: CA039945 Between: Griselda Patricia Marquez Appellant/ Respondent on Cross Appeal (Claimant) And Miguel Angel Zapiola Respondent/ Appellant on Cross Appeal (Respondent) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Chiasson The Honourable Madam Justice D. Smith Supplementary Reasons to Marquez v. Zapiola , 2013 BCCA 433. Counsel for the Appellant: M. Guy J. Sarophim Counsel for the Respondent: S. Specht Place and Date of Hearing: Vancouver, British Columbia May 14, 2013 Place and Date of Judgment: Vancouver, British Columbia October 9, 2013 Written Submissions Received: November 8, December 12 and 23, 2013 Date of Supplementary Judgment: January 30, 2014 Supplementary Reasons of the Court Summary: Supplementary reasons awarding the appellant 50 percent of her costs on appeal and at trial. Supplementary Reasons for Judgment of the Court: [1] The appellant, Griselda Marquez, successfully appealed provisions relating to spousal support, and by extension child support, in the final order granted in the parties’ divorce action. The respondent, Miguel Zapiola successfully cross appealed provisions relating to his access to the children and their attendance with him at a single session with an independent counsellor. Both parties were unsuccessful on other issues they had appealed and cross appealed. See Marquez v. Zapiola, 2013 BCCA 433. [2] The trial judge ordered the parties to each bear their own costs. The appellant now seeks an order for costs of the appeal and of the proceedings in the court below based on what she submits was her “substantial success” on matters in dispute in both courts. The Primary Issues [3] The primary issues in the litigation were: (i) the computation of the respondent’s income, in particular the amount to be deducted for business expenses and whether bonus income should be included in that calculation for the purposes of spousal and child support; (ii) whether income should be imputed to the appellant; (iii) the appropriate quantum of spousal support; (iv) the respondent’s access to the children; and (v) the related issue of whether the children and the respondent should meet with an independent counsellor to address issues of alienation. [4] The trial judge fixed the respondent’s income pursuant to the Federal Child Support Guidelines, SOR/1997-175 (the “ Guidelines ”) at $124,800. He calculated that amount based on the respondent’s gross business income excluding an amount for the respondent’s periodic bonus income, less 20 percent for reasonable business expenses. The appellant challenged that calculation on appeal with mixed success. While this court increased the respondent’s gross business income by an amount that took into account his periodic receipt of bonus income, the trial judge’s determination of the deduction for his reasonable business expenses was upheld. [5] The trial judge also imputed an annual income to the appellant of $25,000. The appellant succeeded in overturning this finding on appeal. [6] Spousal support was fixed by the trial judge for an indefinite duration and in an amount below the low end of that range under the Spousal Support Advisory Guidelines (“SSAG” ). He did so as a result of his reapportionment of the equity in the family residence in favour of the appellant. On appeal, the appellant’s spousal support was increased to an amount that fell within the low end of the SSAG amount range. The indefinite duration of the support was not changed. [7] The trial judge awarded the respondent reasonable access to the children on the condition that they consented to the access. The respondent had alleged that the appellant had alienated the children. On appeal, the condition attached to the respondent’s access was rescinded. The respondent was also granted an order that he had applied for at trial, namely that he and the children attend a single session with an independent counsellor to discuss their relationship. The Secondary Issues [8] Other issues in these proceedings included: (i) custody and guardianship of the children; (ii) s. 7 Guidelines support for the children’s special and extraordinary expenses; (iii) the family debts; (iv) reapportionment of the equity in the family residence; and (v) the division of investment assets (RRSPs and RESPs). [9] The trial judge awarded the parties joint guardianship of the children with sole custody to the appellant. The respondent appealed this order and applied for an order for joint custody of the children. He did not argue this ground of appeal at the hearing. [10] The trial judge ordered the respondent to pay all of the children’s special and extraordinary expenses pursuant to s. 7 of the Guidelines (with post-secondary expenses coming out of the parties’ RESPs) for the years 2012 and 2013. He delayed the appellant’s obligation to contribute to these expenses. On appeal, the respondent succeeded in obtaining an order that the appellant contribute her proportionate share of the s. 7 expenses based on her income (the only source was her spousal support) and that there be no delay in the commencement of that order. [11] The trial judge accepted the respondent’s calculation of the family debts and apportioned them equally between the parties. The appellant was unsuccessful in appealing this order. [12] In regard to the family residence, the trial judge reapportioned the equity in the home 70 percent in favour of the appellant. This order was not challenged on appeal. [13] The trial judge ordered that the RESPs held by the respondent should be used for the children’s post-secondary expenses. The appellant appealed that order on the basis that the RESPs were a family asset and should be divided. At the hearing she abandoned that ground of appeal. [14] The trial judge also declined to divide the parties’ respective RRSPs as they were of equal value and the appellant had already dissipated those in her name and was not seeking a share of the respondent’s. That issue was not appealed. Discussion [15] In family law proceedings, as in all civil litigation, the usual rule is that costs follow the event unless otherwise ordered: Supreme Court Family Rules, R. 16-1(7) ; Gold v. Gold (1993), 82 B.C.L.R. (2d) 180, 106 D.L.R. (4 th ) 452 at para. 19 (C.A.), leave to appeal ref’d [1993] S.C.C.A. No. 411. Section 23 of the Court of Appeal Act similarly provides that the successful party is entitled to the costs of the appeal, including the costs of all applications made in the appeal, unless otherwise ordered. [16] Success in the event has been interpreted as “substantial success”: see Fotheringham v. Fotheringham, 2001 BCSC 1321, 13 C.P.C. (5th) 302, leave to appeal ref’d 2002 BCCA 454. In Fotheringham, Mr. Justice Bouck described this standard as follows: [45] Gold now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute and weighing their relative importance. The words “substantial success” are not defined. For want of a better measure, since success, a passing grade, is around 50% or better, substantial success is about 75% or better. That does not mean a court must descend into a meticulous mathematical examination of the matters in dispute and assign a percentage to each matter. Rather, it is meant to serve as a rough and ready guide when [looking] at all the disputed matters globally. [17] When success is divided and no one party enjoys “substantial success” on appeal, this Court’s practice is to order that each party bears their own costs (see Mirza v. Mirza, 2007 BCCA 106, 237 B.C.A.C. 104), or to award the more successful party, as determined by their success on the more important and time-consuming issues, a portion of their costs (see Cohen v. Cohen (1995), 15 R.F.L. (4 th ) 84 (B.C.C.A.); Tedham v. Tedham, 2003 BCCA 600, 20 B.C.L.R. (4th) 56, leave to appeal ref’d [2004] S.C.C.A. No. 4; Turpin v. Clark, 2009 BCCA 530, 4 B.C.L.R. (5th) 48, leave to appeal ref’d [2010] S.C.C.A. No. 5). [18] In Cohen, Mr. Justice Donald, writing for the Court, explained: [4]        There is something to respondent’s counsel’s argument that there was divided success, however, I disagree with his approach in reflecting that division in costs by counting up the number of issues raised by the appellant and making the costs directly proportional to the ratio of success on those issues. In my view, reapportionment was much the largest issue in the case and occupied most of the time. The appellant was successful in her claim for reapportionment. Many of the other issues were, as appellant’s counsel submits, different approaches to achieve the same result. I would award the appellant 75% of her costs. [19] Similarly, in Tedham the husband was substantially successful at trial and was awarded costs. The wife successfully appealed with respect to two of the main issues at trial and one of the less significant issues. She failed on appeal in regard to the third major issue at trial. In those circumstances, the Court awarded the wife 70 percent of her trial costs and 100 percent of her appeal costs. Conclusion [20] The trial judge ordered the parties to bear their own costs because of their divided success at trial. On appeal, the appellant was the more successful party on the more significant and time-consuming issues, though in our view that success did not rise to the level of “substantial success” as that term was described in Fotheringham. [21] Based on our assessment of the parties’ respective success on appeal and how that result affected their respective success at trial, it is our conclusion that the appellant should receive 50 percent of her costs on appeal and at trial. “The Honourable Madam Justice Newbury” “The Honourable Mr. Justice Chiasson” “The Honourable Madam Justice D. Smith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Wakelam v. Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc., 2014 BCCA 36 Date: 20140130 Dockets: CA039629; CA039633; CA039636 Docket: CA039629 Between: Lana Wakelam Respondent (Plaintiff) And Wyeth Consumer Healthcare/Wyeth Soins de Sant e Inc. Appellant (Defendant) And Johnson & Johnson, Johnson & Johnson Inc., McNeil Consumer Healthcare Canada, Pfizer Canada Inc., Novartis Consumer Health Canada Inc./ Novartis Sante Familiale Canada Inc., Trillium Health Care Products Inc., Vita Health Products Inc., and Procter & Gamble Inc. Respondents (Defendants) And The Attorney General of British Columbia The Attorney General of Canada Pursuant to the Constitutional Question Act , RSBC 1996, C.68 - and - Docket: CA039633 Between: Lana Wakelam Respondent (Plaintiff) And Johnson & Johnson, Johnson & Johnson Inc., McNeil Consumer Healthcare Canada, and Pfizer Canada Inc. Appellants (Defendants) And Novartis Consumer Health Canada Inc./ Novartis Sant e Familiale Canada Inc., Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc., Trillium Health Care Products Inc., and Vita Health Products Inc., and Procter & Gamble Inc. Respondents (Defendants) And The Attorney General of British Columbia The Attorney General of Canada Pursuant to the Constitutional Question Act , RSBC 1996, C.68 - and - Docket: CA039636 Between: Lana Wakelam Respondent (Plaintiff) And Novartis Consumer Health Canada Inc./ Novartis Sante Familiale Canada Inc. Appellant (Defendant) And Johnson & Johnson, Johnson & Johnson Inc., McNeil Consumer Healthcare Canada, Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc., Pfizer Canada Inc., Trillium Health Care Products Inc., Vita Health Products Inc., and Procter & Gamble Inc. Respondents (Defendants) And The Attorney General of British Columbia The Attorney General of Canada Pursuant to the Constitutional Question Act , RSBC 1996, C.68 Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Frankel The Honourable Madam Justice Garson On appeal from:  An order of the Supreme Court of British Columbia, dated December 22, 2011 ( Wakelam v. Johnson & Johnson , 2011 BCSC 1765, Vancouver Docket No. S078806). Counsel for the Appellant Novartis Consumer Health Canada Inc./Novartis Sante Familiale Canada Inc.: D. Kent, J.D. Virgin Counsel for the Appellants Johnson & Johnson, Johnson & Johnson Inc., McNeil Consumer Healthcare Canada and Pfizer Canada Inc.: D. Neave T. Posyniak (Articled Student) Counsel for the Appellant Wyeth Consumer Healthcare/Wyeth Soins de Sant e Inc.: W.W. McNamara, S. Chesworth, C. Cummins Counsel for The Attorney General of British Columbia: J.G. Penner Counsel for the Respondent: R. Mogerman, M. Underhill, M. Segal Place and Date of Hearing: Vancouver, British Columbia December 11 and 12, 2013 Written Submissions Received: January 16 and 23, 2014 Place and Date of Judgment: Vancouver, British Columbia January 30, 2014 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice Frankel Concurred in by: The Honourable Madam Justice Garson Summary: The plaintiff’s class action against manufacturers of children’s cold medicines was certified by trial court, and certification order was challenged on appeal. APPEAL ALLOWED. In late 2008, Health Canada, acting on new studies, decided that cold and cough medicines were not generally effective for children or were unsafe when dosage requirements were not followed. The ministry ordered that they were not to be marketed for children under age six, and required re-labelling to this effect. Manufacturers, including the defendants, duly complied with new labelling rules; but plaintiff claimed that in selling the medicines prior to December 2008, the defendants had engaged in “deceptive acts or practices” under the (provincial) Business Practices and Consumer Protection Act (“BPA”) and had made misleading representations to the public contrary to s. 36 of the (federal) Competition Act. These statutes provide private rights of action for persons who suffer loss or damage due to breach of the statute. In her pleading, the plaintiff sought to marry the (assumed) statutory breaches with restitutionary remedies, seeking the benefits defendants had received from the sale of the medicines between 1997 and 2008. She deposed (but did not plead) that she had bought five bottles of the medicines over a number of years, but did not allege she had given medicine to her child or that the child had suffered any injury. The Court of Appeal held that: 1.       As held by the certification judge, the Food and Drug Act and ss. 171‑2 of BPA did not “conflict” in the constitutional sense and accordingly, the second branch of the paramountcy doctrine (based on “frustration” of the purposes of the federal legislation) did not apply to make the BPA inapplicable to this case. The primary purpose of FDA was to protect Canadians’ health and safety by regulating food and drugs, and to permit rather than compel the sale of safe products; and this case was more analogous to the Spraytech and Rothmans decisions of the SCC than to Mangat or Lafarge Canada (SCC 2007). Adding further protection by applying the BPA would not frustrate the purpose of the FDA, although it was possible a conflict might arise in future between the two statutes on different facts. 2.       CA followed Koubi v. Mazda (BCCA) to hold that BPA is an “exhaustive code” regulating consumer transactions and that restitutionary remedies (including waiver of tort, unjust enrichment, disgorgement and constructive trust) sought by plaintiff are not available at law for breach of the BPA. Saskatchewan Wheat Pool applied. With respect to plaintiff’s claim for personal damages under s. 171 of the BPA, no causal connection between the (assumed) deceptive act or practice and some loss or damage suffered by her had been pleaded, and no material facts that would support such claim had been pleaded. Thus no cause of action for monetary relief under the BPA had been disclosed. However, non-monetary causes referred to in s. 172 of BPA were available, at least in theory. 3.       Similarly, the Competition Act, enacted under the federal criminal law and trade and commerce powers, was a “well-integrated scheme” and s. 36 was not intended to create a “private right of action at large”, as stated in General Motors v. City National Leasing (SCC 1989). Section 36 referred to loss or damage suffered by a plaintiff, but did not contemplate the restitutionary remedies sought here. With respect to plaintiff’s own damage claim, s. 36 required proof of causation between the loss or damage and the statutory breach, which again had not been pleaded here. 4.       The “aggregate damage” provisions of the Class Proceedings Act (“CPA”), being procedural in nature (see Pro-Sys v. Microsoft (SCC 2013)), could not provide a cause of action. 5.       The court below had not erred in principle in finding that plaintiff had complied with s. 4(1)(b) of CPA, even though only one plaintiff had been named in the pleading. In the result, only the causes of action arising under s. 172 of the BPA were left in the pleading. Certification order was set aside, but plaintiff was free to seek the re-certification of what remained. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] On December 18, 2008, Health Canada reversed a longstanding policy that had permitted the sale in Canada of certain non-prescription cough and cold medicines for use by children. Manufacturers of such medicines had already voluntarily withdrawn them from the market for use in children under age two, but Health Canada now required them to re-label the medicines to instruct consumers that they should not be used in children under six. As stated by the ministry in a press release at the time: Cough and cold medicines have a long history of use in children; however, there is limited evidence supporting the effectiveness of over-the-counter cough and cold medicines in children. This is partly due to the fact that for many years it was assumed that cough and cold medicines worked the same way in children and adults. Therefore, the products for children were approved based on estimations from studies on adults. However, there is a better understanding now of how the ingredients found in cough and cold medicines can behave differently in children than adults. Reports of misuse, overdose and rare but serious side-effects have also raised concerns about the safety of these products in children. While the link between the adverse events and the products cannot be definitively proven by these reports, they are signs that Health Canada cannot ignore. . . . As a result of Health Canada's decision, the labelling of cough and cold medicines for use in children must be changed by fall 2009 to say they should not be used in children less than 6 years of age. These products will also require enhanced labelling for children aged 6 to under 12, child resistant packaging, and the inclusion of dosing devices for all liquid formulations. ... There is no suggestion that the manufacturers, including the defendants herein, failed to comply with the new labelling rules within the nine months allowed. [2] Health Canada’s decision was the culmination of studies that had been ongoing for some years in connection with various categories of cold and cough medicines in Canada and the U.S. In the late 1980s, Health and Welfare Canada had convened an expert advisory committee to make recommendations regarding the safety, efficacy and labelling of over-the-counter cough and cold medicines. In two reports, the committee had found that the cold medication ingredients and the antitussives and expectorants included in some of the medicines were generally safe and effective; but in a third report, had made more specific recommendations for dosing children aged two to twelve. In response, Health Canada initiated further study by paediatric experts of issues relating to “safety, efficacy, labelling, availability, and dosage, including the concept of standard paediatric dosing units and dosing by narrower age groups”. Ultimately, the decision of December 2008 was taken. (In fairness, I note that the defendants strongly challenge the conclusion that their cold and cough medicines are generally ineffective for children or unsafe in the specified dosages. They have filed various expert reports in support of their position in this proceeding.) The Statement of Claim [3] Ms. Wakelam commenced this action by statement of claim filed on June 5, 2008. A copy of the pleading (as subsequently amended) is appended to these reasons. It is remarkable more for what it does not assert than for what it does. Although it defines “Class” to mean “all persons resident in British Columbia who purchased Children’s Cough Medicine for use by children under the age of six, that was supplied, offered for sale, advertised or promoted by the Defendants between December 24, 1997, to present”, Ms. Wakelam does not plead directly that she purchased any of the impugned medications. Instead she asserts that she is a member of the Class. In her supporting affidavit she deposes: My son was born on August 12, 2004. He is now four and a half years old. Over the past three years, in British Columbia and during the Class Period as defined in the Statement of Claim, I have purchased approximately five bottles of cough syrup at Walmart and London Drugs retailers to relieve my son’s cough and cold symptoms. Attached as Exhibit “A” to this Affidavit are true laser photocopies of packaging and three of the bottles of cough syrup that I have purchased. [Emphasis added.] Ms. Wakelam does not say she gave the cough syrup she purchased to her son, nor that (if her son did take any) the cough syrup was not effective, nor that it caused him any injury or harm. Indeed she makes no allegation of physical harm, negligence, or any common law tort (other than intentional interference with economic relations, which she concedes was rightly struck out by the certification judge) or breach of contract. Nor does she allege any wilful or reckless misconduct by the defendants – although she does seek punitive damages. [4] The crux of Ms. Wakelam’s claims is that in marketing the medicines for use in children under age six, the defendant manufacturers engaged in “deceptive acts or practices” contrary to the Business Practices and Consumer Protection Act , S.B.C. 2004, c. 2 (“ BPA ”) and made representations to the public that were false or misleading in a material respect, contrary to s. 52 of the Competition Act , R.S.C. 1985, c. C-34. Thus the court below summarized her complaint: Ms. Wakelam now understands that these cough and cold medicines were ineffective for children between the ages of 2 and 6. They are no longer marketed in Canada for that age group. Buying it, she says, was a waste of money. Moreover, she alleges, as it offered no benefit to balance the risks of taking the medication, it exposed her son to a real and unnecessary risk of harm. Consequently, she asserts, the defendants are all guilty of misrepresentation and nondisclosure. [Para. 2.] [5] As I understand Ms. Wakelam’s case, she hopes to win not just damages or reimbursement for her “waste of money”, but the disgorgement of any benefits received by the defendants as a result of their alleged contraventions of the two statutes. Thus she hopes to marry the breaches of statute – which by their terms require that a plaintiff have suffered a loss or damage caused by the breach, and appear to limit recovery to the resulting damages – with “anti-harm” or restitutionary remedies not contemplated by the BPA or the Competition Act ; and to do so by means of a class action. [6] Ms. Wakelam’s application for certification under the Class Proceedings Act , R.S.B.C. 1996, c. 50 (“ CPA ”), came before the judge below in April 2011. He issued his reasons, granting certification on substantially the terms sought, on December 22, 2011. (See 2011 BCSC 1765.) I do not intend to summarize his reasons at this point, partly because this appeal turns in large measure on the release, subsequent to December 2011, of decisions of the Supreme Court of Canada and of this court which in the defendants’ submission have changed or clarified the law. In addition, the various issues raised on the appeal are better approached separately, such that it will be more helpful to describe the judge’s findings as part of the discrete analysis of each issue. [7] The defendants in their factum framed their grounds of appeal as relating to the overall question of preferability under the CPA . In their oral submissions, however, they approached the issues somewhat differently. In my view, the issues raised may best be stated as follows: 1. Did the certification judge err in finding that the BPA (in particular ss. 171 and 172 thereof) is not inconsistent with the relevant provisions of the Food and Drugs Act , R.S.C. 1985, c. F-27 (“ FDA ”), such that the doctrine of paramountcy does not apply to make the BPA inoperative in this case? 2. Did the certification judge err in finding that Ms. Wakelam’s pleading discloses a cause of action consisting of a breach of the BPA for which a court might grant: i. a restitutionary award; ii. injunctive relief restraining the defendants from engaging in deceptive acts or practices as defined in the BPA ; iii. a declaration that the acts or practices engaged in by the defendants contravened the BPA ; or iv. an order requiring the defendants to advertise the court’s judgment or declaration? 3. Did the certification judge err in finding that the pleading discloses a cause of action consisting of a breach of the Competition Act for which a court might grant a restitutionary remedy? 4. Did the certification judge err in finding that ss. 29-30 of the CPA may provide the plaintiff with a cause of action for “aggregate damages”? 5. Did the certification judge err in finding that an “identifiable class of 2 or more persons” existed as required by s. 4(1)(b) of the CPA ? [8] The Supreme Court of Canada has not to date commented at length on the standards of review to be applied by appellate courts under class action legislation. Obviously, while the court “must” certify an action that meets the requirements in s. 4(1) of the CPA , the overall question of preferability involves considerable discretion and the decisions of certification judges are to be accorded deference. However, item 1 above, the paramountcy question, is obviously one of law to be reviewed on a correctness standard. The same is true of whether the causes of action referred to in items 2, 3 and 4 are available at law to Ms. Wakelam. (See Koubi v. Mazda Canada Inc. 2012 BCCA 310, at para. 15, and Hyrniak v. Mauldin 2014 SCC 7, at para. 84.) These questions stood to be decided on the Hunt v. Carey ‘test’ (see [1990] 2 S.C.R. 959) that normally applies to the striking-out of pleadings for failure to disclose a cause of action – i.e., whether it was “plain and obvious” the cause could not succeed or had “no reasonable prospect of success”: see R. v. Imperial Tobacco Canada Ltd. 2011 SCC 42 at para. 1. This is determined by reference to the statement of claim alone, and on the assumption that what is pleaded is true. The fact that the case is a weak one, or raises a novel point requiring investigation, is not enough to strike it: see Minnes v. Minnes (1962) 39 W.W.R. 112 (B.C.C.A.) at 122, cited with approval in Hunt v. Carey at 978-9. [9] The final issue, regarding compliance with s. 4(1)(b) of the CPA – which requires an “identifiable class of 2 or more persons” – appears to involve some discretion as well as law and fact. Canadian appellate courts have differed on what standard of review applies to it: see Canada (Attorney General) v. Anderson 2011 NLCA 82 at para. 38; Jameson Livestock Ltd. v. Toms Grain & Cattle Co. 2006 SKCA 20 at paras. 14-18; Soldier v. Canada (Attorney General) 2009 MBCA 12 at paras. 22-5. I will proceed on the basis that a higher standard of review is likely applicable, requiring an overriding error of fact or principle before this court may interfere. Paramountcy The Certification Judge’s Conclusions [10] The certification judge dealt at paras. 46-64 of his reasons with the question of whether Ms. Wakelam’s claims based on an alleged breach of the BPA were doomed to fail on what he called “jurisdictional” grounds – i.e., interjurisdictional immunity, paramountcy, or the “regulated conduct doctrine”. The defendants took the position that although the BPA is constitutionally valid, the FDA was intended by Parliament to apply to food and drugs sold in Canada and to apply exclusively . The judge explained: The main thrust of the defendants' argument is that Health Canada is provided with the sole authority in this country to regulate packaging and labelling and to prosecute consumer deception involving drugs such as the medicines. The declaratory and injunctive relief sought by the plaintiff would require the court to usurp the function of Health Canada in directing the defendants as to how they may label, market and advertise their products, and how they ought to have done so . Thus, assert the defendants, to allow the [ BPA ] to have the effect sought would result in a quick descent from the expert national regulation of medicines by Health Canada into a morass of episodic, inconsistent and ad hoc local regulation by individual judges by whom the different consumer claims are scrutinized. This would, they argue, supersede and frustrate the federal regulatory scheme by which the defendants had governed their actions. Moreover, it would put them in a position where compliance with federal regulatory requirements exposes them to liability under provincial legislation. These are results, they say, that the constitutional principles of interjurisdictional immunity and paramountcy are intended to avoid. [At para. 48; emphasis added.] [11] The judge accepted that the subject matter of the plaintiff’s claim had a double aspect such that the provincial and federal jurisdictions overlap – the provincial government’s jurisdiction over property and civil rights and the federal government’s criminal law power, which has been held to authorize legislation that prohibits or regulates the manufacture, labelling and marketing of pharmaceuticals. Given this overlap, the certification judge observed, the preferred constitutional analysis was that of paramountcy rather than interjurisdictional immunity. (Para. 53.) None of this is challenged on this appeal – although as will be seen below, the FDA has been held to fall under the federal trade and commerce power as well as under criminal law. [12] The judge noted the two “forms of conflict” between federal and provincial laws which may now lead to the application of paramountcy – an “operational conflict ... where one enactment says ‘yes’ and the other says ‘no’, such that ‘compliance with one is defiance of the other’” (see Multiple Access Ltd. v. McCutcheon [1982] 2 S.C.R. 161 at 191); or where dual compliance is possible but the provincial law is incompatible with the purposes of the federal law. (See Law Society of British Columbia v. Mangat 2001 SCC 67 and Rothmans, Benson & Hedges Inc. v. Saskatchewan 2005 SCC 13 at para. 14, both discussed in Quebec (Attorney General) v. Canadian Owners and Pilots Association 2010 SCC 39 at paras. 62‑74.) [13] The certification judge stated that both types of conflict were raised in this case, but that as in Jim Pattison Enterprises Ltd. v. British Columbia (Workers’ Compensation Board) 2011 BCCA 35, neither succeeded as a matter of law. (Para. 57.) First, he noted, the FDA and regulations thereto did not compel the defendants to market the medicines as safe and effective for children between ages two and six; rather it permitted them to do so – even though there was some controversy over the issue and Health Canada recognized that further study was required. (Para. 59.) If it could be shown that the defendants had engaged in deceptive practices, he saw nothing in the FDA regulatory scheme that purported to insulate manufacturers from “answering to consumers for that conduct”. He added: In all of the circumstances, the defendants' answer may well prove to be that the plaintiff's claim must fail as a matter of fact for the same reasons that led Health Canada in 1990 to authorize them to continue marketing the medicines. Compliance is not, however, an answer in law to anything other than a criminal charge under the Food and Drugs Act . Conduct that avoids exposure to criminal prosecution has never guaranteed freedom from civil liability; nor can it be said that compliance with the federal regulations necessarily constituted defiance of the provincial legislation. [At para. 60.] [14] As for the argument based on frustration of the purpose of the FDA , the Court observed that if the defendants were found to have misrepresented the safety or effectiveness of their products despite complying with all of Health Canada’s requirements, Canadians would not be exposed to drugs that had not been reviewed and approved by Health Canada, nor would approved drugs be removed from the market. The federal power would be “left untrammelled”. The application of the BPA to the medicines in issue would simply add “an additional layer of protection for the consumer by telling the marketers and manufacturers of drugs that compliance with all that Health Canada requires may not be enough, though difficulties of proof may abound.” (Para. 61.) [15] In the result, the judge ruled that as a matter of law, the doctrine of paramountcy was not engaged and that there was no constitutional basis for concluding that Ms. Wakelam’s claim under the BPA was bound to fail. He added that the same logic applied to the “regulated conduct” defence, which he dealt with in greater detail in connection with the plaintiff’s claim under the Competition Act , where it was principally advanced. (At para. 101; see para. 76 below.) On Appeal [16] In this court, the defendants do not challenge the finding that no operational conflict exists between the BPA and the FDA . They rely on the second branch of the paramountcy doctrine, submitting that the purposes of the FDA would be frustrated if the BPA were to apply to the packaging, labelling and sale of the medicines in question. [17] On this branch (which finds its genesis in Bank of Montreal v. Hall [1990] 1 S.C.R. 121), the Supreme Court’s decision in Canadian Owners and Pilots , supra , provides a good starting point for analysis. Chief Justice McLachlin there stated: To determine whether the impugned legislation frustrates a federal purpose, it is necessary to consider the regulatory framework that governs the decision to establish an aerodrome. The party seeking to invoke the doctrine of federal paramountcy bears the burden of proof: Lafarge Canada , at para. 77. That party must prove that the impugned legislation frustrates the purpose of a federal enactment. To do so, it must first establish the purpose of the relevant federal statute, and then prove that the provincial legislation is incompatible with this purpose . The standard for invalidating provincial legislation on the basis of frustration of federal purpose is high; permissive federal legislation, without more, will not establish that a federal purpose is frustrated when provincial legislation restricts the scope of the federal permission: see 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town) , 2001 SCC 40, [2001] 2 S.C.R. 241. [At para. 66; emphasis added.] [18] The Chief Justice went on at para. 69 to illustrate the distinction between a federal purpose sufficient to attract the doctrine of paramountcy on the one hand, and the “absence of specific purpose” on the other, by reference to 114957 Canada Ltée v. Hudson (Town) 2001 SCC 40 (“ Spraytech ”), and Mangat . In Spraytech , she noted, the federal pesticide legislation in question had been permissive , allowing the manufacture and use of pesticides regulated under the legislation. At issue was the applicability of a municipal bylaw which prohibited the use of pesticides in the municipality even though they were permitted under the federal scheme. The Court reasoned that: In this case, there is no barrier to dual compliance with By-law 270 and the Pesticides Act , nor any plausible evidence that the legislature intended to preclude municipal regulation of pesticide use. The Pesticides Act establishes a permit and licensing system for vendors and commercial applicators of pesticides and thus complements the federal legislation’s focus on the products themselves. Along with By-law 270, these laws establish a tri-level regulatory regime. [At para. 40; emphasis added.] The Court in Spraytech also emphasized that a potential conflict was not sufficient to invalidate a law – “there must be a real conflict.” (At para. 47.) In the result, the “frustration” branch of paramountcy was not engaged and the two laws could co-exist. [19] In Mangat , by contrast, the federal legislation had established the Immigration and Refugee Board for the hearing of immigration appeals. The statute specifically permitted “aliens” to be represented before the Board by barristers or solicitors or “other counsel” for a fee. The Legal Profession Act of British Columbia, however, prohibited anyone other than a barrister and solicitor duly called to the bar from engaging in the practice of law. (“Practice of law” was defined to include appearing as counsel or an advocate for a fee.) The Court found that both branches of the paramountcy doctrine were engaged. The Court reasoned as follows: In this case, there is an operational conflict as the provincial legislation prohibits non-lawyers to appear for a fee before a tribunal but the federal legislation authorizes non-lawyers to appear as counsel for a fee. At a superficial level, a person who seeks to comply with both enactments can succeed either by becoming a member in good standing of the Law Society of British Columbia or by not charging a fee. Complying with the stricter statute necessarily involves complying with the other statute. However, following the expanded interpretation given in cases like M & D Farm and Bank of Montreal, supra , dual compliance is impossible. To require "other counsel" to be a member in good standing of the bar of the province or to refuse the payment of a fee would go contrary to Parliament's purpose in enacting ss. 30 and 69(1) of the Immigration Act . In those provisions, Parliament provided that aliens could be represented by non-lawyers acting for a fee, and in this respect it was pursuing the legitimate objective of establishing an informal, accessible (in financial, cultural, and linguistic terms), and expeditious process, peculiar to administrative tribunals. Where there is an enabling federal law, the provincial law cannot be contrary to Parliament's purpose . Finally, it would be impossible for a judge or an official of the IRB to comply with both acts. [Para. 72; emphasis added.] [20] Chief Justice McLachlin in Canadian Owners and Pilots described the operation of the second branch of paramountcy in Mangat as following from the “express purpose” of the federal legislation – to permit the informal and expeditious determination of claims before the Immigration and Refugee Board. (See Mangat at paras. 25-30.) Presumably, it had not been the “purpose” of the federal pesticide legislation in Spraytech to ensure that the permitted products could be sold – only to ensure that those products permitted to be sold were safe. [21] What, then, is the “purpose” of the FDA ? In Canadian Owners and Pilots , the Chief Justice observed that the purpose of a law may be determined by examining intrinsic evidence, such as purposive clauses and the general structure of the Act, as well as extrinsic evidence such as Hansard. (Para. 18.) We were not referred to any excerpts from Hansard regarding the FDA , and the Act itself does not provide any statement of general purpose. As far as pharmaceuticals are concerned, however, the most salient provisions of the FDA appear to be ss. 8 and 9, which provide: 8. No person shall sell any drug that ( a ) was manufactured, prepared, preserved, packaged or stored under unsanitary conditions; or ( b ) is adulterated. 9. (1) No person shall label, package, treat, process, sell or advertise any drug in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety. (2) A drug that is not labelled or packaged as required by, or is labelled or packaged contrary to, the regulations shall be deemed to be labelled or packaged contrary to subsection (1). Section 31 creates an offence and provides penalties for contraventions of the Act and Regulations. [22] Part II of the FDA permits the Minister to designate inspectors for enforcing the Act; to designate any person as an analyst to carry out analyses required for enforcement purposes; and contemplates the enactment of regulations “for carrying the purposes and provisions of this Act into effect”, and in particular regulations respecting: (i) the labelling and packaging and the offering, exposing and advertising for sale of food, drugs, cosmetics and devices, (ii) the size, dimensions, fill and other specifications of packages of food, drugs, cosmetics and devices, (iii) the sale or the conditions of sale of any food, drug, cosmetic or device, and (iv) the use of any substance as an ingredient in any food, drug, cosmetic or device, to prevent the purchaser or consumer thereof from being deceived or misled in respect of the design, construction, performance, intended use, quantity, character, value, composition, merit or safety thereof, or to prevent injury to the health of the purchaser or consumer…..[s. 30(1)(b)] [23] The purpose(s) of the FDA have been judicially considered in the course of rulings on its constitutional validity. The seminal case is R. v. Wetmore [1983] 2 S.C.R. 284, in which the Court was asked to decide whether ss. 8, 9 and 26 (now s. 31) of the FDA depended on s. 91(27) of the then British North America Act (the criminal power); and if so, whether Parliament could authorize the Attorney General of Canada to prefer indictments and conduct proceedings in respect of alleged violations of the FDA . The majority of the Court, per Chief Justice Laskin, began its analysis by noting that the FDA “goes beyond mere prohibition to bring it solely within s. 91(27) but that it also involves a prescription of standards, including labelling and packaging as well as control of manufacture.” He continued: The ramifications of the legislation, encompassing food, drugs, cosmetics and devices and the emphasis on marketing standards seem to me to subjoin a trade and commerce aspect beyond mere criminal law alone . There appear to be three categories of provisions in the [ FDA ]. Those that are in s. 8 are aimed at protecting the physical health and safety of the public. Those that are in s. 9 are aimed at marketing and those dealing with controlled drugs in Part III of the Act are aimed at protecting the moral health of the public. One may properly characterize the first and third categories as falling under the criminal law power but the second category certainly invites the application of the trade and commerce power. However, it is unnecessary to pursue this issue and it has been well understood over many years that protection of food and other products against adulteration and to enforce standards of purity are properly assigned to the criminal law . [At 288-9; emphasis added.] [24] In a companion case released at the same time as Wetmore , Attorney General (Canada) v. Canadian National Transportation, Ltd. [1983] 2 S.C.R. 206, the majority confirmed that the Attorney General of Canada could prefer indictments and conduct prosecutions for violations of otherwise valid federal legislation. On this point, the majority endorsed the view expressed by Spence J. in R. v. Hauser [1979] 1 S.C.R. 984 that: Indeed it is difficult to understand how much of the federal legislative field could be dealt with efficiently by other methods. Much of the legislation in such fields is in essence regulatory and concerns such typically federal matters as trade and commerce, importation and exportation and other like matters. The administration of such fields require decisions of policy and certainly would include the establishment of a policy as to the means of and methods of enforcement. It would be a denial of the basic concept of federalism to permit the provincial authorities to have exclusive control of the enforcement of such legislation and the sole determination as to how and when the legislation should be enforced by institution of prosecution or against whom such prosecution should be instituted. [At 1003-4.] [25] In 1987, in C.E. Jamieson & Co. (Dominion) v. Canada (Attorney General) (1987) 46 D.L.R. (4 th ) 582 (F.C.T.D.), ss. 8, 9 and 26 of the FDA were tested again. This time, the plaintiffs argued that although these provisions fell within Parliament’s authority to enact criminal law, the Act in fact went “beyond mere prohibition with penal consequences and inter-regulation” and thus beyond Parliament’s powers. The Court rejected this argument, reasoning in part: Such a contention cannot withstand the force of reasoning in the Standard Sausage judgment and the Kripps Pharmacy judgment, both carefully considered by the Supreme Court of Canada. The defendants submit that criminal law does not need to be, and has not been, interpreted in such a narrow sense as urged by the plaintiffs. This court agrees with the defendants’ submission … that where the “ legitimate” purpose – that is, the “pith and substance” – of the legislation is the protection of the public health and safety, supplemented by the suppression of deception and fraud, and not an attempt to protect or to suppress a particular trade or business, it is open to Parliament to legislate on the footing of criminal law . It is noteworthy, also, that Parliament does not attempt, in this regard, to regulate the prices or quantities of goods. The legislation, including the regulations, is not named at one sector or market for either promotion or derogation of another or others. Further, the regulation of product standards is exacted only insofar as the health and safety of the public are concerned…. When, however, it comes to the manufacturing, labelling and marketing throughout Canada of ingestible substances which, depending on the dosages could be poisonous, capable of altering moods or just plain lethal, it cannot be reasoned that regulation by the Health Protection Branch (HPB), in the protection of public health and safety including informed buying and ingestion, is too heavy a burden for valid criminal law to bear : see James Richardson & Sons Ltd. v. M.N.R. , [1983] 1 F.C. 3 ... regarding legislative jurisdiction. This court finds that the Food and Drugs Act in its specific provision, s. 25(1)(o), delegating the power to make regulations, and the general tenor of the impugned regulations, are supportable pursuant to head 27 of s. 91 of the Constitution Act , 1987 as criminal law and as legislation necessarily incidental to that criminal law . [At 607-8; emphasis added.] ( Jamieson was noted with apparent approval in Canadian Generic Pharmaceutical Ass’n. v. Canada (Minister of Health) 2010 FCA 334 at para. 127 ( lve. to app. dism’d [2011] S.C.C.A. No. 54) and in Saputo Inc. v. Canada (Attorney General) 2011 FCA 69 at para. 71.) [26] It appears, then, that the purpose of the FDA insofar as pharmaceuticals are concerned is to protect the health and safety of the public – by testing drugs and authorizing them as safe for use by Canadians; by prohibiting false, misleading or deceptive marketing; and by regulating the labelling and packaging of drugs so that purchasers or consumers will not be deceived or wrongly dosed. [27] The defendants in the case at bar argue, however, that the statute goes farther and endeavours to “effect a balance between the duty to protect Canadians from unsafe drugs and the need to ensure access to safe and effective new drugs.” In support, they cite Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare) [1988] 1 F.C. 422 (T.D.). It concerned a ministerial decision to approve the marketing of a new drug in Canada. In the course of its reasons, the Court said this: The legislative scheme set out in the Food and Drug Act and the Regulations provides a mechanism whereby the safety and efficacy of a new drug on the Canadian market is assessed and monitored. The Regulations contemplate a process in which the manufacturer of a new drug acquires the right to sell or advertise that drug for sale only when the Minister is satisfied that the claims made by the manufacturer for the drug are substantiated. The Minister signifies his satisfaction by issuing a notice of compliance. The Minister’s decision to issue such a notice is discretionary. In exercising his discretion, the Minister weighs the benefit of the drug against the foreseeable risk of adverse reaction to it. The Minister’s determination is one made in contemplation of public health and represents the implementation of social and economic policy . [At para. 38; emphasis added.] [28] Similar observations were made in Canadian Generic , supra , where the Federal Court of Appeal observed: It cannot be disputed that a prohibition without any exceptions would certainly protect the public from unsafe drugs. However, that effort would be self-defeating in that no new drug would ever enter the market . Hence, public health and safety would suffer because efforts to discover and market new drugs would not materialize. Consequently, an exception was created so as to counter the negative effects of a total ban on new drugs whereby under the exception, drug manufacturers are permitted to demonstrate to the Minister that their new drug is safe and effective by submitting a [New Drug Submission] or an [Abbreviated New Drug Submission]. In other words, the Government has attempted to balance its duty to protect Canadians from unsafe drugs and its duty to provide Canadians with safe and effective new drugs. [Para. 105.] [29] From this, the defendants submit that the purpose of the FDA is not only to protect Canadians from unsafe or ineffective drugs, but also to promote Canadians’ access to beneficial drugs. On this view, the regulatory regime established under the FDA is not merely permissive, but prescriptive: Health Canada decides by means of appropriate testing and consulting what new drugs are safe and appropriate for what purposes, on what terms they may be marketed, to whom they may be given, and in what dosages. As Canadian Generic suggests, this involves the “balancing” of safety and health considerations. In this sense, it is said, the FDA is unlike the federal pesticide legislation in Spraytech , in respect of which the only interest of the federal government was to prohibit or regulate rather than to encourage the development and marketing of new products. Indeed, the defendants here suggest that once a product has been found to be beneficial by Health Canada, the ministry has a duty to ensure that it is made available to the public. [30] As well, the defendants note, the scheme established by the FDA is a comprehensive one. A single federal “decisional authority” is created to oversee all aspects of drug marketing in Canada by means of a uniform set of laws that apply across the country. This scheme, the defendants say, would be frustrated by the application of provincial legislation. They pose the spectre of a “balkanized” system of drug regulation under which a provincial regulator (or court of law) acting under the BPA would become the arbiter of drug labelling in a particular province, “usurping” Health Canada’s decisional role in fostering the marketing of beneficial drugs to all Canadians. In particular, if injunctive relief could be obtained under the BPA in respect of the labelling, marketing or sale of pharmaceuticals that have been approved by Health Canada, the court would become a “ de facto drug regulator in substitution for Health Canada.” Thus the statement of the certification judge at para. 61 of his reasons that if the defendants were found to have misrepresented the effectiveness of their products, “approved drugs” (i.e., approved by Health Canada) would “not be removed from the market”, is incorrect. (See para. 14 above.) The sale of products thought to be beneficial by Health Canada could be enjoined in a particular province, denying the benefit thereof to some Canadians. [31] Finally, the defendants point to British Columbia (Attorney General) v. Lafarge Canada Inc. 2007 SCC 23, one of the few cases in which paramountcy has been applied to resolve an inconsistency between federal and provincial laws. In Lafarge , the contest was between the Vancouver Port Authority, a federal undertaking created under the Canada Marine Act , and a municipal bylaw. On its face, the bylaw required that a project proposed by the Port Authority comply with municipal requirements relating to the issuance of development permits. These included a 30‑foot height restriction and various requirements regarding noise and pollution that would be created by normal port activities. The plaintiffs sought to have the bylaw enforced in respect of the project. They contended that since the Port Authority could comply with both laws, no conflict arose between the two. [32] The Supreme Court disagreed. It held that there was a conflict between the federal legislation and the municipal bylaw, which conflict was “easily resolved” on the basis of federal paramountcy. (Para. 4.) In the Court’s analysis: (i) The Existence of an Operational Conflict Operational conflict is present here. Reference has already been made to the City's 30-foot height restriction. The record confirms other areas of conflict in respect of noise and pollution from the offloading activity and the subsequent loading of the aggregates. If the Ratepayers had succeeded in persuading the City to seek an injunction to stop the Lafarge project from going ahead without a city permit, the judge could not have given effect both to the federal law (which would have led to a dismissal of the application) and the municipal law (which would have led to the granting of an injunction). That is an operational conflict , as held in M & D Farm Ltd. v. Manitoba Agricultural Credit Corp. , [1999] 2 S.C.R. 961. (ii) Frustration of Federal Legislative Purpose Such an application of the relevant municipal standards would frustrate the federal purpose. Although the VPA should seek to cooperate with the municipalities of the Greater Vancouver area, it retains the final say in respect of all matters falling within valid federal jurisdiction, in case of conflict. Assistance can be drawn from Mangat where provincial legislation prohibited non-lawyers from appearing for a fee before a tribunal, but the federal legislation authorized non-lawyers to appear as counsel for a fee. Mangat confirms that the second prong of the test should not be interpreted as a return to the doctrine of the “occupied field”. Rather it intends to capture those instances where it might be possible to comply with the letter of both laws, but where such compliance would frustrate the purpose intended by Parliament . In Mangat , it was argued that both enactments could be complied with, if would-be advocates either became a member in good standing of the Law Society of British Columbia or refrained from charging a fee. However, Gonthier J. held at para. 72 that "[t]o require ’other counsel’ to be a member in good standing of the bar of the province or to refuse the payment of a fee would go contrary to Parliament's purpose in enacting ss. 30 and 69(1) of the Immigration Act .... Where there is an enabling federal law, the provincial law cannot be contrary to Parliament’s purpose .” Here, the CMA has authorized the VPA to make its decision about the project and has enabled Lafarge to proceed on the basis of that authorization. [At paras. 81-4; emphasis added.] [33] The defendants argue that similarly here, Parliament has authorized (or “enabled”) Health Canada to act as the decision-maker concerning what drugs should and should not be marketed in Canada. The interposition of a court or other provincial authority acting under the BPA would restrict both the manufacturer’s right to market, and the public’s right of access to, the drug in question. In the alternative, they contend that this issue should be left for trial when the underlying facts are known and the effect of remedies that might be granted under the BPA can be assessed. [34] The plaintiff characterizes the defendants’ argument as “clearly designed to avoid the need to demonstrate any actual incompatibility between the federal and provincial legislative provisions by suggesting that the federal regime is meant to be exclusive and exhaustive and that therefore the mere application of any provincial law to the subject matter would be inconsistent with the purpose of the legislative scheme.” She submits that the “trigger” for paramountcy always depends on whether the “actual effects” of the provincial legislation are incompatible with the federal legislation. On this point, counsel cites this court’s observation in Jim Pattison Enterprises , supra , that paramountcy is “now triggered only ‘when the operational effects of provincial legislation are incompatible with federal legislation’”. (At para. 138, citing in turn Canadian Western Bank v. Alberta 2007 SCC 22, at para. 69.) The majority in Pattison continued: This clarification of the "frustration of federal purpose test" suggests that the critical factor in determining if the doctrine is engaged is the identification of an operational conflict. … In order to succeed, it must be shown either "that it is impossible to comply with both laws or that to apply the provincial law would frustrate the purpose of the federal law" …. [At para. 138.] [35] The Court’s reference in Pattison to “operational effects”, however, is not restricted to situations in which compliance with one law necessarily entails disobedience to the other. The Supreme Court in Canadian Western Bank acknowledged that in some instances, an obligation to comply with provincial legislation would “in effect frustrate the purpose of a federal law even though it did not entail a direct violation of the federal law's provisions.” In Bank of Montreal v. Hall itself, for example, the Court ruled that a chartered bank seeking to enforce certain security under the Bank Act could not be required to comply with an additional condition imposed by the Saskatchewan Limitation of Civil Rights Act . Speaking for the Court, La Forest J. reasoned: as we have seen, dual compliance will be impossible when application of the provincial statute can fairly be said to frustrate Parliament's legislative purpose. In this instance, as I have already noted, Parliament's legislative purpose in defining the unique security interest created by ss. 178 and 179 of the Bank Act was manifestly that of creating a security interest susceptible of uniform enforcement by the banks nationwide, that is to say a lending regime sui generis in which, to borrow the phrase of Muldoon J. in Canadian Imperial Bank of Commerce v. R. [(1984) 52 C.B.R. 145 (F.C.T.D.)], the "bank obtains and may assert its right to the goods and their proceeds against the world, except as only Parliament itself may reduce or modify those rights" …. This, of course, is merely another way of saying that Parliament, in its wisdom, wished to guard against creating a lending regime whereby the rights of the banks would be made to depend solely on provincial legislation governing the realization and enforcement of security interests. the determination that there is no repugnancy cannot be made to rest on the sole consideration that, at the end of the day, the bank might very well be able to realize on its security if it defers to the provisions of the provincial legislation . A showing that conflict can be avoided if a provincial Act is followed to the exclusion of a federal Act can hardly be determinative of the question whether the provincial and federal acts are in conflict, and, hence, repugnant. That conclusion, in my view, would simply beg the question. The focus of the inquiry, rather, must be on the broader question whether operation of the provincial Act is compatible with the federal legislative purpose. Absent this compatibility, dual compliance is impossible. Such is the case here. The two statutes differ to such a degree in the approach taken to the problem of realization that the provincial cannot substitute for the federal. I have dealt with this case on the basis of paramountcy to meet the arguments put forward by counsel. But the issue can, I think, be answered more directly . At the end of the day, I agree with counsel for the Attorney General of Canada that this is simply a case where Parliament, under its power to regulate banking, has enacted a complete code that at once defines and provides for the realization of a security interest. There is no room left for the operation of the provincial legislation and that legislation should, accordingly, be construed as inapplicable to the extent that it trenches on valid federal banking legislation. [At 154-5.] (See also Husky Oil Operations Ltd. v. Minister of National Revenue [1995] 3 S.C.R. 453 at paras. 65-79, where the Court ruled that allowing provincial laws relating to set-off to apply in a bankruptcy context would ‘balkanize’ the “scheme of bankruptcy priorities across the country”.) [36] The Court in Canadian Western Bank went on to endorse a narrow interpretation of “incompatibility” and to observe that the mere existence of a “duplication of norms” at the federal and provincial levels does not itself constitute a degree of conflict capable of triggering paramountcy. Moreover, a provincial law might in principle “add requirements that supplement the requirements of federal legislation” (citing Spraytech as an example). In both cases, the Court observed, “the laws can apply concurrently, and citizens can comply with either of them without violating the other.” (Para. 72.) [37] In Canadian Western Bank itself, a provincial law requiring a licence for the promotion of insurance in Alberta was held not to be inconsistent with provisions of the Bank Act that authorized banks to promote various types of insurance. The majority rejected the contention that the case was analogous to Mangat , and continued: Here, as in Rothmans , the federal legislation is permissive . Section 416(1) provides that “[a] bank shall not undertake the business of insurance except to the extent permitted by this Act or the regulations”. This formulation bears some similarity to the law under consideration in Spraytech which held the federal law controlling pesticides to be “permissive, rather than exhaustive” (para. 35). Parliament did not intend to fully regulate pesticide use, nor was its purpose to authorize their use . The federal pesticide legislation itself envisioned the existence of complementary municipal by-laws; see paras. 40 and 42. Similarly, the federal legislation at issue in this case, while permitting the banks to promote authorized insurance, contains references that assume the relevant provincial law to be applicable. Section 7(2) of the [Regulations] reads: 7          (2) Notwithstanding subsection (1) and section 6, a bank may exclude from a promotion referred to in paragraph (1)(e) or 6(b) persons (a) in respect of whom the promotion would contravene an Act of Parliament or of the legislature of a province ... These reasons focus, as did those of Hunt J.A., on the banks’ arguments on paramountcy related to the provincial requirement of licences and the alleged conflict in the definition of agent. Other more specific conflicts were argued before the trial judge, and rejected by him. Those objections were not carried forward in the Court of Appeal or this Court. Should an issue arise in future with respect to a conflict not dealt with here or in the reasons of the courts below, it would, of course, be open to the banks to pursue a paramountcy argument on the basis of the facts as they may then appear. [At paras. 103 and 109; emphasis by underlining added.] [38] The majority also warned against giving “too broad a scope” to Bank of Montreal , Mangat and Rothmans , and against confusing the second branch of the paramountcy doctrine with the “occupied field” test of constitutional vires rejected in O’Grady v. Sparling [1960] S.C.R. 804. (At para. 75; see also the discussion in Peter W. Hogg, Constitutional Law of Canada (2005 looseleaf) at § 16.4.) As Professor Hogg notes, it is difficult to distinguish between cases where the provincial law frustrates the purpose of a federal law and those in which the imputation that the federal law intended to cover the field or foreclose supplementary provincial law is rejected. He concludes on this point that the court must “make a judgment” bearing in mind the compatibility of the provincial law not only with the literal requirements of the federal law, but also with the purpose of the federal law. (At 16‑14.) [39] The certification judge in the case at bar ruled that the effect of applying the BPA in this case would simply be to add an “additional layer of protection” for the consumer. This is what had occurred in Spraytech and in Rothmans , where the Court observed that because the criminal law power is “essentially prohibitory in character”, statutory provisions enacted under it (such as s. 30 of the Tobacco Act in Rothmans ) do not usually create “freestanding rights” that limit the ability of provinces to legislate in the area more strictly than Parliament. (At para. 19.) Thus in the case at bar, if the primary purpose of the FDA is to protect Canadians against unsafe or ineffective drugs, it is difficult to argue that that purpose would be frustrated by a provincial law providing additional protection. [40] The notion of valid federal laws co-existing with more restrictive provincial laws did not save the provincial legislation in Lafarge or Mangat . The federal legislation in those instances was regarded as “enabling” or having a “specific purpose” inconsistent with the provincial law. Lafarge of course involved a federal undertaking in connection with which the “final decisional authority” rested with the Port Authority. Arguably in this case, the “final decisional authority” for the marketing of pharmaceuticals is intended to rest with Health Canada, which commands considerable expertise in assessing drugs. On the other hand, Spraytech and Rothmans indicate that a federal law that creates a permit and licensing system will not be frustrated by a provincial or municipal law that imposes “parallel regulation of one aspect of the same activity”. Indeed the Court at para. 38 of Spraytech seemed to approve a very narrow view of paramountcy said to have been formulated in British Columbia Lottery Corp. v. Vancouver (City) (1999) 169 D.L.R. (4th) 141 (B.C.C.A.) to the effect that “A true and outright conflict can only be said to arise when one enactment compels what the other forbids.” (At 147-8). (With respect, I note that this court acknowledged at para. 14 that paramountcy was a “misnomer” in Lottery Corp . and that it was referring more properly to legislative conflict.) In the case at bar, of course, the FDA does not compel the defendants to market their medicines; it only permits them to do so under specific conditions. [41] I share the concerns raised by the defendants concerning the possibility of different (provincial) laws applying across Canada to the labelling and marketing of drugs, and of beneficial drugs being denied to some Canadians as a consequence. However, it seems to me that the case at bar is more analogous to Spraytech and Rothmans than it is to Mangat or Lafarge . Like the Tobacco Act discussed in Rothmans , the FDA is rooted in the criminal law and trade and commerce powers. Its primary purpose is to protect public health and safety by monitoring and regulating the marketing, advertisement and labelling of drugs, rather than to compel the marketing of drugs that are judged to be safe and beneficial. As such, even though Health Canada aims in a general sense to improve the health of Canadians, the FDA is primarily permissive. It does not “enable”, or create a specific (or in counsel’s word, positive) right in a manufacturer or in a consumer in the same way, for example, as Mangat created a specific right for non-lawyers to advocate before the Refugee Board. [42] The case law reviewed above indicates that the doctrine of paramountcy is to be applied only in rare cases and that otherwise valid legislation is to be upheld if at all possible. Given all of the foregoing, I am not persuaded that the application of the BPA (and specifically ss. 171-2, discussed in detail below) to the marketing and sale of cold medicines would necessarily ‘frustrate’ the purposes of the FDA . I conclude that the certification judge did not err in rejecting the defendants’ paramountcy argument that the BPA should be “rendered inoperative” (see Hogg, at § 16.06) in this context. [43] Having said this, I do not foreclose an inconsistency arising, at a future time and on different facts, between the FDA and BPA . At present, however, no “real conflict” (see Spraytech at para. 41) has in my view been demonstrated. Common Law Tort [44] I turn next to the question of whether the plaintiff’s statement of claim in the case at bar discloses a cause, or causes, of action. As mentioned above, the only common law wrong alleged by Ms. Wakelam was the tort of unlawful interference with economic relations. The certification judge struck out that allegation because there was no assertion of a trade or business relationship between the plaintiff and a third party, with which the defendants were alleged to have interfered by unlawful means. In his words, this fundamental element of the tort was “nowhere to be found” and could not be supported by any of the material facts alleged. (Para. 106.) His order striking out this tort as bound to fail was not challenged on appeal. Cause(s) of Action Under BPA? [45] In general terms, Ms. Wakelam’s claim under the BPA is that the defendants engaged in numerous deceptive acts or practices in supplying, soliciting, offering, advertising and promoting the impugned medicines, and in particular that: i.          In every consumer transaction in which the Class purchased Children’s Cough Medicine, the Defendants represented that Children’s Cough Medicine provides effective relief from cough symptoms when in fact the Children’s Cough Medicine was not effective in children under the age of six; ii.         the Defendants failed to disclose the material fact that Children’s Cough medicine is not effective for children under the age of six; and iii.         the Defendants failed to disclose the material fact that Children’s Cough Medicine can be dangerous when it is used by children under the age of six. [46] The plaintiff asserts that the alleged representations and omissions “had the capability, tendency or effect” of deceiving or misleading the plaintiff Class and therefore constituted deceptive acts or practices as defined by ss. 4-5 of the BPA : “ deceptive act or practice” means, in relation to a consumer transaction, (a) an oral, written, visual, descriptive or other representation by a supplier, or (b) any conduct by a supplier that has the capability, tendency or effect of deceiving or misleading a consumer or guarantor; ... 5 (1)  A supplier must not commit or engage in a deceptive act or practice in respect of a consumer transaction. (2) If it is alleged that a supplier committed or engaged in a deceptive act or practice, the burden of proof that the deceptive act or practice was not committed or engaged in is on the supplier. The plaintiff also invokes ss. 171 and 172 of the BPA , which provide in material part: 171  (1) Subject to subsection (2), if a person, other than a person referred to in paragraphs (a) to (e), has suffered damage or loss due to a contravention of this Act or the regulations , the person who suffered damage or loss may bring an action against a (a) supplier, who engaged in or acquiesced in the contravention that caused the damage or loss. 172  (1) The director or a person other than a supplier, whether or not the person bringing the action has a special interest or any interest under this Act or is affected by a consumer transaction that gives rise to the action , may bring an action in Supreme Court for one or both of the following: (a) a declaration that an act or practice engaged in or about to be engaged in by a supplier in respect of a consumer transaction contravenes this Act or the regulations; (b) an interim or permanent injunction restraining a supplier from contravening this Act or the regulations. (3) If the court grants relief under subsection (1), the court may order one or more of the following: (a) that the supplier restore to any person any money or other property or thing, in which the person has an interest, that may have been acquired because of a contravention of this Act or the regulations; (b) if the action is brought by the director, that the supplier pay to the director the actual costs, or a reasonable proportion of the costs, of the inspection of the supplier conducted under this Act; (c) that the supplier advertise to the public in a manner that will assure prompt and reasonable communication to consumers, and on terms or conditions that the court considers reasonable, particulars of any judgment, declaration, order or injunction granted against the supplier under this section. [Emphasis added.] [47] Ms. Wakelam seeks a declaration under s. 172(1)(a) that the alleged representations and omissions were deceptive acts or practices; injunctive relief under s. 172(1)(b) restraining the defendants from engaging in such acts or practices; an order under s. 172(3)(c) requiring them to advertise the particulars of any judgment; and an order under s. 172(3)(a) that they refund all sums paid by the Class to purchase the impugned medicines or disgorge all revenues which they “made on account of Children’s Cough Medicine purchased by the Class, together with any further relief which may be available under the [ BPA ].” [48] The pleading (a copy of which is appended to these reasons) goes on to state at para. 28 a legal conclusion that should not appear in a statement of claim: It is unnecessary for the Plaintiff or any member of the Class to prove that the Defendants’ deceptive acts or practices caused such persons to purchase the Children’s Cough Medicine to make out a claim for relief under sections [sic] 172 of the [ BPA ]. In the alternative, Ms. Wakelam asserts that she and other members of the Class “suffered damages because of the defendants’ acts or practices and seek damages pursuant to s. 171 of the [ BPA ].” This statement (also a conclusory one) does not state or refer to the material facts upon which it is based. The Certification Judge’s Reasons [49] The certification judge began his consideration of the remedies sought by the plaintiff under the BPA at para. 84 of his reasons. The defendants submitted that Ms. Wakelam’s failure to plead a “causal link” between the alleged contravention of the BPA and the remedies she claimed, was fatal to her BPA claims. The judge said there was no doubt that both ss. 171(1) and 172(3)(a) require a “causal relationship between the alleged contravention of the [ BPA ] and the damage claimed by the consumer, or the money acquired by the supplier.” (Para. 85.) [50] He referred to Singer v. Schering-Plough Canada Inc. 2010 ONSC 42, where the Court had emphasized: the difference between the question of whether actual reliance is necessary to establish a breach of the statute (here a deceptive act or practice; it is not), and the question of whether reliance on a misrepresentation is necessary to establish the required causal link between breach and loss. [Certification judge, at para. 87.] The Court in Singer had also said this concerning a claim asserted under the Competition Act : Section 52(1.1) only removes the requirement of proving reliance for the purpose of establishing the contravention of s. 52(1). The separate cause of action, created by s. 36 in Part IV of the Competition Act , contains its own requirement that the plaintiff must have suffered loss or damage " as a result " of the defendant's conduct contrary to Part VI. It is not enough to plead the conclusory statement that the plaintiff suffered damages as a result of the defendant's conduct. The plaintiff must plead a causal connection between the breach of the statute and his damages. In my view, this can only be done by pleading that the misrepresentation caused him to do something - i.e., that he relied on it to his detriment. [At para. 108; emphasis added.] [51] In light of Knight v. Imperial Tobacco Canada Limited 2005 BCSC 172, however, the certification judge ruled that this reasoning did not apply to the BPA . Knight involved a claim brought under the former Trade Practice Act , R.S.B.C. 1996, c. 457 (the “ TPA ”). The plaintiff had pleaded that ss. 18 and 22 of the TPA did not require him to prove causation or actual reliance; alternatively, that reliance should be assumed or inferred; and in the final alternative, that he and other class members had acted in reliance on the defendant’s misrepresentations to their detriment when purchasing the defendant’s products. (Para. 7.) [52] Although by the time the reasons in Knight were issued, the BPA had replaced the TPA , Satanove J. ruled that neither the substantive provisions of the new statute nor its transitional provisions operated to deprive the plaintiff of the right to continue his action under the TPA . (Para. 21.) She nevertheless considered both s. 18(4) of the TPA and s. 172(3) of the BPA , observing that: As mentioned earlier, the main difference between the [ BPA ] and the TPA is in the definition of deceptive act or practice. The [ BPA ] definition states, among other things, that a representation by a supplier that fails to state a material fact is a deceptive act or practice if the effect is misleading . Although this revised definition suggests a higher onus of proof with respect to misrepresentation by silence or omission as opposed to misrepresentation by express statement, it does not materially alter the causation requirement in s. 172(3). A restoration order under this section will still be contingent on the supplier’s [being] in breach of the statute that resulted in the supplier’s acquisition of benefits from the consumer . None of the cases cited to me specifically considered what needs to be proved in order to obtain a restoration remedy under s. 18(4) of the TPA or s. 172(3) of the [ BPA ]. However, I am satisfied on a plain reading of the statutes that the necessary proof of causation under these sections does not mandate proof of reliance on the deceptive act or practice by the individual consumer . [Paras. 32 and 33; emphasis by underlining added.] With respect to s. 171(1), on the other hand, Satanove J. continued: Section 22(1)(a) of the TPA and s. 171(1) of the [ BPA ] clearly require a consumer to prove loss or damage suffered by the consumer (as an individual) in reliance upon the alleged deceptive act or practice ( McKay v. CDI Career Development Institutes Ltd. (1999), 64 B.C.L.R. (3d) 386 (S.C.); Rushak v. Henneken (1991), 84 D.L.R. (4th) 87 (B.C.S.C.); and Robson v. Chrysler Canada Inc. (2002), 2 B.C.L.R. (4th) 1 (C.A.)). The plaintiff submits that he can satisfy the onus of proof in s. 22(1)(a) of the TPA or s. 171 of the [ BPA ] without the need for individual evidence, by tendering economic and statistical evidence showing that the entire market place was distorted by the defendant’s deceptive practice, and that all class members paid too much for a product which did not truthfully exist. In other words, the plaintiff expects to show that all purchasers of the defendant’s light cigarettes paid an amount which exceeded the product’s true market value (i.e. what purchasers would have paid had they known the truth). I am not at all convinced that this theory of causation of damages which has had some measure of success in American jurisdictions would succeed in a British Columbia action under the TPA , but I am not prepared at the certification stage to pronounce it plain and obvious that it will fail . The cause of action under s. 22(1)(a) and s. 171(1) should be allowed to proceed to trial as framed, and for the purposes of certification I will assume that the plaintiff will not be proving reliance on the alleged deceptive acts and practices of the defendant by individual members of the proposed class. [At paras. 34, 35 and 36; emphasis added.] [53] On appeal in Knight , this court stated that no issue arose as to whether the pleadings disclosed a cause of action: see 2006 BCCA 235 at para. 22. At issue instead were “whether the suit or portions of it [were] appropriate for the trial of common issues.” (Para. 20.) The Court ultimately ruled that none of the claims advanced under s. 18 of the TPA was amenable to certification as a class action but that several of the claims under the BPA had been properly certified. Importantly for purposes of this case, the question of whether the practices alleged were deceptive (which included “capable of deception”) could go ahead as a common issue without reference to the circumstances of individual class members. (Para. 26.) [54] The certification judge in the case at bar noted at para. 90 of his reasons that the Court of Appeal in Knight had found no fault with Satanove J.’s reasoning quoted above and that Ms. Wakelam’s pleading was “sufficient in terms of the causal links required between the alleged contravention of the [ BPA ] and the remedies sought.” Thus in his analysis, the pleadings did disclose a “cause of action for breach of the [ BPA ].” (Para. 91.) On Appeal [55] As I understand the defendants’ argument on appeal, it is that in addition to the damages that might be available to her individually under s.171 of the BPA , Ms. Wakelam seeks recovery under restitutionary principles (for “unjust enrichment, waiver of tort and constructive trust”) premised on breach of the BPA . As Mr. Mogerman for the plaintiff put it, she relies on the alleged statutory breach as an “element” (the wrongful act) of the three purported causes of action, but the remedy sought is the restitution or disgorgement of money received by the defendants as a result of the alleged statutory breach, rather than her own damages or losses that are expressly contemplated by the BPA. [56] Claims of this kind have been asserted in class actions in British Columbia before, especially in connection with the controversial creature called “waiver of tort”, and have passed the low threshold of the “plain and obvious” test. However, the defendants point out that in a judgment released after the certification judge’s decision in the case at bar, this court in Koubi v. Mazda , supra , unpacked the ongoing debate regarding waiver of tort from the more fundamental issue of whether a breach of the BPA can found the “wrong” for purposes of a claim in unjust enrichment or other restitutionary relief not contemplated by the statute. The Court held that the BPA is an “exhaustive code” for the regulation of consumer transactions and that so called “anti-enrichment” claims premised on breach of the BPA are not available in law. [57] The facts of Koubi were somewhat similar to the facts of this case. The plaintiff complained of a defect in the door locks in certain Mazda vehicles, one of which she had purchased before Mazda Canada announced a program to correct the problem. Her vehicle was not broken into but she became concerned about its security and contacted Mazda Canada about those concerns. Soon after, she was notified that she could have a remedial device installed at her local dealership, which she did in September 2007. Nevertheless, Ms. Koubi initiated a class action on the basis that Mazda Canada’s representations as to the quality of its components, including door locks, were “deceptive acts” by a “supplier” contrary to ss. 4 and 5 of the BPA . Madam Justice Neilson for this court described her claims: While Ms. Koubi’s claim states individual owners have suffered damages, such as loss of use of their vehicles and the cost of replacing stolen items or repairing vehicle damage, it does not seek recovery of those losses. Instead, Ms. Koubi claims “restitutionary damages” and “a declaration for the disgorgement of profits earned by the Defendants arising from waiver of tort . She alleges the appellants engaged in a period of “deceptive marketing” because they did not take timely action to notify class members of the defects after learning about the defective locks and instead continued to produce deceptive promotional information about the vehicles. Ms. Koubi claims the class is therefore entitled to restitution for any profits earned by the appellants as a result of knowingly marketing an unfit product for profit . [At para. 10; emphasis added.] [58] The lower court in Koubi certified the claims pursuant to the CPA , but this court allowed the appeal, ruling that in respect of the pleadings for restitutionary damages, disgorgement of profits, and waiver of tort, no cause of action was disclosed. The Court carried out a long and carefully reasoned analysis, focusing first on “waiver of tort”. Neilson J.A. described it as follows: Waiver of tort is a restitutionary doctrine that permits a plaintiff to recover benefits a defendant has obtained by its wrongdoing instead of damages measured by the plaintiff’s loss. In Serhan v. Johnson & Johnson (2006), 85 O.R. (3d) 665, 269 D.L.R. (4th) 279 (Div. Ct.), Justice Epstein, writing for the majority, defined the concept as follows at para. 50: I start with an explanation of the concept of waiver of tort. Its origin lies in the expression “waiver of tort and suit in assumpsit ”, the latter being the historical antecedent of many modern common law “quasi-contract” restitutionary claims. In invoking waiver of tort, the plaintiff gives up the right to sue in tort and elects to base the claim in restitution , thereby seeking to recoup the benefits the defendant has derived from his wrongful conduct. The practical purpose behind it is that in certain situations, where a wrong has been committed, it may be to the plaintiff’s advantage to seek recovery of an unjust enrichment accruing to the defendant rather than normal tort damages. The advantage to which she refers has been embraced in class actions and the doctrine has experienced a resurgence in that context, since it may be used to present damages as a common issue based on benefits obtained by the defendant through its wrongful conduct, thereby avoiding individual proof of loss by each class member. [At paras. 16-17; emphasis added.] [59] The Court reviewed the ongoing judicial and academic debate as to whether waiver of tort is an “independent” cause of action or merely “parasitic” in the sense that it provides an alternative remedy once the plaintiff has established an actionable wrong. (Paras. 27-39.) Neilson J.A. concluded that the law on this point was unsettled and that accordingly, the court below had not erred in ruling that the claim was not bound to fail (see para. 40; but cf. para. 121 of Arora v. Whirlpool Canada LP 2013 ONCA 657, released after Koubi .) [60] Neilson J.A. then turned to the distinct issue of whether statutory breaches (in Koubi , of the BPA and Sale of Goods Act ) may provide the “predicate wrongdoing” for claims “beyond the realm of tort.” In her analysis: Waiver of tort is historically rooted in “proprietary” torts as opposed to “personal” torts such as assault and battery, as the latter do not typically enrich the defendant: Maddaugh and McCamus at 24-9. That delineation retains some currency in the authorities that recognize a distinction between “anti-enrichment” and “anti-harm” torts: Reid, Strata Plan LMS 3851, Infineon . The proliferation of wrongful acts that have been certified as a potential foundation for waiver of tort, however, weaken the usefulness of these traditional guidelines. These include not only “anti-harm” torts such as negligence and nuisance, but claims beyond the realm of tort, such as breach of contract ( Anderson v. Bell Mobility , 2010 NWTSC 65; Griffin ) and breaches of the Competition Act ( Infineon , Steele ), the SGA ( Griffin ) and the [ BPA ] ( Wakelam v. Johnson & Johnson , 2011 BCSC 1765). As Perell J. observed in Haddad at para. 41, while the defendant must have done something wrong, there is great uncertainty as to the scope of the wrongdoing that will support a claim for waiver of tort. Unfortunately, little express analysis has accompanied this expansion. It appears to be generally rooted in doctrinal uncertainty and the resulting difficulty of finding it is “plain and obvious” that these novel claims will not succeed [At paras. 42-44; emphasis added.] [61] She took as her starting point the seminal case of R. v. Saskatchewan Wheat Pool [1983] 1 S.C.R. 205, where the Court rejected the English position under which a new nominate tort of statutory breach had emerged (see London Passenger Transport Board v. Upson [1949] 1 All E.R. 60 (H.L.)), and ruled that in Canada, such a breach should in general be regarded only as evidence of negligence. Thus Dickson J. (as he then was) stated for the Court: The use of breach of statute as evidence of negligence as opposed to recognition of a nominate tort of statutory breach is, as Professor Fleming has put it, more intellectually acceptable. It avoids, to a certain extent, the fictitious hunt for legislative intent to create a civil cause of action which has been so criticized in England. It also avoids the inflexible application of the legislature's criminal standard of conduct to a civil case. Glanville Williams is of the opinion, with which I am in agreement, that where there is no duty of care at common law, breach of non-industrial penal legislation should not affect civil liability unless the statute provides for it. As I have indicated above, industrial legislation historically has enjoyed special consideration. Recognition of the doctrine of absolute liability under some industrial statutes does not justify extension of such doctrine to other fields, particularly when one considers the jejune reasoning supporting the juristic invention. [At 222‑3.] After explaining various other factors in favour of this result, he concluded: For all of the above reasons I would be adverse to the recognition in Canada of a nominate tort of statutory breach. Breach of statute, where it has an effect upon civil liability, should be considered in the context of the general law of negligence. Negligence and its common law duty of care have become pervasive enough to serve the purpose invoked for the existence of the action for statutory breach. [At 225.] (See also Frame v. Smith [1987] 2 S.C.R. 99, at 113-4.) [62] This principle has been applied in countless cases since Saskatchewan Wheat Pool . As Neilson J.A. observed, for example, these included a tobacco case involving alleged violations of the Trade Practices Act of Newfoundland, Sparkes v. Imperial Tobacco Canada Ltd. 2008 NLTD 207 ( aff’d 2010 NLCA 21), and this Court’s decision in Macaraeg v. E Care Contact Centers Ltd. 2008 BCCA 182. In the latter, Chiasson J.A. for the Court suggested that an important factor in deciding whether an exception to the general rule in Saskatchewan Wheat Pool should be made is whether the statute “provides effective enforcement of the right” conferred thereby. (At para. 74; see also Ruth Sullivan, Sullivan on the Construction of Statutes (2008, 5 th ed.) at 441.) [63] Applying Saskatchewan Wheat Pool to the BPA , the Court in Koubi found that it provided an “exhaustive code regulating consumer transactions”, providing for the establishment, administration and enforcement of statutory rights and obligations and giving extensive powers and remedies to a statutory director and an investigative staff to ensure compliance with the statutory requirements. (Para. 63.) Nothing in the BPA indicated that the Legislature intended to augment the statutory remedy by permitting consumers to mount restitutionary actions. In Neilson J.A.’s analysis: I am satisfied the chambers judge erred in this cursory treatment of the [ BPA ]. A close examination of the statute’s legislative objectives and provisions reveals a clear intent to provide an exhaustive code regulating consumer transactions, directed to both protection of consumers and fairness and consistency for all parties in the consumer marketplace . The Act has over 200 provisions that comprehensively establish, administer, and enforce statutory rights and obligations directed to the regulation of consumer transactions in a multitude of circumstances. It provides extensive powers and remedies to a statutory director and investigative staff to ensure compliance with its requirements. These include investigation, collection of evidence, and enforcement through undertakings, compliance orders, prohibition orders, court-appointed receivers or property freezing orders, in addition to recourse to court proceedings as set out in ss. 171 and 172. It also enacts a panoply of statutory sanctions for suppliers and other offenders who breach the statutory rights of consumers, including administrative penalties of up to $50,000 for a corporation, and offences with penal consequences that include fines of up to $100,000 for a corporate offender. I discern nothing in the [ BPA ] to support the view that the legislature intended to augment its statutory remedies by permitting consumers to mount an action against a supplier for restitutionary relief based on the novel doctrine of waiver of tort . Such a conclusion is inconsistent with the express language of ss. 171, 172(3)(a) and 192, which clearly limit recovery for pecuniary loss to restoration of the consumer’s own damages or loss arising from a deceptive act . I conclude the chambers judge erred in failing to comprehensively address the objectives and provisions of the [ BPA ]. Had she done so, I am satisfied she would have recognized it represents a comprehensive and effective scheme for the administration and enforcement of the statutory rights and obligations it creates. In essence, it has occupied the field of consumer rights and remedies arising from deceptive acts by suppliers. Mazda’s statutory wrongdoing under ss. 4 and 5 of the Act cannot therefore provide the predicate unlawful act required for a cause of action based on waiver of tort and restitutionary damages. Ms. Koubi is restricted to the remedies provided by the Act. I am satisfied Ms. Koubi’s claim for restitutionary damages and disgorgement of profits arising from waiver of tort does not disclose a cause of action. [At paras. 63-65; emphasis added.] [64] In so ruling, she acknowledged that it is “admittedly difficult” to strike a claim as having no prospect of success in the context of recent class action decisions. The issue was, however, a matter of law alone which did not require a factual record for determination. (Para. 80.) As she explained: I find support for those conclusions in the recent decision of Justice Lax in Andersen [ v. St. Jude Medical, Inc. 2012 ONSC 3660], which encourages a summary appraisal of a claim in waiver of tort where circumstances permit. Further, her final comment at para. 594 of her decision countenances a role for the legislature in developing the doctrine, a view consistent with the result I have reached: Given the philosophical and policy considerations mentioned above, it is my view that the fundamental question for a court to answer is whether the recognition (or not) of the waiver of tort doctrine is within the capacity of a court to resolve, or whether it has such far-reaching and complex effects that it is best left to consideration by the Legislature. On the basis of my experience, the answer to this and the other questions surrounding the waiver of tort doctrine is not dependent on a trial with a full factual record and may require no evidence at all . I have considered whether this result unreasonably interferes with the objectives of class proceedings described by Chief Justice McLachlin in Western Canadian Shopping Centres Inc. v. Dutton , 2001 SCC 46 at 27-29, [2001] 2 SCR 534. I appreciate that while striking Ms. Koubi’s claim at this early stage may serve judicial economy, it may thwart access to justice for the class and may not serve the objective of deterring the appellants and other manufacturers and sellers from similar actions. Nevertheless, while one might admire the strategic and creative use of a novel doctrine to transform individual loss to a common issue in a class proceeding, I am satisfied it does not benefit the parties or the court to permit such a claim to proceed when it has no hope of success . [At paras. 81-82; emphasis added.] I fully agree with these observations (by which I am bound in any event) and would add that scarce judicial resources may be squandered when difficult questions of law are continually side-stepped in the class action context. Certainly the Hunt v. Carey test is an easy one to meet, but it is not surmounted in all cases. As recent decisions of the Supreme Court of Canada discussed below illustrate, it is likely to be beneficial to all concerned, including the justice system, if such questions are directly addressed when raised at an early stage, rather than left for a trial that may never take place, or for another court in another case. [65] The plaintiff in her factum did not attempt to distinguish Koubi insofar as it applies to the BPA , and indeed did not take issue with the conclusion that it is an exhaustive code that cannot underpin a claim for waiver of tort. Ms. Wakelam was more anxious to argue that similar reasoning does not apply to a breach of the Competition Act – a matter to which I will return presently. [66] In my view, the reasoning in Koubi applies not only to the allegation of waiver of tort advanced by Ms. Wakelam but also to her claims for unjust enrichment and constructive trust insofar as they are based on breach of the BPA . Although I might not have used the phrase “occupying the field” (which has constitutional connotations), I see no legislative intent to create restitutionary causes of action arising from or based on breaches of the BPA ; nor has the plaintiff sought to argue that the BPA provides only ‘ineffective enforcement’. Constructive Trust [67] Ms. Wakelam’s claim for constructive trust is also foreclosed by the decision of the Supreme Court of Canada in Pro-Sys Consultants Ltd. v. Microsoft Corporation 2013 SCC 57, which was released in October 2013. In that case, the plaintiff advanced a claim in unjust enrichment and as a remedy therefor, submitted that an amount equal to the alleged “overcharge” from sales of Microsoft operating systems and applications software in British Columbia should be held by the defendant in trust for members of the plaintiff class. (See para. 90.) Rothstein J. for the majority explained why such a claim could not succeed: Kerr v. Baranow , 2011 SCC 10, [2011] 1 S.C.R. 269, is the relevant controlling authority on constructive trusts. In Kerr , Justice Cromwell explains that in order to find that a constructive trust is made out, the plaintiff must be able to point to a link or causal connection between his or her contribution and the acquisition of specific property : . . . the constructive trust is a broad and flexible equitable tool used to determine beneficial entitlement to property ( Pettkus , at pp. 843-44 and 847-48). Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour ( Pettkus , at pp. 852-53; Sorochan , at p. 50). [para. 50] In the present case, there is no referential property; Pro-Sys makes a purely monetary claim . Constructive trusts are designed to “determine beneficial entitlement to property” when “a monetary award is inappropriate or insufficient” ( Kerr , at para. 50). As Pro-Sys’s claim neither explains why a monetary award is inappropriate or insufficient nor shows a link to specific property, the claim does not satisfy the conditions necessary to ground a constructive trust. On the pleadings, it is plain and obvious that Pro-Sys’s claim that an amount equal to the overcharge from the sale of Microsoft operating systems and Microsoft applications software in British Columbia should be held by Microsoft in trust for the class members cannot succeed . The pleadings based on constructive trust must be struck. [At paras. 91-92; emphasis added.] (See also Sun-Rype Products Ltd. v. Archer Daniels Midland Company 2013 SCC 58 at paras. 39-41 and Sun Indalex Finance, LLC v. United Steelworkers 2013 SCC 6 at paras. 228-9, per Cromwell J.) [68] As I understand it, Ms. Wakelam concedes that the remedy of constructive trust is not available to her in light of Pro-Sys v. Microsoft . For similar reasons, I also find that a restorative order under s. 172(3)(a) of the BPA is not available to her. This provision allows the court to order the restoration of property or money only to a person who has an interest therein . The pleadings do not suggest that any such interest could arise in this case. Thus para. 27 of the statement of claim is bound to fail. [69] In the result, I conclude that paras. 34-38 inclusive and subparas. (e) and (f) of the prayer for relief in the statement of claim are bound to fail insofar as they are based on an alleged breach or breaches of the BPA . In terms of monetary relief, this leaves the claim for the plaintiff’s own damages in para. 29 of the pleading. As we have seen, however, such a claim is dependent on proof of a causal connection between a contravention of the BPA by the defendants, and loss or damage suffered by the plaintiff. No such causal connection has been pleaded, with the result that it is also bound to fail. Injunctive and Declaratory Relief [70] As for the claims for a declaratory order and injunction sought under s. 172(1), however, I am not persuaded they are bound to fail. Certainly an injunction is unlikely to be granted when, as in this instance, the conduct complained of has already ceased and is unlikely to be repeated: see Snell’s Equity (29 th ed., 1990) at 647-48, 653-54, citing Proctor v. Bayley (1889) 42 Civ. D. 390; Wilcox v. Steel [1904] 1 Ch. 212; and Barber v. Penley [1893] 2 Ch. 447. However, the matter is discretionary and the continuing nature of the conduct complained of is only one of many ‘equities’ to be considered. In this instance, the equities would include the “public” nature of the remedies provided by s. 172: see Seidel v. Telus Communications Inc. 2011 SCC 15, at para. 32, where the Court contrasted ss. 171 and 172. [71] With respect to declaratory relief under s. 172(1)(a), the defendants submitted that the phrase “a practice engaged in or about to be engaged in” should not be construed to include a practice that occurred in the past but has been discontinued. Mr. Neave, counsel for the defendants, cited no authority in support of this view, which rests on a very technical interpretation of “engaged”. While again it seems unlikely a court would grant a declaratory order regarding conduct no longer being “engaged in”, I cannot say at this point that no such order would be available in law. The authorities suggest that the key question is whether a “useful purpose” would be served by granting the order: see Lord Woolf and J. Woolf, The Declaratory Judgment (3 rd ed., 2002) at § 4.092; A.H. Hudson, “Declaratory Judgments in Theoretical Cases: The Reality of the Dispute”, (1976‑7) 3 Dal. L.J. 706; Greater Vancouver Regional District v. British Columbia (Attorney General) 2011 BCCA 345; at paras. 50-52. In theory at least, a useful public purpose might be found to exist in this case. [72] In addition to seeking injunctive and declaratory relief under s. 172(1), Ms. Wakelam sought an order under s. 172(3)(c) that the defendants advertise to the public the particulars of any order granted against them under s. 172. Such an order may be made if the court grants relief under s. 172(1). Again, it cannot be said this aspect of the relief sought is not available in law. Cause(s) of Action Under Competition Act? [73] As an alternative “element” (again, the wrong) underlying her claims under unjust enrichment, waiver of tort and constructive trust, Ms. Wakelam also asserts breaches of the Competition Act . The relevant sections are ss. 36 and 52, which provide in part: 36. (1) Any person who has suffered loss or damage as a result of (a) conduct that is contrary to any provision of Part VI , or (b) the failure of any person to comply with an order of the Tribunal or another court under this Act, may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct or failed to comply with the order an amount equal to the loss or damage proved to have been suffered by him , together with any additional amount that the court may allow not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section. . . . (4) No action may be brought under subsection (1), (a) in the case of an action based on conduct that is contrary to any provision of Part VI, after two years from (i) a day on which the conduct was engaged in, or (ii) the day on which any criminal proceedings relating thereto were finally disposed of, whichever is the later; . . . 52. (1) No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect. (1.1) For greater certainty, in establishing that subsection (1) was contravened, it is not necessary to prove that (a) any person was deceived or misled ; . . . (1.2) For greater certainty, a reference to the making of a representation, in this section or in section 52.1, 74.01 or 74.02, includes permitting a representation to be made. (2) For the purposes of this section, a representation that is (a) expressed on an article offered or displayed for sale or its wrapper or container, (b) expressed on anything attached to, inserted in or accompanying an article offered or displayed for sale, its wrapper or container, or anything on which the article is mounted for display or sale, (c) expressed on an in-store or other point-of-purchase display, (d) made in the course of in-store, door-to-door or telephone selling to a person as ultimate user, or (e) contained in or on anything that is sold, sent, delivered, transmitted or made available in any other manner to a member of the public, is deemed to be made to the public by and only by the person who causes the representation to be so expressed, made or contained, subject to subsection (2.1). . . . (5) Any person who contravenes subsection (1) is guilty of an offence and liable (a) on conviction on indictment, to a fine in the discretion of the court or to imprisonment for a term not exceeding 14 years, or to both; or (b) on summary conviction, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both. [Emphasis added.] (Section 52 is in Part VI of the Act.) Section 62, also in Part VI, clarifies that nothing in that Part is to be construed as depriving any person of any civil right of action. The Certification Judge’s Reasons [74] After noting the foregoing sections of the Competition Act at paras. 93 and 94 of his reasons, the certification judge alluded to the following passage from Singer : As I have noted, s. 52(1) does not create a cause of action. The cause of action, or right of action, is created by s. 36 . The plain language of that section makes it clear, as the defendants assert, that the plaintiff must show both a breach of s. 52 and loss or damage suffered by him or her as a result of that breach . That can only be done if there is a causal connection between the breach (the materially false or misleading representation to the public) and the damages suffered by the plaintiff. A consumer of sunscreen products cannot recover damages, in the abstract, simply by proving that the manufacturer made a false and misleading representation to the public. The failure of the plaintiff to plead a causal link is fatal to this claim. Section 52(1.1) only removes the requirement of proving reliance for the purpose of establishing the contravention of s. 52(1). The separate cause of action, created by s. 36 in Part IV of the Competition Act , contains its own requirement that the plaintiff must have suffered loss or damage “ as a result ” of the defendant's conduct contrary to Part VI. It is not enough to plead the conclusory statement that the plaintiff suffered damages as a result of the defendant's conduct . The plaintiff must plead a causal connection between the breach of the statute and his damages. In my view, this can only be done by pleading that the misrepresentation caused him to do something – i.e., that he relied on it to his detriment. [At paras. 107-108; emphasis added.] (See also Magill v. Expedia Canada Corp. 2010 ONSC 5247 at paras. 99-107.) [75] However, the certification judge here noted, no case had been cited to him in which these comments had been adopted in British Columbia. In Holmes v. United Furniture Warehouse LP 2009 BCSC 1805, the Court had stated simply in connection with the Competition Act that the pleadings should include an allegation that the plaintiffs had suffered loss or damage as a result of the particular conduct in question, in order to bring the claim within s. 36. The Court in the case at bar continued: I am unable to see any logical distinction between the defendants' argument of insufficient pleading of causation in relation to section 36 of the Competition Act , and that same argument in relation to the [ BPA ]. Both, in my view, are met by the reasoning of Satanove J. in paragraphs 32 through 36 of Knight , as quoted above, upheld in the Court of Appeal; see also Steele v. Toyota Canada Inc ., 2011 BCCA 98, and Infineon . In the circumstances, given the whole of the pleadings, I am not prepared to hold that the plaintiff's pleading in relation to section 36 of the Competition Act is fatal. [At para. 98.] [76] The certification judge also rejected the defendants’ submission that the “defence of regulated conduct” would apply such that the claim under the Competition Act was bound to fail. He noted again that the scheme created by the FDA permitted but did not compel the defendants to market the impugned medicines as safe and effective for children between two and six. If the plaintiff could demonstrate that the defendants’ marketing did give rise to the misrepresentations and nondisclosures alleged by the plaintiff, the judge said he was “unable to conclude, as a matter of interpretation, that the scheme under the [ FDA ] was intended to exempt the defendants from the provisions of the Competition Act .” (Para. 101.) [77] Accordingly, the pleadings were found to have disclosed a cause of action under the Competition Act . On Appeal [78] The defendants’ first argument on appeal is that Ms. Wakelam’s claims for restitutionary remedies under the Competition Act are “juridically indistinguishable” from those advanced under the BPA in Koubi . [79] I turn at the outset, however, to Pro-Sys v. Microsoft, in which the plaintiff not only advanced a claim under s. 36 of the Competition Act, but also alleged the torts of conspiracy and unlawful interference with economic interests (see para. 72) and sought restitution for unjust enrichment, constructive trust, and waiver of tort (see para. 64). The Supreme Court’s judgment was concerned mainly with the question of whether a purchaser who has not purchased directly from the defendant, but from a third party who has “passed on” the losses claimed, may properly sue the “overcharger” at the top of a distribution chain. Having answered that question in the affirmative, the Court went on to rule that it was not plain and obvious the claim in unjust enrichment could not be made out in an “indirect” relationship, and that the defendants’ “juristic reason justification” should not be resolved prior to trial. (Para. 88.) Accordingly, the claim in unjust enrichment was allowed to proceed. [80] I have already described the Court’s reasoning in Pro-Sys with respect to the unavailability of a constructive trust remedy. (See para. 67 above.) The Court also noted the open question of whether waiver of tort is “its own cause of action intended to disgorge a defendant’s unjust enrichment gained through wrongdoing, as opposed to merely a remedy for unjust enrichment.” (Para. 95.) It ruled that this question should not be decided at this stage, and that it was not plain and obvious a cause of action in waiver of tort would not succeed. (Para. 97.) [81] It will be recalled that in Koubi this court made a similar ruling regarding waiver of tort. Neilson J.A. followed two earlier decisions of this court, Pro‑Sys Consultants Ltd. v. Infineon Technologies AG 2009 BCCA 503 and Steele v. Toyota Canada Inc. 2011 BCCA 98. (See her discussion at paras. 37-40 of Koubi .) As we have also seen, however, the Court in Koubi went on to find on a review of the BPA that it had been intended as an “exhaustive code regulating consumer transactions” and that there was nothing to suggest the Legislature intended to provide consumers with causes of action designed to provide restitutionary relief “based on the novel doctrine of waiver of tort.” (Para. 64.) [82] The defendants at the case at bar contend that just as the BPA is a “complete code” for consumer transactions, the Competition Act deals comprehensively with anti-competitive and unfair trade practices. It specifies matters that may be referred to the Competition Tribunal, and provides the Commissioner of Competition with extensive powers of enforcement under the Act. These include carrying out inquiries; collecting evidence; obtaining injunctions, compliance orders, prohibition orders and publication orders; entering into consent agreements; freezing property; and imposing penalties for obstruction and non-compliance with orders of the Tribunal. A dense set of regulations has been adopted under the Act supplementing these more general provisions. [83] The question of whether a breach of the Competition Act – here, s. 36 and by reference, s. 52 – can be used to establish the element of the “wrong” for a restitutionary claim has attracted much judicial attention in recent years. Counsel referred us to Canada Cement LaFarge Ltd. v. B.C. Lightweight Aggregate Ltd. [1983] 1 S.C.R. 452, which was decided before the Combines Investigation Act became the Competition Act . At the time, the former did not provide for any private cause of action resembling what is now provided by s. 36. Given this fact, and given that the respondent was suing for the common law tort of conspiracy to injure by means of price-fixing on the part of the appellants, the decision is not of direct assistance to us. One of the questions raised, however, was whether the element of “unlawful means” for the tort of conspiracy could be provided by a breach of the conspiracy section of the Combines Investigation Act . The Court declined to comment, observing that: On the date the writ of summons was issued the Combines Investigation Act did not purport to create a right to recover damages in civil proceedings. Neither did the statute contain a stipulation foreclosing any such recovery by participants in an illegal scheme. The act was entirely neutral. Section 31.1 came into force seven months after the issuance of the writ and purports to authorize the bringing of a civil action to recover losses suffered as a result of certain violations of the Act. This provision has come before the courts in some provinces, and varying views have been expressed as to its constitutionality. This section did not come before us for determination in these proceedings and it is not necessary to make any further reference thereto . [At 477-8; emphasis added.] (Section 31.1 of the Combines Investigation Act , introduced in 1975, effectively became what is now s. 36 by virtue of S.C. 1985, c. C-34. The Combines Investigation Act was renamed as the Competition Act a year later by S.C. 1986, c. 26.) [84] The constitutionality of the Combines Investigation Act was addressed in General Motors of Canada Ltd. v. City National Leasing [1989] 1 S.C.R. 641. In the court of first instance, the defendant had succeeded in arguing that because s. 31.1 purported to create a civil cause of action for certain infractions of the Act, Parliament had gone beyond its legislative powers. The Ontario Court of Appeal had disagreed. By the time the case reached the Supreme Court of Canada, only two questions remained for the Court: whether the Combines Investigation Act , either in whole in part, was intra vires Parliament under the trade and commerce power, and whether s. 31.1 was within the legislative competence of Parliament. (At 648.) The Court noted at the outset of its analysis that in “numerous cases”, federal combines legislation had been upheld as valid under the federal criminal law power. (At 654.) No criticism of these cases was suggested. [85] In the course of his detailed analysis of the trade and commerce power and the proper approach to determining the constitutionality of specific sections of a statute, Chief Justice Dickson said the first step was to determine whether the impugned provision could be seen as encroaching on provincial powers and if so to what extent. It was obvious, he said, that s. 31.1 did appear to encroach on provincial power “to some extent”. He continued: In assessing the seriousness of this encroachment, however, three facts must be taken into consideration. The first is that s. 31.1 is only a remedial provision; its purpose is to help enforce the substantive aspects of the Act, but it is not in itself a substantive part of the Act. By their nature, remedial provisions are typically less intrusive vis- ā -vis provincial powers. The second important fact is the limited scope of the action. Section 31.1 does not create a general cause of action; its application is carefully limited by the provisions of the Act. The third relevant fact is that it is well-established that the federal government is not constitutionally precluded from creating rights of civil action where such measures may be shown to be warranted. This Court has sustained federally-created civil actions in variety of contexts…. [At 673; emphasis added.] [86] The second step in the Court’s analysis was to determine whether the Combines Investigation Act contained a regulatory scheme. Again, this question was not difficult to answer: The presence of a well-orchestrated scheme of economic regulation is immediately apparent on examination of the Combines Investigation Act . The existence of a regulatory scheme is in evidence throughout the entire Act. [At 674; emphasis added.] The Chief Justice reviewed the various parts of the statute, concluding on this point that: I have no difficulty in concluding that the Act as a whole embodies a complex scheme of economic regulation. The purpose of the Act is to eliminate activities that reduce competition in the market-place. The entire Act is geared to achieving this objective. The Act identifies and defines anti-competitive conduct. It establishes an investigatory mechanism for revealing prohibited activities and provides an extensive range of criminal and administrative redress against companies engaging in behaviour that tends to reduce competition. In my view, these three components, elucidation of prohibitive conduct, creation of an investigatory procedure, and the establishment of a remedial mechanism, constitute a well-integrated scheme of regulation designed to discourage forms of commercial behaviour viewed as detrimental to Canada and the Canadian economy. [At 676; emphasis added.] The Court found that the statute was “an example of the genre of legislation that could not practically or constitutionally be enacted by a provincial government” and that if competition in the “single huge marketplace” of Canada was to be regulated at all, it must be regulated federally. Thus the Act as a whole was intra vires Parliament as legislation in relation to general trade and commerce. (At 682‑3, citing Canadian National Transportation , supra .) [87] The Court next turned to the question of the validity of s. 31.1 in particular. As noted above, this provision had been added to the Act as part of a package of amendments in 1975 (see S.C. 1975, c. 76, s. 12). The enactment followed recommendations made by the Economic Council of Canada in an interim report on competition policy released in July 1969. Chief Justice Dickson noted: The Economic Council suggested in addition to the significant deterrent role played by the threat of criminal sanctions, Parliament should consider including a private right of civil action in the Act’s enforcement mechanism. The basic reasons given by the Economic Council for seeking to place some of the Federal Government’s economic policy on a civil law basis were “to improve its relevance to economic goals, its effectiveness, and its acceptability to the general public”…. Resting the constitutional foundation on the criminal law power contributed, in the opinion of the Council, to the rigidity and “inflexibility of the law and its administration. Criminal offences must be proved beyond a reasonable doubt. Charges must be expressed and proven in the categorical manner specified in the statute”. [At 687.] [88] The Court saw no constitutional impediment to amending remedies in the Combines Investigation Act to “conform with changing economic realities” and concluded that s. 31.1 was an “integral part of the scheme regulating anti- competitive conduct.” However, the Chief Justice added: The relationship between the section and the Act easily meets the test for the section to be upheld. This finding should not be interpreted as authority for upholding all provisions creating private civil action that are attached to a valid trade and commerce regulatory scheme or any other particular type of scheme. Section 31.1 is carefully constructed and restricted by the terms of the Combines Investigation Act . [At 689; emphasis added.] He also described s. 31.1 as one of the “arsenal of remedies” created by the statute to discourage anti-competitive practices. Like other remedies – orders of the Restrictive Practices Trade Commission under Part IV.1, interim injunctions under Part IV and criminal sanctions under Part V – it was said to be: intimately linked to the Combines Investigation Act . It takes on meaning only by reference to other provisions of the Act and has no independent content. As a result, the section is carefully bounded by the parameters of the Combines Investigation Act . It provides a private remedy only for particular violations of the Act and does not create a private right of action at large. [At 684; emphasis added.] [89] Parliament has not seen fit to amend s. 36 since its predecessor was enacted, nor to provide additional private law remedies for contraventions of Part VI of the Act. We were not referred to anything that suggests the statutory remedies provided by that Part are “inadequate” (to use the term employed in Macaraeg, supra .) The statutory right of action remains “hedged about by restrictions” (to use the phrase of Glanville Williams in “The Effects of Penal Legislation on the Law of Tort” (1960) 23 M.L.R. 233, at 244), including the two-year limitation imposed by s. 36(4). The Court in General Motors was careful to emphasize that this right of action was part of the “well-integrated scheme” of the whole Act, and that it did not create a right of action “at large”. Had it done so, it appears the constitutional verdict in General Motors might have been different. [90] Section 36 clearly limits recovery for pecuniary loss to “the loss or damage proved to have been suffered” by the plaintiff, together with possible investigatory costs incurred by the plaintiff. I see nothing in the Competition Act to indicate that Parliament intended that the statutory right of action should be augmented by a general right in consumers to sue in tort or to seek restitutionary remedies on the basis of breaches of Part VI. It follows in my view that the certification judge did err in finding that the pleading disclosed a cause of action under the Competition Act for which a court might grant restitutionary relief; and that accordingly, paras. 34-38 of Ms. Wakelam’s statement of claim do not disclose a cause of action. [91] In terms of the Competition Act , this leaves Ms. Wakelam’s claim for “damages” suffered “as a result of” the defendants’ breach of Part VI (founded on s. 36) as well as for her costs of investigation under s. 36(1). In this regard, I return to and respectfully agree with the Court’s statement in Singer , which I reproduce again for convenience: [Section] 52(1) does not create a cause of action. The cause of action, or right of action, is created by s. 36. The plain language of that section makes it clear, as the defendants assert, that the plaintiff must show both a breach of s. 52 and loss or damage suffered by him or her as a result of that breach. That can only be done if there is a causal connection between the breach (the materially false or misleading representation to the public) and the damages suffered by the plaintiff. A consumer of sunscreen products cannot recover damages, in the abstract, simply by proving that the manufacturer made a false and misleading representation to the public. The failure of the plaintiff to plead a causal link is fatal to this claim. Section 52(1.1) only removes the requirement of proving reliance for the purpose of establishing the contravention of s. 52(1). The separate cause of action, created by s. 36 in Part IV of the Competition Act , contains its own requirement that the plaintiff must have suffered loss or damage " as a result " of the defendant's conduct contrary to Part VI. It is not enough to plead the conclusory statement that the plaintiff suffered damages as a result of the defendant's conduct. The plaintiff must plead a causal connection between the breach of the statute and his damages. In my view, this can only be done by pleading that the misrepresentation caused him to do something - i.e., that he relied on it to his detriment. [At paras. 107-8; emphasis added.] This reasoning seems consistent with a comment made by the Court at para. 65 of Pro-Sys v. Microsoft that s. 36 of the Competition Act allows anyone who has suffered loss or damage “as a result of conduct engaged in by any person contrary to Part VI” to “sue for and recover that loss or damage.” (My emphasis.) [92] Since Ms. Wakelam has failed to plead any material facts in support of the required causal connection, we may at this late stage infer that she is unable to do so. Accordingly, her claims under the Competition Act must be struck in their entirety. “Aggregate” Provisions of the CPA [93] In Infineon , supra , the plaintiff had sought damages under s. 36(1) of the Competition Act on an aggregate basis, and restitutionary awards in unjust enrichment, constructive trust and waiver of tort. (Para. 2.) Masuhara J. in the court below had ruled that the aggregation provisions in the Class Proceedings Act (i.e., ss. 29 and 30) could be invoked only after liability had been established, citing Chadha v. Bayer Inc. (2003) 63 O.R. (3d) 22 (C.A.), ( lve. to app. dism’d [2003] S.C.C.A. No. 106). It was this question that occupied this court on appeal. It ultimately followed Knight to hold that an aggregate monetary award under the CPA could be certified as a common issue “in a claim for disgorgement of the benefits of the defendant’s wrongful conduct without an antecedent liability finding .” (Para. 39, my emphasis.) [94] This ruling has now been overruled by the Supreme Court in Pro‑Sys v. Microsoft , which expressly disagreed with Infineon and Steele v. Toyota on the point. In the analysis of Rothstein J. for the Court: I agree with Feldman J.A.'s holding in Chadha that aggregate damages provisions are "applicable only once liability has been established, and provid[e] a method to assess the quantum of damages on a global basis, but not the fact of damage" (para. 49). I also agree with Masuhara J. of the BCSC in Infineon that “liability requires that a pass-through reached the Class Members”, and that “that question requires an answer before the aggregation provisions, which are only a tool to assist in the distribution of damages , can be invoked” (2008 BCSC 575 (CanLII), at para. 176). Furthermore, I agree with the Ontario Court of Appeal in Quizno's , that “[t]he majority clearly recognized that s. 24 [of the Ontario Class Proceedings Act, 1992 , S.O. 1992, c. 6] is procedural and cannot be used in proving liability ” (para. 55). This reasoning reflects the intention of the Attorney General of British Columbia. When he introduced the CPA in the British Columbia legislature, he stated that the goal of the legislation was to allow individuals who have similar claims to come together and pursue those individual claims collectively : “In simple terms, all we are doing here is finding a way to enable the access that individuals have to the court to be an access that individuals combining together can have to the court” (Hon. C. Gabelmann, Official Report of Debates of the Legislative Assembly (Hansard) , vol. 20, No. 20, 4th Sess., 35th Parl., June 6, 1995, 15078). The CPA was not intended to allow a group to prove a claim that no individual could. Rather, an important objective of the CPA is to allow individuals who have provable individual claims to band together to make it more feasible to pursue their claims . The question of whether damages assessed in the aggregate are an appropriate remedy can be certified as a common issue. However, this common issue is only determined at the common issues trial after a finding of liability has been made…. [At paras. 132-4; emphasis added.] [95] I conclude that s. 29 of the CPA does not avail the plaintiff to provide restitutionary claims not otherwise open to her under the BPA or Competition Act . “Identifiable Class of Two or More Persons”? Certification Judge’s Reasons [96] It will be recalled that s. 4(1) of the CPA states that the court must certify a proceeding as a class proceeding on an application under s. 2 if all the requirements set forth therein are met, including that “there is an identifiable class of 2 or more persons”. Ms. Wakelam, the sole named plaintiff in this proceeding, argued below that it was sufficient for the evidence to establish that a class of people exists “who would have the same reason to complain as the plaintiff, even if no second individual can be identified.” [97] The defendants in response relied on Chartrand v. General Motors Corp. 2008 BCSC 1781. There Martinson J. had stated in part: It is not enough to point to a group of people in British Columbia who are owners of specific vehicles with automatic transmissions. There must be some evidence that two or more people have a complaint that GM manufactured a dangerously defective product that caused them a loss and/or that GM was unjustly enriched at their expense. There is no evidence of such complaints. NHTSA was satisfied with the recall of only the manuals. Transport Canada has no concerns and has received no complaints. The three complaints to Transport Canada relating to parking brakes on GM vehicles had nothing to do with vehicles in the proposed class. The three brake lining wear complaints from British Columbia in the period of September 6, 2001 to February 12, 2007 have not been tied to the spring clip problem and could have been caused in other ways. There is no evidence of complaints or concerns by consumer groups. There is, therefore, not an identifiable class as there is not a group of two or more people with complaints. This requirement has been viewed as an air of reality test, testing the reality of the linkage between the plaintiff's claim and the proposed class: Samos Investments Inc. v. Pattison , 2001 BCSC 1790, 22 B.C.L.R. (3d) 46, 2003 BCCA 87, 10 B.C.L.R. (4th) 234; Nelson v. Hoops L.P., a Limited Partnership , 2003 BCSC 277, 2004 BCCA 174. [At paras. 53, 54 and 61; emphasis added.] [98] The certification judge discussed this matter beginning at para. 121 of his reasons. He noted that although the proposed class had been adequately defined in accordance with the relevant case authority, there was no evidence of the existence of more than one individual member of the class who shares Ms. Wakelam’s desire to see the action “determined through the mechanism of a class action or at all.” It was therefore necessary, he said, to consider “the extent to which such evidence is required in the circumstances of this case.” (Para. 124.) Even though the evidentiary burden on the plaintiff in this regard was light, he found that he was unable to draw sufficient inferences from the evidence before him to satisfy this requirement. He continued: Logically, on the premise of the action, it appeared that anyone who purchased the medicines for the stated purpose would be in the same position as the plaintiff. What did not necessarily follow is that any such persons would have any interest in pursuing the matter. This is not, after all, a case involving physical or psychological harm, and the individual losses, on the premise of the claim, are not significant. Accordingly, in the absence of evidence of other interested parties, I was unable to find that the requirement of section 4(1)(b) of the Class Proceedings Act has been met. [At para. 130.] [99] Counsel for the plaintiff advised the Court, however, that he had an unfiled affidavit that “identifies other interested parties”. The Court granted Ms. Wakelam leave to file the affidavit and gave the defendants an opportunity to comment on its adequacy. Counsel filed an affidavit of Mr. Green, a member of the law firm representing the plaintiff. The material portion of his affidavit stated that he had “been informed by the following people that each of them are interested in and support the class proceeding”. After setting forth the names of these individuals, Mr. Green continued: I am advised by each of the individuals … and I verily believe this to be true, that each purchased Children’s Cough Medicine as defined in the Amended statement of claim, for children under the age of 6, during the Class Period. For individuals who could not recall the specific brand(s) of Children’s Cough Medicine they purchased this is indicated clearly [above]. [100] The trial judge concluded at para. 136 of his reasons that this evidence was “sufficient to correct the deficiency” that had concerned him, and that the plaintiff had met the requirement of s. 4(1)(b) of the CPA . On Appeal [101] On appeal, the defendants submit that the evidence relied on by the certification judge was insufficient to satisfy the burden on the plaintiff under s. 4(1)(b) of the CPA . There seems to be no direct appellate authority on this point, but the defendants cite various decisions of the Supreme Court of British Columbia, beginning with Chartrand , supra . As well, they note Lee v. Georgia Properties Partnership 2012 BCSC 1484, where Savage J. ruled that 4(1)(b) had not been complied with in the absence of evidence that more than one person had a “complaint that they intend to pursue, that they intend to seek an opinion of the court, or that they would find resolution of the common issue of utility in their considerations.” (At para. 42.) [102] Two decisions of the Supreme Court of Canada have addressed the question of compliance with s. 4(1)(b) (or other provincial counterparts thereof) with reference to whether the class of plaintiffs has been defined adequately . In Hollick v. Toronto (City) 2001 SCC 68, the Court reasoned: The appellant has defined the class by reference to objective criteria; a person is a member of the class if he or she owned or occupied property inside a specified area within a specified period of time. Whether a given person is a member of the class can be determined without reference to the merits of the action. While the appellant has not named every member of the class, it is clear that the class is bounded (that is, not unlimited). There is, therefore, an identifiable class within the meaning of s. 5(1)(b): see J. H. Friedenthal, M. K. Kane and A. R. Miller, Civil Procedure (2nd ed. 1993), at pp. 726-27; Bywater , supra , at pp. 175-76; Western Canadian Shopping Centres , supra , at para. 38. [At para. 17.] [103] More recently in Sun-Rype , the majority of the Court noted that “ Hollick provides that [the] certification requirement will be satisfied by demonstrating ‘some basis in fact’ to support it … .” (Para. 52.) In Sun-Rype , the criterion could not be met because: indirect purchasers, even knowing the names of the products affected, will not be able to know whether the particular item that they purchased did in fact contain HFCS. The appellants have not offered evidence that could help to overcome the identification problem created by the fact that HFCS and liquid sugar were used interchangeably. Even Ms. Bredin testified that she is unable to state whether the products she purchased contained HFCS. This fact will remain unchanged because, as noted above, liquid sugar and HFCS were used interchangeably and a generic label indicating only "sugar/glucose-fructose" could be used for either type of sweetener. Ms. Bredin presented no evidence to show that there is some basis in fact that she would be able to answer this question. On the evidence presented on the application for certification, it appears impossible to determine class membership. [At paras. 65-6.] (See also Western Canadian Shopping Centres Inc. v. Dutton 2001 SCC 46 at para. 38.) [104] In Singer , the proposed classes of plaintiffs were likely to exceed three million people in each case and there were difficulties with the definition of the classes. In addition, Strathy J. (as he then was) observed: The second concern is more fundamental. The defendants submit that there is no evidence of "two or more persons" who assert a claim, as required by s. 5(1)(b) of the C.P.A. They say that this criterion has not been satisfied because there is no evidence that anyone other than Mr. Singer asserts a claim in relation to the wrongs alleged in this proceeding. While the plaintiff's counsel has provided some information that other individuals have recently contacted his firm, or responded to a website, there is no evidence about these individuals, no evidence that they ever purchased the defendants' products or that they actually wish to assert a claim against the defendants . [At para. 128; emphasis added.] The Court referred to Lau v. Bayview Landmark Inc. (1999) 40 C.P.C. (4 th ) 301 (Ont. S.C.J.); Bellaire v. Independent Order of Foresters (2004) 5 C.P.C. (6 th ) 68 (Ont. S.C.J.); Chartrand , supra ; Ducharme v. Solarium de Paris Inc. (2007) 48 C.P.C. (6 th ) 194 (Ont. S.C.J.), aff’d [2008] O.J. No. 1558 (Div. Ct.); Poulin v. Ford Motor Co. of Canada (2008) 65 C.P.C. (6 th ) 247 (Ont. Div’l Ct.); and Lambert v. Guidant Corp. (2009) 72 C.P.C. (6 th ) 120 (Ont. S.C.J.). In the last-mentioned case: Cullity J. observed that not every case will require evidence that there is a group of putative class members waiting in the wings. The nature of the claims and the circumstances of the case may permit the court to infer the existence of a class looking for a solution. Cullity J. suggested, however, that the analysis of the issue is best considered together with the other factors that bear on the exercise of the court's discretion in the "preferable procedure" analysis. In that case Cullity J. was prepared to give plaintiff's counsel leave, if required, to file evidence to establish that other putative class members had expressed interest in the proceeding. [At para. 135 of Singer .] In Singer itself, the Court said there was no evidence of a class of two or more persons “seeking access to justice”, although if the other requirements of s. 5(1) of the Ontario CPA had been met, it might have been appropriate to follow Cullity J.’s approach in Lambert . Strathy J. was of the view, however, that they had not been met in Singer . (Para. 136.) [105] In the case at bar, I am satisfied that the plaintiff did by means of Mr. Green’s affidavit demonstrate the existence of an identifiable class of two or more persons in accordance with the authorities and that accordingly, the certification judge did not err on this point. A Further Comment [106] As mentioned earlier, the grounds of appeal advanced by the defendants in this case did not extend to the questions of commonality and preferability that are often the subject of appeals from certification orders. Accordingly, I need not recount the certification judge’s reasons for his findings that these criteria were met in this instance. I do note, however, that in his discussion of preferability, the judge touched on the matter of behavioural modification, which of course is one of the principal advantages of a class action: see Markson v. MBNA Canada Bank (2007) 85 O.R. (3d) 321 (C.A.) at para. 69. He said this at para. 159: Third, although there was a statutory and regulatory regime in place concerning the labelling, marketing and advertising of Children's Cough Medicine, I am unable to find that it includes a meaningful built-in behavioural modification process given the premise of this case. That premise is not that the defendants failed to comply with the statutory and regulatory regime. If that were the case, then the regime's sanctions would likely be sufficient. Rather, the premise here is that notwithstanding their compliance with the statutory and regulatory regime, the defendants misrepresented the safety and efficacy of their products. If that proves to be the case, then only through a class proceeding can the defendants be obliged to answer fully for their conduct. As the Supreme Court of Canada pointed out in Dutton : [29]      ...Without class actions, those who cause widespread but individually minimal harm might not take into account the full costs of their conduct, because for any one plaintiff the expense of bringing suit would far exceed the likely recovery. Cost-sharing decreases the expense of pursuing legal recourse and accordingly deters potential defendants who might otherwise assume that minor wrongs would not result in litigation.... [Emphasis added.] [107] It is not clear whether the certification judge intended to suggest that the plaintiff’s “premise” is that the defendants knowingly or negligently misrepresented the safety and efficacy of their cold and cough medicines. Certainly Mr. Mogerman suggested this in his oral submissions, and s. 52 of the Competition Act requires that the misrepresentations have been made knowingly or recklessly. Unless such allegations were intended, it is difficult to understand how the prosecution of this action as framed by the plaintiff could have brought about behavioural modification. If negligent or intentional wrongdoing was being asserted, however, it seems to me that in fairness to the defendants, Ms. Wakelam should have made that assertion and stated the material facts giving rise to it in her pleading. Disposition [108] For the reasons given above, I would strike out paras. 34-38 of the statement of claim with respect to breaches of both the BPA and the Competition Act ; paras. 23, 27, 28 (the latter being a conclusory statement) and para. 29; paras. 30 and 31; and subparas. (e), (f), (g), (h), (i), (j), (k) and (l) of the prayer for relief. Paragraphs 32-3 have already been struck out. Paragraphs 39 and 40 no longer serve any purpose and should also be struck. [109] This leaves in place only Ms. Wakelam’s claims for a declaration, injunctive relief, and an “advertising order” under s. 172 of the BPA . Given this, I see no alternative but to allow the appeal and decertify this proceeding, leaving the plaintiff at liberty to seek the certification of what remains of her action should she so desire. I note that like Singer , however, this case involves a “sophisticated and scientifically-supported regulatory system” in the form of the FDA regime, which exists for the express purpose of monitoring the marketing of pharmaceuticals in Canada. This ‘system’ has already brought about the prohibition of the marketing of cold and cough medicines for children under the age of six. If the purpose of class actions is to redress “real injuries suffered by real people” (see Singer at para. 231), it is worth asking whether anything meaningful is likely to be achieved by the pursuit of what remains of this lawsuit. “The Honourable Madam Justice Newbury” I agree: “The Honourable Mr. Justice Frankel” I agree: “The Honourable Madam Justice Garson” Amended pursuant to Rule 24(1), 15(5) and the Order of Madam Justice Mackenzie pronounced February 12, 2010 Original Statement of Claim filed June 5, 2008 No. S078806 VANCOUVER REGISTRY IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: LANA WAKELAM PLAINTIFF AND: JOHNSON & JOHNSON, JOHNSON & JOHNSON INC., mcneil consumer healthcare canada, novartis consumer health canada inc./novartis sante familiale canada inc., wyeth consumer healthcare/wyeth soins de sante inc. pfizer canada inc., trillium health care products inc., vita health products inc., and procter & gamble inc. DEFENDANTS Proceeding under the Class Proceedings Act , R.S.B.C. 1996, c.50 AMENDED STATEMENT OF CLAIM DEFINED TERMS 1.         The following terms used throughout this pleading have the following meanings: a. “BPCPA” means the Business Practice and Consumer Protection Act , S.B.C. 2004, c. 2, and all regulations thereunder; b. “Class” means all persons resident in British Columbia who purchased Children’s Cough Medicine for use by children under the age of six, that was supplied, 2 offered for sale, advertised or promoted by the Defendants between December 24, 1997, to present: c. “Class Period” means December 24, 1997, to present; d. “Children’s Cough Medicine” means cough medicine supplied, offered, manufactured, produced, advertised, marketed, sold or promoted by the Defendants for use by children under the age of six years old between December 24, 1997, to present containing one or more of the following groups of drugs: I. Antihistamines such as brompheniramine maleate, chlorpheniramine maleate, dexbrompheniramine maleate, clemastine hydrogen fumerate, diphenhydramine hydrochloride, diphenylpyraline hydrochloride, doxylamine succinate, pheniramine maleate, phenyltoloxamine citrate, promethazine hydrochloride, pyrilamine maleate, and triprolidine hydrochloride; II. Antitussives such as dextromethorphan. dextromethorphan hydrobromide, and diphenhydramine hydrochloride; III. Expectorants such as guiafenesin; and/or IV. Decongestants such as ephedrine hydrochloride/sulfate, phenylephrine hydrochloride/sulphate, and pseudoephedrine hydrochloride/sulphate. e. “Defendants” means, collectively, Johnson & Johnson, Johnson & Johnson Inc., McNeil Consumer Healthcare Canada, Novartis Consumer Health Canada Inc./Novartis Sante Familiale Canada Inc., Wyeth Consumer Healthcare/Wyeth Soins De Sante Inc., Pfizer Canada Inc., Trillium Health Care Products Inc., Vita Health Products Inc., and Procter & Gamble Inc. Inc. THE PLAINTIFF 2.         The Plaintiff, Lana Wakelam, is a resident of New Westminster, British Columbia. The Plaintiff is a member of the Class. 3 THE DEFENDANTS 3.         Johnson & Johnson is a New Jersey corporation which has its principle place of business in New Brunswick, New Jersey. 4.         Johnson & Johnson Inc. is a federal corporation with its headquarters in Montreal, Quebec. Johnson & Johnson Inc. is a member of the Johnson & Johnson Family of Companies. 5.         McNeil Consumer Healthcare Canada is a corporation incorporated pursuant to the laws of Canada with its head office located in Guelph, Ontario. McNeil Consumer Healthcare Canada is a division of Johnson and Johnson Inc. 6. McNeil Consumer Healthcare Canada, Johnson and Johnson Inc. and Johnson & Johnson supplied, offered, manufactured, produced, advertised, marketed, sold and/or promoted Children’s Cough Medicine between December 24, 1997 and the present under various brand names including, inter alia, the brand names of Tylenol, Motrin, Benylin and Sudafed. 7.         Novartis Consumer Health Canada Inc./Novartis Sante Familiale Canada Inc. is a corporation incorporated pursuant to the laws of Canada with its head office located in Mississauga, Ontario. 8. Novartis Consumer Health Canada Inc./Novartis Sante Familiale Canada Inc. supplied, offered, manufactured, produced, advertised, marketed, sold and/or promoted Children’s Cough Medicine between December 24, 1997 and the present under various brand names including, inter alia, the brand names of Buckley’s Jack & Jill and Triaminic. 9.         Wyeth Consumer Healthcare/Wyeth Soins De Sante Inc. is a corporation incorporated pursuant to the laws of Canada with its head office located in Mississauga, Ontario. 10. Wyeth Consumer Healthcare/Wyeth Soins De Sante Inc. supplied, offered, manufactured, produced, advertised, marketed, sold and/or promoted Children’s Cough Medicine between December 24, 1997 and the present under various brand names including, inter alia, the brand names of Robitussin, Advil and Dimetapp. 4 11. Pfizer Canada Inc. is a corporation incorporated pursuant to the laws of Canada with its head office located in Kirkland, Quebec. 12. Pfizer Canada Inc. supplied, offered, manufactured, produced, advertised, marketed, sold and/or promoted Children’s Cough Medicine between December 24, 1997 and 2006 under various brand names including, inter alia, the brand names of Benylin and Sudafed. 13. Trillium Health Care products Inc. is a corporation incorporated pursuant to the laws of Canada with its head office located in Brockville, Ontario. 14. Trillium Health Care Products Inc. supplied, offered, manufactured, produced, advertised, marketed, sold and/or promoted Children’s Cough Medicine between December 24, 1997 and the present for certain large chains who sold the Children’s Cough Medicine under their house brand or private label. 15. Vita Health Products Inc. is a corporation incorporated pursuant to the laws of Canada with its head office located in Toronto, Ontario. 16. Vita Health Products Inc. supplied, offered, manufactured, produced, advertised, marketed, sold and/or promoted Children’s Cough Medicine between December 24, 1997 and the present for certain large chains who sold the Children’s Cough Medicine under their house brand or private label. 17. Procter & Gamble Inc. is a corporation incorporated pursuant to the laws of Canada with its head office located in North York, Ontario. 18. Procter & Gamble Inc. supplied, offered, manufactured, produced, advertised, marketed, sold and/or promoted Children’s Cough Medicine between December 24, 1997 and the present under various brand names including, inter alia, the brand names of Vicks and Nyquil. 5 CAUSES OF ACTION Breach of the Business Practices and Consumer Protection Act 19. During the Class Period, the Defendants supplied Children’s Cough Medicine to the Class and solicited, offered, advertised, and promoted the sale of Children’s Cough Medicine to the Class. As such, the Defendants are suppliers within the meaning of section 1 of the BPCPA . 20. Each purchase of the Defendants' Children’s Cough Medicine by the members of the Class was for primarily personal, family, or household uses and as such was a "consumer transaction" within the meaning of section 1 of the BPCPA . 21. The Defendants engaged in numerous deceptive acts or practices in the supply, solicitation, offer, advertisement and promotion of the Children's Cough Medicine. In particular: i.          in every consumer transaction in which the Class purchased Children’s Cough Medicine, the Defendants represented that Children's Cough Medicine provides effective relief from cough symptoms when in fact the Children's Cough Medicine was not effective in children under the age of six; ii.         the Defendants failed to disclose the material fact that Children’s Cough Medicine is not effective for children under the age of six; and iii.         the Defendants failed to disclose the material fact that Children's Cough Medicine can be dangerous when it is used by children under the age of six. 22. The representations and omissions set out in paragraph 21 above had the capability, tendency or effect of deceiving or misleading the Class and therefore constitute deceptive acts or practices under s.4 of the BPCPA . 23. The Defendants gained because of the consumer transactions in which they made the deceptive and misleading representations and omissions set out in paragraph 21 above. 6 24. The Plaintiff, and the other members of the Class, seek a declaration pursuant to s.172(1)(a) of the BPCPA that the Defendants' representations and omissions described in paragraph 21 of this Amended Statement of Claim are deceptive acts or practices. 25. The Plaintiff, and the other members of the Class, seek an interim and a permanent injunction pursuant to section 172(1)(b) of the BPCPA restraining the Defendants from engaging or attempting to engage in the deceptive acts or practices described in paragraph 21 of this Amended Statement of Claim. 26. The Plaintiff, and the other members of the Class, seek an order pursuant to s.172(3)(c) of the BPCPA requiring the Defendants to advertise to the public the particulars of any judgment, declaration, order or injunction against it in this action on terms and conditions the court considers reasonable and just. 27. The Plaintiff, and the other members of the Class, seek an order pursuant to s.172(3)(a) that the Defendants refund all sums that the Class paid to purchase the Children’s Cough Medicine, or that the Defendants disgorge all revenue which it made on account of Children's Cough Medicine purchased by the Class, together with any further relief which may be available under the BPCPA . 28. It is unnecessary for the Plaintiff or any member of the Class to prove that the Defendants’ deceptive acts or practices caused such persons to purchase the Children's Cough Medicine to make out a claim for relief under sections 172 of the BPCPA . 29. In the alternative, the Plaintiff and the other members of the Class suffered damages because of the Defendants’ acts or practices and seek damages pursuant to s. 171 of the BPCPA . Breach of the Competition Act 30. The Defendants made the representations and omissions to the public as particularized in paragraph 21 In so doing, the Defendants breached s. 52 of the Competition Act , R.S.C. 1985, c.C-34, and thereby committed an unlawful act because the representations and omissions: 7 i.          were made for the purpose of promoting the business interests of the Defendants; ii.         were made to the public; and iii.         were false and misleading in a material respect. 31. The Class suffered damages as a result of the Defendants’ unlawful breach of s.52 of the Competition Act and seek those damages, as well as their costs of investigation, pursuant to s. 36 of the Competition Act . Unlawful Interference with Economic Relations 32. Further, or alternatively, the acts particularized in paragraph 21 were unlawful acts undertaken by the Defendants with the intent to injure the Class, and the Defendants are liable for the tort of unlawful interference with economic interests. 33. The Class suffered damages as a result of the Defendants’ unlawful interference with their economic interests. Unjust Enrichment, Waiver of Tort and Constructive Trust 34. In the alternative, the Plaintiff waives the tort and pleads that she and the other members of the Class are entitled to recover under restitutionary principles. 35. The Defendants have each been unjustly enriched by the receipt of revenue from the sale of the Children’s Cough Medicine that was purchased by the Plaintiff and other members of the Class. The Plaintiff and other members of the Class have suffered a corresponding deprivation in the amount of the purchase price that they paid for the Children’s Cough Medicine. 36. Since the money that the Defendants received resulted from the Defendants’ wrongful or unlawful acts, there is and can be no juridical reason justifying the Defendants’ retaining any part of such revenue and in particular, any contracts upon which the Defendants purport to rely to receive the illegal revenue are void and illegal. 8 37. The Defendants are constituted as constructive trustees in favour of the members of the Class for all of the illegal revenue because, among other reasons: (a)        the Defendants were unjustly enriched by receipt of the illegal revenue; (b)        the Class suffered a deprivation because they paid the illegal revenue; (c)        the Defendants engaged in criminal conduct and committed a wrongful act in making the deceptive and misleading representations and omissions; (d)        the illegal revenue was acquired in such circumstances that the Defendants may not in good conscience retain it; (e)        justice and good conscience require the imposition of a constructive trust; and (f)         there are no factors that would, in respect of the illegal revenue, render the imposition of a constructive trust unjust. 38. The Plaintiff pleads that equity and good conscience requires the Defendants to hold in trust for the Plaintiff and the other members of the Class all of the illegal revenue. AGGREGATE DAMAGES 39. The restitution and damages sought by the Plaintiff and other members of the Class in paragraphs 24, 25, 26, 27, 29, 31, 33 and 36 above can be calculated on an aggregate bases for the Class as provided by the BPCPA and ss. 29 and 30 of the Class Proceeding Act. PUNITIVE DAMAGES 40. The Plaintiff pleads that the Defendants' conduct in the design, development, testing, manufacturing, licensing, assembly, distribution, marketing, sale, instruction and promotion of the Children’s Cough Medicine and the representations and omissions as pleaded above, was high-handed, outrageous, reckless, wanton, entirely without care, deliberate, callous, disgraceful, wilful, in intentional disregard of the rights and safety of the Class and their children. Such conduct renders the Defendants liable to pay punitive damages.9 WHEREFORE the Plaintiff claims against the Defendants as follows: a)         an order certifying the proceeding as a class proceeding; b)         declaration pursuant to section 172(1)(a) of the BPCPA ; c)         a permanent injunction pursuant to section 172(1)(b) of the BPCPA ; d)         an order requiring the Defendants to advertise any adverse findings against them pursuant to section 172(3)(c) of the BPCPA ; e)         disgorgement and/or restitution by the Defendants pursuant to section 173(3)(a) of the BPCPA and/or the doctrine of waiver of tort; f)          a constructive trust over the Defendant's illegally obtained revenue; g)         a declaration that the Defendants are in breach of s. 52 of the Competition Act; h)         damages pursuant to section 36 of the Competition Act and/or section 171 of the BPCPA ; i)          investigation costs pursuant to section 36 of the Competition Act ; j)          punitive damages; k)         the costs of administering and distributing an aggregate damage award; l)          interest pursuant to the Court Order Interest Act , RSBC 1996, c.79; and m)        such further relief and this Honourable Court deems just. PLACE OF TRIAL:  Vancouver, British Columbia DATED: February 26, 2010 ____________________________________ Reidar Mogerman Camp Fiorante Matthews Solicitors for the Plaintiff This Amended Statement of Claim is filed by Reidar M. Mogerman, Camp Fiorante Matthews, Barristers and Solicitors, 400 - 555 West Georgia Street, Vancouver, British Columbia, V6B 1Z6. Tel: (604) 689-7555 / Fax: (604) 689-7554.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Dawson v. Dawson, 2014 BCCA 44 Date: 20140131 Docket: CA041154 Between: Judith Gwenda Dawson Respondent (Plaintiff) And David Reid Dawson Appellant (Defendant) Before: The Honourable Madam Justice D. Smith The Honourable Madam Justice Bennett The Honourable Mr. Justice Harris On appeal from:  An order of the Supreme Court of British Columbia, dated July 29, 2013 ( Dawson v. Dawson , Vernon Docket 41550). The Appellant appeared on his own behalf via telephone Counsel for the Respondent: D. Djordjevich Place and Date of Hearing: Vancouver, British Columbia January 21, 2014 Place and Date of Judgment: Vancouver, British Columbia January 31, 2014 Written Reasons of the Court Summary: Application to dismiss an appeal as an abuse of process granted.  The appellant sought to raise issues that were res judicata.  Order declaring the appellant a vexatious litigant granted. Reasons for Judgment of the Court: [1] Ms. Corfield, previously Ms. Dawson, brings several applications in this appeal.  They are: 1) To have the appeal, filed by her ex-husband, David Dawson, dismissed as an abuse of process on the ground that the matters raised by it are res judicata ; 2) Alternatively, to have the appeal dismissed as abandoned on the ground that leave to appeal is required but has not been sought; 3) To have Mr. Dawson declared a vexatious litigant; 4) To be awarded special costs on a lump sum basis. [2] Mr. Dawson’s appeal arises in the context of family law proceedings.  Mr. Dawson and Ms. Corfield brought proceedings to dissolve their marriage and deal with all related incidental issues, principally the division of assets.  This specific appeal is from the dismissal of an application brought by Mr. Dawson to vary the trial order, even though Mr. Dawson’s appeal from that order had been appealed and the appeal dismissed. [3] It is only necessary to set out some limited background.  The parties were married for 15 years.  Their relationship broke down in part because of a violent and unprovoked assault on Ms. Corfield by Mr. Dawson.  Litigation ensued and the issues between the parties were tried by way of a summary trial: Dawson v. Dawson , 2010 BCSC 1015.  Mr. Justice Barrow ordered that the family assets be divided equally and dismissed Ms. Corfield’s claim for lump‑sum spousal support.  Included in this decision was the dismissal of Mr. Dawson’s claim for $5,000 in commission for selling one of the parties’ properties.  It is this aspect of the judgment that underlies the current appeal. [4] Mr. Dawson appealed Justice Barrow’s order, alleging a number of errors in the division of family assets.  In his appeal, Mr. Dawson applied for leave to adduce new evidence, which included a letter purporting to prove his entitlement to the $5,000 commission.  His application and appeal were dismissed: Dawson v. Dawson , 2012 BCCA 410.  At para. 25, Neilson J.A. commented: [25]      The summary trial record contained over 800 pages of affidavits and exhibits. The appellant now seeks to lead voluminous fresh evidence, comprised of a 37-page affidavit and over 300 pages of documentary exhibits, all of which were filed after the parties had exchanged their factums. [26]      The objectives of certainty and finality in matrimonial litigation significantly restrict the right to admit fresh evidence on an appeal. The purpose of an appeal is to examine the record that was before the trial court, to determine whether the judge made an error of law or a palpable error of fact that justifies intervention. It is not an opportunity to retry the case. To justify consideration of fresh evidence, the applicant must establish it was not discoverable by reasonable diligence before the trial; it is credible; it would be practically conclusive of an issue before the court; and, if believed, could have affected the result at trial: Scott v. Scott , 2006 BCCA 504 at paras. 21-24, 61 B.C.L.R. (4th) 9. [27]      The appellant frankly admits that almost all of the material he seeks to admit existed prior to the trial. He submits it should nevertheless be received because, as a self-represented litigant, he was naïve, ignorant, and at a disadvantage. He says he failed to foresee some of the issues that arose at trial, and the evidence he needed to respond to them. He maintains the fresh evidence will be decisive on several issues, and the interests of justice require its admission. [28]      I am not persuaded the appellant’s application should be granted. While I am sympathetic to the challenges faced by a party who represents himself, fairness requires that the governing principles be applied consistently to all litigants. The fact a litigant did not have counsel cannot alone justify permitting that party to treat an appeal as an opportunity to present his or her case anew, on a more comprehensive evidentiary base informed by hindsight and the decision of the trial judge. [29]      While the appellant’s application has been painstakingly put together, it is not always easy to decipher. It appears to me, however, that almost all of the evidence he now seeks to lead was available with due diligence prior to trial. Further, I discern little in his material that might have persuaded the trial judge to exercise his discretion differently [5] In addition to these reasons, it is apparent from the transcript record that the division expressly turned its mind to the issues connected to the letter. [6] After the release of this Court’s judgment, Mr. Dawson applied for a “rehearing of the appeal”.  His application was dismissed and was described as being “without merit and was highly inappropriate”: 2013 BCCA 344 at para. 21 (“Costs Decision”). [7] At the same time, the division exercised its powers under Appendix B of the Court of Appeal Rules , B.C. Reg. 297/2001, to compensate Ms. Corfield for the unwarranted expenses she incurred responding to certain steps in the appeal, which were found to be unnecessarily drawn out and without merit: Dawson v. Dawson , Costs Decision at paras. 21, 22.  We will briefly return to this costs proceeding in connection with other aspects of the applications before us. [8] Mr. Dawson applied for leave to appeal to the Supreme Court of Canada but leave was refused and the Court ordered costs against Mr. Dawson on a solicitor and client basis: Dawson v. Dawson , [2012] S.C.C.A. No. 545. [9] It is apparent that, with the dismissal of his leave application by the Supreme Court of Canada, the legal issue between the parties over the commission and whatever potential relevance the letter may have had to that issue had been conclusively and finally decided against Mr. Dawson. [10] Undeterred, Mr. Dawson applied within the same proceeding to vary the trial order notwithstanding having exhausted his appeal rights arising from it.  He also alleged that both Ms. Corfield and her counsel engaged in perjury by failing to produce the letter at the original trial.  Mr. Justice Cole dismissed the application as being res judicata , without commenting on the allegation of perjury. [11] In our opinion, Cole J. correctly dismissed the application to vary the trial order.  The issue raised in the application to vary has been conclusively and finally decided against Mr. Dawson in the proceedings before this Court and the subsequent application for leave to appeal to the Supreme Court of Canada.  The appeal is wholly without merit.  This Court has inherent jurisdiction to quash an appeal if it is so devoid of merit that to countenance it would be an abuse of the court’s process: Wiens v. Campbell (1992), 74 B.C.L.R. (2d) 154, 21 B.C.A.C. 206. [12] We have no hesitation in concluding that this appeal is an abuse of process and it is therefore dismissed.  Accordingly, it is unnecessary to consider Ms. Corfield’s alternative ground for bringing the appeal to an end. [13] In our view, Mr. Dawson’s attempt to advance his position by alleging perjury is similarly devoid of merit.  It is not open to Mr. Dawson to allege perjury in the context of these civil proceedings.  If any impropriety attached to the fact that the letter (which in any event Mr. Dawson at all times had access to) was not disclosed in the original trial proceedings, the potential relevance of that impropriety was encompassed within the application to adduce fresh evidence on the appeal of the trial judgment.  But given the serious nature of the allegation, we think it important to emphasize that we see no merit in it.  It appears the letter related to an ultimately unsuccessful attempt to settle issues in dispute between the parties and was accordingly irrelevant to the issues before the trial judge. [14] We turn now to deal with the application to have Mr. Dawson declared a vexatious litigant.  Section 29 of the Court of Appeal Act , R.S.B.C. 1996, c. 77, provides that: If, on the application of any person, a justice is satisfied that a person has habitually, persistently and without reasonable cause commenced vexatious proceedings in the court, the justice may, after hearing that person or giving that person an opportunity to be heard, order that proceedings must not be brought or commenced in the court without leave of a justice. [15] The Court may declare a litigant to be vexatious even after judgment on the merits of the appeal has been given: Holland v. Marshall , 2010 BCCA 243 at para. 9 (Chambers), aff’d 2010 BCCA 562. [16] This Court has regularly adverted to and endorsed the following non-exhaustive factors that should be considered in an application to declare a person a vexatious litigant enumerated in Re Lang Michener and Fabian (1987), 37 D.L.R. (4th) 685 (Ont. H.C.J., per Henry J. at para. 19): (a)   the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding; (b)   where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious; (c)   vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; (d)   it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings; (e)   in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action; (f)    the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; (g)   the respondent’s conduct in persistently taking unsuccessful appeals form judicial decisions can be considered vexatious conduct of legal proceedings. See, for example, Attorney General of B.C. v. Lindsay , 2007 BCCA 165 at para. 27, Huddart J.A., leave to appeal ref’d [2007] S.C.C.A. No. 359; Holland v. Marshall , supra, at para. 13; Pearlman v. Insurance Corporation of British Columbia , 2010 BCCA 362 at para. 5, Low J.A. (Chambers), aff’d 2010 BCCA 568, leave to appeal ref’d [2011] S.C.C.A. No. 39. [17] The purpose of the provision permitting the Court to declare a person to be a vexatious litigant was explained in Houweling Nurseries Ltd. v. Houweling , 2010 BCCA 315.  The section gives the Court the ability to control its own process to prevent the abuse of that process by a litigant repetitively bringing unmeritorious proceedings that result in the needless expenditure of judicial resources and cause unnecessary expense to other parties: see, paras. 1 and 40. [18] We are persuaded that Mr. Dawson should be declared a vexatious litigant.  We reach that conclusion based on his conduct in this Court, but informed also by his conduct in the Supreme Court.  As will be seen, Mr. Dawson has, in both courts, taken repetitive steps in relation to matters that have already been decided. [19] This Court commented critically on Mr. Dawson’s conduct in the Costs Decision: [16]      First, he brought an application for leave to appeal when leave was clearly not required. [17]      Second, he brought an application in this Court for a stay of proceedings, when the proper forum for such a motion was the Supreme Court. [18]      Third, despite a letter from Ms. Corfield’s counsel warning Mr. Dawson he must file appeal books that were “100% complete” or face increased costs and delay, the three appeal books he prepared and filed did not include half of Ms. Corfield’s affidavit material from the summary trial, and mixed up the affidavits and exhibits that they did include. We accept that, as a result, Ms. Corfield’s counsel was required to review the 564 pages in the three appeal books to determine what was missing, and ultimately prepare a fourth volume to ensure the record before this Court was complete. This fourth appeal book was essential and of considerable assistance to the Court on the appeal. Yet Mr. Dawson objected to having it filed, necessitating a Registrar’s hearing to settle the contents. [19]      Fourth, on March 20, 2012, after Ms. Corfield’s counsel had filed her factum and a month before the appeal, Mr. Dawson filed a 367-page application to lead new evidence, and an accompanying 18-page argument, which effectively constituted a revised factum. We have no doubt Ms. Corfield’s counsel was required to spend significant time in responding to this application, which we found to be without merit because virtually all of the material Mr. Dawson sought to have admitted had been available to him prior to the trial. [20]      Fifth, in May 2012, several weeks after the appeal was heard, Mr. Dawson attempted to present an unsolicited supplementary argument to the Court, which we declined to accept. We are satisfied Ms. Corfield’s counsel was required to review this, although the Court rejected it summarily without requiring a response from her. [21]      Finally, in November 2012, a month after the reasons for judgment of this Court were released, Mr. Dawson delivered to the Court an 18-page application for a “rehearing of the appeal”. This application was without merit and was highly inappropriate, in that it alleged both the trial court and this Court were prejudiced and biased against him due to his gender, his mental illness, his status as a self-represented litigant, and the fact his marriage to Ms. Corfield had ended because he had viciously and unexpectedly assaulted her. His critical and derogatory submissions set out multiple perceived errors attributable to this alleged partiality to Ms. Corfield, and repeated many of the submissions he had made on the appeal. We accept that Ms. Corfield’s counsel was required to reacquaint herself with the matter and prepare a “ready for filing” response, which was submitted to the Court but not filed as the application was peremptorily dismissed. [20] At that time, this Court was not satisfied that Mr. Dawson’s conduct of the appeal justified special costs, but it did order a lump sum award of increased costs to compensate Ms. Corfield for the unnecessarily protracted litigation and the additional expenses she incurred. [21] Since the final disposition of the appeal, Mr. Dawson has brought these proceedings which are a further attempt to relitigate matters that have already been decided against him.  As we shall describe, not only has he brought proceedings that are utterly devoid of merit, he has done so in a manner that involves the harassment of both of Ms. Corfield and her counsel. [22] Mr. Dawson’s effort to relitigate the issue of the letter purportedly entitling him to commission has not been restricted to this appeal.  There have been other proceedings in the Supreme Court, culminating in a decision of Mr. Justice Barrow’s on January 13, 2014 declaring him a vexatious litigant: 2014 BCSC 44.  We intend to quote extensively from the recitation of the background to that application since much of what is said there informs our analysis here: [17]      On July 12, 2013, Mr. Dawson filed a further application in the context of this litigation, seeking an order varying the July 2010 trial decision and a stay of the various orders that followed from that decision. By paragraph 3 of Part 1 on that application, he sought directions: 3)      …as to the charge that the Plaintiff and her counsel, Ms. Djordjevich misled justice and committed perjury by repeatedly denying the truth of a fact, both in written submissions to the Supreme Court of BC, the Court of Appeal of BC and the Supreme Court of Canada and orally in trial in the Supreme Court of BC the effect of which was to mislead the trial judge and result in a mistaken finding and order based precisely on those representations The facts asserted by Mr. Dawson in support of that application relate to his claim to a $5,000 commission from the sale of the parties’ Chase condominium. His application was heard by Cole J. on July 29, 2013. It was dismissed on the basis that the issue was res judicata inasmuch as Mr. Dawson had sought to adduce the same evidence, both before the Court of Appeal and the Supreme Court of Canada, and on both occasions, his applications were refused. Cole J. also ordered that Mr. Dawson pay costs, which he summarily fixed at $1,500. [18]      Mr. Dawson has appealed Mr. Justice Cole’s order. Ms. Corfield has filed an application to have Mr. Dawson’s appeal of Cole J.’s order dismissed. That application is scheduled to be heard on January 28, 2014. [ In fact January 21, 2014 ] [19]      On September 9, 2013, Mr. Dawson filed a requisition asking to appear before me for the purpose of re-opening the June 2010 trial. In his requisition, he set out that the September 23, 2009 letter amounted to an agreement to pay commission and that through the “perjury” and “deceit” of Ms. Corfield and Ms. Djordjevich, that letter had been improperly suppressed. He made no mention of the fact that he had attempted to adduce the very same evidence before the Court of Appeal and had sought to pursue the matter just a month previous before Cole J. I indicated to Mr. Dawson through the trial scheduler’s office that he could make this application. As soon as Ms. Djordjevich became aware of the application, she informed the court of the proceedings that had taken place in the Court of Appeal and before Mr. Justice Cole. I then dismissed Mr. Dawson’s request to have the matter heard. [28]      Mr. Dawson’s appeals to the British Columbia Court of Appeal and the Supreme Court of Canada are relevant to the question of whether an order under s. 18 of the Supreme Court Act or s. 221 of the Family Law Act should be made to this extent: those proceedings conclusively established the finality of the issues raised in this family litigation. They established that the September 23, 2009 correspondence from Ms. Djordjevich to Mr. Dawson’s then lawyer will not be considered in this case. This conclusion is important because on three occasions since the Supreme Court of Canada refused leave, Mr. Dawson has sought to have the Supreme Court of British Columbia consider that issue. His first attempt was his application of July 12, 2013. Mr. Dawson’s argument that he was merely seeking directions by that application is disingenuous. One of the orders he sought was a variation of the trial judgment. In Part 3 of his application, he set out the additional orders he was seeking. They included a reduction in the costs ordered following the trial and punitive costs against Ms. Corfield for her “perjury” and that of her counsel. [29]      The second application was Mr. Dawson’s requisition of September 9, 2013. By this requisition, he sought to raise precisely the same issues. Mr. Dawson clearly understood that there was a risk that his application could be dismissed on the basis that the issue raised was res judicata . He was careful to point out in his requisition that neither the Court of Appeal nor the Supreme Court of Canada had passed judgment on the question of whether either Ms. Djordjevich or Ms. Corfield had committed perjury or otherwise misled the court because he had not raised the issue in those proceedings. What Mr. Dawson did not disclose in his requisition was the fact that Mr. Justice Cole had determined that the very issue he sought to raise was res judicata . Whether Mr. Dawson is successful in his appeal of that decision, he knew the decision was extant and he knew the basis on which it was made. He deliberately chose not to include that information in his request to appear back before me. [30]      The third instance in which Mr. Dawson has sought to revisit this issue is his application of December 2, 2013. As noted above, by that application, he seeks an order that Ms. Djordjevich personally pay damages to him for what he maintains was perjury. The perjury he relies on relates to the September 23, 2009 letter. Mr. Dawson’s December 2, 2013 application is also revealing in another respect. In Ms. Corfield’s November 12, 2013 application, the first two orders she sought were for a declaration under s. 18 of the Supreme Court Act and an order under s. 221 of the Family Law Act . In paragraphs 2 and 3 of Part 1 of Mr. Dawson’s December 2, 2013 application, he has reproduced verbatim the orders sought by Ms. Corfield and replaced his name with hers. He has not pointed to any action taken by either Ms. Corfield or Ms. Djordjevich that even remotely resembles a vexatious or abusive step. [31]      I am satisfied that Mr. Dawson’s conduct in repeatedly attempting to revisit an issue that was finally determined by the highest court in this country amounts to a misuse of this court’s process. [23] Mr. Justice Barrow, in considering issues connected to the restraining orders against Mr. Dawson in favour of Ms. Corfield and her counsel, referred to Mr. Dawson’s anger, apparent obsession with the litigation, and threats he has made.  Those threats are in the material before us.  They include threatening criminal proceedings against Ms. Corfield’s counsel, threatening to report her to the RCMP, and accusing her of perjury and dishonesty.  As summarized by Barrow J.: [46]      …Mr. Dawson’s conduct in this litigation supports the proposition that he remains excessively preoccupied with and obsessed by it. His materials also support the conclusion that he remains angry towards Ms. Corfield. His anger is not limited to Ms. Corfield but, rather, extends to virtually all of those who have had involvement in this litigation. On November 12, 2010, Mr. Dawson swore an affidavit (No. 9 in this proceeding) in support of his application to have Ms. Corfield and Ms. Djordjevich “cited for contempt”. He deposed that the plaintiff’s application, to which his affidavit was also in response to, was: 3)      …another vindictive and vicious attack by a counsel so prejudiced by personal animosity and so determined to annihilate me that she loses sight of need to find a settlement that both parties can live with [47]      On August 7, 2013, Mr. Dawson wrote to Ms. Djordjevich accusing her of perjury and writing that: Your career is over - I promise you that. In a January 21, 2013 letter to Ms. Djordjevich, he wrote: My motivation is the pursuit of justice as I earned the money in dispute without doubt - you personally cheated me out of commission by your denial and cover up of the agreement A month later in a February 7, 2013 letter, Mr. Dawson wrote: The venom came from you…Don’t you consider all your low tactics, the contempt citation and all the lies in court have steeled my defence? Your determination to win has cost your client dearly. There are numerous other references in the material to a similar effect. [24] The material before us similarly includes numerous instances of similar statements.  Based on the material that is before us, we would agree with the assessment of Barrow J. referred to in para. 46 of his judgment just quoted. [25] It is clear to us that Mr. Dawson’s unrelenting pursuit of issues connected to the commission he has claimed to be entitled to has become obsessive.  Given amounts paid to him on account of expenses incurred in selling the property, the amount in issue is in the order of $2,000.  He is pursuing the matter, despite the issue having been finally decided, in an abusive manner that includes repeated threats against both Ms. Corfield and her counsel.  It is apparent that in doing so he has subjected both of them to great stress.  We were advised by counsel at the hearing of this matter that neither Ms. Corfield nor her counsel would appear to any further court process involving this or related matters.  We are satisfied that part of the reason for this goes beyond merely the cost in time, energy and money to respond, but is rooted also legitimately in fear and anxiety. [26] In summary, we are persuaded that Mr. Dawson is a vexatious litigant.  His conduct in this Court alone justifies that conclusion.  But his conduct in the litigation generally, in the Supreme Court as well as this Court, also informs our conclusion.  In both courts he has brought multiple proceedings on issues already decided against him and that are devoid of merit.  The proceedings have involved improper conduct and harassment, including defamatory statements and threats against Ms. Corfield and her counsel.  Mr. Dawson’s obsessive pursuit of these proceedings has drained the resources of Ms. Corfield, compelled her counsel to respond to unfounded allegations, and is conduct that cannot, nor likely ever would, be adequately compensated in costs.  Mr. Dawson’s conduct exemplifies many of the factors set out in para. 16 above. [27] Previously, this Court concluded that Mr. Dawson’s conduct did not warrant sanction through an award of special costs.  In our view, his conduct since the Costs Decision justifies an award of special costs.  Unfounded allegations of perjury are exceptionally damaging to the reputation of anyone, but they are particularly harmful to a professional, such as counsel.  In our view, Mr. Dawson’s conduct has gone further than that commented on by this Court earlier, and now can properly be regarded as reprehensible and deserving rebuke. [28] The difficulty with making an award of special costs, is that those costs must be assessed and to do so would require further proceedings.  Ms. Corfield, accordingly, withdrew her application for special costs to try to bring this litigation to an end.  Instead, she asked for an order that would compensate for the disbursements incurred in relation to this proceeding.  Those disbursements total $1,474.70.  In addition, we would award lump sum costs for 25 units on Scale 1 in the amount of $1,200.  Those costs reflect tariff entitlements for advising the respondent, assembling a motion book, and preparing for and attending the application. [29] We turn now to the form of order declaring Mr. Dawson to be a vexatious litigant.  The order will go in the following form: This Court Orders that: 1. Mr. David Reid Dawson, be declared a vexatious litigant pursuant to section 29 of the Court of Appeal Act; 2. Mr. Dawson, and anyone acting on his behalf, except a member in good standing of the Law Society of British Columbia, shall not file or attempt to file, by any means whatsoever, any document in the registry of the Court of Appeal for British Columbia pertaining to or in any way connected with the subject matter of the proceedings in Court of Appeal Registry File No. CA041154, or pertaining to or connected with the subject matter of his allegations against Judith Gwenda Corfield or her counsel D. Djordjevich, or arising from or related to that subject matter; 3. The order in paragraph 2 does not apply to any order that is made against Mr. Dawson at the behest of another party, provided that any notice of appeal, application, or other initiating document filed in this Court by Mr. Dawson is signed by a member in good standing of the Law Society of British Columbia and Mr. Dawson is represented by such a member at any hearing; 4. Mr. Dawson, and anyone acting on his behalf, except a member in good standing of the Law Society of British Columbia, shall not attend in person at the Court of Appeal registry and shall not file or attempt to file by any means whatsoever any document in the Court of Appeal Registry; 5. Registry staff are authorized to reject any document that is attempted to be filed in contravention of this order. [30] In the result, we would dismiss the appeal as an abuse of process, declare Mr. Dawson to be a vexatious litigant, and award costs as set out above.  We would also dispense with Mr. Dawson’s approval of the form and content of the order. “The Honourable Madam Justice D. Smith” “The Honourable Madam Justice Bennett” “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: L’Association des parents de l’école Rose-des-vents v. British Columbia (Minister of Education), 2014 BCCA 40 Date: 20140131 Docket: CA040429 Between: L’Association des parents de l’école Rose-des-vents and Joseph Pagé in his name and in the name of all citizens of Canada residing west of Main Street in the City of Vancouver whose first language learned and still understood is French, or who have received their primary school instruction in Canada in French, or of who any child has received or is receiving primary or secondary school instruction in French in Canada Respondents (Respondents) And The Ministry of Education of British Columbia and The Attorney General of British Columbia Appellants (Respondents) And Conseil Scolaire Francophone de la Columbia-Britannique Respondent (Respondent) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Bennett The Honourable Mr. Justice Hinkson Supplementary reasons to: L’Association des parents de l’école Rose-des-vents v. Conseil scolaire francophone de la Colombie-Britannique , 2013 BCCA 407, Docket CA40429 Counsel for the Appellant: Leonard T. Doust, Q.C., W. Wilman, K. Wolfe Counsel for the Respondent, Conseil scolaire francophone: R. Grant, Q.C., M. Power, B. Elwood Counsel for the Respondent, L’Association and Joseph Pagé N.M. Rouleau Place and Date of Hearing: Vancouver, British Columbia July 18 and 19, 2013 Place and Date of Judgment: Vancouver, British Columbia September 20, 2013 Written Submissions received: December 6, 12, 20, 30, 2013 Date of Supplementary Judgment: January 31, 2014 Supplementary Reasons of the Court Summary: Supplementary reasons on costs following the allowance of the appeal. The petitioners were granted a declaration in the Supreme Court that their minority language rights under s. 23 of the Charter had been infringed and were granted special costs on the basis of their status as successful public interest litigants. The Province successfully appealed the declaration and the petition was remitted to the Supreme Court. The Province seeks an order setting aside the special costs order as well as an order granting its costs of the appeal. Held: order that the award of special costs in the Supreme Court proceedings be set aside and costs be remitted to the judge hearing the petition and an order that the parties bear their own costs of the appeal. The bases for the judge’s award of special costs to the petitioners have been obviated by the disposition of the appeal. The issues on appeal do not merit costs to the unsuccessful party. Supplementary Reasons of the Court: [1] The Province seeks an order from this Court setting aside the awards of special costs to the L'Association des parents de l'école Rose-des-vents and Mr. Pagé, in his name and as a representative of parents of children enrolled at l'école élémentaire Rose-des-vents, (collectively, "the Parents") and the Conseil Scolaire Francophone de la Columbie-Britannique (the “CSF”) by the Supreme Court judge [the judge] and an order that it be granted its costs of the appeal. Background [2] The CSF is the Francophone education authority established under the School Act , R.S.B.C. 1996, c. 412. It offers homogenous French language primary and secondary instruction throughout British Columbia. [3] La Fédération des Parents is a non-profit organization representing 28 parent associations from the Conseil's schools and 13 parent associations from French language pre-schools. [4] The Parents filed a petition naming as respondents the Ministry of Education, the Province of British Columbia (collectively "the Province"), and the CSF. The petition sought a declaration that the petitioners' minority language education rights under s. 23 of the Canadian Charter of Rights and Freedoms , Part 1 of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ] had been breached. [5] A month later, the CSF and others brought an action against the Province, alleging province-wide breaches of s. 23 of the Charter and raising systemic challenges to the funding system of the Ministry of Education. The Province sought an order consolidating the petition with the action, but this was denied. The CSF supported the declaratory relief sought by the Parents in their petition. [6] On October 31, 2012, the judge declared that parents living west of Main Street in the City of Vancouver who had the right to have their children receive primary school instruction in French were not being provided the minority language educational facilities guaranteed to them by s. 23 of the Charter . [7] On June 24, 2013, in reasons indexed at 2013 BCSC 1111, the judge ordered that the Parents would have special costs from the Province in relation to all proceedings to that date, and that the CSF would have special costs payable by the Province in relation to all proceedings from November 4, 2011 to June 24, 2013. [8] In reasons indexed at 2013 BCCA 407, this Court allowed an appeal by the Province and set aside the order of the judge, striking certain paragraphs from the Province’s amended response to civil claim. This Court also set aside the judge’s declaration that parents living west of Main Street in the City of Vancouver who have the right to have their children receive primary school instruction in French are not being provided the minority language educational facilities guaranteed to them by s. 23 of the Charter , and remitted the Petition to the Supreme Court. Discussion [9] The Province contends that as it succeeded on its appeal, the award of special costs by the judge should be set aside and the matter of the costs in the trial court remitted to the rehearing judge for determination following the rehearing, citing as examples of such a result the decisions of this Court in Durant v. Leonard , 2001 BCCA 449 at paras. 16-17 and BMF Trading, a Partnership v. Abraxis Holdings Ltd. , 2004 BCCA 12 at paras. 3–4. a)       Special Costs [10] The judge declined to make an award of special costs based upon the conduct of the Province. Similarly, he declined such an award of costs on the basis that such an award was justified as a Charter remedy, as he had not made a determination of a breach of a Charter right, nor had he determined which of the respondents, if either of them, ought to be required to remedy the deficiency he found to exist. [11] The basis for his award of special costs was that the case involved a matter of public interest where, in exceptional cases, a departure from the ordinary costs rules is appropriate as explained in British Columbia (Minister of Forests) v. Okanagan Indian Band , 2003 SCC 71, [2003] 3 S.C.R. 371 [ Okanagan ], and Barclay (Guardian ad litem of) v. British Columbia (Attorney General) , 2006 BCCA 434. [12] Considering the factors articulated in Victoria (City) v. Adams , 2003 BCCA 563 at para. 188 [ Adams ], the judge concluded that the Parents and the CSF were successful public interest litigants who qualified for special costs. The judge also concluded that an award for special costs to the Parents and CSF would not be unjust in the circumstances and would be in the public interest. [13] Both the Parents and the CSF contend that these findings by the judge are unchallenged and support the awards of special costs as per Adams . Their contentions miss the obvious point that the bases for the judge’s awards of special costs to the Parents and the CSF have been obviated by our disposition of the appeal; the petitioners are no longer the successful litigants. [14] The Parents also contend that the maintenance of the special costs order by the judge would have the same effect as if they had received an order for advance costs at the beginning of the proceedings. We are unable to accept that contention. The Parents neither applied for nor received such an order, and such an order, while accepted as possible by the Supreme Court of Canada in Okanagan at para. 27, engages a different analysis than that set out in Adams . [15] We would therefore set aside the judge’s order of special costs to both the Parents and the CSF. b)       Ordinary Costs [16] The judge’s award of costs to the Parents was made on the basis that they had brought themselves within the exception to the rule that costs should be assessed and payable at the end of the proceeding. He concluded at para. 50 of his reasons that the rationale for the ordinary costs rule did not apply because he was in a position, at that interim period, to make a costs order that appropriately reflected the success of the Parents on the declaratory order sought: Given the significant prospect that the petitioners will seek no other remedy than the declaratory relief they have obtained, it is, in my view, appropriate in this case to now address the question of costs. The petitioners have brought themselves within the exception to the rule that costs should be assessed and payable at the conclusion of proceedings. I come to that conclusion, in part, because the rationale for the usual order, as described in [ Freshway Specialty Foods Inc. v. Map Produce LLC , 2005 BCSC 594] is a reluctance on the part of the judge hearing interim applications for costs to tie the hands of the trial judge where it may be necessary to assess the conduct of the proceedings as a whole before making the appropriate costs order. In my view, I am now in a position to make a costs order that appropriately reflects the proceedings to date and that does not impose an inappropriate limit on any judge hearing further applications in relation to this matter. [17] The judge awarded costs to the CSF on the basis that the CSF joined with the Province in relation to the declaratory order sought. His reasoning on this issue is found at paras. 58 and 60–61 of his reasons: [58]      The proceedings to date in this litigation may be divided into two phases. In the proceedings from the date of the filing of the petition to November 4, 2011, the petitioners sought not only a declaration that the facilities afforded to them did not meet the standard to which s. 23 rights holders were entitled but, further, orders requiring remedial measures, and therefore raising the question of responsibility for any inadequacies that may be found to exist. Thereafter, they sought only that declaratory relief which they felt would be sufficient to stimulate negotiations between the parties with a view toward addressing any inadequacies that might be proven. [60]      The petitioners have now succeeded in relation to the preliminary issue described in the judgment of November 4, 2011. In my view it is appropriate, in the circumstances, to award them costs in relation to proceedings before and after that date. While there remains, for negotiation or resolution, the question whether one or the other of the respondents must take remedial action and, if so, what action must be taken, the fact remains that the petitioners have, at their expense, obtained relief which they expect to be of some value to them in asserting their constitutional rights. If these proceedings come to an end now, it would, in my view, be inappropriate to deny the petitioners the costs of the proceedings prior to the November 4, 2011 order that the petition should proceed in stages. As a result, they are entitled to costs throughout as against the respondent Minister and the respondent Attorney General. [61]      The CSF joined issue with the Province in relation to the matter for determination as a preliminary question pursuant to my order of November 4, 2011.  As the CSF joined with the petitioners and assisted them in advancing their claim, the CSF can in that respect be regarded as a successful litigant. [18] The Parents contend that much of the work done to date can be used if the first instance proceeding resumes and that to the extent that there has been any waste of resources thus far, most of such waste is attributable to the manner in which the province has conducted its defence. [19] Even if much of the work done to date can be used if the first instance proceeding resumes, or that if there has been a waste of resources thus far that can be blamed on the Province, I am unable to agree that this assists the Parents or the CSF on the issue of costs at this stage of the proceedings. [20] As we have already stated above, the bases for the judge’s award of special costs to the parents and the CSF have been obviated by our disposition of the appeal. Similarly, an award of interim costs is no longer a justified departure from the usual costs order.  We therefore remit the issue of costs of the Parent’s petition to the judge who hears the petition. c)       Costs of the Appeal [21] What then of the costs of the appeal? The Province quite properly conceded that such a result was subject to the Court’s discretion to order otherwise where there is a good reason particular to the case and relevant to the lis between the parties that makes it equitable to do so. [22] The Province contends that as the successful party on the appeal, it should have its costs pursuant to s. 23 of the Court of Appeal Act , R.S.B.C. 1996, c. 77, or at a minimum, not have to bear the full costs of vindicating its rights, nor should it have to bear the costs of the unsuccessful parties, citing Ngo v. South Pacific Development Ltd. , 2007 BCCA 119, where that result obtained. [23] The usual rules pertaining to costs in private litigation are modified to some extent in litigation which engages broader public interest. Such is apparent from the reasons of Newbury and Saunders JJ.A. for the majority in Carter v. Canada (Attorney General) , 2013 BCCA 435, where this Court ordered that the parties should bear their own costs of both the appeal and the proceedings in the Supreme Court of British Columbia, despite what they considered to be binding authority against the respondents. [24] In William v. British Columbia , 2013 BCCA 1, the unsuccessful party was awarded the ordinary costs of the appeal in a case involving a claim of Aboriginal title to certain lands. Public interest in that appeal was aroused because the trial judge’s decision created particular problems and might well have been followed in the British Columbia Supreme Court absent the appeal. At paras. 41 the Court wrote: In making this order [granting the unsuccessful litigant costs], we recognize that this case is highly unusual, and that orders that an unsuccessful appellant be granted costs will be extraordinarily rare. Such an order will not be made simply because it is perceived to be in the public interest that jurisprudence develop in a particular area of law. It must, at the very least, be shown that the development of jurisprudence in the area is of a critical public importance. We are satisfied that in the unique circumstances of this case, the Court is justified in taking the extraordinary step of awarding costs to an unsuccessful litigant. [25] In Guide Outfitters Association v. British Columbia (Information and Privacy Commissioner), 2005 BCCA 368, Hall J.A., for the Court, observed at para. 8: Several judgments of the courts in the province have recognized that questions of whether the public interest is served by the litigation may guide the court in exercising its discretion regarding costs. In MacDonald , supra, at para. 13, Mr. Justice Bauman referred to factors the Ontario Law Reform Commission considered may lead a judge to rule the parties should bear their own costs: (a) The proceeding involves issues the importance of which extends beyond the immediate interests of the parties involved. (b) The person has no personal, proprietary or pecuniary interest in the outcome of the proceeding, or, if he or she has an interest, it clearly does not justify the proceeding economically. (c) The issues have not been previously determined by a court in a proceeding against the same defendant. (d) The defendant has a clearly superior capacity to bear the costs of the proceeding. (e) The plaintiff has not engaged in vexatious, frivolous or abusive conduct. Although I consider these factors as useful ones to guide the Court in the exercise of its discretion as to costs, the overarching question is still whether the normal rule is unsuitable on the facts of this case. ... [Emphasis added.] [26] Even more recently, the Supreme Court of Canada awarded the Conseil Scolaire Francophone de la Columbie-Britannique its costs at all levels of court despite its loss at each level of court in Conseil Scolaire Francophone de la Columbie-Britannique v. British Columbia, 2013 SCC 42. That case involved an interlocutory appeal of a novel evidentiary issue. Mr. Justice Wagner, for the majority, wrote at para. 64 that: Although costs are usually awarded to the successful party, there are exceptions. In this case, the appellants have raised a novel issue in the context of a broader Charter challenge, and for that reason I would award them their costs. [27] We do not consider that the issues on the appeal reach the level of the issues discussed by Mr. Justice Wagner in the passage set out above in other litigation involving the Conseil Scolaire Francophone de la Columbie-Britannique and the Province. However, because the appeal did raise some issues of public interest, we consider that the normal rule as to costs is unsuitable and order that the parties bear their own costs of the appeal as ordered in Carter. “The Honourable Madam Justice Saunders” “The Honourable Madam Justice Bennett” “The Honourable Mr. Justice Hinkson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Liao v. Vandepol, 2014 BCCA 57 Date: 20140131 Docket: CA041041 Between: Morris Liao, Li Chu Liao, Branko Pajic, and Durda Pajic Respondents (Petitioners) And Gerrit Vandepol Appellant (Respondent) And 0935312 B.C. Ltd., Vandepol Canada Inc., Carola Vandepol, Damrak Investments Ltd., and Occupants Respondents Before: The Honourable Madam Justice Garson The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Willcock Application to vary: An order of the Court of Appeal of British Columbia, dated September 6, 2013 ( Liao v. Vandepol , Vancouver Registry No. CA041041) Oral Reasons for Judgment No one appearing on behalf of the Appellant: Counsel for the Respondent: S.R. Andersen Place and Date of Hearing: Vancouver, British Columbia January 31, 2014 Place and Date of Judgment: Vancouver, British Columbia January 31, 2014 Summary: The appellant, Mr. Vandepol, applies to vary an order for security for costs.  In ordering costs, the chambers judge concluded that the appeal was almost entirely devoid of merit.  The appellant did not comply with that order but, instead, applied for an extension of time to file his Notice of Application to Vary an Order of a Justice.  His application was granted with an order that the application be heard on a certain date. The appellant adjourned that hearing without the respondent’s consent. The appellant did not appear at the hearing before this Court but filed an affidavit saying he could not attend. The basis of Mr. Vandepol’s application to vary the order, was that he lacked the funds to comply and the judge erred in his assessment of the strength of the appeal. Held: Application dismissed. The appellant’s affidavit should be treated as an application to adjourn.  The application is declined as it is not in the interests of justice to adjourn the matter further.  There is no basis to conclude that the chambers judge erred in his appraisal of the appeal’s merit.  In the circumstances of this case, it is appropriate to grant the appellant an extension of time to post the ordered security; however, should he fail to comply with the extension his appeal shall stand dismissed. [1] GARSON J.A. : Mr. Vandepol set this application to vary an order made by a justice of this Court for hearing today pursuant to s. 96 of the Court of Appeal Act , R.S.B.C. 1996, c. 77. On January 29, 2014, the Court of Appeal Registry received an affidavit sworn by Mr. Vandepol deposing to the fact that he would be unable to attend today’s hearing “as [he] was on a flight to Europe today at 6 p.m. to deal with a family matter.” He gave no further explanation for his inability to attend court. He asked that his application be adjourned to a date after March 3, 2014, the date of his return. He also stated in this affidavit that if the Court was unwilling to adjourn the hearing “please accept this material as what I would have said to the court had I been here in person.” [2] Mr. Andersen, counsel for the respondents on the appeal and on this application, advised the Court that he was unaware of Mr. Vandepol’s request for an adjournment, (if that is what it is), prior to being so advised by the Court at today’s hearing. He submitted that the hearing should proceed, despite Mr. Vandepol’s absence. He noted that he was in the Supreme Court with Mr. Vandepol on January 29, 2014, in connection with the underlying foreclosure proceedings but at that time Mr. Vandepol made no reference then to his inability to attend today’s hearing. [3] The Order that Mr. Vandepol seeks to vary is an order for security for costs made by Mr. Justice Groberman (in chambers) on September 6, 2013. The terms of the order are as follows: 1. on or before October 7, 2013, Gerrit Vandepol deposit with the Registrar of the Court of Appeal security for costs of this appeal in the amount of $7,500.00; 2. the appeal be and is hereby stayed until the security so ordered is deposited; 3. if the security is not deposited as ordered, the Petitioners/Respondents Morris Liao, Li Chu Liao, Branko Pajic and Durda Pajic are at liberty to apply for an order that the appeal be dismissed as abandoned. [4] Mr. Vandepol did not comply with this order. Instead, he applied on October 21, 2013, for an extension of time to file and serve his Notice of Application to Vary an Order of a Justice. His application for an extension of time to file this application to vary Mr. Justice Groberman’s was heard by Madam Justice MacKenzie. She made the following order: 1. The Appellant file and serve his Notice of Application to Vary an Order of a Justice (the “Application”) on or before 4:00 p.m. on October 28, 2013. 2. In regard to the Application, the Appellant file and serve his motion book on or before 4:00 p.m. on November 12, 2013. If the Registry refuses to accept the motion book for filing, the Appellant will have until 4:00 p.m. on November 18, 2013 to remedy any such defects. 3. The appeal will be struck as dismissed without a further hearing if the Appellant fails to comply with either of the deadlines set out in paragraphs 1 or 2 of this Order. 4. The Application will be scheduled for 1 hour and will be heard at 10:00 a.m. on January 15, 2014 or such other date as counsel may agree to in writing. 5. If the Appellant has counsel, then his counsel will attend the hearing of the Application. 6. The Application of the RespondentsPetitionersfiled October 11, 2013 is adjourned generally. 7. Approval as to the form of this Order by Gerrit Vandepol is dispensed with. [5] Despite Madam Justice MacKenzie’s order that the application be heard on January 15, 2014, we are told by Mr. Andersen that Mr. Vandepol adjourned the hearing, without Mr. Andersen’s consent, to today’s date. [6] In these circumstances we determined to treat Mr. Vandepol’s affidavit as an application for adjournment. We then concluded that it was in the interests of justice to decline that adjournment and we proceeded today to hear the application to vary this security for costs order made by Mr. Justice Groberman. Nature of the Application [7] The order made by Mr. Justice Groberman, in chambers, was an order for security for costs. The underlying appeals are in respect to a summary judgment on a promissory note (appealed without leave) and an associated order within a foreclosure proceeding (appealed with leave) on the appellant’s personal covenant on a mortgage. [8] The appellant says he is without funds and the order that is the subject of this application deprives him of his right to bring a meritorious appeal. Mr. Justice Groberman decided that the appeal was “almost completely devoid of merit”. He ordered that Mr. Vandepol post $7,500.00 as security, as already noted. He stayed the appeal pending the payment of that security. Also, as already noted, Mr. Vandepol has not complied with the order. [9] The order for security for costs relates to two separate orders but they were made in one proceeding: Supreme Court Action number. H13048. I turn to the underlying facts and chambers proceedings. Background Factsd [10] The lands that are the subject to this foreclosure and related proceedings were purchased on February 29, 2012, for $1,675,000. The purchaser was a numbered company referred to in these proceedings as 935. 935 was formed by Vandepol and the petitioners for the purpose of acquiring the lands. [11] The purchase was financed by a first mortgage in favour of Pacific Coast Mortgage Investment Corporation in the amount of $1.1 million with monthly payments (interest only) of $8,025.00. The respondents, Mr. Liao and Mr. Pajic, were covenantors on that first mortgage. [12] The respondents (petitioners below) provided the balance of the purchase price by way of a second mortgage on the principal amount of $300,000.00 together with a promissory note in the amount of a $400,000.00, payment of which was guaranteed by Mr. Vandepol. [13] Mr. Vandepol contributed $5,000.00 of his own funds to this purchase. [14] The agreement between the parties was that Mr. Vandepol would be entitled to collect on the rents from the land. He would be responsible for the operation of the property. 935, the purchaser, entered into a written lease of the land to Vandepol Canada Inc. The monthly rent, $12,025.00 payable to 935 was intended to cover 935’s mortgage payment obligations owning on the first and second mortgage. Vandepol Canada Inc. rented out the residential property to Vandepol and his daughter. The farm buildings were rented to third parties for storage purposes. There is a dispute on the evidence as to the amount of rent that was generated by the lands. What is not in dispute is that Vandepol did not pay the rent to 935. 935 had no other source of income, and therefore it defaulted on the mortgage payments. [15] When 935 ran out of money a further promissory note in the amount of $50,000.00 was also guaranteed by Mr. Vanderpol in respect of a further advance by the respondents. (“the July promissory note”) [16] The Petitioners filed their petition on April 16, 2013, seeking in respect to the second mortgage, among other things, an order nisi , an order declaring that the amount due and payable under the mortgage was $387,000.00 plus per diem interest of $98.63 interest at 12%., judgment against 935, judgment against Gerit Vanderpol pursuant to his covenant, and an order for judgment against 935 and Vandepol for default under the promissory notes dated May 16, 2012 and July 10, 2012. The petitioners also sought the appointment of a receiver. [17] On June 7, 2013, Madam Justice Brown granted all relief sought in the petition. She made four orders which may be summarized as follows: a) The Order Nisi - she granted an order nisi and an order that 935 and Vandepol pay the Petitioners the sum of $427,718.00 on their personal covenants plus costs. b) Conduct of Sale - she made a separate order for immediate sale granting conduct of sale to the Petitioners. c) Judgment on the promissory notes - (the claim on the promissory notes was included in the foreclosure petition) In a third order, pursuant to the promissory notes dated May 16, 2012, and July 10, 2012, she ordered 935 and Vandepol be jointly and severally liable to pay $620,050.41 plus interest. (Only the orders made against Mr. Vandepol personally are under appeal.) d) Order appointing a receiver - in the fourth order she appointed a receiver to collect the rents. [18] In her reasons for judgment, Madam Justice Brown noted that Vanderpol and Vanderpol Canada Inc. opposed the application. They had argued that the applications should be referred to the trial list or alternatively they should have the opportunity to cross-examine Mr. Liao on his affidavit. [19] She recounted that Mr. Vanderpol asserted that he and the petitioners reached a new agreement in September 2012, and that no moneys were currently payable under the mortgage and notes. She noted that the issue before her was whether there was a bona fide triable issue, or whether on the evidence there was a dispute as to the facts or law which amounted to a defence to be tried. After reviewing the evidence of the alleged amending or extension agreement the judge concluded that there was no enforceable agreement to vary the terms of the mortgage and promissory notes, and that there was no agreement in writing as was required by s. 59(3) of the Law and Equity Act , R.S.B.C. 1996, c. 253. She concluded that there was not a triable issue and refused to refer the petition to the trial list. [20] At the chambers hearing before Madam Justice Brown, Mr. Vanderpol had argued about the rate of interest, (he said it amounted to a criminal rate of interest, however, the Supreme Court chambers judge was satisfied that it did not); and also that there were some negotiations towards refinancing the arrangements between the parties. Mr. Vanderpol refers to a memorandum and draft agreements that he says evidence in writing the extension agreement. The respondents acknowledge that negotiations towards an extension took place but they deny that any agreement was concluded. In refusing to refer the matter to the trial list, the chambers judge found as a fact, that no agreement was reached to renegotiate the loans. [21] On July 5, 2013, Mr. Vandepol filed a Notice of Application for Leave to Appeal. The relief he sought was an order vacating the Order Nisi of June 7, 2013, and orders setting aside the orders appointing a receiver, granting judgment on the promissory notes, and as to conduct of sale. [22] On September 6, 2013, the application for leave to appeal came on before Mr. Justice Groberman. [23] First, Mr. Justice Groberman decided that Mr. Vanderpol did not require leave to appeal the summary judgment granted on the promissory notes. He made consequential orders regarding the filing of the appeal record and other matters. This order is not the subject of this application. [24] With respect to the foreclosure, Mr. Justice Groberman noted that an order in a foreclosure proceeding does require leave (s. 7 Court of Appeal Act and Rule 2.1(vii)). He noted that because Mr. Vandepol no longer sought any relief to stay or otherwise affect the foreclosure proceeding he considered that the only question remaining on appeal was Mr. Vandepol’s liability on the personal covenant. Largely because the associated appeal of the judgment on the promissory notes was proceeding as of right, Mr. Justice Groberman granted leave. He explicitly limited leave to the judgment on the personal covenant. No leave was granted from the “order nisi of foreclosure except to the extent that that order includes judgment on that personal covenant.” (at para 11). [25] Then he turned to the cross application for security for costs. [26] Mr. Justice Groberman gave brief reasons on this application: [14]      This is an application for security for costs. The law on security for costs of the appeal is fairly straightforward. In general the onus lies on the appellant to demonstrate why security should not be granted. At least where an individual appellant is involved, the Court will often decline to order security for costs where a meritorious appeal would be stifled by the order of security. [15]      I am satisfied from the background of this case and from the affidavit of Mr. Vandepol that he does not have easy access to assets or income that would allow him to post security for costs. If this were a meritorious appeal, I would therefore not make an order for security for costs. [16]      I have heard a great deal of argument this morning on the merits of the appeal. It is not an appeal that has no prospect whatsoever of success but it is almost in that category. The appeal will be a very, very difficult one to succeed on. On the face of it, the trial judge made a discretionary order to decide a matter summarily rather than referring to the trial list. The reasons that she gave, particularly the absence of an agreement in writing as required the Law and Equity Act , R.S.B.C. 1996, c. 253, appear on their face to be very sound reasons. [17]      I have granted leave to appeal the judgment of the personal covenant on the basis that it is closely intertwined with an appeal for which leave is not needed. I have concluded that, while there may be an iota of merit in the appeal, it is an appeal almost completely devoid of merit. I am not convinced that ordering security for costs would prevent an otherwise meritorious appeal from proceeding. [18]      In the circumstances, notwithstanding that Mr. Vandepol has limited ability to raise funds, I am ordering security for costs. Security has been sought in the amount of $15,000. I am prepared to grant partial security in this case, and I am ordering that security in half that amount: $7,500. [19]      The normal order of this Court is that proceedings are stayed until the security is deposited. That security shall be deposited by the close of business on October 7, 2013. The proceedings are stayed until such time as the security is deposited. [20]      I know that the respondent has asked for a guillotine order, i.e. an order dismissing the action in the event that security is not furnished. That is not the usual order of this Court. I am making an order only that security be deposited. In the event that security is not deposited by that date, then Mr. Andersen is at liberty to apply in chambers to have the appeal dismissed for non-compliance. [27] The order for security for costs applies to both the appeal (as of right) on the promissory notes, as well as the appeal on which leave was granted on the order nisi on the personal covenant. [28] The appellant says that he should not be required to pay security for costs. [29] He argues that he should not be precluded from pursuing a meritorious appeal for the reason that he is without financial ability to post security. He says that the partnership dispute (that is the dispute with the respondents) resulted in his inability to generate income from the business on the property. He argues “It is just not fair for the petitioner/applicants to take away the appellants ability to generate income and demand security for costs with respect to an appeal that is important not only to the applicant, but to the practice of law in British Columbia”. This statement is made despite the evidence that the income was income of 935, as I understand it, intended to cover its mortgage commitments. [30] Mr. Vandepol also argues in his affidavit in support of his adjourn application and in his chambers brief that the Supreme Court judge erred in granting summary judgment on the promissory notes because he had a meritorious defence to that claim. He says that his counsel was unaware until the hearing before Madam Justice Brown that the claim on his guarantee on the notes was included in the foreclosure proceeding. He contends, as already noted, that he had a good defence to the claims referring again to the agreements in writing that evidence the extension. These arguments made before Madam Justice Brown were also repeated again before Mr. Justice Groberman, but without success. [31] Mr. Justice Groberman concluded that the appeal was almost entirely devoid of merit. This Court will only discharge or vary an order of a single justice, pursuant to s. 9(6) of the Court of Appeal Act if the justice was wrong in law, he misconceived the facts, or certain relevant information was not brought to his attention. [32] It is not alleged that Mr. Justice Groberman erred in law. Rather as I understand Mr. Vanderpol’s argument, he says that the judge erred in his appraisal of the strength of the appeal. I see no basis on which to find that Mr. Justice Groberman erred in principle or misapprehended the facts relevant to the strength of the appeal. [33] I would dismiss the application to vary Mr. Justice Groberman’s order requiring Mr. Vanderpol to post $7,500.00 as security for costs. [34] The time has long since passed for Mr. Vanderpol to post the security. Mr. Andersen in commendably fair submissions indicated that one possible order this court might make is to grant Mr. Vanderpol a short extension to post the security. [35] I am of the view that it is appropriate to grant Mr. Vanderpol a further indulgence by extending the time to post security to February 14, 2014. In doing so, however, the appeal itself will continue to be stayed. This Court generally frowns upon so called “guillotine orders” However, in the unusual circumstances of this case, it is my view that it is unfair and unnecessary to require the respondents to re-attend in chambers, and apply once again to strike this appeal, in the event that Mr. Vanderpol fails to comply with the order I would make today. Accordingly, I would order that this appeal should stand dismissed in the absence of compliance with Mr. Justice Groberman’s order by February 14, 2014. [36] I would order that it is not necessary to obtain Mr. Vandepol’s approval of the form of this order and I would ask Mr. Andersen to forthwith draft and enter this order and notify Mr. Vandepol of the terms of this order. [37] A. MACKENZIE J.A. : I agree. [38] WILLCOCK J.A. : I agree. [39] GARSON J.A. : It is ordered that there be an extension of time for Mr. Vandepol to post security to February 14, 2014. [40] This appeal will stand dismissed if he fails to post the security ordered by Mr. Justice Groberman on or before the close of business on February 14, 2014. [41] It is not necessary to obtain his approval on this order, and I also require Mr. Andersen to forthwith draft and enter the order and to immediately notify Mr. Vandepol of the terms of the order. [42] I will also order that the order may be served by email. Mr. Andersen has indicated that he has Mr. Vandepol’s email address. “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Dreger, 2014 BCCA 54 Date: 20140131 Docket: CA041105 Between: Regina Respondent And Corrina Dawne Dreger Appellant Before: The Honourable Mr. Justice Tysoe The Honourable Madam Justice Bennett The Honourable Mr. Justice Goepel On appeal from: An order of the Provincial Court of British Columbia, dated May 3, 2013, ( R. v. Dreger , Nanaimo Registry No. 75876-1) Oral Reasons for Judgment Counsel for the Appellant: F. Arbabi Counsel for the Respondent: S. Hulko Place and Date of Hearing: Vancouver, British Columbia January 28, 2014 Place and Date of Judgment: Vancouver, British Columbia January 31, 2014 Summary: The appellant pleaded guilty to fraud and was sentenced to five years’ imprisonment. She appealed her sentence. Held: The appeal was granted and the sentence was reduced to four years’ imprisonment. The sentencing judge erred in treating the appellant’s perceived lack of remorse as an aggravating factor. The restitution order made by the sentencing judge was upheld. [1] BENNETT J.A. : Corrina Dreger was employed for seven years by Collins Custom Contracting Corporation (the Company), a small family owned company located in Parksville, B.C. Ms. Dreger was the bookkeeper for the company and, in that trusted position, defrauded her employer of $245,514.05, over a period of about seven years. She was sentenced to five years’ imprisonment, and now applies for leave to appeal this sentence. I. FACTS [2] The Company has been in the business of building custom, high end homes for 35 years. John Collins is the principal of the company, which has about 47 employees. Ms. Dreger was hired on April 29, 2002. She set up the accounting and bookkeeping systems, using Simply Accounting. This program allows for credits and debits to be allocated to different categories, including shareholders loans. Only Ms. Dreger and Mr. Collins had full access to the accounts. Mr. Collins trusted Ms. Dreger implicitly. When he was away he would leave signed blank cheques for her to deal with payments that needed to be made. She handled millions of dollars each year. [3] In December 2003, Ms. Dreger wrote herself two cheques: one for $400 and one for $100. She posted those cheques to shareholders loans. Over the course of the next seven years, Ms. Dreger took money from the company to pay for her Visa and other household bills, and sometimes double paying herself. She took approximately $1900 in 2005, $700 in 2006, $16,000 in 2007, $24,000 in 2008, $47,000 in 2009, $63,000 in 2010, $100,000 in 2011, and $4,000 in 2012 before she was caught. [4] Her Visa bill reflects that she spent money on day-to-day living expenses, trips, lottery tickets, cash advances, clothing, restaurants, and so on. Her salary began at $14.00 per hour in 2002, and had risen to $17.00 per hour in 2012. [5] During the course of her employment, Mr. Collins paid for her to attend hockey games in Vancouver, paid to finish the home she purchased with her parents, bought appliances for the home, gave her a generous leave when her father was ill and loaned her a down payment for her house. [6] Each year the significant losses endured by the company as a result of the fraud came to light at the financial year end (January 31), which took away from profit-sharing and bonuses for other employees and put Mr. Collins in a position where he did not know if he could continue with projects. [7] When he asked Ms. Dreger about the financial difficulties, she blamed the losses on Mrs. Collins’ extravagant spending habits. Unfortunately, Mr. Collins believed Ms. Dreger, and not his wife. When the fraud came to light, the marriage ended, in part because of Mr. Collins’ misplaced distrust of his wife. [8] Ms. Dreger’s brother, Ken Dreger, was the outside accountant responsible for auditing the company’s books. When he asked her about some of the expenses, she told him the company had a bad spending habit. There is no suggestion that Mr. Dreger was complicit in the fraud. [9] In March 2011, Ms. Dreger went on stress leave. A new bookkeeper, Ms. Ruf, was hired to replace her. Ms. Ruf began to go through the accounts and bank reconciliations. She found a number of problems with the accounts, including a Visa card that had significant payments made to the account, but could not be located within the company. After considerable checking, she and Mr. Collins discovered that Ms. Dreger was the owner of the Visa card. [10] On May 19, 2011, Mr. Collins contacted the RCMP and retained a forensic accounting firm to conduct a complete audit. The fraud in excess of $245,000 was discovered. [11] Mr. Collins confronted Ms. Dreger with the fraud on May 31, 2011. Initially, she denied the acts, but then admitted she committed the fraud. [12] She was charged on October 4, 2012, and pleaded guilty on January 29, 2013. She consented to a civil judgment in the sum of the fraud, eliminating the need for a civil trial in the matter. [13] An order for restitution was made as part of the sentence. Ms. Dreger has paid nothing towards restitution since being caught in May 2011. A. Ms. Dreger’s Circumstances [14] Ms. Dreger is now 45 years old. She grew up in a stable family environment, although the family moved frequently for her father’s work. She completed high school in Nanaimo and worked at a variety of jobs. Her son was born in 1992. Unfortunately, her son’s father, her fiancé, was killed in a trucking accident in 1994. She returned to college in her early thirties. When she was hired by Mr. Collins in 2002, Ms. Dreger was around 33 years old. She had just finished an office administration and bookeeping course at Malaspina College, and was the single parent of a ten year old son. [15] When she began stealing from Mr. Collins, she was living a very frugal existence. She came to enjoy the more comfortable lifestyle she had as a result of stealing from Mr. Collins, and her fraud escalated significantly. [16] Ms. Dreger reunited with an old friend and they married in June 2009. Unfortunately, her new husband died in November 2009 from a diabetes related illness. [17] Ms. Dreger’s father died after the offences were revealed, but before she was sentenced. [18] She has been diagnosed with an anxiety disorder, and takes medication for this condition. [19] Ms. Dreger submitted a letter to the sentencing judge expressing her remorse. I cannot express how ashamed I am of the actions and choices that I had taken that have brought me to this point in my life and I regret all of the pain, the hurt and the broken trust that I have caused to John Collins and wish that I could take it all back. I used to blame how John treated me as to why I did it but I can't blame others as no one forced me to do what I did. Getting caught helped me face how bad things had gotten in my life. I am not a bad person and I am working at changing my life as I don't want what I did to define me or my life. I accept whatever the court feels is an appropriate punishment and I look forward to paying for my crime and moving past it. I would like to take this time to apologize to the court, to Mr. Collins, and to my family for all of the trouble and turmoil that I have caused. I'd also like to apologize to my family for the shame and the embarrassment that I have brought to them and to thank them for all of the support, understanding, and unconditional love that they have given to me in spite of this. Thank you. [20] On the date of the sentencing, the Crown produced a print-out from a website blog that had been written by Ms. Dreger. In it she talks about her life, and her “dream job”. She then makes unfounded and derogatory allegations against her employer, and indicates his conduct is why she left her job. She does not mention the fraudulent acts. B. Victim Impact [21] The offence had a serious impact on Mr. Collins. His business was significantly damaged, and he is still trying to rebuild it. His marriage fell apart and, he “lost his family”. He feels completely betrayed by Ms. Dreger’s actions. He stated: It is impossible to put into words the amount of stress, strain and anguish that I have endured and am still enduring every day. The large financial losses are just a small part of this. The personal loss to me can never be repaired. [22] At the sentencing hearing, counsel agreed that the normal range of sentence was three to five years. Counsel for Ms. Dreger sought a conditional sentence order and the Crown sought a four year sentence. C. Sentencing Judge’s Reasons [23] The sentencing judge set out the circumstances of the offence, and then discussed the sentencing range, which, as noted above, was agreed to be between three and five years. He referred to this court’s decision in R. v. Gaugler , 2011 BCCA 508, and quoted this court in terms of the range: The Crown sought a sentence in the range of three to five years. This position, no doubt, reflects the guilty plea and other mitigating factors, as the outside end of the sentencing range is potentially much higher. The sentencing judge then said, “I think it more accurate to say that the range of sentence in this kind of case where there is a guilty plea is three to five years” (emphasis added). [24] He then said that the second mitigating factor was that Ms. Dreger had no criminal record. He said this was true of many of the cases put before the court. He concluded that this was not a mitigating factor that could reduce the sentence below three to five years. [25] He then considered the aggravating factors, which I have summarized as follows: 1) Ms. Dreger exposed her brother to the risk of criticism and perhaps professional disciplinary proceedings. 2) The offences had a severe impact on Mr. Collins and his company, which is an aggravating circumstance under s. 380.1 of the Criminal Code , R.S.C. 1985, c. C-46. 3) The offence was a breach of trust. 4) There had been no attempt at restitution. 5) Her expression of remorse lacked genuineness. [26] As for the impact of the offence on Mr. Collins, and specifically its role in the break-up of Mr. Collins’ marriage, the sentencing judge said this: [20]      Mr. Collins and his wife have since parted company. He takes responsibility for that. He says that a very significant factor in the breakup of their marriage was the false accusation which he levied against his wife and, as he puts it, the fact that he chose to believe Ms. Dreger rather than his wife. I can well imagine the agony that has caused him. [21]      Sadly, even at this trial, Ms. Dreger does not take responsibility for that. She says, through her counsel, that the Collins’ marriage was on the rocks anyway. That is very distressing. [27] In submissions, counsel for Ms. Dreger had said this about the marriage: And she felt that this marriage was already deteriorating. It was her understanding well before the fraud was discovered that Mr. Collins and his spouse had been separated and that the ultimate demise of the marriage, she’s certainly not questioning it was contributed to by her fraud, but she wants it to be clear that it may be a mistake for Your Honour to conclude that because of her fraud, that caused the marriage to end. Life is much more complicated than that, and I submit that her version of it perhaps has a ring of –– ring of truth to it. [28] The sentencing judge later found that this submission detracted from the genuineness of her expression of remorse because she did not accept responsibility for the impact the fraud had on Mr. Collins marriage. [29] In assessing the authenticity of Ms. Dreger’s remorse for the fraud the sentencing judge said: [24]      A fourth aggravating factor is my concern at the expression of remorse made by Ms. Dreger here at the sentencing hearing. When first confronted with her fraud by Mr. Collins, she said, “I am sorry. I don’t know why I did it.” Here at the sentencing hearing, she made a much more fulsome expression of remorse for the fraud but not, as I hear her, for the impact on Mr. Collins’ marriage. [25]      I am concerned about the sincerity of that expression of remorse by the fact that there is, even today, posted on a website used by Ms. Dreger, a public statement accusing Mr. Collins of sexually harassing her and mentally abusing her during the course of her employment. The fact that she could make that allegation in a public forum, even today, indicates to me a lack of sincere concern for the impact which her crime has had upon Mr. Collins. [30] The sentencing judge concluded that these “aggravating factors” justified a sentence at the upper end of the range, and as noted, imposed a sentence of five years. II. LAW [31] At the commencement of the offence in 2003, the maximum penalty for fraud pursuant to s. 380 of the Criminal Code was ten years. On September 15, 2004, the legislation was amended and the maximum penalty increased to 14 years. At the same time, s. 380.1 came into force, which codified aggravating circumstances for the purpose of sentencing in fraud cases. Section 380.1 was amended again on November 1, 2011, adding more aggravating circumstances, one of which was relied on by the sentencing judge and is set out below: ( c.1 ) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation. [32] The sentencing judge was correctly told that the maximum sentence was ten years. [33] Section 11(i) of the Canadian Charter of Rights and Freedoms states: 11. Any person charged with an offence has the right (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. [34] The question of whether the increase in the available maximum penalty (14 years from ten years) fell under s. 11(i) was not argued in this appeal, and I do not think it affects the resulting sentence as the sentencing judge was aware of the ten year maximum. [35] It also was not argued that the change in the Criminal Code sections presented a Charter issue, however, given the sentencing judge’s reliance on s. 380.1( c.1 ), which was not in force at the time the offences were committed, it is appropriate to address it. In terms of the recent codification of aggravating factors, it is clear that the effect of fraud on vulnerable victims would have been an aggravating factor that could have been taken into account by a sentencing judge regardless of the amendment. Thus, it was an appropriate factor for the sentencing judge to consider in this case. III. THE PARTIES’ POSITIONS [36] Ms. Dreger submits that the sentencing judge erred in his analysis of the submissions before him, and in his reliance on factors which were not, in law, aggravating factors. She submits that the sentence should be reduced to three years. [37] The Crown submits that the sentencing judge did not err, but if he did, the sentence was not demonstrably unfit and the appeal should be dismissed. IV. DISCUSSION [38] The standard of appellate review of a sentence is well-known, and set out in R. v. C.A.M. , [1996] 1 S.C.R. 500 at para. 90: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. [39] I would first like to discuss the so-called “range of sentence”. At the time of the commission of these offences, there was no minimum sentence (one was introduced in 2011 for offences where the sum stolen was in excess of $1 million). Therefore, the theoretical range of sentence was a suspended sentence (or fine) and ten years (now 14) in prison. [40] The range of sentence is, in part, an expression of the parity principle found in s. 718.2( b ) of the Criminal Code : ( b ) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [41] In R. v. A.J.C.; R. v. Joseph , 2004 BCCA 268 at para. 35, 186 C.C.C. (3d) 227, Finch C.J.B.C. said that sentencing ranges “serve merely as guidelines” and are “not conclusive of the appropriate sentence in any given case”. In R. v. D.D. (2002), 163 C.C.C. (3d) 471 (Ont. C.A.) at para. 33, Moldaver J.A. said: Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases. [42] Indeed, in R. v. Nasogaluak , 2010 SCC 6, the Court said, at para. 44: The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code . But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [Emphasis added.] [43] In this case, the sentencing judge concluded that the range of sentence for fraud with a guilty plea was three to five years. In finding this, he relied on this court’s observation in Gaugler , noted above. In concluding this was the appropriate range, the sentencing judge failed to take into account that Ms. Gaugler stole $2.4 million dollars over a ten-year period, which is the rationale behind saying the range could have been much higher. She received a sentence of four years. Thus, the sentencing judge began with a wrong premise, and as a result, did not give sufficient weight to Ms. Dreger’s guilty plea. [44] I turn to the aggravating and mitigating circumstances. These factual circumstances help the judge to craft a sentence, along with the principles of sentencing, and in particular, the fundamental principle of proportionality (s. 718.1, Nasogaluak at paras. 41-42) where the judge examines the moral blameworthiness of the offender and the circumstances of the offence. [45] Simply, an aggravating factor is one that will tend to increase the severity of the sentence, whereas a mitigating factor will weigh in favour of a more lenient sentence. If the accused disputes an aggravating factor the Crown has the burden of proving the factor beyond a reasonable doubt: R. v. Gardiner , [1982] 2 S.C.R. 368. If the Crown disputes a mitigating factor, the accused has to prove the factor on a balance of probabilities: s. 724(3)( d ) of the Criminal Code . The accused is not entitled to rely on disputed mitigating factors in the absence of such proof: R. v. Holt (1983), 4 C.C.C. (3d) 32 at 51-52 (Ont. C.A.) , leave to appeal ref’d [1983] S.C.C.A. No. 474. [46] In this case, the sentencing judge correctly considered the breach of trust as an aggravating factor. He also correctly identified the significant detrimental effect on Mr. Collins and his company as an aggravating factor. While there was no evidence that Ms. Dreger’s brother was facing criticism or disciplinary proceedings, it is a reasonable inference that the outside auditors would likely face difficulties as a result of her conduct. Ms. Dreger did not dispute this fact when alleged by the Crown, and in my view, the effect on others is a relevant circumstance to consider. [47] Where the sentencing judge erred is in his treatment of Ms. Dreger’s remorse. It is clear from the reasons that the sentencing judge did not accept her expression of remorse as genuine, which he is entitled to do, however, he went on to treat this as an aggravating factor. [48] The sentencing judge considered the fact that she did not make any effort at restitution, that, in his view, she did not accept responsibility for the demise of Mr. Collins’ marriage, and that she posted the blog. The judge considered these as factors that detracted from her expression of remorse and as aggravating factors . [49] Courts of appeal are not consistent on the question of whether lack of remorse can ever be an aggravating factor in sentencing. The New Brunswick Court of Appeal in R. v. Nash 2009 NBCA 7, leave to appeal ref’d [2009] S.C.C.A. No. 131, stated that a failure to express remorse could only be considered an aggravating factor in exceptional circumstances. The Nova Scotia Court of Appeal has set out a similar principle: R. v. Hawkins , 2011 NSCA 7. [50] However, this Court has been clear that lack of remorse is not an aggravating factor. In R. v. Muhammad , 2004 BCCA 396 at paras. 9-10, Hall J.A. said this: [9]        I had occasion, recently in a case, to refer to the Zeek [ R. v. Zeek , 2004 BCCA 42] case and other cases that dealt with this difficult question of how remorse is to be treated in questions of sentence. The principle that I gleaned from the cases is that lack of remorse is not an aggravating factor, but if an accused displays remorse that is something that can work in favour of an accused person. The way I would put it is that lack of remorse is a somewhat neutral factor in sentencing, but if an accused demonstrates remorse, it may lead the court to conclude that the accused has begun on the road to rehabilitation by recognizing that the conduct he or she engaged in was unacceptable. To that extent remorse can be treated as a positive circumstance that might reduce what would be an otherwise fit sentence for a particular offence. [10]      In the instant case, I consider that the learned trial judge fell into error when she stated that lack of remorse could be an aggravating factor. That however, leaves the question at large as to whether or not that particular error should lead to the allowance of this appeal. I note that in the Zeek case, although it was found to be error to treat lack of remorse as an aggravating circumstance, that appeal was dismissed because the court was not persuaded that the sentence imposed was an unfit one. [51] The issue was not fully argued in this appeal, thus I would not entirely close the door to an argument that a lack of remorse could be an aggravating factor in the most exceptional case; where, for example, it demonstrated that the accused, by virtue of his attitude toward his offending, was a risk to the public. If such an exception exists, this case does not fall within it, and in my respectful opinion, the sentencing judge erred by treating a lack of remorse as an aggravating factor. [52] The next question is whether those errors led the sentencing judge to impose a demonstrably unfit sentence. In my respectful view, it did. [53] We have been referred to a number of sentencing decisions from all courts in this province. Each case will turn on its own facts. We were provided with sentences within the range of three to five years, and while I agree that this offender fits within that range, it would be incorrect to see this as an inflexible set range of sentence. [54] This Court examined the availability of different ranges of sentences for fraud in R. v. Bodnarchuk , 2008 BCCA 39 at para. 11: [11] Burkart [2006 BCCA 446] and Dickson [2007 BCCA 561] recognize that, in accordance with the Criminal Code and the authorities, conditional sentences should be considered in every case where the minimum criteria are met. As the Chief Justice said in Dickson (at para. 35): Applying the law as laid down in Proulx , the proper approach when the minimum criteria for a conditional sentencing order are met is to consider, taking into account the fundamental purpose and principles of sentencing, whether there are sufficient reasons for not imposing a conditional sentence, or whether there are considerations which would mandate imprisonment, even though a conditional sentencing order would otherwise be appropriate. There is no presumption one way or the other. See also paras. 63-64, where the Chief Justice said: This Court has said more than once that general deterrence is central to the sentencing process in cases involving large scale frauds with serious consequences for the victims. In many cases, convictions for serious fraud have led to the imposition of custodial sentences: see R. v. Khan , [2002] B.C.J. No. 2950, 2002 BCCA 703 and R. v. Autenreith , [2003] B.C.J. No. 2291, 2003 BCCA 521. However, in cases of serious fraud or serious theft where there are extreme personal mitigating circumstances, the courts have held that the principle of general deterrence can be satisfied by a conditional sentence: see R. v. Bunn , [2000] 1 S.C.R. 183, R. v. Kratky , [1997] B.C.J. No. 3167 BCSC and R. v. Anderson-Davis , [2000] B.C.J. No. 88, 2000 BCSC 42. [55] The sentencing principles are set out in ss. 718 to 718.2 of the Criminal Code . This case involves a significant fraud, motivated by greed. Ms. Dreger pleaded guilty very early in the proceedings, and she consented to a civil judgement in the amount of the fraud, saving Mr. Collins from a civil trial. She has no criminal record. When the offences began she was a single mother, raising a young child after his father, her fiancé, died. She has suffered other losses in her life, including her husband and more recently, her father. [56] She gave a statement to the court apologizing for what she had done and indicated remorse for her actions. She did not take full responsibility for the breakdown of Mr. Collins’ marriage, but she did accept considerable responsibility. I do not think this latter fact weighs against her. [57] However, she did post a blog which said scurrilous things about Mr. Collins. She did not name him, but it is clear to anyone who knows the people involved, to whom she is referring. In her statement to the court she said she no longer blamed her actions on his conduct, but she did not remove the blog. This blog is a factor that can be taken into account to reduce the weight to give to her expression of remorse. [58] Ms. Dreger took a substantial sum of money from her employer, who had trusted her implicitly. This occurred over a seven year period. Her crime had a significant effect on her employer and his company, as well as other employees and the outside auditors. Her moral blameworthiness is high, and general deterrence is a significant sentencing factor. It is clear that a term of imprisonment is required, and her counsel does not now suggest otherwise. Weighing all of the circumstances and applying the principles of sentencing, I conclude that a sentence of four years is a fit sentence. [59] I should comment on the restitution order. It is clear that Ms. Dreger has no money to make restitution. The sentencing judge tacked on the restitution order after he imposed a sentence. This is not the correct approach to the imposition of a restitution order. A restitution order is part of the sentence, and should not be an “afterthought”: R. v. Nanos , 2013 BCCA 339 at para. 14. In Nanos , this court set out the correct approach to imposing a restitution order as a stand-alone order. The court also confirmed the principle that where the offences involve theft or breach of trust restitution should be ordered to compensate the victim, even if the offender has little or no ability to pay, because an offender should be deprived of the “fruits of his crime” (para. 17). [60] Therefore, I would not interfere with the restitution order. V. CONCLUSION [61] I would grant leave to appeal, allow the appeal and set aside the sentence of five years and substitute a sentence of four years in prison. I would not disturb the order for restitution. [62] TYSOE J.A. : I agree. [63] GOEPEL J.A. : I agree. [64] TYSOE J.A. : Leave to appeal is granted. The appeal is allowed. A sentence of five years’ imprisonment is set aside and a sentence of four years’ imprisonment is substituted in its place. “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: United States of America v. Lopez-Turatiz, 2014 BCCA 39 Date: 20140131 Docket:  CA039463 Between: Attorney General of Canada on behalf of the United States of America Respondent (Applicant/Requesting State) And Leandro Lopez-Turatiz a.k.a. Chino Appellant (Respondent/Person Sought) And Between: Leandro Lopez-Turatiz a.k.a. Chino Applicant And Minister of Justice Respondent Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Frankel The Honourable Mr. Justice Tysoe On appeal from:  An order of the Supreme Court of British Columbia, dated October 7, 2011 ( U.S.A. v. Lopez-Turatiz , 2011 BCSC 1336, Vancouver Docket No. 25414), and On judicial review from:  An order of surrender issued by the Minister of Justice on April 3, 2012 Counsel for the Appellant/Applicant: M.B. Rankin Counsel for the Respondents: S.M. Repas Place and Date of Hearing: Vancouver, British Columbia October 21, 2013 Place and Date of Judgment: Vancouver, British Columbia January 31, 2014 Written Reasons by: The Honourable Mr. Justice Frankel Concurred in by: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Tysoe Summary: The United States sought L.-T.’s extradition on a charge of premeditated first degree murder.  The prosecution is based on circumstantial evidence.  Following L.-T.’s committal by an extradition judge, the Minister of Justice ordered his surrender on that charge.  L.-T. appealed the committal and sought judicial review of the Minister’s decision.  Held:  Appeal and application for judicial review dismissed. The extradition judge did not err in refusing to order disclosure with respect to the forensic evidence contained in the record of the case (i.e., the collection and analysis of blood samples and fingerprint examination).  L.-T. was unable to point to anything that could undermine the accuracy and reliability of that evidence. The Minister did not err in declining to weigh the strengths and weaknesses of the evidence. The possibility that the prosecutor might seek to amend the charge to include an allegation of felony murder was so remote that it was not a basis for refusing surrender.  It was, accordingly, unnecessary to decide whether the fact that the “constructive murder” provisions of the Criminal Code, the Canadian equivalent of felony murder, have been held unconstitutional, precludes surrender on a felony murder charge.  On the arguments presented it was both unnecessary and impossible to decide whether the rule of specialty would preclude the prosecutor from seeking to amend without Canada’s consent. Reasons for Judgment of the Honourable Mr. Justice Frankel: INTRODUCTION [1] The United States of America seeks to extradite Leandro Lopez-Turatiz to stand trial in the State of Nevada on a criminal complaint charging him with premeditated first-degree murder.  After Mr. Lopez was committed for extradition on the Canadian offence of “Murder”, the Minister of Justice ordered his surrender on the charge set out in the complaint. [2] Pursuant to s. 49 of the Extradition Act , S.C. 1999, c. 18, Mr. Lopez appeals from the order of committal on the basis that the extradition judge erred in dismissing his application for additional disclosure relating to forensic evidence tendered at the extradition hearing.  In addition, he applies, pursuant to s. 57 of the Extradition Act , for judicial review of the order of surrender.  His primary ground on the review is that the Minister erred by surrendering him for trial in a jurisdiction where a person can be convicted of murder under the “felony murder rule”, a rule which has been held unconstitutional in Canada.  Mr. Lopez further says the Minister erred by declining to consider the weakness of the prosecution’s case. [3] For the reasons that follow, I would dismiss both the appeal and the application for judicial review. THE PROSECUTION’S CASE [4] The State of Nevada alleges Mr. Lopez shot and killed Francisco Lambert-Cordero at a residence in Las Vegas and then moved Mr. Lambert’s body to another location. The evidence against Mr. Lopez is circumstantial.  There are no witnesses who can give evidence directly implicating him in the shooting. [5] The record of the case (“ROC”) and supplemental record of the case (“SROC”) filed by the Attorney General of Canada at the extradition hearing set out, in summary form, the evidence available to the Nevada prosecutor.  That evidence discloses the following: (a)      Mr. Lopez and Mr. Lambert were friends who arrived in Florida from Cuba in January 2007.  Mr. Lambert remained in the Miami area and Mr. Lopez moved to Las Vegas; (b)      In December 2008, Mr. Lopez travelled to Miami to meet Leonardo Torres-Machado along with Mr. Lambert.  Mr. Lopez and Mr. Lambert used Mr. Torres to purchase a white, 2001 four-door Mercedes-Benz, which the three of them used to drive to Las Vegas; (c)      Mr. Torres rented a residence on Collingwood Street in Las Vegas for Mr. Lopez and Mr. Lambert because neither of them had proper identification.  Mr. Torres never returned to the residence after that; (d)      Mr. Torres registered the Mercedes-Benz in his own name in Nevada, using the Collingwood Street address; (e)      The Mercedes-Benz was the only vehicle the landlord of the Collingwood Street residence saw being driven by Mr. Lopez, Mr. Lambert, and Mr. Torres; (f)       On May 19, 2009, police officers who responded to a report of a fire in the Las Vegas Valley found burnt bed sheets with blood stains.  The person who reported the fire had seen a white vehicle leaving the area; (g)      On May 21, 2009, a civilian discovered Mr. Lambert’s body in a remote area near Las Vegas covered with pine boughs.  That area is some distance from where the burning sheets were found.  Based on the state of the body, detectives with the Las Vegas Metropolitan Police Department (the “LVMPD”) who attended at the scene estimated it had been placed there within the preceding 48 hours; (h)      An autopsy conducted by a forensic pathologist determined that Mr. Lambert died from a bullet wound to the back of his head; (i)       On May 21, 2009, Mr. Lopez called Mr. Torres and told him to discontinue the utilities, electricity and gas services at the Collingwood Street residence because Mr. Lambert had returned to Florida; (j)       Mr. Lopez introduced Yurisleivy Morales to the landlord of the Collingwood Street residence as the person who would be taking over the lease as of May 23, 2009; (k)      On May 27, 2009, Mr. Lopez went to Mr. Torres’s residence wanting to sell him the Mercedes-Benz.  Mr. Lopez again told Mr. Torres that Mr. Lambert had returned to Florida; (l)       On May 29, 2009, LVMPD detectives executed a search warrant at the Collingwood Street residence, where they found: (i)       Mr. Morales; (ii)      a dirty and unkempt premises; (iii)      a marihuana grow-operation; (iv)     in the dining room area which appeared to have been recently cleaned, blood spatter (i.e., a pattern consistent with the movement of a body or object shedding blood); and (v)      a latent handprint, in blood, on a garage wall; (m)     A LVMPD crime-scene investigator collected swabs of blood from the walls, baseboards, staircase carpet and handprint at the Collingwood Street residence; (n)      A LVMPD forensic scientist determined that the blood from the residence and the burnt sheets matched that taken from Mr. Lambert’s body at the autopsy; (o)      A LVMPD latent-print examiner determined that prints in the blood on the garage wall matched those of Mr. Lopez; and (p)      On July 13, 2009, LVMPD detectives located the Mercedes-Benz.  In the trunk they found two suitcases which contained identification and clothing belonging to Mr. Lopez and Mr. Lambert. COMMITTAL APPEAL Reasons for Committal (2011 BCSC 1336) [6] The extradition hearing took place in the Supreme Court of British Columbia before Associate Chief Justice MacKenzie (as she then was).  She committed Mr. Lopez for extradition on October 7, 2011. [7] In opposing committal, Mr. Lopez took the position that the evidence referred to above was not sufficient to warrant his committal for the Canadian offence of murder ( Criminal Code , R.S.C. 1985, c. C-46, s. 229).  More particularly, he submitted that it was lacking with respect to the issues of identification and mens rea .  As Mr. Lopez no longer advances those arguments, I will only refer to a few passages of the extradition judge’s reasons. [8] With respect to identification, the judge stated: [47]      The evidence permits the following reasonable inferences:  Mr. Lambert was killed at the Residence; Mr. Lopez and very few others had ties to the Residence; Mr. Lopez was present at the Residence at the time, or close to the time of Mr. Lambert’s death; Mr. Lopez had contact with a significant amount of Mr. Lambert’s blood; and that Mr. Lopez controlled access to the vehicle used to transport Mr. Lambert’s body to the remote location. [48]      This hearing is not a trial where guilt must be proved beyond a reasonable doubt; instead it is a proceeding which requires the application of the s. 29(1)(a ) prima facie test (as amplified by [ United States of America v. Ferras , 2006 SCC 33, [2006] 2 S.C.R. 77) to the summary of the evidence.  All the evidence discussed above properly forms the basis for reasonable inferences upon which a reasonable, properly instructed jury could find that Mr. Lopez was the offender. [9] With respect to mens rea , she stated: [49]      Again, based on the evidence summarized in the Records, Mr. Lopez’s assertion that the Requesting State’s evidence consists of mere conjecture and speculation is without merit.  This was a homicide in which a jury could infer that the offender had the intent to kill Mr. Lambert.  Mr. Lambert was shot in the back of the head; there could be little suggestion of accident, or self-defence.  The offender then tried to conceal his involvement in the homicide in the manner described above. The evidence of the post-offence conduct is circumstantial evidence of guilt of manslaughter but is not evidence on which a jury could infer the mens rea for murder.  However, the nature of the wound (gunshot) and its location (through the back of the head) is evidence from which the specific intent required for murder could be inferred. [50]      Finally, a strong inference arises that Mr. Lopez knew of Mr. Lambert’s death because his handprint depicted in Mr. Lambert’s blood was on the garage wall of the Residence.  Also, more than a week after Mr. Lambert’s death, Mr. Lopez told Mr. Torres that Mr. Lambert had left for Miami.  In all the circumstances, it is reasonable to infer therefore that he did so because he killed Mr. Lambert. . . . [52]      Although other inferences may be open on the evidence, it is reasonable to infer that Mr. Lopez shot Mr. Lambert in the back of the head, tried to clean up blood from the crime scene, transported the body away in the white Mercedes and dumped it in a remote location.  Furthermore, it is reasonable to infer that he lied to Mr. Torres about the whereabouts of Mr. Lambert in order to hide his role in Mr. Lambert's homicide. The Disclosure Application [10] During the extradition hearing Mr. Lopez sought an order for disclosure with respect to the forensic evidence relating to the fingerprints and blood found on the garage wall.  That evidence was set out as follows in the ROC: 7.         Crime Scene Investigator Sheree Norman will testify she processed the scene at [address omitted] Collingwood Street and collected swabs of apparent blood from walls, baseboards, staircase carpet, and a hand print in apparent blood on the garage wall. . . . 10.       Kristina Paulette, LVMPD Forensic Scientist II, will testify that DNA comparison analysis will identify the hand print in apparent blood, found at [address omitted] Collingwood Street and recovered from the garage wall, as the blood of Lambert-Cordero. 11.       Marnie Carter, LVMPD Latent Print Examiner, will testify that the latent prints in Lambert-Cardero’s blood recovered from the garage wall match the exemplar prints of Lopez-Turatiz obtained from Canadian authorities. [11] Additional information was provided in the SROC: 8.         With respect to paragraph 10 of the original Record, the following information is provided:  the detectives will testify that the blood recovered from [address omitted] Collingwood Street was that of Lambert-Cordero through a DNA analysis which compared blood recovered from the residence with Lambert-Cordero’s blood collected at autopsy.  Kristina Paulette will testify that she is a recognized expert as a forensic scientist with the Las Vegas Metropolitan Police department forensic laboratory, having testified as such in Nevada and other state courts.  Ms. Paulette will testify that she conducted the analysis of the victim’s blood from the autopsy and matched it to the blood recovered at the residence. 9.         With respect to paragraph 11 of the original Record, the following information is provided:  Officer Clarence Lo, with the Canadian Border Services Agency, is expected to testify that he arranged to have a full set of prints collected of Lopez-Turatiz once he was detained by CBSA.  Officer Lo transmitted the collected prints, which included palm prints, to Detective Hanna electronically.  The detective will testify that he provided the prints to Marnie Carter, a recognized expert in latent print examinations, who conducted the fingerprint analysis. [12] In his written submissions on the application, Mr. Lopez described what he was seeking as follows: (1)        Notes of Sheree Norman, including her C.V., who processed the scene (undated), and a copy of the lift of a “handprint in apparent blood on the garage wall”.  Described in number 7 from the certificate of Record of the Case for the Prosecution; (2)        Reports and Notes of Kristina Paulette, LVMPD Forensic Scientist II, including her C.V., who will testify on DNA and will identify the “hand print in apparent blood on the garage wall”.  Described in number 10 from the certificate of Record of the Case for the Prosecution; and (3)        Report and Notes of Marnie Carter, LVMPD Latent Print Examiner, including her C.V., who will testify “latent prints and apparent blood on the garage wall” match the exemplar prints of Lopez-Turatiz obtained from Canadian sources.  Described in number 11 certificate [ sic ] of the Record of the Case for the Prosecution. [13] In dismissing the application, the extradition judge said ( U.S.A. v. Lopez-Turatiz (September 6, 2011), Vancouver 25414 (B.C.S.C.)): [23]      Mr. Lopez only argues that the disclosure requested is relevant to whether the fingerprint and DNA evidence, as summarized in the ROC and SROC, is reliable . He says that the disclosure is necessary to challenge the reliability of that forensic evidence. [24]      In my view, Mr. Lopez’s argument overlooks the effect of the certification of the evidence as summarized in the ROC and SROC. The certification creates a presumption of reliability and availability of that evidence.  Mr. Lopez has neither demonstrated any apparent defect in the ROC or SROC through his submissions, nor adduced any evidence for an air of reality to his assertion that the certified evidence is manifestly unreliable or unavailable. . . . [27]      There is no merit to Mr. Lopez's application for disclosure that goes beyond the certified evidence because he has not adduced evidence or advanced argument to rebut the presumptions of reliability and availability arising from certification of the Records of the Case. [28]      Mr. Lopez's application amounts to an attempt to garner evidence to challenge the ultimate reliability of the forensic evidence at issue as discussed at para. 58 of [ United States v. Rosenau , 2010 BCCA 461, 262 C.C.C. (3d) 515, leave to appeal ref’d [2011] 1 S.C.R. x]. [29]      This request is a classic fishing expedition to attack presumptively reliable evidence and therefore is beyond the scope of an extradition hearing which is limited to determining threshold reliability of evidence as a requirement of s. 29(1) of the Extradition Act . Appeal from the Refusal to Order Disclosure [14] Mr. Lopez did not address the committal appeal in oral argument; he relied solely on his factum. [15] Mr. Lopez submits the extradition judge applied too stringent a test.  He says given the importance of the forensic evidence the judge ought to have given him “more latitude in obtaining disclosure”.  While acknowledging that it falls to him to demonstrate an “air of reality” supporting the need for the requested information and material, Mr. Lopez, citing United States of America v. Ferras , 2006 SCC 33, [2006] 2 S.C.R. 77, says the application of that test must reflect his right to probe the reliability and availability of crucial evidence. [16] The difficulty with this argument is that it was rejected by this Court in United States of America v. Rosenau , 2010 BCCA 461, 262 C.C.C. (3d) 515, leave to appeal ref’d [2011] 1 S.C.R. x, a case not mentioned in Mr. Lopez’s factum.  In Rosenau , Madam Justice Smith undertook an extensive review of the law relating to disclosure in the extradition context and considered whether Ferras —which deals with the limited scope an extradition judge has to weigh evidence—had expanded the right to disclosure.  She concluded Ferras had not done so:  para. 53. [17] In Rosenau the only evidence identifying Mr. Rosenau as a participant in drug-related offences came from an accomplice, Kip John Whelpley.  The SROC in that case contained a summary of Mr. Whelpley’s evidence.  At the extradition hearing, Mr. Rosenau unsuccessfully sought an order for disclosure of:  (a) copies of Mr. Whelpley’s statements to the American authorities; (b) his plea agreement with American authorities; (c) the indictment to which he had pleaded guilty; and (d) his criminal record.  Mr. Rosenau was committed and the dismissal of the disclosure application was his principal ground of appeal.  In dismissing that appeal, Smith J.A. held the extradition judge had not erred.  In part, she stated: [58] In this case, the disclosure requested was made for the sole purpose of attempting to challenge the direct evidence of Mr. Whelpley. His evidence was certified in the SROC and there was no evidence adduced that was able to demonstrate that his evidence was manifestly unreliable. The appellant’s disclosure application was effectively an attempt to garner evidence with which to challenge the credibility of Mr. Whelpley, an issue which goes to the ultimate reliability of Mr. Whelpley’s evidence. [Emphasis added.] [18] In the present case, the ROC and SROC set out in summary form the tasks and tests performed by Ms. Norman (the “Crime Scene Investigator”), Ms. Paulette (the “Forensic Scientist II”), and Ms. Carter (the “Latent Print Examiner”).  That these persons prima facie have the expertise necessary to properly carry out their duties is evinced by their respective titles. In addition, both Ms. Paulette and Ms. Carter are referred to in the SROC as “recognized expert[s]” in their fields.  Mr. Lopez has not pointed to anything that could undermine the accuracy or reliability of the evidence these witnesses are said to be able to give. [19] I would not accede to this ground. JUDICIAL REVIEW APPLICATION The Offence for which Surrender was Ordered [20] The order of surrender signed by the Minister, the Honourable Rob Nicholson, refers to the criminal complaint charging Mr. Lopez with murder in Nevada.  That complaint reads: The Defendant above named having committed the crime of MURDER WITH THE USE OF A DEADLY WEAPON (Felony – NRS 200.010, 200.030, 193.165), in the manner following, to-wit:  That the said Defendant, on or between May 18, 2009 and May 21, 2009, at and within the County of Clark, State of Nevada, did then and there wilfully, feloniously, without authority of law, and with premeditation and deliberation, and with malice aforethought, kill FRANCISO LAMBERT-CORDERO, a human being, by shooting at and into the body of the said FRANCISO LAMBERT-CORDERO, with a deadly weapon, to-wit:  a firearm. Submissions in Opposition to Surrender and the Minister’s Decision [21] Following surrender, Mr. Lopez’s counsel wrote to the Minister advancing several arguments in opposition to surrender.  I need discuss only those relevant to this application for judicial review.  However, I note the Minister has received assurance from the United States that the death penalty will not be sought or imposed should Mr. Lopez be surrendered. [22] Mr. Lopez’s counsel submitted that the weakness of the committal evidence weighed against surrender.  He referred to the ROC and SROC as outlining “a highly circumstantial case” and urged the Minister “to consider the considerable weaknesses in the case in assessing whether extradition is just in all the circumstances.” [23] The Minister responded to that submission in a letter dated April 3, 2012, setting out his reasons for signing the order of surrender that day: You submit that the Record of the Case and the Supplemental Record of the Case outline a highly circumstantial case linking Mr. Lopez-Turatiz to the murder and as such, I should consider the weakness of the United [States’s] case when assessing whether to surrender is just in all of the circumstances of this case. You are effectively asking me to revisit the decision of the extradition judge in ordering Mr. Lopez-Turatiz’s committal.  It is not my role to do so. The judicial phase of the extradition process is separate and distinct from my responsibilities in deciding whether to surrender a person who has been committed for extradition. The extradition judge determined that there was sufficient evidence upon which to order Mr. Lopez-Turatiz’s committal.  In her reasons for judgment, the extradition judge specifically addressed the circumstantial nature of the evidence against Mr. Lopez-Turatiz and concluded that the evidence was sufficient to justify his committal. I must assess Mr. Lopez-Turatiz’s case from the perspective that the committal order was properly issued.  There is nothing in the Act, the Treaty, or elsewhere that allows me to review this decision.  It is the authority of the appellate courts to do so.  Indeed, Mr. Lopez-Turatiz has appealed the decision of the extradition judge based on, inter alia , the judge’s assessment of the evidence contained in the Record of the Case and Supplemental Record of the Case. It is also beyond my function to review the sufficiency of the American evidence in considering whether surrender would be justified. To embark on such an assessment would require me to assume the role of trier of fact.  Such an approach would be inconsistent with the aim and purpose of extradition. … The trier of fact in the United States is best placed to consider the sufficiency of the evidence at Mr. Lopez-Turatiz’s trial. [24] After the order of surrender was signed, Mr. Lopez retained new counsel who made further submissions to the Minister.  Counsel contended that it would be unjust and oppressive, and contrary to s. 7 of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, to surrender Mr. Lopez on the charge of premeditated murder because of the potential that the Nevada prosecutor might seek to support a conviction for murder on what in the United States is known as the felony murder rule.  Mr. Lopez’s counsel asked the Minister to seek assurances from the United States that the Nevada prosecutor would not rely on the felony murder rule. [25] Under the felony murder rule an accused can be convicted of murder for a killing that occurred in the course of committing or attempting to commit certain other crimes, even though he or she lacked a subjective intent to kill.  In Canada, the equivalent provisions of the Criminal Code , which provided for what was known as “constructive murder”, were declared inoperative by the Supreme Court of Canada on the basis they infringed the principles of fundamental justice guaranteed by s. 7 of the Charter : R. v. Vaillancourt , [1987] 2 S.C.R. 636; R. v. Martineau , [1990] 2 S.C.R. 633. [26] Mr. Lopez’s counsel provided the Minister with a detailed legal opinion prepared by Guyora Binder, a criminal law professor at the State University of New York Buffalo Law School, with respect to the felony murder rule in Nevada.  That opinion contains the following summary: 1.         Felony murder liability is murder liability for killing in the perpetration or attempt of certain felonies, notwithstanding the lack of intent to kill.  American felony murder rules are independent in origin and authority.  They vary in operation and scope among jurisdictions, but most felony murder rules condition liability on objective foreseeability of death.  Participants in the felony who do not kill are usually liable for deaths objectively foreseeable to them. 2.         Nevada imposes felony murder liability. 3.         Nevada’s felony murder rule does not require subjective foresight of death.  It does require whatever subjective mental state is required for the predicate felony. 4.         Nevada Prosecutors can amend charges but only if this does not prejudice the defendant’s right to be informed of charges with sufficient specificity and sufficiently early to be able to prepare a defense to the new charges. 5.         In Nevada, a participant in a fatal predicate felony who does not personally commit the act causing death is probably liable for felony murder on the basis of the same mental state required of the killer.  In most cases this will be objective foreseeability of death.  For certain predicate felonies, objective foreseeability of death is not required.  Objective foreseeability of death is arguably entailed in participating in most of these felonies, but not necessarily all. With respect to point 4, in the body of his opinion, Professor Binder stated: Amendment of the information to set forth added alternative theories of the mental state required for first-degree murder does not charge an additional or difference offence. [27] In a letter dated April 18, 2013, the Minister confirmed his decision to surrender Mr. Lopez.  While recognizing that constructive murder is unconstitutional in Canada, the Minister stated it was neither unjust nor oppressive to surrender a person to face prosecution in a jurisdiction where the rules governing the trial process do not accord with our own.  The Minister noted that as Mr. Lopez is not charged with felony murder the concerns raised with respect to the felony murder rule did not arise on the facts of his case. [28] The Minister further stated that by reason of the rule of specialty, the State of Nevada would have to obtain Canada’s consent to proceed under the felony murder rule.  That rule provides that a person who has been extradited may only be prosecuted for the offence(s) for which he or she was surrendered, subject to certain exceptions.  It is embodied in Article 12 of the Extradition Treaty Between Canada and the United States of America , Can. T.S. 1976, No. 3, as amended , which reads (in part): (1)        A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted nor be extradited by that State to a third State unless: (iii)    The requested State has consented to his detention, trial, punishment for an offense other than that for which extradition was granted or to his extradition to a third State, provided such other offense is covered by Article 2. [29] With respect to the rule of specialty, the Minister stated: Moreover, I note that the request for Mr. Lopez-Turatiz’s extradition is for the substantive offence of murder and not for “felony” or “constructive” murder.  As such, the concern you raise does not arise on the facts of this case.  I am advised that the Nevada prosecutor’s office does not intend to prosecute Mr. Lopez-Turatiz for felony murder.  Furthermore, I note that the Office of International Affairs, United States Department of Justice, has advised that should Nevada change its mind after surrender and seek to prosecute Mr. Lopez-Turatiz on felony murder, Nevada would have to amend its criminal complaint .  In order to prosecute Mr. Lopez-Turatiz on a different offence than the one for which he was ordered surrendered, the United States would also have to seek a waiver of specialty from Canada.  Should such a request be made, it would be assessed at that time on the basis of the applicable facts. [30] The Minister stated that assurances were unnecessary with respect to the felony murder rule because, by reason of the rule of specialty, “[w]ithout the consent of Canada, the United States could not prosecute Mr. Lopez-Turatiz for any offence other than the offence for which he was surrendered.” Challenges to the Minister’s Decision Failure to Consider the “Weakness” of the Case [31] Mr. Lopez submits there is only a “tenuous case against him” and that the Minister improperly fettered his discretion by declining to take the overall weakness of the evidence into consideration.  He says that the Minister’s error in this case is “virtually identical” to the error identified by this Court in United States of America v. Lucero-Echegoyen , 2013 BCCA 149, 336 B.C.A.C. 188.  I disagree.  As I will explain, Lucero-Echegoyen is distinguishable and does not support the broad proposition Mr. Lopez seeks to draw from it. [32] Mr. Lucero’s extradition was sought on drug-related charges.  The ROC stated that several witnesses would give evidence regarding the activities of a person known to them as “Elmer”.  A number of them had been shown photographs of Mr. Lucero and identified him as “Elmer”.  Mr. Lucero’s position was that those witnesses who identified him were mistaken as he had alibi evidence, including Canadian government records, that showed he was in Canada during the time the offences were alleged to have been committed. [33] At his extradition hearing, Mr. Lucero sought to tender the alibi evidence.  Following a voir dire the extradition judge ruled that evidence inadmissible.  Mr. Lucero was committed.  In dismissing his committal appeal, this Court held that the judge had not erred in refusing to admit the evidence:  paras.  17 – 19. [34] Mr. Lucero provided his alibi evidence to the Minister.  In ordering Mr. Lucero’s surrender, the Minister declined to consider that evidence stating, in part, that it was “beyond [his] function to review the ultimate reliability of the evidence” on which the committal was based:  para. 22.  On judicial review, this Court set aside the order of surrender and referred the matter back to the Minister for reconsideration. [35] Mr. Lopez points to the fact that the reasons given for ordering surrender in his case (reproduced in para. 23 above) are “strikingly similar” to those which the Minister gave in Mr. Lucero’s case.  While this is correct, Mr. Lopez’s submission ignores the context in which Lucero-Echegoyen was decided. [36] The issue in Lucero-Echegoyen was whether the Minister should have taken into consideration alibi evidence that was not admissible at the extradition hearing and which would be difficult to adduce before the American trial court; evidence which this Court described as “substantial” and “very strong”:  paras. 7, 25.  In finding that the evidence should have been considered, Mr. Justice Groberman said this: [23] In my view, the Minister misapprehended the scope of his role in the extradition process.  He was not being asked to review the decision of the extradition judge.  Rather, he was being asked to consider, in light of evidence that was inadmissible before the extradition judge , whether the surrender of Mr. Lucero-Echegoyen would be oppressive or unjust. His role was quite distinct from that of the judge on the committal hearing. [24] Neither was the Minister being asked to usurp the role of the trial court in the United States.  The Minister was not being asked to determine guilt or innocence, per se , but was being asked to evaluate whether, in the circumstances, it would be oppressive or unjust to surrender Mr. Lucero-Echegoyen.  The apparent strength of the alibi evidence was one factor that should have been considered in making that evaluation. [25] Mr. Lucero-Echegoyen produced very strong evidence showing he was in Canada during the period when the requesting state alleges he was in Denver.  That evidence includes official records of the Canadian government. Mr. Lucero-Echegoyen might face serious obstacles in bringing his alibi evidence before a court in Wyoming , given his very limited financial resources.  I note that the alibi evidence comes from witnesses and business records located in Vancouver.  It is not clear how Mr. Lucero-Echegoyen will go about getting that evidence before the U.S. District Court for the District of Wyoming. [29] I do not suggest that the Minister must, in every case, come to a preliminary assessment of the strength of the requesting state’s case before surrendering the individual who is sought.  Where, however, the weakness of the requesting state’s case is evident and where serious hardship may face the individual if that person is surrendered, the scope of the Minister’s inquiry should not be artificially narrowed. [Emphasis added.] [37] That Lucero-Echegoyen does not stand for the proposition that the Minister is under a general obligation to consider the strength of the evidence which supports a committal is discussed in United Kingdom of Great Britain and Northern Ireland v. Aziz , 2013 BCCA 414, 342 B.C.A.C. 305. [38] Mr. Aziz’s extradition was sought for an offence corresponding to the Canadian offence of possession of stolen property ( Criminal Code , s. 354).  The allegation related to a large quantity of pharmaceutical drugs.  Mr. Aziz was arrested when he attempted to sell those drugs to a private investigator employed by the company from which they were stolen. [39] At the extradition hearing, Mr. Aziz sought to tender his own affidavit and that of another person to provide his version of the events, namely that he was an innocent broker who did not know the drugs were stolen.  The extradition judge refused to admit the affidavits and went on to commit Mr. Aziz.  In dismissing his committal appeal this Court held that the judge had not erred in refusing to admit the affidavits, citing, among other cases, Lucero-Echegoyen : Aziz at paras. 35, 40. [40] Mr. Aziz provided the affidavits to the Minister who, in ordering surrender, declined to consider them.  After noting that Mr. Aziz was raising the admissibility of the affidavits as a ground on his committal appeal, the Minister continued: Furthermore, it is beyond my function to review the sufficiency of the United Kingdom’s evidence in considering whether surrender would be justified.  To embark on such an assessment would require me to assume the role of trier of fact.  Such an approach would be inconsistent with the aim and purpose of extradition.  The extradition process is neither equipped nor intended to determine the guilt or innocence of the person sought but rather to ascertain whether surrender to the requesting state is justified in the circumstances of a particular case ( Kindler v. Canada (Minister of Justice) , [1991] 2 S.C.R. 779; Argentina v. Mellino , [1987] 1 S.C.R. 536). While my function in deciding the issue of surrender is broader than the principles applied at the committal stage of extradition, I am in no better position to weigh the strengths and weaknesses of the foreign evidence against Mr. Aziz.  In the event that Mr. Aziz is surrendered, he will have the opportunity to present his defence and challenge the evidence against him before a trier of fact in the United Kingdom. [41] In dismissing Mr. Aziz’s application for judicial review of the Minister’s decision, this Court held that the Minister’s failure to consider the affidavits did not amount to an undue narrowing of matters he is required to consider.  In particular, Mr. Justice Harris, in discussing Lucero-Echegoyen , stated: [63]      [Paragraph 29] makes it clear that Groberman J.A. was not laying down a universal rule that inadmissible defence evidence, or the evidence in the case generally , must be assessed on a preliminary basis before the Minister can conclude that it would not be unjust to order surrender. Rather, such an inquiry is required where two conditions are met: first, the weakness in the requesting state’s evidence must be evident; and second, surrender may face the person sought with serious hardship. [Emphasis added.] [42] Mr. Lopez is unable to satisfy either of the two conditions just mentioned. First, in my view, the case against him, while circumstantial, is not one I would describe as “weak”.  If unanswered, then a trier of fact may well be satisfied beyond a reasonable doubt that Mr. Lopez intentionally killed Mr. Lambert.  Second, Mr. Lopez has not advanced anything which could support a finding that he would face “serious hardship” if surrendered. [43] For completeness, there is one further decision of this Court I wish to mention, namely, Canada (Minister of Justice) v. Narayan , 2008 BCCA 280, 257 B.C.A.C. 121, leave to appeal ref’d [2008] 3 S.C.R. viii. [44] Mr. Narayan’s extradition was sought on drug-related charges.  In his submissions to the Minister he argued the evidence against him was so weak that it would be unjust and oppressive to order his surrender.  In ordering surrender, the Minister declined to assess the cogency of the evidence.  After noting that the issue of the sufficiency of the evidence was being raised by Mr. Narayan on his appeal from committal, the Minister stated: Similarly, it is not my function to engage in a separate analysis of whether the American evidence is adequate as this would require me to assume the role of the foreign trier of fact.  Such an approach would be inconsistent with the aim and purpose of extradition.  The extradition process is neither equipped, nor intended to determine the guilt or innocence of the person sought.  Its purpose is to ascertain whether surrender to a requesting state is appropriate in the circumstances of a particular case .  I am not in a position to weight the strengths and weaknesses of the foreign evidence.  The U.S. trial courts are best placed to consider this question in the venue of Mr. Narayan’s trial. Therefore, in my view, it would not be unjust or oppressive, or contrary to the principles of fundamental justice to surrender Mr. Narayan to the United States, notwithstanding your concerns with the strength of the prosecution’s case. [Emphasis added.] [45] In dismissing Mr. Narayan’s application for judicial review, this Court held that the Minister had not erred by failing to assess the strength of the evidence.  In doing so, Mr. Justice Low reviewed a number of authorities, including Germany (Federal Republic) v. Schreiber (2006), 206 C.C.C. (3d) 339 (Ont. C.A.), leave to appeal ref’d [2007] 1 S.C.R. xiv, wherein Mr. Schreiber argued that the Minister erred by refusing to consider the credibility of the prosecution’s principal witness.  In rejecting that argument, Mr. Justice Sharpe, in a passage which Mr. Justice Low quoted with approval, said: [64]      To the extent that the Extradition Act “relaxes” the rules of evidence, the Act does not alter the jurisdiction, responsibility or authority of the extradition judge or that of the Minister with respect to the assessment of the evidence. It is for the extradition judge to determine whether or not there is sufficient evidence to warrant committal.  Once that determination has been made, weighing the evidence or assessing its reliability are matters for trial in the foreign jurisdiction.  There [ sic ] are not matters for the Minister to address when considering whether to surrender the appellant. The Minister retains a residual discretion to refuse surrender where it would be unjust or oppressive.  However, the exercise of that discretion is accorded a high level of deference on judicial review. In view of the substantial body of evidence led in support of the committal, I am far from persuaded that there is any basis for this court to interfere on this ground. [Emphasis added.] [46] Mr. Justice Low went on to state: [17]      I would not accede to the first ground [i.e., that the Minister erred in declining to assess the strength of the committal evidence].  The applicant submitted that in undertaking an assessment of his interests, including his liberty interests under the Charter , it was necessary for the Minister to consider the evidence involved in the case against him.  He says that the strength or weakness of that evidence is a factor to speak to the fairness of the applicant’s surrender. However, the case law above demonstrates that the sufficiency of evidence is properly considered by the extradition judge, with subsequent deference to that finding by the Minister.  Here, the Minister properly deferred to the court’s conclusion that the case against the applicant was sufficient to justify his committal. Although the Minister retains a residual discretion to decline to surrender a person sought if, as stated in [ United States of America v. Earles , 2003 BCCA 20, 171 C.C.C. (3d) 116 (B.C.C.A.)], the reliability of the requesting state’s evidence is such that to surrender that person would shock the conscience of Canadians, this discretion is not engaged in the circumstances of the present case, where the only issue raised is the relative strength or weakness of evidence that has been found to be sufficient by the extradition court. [Emphasis added.] [47] For the above reasons, I would not accede to this ground. The Felony Murder Rule [48] Mr. Lopez acknowledges that currently he is charged with premeditated first-degree murder, an offence that requires proof of subjective mens rea , i.e., an intent to kill.  His arguments are based on what he submits is the “potential” that if he is surrendered, then the prosecutor might seek to rely on the felony murder rule as a means of imposing liability for first-degree murder.  Under that rule, a person can be convicted of murder absent proof of a subjective intent to kill. [49] Citing United States v. Burns , 2001 SCC 7 at para. 60, [2001] 1 S.C.R. 283, Mr. Lopez says the Minister was required to consider his surrender on the basis that there is a possibility that the prosecutor might seek to rely on the felony murder rule.  In Burns , Mr. Burns and Mr. Rafay were charged with three counts of aggravated first degree murder.  Aggravated first degree murder is punishable either by the death penalty or life imprisonment without possibility of parole.  The Supreme Court of Canada held that Mr. Burns and Mr. Rafay could not be surrendered without assurances that the death penalty would not be sought or imposed, even though the prosecutor had yet to decide which penalty to seek.  Assurances were required because capital punishment was one of the “potential consequences” of extradition and the case did not involve “exceptional circumstances” that would permit surrender without assurances. [50] Mr. Lopez submits that although the Nevada prosecutor has indicated he does not intend to prosecute for felony murder, he has not unequivocally committed to never seeking to do so.  Mr. Lopez says there is a realistic possibility he may advance a defence at trial that would result in the prosecutor applying to amend the charge to engage the felony murder rule.  In what he describes as a reasonable hypothetical, Mr. Lopez says he could testify that Mr. Torres killed Mr. Lambert in circumstances that would expose Mr. Lopez to criminal liability for first degree murder under the rule. [51] Mr. Lopez takes the position that a person can never be surrendered to stand trial for murder if there is a possibility that the prosecutor might seek to obtain a conviction on the basis of the felony murder rule.  Based on Professor Binder’s opinion, he further argues that felony murder would not be considered a different offence and, therefore, the rule of specialty would not operate to preclude an amendment without Canada’s consent. [52] The Minister’s position is that it is open to him to surrender a person to be tried for felony murder.  However, he says that the issue of surrender for felony murder does not arise in this case because:  (a) Mr. Lopez is not charged with felony murder; (b) the Nevada prosecutor has indicated he does not intend to prosecute Mr. Lopez for felony murder; and (c) in any event, by reason of the rule of specialty, Mr. Lopez could not be tried for felony murder without Canada’s consent. [53] It is unnecessary to decide whether the Minister is precluded from ever surrendering on a charge of felony murder.  Mr. Lopez is charged with premeditated murder and there is no air of reality to his submission that the prosecutor might change his position and seek to rely on the felony murder rule.  Accordingly, there is no need for me to discuss the cases the Minister cites as support for his position that a person can be surrendered for felony murder: United States of America v. Chong (1996), 91 O.A.C. 319, leave to appeal ref’d [1997] 1 S.C.R. vi ( sub nom. Chung v. The Queen ); DesFoss és v. Canada (Minister of Justice) (1996), 120 F.T.R. 294, appeal dismissed (1997), 216 N.R. 152 (F.C.A.), leave to appeal ref’d [1997] 3 S.C.R. viii. [54] Mr. Lopez relies on the statement in Burns (at para. 60) that, “Section 7 [of the Charter ] is concerned not only with the act of extraditing, but also the potential consequences of the act of extradition” (emphasis in original).  However, that sentence has to be read with the immediately preceding one, in which the Court stated, “This Court has recognized from the outset that the punishment or treatment reasonably anticipated in the requesting country is clearly relevant” (emphasis added). [55] As the Supreme Court noted in Burns , the crimes alleged in that case were “brutal and shocking cold blooded murder[s]”:  para. 9.  Further, s. 7 was engaged because the only possible punishments that could be imposed on Mr. Burns and Mr. Rafay were the death penalty or life imprisonment without possibility of parole:  para. 28.  In other words, surrender without assurances would reasonably expose them to being tried for a capital offence.  I note this Court has held it is open to the Minister to surrender without formal assurances for an offence for which capital punishment could be imposed when the requesting state has indicated it will not seek the death penalty; in other words, when that penalty is not “reasonably anticipated ”:  Gervasoni v. Canada (Minister of Justice) (1996), 72 B.C.A.C. 141 at paras. 25 – 29, leave to appeal ref’d [1996] 2 S.C.R. vii; Hong Kong Special Administrative Region of the People’s Republic of China v. Dia , 2006 BCCA 179 at paras. 8 – 14, 267 D.L.R. (4th) 49. [56] In the present case, it cannot be said that an application by the prosecutor to amend the charge against Mr. Lopez to allege felony murder is “reasonably anticipated”.  As the matter presently stands, there is no evidence to support a theory of criminal liability under the felony murder rule.  Mr. Lopez’s submission that this could change if he testifies is no more than conjecture, based on the supposition that he might recount a version of events that would bring the rule into play. [57] Further, based on Professor Binder’s opinion, it appears doubtful that an application to invoke the felony murder rule on the basis of evidence given by Mr. Lopez would succeed.  That opinion cites two decisions of the Supreme Court of Nevada in which it was held that the prosecution should not have been allowed to invoke the rule at the eleventh hour.  In Alford v. State , 906 P. 2d 714 (Nev., 1995), there was no mention of felony murder in the indictment, but the trial judge, at the request of the prosecutor, improperly gave the jury a felony murder instruction.  In Jennings v. State , 998 P. 2d 557 (Nev., 2000), Professor Binder describes the impermissible amendment to the indictment as having been made, mid-trial, after the defendant testified that he had summoned the victim to approach him by motioning with a gun.  The State amended its information to add a felony-murder theory alleging Jennings kidnapped the victim before shooting him. [58] The last matter I wish to mention is the rule of specialty.  As indicated above, Mr. Lopez and the Minister disagree as to whether that rule would preclude Mr. Lopez being tried for felony murder without Canada’s consent.  It is both unnecessary and impossible to resolve this question.  It is unnecessary, because the possibility of the present charge being amended to include an allegation of felony murder is remote.  It is impossible, because the matter was not fully argued.  Professor Binder was not asked for an opinion on this rule and we have not received submissions on whether the United States or the State of Nevada hold the same view of it as does the Minister.  There is also the question of whether Mr. Lopez would have standing before the Nevada court to raise the rule of specialty in opposition to an application by the prosecutor to amend the charge. [59] Notwithstanding the possibility of the prosecutor seeking to rely on the felony murder rule is remote, I would expect that on Mr. Lopez’s surrender, the current Minister, the Honourable Peter MacKay, will inform the United States of Canada’s position on the rule of specialty, as expressed by Minister Nicholson. DISPOSITION [60] I would dismiss both the appeal and the application for judicial review. “The Honourable Mr. Justice Frankel” I AGREE: “The Honourable Mr. Justice Lowry” I AGREE: “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Bains, 2014 BCCA 43 Date: 20140203 Docket: CA040443 Between: Regina Respondent And Jaswinder Singh Bains Appellant Before: The Honourable Madam Justice Newbury The Honourable Madam Justice Neilson The Honourable Mr. Justice Willcock On appeal from:  An order of the Provincial Court of British Columbia, dated July 4, 2012 ( R. v. Bains , Vancouver Docket No. 202092-1). Counsel for the Appellant: S.E. Pinx, Q.C. K. Smith Counsel for the Respondent: W.P. Riley Place and Date of Hearing: Vancouver, British Columbia November 8, 2013 Place and Date of Judgment: Vancouver, British Columbia February 3, 2014 Written Reasons by: The Honourable Madam Justice Neilson Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Willcock Summary: The appellant appeals his conviction on a charge of conspiracy to import heroin, the evidence for which was based on wiretap authorizations. The appellant challenged the admissibility of the evidence on the basis that the police had only learned of his identity for the authorizations through an unlawful traffic stop. On voir dire the trial judge agreed the appellant’s s. 8 and s. 9 Charter rights had been violated. However, the judge ruled the evidence admissible under s. 24(2) of the Charter. The appellant challenges this finding, arguing the judge erred by permitting the Crown to lead evidence to amplify its position on the s. 24(2) application, wrongly speculated about discoverability and gave this factor undue weight, and gave inordinate weight to his finding of good faith. Held: appeal dismissed. Absent an error in principle or an unreasonable finding an appellate court owes considerable deference to a trial judge’s s. 24(2) determination. The trial judge did not err in considering the police constable’s evidence on the s. 24(2) hearing; his evidence was potentially relevant to good faith and to discoverability. The trial judge concluded the telephone numbers were otherwise discoverable based on findings of fact and credibility and did not give discoverability inordinate weight. On the evidence at trial, the trial judge’s finding of good faith was reasonable. Reasons for Judgment of the Honourable Madam Justice Neilson: [1] The appellant, Jaswinder Singh Bains, appeals his conviction by a Provincial Court judge on a charge of conspiracy to import heroin between August 7 and September 20, 2007. The charge was based on evidence gained through police surveillance and private communications intercepted pursuant to a series of wiretap authorizations granted under s. 186 of the Criminal Code , R.S.C. 1985, c. C-46. [2] On a voir dire held prior to trial, the appellant challenged the admissibility of the intercepted communications on the basis the police had only been able to learn evidence of his identity through an arbitrary and unlawful traffic stop. The trial judge agreed that his right to be free from arbitrary detention under s. 9 of the Charter had been violated by that stop, and excised the paragraphs identifying the appellant from the affidavit used to obtain the wiretap authorization. There then being no reasonable grounds for naming him as a primary target, the trial judge found the interception of the appellant’s communications also violated his right to privacy under s. 8 of the Canadian Charter of Rights and Freedoms , Part 1 of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [ Charter ]. [3] These communications were central to the Crown’s case, and so it applied under s. 24(2) of the Charter to have them admitted into evidence, arguing their admission would not bring the administration of justice into disrepute. The trial judge granted the application, admitted the intercepted communications, and ultimately relied on this evidence to convict the appellant. [4] On appeal, the appellant challenges the trial judge’s s. 24(2) ruling, and contends he erred in three respects. First, he permitted the Crown to lead evidence at the hearing to amplify its position. Second, he wrongly speculated on the discoverability of critical evidence and then gave this factor undue weight. Third, he unjustifiably gave inordinate weight to his finding of good faith in mitigating the Charter -infringing state conduct. Background [5] On August 9, 2007, the Combined Forces Special Enforcement Unit (“CFSEU”) obtained authorization P.40/2007 (“P.40”), the sixth of seven authorizations in an ongoing drug investigation. P.40 named the appellant as a primary target and authorized the interception of his private communications. [6] The grounds for issuing P.40 were set out in a 325-page affidavit sworn by Cst. Murphy on August 9, 2007. This described private communications intercepted under two earlier authorizations, P.32/2007 (“P.32”) and P.23/2007 (“P.23”); surveillance evidence stemming from those communications; voice identification; corporate and vehicle searches; and the arbitrary traffic stop identified above. I summarize the key evidence in the affidavit as follows. [7] It recounted numerous telephone conversations between Ranjit Singh Khakh (“Khakh”) and Ravinder Singh Dhanda (“Dhanda”), intercepted under P.32, which had been granted on June 27, 2007. Both were primary targets under P.32, and these calls described arrangements for an ultimately unsuccessful attempt to export 230 lbs of marihuana to the United States. In the course of this transaction Dhanda spoke several times to an unknown male using phone number 778-861-9373 (“UM 9373”), who was sometimes referred to as “Jetti”. The calls indicated that “Jetti” accompanied Dhanda in a vehicle that followed the commercial truck carrying the marihuana across south eastern B.C. to the American border, where state agents seized the vehicle, and arrested its driver. Cst. Murphy summarized this at para. 444 of the affidavit: Based on the intercepted communications and investigation summarized in paragraphs 445 to 469 I believe that KHAKH arranged to pick up and transport marihuana for Thai. I believe that KHAKH utilized the trucking contacts of DHANDA and BAINS to export 230 pounds of marihuana. I believe that DHANDA and BAINS traveled to the interior of British Columbia following the commercial truck in which the marihuana was hidden until it approached the United States border crossing where the marihuana was located and the driver was arrested. [8] On July 12, 2007, an intercepted conversation between Dhanda and UM 9373 indicated they would meet at a location in Surrey. CFSEU surveillance at that site observed Dhanda meet with a man driving a green Volkswagen Touareg with licence plate 241APJ. [9] A photo of the man driving the Volkswagen, obtained from the police surveillance, was then shown to Sgt. McLean of the Vancouver Police Department. He was able to identify this person as the appellant from earlier dealings he had had with him on January 6, 2007, when he had pulled his vehicle over on a traffic check. At that time, he obtained the appellant’s name, address, driver’s licence number 5387305 and date of birth. Sgt. McLean checked the appellant for signs of impairment and then allowed him to proceed. This account, set out in paras. 90 and 91 of the affidavit, was the only information that established the appellant was UM 9373 or “Jetti”, and provided the basis for identifying him by name in the affidavit. [10] Communications intercepted under P.32 also indicated that, between August 3 and 7, 2007, Dhanda, Ken Shien Ho (“Ho”), and “Karn” were involved in a conspiracy to import cocaine. On August 3, 2007, Dhanda discussed the terms of this deal with UM 9373, who provided advice on the transaction. [11] A civil wiretap monitor working for the CFSEU investigation listened to all telephone calls involving UM 9373 and determined that each had the same voice. [12] The affidavit also recorded police searches of various databases on August 8, 2007, which provided the following information: a)       the subscriber to the telephone number 9373 was Surjit Bains of 16322 92 Ave, Surrey; b)       Canadian Pacific Information Centre (“CPIC”) revealed that Jaswinder Singh Bains had B.C. driver’s licence number 5387305, resided at 15532 89B Ave in Surrey, and was born on August 17, 1966; c)       a corporate search of Marathon Transport Ltd. listed its registered office as 15532 89B Ave in Surrey and listed its director as Surjit K. Bains and vice president as Onkar Singh Bains, of the same address. The company was dissolved on April 28, 2007 for failing to file annual reports; and d)       a corporate search of Marathon Express Ltd. revealed it was incorporated on May 3, 2007, had a registered office on Kingsway in Vancouver, and a delivery address in Delta. Its director was listed as Onkar Singh Bains of 16322 92 Ave, Surrey. [13] Authorization P.40 was granted on August 9, 2007. It named Dhanda, Ho, and the appellant as primary targets, among others. It included a “resort to” clause at para. 5.56, which provided for the interception of communications using “any other mobile telephone in Canada” where there were reasonable grounds to believe that at least one of the people using the phone was a primary target under the authorization. [14] On August 18, 2007, a private communication was intercepted under P.40 between Ho and an unidentified male using phone number 778-858-2428 (“2428”). Ms. Gurpreet Chahal, a civilian police monitor for the investigation, was able to identify the voice using 2428 as the same person as UM 9373. [15] On August 20, 2007, the CFSEU wrote to Rogers Communications compelling interception of the calls on 2428 pursuant to the “resort to” clause in P.40. [16] During the currency of P.40, the CFSEU intercepted private communications of the appellant regarding a scheme to import heroin from India, in which he discussed acquisition of the heroin, travel arrangements for the drug couriers, and methods of concealing the drugs. Police surveillance captured the appellant meeting with co-conspirators, and his encounter with the drug couriers on their arrival in Toronto. The CFSEU apprehended the couriers and seized seven kilograms of heroin. The Ruling on the Voir Dire [17] The appellant attacked the validity of authorization P.40 on two grounds. First, he argued that his identity had not been established by lawfully obtained evidence because Sgt. McLean’s vehicle stop in January 2007 was an arbitrary detention. He maintained paras. 90 and 91 of P.40 must therefore be excised from the affidavit, leaving no reasonable grounds to identify him as “Jetti” or UM 9373. Second, the appellant argued that the affidavit did not reveal reasonable grounds to support Cst. Murphy’s belief that intercepting the private communications of UM 9373 or “Jetti” would assist in the ongoing investigation. [18] The trial judge reviewed Sgt. McLean’s evidence about his dealings with the appellant on January 6, 2007. He found it so lacking in detail that the only reasonable conclusion to be drawn was there had been no justification for him to stop and detain the appellant. He accordingly concluded this traffic stop had been arbitrary and unlawful, and had violated the appellant’s rights under s. 9 of the Charter . The judge excised paras. 90 and 91 from the affidavit. [19] The trial judge rejected the appellant’s second argument. He found the evidence implicating “Jetti” and UM 9373 was sufficient to support a reasonable belief that this person was involved with Dhanda and had accompanied him on the trip with the truck that had attempted to carry marihuana across the border. The s. 24(2) Hearing and Decision [20] The trial judge acknowledged that there were two related Charter breaches. The first, under s. 9, arose from the arbitrary traffic stop. This led to an absence of reasonable grounds for the police to identify the appellant by name in the affidavit and in P.40, which violated his privacy rights under s. 8. [21] Over the objections of the defence, the trial judge permitted the Crown to lead evidence from Cst. Murphy and Ms. Chahal. He found both to be credible witnesses. He accepted Ms. Chahal’s evidence that the user of 2428 was the same person as the user of 9373. He also accepted Cst. Murphy’s testimony that, before he swore his affidavit, he had identified the appellant as the driver of the Volkswagen Touareg observed during the surveillance on July 12, 2007, but he had inadvertently omitted this from the affidavit. [22] The trial judge noted that the parties agreed the interceptions of 2428, as well as those of 9373, would be subject to his ruling. He rejected the defence argument that the police required a new authorization to intercept the former, holding both their compliance with the preconditions of the “resort to” clause in P.40, and Ms. Chahal’s voice identification, provided reasonable grounds to intercept 2428. [23] The trial judge then turned to the three-pronged s. 24(2) analysis established in R. v. Grant , 2009 SCC 32. [24] With respect to the seriousness of the Charter -infringing state conduct, the trial judge accepted the appellant’s arbitrary detention was serious, but found Sgt. McLean’s vehicle stop was at the less serious end of the spectrum due to several mitigating factors. These included the fact the stop was not related to the drug investigation or executed for some other ulterior motive. Nor had the appellant been surreptitiously photographed or videoed. The stop itself had been brief and the appellant was not taken from his vehicle. Moreover, the trial judge found it was reasonable for Cst. Murphy to rely on information from another officer, and accepted he did not know the details of the stop until trial. He also found nothing to suggest Cst. Murphy had purposely withheld or mischaracterized the circumstances of the stop when he prepared the affidavit. [25] The trial judge referred to Cst. Murphy’s evidence that he had had other information identifying the appellant as “Jetti” or UM 9373 that was omitted from the affidavit due to oversight. He accepted this explanation as leaving this out of the affidavit provided no advantage to the police. [26] The trial judge also reiterated his earlier findings on the voir dire that, even without knowing the appellant’s identity, the police had information that met the necessary standard to obtain an authorization for the user of 9373, the person known as Jetti, and the user of 2428 as legitimate unnamed targets. [27] The trial judge rejected the defence submission that the authorities had acted in bad faith, holding that when they implemented P.40 they believed they were acting pursuant to a valid order of the Supreme Court. He found Cst. Murphy had not been careless, reckless, or negligent in preparing the affidavit, stating: [39]      While the defence submits there was bad faith on the part of the authorities, that submission is in part based on the use of the Resort to Clause. Here Cst. Murphy testified and explained how he gathered the information for the affidavit and how he would verify information with investigators. Cst. Murphy was forthright in his evidence. Cst. Murphy made reasonable effort to ensure the accuracy of the information in his affidavit so that the Authorizing Justice would have all of the relevant information upon which to consider the issuance of the Authorization. Murphy was not careless, reckless or negligent in the preparation of the affidavit, He did not purposely withhold relevant information. In the circumstances Murphy acted in good faith in the preparation of the affidavit and in the presentation of the information to the issuing justice. [43]      The seriousness of the breach will depend on all of the circumstances and in particular the conduct of the police The affidavit in support of the Authorization was not perfect but nor was it the product of carelessness, recklessness, or negligence. Cst. Murphy did not purposefully withhold relevant information nor did he purposefully include misleading information. Cst. Murphy and the authorities acted in good faith in obtaining the Authorization and relying upon that Authorization once it was obtained. [28] Turning to the impact of the breach on the appellant’s Charter -protected interests, the trial judge acknowledged there is a high expectation of privacy for private communications, but accepted the Crown’s submission that the impact of the breach was less serious in this case because the evidence obtained was otherwise discoverable. He referred to his earlier finding that the police could have lawfully obtained an authorization to intercept the communications of UM 9373 by virtue of the calls made between that number and other authorized targets. The communications intercepted on 2428 were also discoverable as the initial calls on that number were made to Ho, who was a target under P.40. Ms. Chahal identified the voice on 2428 as the same person as UM 9373. Since UM 9373 could have been named as a target, interception of the calls of 2428 was justified under the “resort to” clause in P.40. [29] As to society’s interest in the adjudication of the case on its merits, the trial judge noted it was common ground the offence was serious and the evidence had a degree of reliability. He concluded its exclusion would undermine the interests of the justice system and bring the administration of justice into disrepute. [30] In balancing the three factors, the trial judge contrasted this case with R. v. Stanton , 2010 BCCA 208, and found the Charter breaches here had not been deliberate, negligent, and unreasonable; there was no pattern of abuse; and the evidence was otherwise discoverable. He observed the breaches in Stanton were more serious, yet the Court had admitted the intercepted communications as real and reliable evidence that was important to the Crown’s case and to the societal interests at stake. He concluded the evidence should not be excluded. Reasons for Judgment on Conviction [31] During the appellant’s 14-day trial the Crown led evidence of the intercepted communications of 9373 and 2428 in which the appellant discussed the heroin importation scheme with his co-conspirators, as well as the surveillance evidence of the appellant and the co-conspirators meeting and going to the airport to meet the couriers arriving with the heroin. The trial judge found this evidence “cogent, compelling, and persuasive” and, on July 4, 2012, convicted the appellant of conspiracy to import heroin. Issues on Appeal [32] This appellant raises these issues on appeal: 1.       Did the trial judge err by allowing the Crown to lead evidence on the s. 24(2) hearing, and in his assessment of this evidence? 2.       Did the trial judge err in considering the discoverability of the appellant’s identity by: a) finding his identity was otherwise discoverable; and b) placing too much weight on discoverability? 3.       Did the trial judge err in finding the police acted in good faith? Analysis [33] The trial judge properly adopted the well-established approach developed in Grant for considering whether evidence should be excluded under s. 24(2) of the Charter . This requires an analysis of three factors: the seriousness of the Charter -infringing state conduct; the impact of the breach on the accused’s Charter -protected interests; and society’s interest in the adjudication of the case on its merits. After considering these independently, the judge must balance the assessments of each to determine whether, in all the circumstances, the admission of the evidence would bring the administration of justice into disrepute: Grant at para. 71 [34] Where the trial judge has considered these factors, and has not made any unreasonable findings, an appellate court must approach its determination under s. 24(2) with considerable deference, unless there has been an extricable error in principle in characterizing the standard or in its application. In particular, the trial judge’s findings of fact must be respected, absent palpable and overriding error: Grant at paras. 86, 129; R. v. Beaulieu , 2010 SCC 7, at para. 5. 1.       Did the trial judge err by allowing the Crown to lead evidence on the s. 24(2) hearing, and in his assessment of that evidence? [35] The focus of this ground of appeal is Cst. Murphy’s testimony that, before he swore the affidavit, he knew the appellant was the person driving the Volkswagen Touareg seen by surveillance at the meeting with Dhanda on July 12, 2007, but he inadvertently omitted this information from his affidavit. The appellant argues the trial judge erred in permitting the Crown to recall Cst. Murphy to testify to this at the s. 24(2) hearing. As well, he says the judge misapprehended this evidence and, as a result, wrongly found it minimized the severity of the s. 8 breach. [36] To assess these arguments it is necessary to set out Cst. Murphy’s evidence on this point in some detail. [37] It is common ground that the police prepared a surveillance report of the July 12, 2007 meeting that included information about the Volkswagen, and forwarded this to Cst. Murphy before he swore the affidavit. Cst. Murphy first mentioned a link between the appellant and the vehicle during his cross-examination at the voir dire , when he was asked how he obtained the necessary information to do a CPIC search on the appellant and answered: A          That's -- I can't say which I used to -- to make this query, but if you're asking -- well, for instance when -- when this unknown male met Dhanda on July 12th the vehicle he was in was leased to Jaswinder Singh Bains and the primary operator driver's licence number was -- was attached to the -- to the registered owner information.  So I would've been aware from the beginning when the -- when Mr. Bains' name first came to my attention I would've been aware of his name and his driver's licence number.  Which path I took on this date, no, I can't say one or the other. [38] This was not pursued further by either party at that time. In his voir dire ruling, the trial judge observed this information was not in the affidavit, the vehicle was not listed in the searches done by the CFSEU, and the source and timing of the information was unclear. He accordingly found it of little evidentiary value. [39] At the s. 24(2) hearing, the Crown sought to recall Cst. Murphy to give further details about the relationship between the appellant and the Volkswagen to support its position that the seriousness of the s. 8 breach was mitigated by the fact the police had had this alternative means of identifying the appellant as UM 9373. The trial judge permitted Cst. Murphy to testify over the objection of the defence. [40] Cst. Murphy gave the following evidence in-chief. He received the surveillance report shortly after July 12, 2007, which provided the registered owner information. This identified the appellant as the lessee of the vehicle and gave the primary operator’s driver’s licence number, but did not include the operator’s name. He “ran that driver’s licence” and found it was issued to the appellant. He knew this before he swore the affidavit. It was his practice to confirm information from such searches just before swearing an affidavit. He did so on August 6, 2007, and these confirmatory searches were listed in para. 86 of the affidavit. The searches related to the Volkswagen were not included in that paragraph due to oversight on his part, most likely due to the large volume of information collected during the investigation. [41] On cross-examination, Cst. Murphy agreed he had no notes of the vehicle searches he did on August 6, but said all of these were set out in para. 86. This exchange then took place: Q         Yes, okay.  I just -- and I'm just really trying to be clear on this.  When you referred to the Touareg registered owner information not being included in the affidavit and you said "That was an oversight on my part," I take it that the oversight was the non-inclusion -- or sorry, the oversight was in part you didn't run the same kinds of checks that we see at paragraph 86 on that plate number on August 6th.  Correct? A          I can't say offhand.  No, I'd -- I'm sure that would be captured within the computer system, but I can't recall, so whether I -- I had made the query and then omitted to put it in the affidavit or just forgot about it completely, I really can't say. Q         Okay, but let me -- let me get it to what document you do rely on for the plate number and lessee information.  It's a surveillance report, correct? A          Initially, yes.  That was the first time -- Q         Yeah. A          -- I learned of that -- that information, so I knew it at that time.  Whether I confirmed it, like I said I just don't recall whether I confirmed it again in August. [42] The trial judge made these findings with respect to this evidence: [13]      Cst. Murphy testified how he prepared his affidavit. He said his practice was to review surveillance reports from investigators. In a report from July, 2007 it was reported that Dhanda was seen meeting with a person ultimately identified as Mr. Bains. That person was driving a Volkswagen Touareg automobile with license plate number 241 AJP. The report also included information that Mr. Bains was the lessee of the vehicle and the primary operator with a BC driver license number of 5387305. [14]      Cst. Murphy testified his practice was to review information such as the surveillance reports when he received them. It was also his practice to confirm information prior to swearing the affidavit in support of the Authorization. Cst. Murphy said the information regarding the Touareg automobile including the registration information was omitted from his affidavit due to an oversight on his part. He explained the oversight was the result of the volume and complexity of the information involved in the preparation [of] his affidavit. [15]      Cst. Murphy was [a] credible witness. I am satisfied that he was aware of the information regarding the Touareg from the surveillance report and before he swore his affidavit. His explanation for omitting the information regarding the Touareg was credible and understandable in the circumstances. The omission of this information was an inadvertent oversight on the part of Cst. Murphy. [43] Turning to the appellant’s first argument, he points out the evidence linking the appellant and the Volkswagen was effectively ignored by both parties on the voir dire , and the trial judge found it of little value. The appellant contends it was an unprecedented and significant error of law for the trial judge then to allow the Crown to recall Cst. Murphy to expand on this evidence at the s. 24(2) hearing, and says this wrongly permitted the judge to reconsider his testimony on this issue and make an inconsistent finding as to its import. [44] In support, the appellant relies on cases such as R. v. Wilson , 2011 BCCA 252, which impose limits on the Crown’s ability to lead evidence to amplify the contents of an information to obtain, because this would subvert the prior judicial authorization requirement. He maintains the same principle must apply to an attempt by the Crown to amplify its position on a s. 24(2) hearing. As well, he points to R. v. Dhillon , 2010 ONCA 582, a case in which the accused successfully appealed the trial judge’s decision to admit evidence obtained as a result of a breach of his rights under s. 8 of the Charter . In allowing the appeal, the Court, at para. 63, commented that because the Crown had acknowledged it was not entitled to amplify the record in a manner that circumvented the prior judicial authorization requirement, there was no basis for holding it was entitled to amplify the record for the s. 24(2) application. [45] I am unable to accept that evidence led by the Crown on a s. 24(2) hearing in an effort to mitigate the seriousness of a Charter breach is analogous to evidence presented to amplify an information to obtain. At the s. 24(2) stage, the breach has been established, and there can be no complaint that the evidence is directed to circumventing prior judicial authorization. The comment to the contrary in Dhillon was obiter , and is contrary to authority in other jurisdictions. For example, in R. v. Blizzard , 2002 NBCA 13, the New Brunswick Court of Appeal held the trial judge’s refusal to allow the Crown to lead evidence at a s. 24(2) inquiry to explain an error in the affidavit and mitigate the seriousness of the breach was a reversible error of law. This Court condoned a similar strategy in Stanton , and upheld the trial judge’s decision to permit the Crown to lead evidence indicating an error in the authorization did not stem from a pattern of abuse by state agents. [46] Nor do I agree that permitting the Crown to recall Cst. Murphy led the trial judge to reach inconsistent decisions on the same testimony. His observation in his voir dire ruling that he found Cst. Murphy’s cursory evidence about the Volkswagen of no help in amplifying the information to obtain is of no moment to his assessment of the officer’s more comprehensive evidence on this topic at the s. 24(2) hearing. The substance, purpose, and import of the evidence in each case were entirely different. [47] I conclude the trial judge made no error in admitting and considering Cst. Murphy’s evidence on the s. 24(2) hearing. It was potentially relevant to the good faith of the police in naming the appellant as a primary target in the affidavit, and to discoverability as a factor in assessing the seriousness of the Charter -infringing state conduct and the impact of the breach on the appellant’s Charter rights. [48] The appellant’s second point arises from the trial judge’s conclusions at paras. 13-15 of his ruling, set out above. He argues that, in finding Cst. Murphy a credible witness and accepting his testimony that the appellant was known to the police as the operator of the Volkswagen before the affidavit was sworn, the trial judge misapprehended the officer’s testimony. The appellant says on a proper interpretation of this evidence, the surveillance report only set out the vehicle licence and driver’s licence numbers and did not name the appellant. Further, Cst. Murphy’s evidence on cross-examination demonstrates he did not do a search that linked the appellant to the Volkswagen before he swore the affidavit. The appellant says the fact the Volkswagen is not listed with the other vehicle searches in the affidavit supports this interpretation. He maintains there was thus no evidentiary foundation for the trial judge’s conclusion that Cst. Murphy knew of the connection between the appellant and the vehicle before he swore the affidavit, and the judge erred in using this evidence to mitigate the severity of the s. 8 breach. When the state conduct on this point is properly assessed, he submits the evidence must be excluded. [49] I do not agree that the trial judge misapprehended Cst. Murphy’s evidence in any significant way. Instead, his evidence read as a whole supports the trial judge’s findings at paras. 13-15 of his reasons with one insignificant exception. The trial judge did err in finding, at para. 13, that the surveillance report named the appellant as the Volkswagen’s operator. That error has no impact on the substance of his conclusions, however, since it is clear the report set out registered owner information that named the appellant as the Volkswagen’s lessee and gave a driver’s licence number for its primary operator. Cst. Murphy searched that number before he swore the affidavit, thereby identifying the appellant as the vehicle’s operator. The search he neglected to do was the later confirmatory search that he typically performed immediately before swearing the affidavit. This lapse led him to inadvertently omit the information linking the vehicle and the appellant. [50] I would not accede to this ground of appeal. 2.       Did the trial judge err in considering the discoverability of the appellant’s identity? [51] The concept of discoverability in a s. 24(2) analysis refers to whether the evidence under review could have been discovered by the police using lawful means that did not breach the accused’s Charter rights. Discoverability is relevant to both the seriousness of the Charter -infringing state conduct and the impact of the breach on the rights of the accused. With respect to the former, discoverability may cut both ways. If the police deliberately ignore an alternative lawful means of obtaining the same evidence, the Charter -breaching state conduct becomes more egregious; if there was a legitimate reason for excluding that avenue, the state conduct will be viewed less severely. As to its impact on the accused, a breach will be viewed as less intrusive where the evidence could have been obtained by other lawful means, but the extent of the accused’s expectation of privacy remains an important consideration: R. v. C ô t é , 2011 SCC 46, at paras. 71-73. [52] The appellant’s arguments on this ground of appeal arise from these comments of Justice Cromwell, writing for the Court, at para. 70 of C ô t é : While discoverability may still play a useful role in the s. 24(2) analysis, it is not determinative. A finding of discoverability should not be seen as necessarily leading to admission of evidence. Nor should courts engage in speculation. As stated in Grant , where it cannot be determined with any confidence whether evidence would have been discovered in the absence of the Charter breach, discoverability will have no impact on the s. 24(2) inquiry. ... [53] The appellant argues, first, that the trial judge wrongly engaged in speculation in finding that the police could have obtained an authorization to lawfully intercept communications from UM 9373. He submits the trial judge should have excised not just paras. 90 and 91 from the affidavit due to the s. 9 breach, but everything else that referred to him as well, such as the searches in paras. 87d and 92 describing his family’s trucking business, and all references to the conspiracy to export marihuana, in paras. 444-469. Once that information is eliminated, he contends that the involvement of UM 9373 was at best incidental, or unknown, when the police applied for the authorization, and it cannot be determined with any confidence that they would have applied to name this person as a target, or that an authorization would have been granted to intercept his communications. Moreover, he contends the conversations between UM 9373 and Dhanda were innocuous; other similarly-involved individuals were not named as targets; and the conversations between UM 9373 and Dhanda were known to police when they applied for P.32, yet UM 9373 was not named as a target then. [54] Further, the appellant submits that once the police decided to name the appellant as a primary target they were stuck with that choice and cannot now use their knowledge of UM 9373 or “Jetti” to rely on the “resort to” clause in P.40 to intercept the calls of 2428. [55] I see no merit in this ground of appeal. The trial judge’s conclusions that evidence of the communications on telephone numbers 9373 and 2428 were otherwise discoverable were based on his findings of fact and credibility. There was evidentiary support for those conclusions, and they cannot be described as speculative. Further, I am not persuaded that the breach of the appellant’s rights under s. 8 required the trial judge to excise the references to UM 9373 and “Jetti” from the affidavit. Nor am I convinced that excising the references to the corporate searches would have had any significant impact on the trial judge’s findings on this point. [56] The trial judge initially addressed the evidence describing the role of UM 9373 in his ruling on the voir dire , when he rejected the defence contention that, absent the appellant’s identity, the affidavit revealed no reasonable basis on which to infer that interception of the communications of UM 9373, or “Jetti”, would assist in the investigation of the offences contemplated by P.40. In reaching that conclusion, the judge reviewed the contents of the affidavit, and was satisfied UM 9373 had accompanied Dhanda on the lengthy trip related to the attempt to export marihuana, and the CFSEU investigation did not end when that scheme was aborted. Those findings are not challenged on appeal. The trial judge revisited this issue, albeit in a somewhat different context, in considering discoverability in his s. 24(2) ruling, and reached the same result. His conclusions were based on his assessment of the affidavit, and the evidence of Cst. Murphy and Ms. Chahal, both of whom he found credible. The appellant has not pointed to a palpable and over-riding error in the trial judge’s findings, and I would not interfere with them. [57] The interception of communications using 2428 had nothing to do with the naming of the appellant. It arose from communications between that number and Ho, a primary target under P.40, Ms. Chahal’s identification of 2428 as UM 9373, and the “resort to” clause in P.40. [58] The appellant also asserts the trial judge gave too much weight to discoverability in minimizing both the seriousness of the Charter -infringing state conduct and the impact of the s. 8 breach on the appellant’s right to privacy. He says the result was an overly superficial analysis that wrongly led to admission of the evidence, and maintains the trial judge should instead have followed R. v. Sanghera , 2012 BCSC 541, a case in which an authorization permitted interception of calls made by the accused from a mobile phone that was obtained in an unlawful search. In assessing the impact of this breach on the accused’s Charter rights in her s. 24(2) analysis, the trial judge declined to give significant weight to the fact the calls would have been discoverable in any event through the “resort to” clause in the authorization. She contrasted the fleeting nature of wiretap interceptions obtained through a Charter breach with more concrete evidence that exists apart from the breach and remains available for discovery: [29]      Wiretap interception, by contrast, operates as an ongoing process which either captures communications as they occur or loses them forever.  The concept of “inevitable discovery” therefore has little meaning in a practical or actual sense, and instead amounts to an assertion that the police could have taken alternative steps to ensure that the interceptions in issue fell within the scope of valid portions of the Authorization. [59] In Sanghera , the judge was not convinced the police could have taken steps to meet that high standard. By contrast, the trial judge’s findings here produce greater certainty that the “alternative steps” referred to in Sanghera were available to the police, independent of the s. 8 breach. [60] Nor am I persuaded that the trial judge gave inordinate weight to discoverability. He recognized the high expectation of privacy in private communications, and considered the intrusiveness of electronic surveillance. He did not conclude that discoverability trumped these features, only that it diminished the impact of the breach in the circumstances. It was for the trial judge to weigh this factor, and this finding was open to him, given the strength of the evidence that UM 9373 was involved in the drug conspiracy. 3.       Did the trial judge err in finding the police had acted in good faith? [61] The appellant challenges the trial judge’s finding that the police acted in good faith in pursuing this investigation. He says it is more accurately described as a finding that Cst. Murphy did not act in bad faith, and the trial judge failed to appreciate that the absence of bad faith cannot be equated with good faith. As well, the appellant asserts the judge erred by placing unreasonable reliance on his finding of good faith. [62] In support of these arguments, the appellant points to several aspects of the investigation that he describes as sloppy and incomplete. The most significant relate to Cst. Murphy’s unquestioning reliance on Sgt. McLean’s traffic stop without further inquiry; Cst. Murphy’s failure to confirm and include in the affidavit his investigation of the appellant’s link to the Volkswagen; and the “unauthorized interception” of 2848. The appellant maintains these features of the investigation cannot be equated with good faith. [63] I earlier dealt with the appellant’s complaints concerning the information derived from the Volkswagen and the interception of 2848. For the reasons previously expressed, I am satisfied the trial judge’s findings of fact and credibility as to the validity of these aspects of the investigation preclude the appellant from relying on them as evidence of bad faith. [64] With respect to the appellant’s complaint that Cst. Murphy’s reliance on Cst. McLean’s traffic stop was unwarranted, he points to the findings of the trial judge as to the many defects in Cst. McLean’s investigation and report of the traffic stop. In essence, he found Cst. McLean had no useful recollection of his dealings with the appellant, and his minimal notes provided no justification for stopping him on suspicion of impairment. The appellant argues that if Cst. Murphy had made proper inquiries and read Cst. McLean’s report, it would have been obvious that the stop was unlawful and could not form the basis for identifying the appellant in the affidavit. The appellant maintains the officer’s failure to take these steps establishes negligence and is inconsistent with good faith, particularly since para. 98 of the affidavit demonstrates Cst. Murphy confirmed the accuracy of information provided by other participants in the investigation. [65] The difficulty in assessing this contention is that it was not raised below, and Cst. Murphy was not cross-examined about it. On the evidence available, the trial judge found it was reasonable for him to rely on information from another officer, and accepted the nature of the stop was not known until trial. Without further knowledge of this aspect of the investigation, I would not interfere with those findings. [66] The trial judge made clear and repeated findings consistent with his conclusion that the police acted in good faith. These were based on his assessment of the facts and Cst. Murphy’s credibility. In C ô t é , at para. 51, the Supreme Court reminds us that an appellate court may not re-characterize the evidence or substitute its own view of police conduct for that of the trial judge in the absence of any clear and determinative error. I am not persuaded the appellant’s complaints on this ground of appeal demonstrate such an error. Conclusion [67] I would dismiss the appeal. “The Honourable Madam Justice Neilson” I AGREE: “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Mandziak, 2014 BCCA 41 Date: 20140203 Docket: CA040499 Between: Regina Respondent And Ted Henry Mandziak Appellant Before: The Honourable Madam Justice Levine The Honourable Mr. Justice Chiasson The Honourable Madam Justice Garson On appeal from:  An order of the Provincial Court of British Columbia, dated November 27, 2012 ( R. v. Mandziak , Kelowna Docket 75606). Counsel for the Appellant: S.J. Tessmer Counsel for the Respondent: P. Eccles Place and Date of Hearing: Vancouver, British Columbia December 4, 2013 Place and Date of Judgment: Vancouver, British Columbia February 3, 2014 Dissenting Reasons by: The Honourable Madam Justice Garson Majority Reasons by: The Honourable Mr. Justice Chiasson ( page 21, para. 59 ) Concurred in by: The Honourable Madam Justice Levine Summary: The appellant was convicted of producing and possessing a controlled substance.  He appeals the decision of a Provincial Court judge to admit three documents into evidence.  The documents were seized by police when they searched the appellant’s residence pursuant to a search warrant.  The warrant limited seizure to documents addressed to the residence.  The documents in issue were not so addressed.  The seizing officer admitted that he knew seizure of the documents was not authorized by the warrant.  No evidence was led as to why he seized them.  The judge rejected the Crown’s submission that the seizure was authorized by s. 489 of the Criminal Code or pursuant to the “plain view doctrine” and held that the seizure was unlawful.  She admitted them into evidence pursuant to s. 24(2) of the Charter. Held: appeal allowed, per Chiasson J.A., Levine J.A. concurring.  The fact that there was no evidence or a paucity of evidence to support the Crown’s attempt to justify the unlawful seizure was not per se probative of whether the police acted in bad faith.  It merely left the seizure as unlawful with no explanation for it.  In the absence of any explanation, the officer was acting with wilful or reckless disregard of Charter rights.  Having established the police flagrantly ignored the warrant, the appellant had no obligation to provide an explanation for the officer’s conduct.  The documents included a passport and birth certificate.  Seizure of such documents was a serious intrusion into the appellant’s privacy interests.  Garson J.A. would have dismissed the appeal. Dissenting Reasons for Judgment of the Honourable Madam Justice Garson: Introduction [1] After a trial before a provincial court judge, the appellant, Mr. Mandziak, was convicted on one count of unlawfully producing a controlled substance contrary to s. 7(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “ CDSA ”), and one count of unlawful possession of a controlled substance for the purpose of trafficking, contrary to s. 5(2) of the CDSA . Both counts referred to cannabis marihuana. [2] Mr. Mandziak appeals his conviction on both counts. At issue is the trial judge’s decision to admit into evidence documents seized from the appellant’s home despite the fact that their seizure exceeded the scope of the search warrant, thereby infringing the appellant’s rights under s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Section 8 ensures that all Canadians have the right to be secure against unreasonable search and seizure. [3] The trial judge declined to exclude the documents pursuant to s. 24(2) of the Charter . Section 24 is a remedial clause. It reads: 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [4] On appeal, Mr. Mandziak asserts that the Charter -infringing conduct on the part of the police was deliberate. He contends that the judge erred in her application of s. 24(2) by deciding that the admission of the documents would not bring the administration of justice into disrepute, given the deliberate nature of the police conduct . [5] For the reasons that follow, I would dismiss the appeal on both counts. Background Facts [6] The background facts underlying the appeal are not in dispute and may be described quite briefly. [7] The RCMP obtained a search warrant for 3325 McQueen Road in Kelowna on June 22, 2011. The warrant authorized the search for “marihuana, marihuana plants, [and] documents addressed to 3325 McQueen Road, West Kelowna” (emphasis added). The underlined words were substituted by the Judicial Justice of the Peace for the language proposed by the police which was, “documents identifying ownership and/or residency of 3325 McQueen Road…” In the basement of the house, the police discovered a marihuana grow operation consisting of 236 marihuana plants. [8] The police seized a number of documents that were addressed to 3325 McQueen Road, as well as three documents that were not but which bore the name of the appellant: a passport, insurance documents, and a birth certificate. [9] A voir dire was not held to determine the admissibility of the three documents; rather, the judge ruled on their admissibility at the conclusion of the trial. She admitted all three documents. I will return below to a discussion of this clearly improper procedure and its possible impact on the record. [10] The evidence, on which the appellant says the judge ought to have found bad faith and thus excluded the documents, is the evidence of two officers, Constables Boyle and Rode. [11] Constable Boyle was the lead investigator and the officer responsible for obtaining the search warrant. With other officers he attended at 3325 McQueen Road to execute the warrant. Constable Boyle was aware of the restriction contained in the search warrant. He assigned Constable Rode the role of Exhibit Officer. He drew Constable Rode’s attention to the restriction in the warrant but after that, left it to him as to what documents he seized. [12] Constable Rode testified that as Exhibits Officer he was responsible for seizing documents. He testified that he was aware of the warrant’s parameters. He admitted that the warrant did not authorize seizure of the passport, the birth certificate, or the insurance documents addressed to “Ted Mandziak at a different address”. The entirety of Constable Rode’s testimony on this point is found in the following passage: Q         Did you review the search warrant prior to conducting your search and seizure at this address at 33 -- A          Yes, I did. Q         -- 25. Okay. You knew by looking at that search warrant that the only documents you were entitled to seize, pursuant to the warrant, were the documents addressed to 3325 McQueen Road, correct? A          Correct. Q         Passport’s got no address on it, does it? A          That is correct. Q         Birth certificate’s got no address on it, right? A          Yes. Q         Mail addressed to a Ted Mandziak at a different address does not have the address of 3325 McQueen Road on it, correct? A          Correct. Q         You knew that the warrant did not authorize the seizure of those documents, correct? A          That is correct. Q         Your senior officer there was Corporal Jolley, was it? A          That is correct. Q         Did you talk to Corporal Jolley about seizing these items that were not listed on the search warrant, these documents? A          We talked about it -- Q         Yes. A          -- but I did not document that, no. Q         You -- you didn’t doc -- well, do you recall having a conversation with him as to whether or not, for instance, “Geez, Corporal, it says here documents addressed to 3325, but I really want to seize this guy’s passport. Is that all right if I do it?” A          Mm-hmm. Q         Did you have that conversation? A          No, I do not. Q         No. So you didn’t check with any of the senior officers whether it would be okay to seize documents that fell outside the document listing in the search warrant. A          That is correct. Q         You know that a search warrant is a document that authorizes the police to do certain things? A          Correct. Q         In particular, to search for certain things and to seize them. A          Correct. Mr. Tessmer:   No further questions, Your Honour. The Court:       Any re-examination? Ms. McParland:    No. [13] He was not asked for any further explanation concerning his seizure of the three impugned exhibits. Trial Judge’s Ruling on the Admissibility of Exhibits [14] The judge adopted, after Crown counsel refused to consent to a voir dire and defence counsel suggested one was not necessary, a somewhat unusual procedure at trial. Rather than declaring a voir dire on the question of the admissibility of the three impugned documents, the judge heard all the evidence in the trial, allowed the documents to be entered as exhibits, and ruled on their admissibility after the conclusion of argument. Ultimately, she decided that the exhibits should not be excluded pursuant to s. 24(2). [15] As will be seen in the discussion below, this procedure may have impacted the examination and cross-examination of the police witnesses, particularly Constable Rode, as neither the Crown nor defence explored (as they might have done in a voir dire ) his reasons for seizing exhibits that were outside the scope of the search warrant. [16] The judge described the testimony of the officers concerning the search warrant and the seizure of the documents in her ruling. She wrote: [11]      Constable Boyle showed the search warrant to the other officers, including Constable Rode and Corporal Jolley, at the briefing before the execution of the warrant. He pointed out the constraints of the search warrant. [12]      Constable Boyle was present with a number of officers when the warrant was executed at 3325 McQueen Road. A marihuana grow operation was found in the basement of the residence. No one was present when the police arrived to execute the warrant. [13]      Constable Rode was the exhibits officer. He read the warrant at the briefing. He made the determination to seize a number of items: weigh scales, books on growing marihuana, cash, a money-counting machine, a notebook with entries regarding the marihuana crop. [14]      In the kitchen on the table were located a number of documents: a TD Bank Visa statement addressed to Ted Mandziak at 3325 McQueen Road, which was Exhibit 3; an unopened envelope addressed to Ted Mandziak at 3325 McQueen Road, Exhibit 4; ICBC documentation relating to insurance for a vehicle, addressed to Ted Mandziak at 40 − 2065 Boucherie Road, Westbank, Exhibit 5; a Canadian passport issued to Ted Mandziak with the bearer's permanent address listed at 3325 McQueen Road, which was Exhibit 6; and a British Columbia birth certificate in the name of Ted Mandziak, Exhibit 7. [15]      Constable Rode agreed in cross-examination that the search warrant did not authorize the seizure of documents not addressed to 3325 McQueen Road. He did have a general discussion with Corporal Jolley about seizing exhibits that day, but could not recall the particulars of that discussion. He did agree that he did not consult with his superior officers with respect to his decision to seize any particular items. [17] At paras. 19−20 of her ruling the trial judge said: ... It is clear that Exhibit 7, the birth certificate, and Exhibit 5, the ICBC insurance documents, are not documents specifically authorized for seizure by the search warrant. What of the passport?  On examination, the passport at page 4 does have the address of 3325 McQueen Road. Under the instruction “Bearer’s permanent address” is written in handwriting, 3325 McQueen road, Westbank, VHT [ sic ] 1B7. The instructions in the passport, if the document is found, are to return the passport to the local police or mail the document to Passport Canada in Gatineau, Quebec. Based on this, I cannot conclude the passport is a document addressed to 3325 McQueen Road. [18] Having concluded at para. 31 that seizure of Exhibits 5, 6, and 7, infringed Mr. Mandziak’s s. 8 right to be free of unreasonable search and seizure, the trial judge turned to the analysis for exclusion under s. 24(2). [19] Using the framework set out in R. v. Grant , 2009 SCC 32, the judge considered whether the admission of the evidence would bring the administration of justice into disrepute. In accordance with Grant , she instructed herself that she should consider: first, the seriousness of the Charter breach; second, the impact of that breach on the accused’s Charter -protected rights; and third, the societal interest in having criminal matters adjudicated on their merits: at para. 33. [20] In considering the seriousness of the Charter -infringing conduct, she found that the officer responsible for seizing exhibits was inexperienced, and that the evidence did not support an inference that he acted in bad faith. The judge found that the Charter breach was serious but not egregious. She noted that the officers were already lawfully inside the appellant’s home when they seized the impugned exhibits. She also found that the three exhibits in question were all found in the open on a kitchen table. [21] Next, she determined that the impact on Mr. Mandziak’s Charter rights was minimal. He had argued that he had been without his passport and birth certificate for a significant period of time. But the judge found that there was no evidence that his mobility had been affected by the seizure of these documents. Moreover, he had not brought an application seeking the return of the documents despite being entitled to do so: at paras. 39−41. [22] Finally, at para. 43, she concluded that the societal interest in having this case adjudicated on its merits was high. In support of her conclusion she noted that the allegations were serious, and that the exhibits were important to the Crown’s case, real evidence that was reliable and not conscripted. [23] Accordingly, the trial judge concluded that, after balancing the Grant factors, admitting the documents into evidence would not bring the administration of justice into disrepute. Trial Judgment [24] In her reasons for trial judgment, based on all the evidence seized by the police, including other lawfully seized documents addressed to Mr. Mandziak at 3325 McQueen Road, the judge found that Mr. Mandziak resided in, and controlled the house at 3325 McQueen Road. She convicted him of unlawfully producing marihuana and unlawfully possessing marihuana for the purpose of trafficking. [25] In reaching her conclusion that Mr. Mandziak resided at 3325 McQueen, in West Kelowna, she relied on the documents seized at the house as evidence that Ted Henry Mandziak occupied the house and that he was the same person charged with the offences. She mentioned the birth certificate as well as the passport in reaching this conclusion. In her reasons for judgment she says: [7]        I have considered that a number of documents, namely a TD Canada Trust document, a TD Visa statement, a Rogers bill, and a birth certificate all in the name of Ted Henry Mandziak were found in the residence. The bills and bank documents were all current documents in that they were not old or dated. [8]        Also found was a passport in the name of Ted Henry Mandziak. In that document someone has written that the bearer's permanent address is 3325 McQueen Road. I have examined the passport. The photograph of the person in that passport is the individual seated in court today. I conclude that the accused person in court is the same person as is depicted in the passport. [9]        Given the uniqueness of Mr. Mandziak’s name, I conclude that the accused is the owner of the other documents found at the residence; namely, the bank statements, bills, and insurance documents. Discussion Issue on Appeal [26] The central issue in this case is whether the trial judge erred in finding that there was a paucity of evidence on which to infer bad faith on the part of Constable Rode despite the officer’s admission that he was aware of the limitations contained in the search warrant. The appellant argues that while it is true that there is no testimony that speaks to why Constable Rode seized the impugned documents, his unequivocal admission that he knew the specific documents in question could not be lawfully seized is enough to satisfy the accused’s burden of proving the facts necessary for exclusion of the evidence, namely that the officer “willfully” violated the accused’s Charter rights. [27] The appellant further argues that the officer’s knowledge that he was breaching the accused’s Charter rights is evidence of conduct that may be characterized as “deliberate police conduct in violation of established Charter standards [tending] to support exclusion of the evidence” ( Grant at para. 75), and consequently the evidence should not have been admitted under s. 24(2). Standard of Review [28] The standard of review of a trial judge’s findings under s. 24(2) is a deferential one. “Where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review”: R. v. Côté , 2011 SCC 46 at para. 44; R. v. Beaulieu , 2010 SCC 7 at para. 5; R. v. Vu , 2013 SCC 60 at para. 67. Absent a palpable and overriding error, an appellate court should not interfere with the decision of the trial judge to admit or exclude evidence under s. 24(2). The Grant Test for Exclusion of Evidence under Section 24(2) [29] Grant not only articulates a three part inquiry to determine the admissibility of the evidence obtained in breach of the Charter , but situates that inquiry in the context of the court’s role in assessing the overall concern for the reputation of the administration of justice. McLachlin C.J.C. and Charron J., speaking for the majority, explain: [67]      The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term “administration of justice” is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. [68]      The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute . [69]      Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. [70]      Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. [71]      A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence . (a) Seriousness of the Charter -Infringing State Conduct [72]      The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. [73]      This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter . [74]      State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute . [75]      Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira , [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest , [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch , [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay , 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends [page396] to support exclusion of the evidence . It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter -infringing conduct was part of a pattern of abuse tends to support exclusion. [Emphasis added to paras. 68, 71, 74, and 75.] Seriousness of the Breach [30] The appellant argues that the “Crown did not lead any evidence from Constable Boyle or Constable Rode as to why the items were seized; … whether they were discovered inadvertently; or if there was any belief that the documents would afford evidence with respect of an offence.” The officers, he says, intentionally disregarded the scope of the warrant. He argues that the judge minimized the seriousness of the breach, particularly in light of the express limitation contained in the warrant. Noting that the officers did not hold an honest and reasonable belief that they were authorized to seize the exhibits, he argues that the judge’s failure to find that the officers acted in bad faith is a palpable and overriding error. [31] I have set out above Constable Rode’s evidence concerning his seizure of the impugned exhibits. [32] As noted by the trial judge, neither of the officers were asked any questions about the reasons for, or explanation why, Constable Rode seized documents apparently exceeding the scope of the warrant. Constable Rode was not asked any questions from which the judge could draw conclusions about the officer’s state of mind or whether he had a “genuine belief in the lawfulness” of the seizure: R. v. Ward , 2010 BCCA 1 at para. 14. The evidence was sufficient for the judge to conclude that Constable Rode knew the documents exceeded the scope of the warrant. But based on that sole admission, without more, she was not able to draw the inference that the officers acted in bad faith. She concluded that, in the circumstances, the breach was serious but not egregious. After rejecting the applicability of the plain view doctrine she said (at para. 37): the paucity of the evidence also does not permit an inference of bad faith as opposed to the lack of experience of the exhibits officer. This finding that bad faith was not established − that in turn contributed to the judge’s conclusion that the administration of justice would not be brought into disrepute if she admitted the three documents − is at the heart of this appeal. Is the officer’s admission that he knew the limits of the search warrant, and knew that he was not authorized to seize the three documents, knowing conduct sufficient to ground a finding of egregious conduct which would, in turn, tend to favour exclusion of the evidence? [33] Before I consider further the seriousness of the breach, I turn to the question of the seizure of the passport. Although the judge did not mention it as a factor in respect to her conclusion that there was no bad faith, the passport did contain the appellant’s address at 3325 McQueen Road. The judge said: [19]      What of the passport? On examination, the passport at page 4 does have the address of 3325 McQueen Road. Under the instruction “Bearer’s permanent address” is written in handwriting, 3325 McQueen Road, Westbank, VHT [ sic ] 1B7. The instructions in the passport, if the document is found, are to return the passport to the local police or mail the document to Passport Canada in Gatineau, Quebec. Based on this, I cannot conclude the passport is a document addressed to 3325 McQueen Road. [34] The fact that the passport did contain the appellant’s address, is relevant to the question of seriousness of the breach, and ultimately to the question of whether the admission of this evidence would bring the administration of justice into disrepute. [35] Returning to the question of the trial judge’s treatment of bad faith, I take from her comment about the paucity of the evidence that she could find neither bad faith nor good faith. She was of the view that there was simply insufficient evidence of the officer’s state of mind to enable her to do so. [36] (The fact that the officer was asked no questions about his state of mind, apart from his knowledge that the exhibit was not within the terms of the search warrant, may stem from the procedure adopted in which the question of admissibility, was determined in the trial not at a voir dire . This may have constrained counsel in their examination and cross-examination of the witness.) [37] The question of “good faith” when examining an officer’s conduct in breach of the Charter is not determinative of the first stage of the inquiry; but in Grant it was clearly identified as attenuating conduct. The absence of evidence of good faith in the case at bar is troublesome because without any explanation for the breaching conduct the assessment of the seriousness of the breach must tend towards exclusion, or at the very least it would constitute a neutral factor. [38] Although R. v. Smith , 2005 BCCA 334, pre-dates Grant , it remains useful authority on the question of the bounds of good and bad faith under s. 24(2): R. v. Caron , 2011 BCCA 56 at para. 38. Smith establishes an objective/subjective test for both good and bad faith conduct. In dealing with the seriousness of the breach, at para. 33, Ryan J.A. quoted with approval from Watt’s Manual of Criminal Evidence (Toronto: Thomson Carswell, 2004) at pp. 683−84 as to the type of factors that may be relevant: Consideration of the seriousness of a Charter violation may involve, but is not limited to questions like the following: i.      How serious was the Charter infringement? ii.     Was the Charter infringement committed in good faith, inadvertently or as a result of a momentary error of judgment? iii.    Was the Charter infringement deliberate, wilful or flagrant? iv.    Was the Charter infringement isolated or part of a larger pattern of law enforcement disregard for Charter rights? v.     Were other investigatory techniques available, equally viable and without Charter infringement? vi.    Was the Charter infringement of one or more than one Charter right? vii.   Was the Charter infringement a significant departure from the Charter standard? viii.  What, if any, justification is asserted for the Charter infringement and what, if any, evidence is relied on to support it? ix.    Did the Charter infringement occur as a result of reliance on earlier judicial precedent or statutory provisions? x.     Was the Charter infringement accompanied by any other statutory violation or abuse of common law powers? xi.    Was there any urgency or danger to life, health or property? xii.   What Charter right was violated? [39] She continues to expand on her discussion about the bounds of the test for the seriousness of the breach at paras. 55−61: The test for determining the seriousness of a Charter violation was refined in R. v. Collins , [1987] 1 S.C.R. 265. In that case Lamer J. adopted the words of Le Dain in R. v. Therens , [1985] 1 S.C.R. 613, at p. 652, where he said: The relative seriousness of a constitutional violation has been assessed in light of whether it was committed in good faith, or was inadvertent or of merely a technical nature, or whether it was deliberate, wilful or flagrant. [Emphasis added.] [56] As I understand the case-law that has followed, good faith on the part of the offending police officers mitigates the seriousness of the offence while a deliberate or flagrant disregard will enhance its seriousness. It is a question of degree. The cases have not equated a finding of no good faith with a finding of bad faith. I would suggest that this is because of the way good faith has been defined. [57] In R. v. Kokesch , [1990] 3 S.C.R. 3, 61 C.C.C. (3d) 207, Mr. Justice Sopinka juxtaposed the terms “good faith” and “flagrant”. He said, at p. 228: An equally important aspect of the seriousness of the violation is the manner in which the police conducted themselves in deciding to execute this warrantless perimeter search. Was the s. 8 violation committed in “good faith”, or was it “flagrant”? Both are terms of art in s. 24(2) cases. [58] In Kokesch , Mr. Justice Sopinka seemed to accept that “good faith” is a state of mind, an honestly held belief, but he also found that to constitute good faith the belief must be reasonably based. The evidence in Kokesch established that the police officers were mistaken about their authority to trespass on a homeowner’s property. Writing for the majority, Sopinka J. said this about the finding of the trial judge that the officers acted in good faith (at p. 230): Secondly, even if Judge Cashman found that the constable honestly but mistakenly believed that he had the power to search, it is my view that in these circumstances the constable simply cannot be heard to say that he misapprehended the scope of his authority. As Chief Justice Dickson has amply demonstrated in his reasons in this appeal, “[t]his court consistently has held that the common law rights of the property holder to be free of police intrusion can be restricted only by powers granted in clear statutory language” (p. 13) [ante, p. 218]. The contrary contention is, in Chief Justice Dickson’s words, “without foundation”. The police must be taken to be aware of this court’s judgments in Eccles v. Bourque , [1975] 2 S.C.R. 739] and Colet v. The Queen , [1981] 1 S.C.R. 2, and the circumspection of police to expand on her discussion about the bounds of the test for the seriousness of the breachpowers that those judgments represent. Either the police knew that they were trespassing, or they ought to have known . Whichever is the case, they cannot be said to have proceeded in “good faith”, as the term is understood in s. 24(2) jurisprudence. [Emphasis added by Ryan J.A.] [59] Sopinka J. found support for this proposition in R. v. Genest , [1989] 1 S.C.R. 59. He continued: ... Chief Justice Dickson, speaking for the court, held that the Crown could not argue that the police officers’ failure to recognize obvious defects in a search warrant was inadvertent. Even in the absence of evidence of bad faith , the seriousness of the Charter violation in that case was enhanced, because “the defects in the search warrant were serious and the police officers should have noticed them ” .... [Underlining added by Ryan J.A.] [60] Thus, Sopinka J. does not equate a lack of good faith with bad faith. It seems to follow from this passage that in order to qualify as “bad faith” the actions of the police must be knowingly or intentionally wrong. [61] To sum up, good faith connotes an honest and reasonably held belief. If the belief is honest, but not reasonably held, it cannot be said to constitute good faith. But it does not follow that it is therefore bad faith. To constitute bad faith the actions must be knowingly or intentionally wrong. [40] In R. v. Perjalian , 2011 BCCA 323, Neilson J.A., speaking for the Court, said that the finding of good faith or bad faith is not determinative of the analysis, (at para. 62): While the trial judge’s treatment of these breaches in his s. 24(2) analysis was brief, I find no error in his assessment of them. There is nothing in Grant to suggest a finding of good or bad faith on the part of the police is decisive in that analysis. That question is just one of several factors relevant to assessing the seriousness of the violation . The trial judge did not make an express finding as to the severity of the breaches, but it is implicit in his reasons that he viewed them as resting at the lower end of the spectrum. I am satisfied that assessment was justifiable. There was nothing deliberate or flagrant about the brief delay in informing Mr. Perjalian of the reason for his initial detention, his arrest, or his right to counsel. He was detained for about three minutes before that information was provided, and events moved quickly during that time, refocusing the object of the investigation. These Charter violations were thus fleeting and, while Mr. Perjalian argues they undercut his ability to make an informed decision about how to conduct himself with the police, it is difficult to envisage how prompter attention to his s. 10 rights would have altered his conduct in any meaningful way. [Emphasis added.] [41] More recently this Court has discussed the manner in which findings of bad or good faith fit within the Grant inquiry. In R. v. Voong , 2013 BCCA 527, MacKenzie J.A., speaking for the Court, considered the question of the seriousness of the breach of the accused’s Charter protected rights by a junior police officer, (at para. 94): Although the judge found Constable LaValley to be an honest and credible witness, the absence of bad faith does not equate to good faith, nor does the absence of good faith equate to bad faith [citations omitted]. Here, the errors were apparently due to lack of supervision and inexperience. [42] MacKenzie J.A. noted the lack of experience, and lack of adequate supervision over the inexperienced officer, the lack of urgency in seeking the warrant, and that the trial judge had found the officer credible. She found that the first stage of the Grant inquiry ought to have favoured exclusion of the evidence. Ultimately, she held that the evidence should not be admitted under s. 24(2). [43] It should be remembered, though, that Grant does not speak of bad faith, but rather of “deliberate and egregious conduct that disregards the rights of the accused” while emphasizing that the inquiry is one that seeks to balance all of the relevant factors: at paras. 107−108. The conduct here in question was deliberate. Although the evidence did not permit the judge to conclude that the officer did not act in bad faith, neither could she conclude that he acted in bad faith. There was simply not sufficient evidence before her to make either finding. [44] The knowing or deliberate nature of the conduct would tend to place the police conduct on the more serious end of the spectrum under the first branch of the Grant inquiry. On the other hand, the seizure of the passport, while not specifically addressed to Mr. Mandziak at McQueen Road, did contain this address as his permanent address. The remaining impugned exhibits were his birth certificate and motor vehicle insurance papers related to a vehicle parked in the driveway. All these documents were on a table. The police officers could have noted the particulars from them even if they had not been seized. Nonetheless, the deliberate nature of the officer’s conduct remains a concern on the first branch of the Grant test. I shall return to the impact of the seriousness of the breach when I consider the balancing of factors dictated by the Grant analysis. Impact on the Charter Protected Rights of the Accused [45] The appellant focuses his argument under the second part of the Grant analysis on the high expectation of privacy that an individual has in his or her home. Further, he says that the judge failed to recognize the impact on him of the seizure of “intensely private” documents such as his passport and birth certificate. [46] The Crown argues that the judge did not err in finding that the intrusion into the appellant’s Charter protected rights was not significant. The Crown points out that the police were lawfully in the appellant’s residence in any event, were authorized to review the readily visible documents, and could have simply noted the contents without seizing the documents. These factors, the Crown says, support the trial judge’s conclusion that the impact on the appellant’s Charter rights was minimal. [47] I agree. The judge did not err in concluding that the impact on the appellant’s rights was minimal. Society’s Interest in Adjudication on the Merits [48] At para. 82 of Grant , the Supreme Court describes the third part of the test for exclusion: The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interest of truth with the integrity of the justice system.”... The court must ask “whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial [citation omitted]. [49] The appellant argues that the societal balance in this case favoured exclusion. He says there was no basis for the trial judge’s statement that the societal interest in having this case adjudicated on its merits is high. [50] The trial judge determined that the marihuana grow operation was a substantial illegal operation and that the societal interest favoured exclusion for the reasons she stated, and that I have already mentioned. [51] In R. v. Perjalian , 2011 BCCA 323, this Court held (at para. 60): Whether evidence should be excluded under s. 24(2) of the Charter is a question of law, reviewable on a standard of correctness. The factual findings underlying that determination, however, deserve appellate deference, absent palpable and overriding error: Grant at para. 129, R. v. Lauriente , 2010 BCCA 72, 251 C.C.C. (3d) 492 at para. 19. [52] The trial judge’s finding in regard to the societal interest in prosecuting this case on its merits is consistent with this Court’s jurisprudence on the question: R. v. Larson , 2011 BCCA 454 at para. 64. I would not accede to the appellant’s argument on the third branch of the Grant analysis. Administration of Justice [53] Finally Grant dictates an overarching determination as to whether the administration of justice would be brought into disrepute by the inclusion of the impugned evidence having regard to all the relevant circumstances. The appellant’s final submissions are directed to this balancing requirement. He argues that the judge improperly balanced the factors discussed above. [54] The concern for the reputation of the administration of justice requires the court to examine and balance the need to dissociate itself with what, in this case, is a knowing or deliberate, if minimally impairing, breach of the appellant’s Charter rights, with the Court’s truth seeking functions. [55] In my view, the seizure of the passport was so close to the terms of the search warrant that its admission into evidence could not possibly bring the administration of justice into disrepute. As to the other two exhibits, the officers were lawfully in the appellant’s residence and the birth certificate and insurance papers were visible on a table. The birth certificate and insurance papers were not determinative of the guilt of the accused. [56] As I have already said, the fact that the judge could not find that the officer acted in good faith does not and did not lead her to conclude that he acted in bad faith. A balancing of the factors is required and, in this case, it is not clear that the “knowing” breach was sufficient to outweigh the other factors tending towards inclusion. The officer’s conduct was not a significant departure from Charter values. [57] Notwithstanding the deliberate conduct of Constable Rode, and applying the deferential standard of review, I am not persuaded that the trial judge erred in principle in the manner in which she balanced the relevant factors. Conclusion [58] I would dismiss the appeal. “The Honourable Madam Justice Garson” Reasons for Judgment of the Honourable Mr. Justice Chiasson (concurred in by the Honourable Madam Justice Levine): Introduction [59] I have had the opportunity to read the reasons for judgment of Madam Justice Garson.  With respect, I disagree with her conclusion and would allow this appeal. Background [60] The police sought a warrant to seize marihuana, marihuana plants and “documents identifying ownership and/or residency of” a specific address in Kelowna, British Columbia.  On the face of the warrant that was obtained, the words “identifying ownership and/or residency of” were struck out and the words “addressed to” were substituted therefor.  In the result, the warrant authorized the seizure of documents only if they were “addressed to” the Kelowna address. [61] The documents in issue on this appeal – a passport, a birth certificate and insurance papers – were not addressed to the Kelowna address. [62] The officer in charge of the operation confirmed that the justice of the peace who issued the warrant made the change and that he was aware of that fact.  He went over the search warrant with the officer who was to be the exhibit officer, the person who physically seized the documents, and drew his attention to the limitation in the scope of authorized seizure. [63] As my colleague notes, Constable Rode, the officer who seized the impugned documents, testified as follows: Q         You knew that the warrant did not authorize the seizure of those documents, correct? A          That is correct. Q         You know that a search warrant is a document that authorizes the police to do certain things? A          Correct. Q         In particular, to search for certain things and to seize them. A          Correct. [64] The Crown tendered no evidence to explain why the officers seized the documents.  It argued that the seizure could be justified on the basis of the “plain view doctrine” or s. 489 of the Criminal Code , R.S.C. 1985, c. C-46.  These contentions were rejected by the trial judge. [65] The judge held that the seizure was unreasonable and that the appellant’s rights under s. 8 of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [ Charter ], were infringed.  She then addressed whether the admission of the documents would bring the administration of justice into disrepute.  The judge concluded that “[w]hile the Charter breach was serious, it was not egregious.”  She held that the impact on the appellant’s Charter rights was minimal and that there was a high societal interest in having the case adjudicated on its merits.  Balancing these factors, the judge concluded that the admission of the documents would not bring the administration of justice into disrepute. Discussion [66] Warrantless searches are prima facie unreasonable under s. 8 of the Charter , and the party seeking to justify a warrantless search has the onus of rebutting this presumption ( Hunter v. Southam Inc. , [1984] 2 S.C.R. 145).  The same onus applies where items that are outside the scope of a search warrant are seized ( R. v. Jones , 2011 ONCA 632). [67] In the present case, the Crown had the onus of rebutting the presumption.  The Crown’s attempt to justify the seizure on the “plain view doctrine” or s. 489 of the Criminal Code were both rejected by the judge on the basis that there was no evidence to support either.  She first dealt with the “plain view doctrine” stating at para. 24: there is no evidence before me to conclude that the evidentiary nature of these documents was immediately apparent to Constable Rode and that the evidence was discovered inadvertently. At para. 29, the judge dealt with s. 489 as follows: [29]      I must conclude there is no evidence that these particular documents were seized because either Constable Boyle or Constable Rode had reasonable grounds to believe that they either were obtained by the commission of an offence, had been used in the commission of an offence, or would afford evidence in respect of an offence. She concluded at para. 30: [30]      Therefore, neither under s. 489 of the Criminal Code nor the common-law plain view doctrine can it be said that the seizure of these three documents was lawful.  The evidence before me provided an insufficient foundation to make findings of fact necessary to justify the seizure under either basis that would make it lawful. [68] The circumstances at the threshold of the Charter s. 24 analysis in this case were as follows: 1.  documents were seized unlawfully in violation of the appellant’s rights under s. 8 of the Charter ; 2.  the officers involved in the seizure were aware fully that their request to seize such documents had been rejected by a justice of the peace; 3.  the officer who physically seized the documents knew that the purpose of a warrant is to authorize seizure; 4.  he also knew that the warrant under which he was operating did not authorize seizure of the documents; 5.  the police proffered no explanation for the unlawful seizure; 6.  there was no evidence to support findings of fact that were required to sustain the only justifications proposed by the Crown. [69] The judge undertook the analysis mandated by R. v. Grant , 2009 SCC 32.  In Grant , the Court set out at para. 71 the three factors to be considered in determining whether the admission of unlawfully obtained evidence would bring the administration of justice into disrepute: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. [70] The first inquiry is the seriousness of the Charter breach.  In Grant, the Court stated at paras. 72-74: [72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. [73]      This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter . [74]      State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [71] In the present case, the judge stated at para. 37: [37]      While there is insufficient evidence to find that the plain view doctrine and s. 489 apply, the paucity of the evidence also does not permit an inference of bad faith as opposed to the lack of experience of the exhibits officer. I do not agree with the judge’s analysis. [72] The fact that there was no evidence or a paucity of evidence to support the Crown’s attempt to justify the unlawful seizure was not per se probative of whether the police acted in bad faith.  It merely left the seizure as unlawful with no explanation for it.  What was probative was the fact the seizing officer acted knowing that he was seizing documents he was not authorized to seize; in fact, documents he specifically had not been authorized to seize.  In the absence of any explanation, how can it be said that the officer was not acting with wilful or reckless disregard of Charter rights? [73] In my view, the conduct of the police fits the observation of the Court at para. 75 of Grant : [75]      Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira , [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest , [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch , [1990] 3 S.C.R. 3, at pp. 32‑33, per Sopinka J.; R. v. Buhay , 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter -infringing conduct was part of a pattern of abuse tends to support exclusion. The documents in issue in this case were seized by “deliberate police conduct in violation of established Charter standards”. [74] There is nothing in the evidence to suggest that the officer seized the documents because he lacked experience.  He knew a warrant was required; he knew the warrant expressly did not authorize the seizure he made. [75] I see no relevance to whether the documents were not hidden or to the fact that the police were lawfully in the premises.  They were entitled to search for the category of documents stated in the warrant.  Seizure of the documents in issue was not lawful. [76] Counsel for the appellant established that the conduct of the police flagrantly ignored the warrant.  He had no obligation to go further.  Counsel for the Crown acknowledged that had there been a voir dire , Crown counsel should have asked the officer why he seized the documents.  Counsel on appeal suggested that Crown counsel at trial could not have done so because the documents were dealt with in a trial rather than a voir dire .  I do not know why this would be so, but Crown counsel at trial was not in favour of a voir dire .  In any event, even if that was a problem for the Crown, in the circumstances of this case, it does not shift the obligation to provide an explanation to the defence or to erode the fact that the defence established that the police flagrantly ignored the warrant. [77] At the end of the day, the inquiry is objective.  As was said in Grant , the question is whether the admission of evidence, despite the Charter -infringing conduct of the police in obtaining it, will send a message to the public that the court condones state deviation from the rule of law.  In my view, on the facts of this case, admission of the unlawfully obtained documents would send such a message. [78] In the context of the second prong of the Grant analysis, defence counsel contended that the appellant’s ability to travel was affected by the seizure of his birth certificate and passport.  The judge rejected this contention stating that there was “no evidence to conclude that the [appellant’s] mobility has been affected by the seizure of these documents.”  She agreed with the Crown that the appellant could have applied for the return of the documents, which the appellant did not do.  The judge concluded that “the impact on the [appellant’s] Charter rights was minimal.”  I do not agree with that conclusion. [79] In my view, consideration of the effect of the seizure on the appellant’s ability to travel led the judge away from the real concern: the appellant’s privacy interest in his passport and birth certificate.  Such documents are highly personal.  In my view, the unlawful seizure of them was a serious intrusion into the appellant’s privacy interests. [80] I would not interfere with the judge’s assessment of the third factor, society’s interest in having the matter proceed on its merits. [81] In my view, the judge erred in her analysis of the Grant factors.  The admission of the documents was likely to bring the administration of justice into disrepute.  The conduct of the police is such that the court should be disassociated from it.  The invasion of privacy was serious.  I would not admit the documents. [82] The appellant asserts that this Court should acquit him because the judge relied on the documents, particularly the passport, to convict him.  He says that identity was in issue and the passport was the only link between him and the premises where the growing operation was found. [83] I agree that the trial judge relied on the passport to link the appellant to other documents and to the premises, but I am not prepared to find that he would have been acquitted but for the passport. [84] The Crown contends that the curative provision s. 686(1)(b)(iii) of the Criminal Code should be applied and the conviction sustained because conviction was inevitable on the evidence that is admissible.  I reject this proposition.  The trial judge relied heavily on the passport; evidence that linked the appellant to the premises.  Whether that link can be forged in the absence of the passport is not obvious. [85] In my view, a new trial is required. Conclusion [86] In my view, the passport, birth certificate and insurance documents should have been excluded from the evidence.  I would allow this appeal and direct a new trial excluding these documents. “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Madam Justice Levine”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Lam v. University of British Columbia, 2015 BCCA 2 Date: 20150106 Docket: CA041447 Between: Howard Lam Respondent (Plaintiff) And University of British Columbia Appellant (Defendant) And Arpel Industries Ltd., carrying on business as Arpel Security Systems, Arpel Security Systems Ltd., Arpel Security and Monitoring Ltd., Enerand Holdings Ltd., carrying on business as Caltech Tech Services, Peter Moore, carrying on business as Moore Security Systems, Thermo Forma Inc., Vancouver Coastal Health Authority operating as Vancouver General Hospital and UBC Hospital, Mallinckrodt, Inc. and Sanyo Electric Co., Ltd. (Third Parties) Before: The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Frankel The Honourable Madam Justice Bennett On appeal from:  An order of the Supreme Court of British Columbia, dated November 20, 2013 ( Lam v. University of British Columbia , 2013 BCSC 2094, Vancouver Docket S035269). Counsel for the Appellant: J.J. Arvay, Q.C. and R.J. Androsoff Counsel for the Respondent: A.M. Grant and D.A. Goldberg Place and Date of Hearing: Vancouver, British Columbia September 30, 2014 Place and Date of Judgment: Vancouver, British Columbia January 6, 2015 Written Reasons by: The Honourable Mr. Justice Chiasson Majority Reasons Concurring in the Result by: The Honourable Madam Justice Bennett (p. 29, para. 83) Concurred in by: The Honourable Mr. Justice Frankel Summary: This is a class action brought by men who deposited their sperm with the appellant.  The respondent is the representative of the class.  The sperm was kept in a freezer that malfunctioned, damaging or destroying the sperm.  The appellant raised an exculpatory clause in the contract of storage against the respondent.  He contends it offends the Warehouse Receipt Act [WRA].  The parties agreed to have a sub-issue tried to determine whether the appellant could rely on the WRA.  The issue at trial and on appeal was whether frozen human sperm is “property” for the purposes of the WRA.  The trial judge held that it was and that the appellant was precluded from relying on the exclusion clause. Held: Appeal dismissed, majority reasons of Bennett J.A. agreed to by Frankel J.A concurring in the result.  Per Chiasson J.A.:  For the purposes of the WRA, human sperm is “property”.  The task is to determine the meaning of “goods” in the WRA.  As of the date the class members deposited their sperm, medical science had advanced to the point where sperm could be considered to be property.  The judge concluded correctly that the plain meaning of goods in the WRA includes human sperm.  He also undertook a purposive or contextual analysis and correctly reached the same conclusion.  The decision of the Supreme Court of Canada in Harvard College does not support reading into the definition of goods in the WRA a limitation that goods are only property that can be traded in the market place.  Majority (per Bennett J.A. and Frankel J.A.): The definition of sperm as “property” is limited to the WRA in this case.  After applying a framework weighing the rights of the donors and the legislative restraints imposed on the donors, each of the donors had ample rights in relation to his own sperm specimen that invested him with ownership of the specimen sufficient to be defined as “property” and meet the definition of “goods” under the WRA. Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] The issue on this appeal is whether frozen, human sperm is “property” for the purposes of the Warehouse Receipt Act, R.S.B.C. 1996, c. 481 [ WRA ]. Background [2] The respondent, Howard Lam, is the representative plaintiff in a class proceeding against the appellant.  The members of the class had cancer and before undertaking radiation treatment stored their frozen sperm in an ultra‑cold freezer located in the appellant’s Andrology Laboratory. [3] In 1997, the respondent provided samples of his sperm for storage in the freezer.  In May 2002, it was discovered that the freezer had suffered a power interruption which damaged or destroyed the stored sperm. [4] At the time they deposited their sperm for storage, members of the class signed a Sperm Bank Facility Agreement (“Facility Agreement”).  It required depositors to pay a deposit fee, an annual storage fee and a withdrawal fee, all of which were fairly modest.  The agreement also stated: 4. WITHDRAWAL OF THE SPECIMEN You may at any time upon: (a)   payment of the Withdrawal Fee; (b)   delivery by your physician to us of 45 days prior written notice of withdrawal; and (c)   delivery to us of such withdrawal forms or releases as we require; require us to deliver to your physician within the 45 day notice period any part or all of the Specimen…. . 7. LIMITATION OF OUR LIABILITY By signing this Agreement you agree that neither we nor our successors or assigns nor any of our governors, directors, officers, employees or agents will be liable to you or anyone else for any destruction of, damage or alteration to or misuse of your Specimen for any reason whatsoever, including: (a)   the improper testing of your Specimen; (b)   improper freezing of your Specimen; (c)   improper maintenance and/or storage of your Specimen in a frozen state; or (d)   improper withdrawal and/or delivery of your Specimen. This exclusion of our liability extends to any damage, misuse or impropriety caused by or resulting from any malfunction of our freezing equipment (whether for causes within our control or not) or from any failure of utilities, strike, cessation of services or other labour disturbances or any failure or similar occurrence in our or any other laboratory or from any fire, earthquake or other acts of nature beyond our control, or caused by or resulting from any act, omission or negligent conduct on the part of us or our successors or assigns or any of our governors, directors, officers, employees or agents. [5] The appellant relies on the exclusion of liability in clause 7, against which the respondent raises s. 2(4) of WRA : A warehouser may insert in a receipt issued by the warehouser any other term or condition that (a)   is not contrary to any provision of this Act, and (b)   does not impair the warehouser’s obligation to exercise the care and diligence in regard to the goods as a careful and vigilant owner of similar goods would exercise in the custody of them in similar circumstances. [6] The parties agreed to have the following sub-issue tried: Is the [appellant] precluded from relying upon the exclusion clause in the Agreement as against the Class members by virtue of the Warehouse Receipt Act , R.S.B.C. 1996, c. 481 (the “ WRA ”)? [7] The trial judge answered the question “yes”. Trial judgment [8] The judge set out issues and sub-issues for decision: [6]        Based on these agreed facts, consideration of the question before the court requires examination of the following issues: 1.         Is the WRA applicable to the Sperm Banking Facility Agreement (the “Agreement”)? 2.         If the WRA applies, does it preclude the enforceability of the exclusion clause in the Agreement? [7]        The first issue raises a number of sub-issues for possible consideration including: · Are sperm/sperm samples “goods” as that term is defined in the WRA ? · Do principles of statutory interpretation preclude the WRA ’s applicability? · Is the defendant [appellant], as an operator of the Andrology Lab, “a warehouser” as that term is defined in the WRA ? · Were the Agreements issued by the defendant [appellant] “warehouse receipts” as that term is defined in the WRA ? [9] He then stated the positions of the parties noting at para. 10 that the appellant “conceded [that] its relationship with the class members was one of bailment for reward”.  The core position of the appellant at trial and on appeal is that the WRA and the Warehouse Lien Act , R.S.B.C. 1996, c. 480 [ WLA ], are one regime, and that “[i]t is necessary to restrict the meaning of ‘goods’ in the Warehouse Statutes to property that is the proper object of trade and commerce”: para. 13. [10] The judge set out relevant provisions of the WRA as follows: 1       In this Act: “goods” includes all property other than things in action, money and land; “warehouse receipt”" means an acknowledgment in writing by a warehouser of the receipt for storage of goods not owned by the warehouser; “warehouser” means a person who, for reward, receives goods for storage. 2(1)   A receipt must contain all of the following particulars: (a)     the location of the warehouse or other place where the goods are stored; (b)     the name of the person by whom or on whose behalf the goods are deposited; (c)     the date of issue of the receipt; (d)     a statement either (i)      that the goods received will be delivered to the person by whom or on whose behalf the goods are deposited, or to another named person, or (ii)     that the goods will be delivered to bearer or to the order of a named person; (e)     the rate of storage charges; (f)      a description of the goods or of the packages containing them; (g)     the signature of the warehouser or the authorized agent of the warehouser; (h)     a statement of the amount of any advance made and of any liability incurred for which the warehouser claims a lien. (2)  If a warehouser omits from a negotiable receipt any of the particulars set out in subsection (1), the warehouser is liable for damage caused by the omission. (3)  A receipt must not be considered not to be a warehouse receipt because of the omission of any of the particulars set out in subsection (1). (4)  A warehouser may insert in a receipt issued by the warehouser any other term or condition that (a)     is not contrary to any provision of this Act, and (b)     does not impair the warehouser’s obligation to exercise the care and diligence in regard to the goods as a careful and vigilant owner of similar goods would exercise in the custody of them in similar circumstances. 13     A warehouser is liable for loss of or injury to goods caused by the warehouser’s failure to exercise the care and diligence in regard to them as a careful and vigilant owner of similar goods would exercise in the custody of them in similar circumstances. He then considered whether the WRA applied to the Facility Agreement. [11] The judge concluded that the parties did not contemplate the application of the WRA at the time the class members signed the Facility Agreement because the issue was not raised until well into the present litigation.  He also observed that at the time the WRA was enacted it was not intended to apply to the storage of sperm because “technology for the storage of sperm was not in use and the common law did not recognize that sperm or body parts could be property”: para. 21. [12] In the judge’s view, “on a plain reading of the WRA it would appear that sperm is included in the definition of ‘goods’, and that the Agreement meets the definition of ‘warehouse receipt’”: para. 23.  Turning to his analysis, the judge began with the applicable legal principles: [26]      The “Driedger principle” has been adopted in the leading cases of Re: Rizzo & Rizzo Shoes Ltd. ; and Bell ExpressVu Limited Partnership v. Rex and in many other Supreme Court of Canada decisions. [27]      In order to determine and give effect to the intent of the legislature, courts utilize textual, contextual or purposive analyses. As noted in Canada Trustco Mortgage Co. v. Canada at para. 10, in each case, the relative effects of these three approaches may vary, but the court must seek to read the provisions in any statute harmoniously: The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play[s] a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole. [28]      Here, the plaintiff emphasizes a textual approach while [the appellant] contends a contextual or purposive analysis leads to an interpretation which is harmonious with the whole of the WRA . I will explain why I conclude that the definition of goods is precise and unequivocal and must play a dominant role in the interpretive process. Further, I will set out why the purposive or contextual analysis does not lead to an interpretation which displaces the plain meaning of the definition. [Citations omitted.] [13] The judge addressed the fact that the storage of human sperm was not contemplated at the time the WRA was enacted, stating: [32]      In The Interpretation of Legislation in Canada , 4th ed. (Toronto, ON: Thomson Reuters, 2011), Pierre-[ André Côté] sets out at 277 three principles which guide the application of the grammatical approach to interpretation: In the application of the grammatical method, one may be guided by three principles which specify its scope: 1) words must be given their ordinary meaning; 2) words must be given the meaning they had on the day the statute was enacted; 3) adding to the terms of the statute, or depriving them of effect, should be avoided. [33]      With regard to the second of those principles, [Côté] notes at 285 that: As a general rule, the point of reference of a statute should be the time of its enactment. As the role of the interpreter is to recreate the thoughts underlying the text of an enactment, it seems logical to give the words their ordinary meaning at the time of the legislation’s adoption, taking into account the context in which they were enacted. [34]      Of course, at the time of enactment of the WRA , the legislature would not have considered that sperm was property. There was no technology available for the effective storage of sperm and the common law did not recognize property in body parts or products. However, broad statutory categories can be held to include things unknown when the legislation was passed. [Côté] explains the rationale for this at 288: Not only can a statute apply to situations which did not exist when it was enacted, it can also govern phenomena which were virtually unimaginable at the time. If justified by its aim, and compatible with its wording, a statute can apply to inventions subsequent to its enactment. ... In each case, the court will ask itself if the provision’s purpose will justify application to the new invention, and whether the enactment’s terms are sufficiently general to permit its application to things unknown at the time of enactment. [14] He then referred to several fairly recent cases that concluded sperm is property: Yearworth v. North Bristol NHS Trust , [2009] EWCA Civ 37; Kate Jane Bazley v. Wesley Monash IVF Pty Ltd , [2010] QSC 118 (T.D.); C.C . v. A.W. , 2005 ABQB 290 ; J.C.M. v. A.N.A. , 2012 BCSC 584, and concluded: [41]      These cases did not consider whether the term “property”, as used in legislation, could include sperm. They were concerned with whether the common law now regards stored sperm or embryos as property. That distinction is of no consequence to the analysis I must make in this case. Courts in a variety of jurisdictions have come to the conclusion that stored sperm is property. I agree with the conclusion arrived at in these cases. The frozen sperm at issue in this case is the property of the class members. The sperm was ejaculated, frozen and stored for the purpose of using it for conception. Applying the current state of the law of property to the definition in the WRA leads to a conclusion that frozen sperm is “goods”. [15] The judge continued his analysis stating: [42]      The next step in the analysis is to ask if the purpose of the provisions in the WRA justifies the application of those provisions to the new definition of property. One of the purposes of the WRA was to codify the common law of bailment. Under the common law, a bailee is required to exercise the same care and diligence with respect to the bailed goods as a careful and vigilant person would exercise over his own similar goods in like circumstances. Sections 2(4) and 13 of the WRA effectively accomplish that. There is no reason why these provisions should not be applied to property that can be stored for reward which was not contemplated at the time the legislation was enacted. The purpose of requiring bailees to exercise adequate care and diligence applies equally to all kinds of property that can be stored for reward. [43]      The other step in the [Côté] analysis is to ask if the legislative provision in question is sufficiently general to permit its application to things unknown at the time of enactment. As I have already noted, the definition of goods is broad and inclusive. In other words, the provision is sufficiently general to apply to things unknown at the time of passage. There is no reason not to apply the provisions of the WRA to goods which fall within the current understanding of “all property other than things in action, money and land.” [16] The judge observed that the thrust of the appellant’s argument was that it is an offence under the Assisted Human Reproduction Act, S.C. 2004, c. 2, to sell human sperm.  If a warehouser were to issue a negotiable receipt or a transferrable non-negotiable receipt for frozen human sperm, the sperm could be sold, creating a conflict between the WRA and the Assisted Human Reproduction Act. The judge rejected the appellant’s submission, stating: [46]      The focus by [the appellant] on the ability of a warehouser of sperm to issue a negotiable receipt is misplaced. It is not an issue in this case because the Agreement does not purport to be negotiable. It is a nonnegotiable receipt. More importantly, the possibility of a warehouser issuing a negotiable receipt for the storage of sperm does not create the kind of conflict that requires “goods” to be interpreted not to include sperm. There is no requirement for a warehouser to issue negotiable receipts - the WRA provides for the issuance of nonnegotiable receipts. It also permits the inclusion of terms in a receipt so long as those terms are not contrary to provisions in the WRA : s. 2(4)(a). Further, if a receipt purports to be negotiable but another statute makes it an offence to sell the property in question, this would not create an irreconcilable conflict. It would only mean that the holder of the receipt would have to comply with other statutory provisions. [49]      The fact that sperm cannot be purchased does not prevent it from falling within the definition of ‘goods’ in the WRA . It simply reflects the fact that sperm, like other classes of property, is subject to control or regulation by other statutory provisions. If sperm is property that can be stored and for which a receipt can be issued, then it falls within the definition of ‘goods’ in the WRA . [17] At the end of his textual analysis, the judge concluded: [50]      In summary, on a grammatical or textual analysis, the frozen sperm specimens covered by the Agreement fall within the definition of goods in the WRA. The definition is clear and unequivocal; ‘goods’ is meant to include ‘all property’ with three exceptions. Those exceptions do not apply to sperm and the inclusion of sperm in the definition is not inconsistent with other provisions in the WRA . [51]      Nevertheless, I must be careful not to adopt a strictly literal approach to interpretation. I must consider the possibility of coming to a contrary conclusion by applying a purposive or contextual analysis. As noted by [Côté], I must ask if a purposive or contextual approach to the provisions in the WRA can justify the inclusion of sperm in the definition of property. He added: [52]      A strictly literal approach to statutory interpretation has long been rejected by the Supreme Court of Canada. As the court stated in Chieu v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 3, [2002] 1 S.C.R. 84 at para. 34, each provision must be read in its entire context: The grammatical and ordinary sense of the words employed in s. 70(1)(b) is not determinative, however, as this Court has long rejected a literal approach to statutory interpretation. Instead, s. 70(1)(b) must be read in its entire context. This inquiry involves examining the history of the provision at issue, its place in the overall scheme of the Act, the object of the Act itself, and Parliament’s intent both in enacting the Act as a whole, and in enacting the particular provision at issue. [18] The judge began his contextual and purposive analysis by observing that the “broad definition suggests that the legislature’s intention was to have an open and inclusive definition of goods rather than to restrict the application of the statute”: para. 53.  In his view, the definition of “goods” in the WRA differed from that in the WLA .  He rejected the appellant’s argument that the two statutes had to be read together.  In the judge’s view, the definition of “goods” in the WRA “is broader and … must have been intended to apply to a broader range of property items than the definition in the WLA ”: para. 54. [19] The appellant’s submission detailing the history of warehouse legislation was reviewed by the judge.  He then stated: [59]      [The appellant] asks the court to draw two conclusions from this historical analysis. First, it says that the Warehouse Statutes must be regarded as a “cohesive legislative scheme supported by their common origin”. Second, it says that when the Warehouse Statues are considered as a whole, the coherence of the legislation would be undermined if sperm is considered to be “goods”. Rather, goods must be restricted to the proper objects of trade and commerce. [60]      With regard to the first of these propositions, I accept that the Warehouse Statutes had a common historical impetus. Both were enacted with a view to standardizing laws relating to the warehousing of goods and the rights of bailors and warehousers. But it does not follow from a common origin that the definition of “goods” in the WRA needs to be restricted by the provisions in the WLA . There are three reasons for not doing so. First, the definitions of goods in the two statutes are different. Second, the statutes were enacted more than 20 years apart in time. Third, while both enactments dealt with warehousers, the subject matter of the two acts is quite distinct. Apart from the other obvious distinction (one applies to warehouser’s liens, the other to receipts), the WLA , unlike the WRA, was not concerned with codification of the common law relating to bailment. [61]      I cannot conclude from a historical analysis that the definition of goods in the WRA must be restricted to goods which could be sold by the warehouser to enforce its lien rights. That proposition is a cornerstone of [the appellant]’s argument. It says that goods must be “the proper objects of trade and commerce” over which a warehouser has lien rights including the ability to sell the goods for unpaid storage fees. That cannot be correct as it would require the court to modify or restrict the clear definition of goods in the WRA . [62]      In addition, the qualification to “all property” suggested by [the appellant] would create confusion and uncertainty. What is meant by the “proper objects of trade and commerce”? As the plaintiff asked, would personal household items such as photographs, personal mementos and used clothing be excluded from the definition? Would it apply to the storage of personal medical devices or medication that cannot be resold? Would it apply to the storage of firearms? There would be large classes of goods which could be stored but could not be resold, or could be sold only with restrictions, or for which there is no market. All of those categories might fall outside of the suggested qualified definition. This would place a limitation on the provisions of the WRA which is not justified. The WRA was intended to apply where goods are stored for reward and a receipt for those goods is issued by the warehouser. There is no necessity for a further restriction. [20] He considered the appellant’s argument at para. 63 dealing with “the moral and ethical concerns around the commercialization of human reproductive material” and addressed the appellant’s reliance on Harvard College v. Canada (Commissioner of Patents) , 2002 SCC 76, [2002] 4 S.C.R. 45: [64]      [The appellant] submits the approach taken to statutory interpretation by the Supreme Court of Canada in Harvard College v. Canada (Commissioner of Patents) should be followed in the present case. In Harvard , the question for resolution was whether the Patent Act allowed for the patentability of higher life forms. The applicant college applied for a patent on the “oncomouse”, a mouse that had been subject to a genetic engineering process that rendered it highly susceptible to cancer. The case turned on the definition of “invention” in the Patent Act which was virtually unchanged from the definition contained in the first iteration of the statute in 1869. Invention was defined to mean “any new and useful art, process, machine, manufacture or composition of matter…”. [65]      The Court concluded the definition did not encompass higher life forms. The majority was sensitive to the special concerns intrinsic to the patentability of higher life forms which Parliament would presumably want to consider but could not have done so when the Patent Act was first passed. At para. 167, the Court expressed these concerns: The patenting of higher life forms raises special concerns that do not arise in respect of non-living inventions. Unlike other inventions, biologically based inventions are living and self-replicating. In addition, the products of biotechnology are incredibly complex, incapable of full description, and can contain important characteristics that have nothing to do with the invention… In my view, the fact that the Patent Act in its current state is ill-equipped to deal appropriately with higher life forms as patentable subject matter is an indication that Parliament never intended the definition of “invention” to extend to this type of subject matter. [66]      I reject [the appellant]’s submission that a similar analysis in the present case should result in a conclusion that the legislature never intended “goods” to include frozen sperm. The issue in the present case is very different from the issue in Harvard . A conclusion that higher life forms could be patentable raises special concerns because of the nature of the rights granted with a patent. [67]      There are no special concerns raised by a conclusion that “goods” includes frozen sperm. Contrary to the submissions of [the appellant], if the definition of “goods” in the WRA applies to sperm, a warehouser does not have the right to purchase or sell sperm. In the case of a nonnegotiable receipt, such as the one in issue, the WRA does not authorize the sale of sperm (the goods in storage) contrary to the Assisted Human Reproduction Act or the HTGA . The fact that certain property falls within the definition of “goods” in the statute does not impact on other legislative provisions dealing with the property stored in a warehouse. Rather, it establishes certain rights as between warehouser and bailor. It provides a limitation on the terms that might be included in a warehouse receipt. [Citation omitted.] [21] The judge concluded that “the definition of goods in the WRA includes sperm”: para. 68.  In his view, whether approached through a textural, purposive or contextual analysis there is no ambiguity in the definition.  The appellant was a warehouser.  It received goods for storage in exchange for reward. [22] The judge then discussed whether the Facility Agreement was a warehouse receipt.  He began by noting the particulars that a warehouse receipt must contain and then addressed the contents of the Facility Agreement stating: [72]      With the exception of the requirement in subsection (h), the Agreement contains each of the particulars required by s. 2(1). The location of the Andrology Lab is noted on page 1 of the Agreement. The name of the person storing the sperm is set out on the last page of each Agreement as is the date on which it was issued. The statement as to whom the goods would be delivered to, required by subsection (d) is dealt with in detail in clause 4 of the Agreement. The sperm is to be delivered to the class member’s physician upon payment of the withdrawal fee and the provision of notice. The requirement of subsection (d)(i) is met as the Agreement provides that the goods will be delivered to another named person. As the Agreement is not a negotiable receipt, it does not provide that the goods can be delivered to the bearer of the Agreement. The storage charges are set out in the schedule attached to the Agreement as noted at clause 2 and as required by subsection (e). The goods are described as “your sperm specimen which you provide to us”. The final page of the Agreement contains a signature line for the representative of the Andrology Lab as required by subsection (g). [23] It was the judge’s view that failure to comply with (h) was of no consequence and that, in any event, s. 2(3) of the WRA states that the absence of a particular does not mean the document is not a warehouse receipt.  He concluded that the Facility Agreement is a non‑negotiable warehouse receipt. [24] As to the effect of the WRA on the exclusion clause, the judge stated: [77]      Read together, s. 13 and s. 2(4)(a) preclude a warehouser from including in its receipt a term or condition that would release the warehouser from liability for failing to meet the requisite standard of care. Section 2(4)(b) further provides that a receipt cannot contain a term which impairs the warehouser’s obligation to meet the requisite standard of care. Taken as a whole, these sections ensure warehousers cannot by contract, cancel or modify the standard of care imposed on them by the WRA . If clause 7 of the Agreement is contrary to s. 13 of the WRA or clause 7 impairs [the appellant]’s ability to meet the standard of care in s. 2(4)(b), then [the appellant] cannot rely on that provision. [25] After reviewing the submissions of the parties and applicable authorities, the judge found: [90]      On a plain reading of clause 7, it is clear that it is directly contrary to s. 13 of the WRA . As previously noted, s. 13 imposes liability on a warehouser for the loss of or injury to goods caused by the warehouser’s failure to exercise the care and diligence that a careful and vigilant owner of similar goods would exercise in the custody of them in similar circumstances. Clause 7 attempts to shield the Andrology Lab from the same liability that s. 13 assigns to it as a warehouser. Clause 7 excludes the Andrology Lab from liability for any acts, omissions or negligent conduct, and covers a wide variety of circumstances including freezer malfunction, labour disturbances, or conduct of its employees. The clause is patently contrary to s. 13. It does not merely provide a limitation of damages in a manner similar to the warehouse receipt in Evans Products . [26] He concluded at para. 92: The provisions of the WRA apply to the storage of the sperm specimens of the plaintiff and class members and the Agreement is a warehouse receipt. I also conclude that clause 7 of the Agreement is directly contrary to s. 13 of the WRA . The answer to the sub-issue posed for determination is thus: Yes, the defendant, [appellant], is precluded from relying upon the exclusion clause in the Agreement as against the Class members by virtue of the Warehouse Receipt Act , R.S.B.C. 1996, c. 481 (the “ WRA ”). Positions of the parties [27] In its factum, the appellant asserts that the judge erred: 25.       … in law in his application of the Driedger approach to statutory interpretation of the WRA in: (a)        ascribing undue weight to the “plain meaning” of the statutory language and insufficient weight to contextual, historical, and other indicators of legislative intent; (b)        declining to read and interpret the Warehouse Statutes together as legislation in pari materia ; (c)        equating the presence of a statutory definition with the absence of ambiguity; (d)        omitting to distinguish previous cases concluding that sperm constitutes “property” on the basis of the dissimilar legal contexts in which that question was considered; and (e)        distinguishing Harvard College from the instant case. That is, the judge erred in concluding that human sperm is property for the purposes of the WRA . [28] At the hearing of the appeal, the appellant advanced a number of additional positions: fairness; retroactive application of the inclusion of human sperm in the definition of property; the appellant is not a warehouser; and the Facility Agreement is not a warehouse receipt. [29] In his factum, the respondent states that “the issue on appeal is simply whether the learned trial judge correctly interpreted and applied the provisions of the WRA to the facts as set forth in the Agreed Statement of Facts”. [30] At the hearing, counsel for the respondent addressed the additional positions of the appellant, albeit somewhat under protest. Discussion General [31] The agreed statement of facts states that the Andrology Laboratory was established in 1982; the factums of the parties state this was in 1981.  The material does not state when the Facility Agreement was put in place.  The laboratory purchased its first ultra‑cold electrical freezer in 1987 and in 1993 purchased the ultra‑cold electrical freezer at issue in this proceeding “and began to use it for sperm-banking purposes”.  The respondent deposited his sperm in August 1997.  The agreed statement of facts states that class members were charged initial and annual storage fees beginning in 1982. [32] There can be much emotion about the question being addressed on this appeal – the appellant charged little for its services and potentially faces a significant exposure; the class members potentially lost the opportunity to procreate and are faced with a provision that may deny them compensation.  Although the result likely will be disquieting for one side or the other, the task of the courts is to determine the legal rights of the parties. [33] Although it is understandable that counsel will discover additional arguments when finally preparing to present an appeal, it is appropriate to inform the other side and the Court of these matters in advance of the hearing of the appeal.  The failure to do so may have unexpected and unfortunate consequences. [34] During the hearing, counsel for the appellant referred to s. 21(1) of the WRA which states: (1)        A person to whom a nonnegotiable receipt is transferred acquires, as against the transferor, (a)        the title to the goods, and (b)        the right to deposit with the warehouser the transfer or a duplicate of it. [35] Because the Facility Agreement does not appear to vest title to sperm in the doctor to whom the sperm would be transferred, counsel contended that the Facility Agreement is not a warehouse receipt.  The respondent noted that the effect of s. 21 is not before us on this appeal and that s. 21 is not a definitional section.  I agree. [36] It is not in issue that if the Facility Agreement is a warehouse receipt, the limitation clause is unenforceable by operation of ss. 2(4) and 13 of the WRA .  As the judge observed, “[w]hether the Agreement is a warehouse receipt and the Andrology Lab is a warehouse turns largely on the definition of goods”: para. 25. Is human sperm property for the purposes of the WRA? [37] The question addressed and answered by the trial judge was whether the appellant was precluded from relying on the exclusion clause in the Facility Agreement by the provisions of the WRA .  This engaged s. 13 of the WRA which states: 13        A warehouser is liable for loss of or injury to goods caused by the warehouser’s failure to exercise the care and diligence in regard to them as a careful and vigilant owner of similar goods would exercise in the custody of them in similar circumstances. [38] From s. 13 one moves to s. 2(4) which permits the inclusion by a warehouser of additional terms in a warehouse receipt which are: (a)        … not contrary to any provision of this Act, and (b)        [do] not impair the warehouser’s obligation to exercise the care and diligence in regard to the goods as a careful and vigilant owner of similar goods would exercise in the custody of them in similar circumstances. [39] These provisions lead to a consideration of the definitions of “warehouser” and “warehouse receipt”.  Sections 13 and 2(4) and the definitions use the defined term “goods”.  The definition is: “goods” includes all property other than things in action, money and land. [40] In my view, it is not necessary to determine whether the definition of “goods” in the WRA differs from, or is broader than, that in the WLA .  The definition in the WLA –“includes personal property of every description that may be deposited with a warehouser as bailee” – merely tracks the definition of goods in the WRA , which excludes “things in action, money and land”. [41] The question in this case becomes: is human sperm property? a.  The judge did not err in his interpretative approach to statutory language. [42] The appellant asserts that the interpretative process must not be driven by the plain meaning of statutory language, but must reflect the contextual and historical context of the legislation.  At the time the WRA was enacted, human sperm was not property and in Canada today it is not capable of being traded in the market place because it would be illegal to do so. [43] The appellant states that the judge erred in concluding that the definition of goods in the WRA is precise and unequivocal “without reference to, and before embarking on, a contextual analysis”.  It states that the judge’s determination “coloured his contextual analysis, causing him to place undue weight on ‘plain meaning’ and insufficient weight on contextual and historical facts”: para. 31. [44] At para. 27, the judge quoted from Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10: “When the words of a provision are precise and unequivocal, the ordinary meaning of the words play[s] a dominant role in the interpretive process”.  It seems to me that this is a clear indication that the judge was entitled to consider whether the definition of goods was precise and unequivocal before embarking on a contextual analysis.  He was satisfied that the definition of goods was clear and unequivocal.  He stated at para. 50: “goods” is meant to include “all property” with three exceptions.  Those exceptions do not apply to sperm and the inclusion of sperm in the definition is not inconsistent with other provisions in the WRA . [45] In reaching this conclusion, the judge undertook a very thorough analysis of the language of the enactment and the case law relevant to it.  I agree with his analysis and conclusion. [46] The appellant refers to the fact that, at the time the WRA was enacted, human sperm would not have been property.  The judge was alive to this, but as quoted previously, he referred to Mr. Côté ’s text which confirmed that legislation may apply to “situations which did not exist when it was enacted” and can “apply to inventions subsequent to its enactment”: para. 34. [47] The Supreme Court of Canada also has endorsed a flexible approach to terms in legislation to ensure that the law speaks to contemporary circumstances: R. v. Perka , [1984] 2 S.C.R. 232 at para. 80; Tataryn v. Tataryn Estate , [1994] 2 S.C.R. 807. [48] It often is stated that court decisions merely declare the law, that is, state what the law always has been.  The following is an interesting observation on that proposition: The theoretical position has been that judges do not make or change law: they discover and declare the law which is throughout the same. According to this theory, when an earlier decision is overruled the law is not changed: its true nature is disclosed... This theoretical position is… a fairy tale in which no one any longer believes... The whole of the common law is judge-made and only by judicial change in the law is the common law kept relevant in a changing world. But whilst the underlying myth has been rejected, its progeny - the retrospective effect of a change made by judicial decision - remains : Kleinwort Benson Ltd. v. Lincoln City Council (1998) , [1999] 2 A.C. 349 at 358, per Lord Browne-Wilkinson. [Emphasis added.] [49] In my view, the cases to which the judge referred that conclude that human sperm is property, support its inclusion in the definition of property in the WRA . [50] In J.C.M., Madam Justice Russell referred to Yearworth and stated at para. 58: I agree with the court of appeal’s finding that medical science has advanced to a point where the common law requires rethinking of this point. To like effect were her comments, at para. 63, where she described the need for the common law to keep up with medical science as compelling. [51] In Yearworth, at para. 45(a), the Court stated: In this jurisdiction developments in medical science now require a re-analysis of the common law’s treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz. an action in negligence) or otherwise. I consider this to be a correct approach to the development of the common law. [52] It is obvious that, as of the date the class members deposited their sperm, medical science had advanced to the point where sperm could be considered to be property.  In my view, the judge concluded correctly that the plain meaning of goods in the WRA includes human sperm. [53] After reaching his conclusion on the plain meaning of the words in the definition of goods in the WRA , the judge stated expressly that he was obliged to be careful “not to adopt a strictly literal approach” and that he “must consider the possibility of coming to a contrary conclusion by applying a purposive or contextual analysis”: para. 51.  He also quoted the guidance for the analysis set out in Chieu v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 3, [2002] 1 S.C.R. 84.  His analysis followed.  I have quoted much of it and agree with the judge. b.  The definition of “goods” is not modified by reading the Warehouse Statutes together. [54] The appellant contends that the judge erred in refusing to treat the WRA and the WLA as a package.  It asserts that the lien rights of a warehouser under the latter Act do not extend fully to the storage of human sperm because the Assisted Human Reproduction Act prohibits the purchase of human sperm. [55] The Assisted Human Reproduction Act was enacted by the Federal Parliament in 2004.  Sperm deposited with the appellant prior to that date, including the respondent’s sperm, could have been sold and purchased.  The appellant’s position requires the court to conclude that the definition of property in the Provincial WRA was altered by Federal legislation because it affected the rights of warehousers in the WLA .  In my view, the definition of property in the WRA cannot depend on the vagaries of Federal legislation that may affect rights under another Provincial statute. [56] The appellant asserts that warehouse legislation historically was mercantile legislation and that this should determine the definition of property in the WRA .  It argues that goods include only things that are capable of being sold in the market-place. [57] The appellant does not suggest that the cases to which the judge referred, that determined human sperm is property, were decided wrongly.  It contends that those cases should not be applied in the context of the WRA because it is commercial legislation which historically applied only to goods in commerce: goods capable of being traded in the market place. [58] The judge recognized the historical context of the legislation.  He stated at para. 58: The WRA also brought into law the mercantile practices relating to negotiable receipts and codified the common law regarding bailment for reward. [59] In the present case, the appellant concedes it was a bailee for reward.  The transaction between it and the members of the class was commercial.  The appellant argues that its approach does not create confusion or open the floodgates because all goods, other than those which cannot be sold legally including human sperm, are included in the definition of property.  In addition to rejecting the submission that the definition of property in the WRA should be shaped by unrelated legislation, I see nothing in the WRA that would make the definition of property depend on the type of goods bailed for hire.  I am not convinced that historically it was otherwise. [60] I similarly do not accept the appellant’s contention that the trial judge erred in equating the presence of a statutory definition for “goods” with the absence of ambiguity.  Nothing in the WRA suggests the need to reframe the legislation’s definition of “goods” with a mercantile connotation. c.  The trial judge did not err in his consideration of other case law. [61] The appellant asserts that the trial judge failed to distinguish previous cases concluding that sperm was “property” on the basis of different legislative contexts. [62] In support of this contention, the appellant relies on Saulnier v. Royal Bank of Canada , 2008 SCC 58, [2008] 3 S.C.R. 166 [ Saulnier ], which it submits established a binding analytical framework for determining the content of legislative definitions of “property”. [63] In Saulnier, the Supreme Court considered whether a fishing licence was property for the purposes of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B‑3 (“ BIA ”).  The Court stated at para. 16: The questions before the Court essentially raise a dispute about statutory interpretation. We are not concerned with the concept of “property” in the abstract. The notion of “property” is, in any event, a term of some elasticity that takes its meaning from the context. The task is to interpret the definitions in the BIA and PPSA [ Personal Property Security Act ] in a purposeful way having regard to “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1). Because a fishing licence may not qualify as “property” for the general purposes of the common law does not mean that it is also excluded from the reach of the statutes. For particular purposes Parliament can and does create its own lexicon. [64] The definition of property in s. 2 of the BIA included: every description of estate, interest and profit, present or future, vested or contingent, in, arising out of or incident to property. [65] In its factum, the appellant quotes part of para. 33 of the judgment (at para. 78): If the question were whether a fishing licence is a profit à prendre , the answer would almost certainly be no. But that is not the question. The question before us is whether the fishing licences thus conceived can satisfy the statutory definition of the BIA and PPSA , purposefully interpreted . [Emphasis added by the appellant.] It goes on to state: 76.       [The appellant] submits that paragraph 41 of the trial judge’s reasons for judgment reflects an analytical approach expressly contrary to the ratio decidendi in Saulnier . Accordingly, the trial judge erred in law in omitting to follow Saulnier , a recent authority from Canada’s highest court that was binding upon him. [66] In my view, Saulnier is of no assistance to the appellant.  It is clear that Parliament can expand or limit the scope of common law concepts, to facilitate legislative purposes.  In Saulnier, the Court determined that the definition of property in the BIA was more extensive than at common law.  The Court observed at para. 44: The terms of the definition are very wide. Parliament unambiguously signalled an intention to sweep up a variety of assets of the bankrupt not normally considered “property” at common law. This intention should be respected if the purposes of the BIA are to be achieved. [67] In reaching this conclusion, the Court looked to the rights granted to the holder of a fishing licence to determine whether it fell within the statutory definition.  It is instructive to refer to para. 34 of the decision: My point is simply that the subject matter of the licence (i.e. the right to participate in a fishery that is exclusive to licence holders) coupled with a proprietary interest in the fish caught pursuant to its terms, bears a reasonable analogy to rights traditionally considered at common law to be proprietary in nature. It is thus reasonably within the contemplation of the definition of “property” in s. 2 of the BIA , where reference is made to a “ profit , present or future, vested or contingent, in, arising out of or incident to property”. In this connection the property in question is the fish harvest. [Emphasis in original.] [68] The Court looked to the rights granted to the holder of a fishing licence to determine whether it fell within the statutory definition.  There is nothing in the definition of goods in the WRA to suggest that property for the purposes of the legislation is not property at common law.  The Legislature has limited the concept only with three specified exceptions. d. The trial judge did not err in distinguishing Harvard College. [69] The appellant also places considerable emphasis on Harvard College v. Canada (Commissioner of Patents) , 2002 SCC 76.  According to the appellant, Harvard College established that where legislation engages ethical and social concerns which would not have been apparent when the legislation was enacted – such as the ownership of human sperm or the patenting of higher life forms – courts should be hesitant to find legislative applicability because these are the types of issues which the Legislature would wish to address directly. [70] The case concerned an “oncomouse”: a mouse bred to be more susceptible to cancer.  As noted previously, the judge dealt extensively with the case.  In its factum the appellant states: 71.       … The definition of the word “invention” in that case was conceivably broad enough to include a genetically modified, living, breathing “oncomouse”. … [T]he majority of the Court, per Bastarache J., held that to so construe the statute would extend its scope of application beyond that which the Legislature intended: [120]    … Even accepting that the words of the definition can support a broad interpretation, they must be interpreted in light of the scheme of the Act and the relevant context. The Act in its current form fails to address many of the unique concerns that are raised by the patenting of higher life forms, a factor which indicates that Parliament never intended the definition of “invention” to extend to this type of subject matter. Given the unique concerns associated with the grant of a monopoly right over higher life forms, it is my view that Parliament would not likely choose the Patent Act as it currently exists as the appropriate vehicle to protect the rights of inventors of this type of subject matter. - Harvard College . 72.       In light of Supreme Court of Canada authority for restricting the scope of literally broad and general statutory definitions when fulfilment of the legislative purpose requires, which authority was cited to him, the trial judge fell into reversible error in concluding that the meaning of “goods” in the WRA is not capable of ambiguity from the fact that it is statutorily defined. This error, coupled with the errors set out above, led the trial judge to incorrectly reject the mercantile connotation of “goods” on account of the broad, general language appearing in the statutory definition of “goods” in the WRA . In my view, the quoted portion of para. 120 must be considered in the context of the case overall. [71] The appellant further addressed Harvard College as follows: 92.       … [The appellant] argued that Harvard College is directly on point. The majority of the Court in Harvard College concluded that the broad definition of “invention” in the Patent Act did not include higher life forms because of the special concerns that would arise, and which Parliament would presumably desire to address, but with which the Patent Act , originally enacted in 1887, did not grapple: [155]    … As I discuss below, I do not believe that a higher life form such as the oncomouse is easily understood as either a “manufacture” or a “composition of matter”. For this reason, I am not satisfied that the definition of “invention” in the Patent Act is sufficiently broad to include higher life forms. This conclusion is supported by the fact that the patenting of higher life forms raises unique concerns which do not arise in respect of non-living inventions and which are not addressed by the scheme of the Act. Even if a higher life form could, scientifically, be regarded as a “composition of matter”, the scheme of the Act indicates that the patentability of higher life forms was not contemplated by Parliament. Owing to the fact that the patenting of higher life forms is a highly contentious and complex matter that raises serious practical, ethical and environmental concerns that the Act does not contemplate, I conclude that the Commissioner was correct to reject the patent application . This is a policy issue that raises questions of great significance and importance and that would appear to require a dramatic expansion of the traditional patent regime. [Emphasis added by the appellant.] - Harvard College . [93]      The trial judge distinguished Harvard College , writing: [66]      … The issue in the present case is very different from the issue in Harvard . A conclusion that higher life forms could be patentable raises special concerns because of the nature of the rights granted with a patent. [The appellant] submits the trial judge erred in so doing. This error resulted from the trial judge’s mischaracterization of the basis for both the ratio decidendi in Harvard College and [the appellant]’s propounded analogy to the instant case. The majority in Harvard College rejected the patentability of higher life forms not only because of the nature of the rights granted with a patent, but also because of the nature of the innovation sought to be patented. This is borne out in the following excerpt from the majority’s reasons: [167]    … The patenting of higher life forms raises special concerns that do not arise in respect of non-living inventions. Unlike other inventions, biologically based inventions are living and self-replicating. In addition, the products of biotechnology are incredibly complex, incapable of full description, and can contain important characteristics that have nothing to do with the invention …. In my view, the fact that the Patent Act in its current state is ill-equipped to deal appropriately with higher life forms as patentable subject matter is an indication that Parliament never intended the definition of "invention" to extend to this type of subject matter . [Emphasis added by the appellant.] - Harvard College ; cited in RFJ at para. 65. 94.       The trial judge ought to have concluded that, like application of the Patent Act to the patenting of higher life forms, application of the WRA to the storage of sperm raises special ethical and social concerns with which the Legislature would desire to deal, but which were not addressed because the Legislature could not have contemplated them at the time the WRA was enacted. 95.       This determination ought to have bolstered the conclusion supported by the balance of the contextual statutory interpretation analysis that it would be contrary to legislative intent for the WRA to apply to the storage of sperm by an andrology lab. The trial judge’s mistake in distinguishing Harvard College led him to incorrectly conclude that a dissimilar result should ensue in the instant case. [72] In my view, the judge did not err in his consideration of Harvard College .  In addition, I do not agree with the appellant’s treatment of the case. [73] While he was mindful of the broad policy issues concerning patenting life forms, Mr. Justice Bastarache undertook a detailed analysis of the language of the legislation.  He stated at para. 53: In my view, none of these proposed dividing lines arise out of the present text of the Patent Act . All of them are policy driven and, if they are to be introduced at all, should be introduced by Parliament. [74] At para. 155, Bastarache J. wrote: Having considered the relevant factors, I conclude that Parliament did not intend to include higher life forms within the definition of “invention” found in the Patent Act . In their grammatical and ordinary sense alone, the words “manufacture” and “composition of matter” are somewhat imprecise and ambiguous. However, it is my view that the best reading of the words of the Act supports the conclusion that higher life forms are not patentable. As I discuss below, I do not believe that a higher life form such as the oncomouse is easily understood as either a “manufacture” or a “composition of matter”. For this reason , I am not satisfied that the definition of “invention” in the Patent Act is sufficiently broad to include higher life forms. [Emphasis added.] He continued: This conclusion is supported by the fact that the patenting of higher life forms raises unique concerns which do not arise in respect of non-living inventions and which are not addressed by the scheme of the Act. Even if a higher life form could, scientifically, be regarded as a “composition of matter”, the scheme of the Act indicates that the patentability of higher life forms was not contemplated by Parliament. Owing to the fact that the patenting of higher life forms is a highly contentious and complex matter that raises serious practical, ethical and environmental concerns that the Act does not contemplate, I conclude that the Commissioner was correct to reject the patent application. This is a policy issue that raises questions of great significance and importance and that would appear to require a dramatic expansion of the traditional patent regime. Absent explicit legislative direction, the Court should not order the Commissioner to grant a patent on a higher life form. [75] Mr. Justice Bastarache dealt with the definition of “invention” at para. 158: I agree that the definition of invention in the Patent Act is broad. Because the Act was designed in part to promote innovation, it is only reasonable to expect the definition of “invention” to be broad enough to encompass unforeseen and unanticipated technology. I cannot however agree with the suggestion that the definition is unlimited in the sense that it includes “anything under the sun that is made by man”. In drafting the Patent Act , Parliament chose to adopt an exhaustive definition that limits invention to any “art, process, machine, manufacture or composition of matter”. Parliament did not define “invention” as “anything new and useful made by man”. By choosing to define invention in this way, Parliament signalled a clear intention to include certain subject matter as patentable and to exclude other subject matter as being outside the confines of the Act . This should be kept in mind when determining whether the words “manufacture” and “composition of matter” include higher life forms. [Emphasis added.] [76] He addressed “manufacturing” at para. 159 stating that “the word would commonly be understood to denote a non‑living mechanistic product or process”. [77] After reviewing definitions and the technology for producing an oncomouse, Bastarache J. was not satisfied “that the phrase ‘composition of matter’ includes a higher form whose genetic code has been altered in this manner”: para. 162. [78] At para. 163, he turned to the word “matter” again beginning with definitions.  He concluded: The fact that animal life forms have numerous unique qualities that transcend the particular matter of which they are composed makes it difficult to conceptualize higher life forms as mere “composition[s] of matter”. It is a phrase that seems inadequate as a description of a higher life form. [79] Mr. Justice Bastarache summarized his analysis at para. 166: Patenting higher life forms would involve a radical departure from the traditional patent regime. Moreover, the patentability of such life forms is a highly contentious matter that raises a number of extremely complex issues. If higher life forms are to be patentable, it must be under the clear and unequivocal direction of Parliament. For the reasons discussed above, I conclude that the current Act does not clearly indicate that higher life forms are patentable. Far from it. Rather, I believe that the best reading of the words of the Act supports the opposite conclusion – that higher life forms such as the oncomouse are not currently patentable in Canada. [80] I do not think that Harvard College supports reading into the definition of goods in the WRA a limitation that goods are only property that can be traded in the market place.  The Supreme Court of Canada based its decision on a careful analysis of the words of the legislation and determined that they did not embrace an oncomouse.  If Parliament wanted to expand the relevant definitions to include life forms it could do so, but the Court should not.  In the present case, the language of the definition does embrace human sperm.  If the Legislature wanted to limit the definition it could do so, but this Court should not. Conclusion [81] In my view, the judge made no error in principle and reached a correct conclusion. [82] I would dismiss this appeal. “The Honourable Mr. Justice Chiasson” Reasons for Judgment of the Honourable Madam Justice Bennett: [83] I have had the opportunity to read the draft reasons for judgment of Mr. Justice Chiasson. I agree that this appeal should be dismissed. In my respectful opinion, the semen specimen is “property” and therefore the Warehouse Receipt Act (“ WRA ”) applies. I wish to amplify the basis for this conclusion. [84] Mr. Justice Chiasson has carefully set out the facts and the legislation. I agree that the case turns on whether human sperm is “property” and therefore included as “goods” as defined in the WRA . I will focus my reasons on this discrete question. [85] The action was commenced in 2003. This is the second time the case has been to this Court. The claim is in negligence and breach of contract. Three negligence issues and two contract issues have been certified. [86] When Mr. Lam and the other class members stored their semen in the University of British Columbia (“UBC”) freezer for procreation at a future time, they signed a Sperm Bank Facility Agreement. The Agreement contains an exclusion clause which UBC relies on to defend the claims. [87] The two contract issues were split from the litigation with the intention of addressing them first: Common Issue 4. Is the defendant, UBC, entitled to rely on the exclusion clause against any or all of the proposed class members? Common Issue 5. Is the exclusion clause in the contract unenforceable by being contrary to public policy? [88] Difficulties arose in moving the litigation forward, and the parties decided to have the following sub‑issue tried: Is the defendant, UBC, precluded from relying upon the exclusion clause in the Agreement as against the Class members by virtue of the Warehouse Receipt Act, R.S.B.C. 1996, c. 481? [89] The Agreement is set out in full in Lam v. University of British Columbia , 2013 BCSC 2094, at para. 5. The Agreement allowed for the testing, storing and freezing of the donor’s sperm, at the request of the donor. Continuance of storage beyond a year could only be at the donor’s request. The specimen could only be delivered to the donor’s physician upon the physician’s written request. The sperm “is to be used only for the purpose of the artificial insemination of your legal or common-law spouse by a duly authorized physician”, however UBC would “have no responsibility or liability”, once the sperm was in the custody of the physician. A deposit fee, an annual storage fee and a withdrawal fee were required to be paid by the donors. The donor consented to the sperm being tested by UBC for the number and motility of the spermatozoa for any purpose it chose, including research and statistical purposes. [90] Either party could terminate the Agreement with notice. The Agreement terminated automatically upon UBC receiving notice of the donor’s death or if the donor failed to pay the required fee. Upon termination, UBC had the absolute discretion to dispose of the semen in any manner it considered “proper”, except that it could not be used to cause a pregnancy by way of artificial insemination without the donor’s consent. [91] UBC argues that from a historical and contextual analysis, “property” in the WRA must refer to commercially-traded property. It argues that when the WRA was enacted, human sperm could not have been considered “property” as cryogenic freezing and artificial insemination were matters for science fiction writers. [92] UBC points out that now, under the Assisted Human Reproduction Act , S.C. 2004, c. 2 (“ AHRA ”), human sperm cannot be commercially traded in Canada (see ss. 7 and 12). The AHRA , enacted in 2004, prohibits payment for sperm donation. Prior to this, sperm donors were paid for their donation. Mr. Lam’s sperm was deposited in 1997 and the freezer failed in 2002, at a time when human sperm could be purchased. This argument does not, in my respectful view, assist UBC. Indeed, there are other examples of “goods” that someone came into possession of legally, but due to changes in legislation, can no longer be lawfully sold commercially. Those goods, such as products of endangered species or certain artefacts, would still be considered “property” under the WRA . My conclusion, however, that the human sperm is “property” does not turn on this issue, and therefore I do not need to decide this point, and in any event, I do not disagree with the analysis of Chiasson J.A. [93] A number of decisions have tackled the question of storing human reproductive material including human sperm, and although referenced in the reasons of Chiasson J.A., I propose to discuss some of them in more detail. The reason for this is that there are many situations in which the definition of property as it relates to human sperm arises. It is therefore important to ensure that defining human sperm as property on the facts of this case does not lead to the application of the same definition in very different circumstances. Defining human sperm as property may bring with it a host of other legal rights and issues. Uncertainty exists with respect to the contexts in which human sperm could be considered property, and it is necessary to carefully circumscribe the limitations of the definition in this case. Indeed, defining human sperm as “property” under the WRA in this case may widen the available remedies to Mr. Lam and the class members. [94] For example, Mr. Lam arranged to freeze his sperm as he was about to receive cancer treatment that could leave him infertile. He froze his sperm as a contingency plan for having children of his genetic make-up should he no longer be able to produce viable sperm. If someone broke into the lab and stole the sperm, could he or she be charged with theft? Theft is a crime against property. Could Mr. Lam have donated his sperm to a sperm bank if he chose not to have his own children? What would happen if Mr. Lam had died? Would he be able to leave his sperm to his family or someone else in a will? Could he leave it to a sperm bank in his will? These are all questions that may arise if human sperm is generally classified as property. [95] Historically, there was no property interest in the human body, dead or alive. Save for the despicable period of history when slavery and ownership of humans was legally recognized, ownership of the human body has been eschewed. [96] In Yearworth v. North Bristol NHS Trust , [2009] EWCA Civ 37, [2009] 2 All E.R. 986, the England and Wales Court of Appeal in strikingly similar circumstances to this case, traced the history of the law in relation to the ownership or lack thereof, of the human body. I will be discussing Yearworth in some detail, as the Court concluded that in the context of that case, human sperm was property. [97] Through the 17th, 18th and 19th centuries, the law did not change – neither a living body nor a human corpse could be “owned”. (See for example, Williams v. Williams , [1882] 20 Ch D 659, where a person could not will his body to someone). [98] An exception to this rule was carved out by the Australian High Court in Doodeward v. Spence , (1908) 6 C.L.R. 406 (Aust HC). The Court recognized ownership in a stillborn two‑headed fetus that had been preserved 40 years earlier. The mother’s physician had preserved the fetus, and when he died it was sold to C. who was showing it as a curiosity. Chief Justice Griffith for the majority held: [W]hen a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it [99] This principle was applied in R. v. Kelly; R. v. Lindsay , [1999] QB 621, to uphold convictions for theft of human body parts from the Royal College of Surgeons, where they had been used to train surgeons. Lord Justice Rose concluded that the human body parts were capable of being property within the Theft Act if they “have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes”, applying Doodeward . [100] In Yearworth , five men who had been diagnosed with cancer supplied sperm specimens prior to undergoing chemotherapy to be held by the defendant should their treatment render them infertile. The storage of the sperm was provided gratuitously. After the samples were stored, the amount of liquid nitrogen in the storage tanks fell below the requisite level and the men’s semen thawed, becoming useless for fertilization of their partners’ eggs. [101] The Court considered a number of decisions, including Hecht v. The Superior Court of Los Angeles County , 16 Cal. App. (4th) 836 (1993); Hecht v. The Superior Court of Los Angeles County , 50 Cal. App. 4th 1289 (1996) [1] . In Hecht , the deceased, prior to his suicide, ejaculated sperm and stored it with the apparent intention that his girlfriend could give birth to his child. He bequeathed the sperm to her in his will. The Court concluded that at the time of his death, the deceased had sufficient “decision-making authority” in relation to the use of his sperm for it to amount to property for the purpose of the State’s Probate Code. The Court in Yearworth saw the Hecht decision as taking the law a step further than was being asked on the facts of Yearworth . [102] The Court in Yearworth referred to the limitations facing the donors found in the Human Fertilisation and Embryology Act 1990 (“ HFEA ”) at para. 42: (a) they could not themselves have used their sperm to bring about the creation of an embryo outside the human body: s. 3(1); (b) they could not themselves have “stored” their sperm, i.e. in effect by freezing it themselves: s. 4(1)(a); and (c) they could not themselves have tested, prepared, packaged, transported or delivered their sperm insofar as it was intended for human application: s. 4(1A). Conditions of licences specified in the Act would have had the following, further effect: (e) once it had stored the sperm, the unit would not have been able to supply it to an unlicensed person otherwise than in the course of treatment and thus could not have acceded to a demand by the men that it be delivered back to them: s. 14(1)(b); and (f) the unit would not have been able to store their sperm for longer than the statutory storage period and it would then have had to allow it to perish: s. 14(1)(c). [103] However, the Court also noted, at para. 44, relying on Evans v. Amicus Healthcare Ltd. , [2005] Fam 1, that the HFEA also provided: (a) the [fertility] unit would have been unable to store the men’s sperm without their consent: para. 8(1); (b) it would have been unable to store it for a longer period than that specified by the terms of their consent: para. 2(2); (c) it would have been unable to use it for the purpose of any treatment of persons other than the men themselves (with their wives or partners) without their consent to such use: para. 5; (d) it would have been unable either to store or for any purpose to use any embryo created in vitro with the use of the men’s sperm without the consent of the men (and indeed of the women who provided the egg) to its storage or use for such purpose: paras 8(2) and 6(3); (e) the men’s consent for the above purposes would have to have been given in writing and signed: para. 1; and (f) by notice to the unit, the men could have withdrawn their consent to the storage or use of their sperm at any stage prior to its use in the creation of an embryo; and could have withdrawn their consent to the storage or use of any embryo thereby created in vitro at any stage prior to its use in the provision of treatment or in other specified ways: para. 4. [104] In determining whether human sperm was property, or capable of being owned, the Court in Yearworth said the following at para. 28: A decision whether something is capable of being owned cannot be reached in a vacuum. It must be reached in context; and in this section of our judgment the context is whether an action in tort may be brought for loss of sperm consequent upon breach of the Trust’s duty to take reasonable care of it. The concept of ownership is no more than a convenient global description of different collections of rights held by persons over physical and other things. In his classic essay on “Ownership” (Oxford Essays in Jurisprudence, OUP, 1961 Chapter V) Professor Honor é identified 11 standard incidents of ownership but stressed that not all of them had to be present for ownership to arise. He suggested that the second incident was “the right to use” and he added, at p. 116, that: The right (liberty) to use at one’s discretion has rightly been recognised as a cardinal feature of ownership and the fact that …certain limitations on use also fall within the standard incidents of ownership does not detract from its importance We have no doubt that, in deciding whether sperm is capable of being owned for the purpose which we have identified, part of our enquiry must be into the existence or otherwise of a nexus between the incident of ownership most strongly demonstrated by the facts of the case (surely here, the right, albeit limited, of men to use the sperm) and the nature of the damage consequent upon the breach of the duty of care (here, their inability to use it notwithstanding that this was the specific purpose for which it was generated). [105] The Court concluded that it could find that the sperm was property under the Doodeward exception, in that storing the sperm in liquid nitrogen at minus 196 degrees centigrade was an application of work and skill to the sperm (at para. 45). In my view, however, the Court failed to recognize that under the Doodeward analysis, this would give the defendant the ownership in the sperm, not the donors. [106] The Court continued, and decided the case on a “broader basis”. It concluded that for the tort of negligence, the sperm was property. Its conclusions are as follows at para. 45: (i) By their bodies, they alone generated and ejaculated the sperm. (ii) The sole object of their ejaculation of the sperm was that, in certain events, it might later be used for their benefit. Their rights to its use have been eroded to a limited extent by the [ HFEA ] but, even in the absence of the [ HFEA ], the men would be likely to have needed medical assistance in using the sperm: so the interposition of medical judgment between any purported direction on their part that the sperm be used in a certain way and such use would be likely to have arisen in any event. It is true that, by confining all storage of sperm and all use of stored sperm to licence-holders, the [ HFEA ] has effected a compulsory interposition of professional judgment between the wishes of the men and the use of the sperm. So Mr. Stallworthy [counsel for the defendant] can validly argue that the men cannot “direct” the use of their sperm. For two reasons, however, the absence of their ability to “direct” its use does not in our view derogate from their ownership. First, there are numerous statutes which limit a person’s ability to use his property - for example a land-owner’s ability to build on his land or to evict his tenant at the end of tenancy or a pharmacist’s ability to sell his medicines - without eliminating his ownership of it. Second, by its provisions for consent, the [ HFEA ] assiduously preserves the ability of the men to direct that the sperm be not used in a certain way: their negative control over its use remains absolute. (iii) Ancillary to the object of later possible use of the sperm is the need for its storage in the interim. In that the [ HFEA ] confines storage to licence-holders, Mr. Stallworthy stresses its erosion of the ability of the men to arrange for it to be stored by unlicensed persons or even to store it themselves; he also stresses their inability to direct its storage by licence-holders for longer than the maximum period provided by the [ HFEA ]. But the significance of these inroads into the normal consequences of ownership, driven by public policy, is, again, much diminished by the negative control of the men, reflected in the provisions that the sperm cannot be stored or continued to be stored without their subsisting consent. Thus the [ HFEA ] recognises in the men a fundamental feature of ownership, namely that at any time they can require the destruction of the sperm. (iv) The analysis of rights relating to use and storage in (ii) and (iii) above must be considered in context, namely that, while the licence-holder has duties which may conflict with the wishes of the men, for example in relation to the destruction of the sperm upon expiry of the maximum storage period, no person, whether human or corporate, other than each man has any rights in relation to the sperm which he has produced. (v) In reaching our conclusion that the men had ownership of the sperm for the purposes of their present claims, we are fortified by the precise correlation between the primary, if circumscribed, rights of the men in relation to the sperm, namely in relation to its future use, and the consequence of the Trust’s breach of duty, namely preclusion of its future use. [107] I have quoted extensively from these conclusions, as many of the limitations found in the HFEA in Yearworth are found in the Agreement signed by the donors in this case. [108] The decision in Yearworth has been the subject of many academic articles. Many of the criticisms are based on suggestions that the decision was not soundly based in property rights, that the analysis was “unconvincing and incomplete”, that the analysis did not “go far enough”, that the Court was attempting to reach a pragmatic and just result. [2] The question of whether a person has ownership in his or her body or body parts has been a “hot” topic of debate for a considerable period of time amongst the academic medical and legal ethicists, and many were disappointed when the court failed to answer many of the broad questions this issue raises. [109] In my respectful view, some of the criticisms are misplaced as they fail to consider the genesis of the common law. The common law develops slowly and incrementally, adjusting as it must to societal changes, in terms of technological changes, cultural, social changes and advances in science. Sometimes the common law will address the changes ahead of a legislature, particularly when human rights are engaged (the case of Vriend v. Alberta , [1998] 1 S.C.R. 493, comes to mind). [110] In Yearworth , the Court was determining whether human sperm was property in a very narrow context. It was not determining if all biological or reproductive material is henceforth to be considered as property with rights of ownership. It was not even determining whether sperm in other contexts, such as probate or matrimonial law, could be considered property. It was determining whether damage to frozen human sperm could be considered damage to property in order to base a cause of action against the defendant for negligence. More specifically, to bring a claim in negligence for losses caused by damage to property, the claimants in Yearworth had to have had either legal ownership of or possessory title to the property at the time the damage occurred (at para. 25). Therefore the Court considered whether sperm in that case was owned by the claimants. [111] Ownership has some basic fundamental components. The Court in Yearworth cited Professor Honor é’s 11 leading incidents of ownership, which have been modified over time by courts and other authors (A.M. Honor é, “Ownership” in A.G. Guest, ed., Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1961)). The Court acknowledged that the concept of ownership is one type of interest in a thing, “no more than a convenient global description of different collections of rights held by persons over physical and other things” (at para. 28). Honor é further defines ownership as the “greatest possible interest in a thing which a mature system of law recognizes” (Honoré at 108). [112] There may be property interests less than ownership that a person can have in sperm. The Court in Yearworth acknowledged that if they had found that the claimants did not have ownership of the sperm for the purposes of a negligence claim, “it would clearly have been important … to proceed to enquire whether nevertheless [the claimants] had such lesser rights in relation to [the sperm] as would render them capable of having been bailors of it” for a bailment claim (at para. 47). [113] The nature and scope of property interests that a person can have in human sperm need not be decided on the facts of this case. This case, unlike for example, J.C.M. v. A.N.A. , 2012 BCSC 584, does not deal with competing property interests in human sperm. This case considers whether Mr. Lam, a cancer patient, has ownership of the sperm he produced, such that he can contract for its storage to enable his personal use of the sperm at a later date. If so, the sperm is property, as something must be property if it is capable of being owned. There may also exist things that are property that cannot be owned, but that is not something that needs to be decided in the context of this case. [114] Not all of Professor Honor é’s 11 incidents of ownership need to be present for ownership to arise ( Yearworth at para. 28). Ownership of body parts must be contextual, and often limited by legislation because of public policy reasons. No one would argue that if a cancer patient cut her hair and stored it for the purpose of later making a wig after treatment that she did not “own” her hair in that context. On the other hand, legislation prevents the selling of sperm and organs such as kidneys, but does not prevent their donation. The prohibition on sale does not necessarily mean the legislation is inconsistent with ownership. It has provided limits to ownership in some contexts. [115] The Court in Yearworth provided a framework to determine whether the human sperm in that case was property. The Court set out the rights of the donors over their sperm and the limitations of those rights imposed by legislation. It weighed the factors and concluded that there was a sufficient basis to define the human sperm as property. I propose to use the same framework and analysis. [116] In this case, the donors: ejaculated the sperm; contracted to store the sperm for their future personal use; paid a fee for storage; could consent to the sperm being tested; could terminate the storage agreement; could consent to the sperm being released to their physician, to be used by their legal or common-law spouse; could exclude all others from using the sperm – that is to say UBC agreed that no sperm would be used for the purpose of causing pregnancy in any person without the donor’s consent; and pursuant to the termination clause, could consent to their sperm being used to cause a third party’s pregnancy, in other words donate the sperm if he no longer wished to preserve it for his own use, if UBC chose to dispose of it in that manner. However, the donors could not require the sperm to be donated. [117] The donor could not either because of legislation or the storage agreement: i. dispose of the sperm by testamentary document, in other words leave it to someone in his will; ii. remove it from the storage himself; and iii.    sell the sperm. [118] In my respectful opinion, each of the donors had ample rights in relation to his own sperm specimen that invested him with ownership of that specimen sufficient to be defined as “property” and thus be “goods” under the WRA . [119] I would dismiss the appeal. “The Honourable Madam Justice Bennett” I agree: “The Honourable Mr. Justice Frankel” [1] This case has been deleted from the reports (see: 1997 Cal. LEXIS 131); thus, I have relied on the summary found in J.C.M. v. A.N.A. , 2012 BCSC 584. [2] For example, see: Cynthia Hawes, “Property Interests in Body Parts: Yearworth v. North Bristol NHS Trust” (2010) 73:1 Mod. L. Rev. 130; Muireann Quigley, “Property: The Future of Human Tissue?” (2009) 17 Med. L. Rev. 457; Luke David Rostill, “The ownership that wasn’t meant to be: Yearworth and property rights in human tissue” (2014) 40:1 J. Med. Ethics 14.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Roe v. British Columbia Ferry Services Ltd., 2015 BCCA 1 Date: 20150106 Docket: CA041674 Between: Gregory Roe Respondent (Plaintiff) And British Columbia Ferry Services Ltd. Appellant (Defendant) Corrected Judgment: The text of the judgment was corrected at page 2 in the Summary, and at paragraphs 38 and 39 on March 19, 2015 Before: The Honourable Mr. Justice Tysoe The Honourable Madam Justice D. Smith The Honourable Madam Justice Bennett On appeal from:  An order of the Supreme Court of British Columbia, dated February 28, 2014 ( Roe v. British Columbia Ferry Services Ltd. , 2014 BCSC 1712, Nanaimo Registry No. S66705). Counsel for the Appellant: P. Fairweather Counsel for the Respondent: P.J. Giroday Place and Date of Hearing: Vancouver, British Columbia October 27, 2014 Place and Date of Judgment: Vancouver, British Columbia January 6, 2015 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Mr. Justice Tysoe The Honourable Madam Justice Bennett Summary: Mr. Roe brought an action against his former employer for wrongful dismissal. The employer defended the action alleging cause. After an internal investigation, the employer concluded that Mr. Roe, a senior manager, had on more than one occasion knowingly given complimentary food and beverage vouchers to his daughter’s volleyball team without prior authorization, contrary to the employer’s policy. Mr. Roe denied that he knowingly contravened what he said was an ambiguous policy. The trial judge did not resolve the conflict in the evidence, and made no findings of fact with respect to the nature of Mr. Roe’s alleged misconduct or which of the two posited scenarios had occurred. Instead, he assumed for the purpose of his analysis that the employer’s version was true. Based on that scenario, he found that Mr. Roe’s actions were “bordering on trifling” and “relatively minor” and therefore did not amount to just cause for dismissal. The employer appealed. HELD: Appeal allowed; the matter is remitted to the trial court for a new trial. The judge erred in his characterization of the misconduct he assumed occurred for the purposes of his analysis and for which Mr. Roe was dismissed for cause. In particular, the judge erred in finding that Mr. Roe’s assumed conduct, objectively viewed by a reasonable employer and in all of the circumstances, was “bordering on trifling” or “relatively minor”, and therefore did not rise to the level of undermining the obligations of good faith that are inherent in and essential to the employment relationship. His finding as to the nature of Mr. Roe’s misconduct does not appear to have been considered in the context in which it occurred, including: Mr. Roe’s employment contract, the responsibilities and trust attached to his senior management position, and the employer’s policy and procedures that he was required to follow in the distribution of complimentary vouchers. The judge’s failure to apply this contextual approach to assessing the nature and seriousness of Mr. Roe’s misconduct resulted in palpable and overriding error. Given that the factual underpinnings of the judge’s decision were assumed and not determined, this Court cannot substitute a finding of just cause for Mr. Roe’s dismissal. Accordingly, the matter must be remitted to the trial court for a new trial. Reasons for Judgment of the Honourable Madam Justice D. Smith: A. Overview [1] Gregory Roe was the manager of the Duke Point ferry terminal from November 15, 2007, until his dismissal on March 1, 2012. British Columbia Ferry Services Ltd. (the “Employer”) terminated Mr. Roe, without notice for cause, after an internal investigation concluded that Mr. Roe had, on more than one occasion, knowingly given complimentary food and beverage vouchers to his daughter’s sports teams without prior authorization, contrary to the Employer’s policy. [2] On July 4, 2012, Mr. Roe commenced a wrongful dismissal action against the Employer in which he sought damages in lieu of reasonable notice for breach of his employment agreement. He contended that he did not knowingly breach the Employer’s policy and that the procedure to be followed under the policy with respect to the distribution of complimentary vouchers by employees was unclear. On January 1, 2013, about 10 months after his dismissal, Mr. Roe secured alternate employment of a managerial nature at a comparable salary. [3] There was a conflict in the evidence with respect to the nature of Mr. Roe’s alleged misconduct that resulted in his dismissal. [4] The Employer characterized that misconduct as “dishonest”, claiming that Mr. Roe “knowingly misappropriated company property to his own financial and reputational benefit.” It submitted that Mr. Roe’s dishonest actions irrevocably breached the requirements of good faith and trust that formed the basis of their employment relationship. [5] Mr. Roe characterized his actions as simply a failure to comply with an ambiguous policy of the Employer, with respect to employee use of complimentary vouchers. He acknowledged that the policy had previously required getting prior approval from his regional manager but said that in 2011 the policy was changed to require notification of distribution of the vouchers to the marketing department only after the fact, although he admitted he had not provided such notification in this case. Mr. Roe submitted that his conduct was not “dishonest” but merely inadvertent, and “would not result in a complete breakdown of the trust required for the continuation of the employment relationship.” [6] The summary trial judge did not resolve this conflict in the evidence. He made no findings of fact as to which of the two posited scenarios had occurred. Instead, he assumed for the purpose of his analysis that the Employer’s version of Mr. Roe’s alleged dishonesty was true. Based on that scenario, he concluded that Mr. Roe’s actions were “bordering on trifling” and did not amount to just cause for dismissal. In the result, he fixed the notice period at 11 months, but awarded damages of $67,663.60 for 10 months’ salary (given Mr. Roe’s return to employment at a comparable salary on January 1, 2013), $7,718.60 for lost benefits, and $1,206.25 for medical expenses that would have been covered by the Employer’s health plan, interest, and costs. [7] The Employer appeals the award, submitting the trial judge erred: a)       In finding that the Employer did not have just cause to dismiss Mr. Roe; and b)       In the alternative, in awarding Mr. Roe damages of 10 months’ notice for 4.5 years of service. [8] For the reasons that I shall explain below, I find it necessary to address only the first ground of appeal. B. Factual Background [9] Mr. Roe was hired as the Duke Point terminal manager on November 15, 2007, after signing the terms and conditions of the Employer’s offer of employment. As a terminal manager, Mr. Roe was the most senior management person for the Employer when he was on duty. [10] Mr. Roe’s responsibilities included: (i) the management and oversight of the terminal operations and its staff; (ii) the safety and security of all customers and staff; (iii) the supervision and assistance in the selection, development, training and motivation of employees; (iv) overseeing special projects, teamwork and communications; and (v) daily revenue reconciliations that included ensuring the accuracy of the revenue reports prepared by the ticket agents and the accountability of all cash. [11] His employment contract listed the Employer’s “core values” as: safety first, employees, quality, integrity, partnerships and environment. Included in the employment contract as an attachment was a Code of Business Conduct and Ethics (the “Code”). On November 16, 2007, Mr. Roe acknowledged in writing that he had read and understood the Code and the consequences for a breach of the Code. [12] In particular, the Code provided: BCF [the Employer] personnel have the responsibility to understand and conduct themselves in accordance with this code, and to report conduct or proposed conduct that is in violation of this code. Employees who breach the code may be subject to disciplinary action, up to and including dismissal. If a violation of law is involved, the matter may also be referred to the appropriate law enforcement agency. Any Supervisor or Manager who directs or approves of conduct in violation of this code, or who fails to report a violation of which he or she has knowledge, is also in violation of the code and subject to disciplinary action. [13] The Code set out the requirements for all personnel to: (i) act in an honest and ethical manner at all times, (ii) comply with all of the Employer’s laws and regulations; and (iii) avoid conflicts of interest with the Employer. The latter requirement was defined as including “using corporate property, information, or position for personal benefit”. [14] The Code further provided that “[t]he property and assets of BCF [the Employer] must only be used in the course of carrying out the bona fide business purposes of the Company” and that “personnel may not dispose of BCF property or assets except in accordance with guidelines established by BCF.” The Code prohibited the accepting or offering of gifts and entertainment by personnel except “in the normal exchanges common to, and generally accepted in, established business relationships.” [15] As previously mentioned, the incident that led to Mr. Roe’s dismissal involved his use of the Employer’s complimentary food and beverage vouchers. The Employer has complimentary retail service vouchers for travel, food, dessert and beverages. As a terminal manager, Mr. Roe was authorized to issue complimentary vouchers to passengers who had been inconvenienced in some way, in accordance with the Employer’s “Customer Service Recovery Plan” (the “Customer Recovery Plan”). [16] Diane Finnie, Director of Employee Relations for the Employer, deposed that the beverage and dessert vouchers “are ordinarily only used for purposes of Customer Service Recovery … as a gesture to those passengers who may have experienced inconvenience during travel.” Melanie Lucia, Superintendent of Terminal Operations, South Region, echoed that the purpose of the complimentary vouchers were for “customer recovery” only. She deposed that complimentary vouchers had never been distributed for purposes of fundraising, donations or charitable contributions, and their use was a “rare event”. She added: “Providing free food or drinks to friends and family members would be a misuse of the Defendant’s assets and a serious breach of the Defendant’s policies.” [17] The procedure for issuing complimentary vouchers under the Customer Recovery Plan to an individual or group required prior approval. Until mid-2011 that approval was granted by the regional managers. Ms. Lucia was the regional manager for Nanaimo. Mr. Roe and the other terminal managers were reminded of this policy in an email dated March 21, 2009. In mid-2011, the granting of prior approval was changed from the regional managers to the marketing department. Mr. Roe deposed that he understood he had to obtain prior approval before donating the complimentary vouchers; however, he also said that the change in mid-2011 permitted terminal managers to use their own discretion for making the donations so long as they notified the marketing department by way of email after they had done so. He said that he had followed that procedure prior to February 2012 but did not with respect to the predicate incident. [18] Ms. Lucia denied that the procedure for obtaining authorization to donate the complimentary vouchers had changed in any way except as to who was to provide that authorization. She deposed that, as regional manager, she had never informed Mr. Roe that he could use his discretion in making donations of the vouchers and then notify the marketing department after the fact. She reiterated that prior approval, which required formal written requests from either the individual or group that was to receive the vouchers, and the authorized personnel, was always required in advance of the donation. Bill Marshall, another terminal manager, also deposed that he had never been advised of a change in the procedure as alleged by Mr. Roe. [19] In mid-February 2012, Mr. Roe donated $70 worth of complimentary dessert and beverage vouchers to his daughter’s volleyball team when they travelled to the mainland for a tournament. He said that he did so “as a gesture of good will and to provide some minor support to the parents of the players on the team, as the team had not done any fund-raising that season.” He acknowledged that on a previous occasion (during the summer sometime between 2009 and 2011), he had donated travel vouchers to his daughter’s fastball team. Those vouchers had a value of about $120 to $130. He admitted that he did not obtain prior approval for either of these donations or inform the regional manager or marketing department that they had been made. [20] Upon learning of the February 2012 incident, the Employer commenced an investigation. The investigation included a fact-finding interview with Mr. Roe on February 28, 2012 (the “Fact-Finding Meeting”). Present at the Fact-Finding Meeting were Monique Joubarne, Director of Security Programs, Ms. Lucia and Ms. Finnie. [21] The Fact-Finding Meeting was conducted by Ms. Joubarne. The procedure she followed included asking Mr. Roe a question and writing down his answer. She then read out what she had recorded and asked Mr. Roe if her record of his answer was accurate. Only then did she move on to the next question. Ms. Lucia and Ms. Finnie took their own notes of the meeting. The notes of all three representatives as to what occurred at the Fact-Finding Meeting were consistent. [22] The three representatives reported the following findings from the Fact-Finding Meeting: Greg Roe confirmed he understood the purpose of the complimentary vouchers - which was to compensate [the Employer’s] customers if they had a bad experience or were loaded incorrectly or inconvenienced in some way. · He confirmed that he did provide the vouchers to his daughter’s volleyball team for travel on February 19, 2012 (about 12). · The vouchers were written in advance on February 13, 2012 with the intention of providing them to the volleyball team. · They were written using old vouchers from 2005. When asked why he would use these vouchers, he advised that the old ones don’t have a carbon copy so they are not sent back to revenue (the new books are tracked better with a copy of each voucher going back to revenue). · His reason for providing the vouchers was because he wanted to do a nice gesture for the kids and it made him feel good. · He knew it was wrong and that the vouchers were not to be used for this purpose. · He advised he understood he overstepped his authority and breached the trust of the Company. He was then asked if he had ever done this before. He responded that there may have been another occasion - when asked to clarify if he had or had not – he then said there was another occasion for his daughter’s fast ball team that was travelling previously but he couldn’t remember the dates, where he provided between 10-12 food vouchers. He advised that he knew it was wrong at that time as well and again explained that he thought it was a nice gesture. He also explained that he knew they were of value and that he was being more generous than his position allowed. He was asked if he told anyone or got permission from anyone to provide the vouchers – he advised that he did not tell anyone and did not have permission to provide the vouchers. He confirmed that he has not done this for any other teams – other than his daughters [ sic ]. He advised he was very remorseful and would hope that we would take into consideration that others have been given a 2nd chance for things like alcoholism, or anger issues, etc. Monique reminded him that there was a big difference between someone having a problem with alcohol and someone breaching the trust of the Company. He said he understood. [23] The representatives also concluded that: Vouchers issued post 2005 are managed electronically by the revenue department. The vouchers are identifiable and the carbon copies provide explanations for the issuance. When all vouchers have been issued the booklet is returned to revenue for reconciliation. It is the writer’s opinion that Roe was aware that the complimentary vouchers he provided lacked any identifiable markings and that they could not be traced in any way. When the booklet was empty only the spine remained and that was recycled locally . [24] Lastly, included in their report was a recommendation that Mr. Roe be terminated for cause for the following reasons: Recommendation · Greg has relatively short tenure with the Company (4 + years). · He is in a position of authority as a Terminal Manager and held to the highest standard. · His actions were premeditated not once but twice. · He knew his actions were wrong and clearly understood the use of the vouchers. · He used the old vouchers that he knew would not require tracking back to revenue. · He has stolen from the Company and breached the trust of the Company. [25] Mr. Roe deposed that he was “not thinking clearly” during the Fact-Finding Meeting. He said that he was unrepresented, under duress, and found the meeting to be difficult and stressful. He said that he had not been advised of the gravity of the Fact-Finding Meeting or that his job might be in jeopardy. He claimed that Ms. Joubarne, Ms. Finnie and Ms. Lucia were “aggressively attacking” him. In response, Ms. Lucia deposed that the Fact-Finding Meeting was conducted in a “professional, respectful and calm manner at all times.” C. The Legal Framework [26] In McKinley v. BC Tel, 2001 SCC 38 at para. 49, the Court set out a two-part test for determining whether an employer is justified in dismissing an employee on the grounds of dishonesty. The court must determine: (i) whether the evidence establishes the employee’s deceitful (dishonest) conduct on a balance of probabilities; and (ii) if so, whether the nature and degree of the dishonesty warrant the employee’s dismissal. Both parts of the test involve factual inquiries (paras. 48-49). Absent palpable and overriding error, it is common ground that an appellate court may not interfere with a trial judge’s findings of fact. [27] In particular, the test requires an assessment of whether the employee’s misconduct gave rise to a breakdown in the employment relationship justifying dismissal, or whether the misconduct could be reconciled with sustaining the employment relationship by imposing a more “proportionate” disciplinary response (paras. 48, 53 and 57). A “contextual approach” governs the assessment of the alleged misconduct at this stage of the test (para. 51). That assessment includes a consideration of the nature and seriousness of the dishonesty, the surrounding circumstances in which the dishonest conduct occurred, the nature of the particular employment contract, and the position of the employee (paras. 48-57). The ultimate question to be decided is whether the employee’s misconduct “was such that the employment relationship could no longer viably subsist” (para. 29). [28] Mr. Justice Iacobucci, writing for the Court in McKinley, summarized the contextual approach to the assessment of whether the employee’s dishonesty gives rise to a breakdown of the employment relationship as follows: [48]      … I am of the view that whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer . [51]      … I conclude that a contextual approach to assessing whether an employee’s dishonesty provides just cause for dismissal emerges from the case law on point. In certain contexts, applying this approach might lead to a strict outcome. Where theft, misappropriation or serious fraud is found, the decisions considered here establish that cause for termination exists. This is consistent with this Court’s reasoning in Lake Ontario Portland Cement Co. v. Groner , [1961] S.C.R. 553, where this Court found that cause for dismissal on the basis of dishonesty exists where an employee acts fraudulently with respect to his employer. This principle necessarily rests on an examination of the nature and circumstances of the misconduct. Absent such an analysis, it would be impossible for a court to conclude that the dishonesty was severely fraudulent in nature and thus, that it sufficed to justify dismissal without notice . [Italic emphasis original; underline emphasis added.] D. The Judgment [29] The trial judge made no findings of fact regarding: (i) the nature or the seriousness of the alleged misconduct in the context of Mr. Roe’s position as a terminal manager and his employment contract; (ii) the conflict in the evidence regarding the policy and procedure with respect to the Employer’s Customer Recovery Plan; and (iii) the manner in which the Fact-Finding Meeting obtained the admissions from Mr. Roe that led to the recommendation that he be dismissed for cause. Rather, the judge adopted the following approach: [7]        I assume for the purpose of this analysis that the defendant is able to prove its allegations of a knowing breach of company policy and misuse of company property, and I assume for the purpose of this analysis that where there is a conflict in the evidence, the defendant’s [the Employer’s] version is true. In saying this, I want it to be clearly understood that these are assumptions made arguendo and they are not findings of the court. [Emphasis added.] [30] Based on these factual assumptions, the judge concluded: [8]        Does the nature and degree of dishonesty alleged by the defendant warrant summary dismissal? I conclude that it does not. In coming to this conclusion, I accept the defendant’s submissions that Mr. Roe held a position of considerable responsibility and trust. He was one of three persons sharing the most senior management position on site at the terminal, responsible for overseeing and supervising employees at that location. His responsibilities included ensuring that all cash at the terminal was properly accounted for. If he knowingly breached company policy in giving out these vouchers, Mr. Roe made a significant mistake, a mistake to some extent magnified by the fact that his daughter was one of the beneficiaries of the voucher distribution. [31] The judge then addressed whether the nature and seriousness of Mr. Roe’s assumed dishonest actions were reconcilable with a continued employment relationship: [9]        … I am not persuaded by the defendant’s submissions that the conduct is, as counsel for the defendant put it in oral argument, “terrifically serious”. In fact, I would place this conduct at the lower end of [the] spectrum. While not a determinative consideration, the amount involved is trifling, and there was not a great amount of prestige or other non-monetary personal gain to be achieved for the plaintiff by the voucher distribution. This was in no sense a nefarious scheme, and the defendant does not suggest that it was – Mr. Roe took no steps to attempt to deceive or cover his tracks. [10]      In short, as to the nature of the dishonesty, this is not a case of deception. As to seriousness, the extent of the gain is very slight, bordering on trifling, although I accept that the plaintiff’s position as a terminal manager, and the corresponding obligation to lead by example, is an aggravating factor. [32] Applying an objective standard to the issue of whether Mr. Roe’s dishonesty led to an irreconcilable breakdown of the employment relationship, the judge concluded that the employment relationship could be sustained by a lesser sanction than dismissal: [11]      I reject the contention that the alleged behaviour was not reconcilable with a continuation of the employment relationship. Disciplinary measures short of dismissal would have been proportionate to the alleged conduct. Any knowing breach of policy or misuse of company property by an employee in a position of considerable responsibility is to some extent a breach of the trust that an employer reposes in that employee. But when this apparently otherwise reliable employee allegedly strayed from the path in what I have found is a relatively minor way, the defendant has not demonstrated to me, on a balance of probabilities, the soundness of its contention that this employee cannot thereafter be trusted to carry out his duties. E. Discussion [33] Critical to the determination of this appeal is the judge’s assumption of Mr. Roe’s account of what occurred, which included his admissions at the Fact-Finding Meeting. This assumption of facts established the first part of the McKinley test; it also formed the basis for the judge’s analysis of the second part of the test. [34] The assumed facts include the following: (i) Mr. Roe held a position of trust as a senior manager at the terminal site; (ii) his responsibilities included the handling and reconciliation of large amounts of cash; (iii) he acted as a role model and mentor to the other staff at the terminal; (iv) the standards of integrity and honesty, included in the Code, were essential conditions of Mr. Roe’s employment and had been clearly set out by the Employer in Mr. Roe’s employment contract; (v) Mr. Roe knew that his conduct with respect to the vouchers was contrary to the Customer Recovery Plan; (vi) Mr. Roe knowingly did not seek authorization for his donations of the complimentary vouchers or notify anyone of his actions after the fact; (vii) these acts of dishonesty and misappropriation of the Employers’ property were premeditated and therefore constituted deceptive behaviour; (viii) Mr. Roe had engaged in similar acts on at least one prior occasion; and (ix) Mr. Roe’s actions were in breach of the Code, of the trust reposed in him as a senior employee in a management position, and were unethical. [35] On appeal, the central issue was whether Mr. Roe’s assumed conduct, objectively viewed by a reasonable employer, in all of the circumstances (including the nature of the workplace, the nature of Mr. Roe’s position and responsibilities, and the standards set by the Employer in Mr. Roe’s employment contract), could be found to be “bordering on trifling” or “relatively minor”, and therefore not rising to the level of undermining the obligations of good faith that are inherent in and essential to the employment relationship. [36] The judge appears to have based his characterization of Mr. Roe’s conduct on the “trifling” monetary value of the donated vouchers, the lack of a personal benefit to Mr. Roe, and Mr. Roe’s lack of steps to attempt “to deceive or cover his tracks”. With respect, I cannot agree. The value of the donations, as acknowledged by the judge, was of little consequence. Mr. Roe did receive a personal benefit by appropriating the vouchers for his own purpose (to gift the vouchers to his daughter’s volleyball team). That purpose was a personal one and unrelated to the Customer Recovery Plan or the business of his Employer. Mr. Roe’s failure to obtain prior approval, or to even report what he had done, was also an act of deception in that he chose to conceal his actions. Those actions only became known when someone observed a member of the volleyball team attempting to redeem one of the vouchers. Mr. Roe did, however, admit at the Fact-Finding Meeting that he understood he had overstepped his authority and breached the trust of the Employer. This admission was significant given that Mr. Roe was responsible for the handling and reconciliation of large amounts of cash. [37] In reaching his finding that Mr. Roe’s actions were “bordering on trifling”, the judge does not appear to have applied the contextual approach, mandated by McKinley , in assessing whether Mr. Roe’s misconduct irreconcilably undermined the good faith obligations inherent in the employment relationship (paras. 8-11 of his reasons). That approach, in my view, would have required consideration of: (i) the high standard of conduct expected of Mr. Roe given the responsibilities and trust attached to his senior management position; (ii) the essential conditions (characterized as “core values”) of integrity and honesty in his employment contract, including the requirement in the Code “to act in an honest and ethical manner at all times ” (emphasis added); and (iii) his deliberate concealment of his actions which he later acknowledged to have been wrong and unethical. It was in this context the judge had to consider whether Mr. Roe’s assumed misconduct justified his dismissal. In my respectful view, it was the judge’s failure to apply this contextual approach that appears to have led him to commit a palpable and overriding error. F. Summary and Disposition [38] In my view, the judge erred in his characterization of the misconduct he assumed occurred for the purposes of his analysis and for which Mr. Roe was dismissed for cause. His findings, which minimized the assumed misconduct, appear to have occurred in large part because of a failure to consider that misconduct in the context of Mr. Roe’s employment contract, the responsibilities and trust attached to his senior management position, and the policy and procedures he was required to follow in the distribution of complimentary vouchers. The judge’s failure to apply the contextual approach mandated by McKinley resulted in palpable and overriding error. [39] As the factual underpinning of the judge’s analysis was assumed and not determined, this Court cannot weigh the evidence, much of which is in conflict, in order to make the necessary findings on: (i) the nature of the alleged misconduct; and (ii) whether it justified Mr. Roe’s dismissal. Accordingly, I would allow the appeal, set aside the judgment, and remit the matter to the trial court for a new trial. “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Mr. Justice Tysoe” I AGREE: “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Acciona Infrastructure Canada Inc. v. Allianz Global Risks US Insurance Company, 2015 BCCA 6 Date: 20150113 Docket: CA042166 Between: Acciona Infrastructure Canada Inc. and Lark Projects (2004) Ltd., collectively doing business as Acciona Lark Joint Venture Respondents Appellants on Cross Appeal (Plaintiffs) And Allianz Global Risks US Insurance Company Compagnie D’Assurance Allianz Risques Mondiaux E.-U., Zurich Insurance Company Ltd. Zurich Compagnie D’Assurances SA, Temple Insurance Company; and in French, La Compagnie D’Assurance Temple, GCAN Insurance Company Appellants Respondents on Cross Appeal (Defendants) Before: The Honourable Mr. Justice Harris (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated August 19, 2014 ( Acciona Infrastructure Canada Inc. v. Allianz Global Risks US Insurance Company , 2014 BCSC 1568, Vancouver Docket S111660). Counsel for the Appellants: R.B. Lindsay, Q.C. & S.W. Urquhart Counsel for the Respondents: D.L. Miachika Place and Date of Hearing: Vancouver, British Columbia December 23, 2014 Place and Date of Judgment: Vancouver, British Columbia January 13, 2015 Summary: The respondents, two contracting companies, obtained judgment against the applicants, four insurance companies, which provided them with insurance coverage in relation to a large construction project. The applicants seek an order staying the execution of the judgment pending appeal, arguing that there would be a risk of irreparable harm if the monies are paid out, namely, that they would be unable to recover the funds if their appeal is successful. Held: Application dismissed. The applicants have not demonstrated that there would be a real or serious risk of non-recovery if they pay out the damages to the respondents and are successful in their appeal. Reasons for Judgment of the Honourable Mr. Justice Harris: [1] This is an application for a stay of execution of an order in favour of the respondents awarding damages in the amount of approximately $8.5 million in respect of a claim made under an insurance policy. [2] The losses were alleged to have occurred during the construction of a new 500-bed patient care facility at the Royal Jubilee Hospital in Victoria, British Columbia. [3] The applicants, Allianz Global Risks US Insurance Company, Zurich Insurance Company Ltd., Temple Insurance Company, and GCAN Insurance Company, underwrote and issued a Course of Construction Insurance Policy, covering certain defined risks arising during the construction of the project. [4] The respondents, Acciona Infrastructure Canada Inc. and Lark Projects (2004) Ltd., collectively doing business as Acciona Lark Joint Venture, were the design-build contractors for the project. [5] It is not necessary to delve into the background facts, save to observe that the trial judge concluded that the insurance policy, which covered “ALL RISKS of direct physical loss of or damage to the property insured”, covered a portion of the losses suffered by the respondents and their losses were not excluded by the operation of an exclusion clause. [6] The general principles governing a stay of execution were succinctly summarized by Mr. Justice Smith (in Chambers) in Gill v. Darbar , 2003 BCCA 3: [7]        The applicable principles are not in dispute. Generally, a successful plaintiff is entitled to the fruits of the judgment but this Court may stay proceedings if satisfied that it is in the interests of justice to do so: Voth Brothers Construction (1974) v. National Bank of Canada (1987), 12 B.C.L.R. (2d) 43 at 44-45 (C.A. [In Chambers]). The trial judgment must be assumed to be correct and protection of the successful plaintiff is a pre-condition to granting a stay: Morrison-Knudsen Co. v. British Columbia Hydro & Power Authority (1976), 112 D.L.R. (3d) 397 at 404 (B.C.C.A.). The applicant for a stay must satisfy the familiar three-stage test, that is, the applicant must show that there is some merit in the appeal, that the applicant will suffer irreparable harm if the stay should be refused, and that, on balance, the inconvenience to the applicant if the stay should be refused would be greater than the inconvenience to the respondent if the stay should be granted: British Columbia (Milk Marketing Board) v. Grisnich (1996), 50 C.P.C. (3d) 249 at 252 (B.C.C.A. [In Chambers]). [7] These general principles are not in dispute. Nor is it seriously in dispute that the applicants satisfy the threshold test on the merits, although the respondents do not accept that the appeal has substantial merit. The issues of relevance to this application focus on whether, if a stay is not granted and the appeal is allowed, there would be a sufficient risk that the applicants would not be able to recover the damages they will have paid out (a form of irreparable harm) and whether, if that is so, the balance of convenience favours granting the stay. [8] In my view, whether a stay should be granted depends principally on whether the applicants have discharged their onus to demonstrate irreparable harm. The applicants’ apprehension that there may be difficulty recovering the judgment if the appeal succeeds is not sufficient reason for granting a stay. There must be a risk of non‑recovery that rises to a sufficient level of materiality to warrant granting a stay, thereby depriving the successful plaintiffs of the fruits of the judgment, in circumstances where the trial judgment is presumed to be correct. [9] In Susan Heyes Inc. v. South Coast B.C. Transportation Society , 2009 BCCA 348, Mr. Justice Chiasson (in Chambers) observed: [16]      There always is a risk a business will fail and recovery of a judgment made impossible. More is required before a judgment holder is denied the fruits of successful litigation. [10] Mr. Justice Chiasson had this to say about the standard to be met: [7]        The appellants must show that there is a serious risk they will suffer irreparable harm, that is, harm that could not be remedied. The financial position of the respondent is a relevant consideration ( R.J.R. – MacDonald Inc. [ v. ] Canada Attorney General , [1994] S.C.R. 311, at pp. 340-341; Bancroft-Wilson v. Murphy , 2008 BCCA 498; Coburn v. Nagra ; Zylstra v. Hughes , 2000 BCCA 8)[.] [11] Madam Justice D. Smith (in Chambers) in Bancroft-Wilson v. Murphy , 2008 BCCA 498, characterized the relevant level of risk in the following way: [12]      … If the appellant establishes that the respondent’s modest means presents a real risk that the appellant would, if successful on appeal, be unable to recover a large portion of the funds paid to the respondent as damages, the appellant may have established that she could face irreparable harm in that sense: Zylstra v. Hughes , 2000 BCCA 8, 133 B.C.A.C. 21 (Chambers), Hall J.A. [12] The applicants submit that they would be at risk of suffering irreparable harm if the stay is not granted. In their materials, they say that there would be at least “some risk” that the respondents would be incapable of repaying the judgment if the appeal is successful. [13] The respondents have filed material intended to show that there would be no serious risk that they would fail to repay the judgment if the appeal is successful. That evidence discloses: that both respondents are active companies providing construction and construction management services for major projects in British Columbia and throughout Canada; that they have a history of conducting business in the province and that they continue to be active within the province; and that they are profitable, generate very large revenues, and are financially stable. [14] Mr. Fisher, who is the President of the Lark Group, which includes the respondent, Lark Projects, deposed that the Lark Group has operated in British Columbia for over 40 years, providing services for construction and real estate development. Lark Projects, in particular, has operated for over 10 years in British Columbia in construction and real estate development projects, and has been consistently profitable. He deposed that the company has significant assets within the jurisdiction. His affidavit identified a variety of large current projects in British Columbia, principally involving health care facilities. He attached to his affidavit the most recent financial statements for Lark Projects, which disclose, inter alia : assets of $39.4 million; cash and cash in trust of $2.1 million; retained earnings of $12.2 million; construction revenues of $92 million; gross revenues of $3.9 million; and net income of $2.3 million. He expressed the opinion that the risk that Lark Projects would not be able to repay the judgment, should the appeal succeed, would be minimal. [15] Mr. Palomar swore an affidavit on behalf of Acciona Infrastructure Canada, Inc. (“Acciona Canada”). Mr. Palomar is the Vice President, Finance and Administration, of Acciona Canada. [16] He deposed that Acciona Canada has operated continuously in Canada for over 10 years, providing construction and construction management services in various provinces, primarily for large-scale infrastructure projects. Although federally incorporated, Acciona Canada has offices in Toronto, Montréal, and Calgary, and its head office is in Vancouver. Acciona Canada is part of the Acciona Group, a Spanish company employing more than 30,000 professionals and operating in over 30 countries. Its Canadian operations account for approximately 8% of the group’s global construction business, a contribution valued in the billions of dollars. Mr. Palomar deposed to various major ongoing projects across Canada with which Acciona Canada is involved. [17] Mr. Palomar deposed that, in his opinion, the risk that Acciona Canada could not repay the judgment, should the appeal succeed, would be extremely low. [18] In light of the affidavit material provided by the respondents, the applicants refined their submissions. My attention was drawn to Voth Bros. Construction ( 1974) Ltd . v. National Bank of Canada (1987), 12 B.C.L.R. (2d) 43 (C.A.), to support an alternative argument that a stay be ordered, in light of the significant amount involved, unless the applicants provide security (in the form of a letter of credit) for the return of the judgment amount, in the event the appeal is successful. In particular, emphasis was placed on the comments of Mr. Justice Lambert identifying the risk that if no order is made for a stay of execution and a plaintiff receives the judgment amount, a defendant would have no assurance that the amount of the judgment would be repaid if successful on appeal. As he pointed out, a plaintiff will have had interest-free use of the funds, to which it was never entitled. He went on to say at 46: To avoid those problems, the practice has been adopted, where the amount involved is significant, of ordering a stay of execution on payment of the amount of the judgment into court by the defendant, and ordering payment out [to] the plaintiff on terms first that if the defendant is successful on its appeal it will be entitled to interest on the funds repaid to it and, second, that the plaintiff provide sound security, sufficient to secure the repayment of the amount paid out, together with an amount representing an estimate of the defendant’s costs of the appeal on a party-and-party basis, and an amount representing interest on the funds that would be repaid if the defendant were to be successful in the appeal The advantage of such an order is that it gives the plaintiff the fruits of his judgment as soon as he is entitled to them, but at the same time it protects the defendant against the risk that he will not be repaid, and against the loss of the interest he would earn from the use of the money which may ultimately turn out to have belonged to him all along. [19] The applicants also argue that the affidavit material fails to give sufficient assurance that the respondents would repay the judgment if the appeal is successful. They argue that nowhere is it unequivocally stated that the respondents would repay the judgment. The applicants expressed concern that: the affidavit material does not clearly disclose what assets are available in British Columbia to satisfy a judgment; does not disclose what kind of real property is available within British Columbia; arguably overstates the value of projects with which the respective respondents are involved; and presents an unclear picture of how readily available assets would be to repay the judgment. Furthermore, Acciona Canada is part of a complex group of companies headquartered in Spain and although the group overall has very considerable resources, the relationship of the Canadian company to the group as a whole is unclear. [20] The applicants also point out that the respondents propose to use the judgment proceeds to finance ongoing business operations. In their view, such use could put the proceeds beyond recovery. [21] In brief, the applicants accept that the respondents are viable business enterprises of significant scope and financial strength. They argue, however, that the affidavit evidence is not sufficiently precise, clear, compelling, or unequivocal to lay to rest a concern that recovery of the judgment proceeds might not be possible, or could be uncertain or difficult if the appeal succeeds. [22] On a review of the evidence, I am satisfied that the respondents are large, well-established, viable, profitable, and financially stable enterprises with a history of conducting business in British Columbia and Canada, each of which has significant assets, including assets in British Columbia. I am satisfied that there would be no real or serious risk that the judgment amount would not be repaid in the event the appeal is successful. The criticisms of the affidavit material offered by the applicants do not, in my view, materially detract from that conclusion. [23] The parties to this litigation, on both sides, are very large enterprises dealing in hundreds of millions, if not billions, of dollars of business. I do not think that the judgment amount is particularly significant or large in light of the financial resources of the parties. In particular, the applicants deal with sums vastly in excess of what is in issue in this litigation, given the nature of their business and resources. I am not persuaded that, from the perspective of the applicants, the judgment amount here should be regarded as sufficiently significant to invoke the principles discussed in the Voth case. [24] The onus is on the applicants to meet the test for the granting of a stay of execution. In my view, they have failed to establish that there would be a real or serious risk that they would suffer irreparable harm if a stay is not granted. Accordingly, the application is dismissed. “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Edgewater Casino v. Chubb-Kennedy, 2015 BCCA 9 Date: 20150113 Docket: CA041688 Between: Edgewater Casino Appellant (Petitioner) And Anita Chubb-Kennedy and The British Columbia Human Rights Tribunal Respondents (Respondents) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Bennett The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated March 13, 2014 ( Edgewater Casino v. Chubb-Kennedy , 2014 BCSC 416, Vancouver Docket No. S137857). Counsel for the Appellant: N. Mitha S. McCann Respondent Appearing In Person: A. Chubb-Kennedy Counsel for the Respondent, BC Human Rights Tribunal: M. Underhill Place and Date of Hearing: Vancouver, British Columbia September 26, 2014 Place and Date of Judgment: Vancouver, British Columbia January 13, 2015 Written Reasons by: The Honourable Madam Justice Saunders Concurred in by: The Honourable Madam Justice Bennett The Honourable Mr. Justice Willcock Summary: This appeal is from the dismissal of a petition for judicial review of a decision of the Human Rights Tribunal declining to dismiss a human rights complaint prior to a hearing. The reviewing judge held that the decision, a discretionary one made in the exercise of the Tribunal’s gatekeeping function, was not patently unreasonable. Held: appeal dismissed. The judge did not err in concluding the Tribunal’s decision was not patently unreasonable. Section 27(1)(c) of the Human Rights Code, R.S.B.C. 1996, c. 210 discussed. Reasons for Judgment of the Honourable Madam Justice Saunders: [1] Edgewater Casino appeals from dismissal of its petition for judicial review of a decision of the British Columbia Human Rights Tribunal. The Human Rights Tribunal, on Edgewater Casino’s preliminary motion, had dismissed two aspects of Mrs. Chubb-Kennedy’s complaint against Edgewater Casino but not a third, a complaint that Edgewater Casino had discriminated against Mrs. Chubb-Kennedy on the basis of race and ancestry. In its petition for judicial review Edgewater Casino contended that the Tribunal erred in failing to dismiss the complaint entirely. It takes the same position before us. [2] The complaint arises from Edgewater Casino’s provision of a shuttle bus service for its patrons to transport them to and from its casino in Vancouver, British Columbia. Mrs. Chubb-Kennedy is a woman of First Nations descent. She was a frequent patron of the casino and user of the shuttle bus. Mrs. Chubb-Kennedy alleges in the complaint, and it is accepted by all, that on two occasions the driver of the shuttle bus removed her from the bus and declined to transport her from the casino. She alleges these actions contravened the Human Rights Code , R.S.B.C. 1996, c. 210. [3] The evidence before the Tribunal was, in the main, filed by Edgewater Casino. It includes a description of Mrs. Chubb-Kennedy on the first occasion when she was removed from the shuttle bus as appearing to the driver to be intoxicated or impaired by drugs or alcohol, and on the second occasion as having attracted complaints from other passengers of smelling “like alcohol”. Mrs. Chubb-Kennedy was, by the driver’s account, loud, aggressive, and obnoxious on both occasions. [4] There was little material from Mrs. Chubb-Kennedy apart from her complaint. She did file, however, a letter saying “I have never gotten drunk on the bus or at the Edgewater Casino”. Before us, Mrs. Chubb-Kennedy asserted that she does not consume alcohol, and she denies the unruly and disruptive behaviour alleged by Edgewater Casino. [5] The Tribunal declined to dismiss the complaint of discrimination on the basis of race and ancestry at the preliminary stage, saying that the description of the complainant’s behaviour in the affidavits filed by Edgewater Casino “accuses Mrs. Chubb-Kennedy of behaviour stereotypical of persons [of] First Nations descent”. The Tribunal found this was “enough to establish a nexus between the behaviour complained of and the protection under the Code ”. [6] The issue before the reviewing judge was whether the Tribunal’s decision was patently unreasonable. This patent unreasonableness, says Edgewater, consists of the Tribunal giving undue weight to the evidence of the complainant and in determining there was a sufficient nexus between the actions of Edgewater Casino and the complainant’s race and ancestry so as to permit the complaint to go forward to the next stage of the Tribunal’s process. [7] The reviewing judge observed that the finding of potential for a nexus was an inference connecting the behaviour complained of and Mrs. Chubb-Kennedy’s status as an Aboriginal woman. The judge identified the issue before him as whether that “inferentially-driven conclusion” of the potential for a nexus between the driver’s removal of Mrs. Chubb-Kennedy from the bus and the protection provided by the Human Rights Code could be characterized as patently unreasonable (the standard of review under s. 59 of the Administrative Tribunals Act , S.B.C. 2004, c. 45). He found that the decision of the Tribunal was “somewhat surprising” but not patently unreasonable, saying: [63]      I suspect that if many members of the community were presented with the situation, they might well find the conclusion to be at least somewhat difficult to understand. It does not scream “logical”. In the vernacular, the drawing of that conclusion seems to “draw a long bow”. However, in order to assess it for the purpose of the present application, I am obliged to recognize that there is some element of specialization to the task which the Tribunal had to perform. Implicit in the conclusion is that the Tribunal applied some element of specialized knowledge to reach the conclusion it reached and I am required to bear in mind the standard of review which is applicable. [64]      From the petitioner’s perspective, I believe the result is particularly disconcerting because it essentially takes the evidence which was tendered by the petitioner, tendered I’m sure in an honest and sincere way, and uses that evidence to support a conclusion quite adverse to the petitioner. For the petitioner, the most obvious meaning of its evidence, that the Complainant was acting irrationally and actually seemed to be under the influence at the time, appears to have been swept aside in favour of another more obscure and, for the petitioner, sinister interpretation. Quite naturally, a sense of frustration is engendered. [65]      In the final result, while I consider the conclusion drawn by the Tribunal to be somewhat surprising, I must also recognize that this Court is obliged to accord a reasonable measure of deference to decisions of specialized tribunals. [66]      There is also the fact that the Tribunal’s decision was made at a time before the evidentiary record had been properly developed. The Tribunal was not being asked to conclude that the discriminatory act had been proven, but rather to decide whether there was some reasonable possibility that it might be proven in the circumstances of a full hearing. [67]      While I am not without some reservation as to the correctness of the Tribunal’s decision, that is not the test to be applied. The threshold for the decision to survive is a low one: unless that decision is one which is properly characterized as patently unreasonable, this Court will not interfere. I find the threshold for survival has been met. [8] The question for us is whether the reviewing judge erred in concluding the Tribunal’s decision was not patently unreasonable. [9] Edgewater Casino’s application to the Tribunal for dismissal of the complaint was made under s. 27(1)(c) of the Human Rights Code , which provides discretion to the Tribunal in these terms: 27   (1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply: (c) there is no reasonable prospect that the complaint will succeed; [10] That section accords the Tribunal a gatekeeping function, intended to allow the complaint process to be abbreviated so that parties are not embroiled in the expenditure of time and money on complaints, and the Tribunal is not engaged in hearing cases, that are not realistic candidates for a remedial order. [11] The approach to the Tribunal’s s.27(1)(c) function is found in jurisprudence developed for a former articulation of the gatekeeping power, s. 14(1)(a) of the Human Rights Act , S.B.C. 1984, c. 22. As that section allowed the then Human Rights Council to “order that the proceedings be discontinued” but did not describe the criteria the Council should consider in making such a determination, the Supreme Court of British Columbia addressed the question in a series of cases, including in Cook v. British Columbia Council of Human Rights (1988), 26 B.C.L.R. (2d) 52, and Onischak v. British Columbia (Council of Human Rights) (1989), 38 Admin. L.R. 258. In Cohen v. British Columbia Council of Human Rights (1990), 72 D.L.R. (4th) 306 (B.C.S.C.),  Mr. Justice Lysyk relied upon this passage of Mr. Justice Wood in Cook : When considering whether or not to discontinue proceedings under s. 14(1)(a), it is my view that the council must employ an objective standard. The one that comes readily to mind is that to which the common law has frequently resort[ed], namely, a standard which invokes a test of reasonableness. I conclude that when considering a complaint the council must determine whether there is any evidence upon which either a board of inquiry under s. 16, or a designated member of council under s. 14(1)(d), acting reasonably, could find the complaint to be proved on a balance of probabilities . [Emphasis added at 315-316.] Mr. Justice Lysyk in Cohen concluded with these comments: The Act does not require Council members to be legally trained and it may be doubted whether the legislature intended the Council to perform its filtering function, contemplated by s. 14(1)(a), by applying a sophisticated legal formula in the manner of a court of law. … In S.E.P.Q.A. v. Canadian Human Rights Commission , [1989] 2 S.C.R. 879, 11 C.H.R.R. D/1, consideration was given to principles governing exercise of the commission’s authority under the relevant provisions of the Canadian Human Rights Act to dismiss a complaint, after investigation, without appointing a tribunal to conduct a hearing. Mr. Justice Sopinka, writing the majority reasons, made the following observations concerning this function of the commission (at p. 428): It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage . It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. [Emphasis added in Cohen .] [12] In Lee v. British Columbia (Attorney General) , 2004 BCCA 457, 32 B.C.L.R. (4th) 1, Mr. Justice Donald discussed a former version of the current provision, drawing on the jurisprudence of the Human Rights Act : [26]      … there will almost always be some evidence of the possibility of discrimination when a member of a minority group is passed over in favour of a member of the majority group. But a mere possibility surely cannot be enough to require a hearing. The scheme of the statute involves a screening process so that only complaints with sufficient merit will proceed to a hearing . The HRC was assigned the role of gate keeper. Thus the HRC had to assess this case in a preliminary way and make a judgment whether the matter warranted the time and expense of a full hearing. The threshold is not particularly high: whether the evidence takes the case “out of the realm of conjecture” : [Citations omitted.] [27]      In my view the evaluation of the complaint at the gate keeping stage attracts the highest degree of curial deference . It involves the assessment of evidence in a specialized area. [Emphasis added.] [13] In Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95, 51 B.C.L.R. (4th) 4, Mr. Justice Smith referred to these passages of Lee , and confirmed that these same considerations apply in reviewing a decision made under the current s. 27(1)(c): [26]      Although there is now a single tribunal, the scheme has not changed in its essence. The discretion to dismiss a claim that, on a preliminary assessment, does not warrant a full hearing has passed from the former Human Rights Commission to a panel or a member of the Tribunal under the current s. 27(1). The nature of this gate keeping function has not changed. In my view, the approach set out by Mr. Justice Donald to a gate keeping decision of the Human Rights Commission is equally applicable to a gate keeping decision made by a panel or a member of the Tribunal . [Emphasis added.] [14] Before us Edgewater Casino says the reviewing judge erred in failing to find the decision was patently unreasonable for the same two reasons advanced before the judge: first, the Tribunal gave undue weight to the evidence of Mrs. Chubb-Kennedy, and second, the material before the Tribunal did not support the nexus referred to by the Tribunal between the behaviour complained of and Mrs. Chubb-Kennedy’s race and ancestry. Edgewater Casino says the complaint is so unlikely to succeed it should be dismissed at the preliminary stage. [15] As is apparent from the authorities I have referred to, consideration of a complaint at the gatekeeping stage does not involve the weighing of evidence. Rather the Tribunal performs a preliminary assessment of all the material filed to that point. Thus I would not accede to Edgewater’s submission that the Tribunal erred in respect to the weight given to the complainant’s statement. [16] Nor do I consider that the judge erred in his view that the Tribunal was not patently unreasonable in holding that the information before it laid enough by way of groundwork to justify the complaint advancing to adjudication. [17] Edgewater Casino says it produced ample evidence of its policy of refusing service to disruptive riders, and of Mrs. Chubb-Kennedy’s behaviour as loud and disruptive consistent with intoxication by alcohol, to establish that no credit could be given to a complaint of discrimination. It says the complaint has no reasonable prospect of success because a connection between the behaviour of its driver which founds the complaint and the prohibited head of discrimination is simply not apparent on the material that was before the Tribunal. In its submission, both the Tribunal and the reviewing judge erred in failing to recognize this. But one may ask, if Mrs. Chubb-Kennedy testifies at the hearing, and is believed, that she was not intoxicated and had not consumed alcohol, is it outside the realm of conjecture to consider that she was the recipient of stereotypical assumptions based simply on her presentation and if so, was the Human Rights Code violated? [18] The case at this stage, of course, is far from establishing the finding just described, but these are early days. It is, in my view, important to view the limits of the Tribunal’s finding. The decision does not say that the necessary connection for a finding of prohibited discrimination is established, but rather that considering what may be known of stereotypical behaviour, proof of the complaint was not “out of the realm of conjecture”: Lee at para. 26; Berezoutskaia at para. 26. [19] The reviewing judge held that it could not be said the Tribunal was patently unreasonable in allowing the complaint to proceed to completion on the allegation of discrimination on the basis of race or ancestry. I agree. The nature of the particular question addressed by the Tribunal engages its expertise and the answer given by the Tribunal is one that attracts the court’s highest deference. Having reviewed the materials filed, it seems to me it was open to the Tribunal, applying a relatively low “merits” threshold, to decline to abbreviate the natural complaint process so as to allow this aspect to proceed to an adjudication. [20] As I do not consider that the reviewing judge erred in concluding that the Tribunal’s refusal to dismiss this aspect of the complaint under s. 27(1)(c) was not patently unreasonable, I would dismiss the appeal. “The Honourable Madam Justice Saunders” I agree: “The Honourable Madam Justice Bennett” I agree: “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Sampley v. Sampley, 2015 BCCA 51 Date: 20150113 Docket: CA042350 Between: Matthew Jason Sampley Respondent (Petitioner) And Michelle Denise Sampley Appellant (Respondent) Before: The Honourable Mr. Justice Groberman (In Chambers) On appeal from: an order of the Supreme Court of British Columbia dated November 5, 2014 ( Sampley v. Sampley , 2014 BCSC 2434, Cranbrook Registry No. 24551) Oral Reasons for Judgment Counsel for the Appellant: G.A. Lang Counsel for the Respondent: J. Lalonde (via teleconference) Place and Date of Hearing: Vancouver, British Columbia January 13, 2015 Place and Date of Judgment: Vancouver, British Columbia January 13, 2015 Summary Mr. S. sought and obtained relief under the Hague Convention on the Civil Aspects of International Child Abduction. Before the litigation commenced, he had consulted with Ms. L. with a view to having her represent him. On the appeal, Ms. S. retained Ms. L. Mr. S. applied to have Ms. L. removed from the case on the basis of conflict of interest. Held: Application dismissed. Ms. L. was in a situation of conflict, having received confidential from Mr.  S. She should not have accepted a retainer to represent Ms. S. on the appeal. The dangers of abuse of confidential information are generally attenuated on appeal, but remain present. A bright-line test generally prevents counsel from representing one party after having received confidential information from the opposite party to the litigation. There is, however, a discretion in the court to allow counsel to continue where it is satisfied that it is in the interests of justice to do so, and where the dangers of misuse of confidential information are minimal. Here, there was no real likelihood of misuse of confidential information. Counsel took on the case in good faith, there was urgency in having the matter heard, and Mr. S. had not brought the application on in a timely fashion. Ms. L. was allowed to continue to represent Ms. S., but only for the purposes of the current appeal. [1] GROBERMAN J.A. : This is an application brought by the respondent for an order that the appellant’s counsel be required to withdraw from the case on the basis that she is in a conflict of interest. [2] The appeal arises out of an order made in the Supreme Court on November 5, 2014 under the Convention on the Civil Aspects of International Child Abduction , Can. T.S. 1983 No. 35 (the “ Hague Convention” ). Reasons for judgment were issued on December 23, 2014, a few weeks after the order was made. [3] Within a week of the order being made, Ms. Sampley decided to bring an appeal and she retained Ms. Lang to act as her appeal counsel. That created a potential problem because, when he was initially contemplating bringing his Hague Convention application, Mr. Sampley had contacted Ms. Lang with a view to having her represent him. [4] Mr. Sampley’s evidence is that in April 2014, he left a voicemail for Ms. Lang in his initial attempts to find counsel. He deposes: I received a return phone call from Ms. Lang a few days after I left her the initial voicemail. During my conversation with Ms. Lang, I explained my entire personal situation involving the abduction of [the child] by Michelle, including but not limited to a detailed account of the facts of my case, my desired outcome, and my thoughts on my case. I told Ms. Lang intimate details regarding this proceeding, and I consider the information that I told Ms. Lang to be confidential information. [5] On November 11, 2014, Ms. Lang advised Mr. Sampley’s counsel that she had been retained to bring the appeal. He immediately raised the issue of conflict of interest. In a letter dated November 14, 2014, he stated: My client informed me that he spoke with you regarding this file prior to him commencing his Hague petition. He spoke with you in length about his situation and informs me that you were willing to represent him for the petition. It seems that this puts you in a conflict in acting for Ms. Sampley in the appeal, however, I will wait to hear from you on this issue. [6] There followed correspondence between counsel. At a case management conference on November 20, 2014, before Neilson J.A., it was agreed that the issue should be dealt with by way of an application in chambers to be brought during the week of December 5, 2014. [7] There were some perfunctory attempts made by Mr. Sampley’s counsel to bring the matter on in chambers, but despite the lack of any serious obstacles to doing so, nothing much actually occurred until the material for the application was filed on January 5, 2015. The matter comes on for hearing, for the first time, this morning. [8] There is often urgency in Hague Convention matters, and in this case an expedited appeal has been arranged with a hearing date of February 17, 2015. The appellant’s factum, I am advised, was filed yesterday. Although there is some issue as to when the respondent’s factum will be filed, I am informed that, assuming counsel for the appellant is able to continue, the parties are on-track for a hearing on the scheduled date. It is acknowledged by counsel for the respondent that if Ms. Lang is required to withdraw as counsel, the February 17 date will be lost and the matter will have to be rescheduled at some point further in the future. [9] There are effectively three issues in this application. The first is the question of whether Ms. Lang was given confidential information that raises an issue of conflict of interest. The second is whether, this being an appeal, any confidential information received by Ms. Lang is effectively irrelevant so that a conflict does not arise. The third issue, if there is a conflict of interest, is whether the delays in bringing this application are such that Ms. Lang should be allowed to continue notwithstanding any conflict. [10] On the first question there is little evidence of the information that was imparted to Ms. Lang apart from the paragraph in the affidavit of Mr. Sampley that I have already referred to. It is difficult to determine precisely what information may have been exchanged. In such a situation, the law generally errs on the side of caution. In MacDonald Estate v. Martin , [1990] 3 S.C.R. 1235 at 1260, Sopinka J. said: In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. The degree of satisfaction must withstand the scrutiny of the reasonably informed member of the public. This will be a difficult burden to discharge. [11] The affidavit of Mr. Sampley indicates that confidential information was imparted to Ms. Lang. In any event, on the basis of the reasoning of Sopinka J. in MacDonald Estate , it should be inferred that she received confidential information. There is nothing in the respondent’s material that serves to rebut the inference. I proceed on the basis, therefore, that confidential information was provided by Mr. Sampley to Ms. Lang. [12] In saying this, I wish to emphasize that Ms. Lang has advised the Court that she was not conscious of having spoken to Mr. Sampley when she accepted a retainer from Ms. Sampley. Even now, she has only a vague recollection of some gentleman contacting her with respect to a Hague Convention application. It is not suggested that she recalls confidential information nor is it suggested that she has made use of such information. Her good faith in accepting the retainer is not challenged. Good faith, however, does not eliminate the conflict. [13] I turn to the next question, which is whether the fact that this is an appeal is a consideration that takes this outside the general rule that, having received confidential information from one party, counsel cannot act for the opposite party [14] Ms. Lang notes that the appeal is on the record, and says that there will be no attempt to put additional evidence before the Court or, at any rate, no attempt will be made to put additional evidence before the Court that could in any way be influenced by confidential information. She emphasizes that the arguments on an appeal are legal in nature. Her factum has been filed and it contains nothing that relies on confidential information. Accordingly, she says, any confidential information that she might have been given is irrelevant to the appeal. [15] I accept that the dangers of misuse of confidential information are very much attenuated on an appeal. That said, Ms. Sampley, having retained Ms. Lang for the appeal, has retained her for the purposes of dealing with the Hague Convention matter, at least during the currency of the appeal. Mr. Sampley’s personal situation, his goals in the litigation, and his concerns about the process may well be of interest should there be discussion of settlement, should issues of scheduling arise, or should there be a need to canvass appropriate terms of an order. While I accept that the risks of misuse of confidential information are attenuated on appeal, they are nonetheless present. In my view, the general principle that counsel, having received confidential information, cannot act against the person who has furnished it must be respected. It is important in this area of the law, as far as possible, to have bright-line rules so that counsel and their clients are clear on when a retainer can be accepted and when it cannot be. [16] If this matter had been brought before the Court in early December as planned, I would not have had any hesitation in requiring Ms. Lang to withdraw due to conflict of interest. [17] The question is whether that same situation obtains today, given the delay in bringing the application. The question is whether I should make an order requiring Ms. Lang to withdraw given that the inevitable result of such an order would be to delay the appeal proceeding. [18] In the case of Canadian National Railway Co. v. McKercher LLP , 2013 SCC 39, the Supreme Court of Canada considered circumstances that might justify allowing a lawyer to continue to act despite a finding of conflict. The court said: 65.       … [I]n circumstances where the lawyer-client relationship has been terminated and there is no risk of misuse of confidential information, there is generally no longer a concern of ongoing prejudice to the complaining party. In light of this reality, courts faced with a motion for disqualification on this third ground should consider certain factors that may point the other way. Such factors may include: (i) behaviour disentitling the complaining party from seeking the removal of counsel, such as delay in bringing the motion for disqualification; (ii) significant prejudice to the new client's interest in retaining its counsel of choice, and that party's ability to retain new counsel; and (iii) the fact that the law firm accepted the conflicting retainer in good faith, reasonably believing that the concurrent representation fell beyond the scope of the bright line rule and applicable law society restrictions. [19] This is not a case like McKercher , where the retainer at issue was in respect of a completely different matter than the one on which confidential information was imparted. The retainer in issue here of Ms Lang is with respect to the same matter – the Hague Convention application – on which she was contacted by Mr. Sampley. Nonetheless, the bright-line rule itself is not contravened here because there is no concurrent obligation or concurrent representation. In my view, the court has some discretion to allow Ms. Lang to continue, notwithstanding a finding of conflict. [20] I take into account that, this being an appeal, there is a very limited possibility of any prejudice resulting from Ms. Lang having confidential information. The factum has been filed and, as Ms. Lang points out, it does not in any sense rely on anything that can be said to be confidential. The appeal is on the record and there is no attempt to bring forward evidence resulting from confidential disclosures. Thus, there is only a very remote possibility that the conflict will prejudice the respondent. [21] I accept that Ms. Lang accepted the retainer in good faith and that considerable resources have now been expended on getting the matter ready for appeal. The factum has been filed and the matter from the appellant’s point of view is ready to be heard. [22] I am concerned about the delays by the respondent in bringing this application forward. Those delays have resulted in significant prejudice to the appellant both because resources have been expended and because the appeal date will be lost in the event that counsel is required to withdraw. [23] In the circumstances, notwithstanding my finding that there is a conflict, I am satisfied that it is appropriate not to require Ms. Lang to withdraw from her representation of Ms. Sampley on the appeal. [24] I come to that conclusion on the basis that the appeal will be heard on February 17 and on the representation of Ms. Lang that her retainer will be at an end once the appeal has been heard. In my view, that latter indication is of paramount importance. Ms. Lang should not be involved in further proceedings in this matter. That would include any further hearings in the B.C. Supreme Court, but it would also include any subsequent appeals beyond the hearing before this Court. The ruling that I am making is based on the exigency of there being an appeal scheduled for February 17 and on the very limited relevance of any confidential information to that particular proceeding. [25] In the result, I am dismissing the application for an order that Ms. Lang withdraw as counsel but I am granting a declaration that she does find herself in a position of having obtained confidential information which precludes her from involvement in this matter beyond the current appeal. [discussion with counsel re. filing timeline] [26] GROBERMAN J.A. : I am going to direct then that the respondent’s factum including the factum of the appellant by cross-appeal be provided to counsel and filed with the Court no later than the close of business on January 23, 2015. [27] Ms. Lang you will then be in a position of filing any reply factum and the response to the cross-appeal by January 30, 2015. [28] Unless I am missing something that would leave only the reply factum on the cross-appeal. That will be due February 6. [discussion with counsel re. costs] [29] GROBERMAN J.A. : I think it is appropriate that each party bear his or her own costs of the application today. [30] Madam Justice Neilson remains the case management judge on this appeal. I will report to her on the deadlines that I have imposed. I am very hopeful that no further appearances on case management will be necessary, but if they are they should be scheduled before Madam Justice Neilson. “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: T.K. v. R.J.H.A., 2015 BCCA 8 Date: 20150113 Docket: CA041439 Between: T.K. Appellant (Claimant) And R.J.H.A. Respondent (Respondent) Before: The Honourable Madam Justice Levine The Honourable Madam Justice Smith The Honourable Madam Justice Stromberg-Stein On appeal from:  An order of the Supreme Court of British Columbia, dated November 21, 2013 ( T.K. v. R.J.H.A. , 2013 BCSC 2112, Victoria Docket No. E122025). Counsel for the Appellant: In Person Counsel for the Respondent: Robert S. Gill Place and Date of Hearing: Victoria, British Columbia September 30, 2014 Place and Date of Judgment: Vancouver, British Columbia January 13, 2015 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Madam Justice Levine The Honourable Madam Justice Stromberg-Stein Summary: The appellant mother commenced divorce proceedings in which she applied to relocate with the children of the marriage from the Victoria area of British Columbia, where she and the father had lived for the almost ten years of their marriage, to the Toronto area of Ontario, where she was raised and her family continues to reside. The trial judge found that it was in the children’s best interests that they continue to be co-parented in the de facto joint custody and shared residency arrangement the parties had implemented in the Victoria area after their separation. He therefore refused the mother’s application to relocate with the children. He also imputed income to the mother for the purposes of the child support and granted the father costs of the action as the substantially successful party. The mother appeals all three orders. Held: Appeal dismissed. The mother failed to demonstrate any material error of law or fact in the trial judge’s analysis in determining the best interests of the children. The judge weighed all of the relevant factors set out in Gordon v. Goertz and other relevant circumstances relating to the needs of the children and the ability of the respective parents to satisfy them. The judge did not rely on the reasons volunteered by the mother for wanting to relocate or the reasons of the father in preferring not to relocate, for a presumptive disposition in favour of the status quo; rather he weighed all of the evidence in determining the custodial arrangement that was in the best interests of the children. Nor did the judge err in imputing income to the mother at a level below full-time employment for the purposes of child support or in awarding the father costs of the action as the substantially successful party. Reasons for Judgment of the Honourable Madam Justice D. Smith: A. Overview [1] The mother of two children, a son (now 10) and a daughter (now 8), appeals a provision of a final order in the underlying divorce action that refused the mother’s application to move with the children of the marriage from the Victoria area of British Columbia, where she and the father lived for the duration of their 9½ year marriage, to the Toronto area of Ontario, where she was raised and her family continues to reside. [2] The breakdown of the marriage occurred when the mother insisted the family move to the Toronto area and the father refused to do so. This issue led to the parties’ formal separation on January 9, 2012, although they continued to reside together in the family home for the following 22 months until the date of the trial. During that period they continued to co-parent the children, as they did during the marriage. They also agreed on the division of assets, which resulted in the father buying out the mother’s interest in the family residence. [3] Following an 11-day trial, in written reasons for judgment dated November 21, 2013, the trial judge granted the parties a divorce, divided the family assets by consent, granted the parties joint custody with equal shared residency of the children pursuant to s. 16 of the Divorce Act, R.S.C., 1985, c.3 (2 nd Supp.), refused the mother’s application to relocate with the children, and awarded child support based on the shared custody arrangement using the formula of a simple set-off of each parties’ income, which included the imputation of a modest gross-up to the mother’s part-time income pursuant to s. 9(a) of the of the Federal Child Support Guidelines (the “ Guidelines ”). He also awarded the father, who was the substantially successful party in the action, ordinary costs pursuant to R. 16-1(7) of the Supreme Court Family Rules. [4] The mother raises numerous grounds of appeal. In my view they may conveniently be reduced to three: (a)      The trial judge erred by failing to apply the best interests of the child test as the sole determinant of her application to move with the children to the Toronto area; (b)      The trial judge erred in imputing income to the mother, pursuant to s. 19(1)(a) of the Guidelines, given the special needs of the son; and (c)      The trial judge erred in awarding the father costs. [5] The central issue in this appeal is the application of the test in Gordon v. Goertz, [1996] 2 S.C.R. 27, to circumstances where the parent seeking to relocate with the children of the marriage was in a de facto joint custody, shared residency arrangement with the other parent since separation, and the final order of divorce provided for the continuation of that custodial arrangement as in the best interests of the children. In particular, the appeal engages the issue about when the relocating parent’s reasons for wanting to move, or parenthetically the non-relocating parent’s reasons for refusing to move, may be relevant considerations in determining the best interests of the children. It also engages the issue of whether the “double-bind” inquiry (what each parent might do if the application to relocate is allowed or refused) may be relevant to determining the best interests of the children. [6] For the reasons that follow, I would dismiss all grounds of appeal. In my view, the mother has failed to demonstrate any material error of law or fact in the judge’s analysis of the best interests of the children or in his orders for child support and costs. B. Background 1. The Parents [7] The mother, age 41 at trial, was born in Hong Kong of Chinese parents. At age four she moved with her parents and two siblings to the Toronto area. Her mother’s four siblings and her father’s brother also immigrated to Toronto. She has a large extended family, including 25 cousins, who live in the Toronto area. In 1998, after obtaining her degree as a Doctor of Veterinary Medicine, she moved to Vancouver, British Columbia. In 1999, she met the father and in 2000 she moved from Vancouver to Victoria in order to be with him. In August 2002, the parties purchased a home, where they resided after their marriage on September 6, 2002. [8] The mother worked full time until the children were born. The son was born on October 2, 2004, and the daughter on August 22, 2006. The mother took a one-year maternity leave with the birth of each child. Thereafter, she chose to return to part-time employment of three-days a week so that she could be the primary caregiver to both children and meet the special needs of the son that required him to be transported to a variety of medical, physiotherapy, occupational therapy, and speech language appointments. Both children were also enrolled in a number of extra-curricular activities. The parties employed the services of a nanny to assist them with the children when they were both working. [9] While working part-time, the mother earned $138,779 in 2010 and $124,802 in 2011. In November 2011 she was laid off from her employment. She has since turned down similar offers of employment and has chosen instead to take locum (temporary fill-in) contract work as it provides her greater flexibility over her hours of work. In 2012 she earned $62,334. [10] The father, age 45 at trial, was born and raised in Toronto. His parents and five of his six siblings continue to reside there. He moved to Victoria in 1990 to attend university, where he completed a bachelor’s degree in chemistry. Thereafter he began working for his current employer, a manufacturer of plastic and other products. He started with his employer as a production worker in a summer job. Over the course of the past 20 years he has moved up in the company. In 1998 he secured a full-time position and is currently employed as a mid-to-senior level manager. He fills the position of Financial Controller and Systems Manager, although he is not an accountant and has no formal information technology credentials. In 2011 he completed an Executive Masters of Business Administration (MBA). His current salary is approximately $90,000 per annum. 2. The Children [11] The children attend elementary school and at the date of trial were in grades 4 and 2 respectively. Each parent has been actively engaged in the raising of the children. It is also common ground that both children are happy, have a close and loving relationship with each parent, and relate positively to each of them. [12] The son has ongoing intellectual and physical deficits that he developed after suffering a severe fever and temporary loss of muscle control, possibly in reaction to a chicken pox vaccine he was given at the age of 18 months. Since then, he has had difficulty with his fine motor, language and communication skills. His social and emotional development has also been delayed and he is often distractible and impulsive. He has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Communication Disorder Not Otherwise Specified (Communication Disorder). These challenges have made it more difficult for him to learn a second language. [13] In his present school district, the son qualifies for special educational support through an Individual Education Plan (IEP). With this support, he has been able to minimally meet grade level expectations in reading and writing, and his academic performance has improved over time. He is described by his teachers as a happy child with a sense of humour who is well-liked by his classmates. [14] The daughter is an exceptionally bright student. She falls into the intellectually superior range with heightened math skills. She is enthusiastic and inquisitive about her schooling. Socially, she is articulate and outgoing. She is a mature child who is thoughtful and interactive with both parents. She has expressed a desire to spend more time with her father whom she described as an “electronic genius.” [15] Both children are busy with a variety of extra-curricular activities: piano, hockey, figure skating, swimming and, since the parties’ separation, after-school Chinese language lessons. The mother, with the support of the father, enrolled the children in the Chinese lessons. This decision was made only after the parties’ separation because, according to the mother, the son’s special needs did not permit it at an earlier time. While the daughter is doing well in the lessons, the son says they are “tough” and “awful” for him. 3. The Section 211 Report [16] The parties jointly retained Robert Colby who is a registered psychologist. Mr. Colby was asked to conduct an assessment of the parents and the children, and to prepare a report on the children’s needs, their views, and the ability and willingness of each of the parties to satisfy the needs of the children. His report was requested pursuant to s. 211 of the Family Law Act, S.B.C. 2011, c. 25 [ FLA ] (the “s. 211 report”). [17] With respect to the assessment of the parents, Mr. Colby described the mother as a “focused, task-oriented, highly organized and structured individual”, and as having “exceptional planning and motivational skills” . He described the father as anxious and restless at times, but also as self-reliant and optimistic, and as an individual who otherwise does not “raise any issues”. [18] The mother provided Mr. Colby with three expert reports, which addressed the benefits to children in general of becoming bilingual, being exposed to another language and cultural heritage (in this case Chinese), and the enhanced opportunities that the Toronto area offered the children in that regard. The reports were tendered by the mother in support of her position that the Toronto area would be the better community for the children. None of the authors of those opinions had met or interviewed the children, the parents or any other family members. [19] Mr. Colby reviewed the three expert reports but concluded that the children’s needs were sufficiently addressed in their existing community. While noting Toronto’s advantages in terms of greater involvement with the mother’s extended family and their Chinese heritage, he found that if the children remained in British Columbia, being raised by both parents, they would have sufficient exposure to and knowledge of their bi-cultural heritage. He also found that any disadvantages of the children remaining in British Columbia would be secondary to the vast benefits of their being raised by both parents. [20] Mr. Colby canvassed the views of the children on the mother’s proposed move. With respect to the son he reported: Moving away, [the son] says he would be with his uncles, but not with his friends, and he proposes that there be a yearly rotation between the houses. In drawing a picture of a family, [the son] included both his mother and father, but on one occasion, put everybody in separate boxes and drew himself quite small in the picture. [The son] states that he does not want to move because his friends are here, his “stuff” is here, and he does not enjoy learning or speaking Chinese. On the other hand, he would be with his grandparents if he was in Toronto. [The son’s] wish is that his mother and father not fight with each other and if he was going to take a trip, he would want to take a trip with both parents. As to the daughter’s reaction he wrote: [The daughter] stated in the first interview, it would be best to stay in British Columbia where she has school, where she is settled, where she has friends, and if she moves, she would miss her other parent. In particular, [the daughter] said she would miss her father and her friends and her room. She adds that she would gain by having a family. She stated that even at present she sees her father too little and wants to spend more time with him. In drawing her family, [the daughter] included both her mother and her father, and stated that she wishes they would relate better to each other and would marry … and that there should be equal time with the parents. [21] Mr. Colby’s initial 65-page report was comprehensive. The judge summarized it as follows: [34]      In Mr. Colby’s primary report, he recommends that both children remain in proximity to both parents, and that both parents have an active and on-going relationship with them on a scheduled basis. He recommends against prolonged separation of the children from either parent. He recommends equal sharing of parenting time. He recommends that the parents share decision-making responsibilities, such as cultural and linguistic activities. He reports that the children do not favour moving to Toronto, but notes that “this would be expected in terms of their current activities, friendships and security in their current home.” He states that having both parents available to them in a proximate residential community is of greater benefit to them than the proposed relocation to Toronto. He recommends that if the children remain in B.C., they travel twice annually to Toronto with the mother, for Chinese New Year and extended summer vacation. [22] The mother took issue with the apparent underlying assumptions in Mr. Colby’s initial report that she would remain in the Victoria area if her relocation application was refused, and that the father would remain in the Victoria area if her relocation application was granted. She observed that the children also appeared to make the same assumptions when they were asked by Mr. Colby about their views on her proposed move. [23] The nature of these assumptions has been characterized as the “double-bind”, particularly for the parent seeking to relocate with the children. If the relocating parent indicates that he or she would move regardless of the outcome of his or her relocation application, the assessment of that parent might be that he or she is not prepared to put the children’s needs first and, therefore, act in their best interests. On the other hand, if the relocating parent indicates that he or she would remain with the children in their present community if his or her relocation application is refused, that concession could lead to a disposition that simply defaults to the status quo. [24] In particular, the mother argued before the judge that the report failed to consider the four possible scenarios set out in S.S.L. v. J.W.W., 2010 BCCA 55. Those scenarios, in this case, are: (i) the mother relocating to Toronto with the children but without the father; (ii) the mother and the father remaining in Victoria with the children; (iii) the mother and the father relocating to Toronto with the children; and (iv) the mother relocating to Toronto without the children. [25] In response to the mother’s concerns, the judge asked Mr. Colby to prepare a supplemental report that expressly addressed all four possible scenarios. In his supplemental report, Mr. Colby opined that both parents relocating to Toronto would provide an optimal arrangement for the children as it would offer them greater exposure to extended family on both sides and involvement with the larger and more extensive Chinese cultural community in that area, while maximizing each parent’s involvement with the children. On the other hand, Mr. Colby also found that the children’s best interests would be met by both parties continuing to co-parent the children in parental homes that were in close proximity to each other in British Columbia, if not Victoria. This would give the children “sufficient exposure and knowledge … to their multicultural heritage”, and to an education system that would “sufficiently meet their needs”. Any loss of benefits to the children if they remained in British Columbia would, in his opinion, be “secondary to the vast benefits they get from being raised by these competent and caring parents”. [26] Mr. Colby strongly rejected any custodial arrangement that would give one or the other parent sole custody or principal residency of the children, away from a common community. Such an arrangement, in his view, would not be in the best interests of the children. C. The Judgment 1. Custody and Relocation of the Children [27] The judge applied the doctrine of paramountcy in determining the mobility and custody issues under s. 16 of the Divorce Act rather than the FLA. On appeal, no issue was taken with that decision. [28] Based on all of the evidence, the judge found that both children were happy, well-adjusted, and strongly bonded with each parent. The judge also found that both parents were fully engaged in the children’s care, were competent and caring, and were willing to share parenting time equally in a joint custody arrangement. The only issue that appeared to divide them was the mother’s desire to relocate. [29] The judge was alive to the distinction between s. 46(2) of the FLA , which mandates that a court must consider the reasons for the proposed relocation but not whether the parent seeking to move would do so without the children, and the legal principles from Gordon v. Goertz in which the Court limited consideration of “the custodial parent’s reason for moving” to “the exceptional case where it is relevant to that parent’s ability to meet the needs of the child” (para. 49(7)(e)). In that regard, the judge stated: [49]      … A review of the authorities makes it plain that a parent’s reasons for seeking to move are almost invariably considered by trial judges, perhaps because these reasons are generally linked to the best interests of the children, either by the parent seeking to move, or the parent opposing the move: Stav at 86. That is clearly so in this case, where the mother contends that her reasons for seeking to move coincide with her views as to the best interests of the children. The father mainly challenges the weight that should be given to the factors the mother asserts, and urges that the court give greater weight to other factors. It would be pointless and artificial in this case to compartmentalize the mother’s views. If the mother’s views as to her reason for wishing to move is to be considered then of course so should the father’s reasons for not wishing to move. [30] The restriction of when a parent may be asked his or her reason for wanting to move, or parenthetically his or her reason for not wanting to move, led the judge to adopt a cautious approach in his consideration of both parties’ evidence on this issue: [52]      Both parties, no doubt being mindful of the case law and uncertain about the potential application of s. 46(2) (b) of the FLA , treated the question of what either parent would do as being either improper or irrelevant. As a result the father gave no direct evidence of what he would do if the children were permitted to move to Toronto. On the other hand the mother volunteered on cross-examination that, at this point, she would be unlikely to move to Toronto without the children. In her closing submissions, counsel for the mother suggested I disregard this evidence, and in the circumstances of this case, I agree. As I have said, neither party sought to raise this question at the trial. It would be unfair to rely on the mother’s evidence, if it is taken as evidence of the strength of her commitment to the children, without hearing from the father on the converse question. The mother volunteered that evidence and, again in deference to the authorities and the legislation, there was no further cross-examination on the evidence. In any case I accept that such evidence must be treated with great caution. The testimony may be strategic. Reliance on it may risk improperly favouring the status quo. In many cases I doubt that either parent could be very sure as to what they would actually do, so the evidence may be unreliable. [31] In the result, the judge based his decision on the children’s custody and residency “upon the circumstances as they exist today, not upon what the parties say they would do” (para. 53) because he concluded that it was unlikely either parent could be sure about what he or she would do in response to his decision. The judge also observed that “[i]f, in future, a court is persuaded that the preconditions for variation of the order are met, as set out in Gordon, then of course the court would be required to consider the matter afresh, again in accordance with the factors in Gordon ” (para. 53). [32] Applying the test from Gordon v. Goertz, the judge grouped the relevant considerations into nine categories, the first eight of which included the listed factors at para. 49(7) of Gordon v. Goertz : (i) existing arrangements and relationship between children and parents; (ii) desirability of maximizing contact with both parents; (iii) views of the children; (iv) disruption to the children due to a change in custody; (v) disruption to the children due to removal from family, schools and community; (vi) Chinese culture and language; (vii) proximity to extended family; (viii) careers and financial concerns; and (ix) other factors. [33] In regard to each of these categories, the judge found: 1)       The parties’ existing arrangement of joint custody and shared parenting of the children should continue; 2)       Generous access will continue if the parents reside in the same community but will be sacrificed if the mother and children relocate and the father chooses not to; 3)       The children were reluctant to change their existing arrangements but this was based on their wish not to be separated from either parent; 4)       Joint custody in either location would not involve a significant change of custody, while sole custody and primary residency to either parent would be a substantial change and detrimental to the children; 5)       While both children would lose friendships and have to make new ones, it would be more difficult for the son to do so, which could detrimentally affect him to a larger degree than most children his age; 6)       The enhanced exposure to Chinese culture in Toronto as compared with Victoria will not significantly or materially benefit the children, as “[t]here are objective benefits to children of bilingualism and cultural identity as referred to in the expert reports, but the relative importance of such matters to parents is subjective and variable” (para. 88); 7)       The proximity of both sets of relatives in the Toronto area would benefit the children. However the children are not completely removed from a relationship with their extended family as they visit the Toronto area for extended periods on a regular basis and their maternal grandmother visits them regularly in Victoria; 8)       The mother has an ability to pursue her career in either community, while the father, if he moved to Toronto, would give up a very good career in Victoria and face a risk of permanent damage to his employment prospects; and 9)       Each parent will be unhappy if the other parent relocates or remains with the children in their present community, without the other. [34] Items six through eight above relate to the reasons volunteered by the mother on cross-examination for her proposed relocation. The mother placed considerable weight on the increased exposure the children would have to the Chinese culture and language in the Toronto area, relying on the three expert reports she had commissioned. It was her position that those benefits would allow the children to learn and understand that aspect of their heritage and should be the determinative factor in deciding that relocation of the children to the Toronto area would be in their best interests. She also noted that both sets of relatives resided in that community, and that her prospects of buying a veterinarian practice for continued part-time work was better in that community than in the Victoria area. [35] The judge found that the mother’s expressed interest in ensuring the children’s knowledge of their Chinese heritage was “largely a recent phenomenon” (para. 84), as evident by the post-separation timing of the children’s Chinese lessons. He stated that “[i]n general the evidence is that Chinese language and culture has not been a major part of [the children’s] lives, except to some extent on their twice yearly trips to Toronto, and very recently with their enrollment in the Chinese school in Victoria” (para. 87). He also found that the mother’s expressed reason for wanting to relocate contained more of a “strategic component” in order to provide “a credible rationale” for the proposed move and thereby augment her submission that increased exposure to the Chinese culture and language, and to members of her extended family, would offer the most benefit to the children (para. 89). He further noted that the mother’s claim that the father “always knew” that she would want to return to Toronto after the children were born, was never put to the father on cross-examination; he thus accepted the father’s evidence that the parties never had a “serious discussion” about such a move (para. 85). He also found that the mother knew, when the parties were married in 2002, that the father was “firmly entrenched” in Victoria and that the mother was content, until recently, to accept that distance from her family (para. 86). Lastly, the judge found no evidence beyond the mother’s “speculative assertion” that ownership of a veterinary clinic in the Toronto area, as opposed to the Victoria area, would be more financially advantageous for her, as her career prospects and earning capacity were good in either locale (paras. 115 and 116). [36] The father was not asked specifically about his reasons for not wanting to move to the Toronto area. However, in answer to certain questions he said that he enjoyed his work, had a rewarding career with a supportive employer who offered him job flexibility, and received a good salary and benefits. He did not believe the same employment opportunities would be available to him in the Toronto area. A decrease in income, he said, would negatively affect what he could provide for the children. He also indicated that he has roots in the Victoria area, enjoys its lifestyle, and does not believe he could duplicate that lifestyle in the Toronto area. This understanding was based on his familiarity with the Toronto area and the experience of friends who live there and commute many hours a week between home and work. [37] The judge accepted the father’s evidence and found that if the father were to move to the Toronto area, he would give up a very good career and likely experience a negative impact on his employment prospects: [110]    I infer that the father’s chances of replicating in Toronto the very favourable employment and career prospects and circumstances he enjoys in Victoria are questionable. His career has been tied to one employer. Although he has done some independent IT consulting in the past he has not continued with that business, leading me to infer that in his view it was not his best career option. He is not an independent professional. In a worst case scenario a move to Toronto could be a career disaster for him. Of course there is also a chance that his career would flourish in Ontario. But in summary, a move to Toronto would result in a significant threat to his career prospects. [38] The judge also made findings with respect to the credibility and reliability of each party’s evidence. In particular, he found “the father to be a credible and reliable witness” (para. 26) but the mother not to be a credible witness “generally” (para. 94), rejecting “the sincerity of [her] contentions” for why she wanted to move to Toronto (para. 90). His reasons for finding the mother’s credibility to be lacking were based, in part, on her: (i) admission at trial that she had lied at her examination for discovery about a document relevant to the parties’ financial issues and that she had fabricated the document after the commencement of the divorce action (para. 91); (ii) argumentativeness in cross-examination (para. 94); and (iii) overstatement of the cultural and language issues because of a strong desire to return to her family and childhood home (para. 123). In regard to this last factor, the judge found that the mother’s “goal-oriented” evidence forced him “to doubt the sincerity and depth of her concerns about the importance of Chinese language, culture and identity for the children’s best interests as compared with her own personal wishes” (para. 93). [39] The judge carefully reviewed all of the relevant factors and found that the mother’s reasons for wanting to relocate were not determinative of what was in the best interests of the children: [54]      In custody decisions involving bi-racial and bi-cultural children, matters of racial identity, heritage and culture can be relevant factors which may be considered in the context of the over-arching question of the children’s best interests. However such factors are not determinative. Their significance is highly variable and must be weighed by the court with the evidence and in the context of all relevant factors, on a case by case basis: Van de Perre, 2001 SCC 60 at paras. 36-43. [40] In the result, the judge concluded: [122]    In the circumstances of this case, on all of the evidence, and having particular regard for the views of Mr. Colby, in my view the benefits to the children of continuing to have maximum contact with both parents through continuation of the shared parenting arrangements outweigh the relative strengths of either Victoria or Toronto as a location in which to live. Therefore, in practical terms, the options that merit the most serious consideration are either joint custody and parenting in Victoria, or joint custody and parenting in Toronto. It is clear that the other scenarios would be detrimental to the children, and contrary to their views. [123]    In my view it is in the children’s best interest that they reside in Victoria. The benefits of Victoria outweigh the benefits of Toronto. The potential benefits in terms of greater exposure to the children’s Chinese language and heritage, even when buttressed with the factor of greater proximity to family in Toronto, are modest and debatable. In my view the mother has likely overstated the importance of these factors and their possible benefits for the simple fact that she has a strong personal desire to relocate. The children are not culturally deprived while residing in Victoria, given the resources available to them here, the mother’s involvement, and the regular visits to visit family and participate in cultural events in Toronto. The factors relating to disruption favour Victoria. The benefits to the children from their parents’ career and financial prospects favour Victoria. [Emphasis added.] 2. Imputing the Mother’s Income [41] Given the ages of the children and their full-time enrollment at school, the judge found that the mother, by choosing to work part-time only, was intentionally under-employed within the meaning of s. 19(1)(a) of the Guidelines (para. 135). In that regard, he fixed the mother’s 2013 Guidelines income at $62,500 based on her part-time employment but imputed a “modest gross-up” in her 2014 Guidelines income to $90,000 based on her capacity to increase her hours of work, even working as a locum on a contract basis (para. 135). Based on his findings of the parties’ respective Guidelines income, he ordered: (i) the table amounts of child support to be paid by each party to be subject to a simple set-off in accordance with s. 9(a) of the Guidelines ; and (ii) the parties’ respective contributions to the children’s s. 7 expenses to be shared proportionately. 3. Costs [42] The judge awarded the father ordinary costs pursuant to R. 16-1(17) of the Supreme Court Family Rules as he was the substantially successful party in the action. He rejected the mother’s submission that each party should bear their own costs simply because the central issue at trial was the determination of what custodial arrangement was in the best interests of the children. The judge also dismissed the father’s application for special costs, finding that the mother’s fabrication and dishonest testimony regarding the document, while very serious and reprehensible, did not actually mislead the court. He noted the need for courts to exercise restraint in awarding special costs, which should be limited to exceptional circumstances. Relying on the test in Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.), he concluded that the mother’s reprehensible conduct was not deserving of reproof in the form of an award of special costs, when viewed in the context of her overall conduct, which he found was “generally not objectionable” (paras. 143-145). D. Discussion 1 . Custody/Mobility (a)      The Legal Framework [43] The scope of appellate review in family law matters is limited. Decisions relating to custody are entitled to deference. In R.E.Q. v. G.J.K., 2012 BCCA 146, Madam Justice Newbury, writing for the Court, provided a helpful summary of the deferential standard of review: [33]      …The Supreme Court of Canada has said that the standard of review is a high one, i.e., that in family cases as elsewhere, an appellate court may not interfere with the exercise of discretion of a trial judge in the absence of a material error (including a “significant misapprehension of the evidence”, the trial judge’s having “gone wrong in principle or [his] award [being] … clearly wrong”): see Moge v. Moge , [1992] 3 S.C.R. 518 at para. 12 and Van De Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at paras. 14-5. In the latter case the Court wrote: Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balance evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. [At para. 13] Thus the authorities make it clear that it is not for an appellate court to re-weigh the evidence or to interfere on the basis that the appellant court would give more weight than the trial judge did to one factor or another - or, in the words of the Court in Hickey, that it would have “balanced the factors differently.” [44] Under the Divorce Act, the leading authority on the issue of a parent’s mobility is Gordon v. Goertz. In that case, the mother who had “permanent custody” of the child, with the father having “generous access”, applied to relocate with the child to Australia. As such a change would materially affect the father’s access rights, the mother applied to vary the father’s access to the child. That application triggered the father’s cross-application for custody of the child. [45] The Court granted the mother’s application and varied the father’s access. In the course of its reasons, the Court set out a two-stage test for the variation of a custody/access order under the Divorce Act. At the first stage, the parent applying to vary the existing order must demonstrate a material change in the circumstances affecting the child (para. 49(1)). If this threshold requirement is met, the court must then engage in a “fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them” (para. 49(2)). The fresh inquiry “is based on the findings of the judge who made the previous order and evidence of the new circumstances” (para. 49(3)). There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled “to great respect” (para. 49(4)). Each case turns on its own unique circumstances, with the best interests of the child as the only issue in the particular circumstances of the case (para. 49(5)), not the interests and rights of the parents (para. 49(6)). [46] The Court then listed a number of factors to consider in determining whether the proposed relocation would be in the best interests of the children. These factors relate to the “relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them” (para. 49(2)). They include: [49]… 7. More particularly the judge should consider, inter alia : (a)        the existing custody arrangement and relationship between the child and the custodial parent ; (b)        the existing access arrangement and the relationship between the child and the access parent ; (c)        the desirability of maximizing contact between the child and both parents; (d)        the views of the child; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (f)         disruption to the child of a change in custody ; (g)        disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [Emphasis added.] The Court concluded: [50]      In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all of the circumstances, old as well as new? [Emphasis added.] (b)      An Initial Application [47] The test in Gordon v. Goertz has been adopted in a modified manner to mobility issues that arise in the context of an initial application for custody and principal residency under the Divorce Act . See Nunweiler v. Nunweiler, 2000 BCCA 300, Falvai v. Falvai, 2008 BCCA 503, S.S.L. , and Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230. The first stage of the test which requires a material change of circumstances is, of course, redundant in an initial application. The focus therefore immediately turns to the factors listed in para. 49(7). Those factors must be modified to the extent that there is no pre-existing order that has established a “custodial parent” and an “access parent”. With these “adjustments”, the child-centered test from Gordon v. Goertz continues to govern an initial application for custody and residency under the Divorce Act that involves a mobility issue . In Nunweiler, Madam Justice Saunders explained: [28]      The significance of the reasoning in Gordon v. Goertz in an initial determination of custody is, I consider, three-fold. First, the decision directs the court to consider the motive for a parent’s relocation only in the context of assessing the parent’s ability to meet the needs of the child. This, in my view, is as relevant a direction on an initial custody hearing as on a variation hearing. Second, the decision confirms the significance of the instruction, found in s. 16(10), to consider the willingness of a parent to facilitate contact, but notes that this consideration is subordinate to over-all consideration of the best interests of the child. Third, and more broadly, it approaches the issue of relocation of residence from a perspective of respect for a parent’s decision to live and work where he or she chooses, barring an improper motive. [Emphasis added.] [48] Similarly in Falvai , the Court discussed the modification of the test from Gordon v. Goertz for initial custody applications involving a mobility issue by adopting a “blended” analysis that includes a consideration of the mobility issue as part of, not separate from, the determination of the custody issue. In Falvai the trial judge was found to be in error in first deciding the custody issue in favour of the mother, and thereafter determining the mobility issue by refusing her request to relocate with the child: [25]      This analysis [in para. 28 of Nunweiler ] does not create a “two-step” analysis as was undertaken by the trial judge. Nor does it change the conventional approach to determining custody on an initial application, which requires a balancing of all relevant factors, including a parent’s proposed move with the child to a new community, in deciding what is in the child’s best interests. Rather, in the context of an initial application, Nunweiler applied a “blended” analysis considering some of the factors identified in Gordon. [Emphasis added.] [49] A further issue that arises in mobility cases is the nature of the questions that can be asked to determine what is in the best interests of the children. (c)      The Reasons for the Proposed Relocation [50] Paragraph 49(7)(e) of Gordon v. Goertz restricting consideration of “the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child” [emphasis added] has proven to be challenging in its application. [51] In a variation application, there has been a pre-existing determination that one parent is best suited to satisfy the needs of the children (i.e., the custodial parent). In that circumstance, it is understandable that the “fresh inquiry” into the children’s best interests must be “based on the findings of the judge who made the previous order and evidence of the new circumstances” ( Gordon v. Goertz at para. 49(3)). It follows that while there is no legal presumption in favour of the views of the custodial parent, his or her decision to live and work where he or she chooses is entitled to respect, barring an improper motive for the move or any other evidence that may reflect adversely on his or her parenting ability, because that custodial parent has previously been found to be the parent who is best able to provide for the children’s needs. [52] However, in the context of an initial custody and relocation application there has been no previous determination that one or the other parent is best able to meet the needs of the children. Accordingly, the modification of the test in Gordon v. Goertz , in my view, needs to include a modification of para. 49(7)(e). In an initial application, it seems to me that the reasons for a parent’s proposed move are relevant to the issue of whether the proposed move will meet the needs of the children or affect (positively or negatively) on that parent’s ability to meet the children’s needs. As the children’s best interests is the “only issue” in the blended analysis, all relevant circumstances that relate to the children’s needs and each parent’s ability to satisfy those needs must be considered. [53] Similarly, where there is a pre-existing order for joint custody and/or shared residency or, as in this case, a pre-existing de facto joint custody and/or shared residency arrangement that is found, on an initial application, to be in the best interests of the children, the application of para. 49(7)(e) must also, in my view, be modified. In these scenarios, it has previously been determined or established that the best interests of the children are met by both parents acting as “joint custodial parents” and meeting the needs of the children together. It follows therefore that the reasons for one of the joint custodial parents wanting to move, effectively ending the joint custodial arrangement that had been found or agreed to have been in the best interests of the children, would be very relevant to determining whether the children’s needs can be met by only one of the parents. [54] In summary, there may be many legitimate and worthy personal reasons for a parent wanting to relocate or a parent wanting to remain in the children’s existing community, that are entitled to be respected. However, those reasons may also be relevant to the question of whether the proposed move meets the children’s needs and/or the parent’s ability to provide for those needs and therefore may be a necessary consideration with the other relevant evidence to determining the custodial arrangement that is in the best interests of the children. [55] In Stav v. Stav, 2012 BCCA 154, Madam Justice Prowse also recognized how reasons for a proposed relocation might factor into the best interests of the child analysis: [86]      A review of the mobility authorities in this and other jurisdictions makes it plain that a parent’s reasons for seeking to move are almost invariably considered by trial judges. Perhaps this is so because these reasons are generally linked to the best interests of the children, either by the parent seeking to move, or by the parent opposing the move. [87]      It appears that the majority in Gordon v. Goertz was concerned that examining the question of a parent’s motive or reason for moving could result in the focus of the inquiry being redirected from the best interests of the child to whether or not the move was necessary. Allowing an investigation into the reasons for the move was also viewed as opening the door to unjustifiably restricting the mobility rights of custodial parents, who are most often women. In other words, allowing the reasons for the move to factor into the equation, had the potential for turning a mobility issue concerning the best interests of the children into a gender issue. [56] In Stav, during the six years following the separation of the parties, they continued to co-parent their children under the same roof in a de facto joint custody/shared residency arrangement. Eventually the mother decided that she wanted to return to Israel where her family lived and she, thus, commenced proceedings under the Divorce Act. The trial judge awarded the parties joint custody and joint guardianship of the children of the marriage, and permitted the mother to move with the children from Vancouver to Israel. The Court allowed the appeal and awarded the father primary residence of the children in Vancouver finding, in part, that the judge had erred in effectively treating the mother, who was found to be an able and competent parent, as the custodial parent rather than a joint custodial parent, and in finding that her application to relocate to Israel where her parents resided in order to primarily meet her needs was equivalent to providing for the best interests of the children. In the circumstances of Stav, Prowse J.A. was satisfied that evidence of the reasons for a parent’s proposed move was admissible and served a legitimate purpose if it was relevant to the best interests of the children: [88]      … [O]ften the parent seeking to relocate will submit that doing so will enable him or her to obtain financial and/or family support that is unavailable in his or her present situation, and which will both directly and indirectly benefit the children. The other parent will argue that whatever benefit there is to the relocating parent in those situations is more than offset by the detriment to the children of being removed from their community and, more importantly, from regular contact with the other parent. In my view, these are legitimate considerations which may assist a judge in determining to what extent the move will operate in the children’s best interests. It is simply one more factor to weigh in the balance. The trial judge considered these factors in this case and, in my view, she was right to do so. [89]      The question should not be whether the evidence of the reason for a proposed move is admissible, but how it relates to the children’s best interests, if at all. Ulterior reasons for moving which are a thinly disguised attempt to thwart contact with the other parent are clearly relevant to whether a parent is acting in the children’s best interests. Similarly, reasons for moving which benefit the person seeking to relocate can also be for the benefit of the children, but have to be weighed together with the other evidence to determine whether the move is in the children’s best interests. [90]      The fact that a move is in the best interests of the parent seeking to relocate does not necessarily mean that it will be in the children’s best interests. It is more likely to be so if the person seeking to move is the custodial parent with a healthy relationship with the children, than if the person seeking to move is an access parent who has limited contact or involvement with the children. These are but two scenarios along a broad spectrum. [57] This reasoning, in my respectful view, is consistent with Gordon v. Goertz and the jurisprudence on the modification that must be made in the application of Gordon v. Goertz to initial applications for custody and residency. An inquiry into the custodial arrangement that is in the best interests of the children must consider “all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them” (para. 49(2)). While the reasons for a parent’s proposed move, absent an improper motive, must be treated with respect, they will likely be relevant to determining what custodial arrangement is in the best interests of the children. (d)      The Double-Bind Issue [58] A second concern that has arisen in mobility cases is the potential for creating a factual presumption in favour of the status quo . This presumption may arise if the relocating parent is asked whether he or she would move without the children, or if he or she would stay with the children in their existing locale, if his or her relocation application is refused. This is the classic double-bind: if a parent responds that he or she would move with or without the children, that could negatively affect the assessment of that person’s parenting abilities. On the other hand, if the parent responds that he or she would remain with the children in their present community, that could positively impact the assessment of his or her parenting abilities and, ultimately, the custodial order made. The difficulty with this evidence is that it has the potential to result in the status quo as a presumptive disposition. [59] In S.S.L., Madam Justice Huddart recognized the need for a court to consider all options for the children, without the stricture of any double-bind. She expressed concern about the potential for presumptions to detract from or even avoid the individualized child-centered inquiry into the best interests of each child mandated by Gordon v. Goertz. Her comments in S.S.L. echoed her earlier words in Robinson v. Filyk (1996), 28 B.C.L.R. (3d) 21, where she stated: [30]      When the decision of a trial judge who had conducted an individual enquiry into the best interests of a child falls to be reviewed by an appellate court, that review will inevitably focus on the process and presumptions brought to the task. If the reasons reveal a mindset with a pre-ordained default position, then the decision must be reviewed as if that mindset were not there. The trial judge who brings presumptions to the enquiry is not considering the best interests of the particular child in the particular circumstances and will have erred. [60] The circumstances in S.S.L. involved an initial application for custody under s. 16(1) of the Divorce Act by a parent seeking to vary a consensual shared parenting arrangement of school-aged children in order to relocate with the children for personal and employment reasons. A key issue on appeal was “the appropriate weight to give to parents’ testimony about their intentions if their preferred parenting arrangement is rejected” (para. 1). Writing for the Court, Huddart J.A. stated: [12]      In my view, the trial judge fell into what is an easy error in difficult parental mobility cases, to prefer what is seen as the status quo, if in response to the other parent’s proposed parenting plans, the parent seeking to move offers what some judges have called the “third option” of not moving, if moving means leaving the children behind. The status quo is allowed to supersede the balancing of other relevant factors. That is not the correct approach: see Chera v. Chera, 2008 BCCA 374 at para. 60, Spencer v. Spencer, 2005 ABCA 262 at paras. 15-19. This error led him to make inconsistent orders, which is the error this Court found the trial judge to have made in Nunweiler v. Nunweiler, 2000 BCCA 300 at para. 30, and comparable to that made in Falvai v. Falvai, 2008 BCCA 503. [13] Opting to maintain what is perceived as the status quo, without more, avoids the difficult decision of having to prefer one parent’s plan to the other’s, without acknowledgment that the status quo is ephemeral in any family. [Emphasis added.] [61] In Hejzlar, Saunders J.A. also cautioned about relying on the status quo as a default or presumptive disposition: [26]      … [T]he authorities generally do not favour the status quo as a ‘default position’. In Nunweiler this court observed that such an approach “reinserts into custody discussions a presumption which is contrary to the instructions in Gordon v. Goertz to assess each case individually” and is “contrary to the observations of this court in Robinson v. Filyk (1996), 84 B.C.A.C. 290 that presumptions are inappropriate in custody cases and detract from the individual justice to which every child is entitled …”. [62] Saunders J.A. further explained why a parent’s response to the double-bind question should not be relied on for a default or presumptive disposition: [27]      …[T]his court, and other courts in Canada, have discouraged reliance by a judge on any expression by the parent who is seeking to move, that he or she will not move if the child cannot accompany him or her. S.S.L. was a case in which weight was given by the trial court to the mother’s evidence she would not move without the child. On appeal, this court referred with favour to Spencer v. Spencer, 2005 ABCA 262, and Bourgeois v. Plante, 2009 PECA 12, leave ref’d [2009] S.C.C.A. No. 357. [63] In order to avoid a presumptive disposition caused by a double-bind question, Huddart J.A. in S.S.L. offered the following approach: [24]      In my view, the court’s task in these joint parenting cases is to analyze the evidence in four possible scenarios, in this case, (i) primary residence with mother (London, Ontario); (ii) primary residence with father (Victoria, B.C.); (iii) shared parenting in Victoria; and (iv) shared parenting in London, but to do so knowing the court’s first task will be to determine which parent is to have primary residence. When the question of primary residence is evenly balanced and the court finds the best interests of the children require both parents to be in the same locale, then the court will need to choose between the shared parenting options offered by the parents, without presuming the current care-giving and residential arrangement is to be the preferred one. [Emphasis added.] [64] In Stav, however, Madam Justice Prowse was of the view that the double-bind question may be relevant to determining which of the two joint custody/shared residency scenarios was the most feasible. As previously noted, in that case the mother wanted to relocate to Israel and the father wanted to remain in Vancouver. When asked, the father indicated that he would reluctantly follow the children to Israel in order to maintain his relationship with them. One of the issues on appeal was whether the trial judge had erred in relying on the presumption that the father would follow the mother and children to Israel in order to preserve the joint/shared custody arrangement which had been found to be in the children’s best interests. With respect to that issue, Prowse J.A. distinguished between the effect of the double-bind for a custodial parent (as in Hejzlar ) from that for a joint custodial parent (as in Stav ) observing: [63]      This passage [ Hejzlar at para. 27] addresses the double bind facing the custodial parent seeking to move with the children. But an analogous “double bind” arises in relation to a joint custodial parent who is seeking to stay in the location where the family has been living. If this parent relies on the maximum contact principle, but takes the position that he/she would not move if the other parent were permitted to relocate, he/she will be seen as taking a position contrary to the best interests of the children. If, on the other hand, this parent says that he/she would be willing to relocate in order to maintain maximum contact, then the trial judge may rely on that willingness to avoid the difficult decision of what to do if both parents are convinced that their first choice is in the best interests of the children. While the trial judge did not overtly fall into this trap, I conclude that she allowed her underlying assumption that Mr. Stav would follow the children to discount Mr. Stav’s option of shared parenting in Vancouver. [Emphasis added.] [65] Prowse J.A. also addressed the “conundrum” that develops if any assumption is made about how a parent might respond to the granting or refusal of a relocation application, including that of the non-relocating parent: [64]      I should observe, however, that I perceive a problem with the stricture against courts expressly taking into account evidence of what one or the other parent would do depending on the decision made by the trial judge in relation to mobility. It is arguable that avoidance of questions giving rise to the double-bind is directed more to the interests of the parents than it is to the interests of the children. It may be unfair to place either or both of the parents in the double-bind, but is it unfair to the children? Is it contrary to their best interests? Arguably, the answer is that it is only by asking the question of both parents and assessing their answers, that the court can make a determination in the children’s best interests, cognizant of all of the options. [65]      This reasoning appears to underlie the discussion of options in S.S.L., where this Court said that one of the options open to the Court was to make an order for relocation which would require the parent seeking to maintain the status quo to make the difficult decision whether to follow the children to the new location, assuming that the evidence made that a viable option. If that is the case, the trial judge’s acknowledgment of Mr. Stav’s apparent willingness to relocate, if necessary to maintain maximum contact with the children, was consistent with the children’s best interests. However, if she was going to consider Mr. Stav’s willingness to leave Vancouver, she should equally have considered Ms. Stav’s willingness to stay in Vancouver. This, of course, brings the court back to the double-bind. [66] From these decisions, it would seem that the risk of the double-bind issue resulting in a presumptive disposition may be greater where the evidence indicates a joint custody and/or shared residency arrangement that requires both parents to reside in the same locale to be in the best interests of the children. Where the evidence, as in this case, strongly supports a continuation of the pre-existing joint custody and/or shared residency arrangement as the only custodial arrangement in the best interests of the children, the double-bind questions, as a matter of practical reality, are relevant considerations to determining which of only two potential dispositions are open to the judge: shared parenting in the current locale or shared parenting in the proposed new locale. In these circumstances, I am of the view that asking both the relocating parent and the non-relocating parent whether they would move or stay if the relocation application was granted or refused to be relevant factors, provided that evidence is carefully weighed together with all of the other relevant circumstances in determining which of the two potential dispositions could, practically, be made in the best interests of the children. [67] The above approach is not, in my view, inconsistent with the principle in Gordon v. Goertz which instructs us that “[t]he child’s best interest must be found within the practical context of the reality of the parents’ lives and circumstances, one aspect of which may involve relocation” (para. 46). Prowse J.A. recognized this practical reality in Stav when she observed that in order to safeguard the best interests of each child, the parents may have to answer the question of whether they would move or stay based on the potential dispositions of the relocation application (para. 64). [68] I turn now to the judge’s foray into this jurisprudential minefield. (e)      Did the trial judge err by failing to apply the best interests of the child test as the sole determinant of the mobility issue? [69] I begin with the premise that the mother’s desire to return to live and work in the Toronto area, where she was raised and a significant number of her extended family continue to reside, is to be respected barring any improper motive. However, she may only relocate with the children if such a move is found to be in their best interests. Similarly, the father’s desire to continue living and working in the Victoria area is also to be respected barring any improper motive. However, the children may only remain in that community if it is found to be in their best interests. In short, each parent’s reasons for wanting to live and work in a certain community are entitled to respect. However, when those reasons impact on the needs of the children and/or the parents’ ability to meet those needs, they will take second place to the only consideration, which is the best interests of the children. [70] Given the best interests of the children is the sole issue in an application to relocate with children of a marriage, a parent’s desire to move with the children is typically framed as being in their best interests. In this case, the mother submitted the best interests of the children required a move to the Toronto area because of the enhanced opportunities for them to learn about their Chinese heritage. In addition, she submitted the children would have the opportunity of more frequently visiting with their extended maternal and paternal families who lived there. [71] The mother contends the judge erred in his findings of fact as enumerated in para. 33 above by ignoring the experts’ reports and their opinions that the Toronto area provided more resources for the children to learn about the Chinese culture and language. She argues that the judge gave too much weight to the father’s evidence of the negative financial impact that a move to Toronto would have on him and, in particular, the difficulty he would experience in replacing his present employment, when he had made no attempt to look for replacement employment in Toronto. She submits the judge also overlooked her willingness to facilitate maximum reasonable contact between the father and the children by forgoing child support and financially committing to the children visiting the father once a month. [72] I am not persuaded the judge erred in his findings set out in para. 33 as alleged. There was, in my view, an evidentiary basis to support each of those findings. In her submissions on appeal, the mother focused largely on the failure of the judge to give more weight to the benefits of exposing the children to the Chinese culture and language in the Toronto area. However, the judge considered those benefits but accepted Mr. Colby’s opinion that emersion in the Chinese community of Toronto would likely not enhance the son’s cultural and language skills in light of his ADHD and Communication Disorder and that the mother’s stated reason for the proposed move was not critical to the son’s well-being. The judge also questioned whether the mother’s stated reason for the move was the true reason for the proposed relocation given that the children were only enrolled in Chinese after-school classes following the parties’ separation. In other words, the children learning about their Chinese language had not been an apparent priority before the parties’ separation. [73] The judge’s negative findings of the mother’s credibility and the reliability of her evidence also carried weight in his assessment of this factor. In the end, the judge concluded that the children’s exposure to Chinese culture and language could be sufficiently met by the resources available in the Victoria area. He found that it was not a determinative factor in his analysis. This finding was consistent with the Supreme Court of Canada’s comments in Van de Perre v. Edwards, 2001 SCC 60 at paras. 38-39, that a child’s mixed racial heritage is just one factor to be considered in the complex weighing of a multitude of factors that are relevant to determining the best interests of a child. [74] The judge accepted and agreed with Mr. Colby’s analysis and, in the end, relied on Mr. Colby’s finding that it was in the best interests of the children to remain with both parents, in a joint custody/shared residency arrangement, in either the Toronto or the Victoria area. The issue then became: in which of the two communities could that shared parenting arrangement be implemented in a way that met the best interests of the children. [75] In deciding this issue the judge considered the relevant factors listed in para. 49(7) of Gordon v. Goertz, and ultimately determined that the continuation of the stable home environment the children had enjoyed up to this point in their lives and the benefits of the lifestyle that Victoria provided them, was in their best interests. He noted that the mother chose to live in the Victoria area before her marriage to the father, and that Victoria was the community in which the children were born and had lived their entire lives (over 10 years). It was also the community in which the children had forged a close and loving relationship with both parents, had developed close friendships, and had experienced positive achievements and success at school. He also gave weight to the disruption the son would likely experience by the move. He found that the children’s financial security and prosperity were tied to that of their parents and that their financial interests would be best served in Victoria, as the father’s employment position could not likely be duplicated in Toronto while the mother had good career prospects in either location. [76] The mother further submits the judge erred in law by relying on an underlying double-bind presumption that the status quo of shared custody and equal residency in the Victoria area should prevail given that the mother said she would not relocate to Toronto without the children and the father refused to move to the Toronto area. With respect, I cannot agree. The judge expressly stated that he did not rely on that evidence, volunteered by the mother, given the cautionary approach adopted in the jurisprudence on the double-bind issue. Indeed, the judge was very much alive to the potential for such evidence to presumptively favour the status quo and expressly disregarded it at para. 52 of his reasons (reproduced in para. 30 above). However, the judge also recognized that, in light of Mr. Colby’s opinion that joint custody and shared equal residency was the only optimal arrangement in the best interests of the children, the practical reality was that the status quo , as one of only two potential scenarios, provided the best parenting option to meet the best interests of the children. [77] In the process of reaching that determination, the judge carefully weighed all of the evidence with respect to each of the relevant para. 49(7) factors, the needs of the children (including the evidence of the available opportunities in each of the two proposed communities to enhance the children’s understanding of their bi-cultural heritage), and the parenting abilities of each party. He considered the assessment and opinion of the jointly retained psychologist, and ultimately concluded that the best interests of these children would be met by their continuing to live in the community where: (i) the children had roots and bonds of friendship and family; (ii) the father lived and had good employment with increased prospects and flexibility for the children; (iii) the mother had good employment opportunities; and (iv) the children were doing well and could receive satisfactory instruction on Chinese culture and language. [78] This process of weighing the evidence for and against the relevant factors and circumstances is the unique task of a trial judge. That process may include findings with respect to the credibility and reliability of each party’s evidence, as were made in this case. Absent palpable and overriding error, of which none has been demonstrated by the mother, it is not for this Court to substitute its view of the evidence for that of the trial judge’s. [79] In my view the judge correctly applied the best interests of the child test and did not rely on a presumptive disposition based on the mother’s reasons for wanting to relocate with the children (which he rejected) or her concession that she would not move if her relocation application was refused. 2. Imputing Income [80] Section 19(1)(a) of the Guidelines provides: 19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed other than where the under-employment or unemployment is required by the needs of the child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [81] The overarching principle for imputing income under s. 19(1)(a) of the Guidelines is that of reasonableness, having regard to the needs of the child and the earning capacity of the payor. The undisputed evidence is that the mother has the earning capacity that was imputed to her by the judge. She contends, however, that the judge erred in failing to find that she fell within the exception to the general rule for imputing income because the son has special needs that require her to work at a level less than her earning capacity. This was a factual determination by the judge based on an exercise of his discretion. It therefore must be accorded deference absent a material error in the appreciation of the facts or an error in principle resulting in a clearly wrong order. I am unable to find such an error. [82] First, the imputed level of income at $90,000 is something considerably less than the mother’s earning capacity at full-time employment. In 2011, the mother earned commission income of $124,802 over an 11-month period while working at a level that was less than full-time, albeit close to that level. Thereafter, she refused offers to return to that form of employment and instead chose to work as a locum on a contract basis. In this manner she was able to control the amount of time she would devote to working outside the home. Based on her ability to control her hours of work by choosing locums over a salaried or commissioned position, she expects to earn between $60,000 and $65,000 annually. The judge’s finding that she has the capacity to increase her annual income to $90,000, I agree, is “a modest increase” and remains at a level of part-time employment that the mother could easily achieve by simply increasing her number of locums, without having to assume full-time employment. [83] More significantly, however, is the lack of evidence that the son’s special needs require her to work part-time only. While undoubtedly the demands upon the mother’s time to meet the child’s needs were greater when he was younger, those needs have changed over time. He is now in an IEP program and the evidence suggests that his performance at school has correspondingly improved. Furthermore, the order for shared custody and equal residency will require the father to be responsible for the child’s appointments and activities when the child is residing with him, thereby freeing up the mother’s availability for work. Those extracurricular activities the parents choose to enroll their children in will be shared between the parents during the times the children are residing in each of their respective homes. [84] In my view, the mother has failed to demonstrate any misapprehension of evidence or material error of fact by the judge that would permit this Court to interfere with this discretionary order. 3. Costs [85] The judge found the father was the substantially successful party in the action and awarded him ordinary costs. The mother submits he erred in awarding the father costs in the circumstances of this case where the central issue was the custodial arrangement and residency of the children. In such circumstances, she submits, the judge should have ordered each party to bear their own costs. [86] Costs are a discretionary award. In matters of custody and access, the usual rule that “costs follow the event” applies subject to the discretion not to award costs in certain circumstances. Those circumstances do not include the nature of the issues in dispute. See Falvai at para. 11 , S.J.C. v. S.-J.A., 2010 BCCA 31 at para. 62, and Reis v. Bucholtz, 2010 BCCA 115 at paras. 83-86. Accordingly, I find no error in the judge’s exercise of discretion to award the father, as the substantially successful party in the action, ordinary costs. E. Disposition [87] In the result, I find no errors as alleged and I would dismiss the appeal. “The Honourable Madam Justice D. Smith” I agree: “The Honourable Madam Justice Levine” I agree: “The Honourable Madam Justice Stromberg-Stein”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Dosanjh v. Liang, 2015 BCCA 18 Date: 20150114 Docket: CA041619 Between: Kuldip Dosanjh Respondent (Plaintiff) And Xuemei Liang Appellant (Defendant) Corrected Judgment: The text of the judgment was corrected on page 2 on January 19, 2015. Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Groberman The Honourable Madam Justice Bennett On appeal from: An order of the Supreme Court of British Columbia, dated January 31, 2014 ( Dosanjh v. Liang , 2014 BCSC 162, New Westminster Docket S137347) Counsel for the Appellant: D.P. Davison Counsel for the Respondent: H.S. Nirwan Place and Date of Hearing: Vancouver, British Columbia November 26, 2014 Place and Date of Judgment: Vancouver, British Columbia January 14, 2015 Written Reasons by: The Honourable Mr. Justice Groberman Concurred in by: The Honourable Mr. Justice Lowry The Honourable Madam Justice Bennett Summary: The plaintiff agreed to purchase residential property from the defendant. The defendant refused to complete the transaction because she considered the purchase price to be too low. After initially insisting on completion, the plaintiff wrote to the defendant, accepted her repudiation and sued for damages. The trial judge found that the purchaser had not unequivocally affirmed the contract, and that he was entitled to accept the repudiation and sue for damages. Over the objection of the vendor, the judge accepted a property assessment under the Assessment Act as evidence of the market value of the property. The vendor appealed. Held: Appeal allowed to the extent of remitting the assessment of damages to the trial court. While the purchaser had unequivocally affirmed the contract, the vendor’s conduct amounted to a continuing repudiation, and the purchaser was entitled to accept the repudiation when he did. The property assessment was not admissible evidence to establish the market value, and it should not have been considered by the judge. The court acknowledges that property assessments are sometimes used as evidence of value in family law cases; whether or not that is proper practice, it does not extend to other types of civil litigation. Reasons for Judgment of the Honourable Mr. Justice Groberman: [1] This appeal arises out of a residential real estate sale that failed to close. Mr. Dosanjh, the purchaser, alleges that Ms. Liang, the vendor, repudiated the contract, and that she is liable to him in damages. While Ms. Liang accepts the trial judge’s finding that her actions constituted a repudiation of the contract, she says that Mr. Dosanjh thereafter elected to affirm the contract rather than accept the repudiation. She says that he cannot, therefore, claim damages for her breach. She also argues that Mr. Dosanjh himself breached the agreement by failing to pay a deposit in a timely manner, and that that breach bars him from recovery. [2] The trial judge found that Mr. Dosanjh did not affirm the contract, and that he was entitled to accept the repudiation and sue for damages. She awarded Mr. Dosanjh $37,400, which she found to be the difference between the contract price and the market value of the property on a date three months after the closing date. She found that it was reasonable to expect that Mr. Dosanjh would have found another suitable house by that time. The appellant appeals the judgment, both in respect of liability and damages. [3] I am of the view that the judge was correct in finding the appellant liable for breach of contract. Her assessment of damages, however, was based on inadmissible evidence, and cannot stand. In the course of the appeal, both parties agreed that, in the event that the appeal is allowed on the issue of damages alone, the matter should be returned to the trial court for a new hearing to assess the quantum of damages. The Agreement for Purchase and Sale [4] The appellant owned residential property in Burnaby, which she rented to tenants. In August 2011, the RCMP informed her that her tenants had been using the property to grow marijuana. Ms. Liang was upset by this news, and immediately contacted a realtor for the purpose of putting the property up for sale. [5] The realtor arranged for an advertisement on Craigslist, which first appeared on August 26, 2011. It listed the property for sale for $629,000. The realtor also arranged for the property to be listed on the Multiple Listing Service (“MLS”), but the listing was not to take effect until the following Monday, August 29. [6] Mr. Dosanjh saw the Craigslist listing on the day that it was published, and contacted the realtor to express interest in the property. He was given the address of the property, and arranged to meet with the realtor the following day. [7] Mr. Dosanjh viewed the exterior of the house on August 27, but did not have access to the interior. He then met with the realtor, as planned, and made an offer to purchase the property. After some negotiations, the parties reached an agreement that same day, under which Mr. Dosanjh would purchase the property for $605,000, with an October 1, 2011 completion date. [8] Mr. Dosanjh’s offer was subject to three conditions inserted for his sole benefit. First, he was entitled to inspect the property for the presence of asbestos products, and was entitled to demand that Ms. Liang arrange for the removal of any such products. Second, he was entitled to have any oil storage tanks on the property removed by Ms. Liang prior to the completion date. Finally, the agreement was conditional upon Mr. Dosanjh obtaining a building permit and municipal approvals by September 15, 2011. [9] The deposit clause in the contract read as follows: DEPOSIT: A deposit of $30,000.00 which will form part of the Purchase Price, will be paid on the following terms: Deposit to be paid after subjects are removed. All monies paid pursuant to this section (Deposit) will … be delivered to [the realtor] and held in trust…. [10] By August 29, Ms. Liang had second thoughts about the deal. Late that evening, Ms. Liang’s realtor sent an e-mail to Mr. Dosanjh as follows: I wanted to let you know right away of a situation that has developed. The owner of 7849 18 th Ave has contacted me and advised me she will not proceed with this contract. She explained to me that she was under great duress in making a decision. She was contacted by the police about the grow [o]p the previous day and then felt so much pressure in having to make a major decision within a few hours. I tried to contact her today but her family told me she is being treated by her doctor at the hospital for anxiety and depression and has not called me back. Her family told me they have an appointment with the lawyer on Thursday to discuss this situation. It’s all I know at this point. I am gathering from what I know that the family feels that the price was unreasonable in the current market place. I don’t know what else I can do at this point. [11] Mr. Dosanjh attempted to contact the realtor by telephone, but was not immediately successful. On August 30, he sent an e-mail indicating that he had not observed Ms. Liang to be under stress on August 27, and stating that he wished to proceed to have an inspector check the property for asbestos and for oil tanks. Mr. Dosanjh also spoke with the realtor after sending the e-mail, and told him that he wanted to remove the conditions and to proceed to complete the purchase. [12] The MLS listing resulted in considerable interest in the property, and on August 30, Ms. Liang increased the asking price on the MLS listing to $669,000. [13] On September 6, 2011, Mr. Dosanjh sent another e-mail to the realtor, which read, in part: Although the subject removal date is September 15, 2011 … on August 31st we … told you that we are ready to remove all subjects. We tried several times but you don’t pick up the phone so we are removing the subjects and sending it to your office. As soon as the seller signs the subject removal form, we are ready to send the $30,000 deposit cheque. [14] On September 8, 2011, Mr. Dosanjh sent a fax to the realtor in the same terms. Attached to the fax was a copy of the addendum to the contract that contained the conditions, upon which he wrote “Removal of following ‘subjects to clauses’”. On the same day, Mr. Dosanjh’s lawyer sent a letter to Ms. Liang and to the realtor which included the following: We advise that the Buyer is ready, willing and able to complete this transaction on the completion date, October 1, 2011. With respect to the email letter of August 28, 2011 in which [the realtor] says “[t]he owner... has contacted me and advised me she will not proceed with this contract” we ask that you, Ms. Liang, immediately contact the writer to confirm whether that statement should be viewed as any anticipatory breach of Contract by the Seller. We advise that should you fail to complete the transaction on October 1, 2011 our client will take immediate proceedings to pursue any and all remedies available … under the Contract including, but not limited to, the specific performance of the Contract and damages, or alternatively, damages. [15] Ms. Liang received the letter, but did not respond to it. It is not clear whether the realtor also received the letter; in any event, he did not respond to it. [16] Mr. Dosanjh went to the realtor’s office with the intention of dropping off a cheque for the deposit. The receptionist advised him that the realtor was not in. Mr. Dosanjh did not leave the cheque at the office, but attempted, unsuccessfully, to contact the realtor by telephone. It appears that the realtor was, in fact, away from British Columbia between September 4 and September 11, 2011. [17] On September 14, Mr. Dosanjh’s lawyer couriered a cheque for the deposit amount to the realtor’s office during business hours. The courier was unable to deliver it because the office was closed. On September 15, the lawyer wrote to Ms. Liang as follows: We confirm that the deposit of $30,000.00 was sent via courier in the form of a certified cheque to the offices of [your realtor]. Our courier advises that the office was closed and that no one was present to accept the deposit …. Coupled with the letter by the Realtor … of August 29, 2011 in which [he] advised our client that you did not intend to complete this transaction, and given that you have not responded to our letter of September 8, 2011 which was sent to you by registered mail and because the deposit was not accepted today, please be advised that our client regards this conduct as amounting to an anticipatory breach of the contract of purchase and sale and our client will pursue all available remedies. This is clear and unequivocal notice to you that we accept your repudiation of said contract and that this acceptance ends any obligation on our client to tender the purchase price on the date stipulated in the contract as a precondition to seeking enforcement in this action. [18] Ms. Liang received the letter on September 19, and did not respond to it. Mr. Dosanjh immediately commenced an action. Neither party took any steps to close the transaction on the scheduled completion date. The Trial Judge’s Decision [19] At trial, Mr. Dosanjh contended that Ms. Liang’s realtor’s e-mail of August 29, 2011 constituted a repudiation of the contract. Ms. Liang, on the other hand, argued that the e-mail merely outlined concerns that she had, and was not a statement that she was refusing to proceed with the contract. [20] The judge found that the e-mail did constitute a repudiation of the contract. She noted that the realtor’s e-mail unequivocally stated: “The owner … has advised me she will not proceed with this contract.” At para. 47 of her reasons, she accepted that “Mr. Dosanjh was entitled to conclude, from reading the whole of the e-mail, that Ms. Liang did not intend to proceed.” She also noted that the realtor’s subsequent telephone conversations with Mr. Dosanjh confirmed that Ms. Liang would not proceed with the sale. [21] The next issue was whether Mr. Dosanjh accepted the repudiation or, instead, affirmed the contract. Mr. Dosanjh took the position that he accepted the repudiation in his lawyer’s letter of September 15, 2011. Ms. Liang’s position was that Mr. Dosanjh had unequivocally and irrevocably affirmed the contract prior to September 15, and could, as of that date, no longer choose to accept the repudiation. In support of her position, she relied on Mr. Dosanjh’s e-mail of August 30 and his telephone conversations with the realtor around that time. She also points to his September 6 e-mail, his September 8 fax, and his attempts to deliver the deposit cheque to the realtor’s office. [22] Ms. Liang argued that, having affirmed the contract, Mr. Dosanjh was no longer in a position, on September 15, 2011, to accept the repudiation. Further, she argued that Mr. Dosanjh had himself breached the contract by failing to tender the deposit when he waived the “subject to” conditions. She contended that a party, while himself in breach of a contract, cannot purport to accept the other side’s repudiation and sue for damages. [23] The trial judge noted, at para. 55, that “the court should be careful not to find that a party has affirmed a contract without very clear evidence that he or she has irrevocably chosen to go with the contract.” At para. 64, she characterized Mr. Dosanjh’s actions between August 29, 2011 and September 15, 2011 as “assessing the circumstances, considering his options, attempting to resolve the situation, and trying to ensure that he did what he had to do to complete the Contract in the event he was able to convince Ms. Liang to recognize her obligations.” She concluded that he did not affirm the Contract, and that he was still entitled, at the time he communicated his intentions by his lawyer’s letter of September 15, 2011, to accept Ms. Liang’s repudiation. [24] The judge found it unnecessary to resolve the issue of whether Mr. Dosanjh was in breach of the contract by failing to pay the deposit on time. She said: [72] Mr. Dosanjh did not succeed in delivering the deposit prior to accepting Ms. Liang’s earlier repudiation. However, even if this amounted to a breach of the deposit clause in the Contract, Ms. Liang did not do anything to exercise her right to terminate the Contract pursuant to the terms of the deposit clause or under the common law. Accordingly, even if Mr. Dosanjh breached the Contract by failing to pay the deposit when it was due, his repudiation remained unaccepted and the Contract continued in existence until Mr. Dosanjh accepted Ms. Liang’s earlier repudiation by his letter dated September 15. [73]      For these reasons, I find that the Contract was not discharged by Mr. Dosanjh’s failure to pay the deposit. [25] With respect to remedy, the judge accepted Ms. Liang’s argument that Mr. Dosanjh could not claim specific performance because he had accepted the repudiation of the contract. She also found that, as specific performance was not an available remedy, damages in lieu of specific performance were also unavailable. In the result, Mr. Dosanjh was not entitled to damages based on the value of the property at the date of trial. [26] The judge recognized that, ordinarily, damages are to be assessed on the date of the breach, but noted that circumstances may, in some instances, justify a court in choosing a different date. The judge chose January 2012, based on her view that Mr. Dosanjh should have located another residential property to purchase by that time, some three months after the closing date. [27] The judge noted that there was evidence to suggest that the $605,000.00 purchase price was materially less than the market value of the property. She found that Ms. Liang’s primary reason for refusing to proceed with the deal was that she considered the purchase price to be below market value. She also noted that there was considerable interest in the property as soon as the MLS listing appeared, and that Ms. Liang increased the list price to $669,000. The judge concluded, at para. 90, that the increase was motivated by the fact that “the market value [of the property] materially exceeded the Contract price.” [28] With respect to the quantification of damages, the judge mentioned that the plaintiff had obtained an appraisal of the property (as of November 8, 2012). The appraisal did not comply with the requirements for expert evidence, and it was not tendered as evidence of the value of the property, though it was, apparently, tendered for the limited purpose of showing that an appraisal had been obtained. The judge did not use the appraisal as evidence of the value of the property. [29] Instead, over the objections of Ms. Liang, she used the 2013 assessment by the BC Assessment Authority (prepared under s. 2 of the Assessment Act , R.S.B.C. 1996, c. 20) as evidence of the value of the property. That assessment report attributed values to the property as of July 1 of each of 2011, 2012 and 2013. The trial judge took the arithmetic mean of the 2011 and 2012 values as the appropriate market value of the property in January 2012. Issues on this Appeal [30] On this appeal, Ms. Liang accepts the judge’s finding that her real estate agent’s letter of August 29, 2011 constituted a repudiation of the contract. She says, however, that Mr. Dosanjh unequivocally and irrevocably affirmed the contract in his subsequent communications and actions. She says that it was no longer open to him to accept the repudiation when he purported to do so in his letter of September 15, 2011. [31] She also argues that, whether or not Mr. Dosanjh affirmed the contract, it was not open to him to accept the repudiation by his letter of September 15, 2011, because he was, by then, himself in breach of the contract, having failed to deliver the required $30,000 deposit to her. She also says that the judge erred in finding that Ms. Liang did not, by her actions, show that she was accepting Mr. Dosanjh’s breach as a repudiation of the contract. [32] Finally, Ms. Liang argues that the judge erred in her assessment of damages, both by using inadmissible evidence to determine the market value of the property and by inappropriately choosing January 2012 as the date for assessment of damages. Did Mr. Dosanjh Unequivocally Affirm the Contract? [33] The trial judge summarized the general law with respect to a party’s right to accept a repudiation of a contract at para. 50 of her judgment: The consequences of a repudiation, whether by anticipatory breach or breach of a fundamental term, are well established. They are referred to in Sethna v. 350 Kingsway Development Ltd. , 2011 BCCA 434, at para. 24, and Homestar Industrial Properties Ltd. v. Philps (1992), 72 B.C.L.R. (2d) 69 (C.A.), at para. 13, and may be summarized as follows: · A party to a contract has two alternatives if the other party repudiates the contract: the innocent party may accept the repudiation or affirm the contract. · If the innocent party accepts the repudiation, the contract is at an end, both parties are relieved of their obligations under it, and the innocent party may sue for damages immediately without waiting for the time that the contract should have been performed. · If the innocent party affirms the contract, the contract remains alive in all respects for both parties, and the risk exists that the party beginning as the innocent party will subsequently commit a breach of its own. · If the innocent party wishes to accept the repudiation, he or she must make his or her election known. · Once made, the election is irrevocable. [34] Neither party quarrels with these general propositions, which are well-supported in the case law. As I will indicate, however, the last proposition – that an election, once made, is irrevocable – requires some qualification to ensure that it is not inappropriately applied in cases of repeated or continuing repudiation. [35] A court will not find that an innocent party has affirmed a contract in the absence of clear evidence leading it to that conclusion. The trial judge expressed the proposition as follows: [55] Affirmation may be express or implied, but the court should be careful not to find that a party has affirmed a contract without very clear evidence that he or she has irrevocably chosen to go on with the contract. This is explained in Chitty [ Chitty on Contracts, 31st ed (London, UK: Sweet & Maxwell Ltd., 2012) vol 1] at 1696-97 as follows: [The innocent party] will not be held to have elected to affirm the contract unless, first, he has knowledge of the facts giving rise to the breach, and, secondly, he has knowledge of his legal right to choose between the alternatives open to him. Affirmation may be express or implied. It will be implied if, with knowledge of the breach and of his right to choose, he does some unequivocal act from which it may be inferred that he intends to go on with the contract regardless of the breach or from which it may be inferred that he will not exercise his right to treat the contract as repudiated. … Mere inactivity after breach does not of itself amount to affirmation, nor (it seems) does the commencement of an action claiming damages for breach. The mere fact that the innocent party has called on the party in breach to change his mind, accept his obligations and perform the contract will not generally, of itself, amount to an affirmation [36] The judge then cited Yukong Line Ltd. of Korea v. Rendsburg Investments Corporation of Liberia , [1996] 2 Lloyd’s Rep. 604 . She also referred to the following passage from Abraham v. Coblenz Holdings Ltd. , 2013 BCCA 512: [28] In my view, an innocent party is not required to communicate its acceptance of a repudiation immediately. An innocent party must have a reasonable opportunity to assess the circumstances it finds itself in, to assess its options, and to explore the possibility of resolving the situation. That is particularly so where, as here, the tenants had invested a substantial amount of money in the premises and were not willing to walk away without trying to negotiate a workable arrangement. What matters is whether, in all of the circumstances, the tenants acted reasonably in communicating their course of action so as not to prejudice the other party by inducing it to act as if its repudiation of the agreement had not been accepted: Allen v. Robles , [1969] 3 All E.R. 154 (C.A.). [37] I accept that, where a party has repudiated a contract, the opposite party is entitled to a reasonable period of time in which to decide whether to affirm the contract or accept the repudiation. I also accept that, at least until that reasonable period of time has elapsed, a court should be slow to treat equivocal statements or acts as affirmations of the contract. The court’s solicitude toward the innocent party, however, must not extend to ignoring unequivocal acts or statements of affirmation made by a party that is aware of its legal rights. [38] In the case before us, I am not persuaded that Mr. Dosanjh’s statements and actions in the aftermath of Ms. Liang’s repudiation of the contract can be interpreted as anything other than an affirmation of the contract. Immediately after being advised of Ms. Liang’s intentions not to complete the contract, Mr. Dosanjh indicated that it was his intention to proceed with the purchase. All of his subsequent actions up to September 15, 2011 were consistent only with an intention to treat the contract as an ongoing one. [39] Of particular importance is the lawyer’s letter of September 8, 2011, which affirmed that Mr. Dosanjh was “ready, willing and able to complete this transaction on the completion date, October 1, 2011” and indicated that if Ms. Liang failed to complete, he would pursue remedies including specific performance. The letter is not consistent with an acceptance of the repudiation. Further, and most importantly, it is a letter sent at a time when Mr. Dosanjh had had some time to reflect on the situation, and had obtained legal advice as to his position. [40] Mr. Dosanjh’s communications and actions (up until the letter of September 15, 2011) unequivocally demonstrated an intention to affirm the contract. There was no evidentiary basis for the judge’s finding to the contrary. The evidence establishes that by September 8, 2011 Mr. Dosanjh made an election to affirm the contract rather than accept Ms. Liang’s repudiation of it. To What Extent was the Affirmation of the Contract Irrevocable? [41] Normally, after a party has repudiated a contract, the opposite party must elect whether to affirm the contract or accept the repudiation. If it affirms the contract, it cannot, later on, re-elect, and choose to accept the repudiation. [42] That does not mean, however, that a party that repudiates a contract is free to commit fundamental breaches without fear that the contract will be terminated, nor does it mean that a party guilty of a fundamental breach may continue to refuse to perform with impunity. Each time a party commits an act amounting to a repudiation, the opposite party is entitled to elect to affirm the contract or accept the repudiation. The fact that the innocent party has previously affirmed a contract does not disentitle it from accepting a new repudiation of it by the guilty party. [43] Equally, a party that has affirmed a contract after a repudiation by the other party may, if the repudiation is continuing, choose to accept it and treat the contract as at an end. The issue was explored by Lowry J.A. (Prowse J.A. concurring) in Doman Forest Products Ltd. v. GMAC Commercial Credit Corp. – Canada , 2007 BCCA 88. After discussing a number of authorities, including Fletton Ltd. v. Peat Marwick Ltd. (1988), 27 B.C.L.R. (2d) 209 (C.A.) leave refused [1988] 2 S.C.R. vi; Elderfield v. Aetna Life Insurance Co. of Canada (1996), 27 B.C.L.R. (3d) 1 (C.A.); and Bridgesoft Systems Corp. v. British Columbia , 2000 BCCA 313, he summarized the law as follows: [109] Where a party to an agreement commits a fundamental breach of its terms, the agreement is repudiated. There has been what amounts to a refusal to perform. If the repudiation is not accepted, the agreement is affirmed. Where the breach is ongoing, as distinct from one instance of fundamental non-performance, there is a continuing repudiation which may, in the absence of subsequent affirmation, be accepted as long as the repudiation continues. What in my view is important is that, in order to establish the existence of a continuing repudiation, particularly when an extended period of time has elapsed following the affirmation of an agreement, it must be clear beyond question that there is a continued ( Elderfield ) or repeated ( Bridgesoft ) refusal to perform. The refusal may be manifest in different ways, which may include silence in response to a request for performance at the time the request is made, but the refusal must be clear for it is that refusal which is the repudiation to be accepted. [44] In my opinion, the current case is one of continuing repudiation by Ms. Liang. Mr. Dosanjh and his lawyer undertook extensive communications with Ms. Liang and her realtor, attempting to ascertain whether Ms. Liang would complete the transaction. Ms. Liang was unresponsive. Her own silence, combined with the silence or indifference of her real estate agent, clearly communicated to Mr. Dosanjh that she would not complete the sale. [45] While it became apparent, at trial, that the real estate agent was not actually avoiding receipt of the deposit, Mr. Dosanjh and his lawyer reasonably believed that he was doing so. The failure of the realtor to communicate with them, and his failure to make arrangements for receipt of the deposit, played a significant role in leaving them with the impression that he was trying to ensure that the deposit could not be paid. [46] In all the circumstances, it is my view that Ms. Liang’s repudiation of the contract was not a single incident, but rather a continuing fundamental breach of contract. Mr. Dosanjh was, in the circumstances, entitled to affirm the contract after the initial repudiation on August 29, 2011, and then later, in response to Ms. Liang’s continued repudiation, to treat the contract as at an end. [47] In the result, while I differ from the trial judge somewhat in my analysis of the events, I find that she did not err in finding that Mr. Dosanjh was in a position, on September 15, 2011, to accept Ms. Liang’s repudiation of the contract. Was Mr. Dosanjh in Breach of the Contract? [48] Ms. Liang contends that Mr. Dosanjh breached the contract by failing to pay the $30,000 deposit at the time he waived the conditions that had been inserted in the contract for his benefit. She argues that this, itself, constituted a fundamental breach of the agreement, and that she accepted the breach, thus terminating the contract. In the alternative, she argues that Mr. Dosanjh was not entitled to accept her repudiation of the contract at a time when he, himself, was in breach. [49] In my view, the issue is simply resolved with reference to the contractual provisions concerning the deposit. Nothing in the contract required Mr. Dosanjh to pay the deposit at the time he waived the conditions. Rather, the deposit was to be paid after the conditions were removed. It can be inferred that the deposit was to be paid before the closing date. Beyond that, there is little in the contract that sheds light on precisely when the deposit was to be tendered. [50] In my view, the best that can be done with the contractual language is to interpret it as requiring Mr. Dosanjh to tender the deposit within a reasonable period once the conditions were waived. Given the unavailability of the real estate agent, his failure to keep his office open during office hours, the absence of any communications from Ms. Liang or her realtor on the issue of the deposit, and Mr. Dosanjh’s attempts to tender the deposit, it is my view that Mr. Dosanjh did not fail to tender the deposit within a reasonable time period after waiving the conditions. He was, on September 15, 2011, when he gave notice of his decision to accept Ms. Liang’s repudiation of the contract, not in breach of the term requiring him to deposit funds. The same situation subsisted on September 19, 2011 when Ms. Liang received his letter. [51] I am, therefore, not persuaded that the judge erred in finding that Mr. Dosanjh was entitled to accept Ms. Liang’s repudiation of the contract and sue for damages. I also agree with her conclusion that he did accept the repudiation, and did so in a timely manner. Damages [52] Ms. Liang says that the trial judge erred in two respects in assessing damages. First, she says that the damages crystallized on the date of the breach, and that the judge erred in awarding damages assessed at a date three months after the closing. Second, she says that the judge erred in relying on an assessment by the BC Assessment Authority, which was prepared for the purposes of municipal taxation, as evidence of the value of the property. [53] Ms. Liang points out that the normal rule for damages in breach of contract is that damages are assessed as of the date of the breach. There are exceptions to the rule. In particular, where a party is entitled to specific performance and is awarded damages in lieu thereof, there will be a basis to assess damages as of the date of trial rather than as of the date of the breach: Semelhago v. Paramadevan , [1996] 2 S.C.R. 415. [54] In the case before us, Mr. Dosanjh accepted Ms. Liang’s repudiation of the contract on September 15, 2011. As a matter of law, he was not entitled, thereafter, to seek specific performance. The trial judge, nonetheless, held that it would be fair to assess damages as of January 2012, because Mr. Dosanjh could not be expected to find another residence immediately. [55] In my view, the presumption that contract damages are to be assessed as of the date of the breach is not so easily displaced. It is important that the law in this area be predictable, and such predictability is not served by allowing judges unbounded discretion as to the date for assessment of damages. [56] In the case before us, there was no evidence of an unusual rise in real estate prices in Burnaby between September 19, 2011 (the date that acceptance of the repudiation was communicated) and January 2012. There was also very limited evidence of any efforts made by Mr. Dosanjh to find an appropriate residence in Burnaby. In the circumstances, it cannot be said that the ordinary rule that damages are assessed at the date of breach was displaced. [57] A more serious difficulty with the assessment of damages was the trial judge’s reliance on the assessment to determine the property value. [58] In deciding to admit the assessment as evidence, the trial judge referred to a number of family law cases in which assessments had been used by the trial court to determine the value of real property. She purported to rely on the opening words of Rule 11-7 of the Supreme Court Civil Rules , B.C. Reg. 168/2009, as providing her discretion to admit the evidence. [59] There is some difficulty in relying on family law cases for the proposition that assessments should be admissible evidence to determine the value of real property. While the rules of evidence are applicable to family law proceedings, they are often applied in a relaxed manner. I agree with the recent observations of Kent J. in Walker v. Maxwell , 2014 BCSC 2357: [64]      Of course, one of the stark realities of family law litigation is that the parties are often unrepresented by counsel and/or are unable to afford the substantial cost of experts and the procuring of expert evidence. [65] Evidence in family law cases is subject to the same rules applicable to any other area of civil law. In reality, however, the technical yields to the practical and the strict rules of evidence are often ignored or accorded only slight deference. [60] While trial courts have, with some frequency, admitted property assessments as evidence of property value in family law cases, they have generally done so either with the agreement of the parties, or, alternatively, where no other evidence of value has been tendered (e.g. Chung v. La , 2011 BCSC 1547). Where proper expert evidence of value has been tendered, the courts have been reluctant to consider property assessments as evidence (see, for example, Hall v. Mougan , 2009 BCSC 645). [61] In family law cases, a court is often faced with having to assess the value of real property in a situation where neither side is clearly subject to any burden of proof. Rather, the court is simply required to estimate the value of property for the purpose of dividing a family asset. It is not surprising, in such situations, that a court may “grasp at straws” in an attempt to reach a just result. It is simply a matter of doing the best job possible with limited evidence. [62] It seems to me that different considerations arise in non-family cases, where one party or the other will generally bear the onus of producing evidence of property value. [63] It is not necessary, in this case, to make any pronouncement as to the scope for admission of property assessments as evidence of property value in family law cases, and I will refrain from doing so. In my view, however, there is, absent agreement, no scope for using assessments in place of expert opinion evidence in cases such as the present one. [64] The trial judge erred in her reliance on the opening words of Rule 11-7. The relevant provisions of the rule are as follows: 11-7 (1) Unless the court otherwise orders, opinion evidence of an expert, other than an expert appointed by the court under Rule 11-5, must not be tendered at trial unless (a) that evidence is included in a report of that expert that has been prepared and served in accordance with Rule 11-6, and (b) any supplementary reports required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served in accordance with Rule 11-6 (5) to (7). (6) At trial, the court may allow an expert to provide evidence, on terms and conditions, if any, even though one or more of the requirements of this Part have not been complied with, if (a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part, (b) the non-compliance is unlikely to cause prejudice (i) by reason of an inability to prepare for cross-examination, or (ii) by depriving the party against whom the evidence is tendered of a reasonable opportunity to tender evidence in response, or (c) the interests of justice require it. [65] Rules 11-6 sets out special requirements for expert opinion evidence. It is designed to ensure that adequate notice is given of the intention to adduce expert evidence, and to ensure that expert reports are presented in a particular form. Rule 11-7 allows the court to dispense with the requirements of Rule 11-6 in certain limited circumstances (see Perry v. Vargas , 2012 BCSC 1537 and XY, LLC v. Zhu , 2013 BCCA 352). [66] In those limited circumstances, Rule 11-7 allows a judge to admit opinion evidence at trial where the evidence, though otherwise admissible, fails to meet the requirements of Rule 11-6. Nothing in Rule 11-7 purports to allow a judge to admit into evidence an expert opinion that does not meet the requirements of R. v. Mohan , [1994] 2 S.C.R. 9. [67] The basic difficulty with the property assessment as evidence of property value is that the court had no basis on which to evaluate its cogency. The court was not able to determine how the assessor went about making the assessment, and had no basis for determining what weight to give it. This was a particular problem in this case, as the court had no basis for determining the effect of the recent use of the property to grow marijuana on the property value. [68] I acknowledge, again, that these sorts of difficulties have not always been seen as precluding the admission of assessments as evidence of value in family law cases (see, for example, Dykman v. Dykman , 2011 BCSC 883). Whatever discretion a court may have to admit such evidence in a family law case, however, it did not have that discretion in the case before us. [69] As the trial judge observed, there was some evidence before her to the effect that the market value of the property in September 2011 was substantially higher than the contract price. The evidence of how much higher, however, was minimal. Given that the assessment report was not admissible, the trial judge was faced with a formidable (perhaps impossible) task in trying to determine the quantum of damages. [70] Fortunately, the parties, recognizing the problem, agree that if the assessment is found to be inadmissible, it is appropriate for this Court to remit the matter to the trial court for a new hearing on the issue of quantum of damages. Given the agreement of the parties on this issue, I would remit the matter of quantum of damages for a new hearing. Conclusion [71] In my view, the judge was correct in finding that Mr. Dosanjh was entitled to accept Ms. Liang’s repudiation of the contract, and that he did so in a timely manner. I would not disturb her finding that Ms. Liang is liable in damages. [72] I am, however, of the view that this case did not present a basis for assessing the damages on a date other than the date of breach. I am also of the view that the judge erred in relying on contested evidence of property value in the form of a property assessment. [73] Given the position taken by the parties, I would allow the appeal to the extent of returning the matter to the trial court for an assessment of the amount of damages suffered by Mr. Dosanjh. “The Honourable Mr. Justice Groberman” I agree: “The Honourable Mr. Justice Lowry” I agree: “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Cliff, 2015 BCCA 15 Date: 20150114 Docket: CA039855 Between: Regina Respondent And Jamie Michael Cliff Appellant Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Lowry The Honourable Mr. Justice Tysoe On appeal from:  An order of the Supreme Court of British Columbia, dated June 10, 2011 ( R. v. Cliff , Vancouver Docket No. 25247). Counsel for the Appellant: J. Narwal Counsel for the Respondent: F.G. Tischler Place and Date of Hearing: Vancouver, British Columbia December 12, 2014 Place and Date of Judgment: Vancouver, British Columbia January 14, 2015 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Tysoe Summary: Appellant was convicted of second degree murder following a jury trial. Crown led evidence from a witness in respect of whom trial judge issued a Vetrovec warning. Crown also cross-examined the appellant on his post-offence conduct, which included giving police a false name. Although there was evidence the appellant had been drinking, the trial judge did not instruct the jury on intoxication after defence counsel agreed such warning was unnecessary. Appellant argued on appeal that trial judge erred in not instructing the jury on his right to silence, in failing to instruct the jury that corroboration was not required with respect to the appellant’s own testimony, and in not providing instructions on intoxication. Held: appeal dismissed. Appellant’s right to silence was not violated by the Crown’s questioning, the purpose of which was clearly to challenge his credibility rather than to suggest he had a duty to co-operate with police. Even though appellant had a similar history to the Vetrovec witness, an ‘anti-Vetrovec warning’ was not required. The standard W.(D.) instruction was sufficient to allay any potential prejudice in these circumstances. Finally, trial judge did not err in failing to instruct jury on intoxication. There was no air of reality to an intoxication defence, nor was there sufficient evidence of intoxication upon which a reasonable jury could infer the appellant did not have the requisite intent or capacity for murder. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] Following a trial of some 11 weeks, the appellant Mr. Cliff was convicted by a jury of the second degree murder of Lana Christopherson and Andrew Gawley. The murders took place in Vancouver on the morning of October 25, 2008 at about 8:00 a.m. Ms. Christopherson died as a result of multiple stab wounds shortly after she was attacked in a two-bedroom apartment rented by Mr. Gawley. He had his throat slit and was doused with gasoline and set on fire in the same attack. He survived a few months but ultimately died without being able to identify his killer. He told the police, however, that after he was stabbed, the assailant told him to “Go to sleep, you are dead.” Mr. Gawley managed to call 9-1-1 before the man came back into his room, poured gasoline on him and lit it on fire. [2] It appears that the relationship between Ms. Christopherson and Mr. Gawley was simply one of roommates, while Mr. Cliff and Ms. Christopherson had recently lived together. Both were drug addicts and Ms. Christopherson had assisted the appellant in his business as a drug dealer and seller of stolen goods. Prior to October 25, police had raided Mr. Cliff’s residence. He had escaped and was ‘hiding out’ elsewhere lest the police return to arrest him on drug offences. Ms. Christopherson had remained at the residence and was in contact with him by phone, email and text. Various emails written by Mr. Cliff to various friends and associates suggested that he had begun to suspect her of stealing from him, and that she might even inform on him to police in order to keep custody of her child. Two days before the murders, Ms. Christopherson had given him a letter (the “Hey Crazy” letter) in which she purported to break off their relationship. [3] The case against Mr. Cliff was entirely circumstantial, but was nevertheless very strong. There was evidence that he and Ms. Christopherson had been together the night before October 25, 2008 at a “meth emporium” operated by a friend, Ms. Montgomery. They had argued and were told to be quieter. They packed up and took a cab at about 2:30 a.m. to the apartment building (“Earl’s Court”) where Ms. Christopherson was sharing a suite with Mr. Gawley. A resident of the building saw a man and woman in the fourth floor hallway at about 4:20 a.m. and later identified Mr. Cliff as the man. Video surveillance from Earl’s Court showed the appellant and Ms. Christopherson entering the building, Mr. Cliff carrying a red carrying case. [4] A red gas can was found in the hallway after the attack; it appears this contained the gasoline by which the fire was set. This container could have been carried in the case carried by Mr. Cliff in the video surveillance from Earl’s Court. [5] A blood-stained jacket and shirt belonging to the appellant were later found, along with the “Hey Crazy” letter from Ms. Christopherson, in a housing complex nearby. The shirt tested positive for Mr. Cliff’s DNA. When he was arrested on October 28, he had second-degree burns on his left hand and thighs, and initially provided a false name. One (and only one) series of footprints leading from the fifth floor of the building to the ground floor and then to the back exit were found; Mr. Cliff’s left-hand print was found in Ms. Christopherson’s bedroom and on the bannister of a stairwell in the building. There was no evidence of forced entry to Mr. Gawley’s suite, #508. [6] Counsel agreed at trial that the critical issue was the identity of the killer(s). The only evidence called by the defence was Mr. Cliff’s testimony. A great volume of his testimony in chief consisted of his explanation of various email messages he had sent to and received from friends and associates over the weeks prior to the murders. These were difficult to decipher, but painted a picture of an erratic and at times paranoid personality. [7] With respect to the events of October 24-25, 2008, the appellant acknowledged that he and Ms. Christopherson had arrived at Earl’s Court after having argued, and that she had given him the “Hey Crazy” letter breaking off their relationship. They had arrived carrying his computer equipment, surveillance cameras, clothing, body armour, alcohol and drugs. He said the red carrying case contained drugs and he denied bringing a can of gasoline. [8] Mr. Cliff testified that when they arrived at Mr. Gawley’s suite, he and Ms. Christopherson were “a little bit drunk”. They drank “a little more”, had sex, and then went to sleep. He said he was woken by two men whom he first thought were police. One had a gun, and a third was talking to Ms. Christopherson. They were not wearing masks. The appellant was taken into the living room and told to sit; he said he did not recognize any of the three men. The assailants demanded drugs and when Mr. Cliff refused to hand any over, gas was thrown on him and he was lit on fire. He rolled around the floor and was burned between his legs and on his hand. The assailants did not try to stop him rolling around. He finally told the men that “it” was in the red bag. [9] Meanwhile, Mr. Cliff said, he could hear commotion in Ms. Christopherson’s room, and then a scream. He heard Ms. Christopherson say “He’s going to kill me” and then an explosion occurred. He said he managed to break free and ran to her room. He saw that she was not moving, although her eyes were open. He said he did not think there was anything he could do to help her. He ran out the door into the hallway to an exit, ran down the stairs and jumped over the back fence to another apartment complex where he shed most of his clothes and the “Hey Crazy” letter. [10] Mr. Cliff testified that he began looking for a hose because his legs were “burning”. He first removed his jacket after emptying the pockets, then threw off his other wet clothes and left the apartment complex. (His discarded clothes showed no signs of burning.) By this time, he was in his underwear. He found a lady’s shirt or sweater on someone’s porch and put it on. Eventually he found some shoes in the back of a truck. He went into a local mall where he bought a pair of jogging pants and another shirt. He then caught a bus to Burnaby, where he “transferred” to another bus going downtown and went to the house of a friend where he stayed for one night. He then went to the house of another friend. [11] When asked in chief if he had killed Ms. Christopherson or stabbed Mr. Gawley, Mr. Cliff said he had not, and that he did not know who the assailants had been. In his words: I didn’t get to see the one guy and the other two guys, I’ve never seen them before. My friends have been asking me that since I’ve been in jail. They wanted, like, they – like, they want to go after these people. Like, what do you think? Like, if I knew who they were, like, I’d be doing something about it. Like, whether it be by the law or not, like, I would want to be telling my friends or telling somebody. At this point I’d probably want to tell the police . Like, we’ve talked about this before. I would – I would do anything right now. Like, I’m willing to cooperate. Like, I’m willing to be as open as I can. Because you know what? Being called a – being called a rat right now to me isn’t important . Like, two people got killed and it’s like, I think everybody’s looking at me probably like I’m a piece of shit. Like, putting me on the news. My family won’t, like, talk to me. Everybody looks at me like I’m a monster. I want people to know who did it. I don’t want people to be scared of me everywhere. [Emphasis added.] [12] The Crown’s theory was that Mr. Cliff’s testimony regarding three intruders was a total fabrication. There was no physical or surveillance evidence to suggest that three men had entered Earl’s Court or been in suite 508. In cross-examination, Mr. Cliff acknowledged that although the “love of his life” had been stabbed and there was a fire in her apartment, he had not called an ambulance or the police to come to her assistance. Instead, he said, he had called a friend who was a “pretty prominent leader of an organized crime group” and his friend Alison Cain and another friend because he wanted help for himself. Ultimately, he agreed he had done whatever he could “not to get caught and ... absolutely nothing to help ... Lana”. Although the theory of the defence was that Mr. Cliff himself, as an important drug dealer, was the “high value target” of the three intruders, he could provide no explanation for the fact that Ms. Christopherson and Mr. Gawley (whom Mr. Cliff said he had never met) had been killed and he, Mr. Cliff, had not been killed. He acknowledged that the intruders had not chased him down the hall as he left the apartment; nor had he seen anyone pursuing him as he jumped over the fence to the other complex – even though he had been an eyewitness to “horrific crimes”. He had made no effort to obtain medical attention for his burns. [13] Mr. Cliff testified that when he read about Ms. Christopherson’s death in the newspaper, he had felt “bad”. The following exchange with Crown counsel then ensued: Q         Mr. Cliff, if you really, truly thought there was hope for Lana and if you really and truly loved Lana as you say you did, you would not have hesitated but to take that cellphone of yours, call 911, call the ambulance so that immediate help could arrive for your lover, Lana. Isn't that right? A          I made a mistake, yes. Q         You made a mistake and on your evidence that mistake cost Lana her life? A          I don't want to think of it that way. But you're right, I could have. and Q         And by giving the police a false name, you thwarted the police efforts to find who you say were the real killers. A          I'm not sure that I thwarted their efforts to do that by giving a false name. That had to do with arresting me for questioning and that had to do with — yeah, potentially if I — if I was willing to give a statement — that would be assuming a lot of things. To say that, you've got to assume I'm going to make a statement once I'm arrested and I did call a lawyer right away. I called [a Vancouver lawyer] and [the lawyer] told me there's no way I should give a statement whatsoever. My counsel instructed me and they told me, they go, "Just keep your mouth shut. Sit there. Get medical attention and then we're going to talk to you." Then I had to wait. He couldn't do me — he couldn't be my lawyer. I then got [defence counsel at trial] as counsel, I called him and then he instructed me upon the same things. So I haven't — I haven't given the police any statements at all. Q         By giving the police a false name, the name of Adam Warkinson when you were arrested on October the 28th, you did anything but cooperate with the police which you say — said yesterday you really wished you would do now. Isn't that right? A          Yes. There was no evidence of any statement the appellant gave to police apart from his providing the false name when arrested. [14] In cross-examination Mr. Cliff was asked to view the video surveillance of the front entrance of Earl’s Court on the day of the attacks. He agreed that none of the persons shown entering or leaving looked like the assailants. Discussions between Counsel and the Court Regarding Jury Charge [15] The trial judge had extensive discussions with counsel concerning his proposed charge. As noted in the Crown’s factum, both counsel agreed, first of all, that there was no basis for the judge to charge on manslaughter as opposed to murder, given the nature of the injuries suffered by both deceased and the fact that gasoline had been brought to the apartment and poured over Mr. Gawley. [16] Second, although Mr. Cliff had testified that he and Ms. Christopherson had “finished the booze” when they reached her room at 4:00 a.m., counsel were in agreement that there was no air of reality to the suggestion that Mr. Cliff had been intoxicated at the time of the attacks (8:00 a.m.) to the extent that would justify putting the defence of intoxication to the jury. Indeed, experienced defence counsel agreed there was “no reasonable chain of reasoning on the evidence that could lead [the jury] to manslaughter by intoxication.” [17] Counsel agreed with the judge that a Vetrovec warning should be given with respect to the evidence of Ms. Montgomery, who in the words of counsel for the defence at trial “ran a crystal meth emporium”. Counsel also agreed with the suggestion that the jury should be charged specifically on three acts of post-offence conduct – Mr. Cliff’s flight from the murder scene, the discarding of his clothing with Ms. Christopherson’s blood on it, and the giving of false names upon arrest. It is important to note that no challenge was made on appeal regarding the judge’s instruction on this conduct. [18] In the course of the colloquy with the Court, defence counsel asked the judge to emphasize the fact that the jury must be diligent to ‘contain’ the “bad character evidence that they’ve heard of the accused.” He continued: And that, I think extends to some of the unlawful, not just the unlawful activities of the accused but the unlawful possessions of the accused. Or maybe not unlawful but unsavoury possessions of the accused. So like the smoke bombs and the false ID and the crossbow, of course. Drugs, as testified to. The trial judge responded that he was “not inclined to spend a lot of time cataloguing all of the things that they might find to be disreputable or illegal conduct”, not only because he might leave something out, but because “it just has the effect of re-emphasizing it.” Counsel replied “Okay” and the discussion ended there. [19] In his charge, the trial judge gave a Vetrovec warning with respect to Ms. Montgomery in the usual terms, ending with the admonition that the jury should be “reluctant to accept” her testimony in the absence of any supporting evidence or confirming evidence. The judge then immediately told the jury that: During the testimony of Lynn Montgomery, you heard her say that Mr. Cliff may have been someone involved in drugs. You also heard her say that he had gotten out of jail. You also have before you evidence of text messages and emails that refer to drugs or sexual matters or the police. You also heard Mr. Cliff testify about such things. I must warn you that you must not use this as evidence that Mr. Cliff is a person of bad character who was therefore more likely to have committed the offences for which he is now on trial . He is charged on the indictment only with the murder of Lana Christophersen and with the murder of Andrew Gawley. He is not on trial for any of his past conduct other than the matters set out in the indictment. You must not use evidence of other disreputable or even illegal conduct to infer that he was therefore more likely to have committed the offences set out in the indictment, nor may you use the evidence to punish Mr. Cliff for other past misconduct by finding him guilty of the offences charged. and further: You should approach his evidence the same way you would approach the evidence of any other witness, bearing in mind what I told you earlier about the credibility of witnesses. Please remember that you do not have to accept or reject all of the evidence of any witness, including Mr. Cliff. It is up to you whether you accept all of his testimony, part of his testimony, or none of his testimony. It is not a question of whether or not you believe Mr. Cliff’s testimony. If his evidence raises a reasonable doubt in your mind about his guilt, then you must return a verdict of not guilty. [20] In his review of the evidence relating to “identity”, the judge told the jury to consider all the relevant evidence and to: consider Mr. Cliff's testimony that he did not stab either Lana Christophersen or Mr. Gawley and his testimony that he did not set Mr. Gawley on fire. Consider his testimony that three unknown men had entered the apartment, apparently looking for his drugs, and that they attacked him, causing burns to his body. He says that these are the men who attacked Lana Christophersen and Andrew Gawley. Consider Mr. Cliff's testimony that after the attack he tried to pick up Lana and in doing so got her blood on him. Consider his testimony that when he left the apartment he did not know whether she was still alive. Consider the cellphone records and the fact that after he left the apartment he called several of his associates but he did not try calling Lana and did not call 9-1-1 or an ambulance. Consider the evidence of the police witnesses that they found no evidence of forced entry to suite 508. As already mentioned, the jury convicted Mr. Cliff of the second degree murder of both Ms. Christopherson and Mr. Gawley. On Appeal [21] In this court, the appellant asserts the following three errors on the part of the trial judge: A.         The learned trial judge erred in failing to instruct the jury that it could draw no adverse inference from the fact that the Appellant exercised his right to silence and his right to counsel. B.         The learned trial judge erred in his instruction to the jury regarding their assessment of the Appellant’s evidence and in particular failed to instruct the jury that corroboration of the Appellant’s evidence was not required. C.        The learned trial judge erred in failing to instruct the jury on the defence of intoxication or, in the alternative erred in failing to review and relate the evidence of the Appellant’s consumption of drugs and alcohol to the required intent for second-degree murder. [22] Mr. Narwal for the appellant acknowledged that defence counsel at trial argued against the trial judge’s instructing the jury on intoxication, and that counsel said nothing about a warning to the jury concerning the appellant’s “right to silence” or about corroborative evidence in relation to the appellant’s testimony. Mr. Narwal pointed out that although this is a factor to be considered by this court on appeal, it is not necessarily fatal. Mr. Tischler for the Crown did not disagree, but contended that the position of counsel at trial is a “significant demonstration” of the correctness of the trial judge’s instructions and that it is “very rare” that an appellate court will find an error on a matter agreed upon by counsel and the trial judge. (See, e.g., R. v. Shannon 2014 BCCA 250 at para. 12, citing R. v. Fontaine 2011 BCCA 140 at para. 13.) I would add that as the trial judge suggested in this case, defence counsel might also make a tactical judgement that the risks of a trial judge’s emphasizing certain evidence in the course of a warning or other instruction outweigh the possible beneficial effects of such a warning. This is a judgement that generally lies within the expertise of counsel in consultation with his or her client. Right to Silence [23] Counsel for the appellant submitted that in cross-examining Mr. Cliff as to his failure to take any steps to protect or assist Ms. Christopherson after the appellant had fled the apartment, the Crown had “trenched” on his right to remain silent. Although Mr. Narwal acknowledged that the Crown’s questions – including those reproduced above at para. 13 – had been intended to challenge the credibility of Mr. Cliff’s assertions that he had loved Ms. Christopherson, counsel contended that the Crown had acted unfairly in suggesting that Mr. Cliff was required to call police or emergency services to assist her. As well, it was said, the appellant had not “thwarted” the police by giving them a false name when he was first detained. [24] Mr. Narwal referred us to R. v. Snelson 2013 BCCA 550, in which the trial judge was held to have erred in admitting into evidence the accused’s statement, in the course of a long interview with police, that he had not yet decided whether he intended to plead guilty or not. In charging the jury, the trial judge mentioned the statement and observed that it was “both unambiguous and obviously inconsistent with ... innocence”. He gave no further warning regarding the accused’s right to silence and, as this court found, left the jury with the impression that they could draw an inference of guilt from the statement. No such error was made in this case, and indeed as noted earlier, there was no evidence of any statement made to the police by Mr. Cliff. [25] We were also referred to R. v. Chambers [1990] 2 S.C.R. 1293. In that instance, the Crown in cross-examining the accused suggested that he had recently concocted a story involving his co-accused, one “Kuko”. The Crown then asked the accused why he had not provided this story when he had been arrested. Mr. Chambers replied that “As a lawyer I would never talk to the authorities under any condition where they’ve laid conspiracy charges and arrested a whole bunch of people.” The questioning continued along these lines until defence counsel objected and the jury was excused. The trial judge reserved his ruling on the issue. (See p. 1314.) Evidently, documentary evidence was available that demonstrated that the accused had put forward the defence that he was pretending to participate in a conspiracy with Kuko but had never intended to become a party to it. It was unclear exactly when the Crown became aware of this defence, but it had clearly been conveyed to Crown counsel prior to commencement of the trial. (Para. 55.) [26] The Supreme Court described what occurred next: Eventually Crown counsel appeared to agree with the position taken by counsel for the appellant. Both counsel requested the trial judge to direct the jury to ignore completely the questions and answers given pertaining to the appellant's silence not only on the issue of guilt or innocence, but also with respect to the issue of the appellant's credibility. The trial judge undertook to give these directions. It was on this basis that defence counsel advised that he would not re-examine the appellant with respect to the issues arising from his right to silence. Although the trial judge confirmed that it was his responsibility to give these instructions to the jury, he neglected to do so. Neither counsel reminded him of his undertaking at the completion of the charge. Counsel must share with the trial judge the responsibility for the omission of this important direction. The remaining question is whether the omission constitutes a reversible error. [At 1315.] [27] The Court concluded that unless the Crown could establish a “real relevance and a proper basis” for the admission of the questions of the investigating officers and the evidence as to the accused’s ensuing silence, that evidence should not have been admitted. Further, without a direction from the trial judge to the effect that the accused had been under no duty to disclose the “Kuko story” to a person in authority when asked, the curative proviso in s. 613(1)(b)(iii) of the Code could not be applied. In the words of Mr. Justice Cory for the majority: ... As a result of the Crown's cross-examination, the jury could well have been left with the erroneous impression that Chambers was under a duty to disclose the Kuko story to a person in authority. The failure to disclose a defence of alibi in a timely manner may be considered in assessing the credibility of that defence but that is a unique situation. As a general rule there is no obligation resting upon an accused person to disclose either the defence which will be presented or the details of that defence before the Crown has completed its case. There was clearly no obligation resting upon the appellant to disclose either his defence of double intent or the Kuko story to the Crown or anyone in authority. The failure to correct such an impression by direction from the trial judge rendered the right to silence a snare of silence for the appellant. Without any direction to ignore these questions and answers, it is impossible to say that the verdict would necessarily have been the same. [At para. 66; emphasis added.] [28] In my view, however, these cases and others cited by the defence (including R. v. White 2011 SCC 13 at para. 168 and R. v. Poirier (2000) 146 C.C.C. (3d) 436 at 442-4) do not assist Mr. Cliff. The questions addressed to him in cross-examination by the Crown were not aimed at the fact  he had remained silent in any interaction with the police or failed to disclose some aspect of his defence; rather, the Crown was attacking the credibility of his testimony that he had loved Ms. Christopherson; that he had run away from the apartment because he did not think he could do anything; that he would “do anything” to co-operate with the police; and that being known as a rat was not important to him given that two people had been killed. The Crown was not suggesting that Mr. Cliff had a duty to co-operate with them, but that his testimony to the effect that he would help the police if he could, was not believable, given his flight from the scene of the attacks, the fact he made no effort to call emergency services, the giving of a false name when he was arrested, and his refusal to name the friend he had called on after the murders. I do not regard the questions asked by Crown counsel in cross-examination of Mr. Cliff, or the admission of his testimony in response, as undermining his right to silence in any material way. His right to silence did not mean the Crown could not cross-examine him at trial on his testimony in chief. [29] I would not accede to this ground of appeal. ‘Anti-Vetrovec’ Warning? [30] Under this rubric, Mr. Narwal submits that since a Vetrovec warning was given to the jury concerning their use of Ms. Montgomery’s evidence, and the appellant was, like her, a drug dealer and otherwise unsavoury character, the trial judge should have told the jury that they should not , or need not, look for corroboration of Mr. Cliff’s evidence before believing him. Instead, as we have seen (see para. 19 above), the judge told the jury to approach Mr. Cliff’s evidence in the same way as the evidence of any other witness and that they should not use evidence of his illegal conduct to infer that he likely committed the murders. Near the beginning of his charge, the judge had also given the usual W.(D.) warning concerning the matter of credibility in relation to Mr. Cliff’s testimony. The defence contends the jury should have been warned specifically, however, that corroboration was not required with respect to Mr. Cliff’s evidence in order to raise a reasonable doubt. [31] Counsel were unable to refer us to any case in which a warning of this kind has been required or even requested. We were referred to the decision of the Ontario Court of Appeal in R. v. Chenier and Farley (2006) 205 C.C.C. (3d) 333, which concerned an alleged murder conspiracy on the part of the two accused. The Crown’s case relied largely on the evidence of one Boisclair, one of the alleged co‑conspirators, and to a lesser extent the testimony of one Moore. Boisclair testified about several abortive plans to kill the deceased and about the murder itself, which he said Chenier had arranged to be carried out by Boisclair and Farley. He testified that Farley had shot the deceased with a gun provided by Chenier and that he, Boisclair, drove the get-away car. Boisclair had made a deal with the Crown under which he was permitted to plead guilty to manslaughter in return for his testimony against Chenier and Farley. Neither of those men testified at trial, but the defence position was that it was Boisclair who alone had committed the murder and that he had fabricated his evidence. [32] In his charge in Chenier , the trial judge told the jury that in weighing the testimony of Boisclair and Moore, they should “look for whatever you feel tends to confirm the reliability and truth of their accounts before deciding what of their evidence to accept.” (At 349.) This warning was found to be inadequate for a number of reasons. In the words of Mr. Justice Blair: ... First, while the trial judge instructed the jurors to be “very careful” about accepting the evidence of Boisclair and Moore without other confirmatory evidence, he did not make it clear - expressly or by implication - that it was “dangerous” to convict on the basis of their evidence alone in the circumstances of this case. Secondly, the trial judge failed to properly explain the concept of confirmatory evidence in the context of a Vetrovec warning. Finally, the trial judge's instruction that Boisclair's plea of guilty to manslaughter was “of no evidential value” - although correct in the narrow context in which it was given - may well have misled the jury into giving less weight to the extent of the benefit that Boisclair and Moore received through their plea bargain than should have been the case. [At 347-8.] [33] Another successful ground of appeal in Chenier arose from the fact that the trial judge gave a Vetrovec warning concerning the evidence of one Gagnon, who was Boisclair’s father. He was called by the defence to support the assertion that it was Boisclair who had killed the deceased because he, Boisclair, had owed money to the deceased. Regarding Gagnon’s evidence, the trial judge told the jury: I would give you the same caution about Andy [Gagnon], who took the stand near the end of the trial, Boisclair's father . His serious criminal and antisocial background and dysfunctional early life and his time spent in prison and possible interest in the outcome of the case is also cause for giving his evidence most careful scrutiny before deciding whether to place any reliance and if so, what amount of reliance, upon that evidence. [Emphasis added.] This was followed by a W.(D.) -like instruction in relation to Gagnon’s testimony, including the following: However, when you consider the evidence of Andy Gagnon, called by the defence to support the suggestion that it was Boisclair who may have killed Earl Joe because he had become indebted to him and as Gagnon said, had got into “deep shit”, you will not be asked or called on to decide whether you believe Gagnon beyond a reasonable doubt but only whether that evidence raises a reasonable doubt in your mind whether it was Farley who shot Earl Joe or indeed, André Boisclair as Mr. Murphy suggests and as I think was the obvious inference to be taken from Andy Gagnon's testimony before you. [Emphasis added.] [34] The Court of Appeal rejected the Crown’s argument that the impact of any Vetrovec direction with respect to Gagnon had been “neutralized” by the W.(D.) instruction. Again in the words of Blair J.A.: ... The rationale behind the principle that a Vetrovec warning is not to be given in connection with defence evidence is that the instruction to look for confirmatory/corroborative evidence impermissibly transfers a burden to the accused and is contrary to the requirements of W.(D.) . Defence evidence need only raise a reasonable doubt . In spite of this relationship between Vetrovec and W.(D.) in the context of defence evidence, however, the purpose of a Vetrovec warning and the purpose of a W.(D.) instruction are quite different. The former is designed to help equip the jury to assess the reliability of, and the weight to be given to, the testimony of a disreputable or unsavoury witness called to advance the Crown's case. The latter is designed to help equip the jury to assess whether the Crown has met its onus of proving the case beyond a reasonable doubt on all of the evidence, once the reliability or non-reliability of the defence evidence has been determined. Thus, where the charge goes beyond what is permissible commentary on the credibility of an unsavoury defence witness and directly or implicitly instructs the jury to find independent confirmation of the witness’ testimony, it is unlikely that coupling such a direction with a specific W.(D.) -like directive will mitigate the erroneous Vetrovec warning respecting the defence witness. Such was the case here. [At 353-4; emphasis added.] Ultimately, the appeal was allowed and a new trial ordered. [35] The Court in Chenier did not refer to an earlier decision of the Ontario Court of Appeal, R. v. Oliver and Morrison (2005) 194 C.C.C. (3d) 92. The accused in that case were charged jointly with the second degree murder of a Mr. Pace. The theory of the Crown was that the two accused had accosted and beaten Pace and were guilty of murder as co-perpetrators or as aiders and abetters. Oliver did not testify, but Morrison did. He testified that Oliver and Pace had gotten into a fight which Morrison had been unable to break up and that he, Morrison, had left the scene. The fight between Oliver and Pace had continued. Both Oliver and Morrison were convicted of second degree murder. [36] One of the grounds of appeal arose out of the following instruction given to the jury: Subject to any specific contrary instructions that I may give you, you may consider the testimony of Mr. Morrison to help you decide the case of Mr. Morrison and of Mr. Oliver. You do not consider that testimony only to help you decide the case of Mr. Morrison. I would add this caution. Mr. Morrison has given testimony that tends to show that only Mr. Oliver was involved in any assault on Mr. Pace. You should consider that testimony with particular care because he may have been more concerned about protecting himself than about telling you the truth. Bear that in mind when you decide how much or little you can believe of or rely on what Mr. Morrison told you about Mr. Oliver's involvement in deciding this case. [At 107.] [37] The defence argued that this “caution” was “akin to a Vetrovec warning”, which the Court of Appeal agreed is “inappropriate in respect of any defence witness much less the accused”. The Crown emphasized that the caution was not a Vetrovec warning but had been directed “at the jury’s potential use of Morrison’s evidence to implicate Oliver [and that] the ‘caution’ protected Oliver’s fair trial right without compromising Morrison’s equivalent right to a fair trial.” (At 107; my emphasis.) [38] Mr. Justice Doherty for the Court of Appeal ultimately agreed with the Crown on this point. He ruled that the instruction had achieved the “appropriate balance”: ... The trial judge told the jury that his "caution" should be borne in mind when considering Morrison's evidence as it applied to Oliver's involvement in the homicide. He immediately followed this "caution" with the classic reasonable doubt instruction from R. v. W.(D.) , 63 C.C.C. (3d) 397 (S.C.C.). That instruction made it clear to the jury that when considering Morrison's evidence as it related to the case against Morrison, the jury was required to acquit if that evidence alone, or in combination with other evidence, left them with a reasonable doubt. [At 108.] He went on to observe that: The second point I would make is this. Where a trial judge determines that the fair trial rights of a co-accused require a "caution" with respect to the testimony of the other accused, the trial judge should expressly tell the jury that the caution applies only to the case against the co-accused and has no application when considering the case against the accused who has testified. While I am satisfied that this instruction had that effect, a more express limitation of the "caution" would have been preferable. [At 109.] [39] Chenier , then, involved the giving of an erroneous Vetrovec warning, while Oliver involved a warning given correctly concerning an alleged co-conspirator’s testimony which the Court found would not, given the W.(D.) warning, have been misused by the jury. Neither case stands for the proposition that where a Vetrovec warning is properly given, the trial judge must, or should, caution the jury against extending it beyond its clear boundaries. Oliver indicates that a W.(D.) instruction can operate to ‘neutralize’ any possible misunderstanding of a specific caution, and I believe the same reasoning applies here. If it were otherwise, the consequences would be far-reaching: in addition to giving the usual proper cautions, trial judges would be obliged to assume that their instructions would be misapplied and would have to warn against applying the cautions to other circumstances. As stated by Charron J. for the majority in R. v. Griffin 2009 SCC 28: To make too much of the risk that the jury might misuse evidence is contrary to established principles of law regarding jury trials. As Côté J.A. aptly noted, juries must be trusted to have the requisite intelligence to perform their duties in accordance with the instructions given to them by the trial judge. [At para. 72.] In my view, only a real risk of prejudice to an accused could justify requiring trial judges to provide a caution of the kind sought here by Mr. Cliff. [40] In my opinion, no such risk existed here. The jury was told that it should consider the appellant’s evidence just like that of any other witness; that Mr. Cliff’s “disreputable or even illegal” conduct after the murders should not be weighed in determining his guilt; and that even if they did not know whom to believe, they must acquit if they were left with a reasonable doubt as to his guilt. It was clear from the charge where the onus lay at all times and that as long as the jury was left with a reasonable doubt, they could not convict. [41] I would not accede to the second ground of appeal. Intoxication [42] Finally, Mr. Narwal contends that despite the agreement of defence counsel at trial to the contrary, the trial judge should have instructed the jury on intoxication or alternatively, should have instructed that the evidence of drug and alcohol consumption was “relevant to the accused’s intent” for murder. In counsel’s submission, by declining to do so in the absence of an “air of reality” to the intoxication defence, the trial judge effectively required Mr. Cliff to prove that he had been intoxicated to the degree required to establish the defence of intoxication. [43] It is true, of course, that the position taken by defence counsel at trial on the relevance of intoxication cannot be determinative of this issue. On the other hand, Mr. Cliff’s version of events was that Ms. Christopherson and Mr. Gawley had been killed by three intruders, not by himself in an intoxicated state. Thus counsel for Mr. Cliff at trial had to make a tactical decision whether to assert an intoxication defence as an alternative to the outright denial that he had killed the deceased. The risks to the accused of doing so before a jury would have been substantial; counsel chose, or was instructed, not to run it. Furthermore, Mr. Cliff’s evidence regarding his consumption of alcohol prior to the murders was vague and at best amounted to a statement that he was “kind of drunk”. As the Crown points out, Mr. Cliff was not asked any questions in chief whether he was still feeling the effects of alcohol consumption when he was allegedly awoken at 8:00 a.m. by the assailants. Even on his own testimony, he seemed to be well in control of his actions at the time, exhibiting a single-minded determination to avoid any contact with police or emergency services. [44] In my view, these circumstances preclude any evidentiary basis for a defence of intoxication which if believed would have allowed a reasonable jury, properly instructed, to acquit on the basis of lack of capacity or intent. (See R. v. Lemky [1996] 1 S.C.R. 757 at 767.) This is an issue that trial judges are well placed to determine, given that they have seen the evidence unfold, including in this case the testimony of the accused. The following observations of Chief Justice McLachlin in Lemky seem to apply in this case: ... the evidence, considered most favourably for the accused, falls short of supporting such an inference. His blood alcohol level shortly after the shooting was only slightly over the legal limit for driving an automobile. He carried out purposeful actions both before and after the shooting, actions which ranged from ordering drinks at the dance beforehand to calling his mother and the police immediately afterward. His conduct before and after the shooting demonstrated an awareness of the consequences of what he was doing. This demonstrates that he in fact foresaw the consequences of what he was doing immediately before and after the shooting. [At para. 20.] [45] In the result, I would not accede to this third ground of appeal. [46] In light of my conclusions on the other two grounds of appeal, I would dismiss the appeal, with thanks to both counsel for their able submissions. “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Mr. Justice Lowry” I AGREE: “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Broad v. Pavlis, 2015 BCCA 20 Date: 20150115 Docket: CA42149 Between: Carmen Elizabeth Broad Respondent (Claimant) And Tyler Joseph Pavlis Appellant (Respondent) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Levine The Honourable Mr. Justice Goepel On appeal from: An order of the Supreme Court of British Columbia, dated August 12, 2014 ( Broad v. Pavlis , 2014 BCSC 1496, Kelowna Docket 100623). Counsel for the Appellant: J.A. Rose, Q.C. Counsel for the Respondent: D.M. King Place and Date of Hearing: Vancouver, British Columbia December 11, 2014 Place and Date of Judgment: Vancouver, British Columbia January 15, 2015 Written Reasons by: The Honourable Madam Justice Levine Concurred in by: The Honourable Madam Justice Saunders The Honourable Mr. Justice Goepel Summary: Appeal from an order that the B.C. Supreme Court has jurisdiction in a family law proceeding. The respondent, who lives in B.C., brought the proceeding for orders for child and spousal support under the Divorce Act, and to set aside an equalization payment made under a settlement agreement on the ground that the appellant fraudulently failed to disclose the true value of his business. The parties were divorced in 2006 in divorce proceedings brought in Alberta, and the settlement agreement was made in Alberta and is governed by Alberta law. The appellant’s primary residence is in Alberta. He applied for an order staying the B.C. proceeding on the ground that the B.C. Supreme Court lacked jurisdiction, and if it has jurisdiction, it should decline to exercise it on the basis that an Alberta court is the more appropriate forum. The chambers judge held that the B.C. Supreme Court has territorial competence under s. 3(d) of the Court Jurisdiction and Proceedings Transfer Act, R.S.B.C. 2003, c. 28, because the appellant is ordinarily resident in B.C. He has a home in West Kelowna, B.C. where he spends 30 per cent of his time during vacations and seeing his children. The chambers judge refused to decline jurisdiction, finding that a B.C. court is the more appropriate forum. Held: appeal dismissed. The chambers judge did not err in finding the appellant was ordinarily resident in B.C. A person may be ordinarily resident in more than one place. The appellant has a home in which he regularly, normally and customarily lives in B.C. Nor did the chambers judge err in exercising his discretion to refuse jurisdiction, having considered all of the factors in s. 11(2) of the CJPTA. The B.C. Supreme Court has jurisdiction over the claims for child and spousal support under the Divorce Act. The B.C. Supreme Court can apply Alberta law with respect to the property matters to the extent that is necessary. The expense and inconvenience to the respondent would be greater than that of the appellant if there were proceedings in two jurisdictions. Reasons for Judgment of the Honourable Madam Justice Levine: Introduction [1] The appellant, Tyler Joseph Pavlis, appeals from an order that the British Columbia Supreme Court has jurisdiction to hear the family law claims of the respondent, Carmen Elizabeth Broad, for child support, spousal support and division of family property. The chambers judge found the B.C. Supreme Court has jurisdiction because the appellant is ordinarily resident in B.C., and the B.C. court is the more appropriate forum. [2] In my opinion, the appellant has not shown that the chambers judge made any palpable and overriding error in finding the appellant was ordinarily resident in B.C., nor made an error that would justify this Court interfering with the exercise of his discretion in refusing to decline jurisdiction. [3] It follows that I would dismiss the appeal. Background Facts [4] In 1996, the parties began co-habitating in Beaverlodge, Alberta. They married on August 14, 1999, separated in November 2003, entered into a settlement agreement in June 2006, and were granted a divorce on August 21, 2006. The parties have three children currently aged 18, 17 and 13. [5] In 2005, the respondent and the three children moved to Vernon, B.C. The respondent continues to reside in Vernon with the youngest and oldest children (in January 2014, the middle child moved to Beaverlodge to live with the appellant). The appellant continues to reside in Beaverlodge. The chambers judge found that he spends approximately 30 per cent of his time at a vacation home in West Kelowna, B.C., which was the basis for the finding that he is ordinarily resident in B.C. [6] The parties’ matrimonial dispute was the subject of family law proceedings in the Alberta Court of Queen’s Bench commenced by the respondent in Grande Prairie, Alberta in November 2003. Both parties were represented by counsel. [7] In the settlement agreement entered into in June 2006, the respondent accepted a payment of $1 million “[t]o effect an equal division of the matrimonial property acceptable to the parties” (settlement agreement, s. 6.1). This included her claim to Domart Energy Services Ltd., an Alberta-registered company started by the appellant and his brother in the mid-1990s. The respondent waived her claim to spousal support, and the appellant agreed to pay child support in the amount of $6,500 per month as well as his proportionate share of expenses under s. 7 of the Federal Child Support Guidelines , SOR/97-175. [8] An order of the Alberta Court of Queen’s Bench granted the divorce on August 21, 2006, and ordered the terms of child support. It also required the parties to exchange income tax information annually. The parties only exchanged this information in 2011. [9] In February 2007, approximately seven months after the parties entered into the settlement agreement, the appellant and his brother received an offer of $25.5 million to purchase the assets of Domart Energy. The sale completed in 2007. [10] The respondent commenced this proceeding in B.C. Supreme Court on November 5, 2013. She claims that the appellant fraudulently failed to disclose the true value of Domart Energy at the time of the settlement agreement. She also seeks spousal support and increased child support. [11] The appellant takes the position that the B.C. Supreme Court lacks jurisdiction over the matters in dispute, in particular relating to the value of Domart Energy, and if it has jurisdiction, it should decline to exercise it on the basis that an Alberta court is the more appropriate forum to hear the proceeding. Statutory Provisions [12] The issues on this appeal turn on the interpretation and application of ss. 3 and 11 of the Court Jurisdiction and Proceedings Transfer Act , S.B.C 2003, c. 28, the relevant parts of which provide: 3. A court has territorial competence in a proceeding that is brought against a person only if (d) that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or (e) there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based. 11 (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding. (2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including (a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum, (b) the law to be applied to issues in the proceeding, (c) the desirability of avoiding multiplicity of legal proceedings, (d) the desirability of avoiding conflicting decisions in different courts, (e) the enforcement of an eventual judgment, and (f) the fair and efficient working of the Canadian legal system as a whole. [13] The chambers judge also referred to s. 12 of CJPTA , which provides: 12 If there is a conflict or inconsistency between this Part and another Act of British Columbia or of Canada that expressly (a) confers jurisdiction or territorial competence on a court, or (b) denies jurisdiction or territorial competence to a court, that other Act prevails. Chambers Judge’s Reasons [14] A case management judge ordered that the jurisdictional issue be heard before any further steps were taken in the proceeding. [15] In an order dated August 12, 2014, the chambers judge declared that the B.C. Supreme Court has territorial competence in this matter, and dismissed the appellant’s application that the court decline to exercise its jurisdiction. [16] The chambers judge reviewed the relevant provisions of the CJPTA . He concluded that the B.C. Supreme Court has territorial competence under s. 3(d) of the CJPTA because the appellant has been ordinarily resident in B.C. since the proceedings were commenced, based on the “significant amount of time” spent at his vacation home in West Kelowna (at para. 50). He found that a person may be ordinarily resident in more than one jurisdiction (at para. 51). [17] The chambers judge found that for the purpose of s. 3(e) of the CJPTA , there was no real and substantial connection between B.C. and the facts on which the proceeding was based (at para. 54). He noted that the facts relate to the valuation of Domart Energy, an Alberta business (at para. 55). The respondent alleged that the West Kelowna vacation home was purchased with proceeds from the sale of Domart Energy, but the chambers judge noted that she was not making an in rem claim against the appellant’s property in B.C. (at paras. 56 and 59). This finding is not in issue on the appeal. [18] The chambers judge turned to consider whether a B.C. or Alberta court is the more appropriate forum to hear this proceeding, applying s. 11(2) of the CJPTA . He specifically identified three factors why the B.C. Supreme Court should not decline jurisdiction: taking jurisdiction would enhance the fair and efficient working of the Canadian legal system (s. 11(2)(f)) (at para. 65); refusing jurisdiction would ensure a multiplicity of proceedings as the spousal and child support matters are properly raised in B.C. (s. 11(2)(c)) (at para. 66); and exercising jurisdiction avoids conflicting decisions from different courts (s. 11(2)(d)) (at para. 67). [19] He also considered the other factors set out in s. 11(2). He agreed with the respondent that the comparative convenience and expense for the parties militates in favour of the action continuing in B.C. (s. 11(2)(a)) (at paras. 62-63). He found that enforcing a B.C. judgment would not be an issue (s. 11(2)(e)) (at para. 69); the inconvenience of having to bring in Alberta witnesses did not outweigh the other factors (s. 11(2)(a)) (at para. 70); and although the focus of the dispute will be the Domart Energy issue, to the extent that the determination of the issue of whether the appellant disclosed the information he was required to revolves around Alberta law, the B.C. Supreme Court is capable of applying it (s. 11(2)(b)) (at para. 72). [20] The chambers judge noted further that the B.C. Supreme Court has jurisdiction over the respondent’s claims for child and spousal support under the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.). Under s. 12 of the CJPTA , the Divorce Act prevails (at para. 73). He expressed the view that “the most important aspect of this proceeding when it goes to trial is ensuring adequate spousal and child support” (at para. 73). Ordinarily Resident [21] The appellant claims the chambers judge erred in finding he was ordinarily resident in B.C. for the purpose of s. 3(d) of the CJPTA . [22] The seminal authority on the meaning of “ordinarily resident” is the decision of the Supreme Court of Canada in Thomson v. Minister of National Revenue , [1946] S.C.R. 209. In that case, four of five justices found Mr. Thomson was ordinarily resident in Canada for tax purposes, based on the time he spent and his “settled life” at a home in New Brunswick, while at the same time he kept a home in North Carolina in the United States. [23] The appellant says the chambers judge failed to consider whether the time he spent in B.C. was consistent with regularly, normally or customarily living in the place, or whether it was consistent with residing in a temporary place of abode. He says the trial judge referred only to the 30 per cent of his time that he spends in his West Kelowna home, but failed to analyze the manner in which he spends that time, which he says is primarily for vacations. [24] The appellant relies on the definition of “ordinarily resident” articulated in Thomson by Justice Estey (at 231-232) that a person is ordinarily resident in: the place where in the settled routine of his life he regularly, normally or customarily lives. One “sojourns” at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. [25] He also cites Justice Rand’s statement (at 224): The expression “ordinarily resident” carries a restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to a question of its application. [26] The chambers judge applied Justice Estey’s definition of ordinary residence as adopted in Blazek v. Blazek , 2009 BCSC 1693 at paras. 31-35, where Madam Justice Gropper determined whether a person was ordinarily resident for the purpose of s. 3(d) of the CJPTA . Madam Justice Gropper applied a broad and liberal interpretation to the concept of ordinary residence, noting that Estey J. said, in addition to the statement quoted above: “It is well established that a person may have more than one residence”, and that it is not a matter of counting the days spent in the jurisdiction (at 232). [27] The respondent supports the chambers judge’s decision factually by filing an application to adduce fresh evidence, and legally by citing the recent decision in Knowles v. Lindstrom , 2014 ONCA 116, where the Ontario Court of Appeal found, also relying on the principle articulated in Thomson that a person can be ordinarily resident in more than one place, that Ontario had jurisdiction in family law proceedings for a couple that lived in both Florida and Ontario. [28] The respondent’s fresh evidence is the appellant’s Form 8 Financial Statement, which was filed on October 30, 2014, and provided to her counsel on November 7, 2014. The respondent argues that this evidence bolsters the chambers judge’s conclusion that the appellant is ordinarily resident in B.C. by demonstrating the extent to which his income is derived from and his business activities are carried on in B.C. [29] The Form 8 disclosure includes information about two B.C. companies owned by the appellant from which he receives income, and that he owns land in B.C. It also establishes that the West Kelowna property is valued at more than $2 million, which is more than twice the value of the appellant’s primary residence in Beaverlodge. [30] The respondent submits that the fresh evidence is admissible pursuant to the test from Palmer v. The Queen , [1980] 1 S.C.R. 759: it was not discoverable by reasonable diligence before the chambers application because although her counsel had requested the information, it was not provided; it is credible because it was prepared for use in litigation by the appellant; it bolsters the conclusion of the chambers judge on the appellant’s residency; and it assists this Court in affirming that conclusion. [31] While the fresh evidence meets the due diligence and credibility tests, it does not significantly buttress the chambers judge’s conclusion on the appellant’s ordinary residence. At most, it confirms that the appellant maintains multiple residences and that he uses Beaverlodge as his primary residence. The relative values of his properties is not determinative of ordinary residence; nor does the fact that the appellant derives income from B.C. companies support a finding that he is ordinarily resident in the absence of further information. [32] I would not admit the fresh evidence. [33] In Knowles , the Ontario Court of Appeal applied Thomson in finding the respondent to a family law proceeding was “ordinarily resident” in Ontario. The claimant (a Canadian citizen) and the respondent (an American citizen) lived in a common law relationship in Florida from 2002 to 2012. At the end of the relationship, the claimant returned to Ontario, where she lived and worked prior to 2002, and applied for spousal support pursuant to the Family Law Act , R.S.O. 1990, c. F.3, and a declaration of beneficial ownership of two Muskoka-area properties purchased by the respondent or his company during their relationship. The parties spent between 40 to 60 per cent of their time in Muskoka after the purchase of the first property in 2007. [34] In finding jurisdiction, Mr. Justice Doherty, for a unanimous court, relied in part on the presumptive connecting factor of ordinary residence (at para. 27). Like the chambers judge in this proceeding, Doherty J.A. noted the conclusion in Thomson that a person can be ordinarily resident in more than one place, and found that persuasive in light of the type of lifestyle lived by the claimant and the respondent (at paras. 31-32). Specifically, Doherty J.A. referenced Estey J.’s statement in Thomson that “[i]t would appear that the appellant was maintaining more than one residence to which he could and did come and go as he pleased” (at 231). Mr. Justice Doherty cited with approval the chambers judge’s conclusion that the couple resided in Ontario “on a regular basis for part of every year, for months at a stretch, for more than five years. That amounts to ‘ordinary residence’” (at para. 31). [35] Knowles draws on Thomson to find that a type of lifestyle may be more conducive to finding a person ordinarily resident in more than one location. This lifestyle is one of a person with significant financial means who maintains residences in more than one place as part of their normal course of living. [36] This appears to mirror, albeit on a smaller financial scale, the circumstances in these proceedings. There is no dispute that the appellant is ordinarily resident in Alberta. T he appellant also has a residence in B.C. in which “he regularly, normally and customarily lives” during relatively lengthy vacation periods. It is not a residence “where he unusually, casually or intermittently visits or stays”. It is part of the “settled routine of his life” to spend months of each year at the West Kelowna house. [37] Thus, it was open to the chambers judge to conclude that the appellant is ordinarily resident in B.C. given that he maintains and regularly returns to the West Kelowna home as a place for vacation and family time. [38] The chambers judge applied the proper legal test in determining whether the appellant is ordinarily resident in B.C. The application of that test to the facts is a question of fact which is reviewable by this Court only if the judge made a palpable and overriding error. There is no such error. [39] I would not accede to this ground of appeal. The Appropriate Forum [40] The appellant claims the chambers judge erred in not finding that Alberta was a more appropriate forum than B.C. for the hearing of this proceeding. He argues that the chamber’s judge’s statement that “the heart of the dispute is the sale of Domart Energy” (at para. 18), and his finding that there is no real and substantial connection between B.C. and the facts on which the proceeding is based, required him to conclude as a matter of comity that a B.C. court should not apply Alberta law to, in effect, sit in judgment over proceedings that took place in Alberta. He also argues that jurisdiction over the support claims under the Divorce Act should not lead to a conclusion that the B.C. court has jurisdiction over all of the claims. [41] It will be helpful at this point to set out some of the applicable legal considerations relating to the respondent’s claims in this proceeding. [42] First, it is not in dispute that the B.C. Supreme Court has jurisdiction under the Divorce Act over the claims for child and spousal support. [43] In 2006, the Alberta Court of Queen’s Bench ordered that the parties were divorced and the terms of child support. The order referred to the parties’ agreement with respect to spousal support in the introductory recitals: “AND UPON the Court being advised that the Plaintiff and the Defendant have agreed to a mutual waiver of spousal support”. No order for spousal support was made. [44] The respondent’s claims for child and spousal support are therefore a claim for a variation of the child support order and for an originating order for spousal support. B.C. has jurisdiction over both claims under ss. 4 and 5 of the Divorce Act , both of which provide: (1)        A Court in a province has jurisdiction to hear and determine a corollary relief [s. 4] [variation [s. 5]] proceeding if (a)        either former spouse is ordinarily resident in the province at the commencement of the proceeding; or (b)        both former spouses accept the jurisdiction of the court. [45] As the chambers judge pointed out, s. 12 of the CJPTA gives priority to the Divorce Act over jurisdiction (at para. 73). Thus, a B.C. court cannot order that an Alberta court is the more appropriate forum to hear the support claims. Having commenced the proceeding in B.C., unless the respondent accepted the jurisdiction of an Alberta court to hear the support claims, a decision by a B.C. court that an Alberta court is the more appropriate forum for the Domart Energy issue inevitably results in proceedings in both jurisdictions. [46] Secondly, the validity of the settlement agreement is a matter of Alberta law. The relevant parts of the settlement agreement provide: 23.       MATERIAL NON DISCLOSURE 23.1     The Husband and Wife each acknowledge that the other has a general knowledge of the other’s financial affairs. They have both been fully advised as to their entitlement to a full disclosure and valuation of each other’s assets, liabilities and income. 23.2     If either party, inadvertently or by design, conceals, neglects to reveal, alters or distorts any material information or in way [ sic ] misleads the other party, either directly or by any person acting on his or her behalf, and giving information which is material to these covenants, the provisions of these agreements shall be vacated and such particulars as may permit the other party to obtain a proper distribution of the property or rights as may be effected. 24.       GOVERNING LAW 24.1     This Agreement shall be construed and governed in accordance with the Laws of the Province of Alberta. [47] The respondent seeks, in part, to set aside the terms of the settlement agreement in respect of Domart Energy, which include the equalization payment of $1 million and her waiver of spousal support. Her acceptance of those terms of the settlement agreement was based, she says, on the appellant’s failure to disclose the true value of the business. She points to the terms of s. 23.2 of the settlement agreement. Under s. 24.1 of the settlement agreement, its interpretation is governed by Alberta law. [48] In her amended notice of family claim in this proceeding, the respondent relies on provisions of the Family Law Act , S.B.C. 2011, c. 25, the Matrimonial Property Act , R.S.A. 2000, c. M-8, and claims under common law including unconscionability and unjust enrichment. [49] Thirdly, there is no evidence that the Alberta Court of Queen’s Bench made any decisions or orders concerning the settlement agreement. As noted above, the order made in the divorce proceeding dealt with child support, and simply recited the respondent’s waiver of spousal support. [50] The chambers judge was clearly alive to these applicable legal considerations in his consideration of whether an Alberta court was a more appropriate forum. He recognized that refusing jurisdiction over the matrimonial property issues arising from Domart Energy and the settlement agreement would lead to a multiplicity of proceedings because B.C. has jurisdiction over the support claims under the Divorce Act (at paras. 66 and 73). He was aware that the issues of support and the terms of the settlement agreement are intertwined, giving rise to the possibility of conflicting decisions from different courts if the proceeding was divided between B.C. and Alberta (at para. 67). [51] The chambers judge acknowledged that the issue of the appellant’s disclosure revolves to some extent around Alberta law, and concluded that the B.C. Supreme Court is capable of applying it (at para. 72). Much of the relevant law is not statutory but based on common law principles, which are common to both provinces. The legal issues are not complex. While expert evidence on Alberta law may be necessary and witnesses may have to come from Alberta, the chambers judge considered these matters and concluded that they were not significant compared to the factors favouring B.C. (at paras. 70-72). [52] The chambers judge also considered the parties’ relative circumstances in concluding that the comparative convenience and expense for the parties militates in favour of B.C. (at paras. 62-63). Declining jurisdiction over the Domart Energy and settlement agreement issues would result in the respondent having to bring proceedings in two jurisdictions. The inconvenience and expense would clearly be greater for her than for the appellant. He has a home in B.C. in which he can reside whenever necessary to participate in the proceeding, while she would be required to travel and reside in Alberta. His means to support the litigation are clearly greater than hers. [53] This Court has held that a decision as to the appropriate forum under s. 11 of the CJPTA is a discretionary one, which “ ought not to be interfered with unless it is shown that [the judge] took into account irrelevant considerations, failed to take into account mandatory considerations, or was otherwise clearly wrong in the exercise of his discretion”: see Olney v. Rainville , 2009 BCCA 380 at para. 39. [54] In my view, there is no basis to find that the chambers judge made any error with which this Court would interfere. [55] I would not accede to this ground of appeal. Conclusion [56] The appellant has not shown that the chambers judge made any reviewable error in determining that the appellant is “ordinarily resident” in B.C., and that a B.C. court is the more appropriate forum to hear this proceeding. [57] I would refuse the application to adduce fresh evidence and dismiss the appeal. “The Honourable Madam Justice Levine” I agree: “The Honourable Madam Justice Saunders” I agree: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Cornish, 2015 BCCA 14 Date: 20150115 Docket: CA042277 Between: Regina Respondent And Allan John Cornish Appellant Before: The Honourable Madam Justice Newbury The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein On appeal from:  An order of the Provincial Court of British Columbia, dated March 13, 2012 ( R. v. Cornish , Surrey Docket No. 188831-3C). Counsel for the Appellant: D.J. Song Counsel for the Respondent: E. Campbell Joint Statement filed: January 6, 2015 Place and Date of Judgment in Writing: Vancouver, British Columbia January 15, 2015 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The appellant pleaded guilty on January 23, 2012 to six offences, including three robberies and using imitation firearms. He was sentenced on March 13, 2012 to three years’ imprisonment on the robberies, 806 days consecutive on Count 4 (use of an imitation firearm), and three years’ consecutive on the remaining two charges of using an imitation firearm. At the time of sentencing, he had been in custody for 289 days, for which he received credit on a 1:1 basis. [2] The record indicates that upon learning of the Supreme Court of Canada’s decision in R. v. Summers 2014 SCC 26, he pursued his wish to appeal his sentence. [3] The Crown has advised that it does not oppose the granting of credit at a rate of 1:1.5 and that the appellant is not disqualified from such credit under s. 719(3.1). [4] In these circumstances, I would grant an extension of time for the filing of this appeal, grant leave to appeal, and allow the appeal to the extent only that the sentence on Count 4 be reduced to 661 days, with credit granted of 434 days for time spent in custody prior to sentencing. “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice Stromberg-Stein”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Lundy, 2015 BCCA 11 Date: 20150115 Docket: CA042216 Between: Regina Respondent And Keith Christopher Lundy Appellant Corrected Judgment: Paragraph 4(a) of the judgment was corrected on January 19, 2015. Before: The Honourable Madam Justice Newbury The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein On appeal from:  An order of the Provincial Court of British Columbia, dated May 7, 2012 ( R. v. Lundy , Prince George Docket Nos. 35046-2-C; 35108-2-C; 35187-1). Counsel for the Appellant: G. Barriere Counsel for the Respondent: E. Campbell Joint Statement filed: December 19, 2014 Place and Date of Judgment in Writing: Vancouver, British Columbia January 15, 2015 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The appellant was sentenced on May 7, 2012 for several offences as follows: Information 35046: Count 2 – possession of stolen property on July 31, 2011 – 1 year Count 5 – driving while prohibited on July 31, 2011 – 1 year concurrent Count 6 – possession of prohibited or restricted firearm on July 31, 2011 – 3 years concurrent Information 35108 Count 2 – flight from police on October 6, 2011 – 518 days imprisonment in addition to 212 days credit for pre-sentence custody, consecutive to count 6 of Information 35046 Count 3 – assault with a weapon on October 6, 2011 – 518 days concurrent in addition to 212 days credit, consecutive to count 6 of Information 35046 Count 9 – possession of firearm without licence on October 6, 2011 – 1 year concurrent Count 15 – occupying vehicle with firearm on October 6, 2011 – 1 year concurrent Count 19 – possession of firearm by commission of offence on October 6, 2011 – 1 year concurrent Count 20 – possession of firearm by commission of offence on October 6, 2011 – 1 year concurrent Information 35187 Count 1 – theft under on September 12, 2011 – 60 days concurrent He received credit on a 1:1 basis for 212 days in custody prior to sentencing. [2] The record indicates that upon learning of the Supreme Court of Canada’s decision in R. v. Summers 2014 SCC 26, the appellant moved promptly to pursue his wish to appeal the sentence. [3] The Crown has advised that it does not oppose the granting of credit at a rate of 1:1.5 and that the appellant is not disqualified from such credit under s. 719(3.1). [4] In these circumstances, I would grant an extension of time for the filing of this appeal, grant leave to appeal, and allow the appeal to the extent of: (a)      substituting a six-month sentence on Count 5 of Information 35046 (i.e., the driving while prohibited charge); (b)      reducing the sentences on Counts 2 and 3 of Information 35108 to 412 days with credit of 318 days for pre-sentence custody. “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice Stromberg-Stein”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Vaillancourt, 2015 BCCA 13 Date: 20150115 Docket: CA042273 Between: Regina Respondent And Carlos Joseph Vaillancourt Appellant Before: The Honourable Madam Justice Newbury The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein On appeal from:  An order of the Provincial Court of British Columbia, dated October 9, 2013 ( R. v. Vaillancourt , Prince George Docket No. 194852-3-C). Counsel for the Appellant: G. Barriere Counsel for the Respondent: E. Campbell Joint Statement filed: December 19, 2014 Place and Date of Judgment in Writing: Vancouver, British Columbia January 15, 2015 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The appellant was convicted on July 27, 2012 and sentenced on October 9, 2013 for four charges of breaking and entering, to 23 months’ imprisonment on each charge, to be served concurrently, (after allowing for 13 months’ credit on a 1:1 basis for pre-sentence custody). [2] The record indicates that upon learning of the Supreme Court of Canada’s decision in R. v. Summers , 2014 SCC 26, he pursued his wish to appeal his sentence. [3] The Crown has advised that it does not oppose the granting of credit at a rate of 1:1.5 and that the appellant is not disqualified from such credit under s. 719(3.1). [4] In these circumstances, I would grant an extension of time for the filing of this appeal, grant leave to appeal, and allow the appeal to the extent that the (concurrent) sentences be reduced to 16 and one-half months, reflecting credit of 19 and one-half months for pre-sentence custody. “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice Stromberg-Stein”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Weinmeyer, 2015 BCCA 10 Date: 20150115 Docket: CA042160 Between: Regina Respondent And Dale Patrick Weinmeyer Appellant Restriction on publication :  A publication ban has been imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a victim, witness or undercover officer. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Newbury The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein On appeal from:  An order of the Provincial Court of British Columbia, dated November 20, 2013 ( R. v. Weinmeyer , Vancouver Docket No. 221278-2C). Counsel for the Appellant: C. Bridal Counsel for the Respondent: E. Campbell Joint Statement filed: December 30, 2014 Place and Date of Judgment in Writing: Vancouver, British Columbia January 15, 2015 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The appellant was convicted on January 30, 2013 after pleading guilty to using a restricted or prohibited firearm to commit robbery. He was sentenced on November 20, 2013 to three years’ imprisonment after receiving credit on a 1:1 basis for pre-sentence custody of 929 days. [2] The record indicates that upon learning of the Supreme Court of Canada’s decision in R. v. Summers , 2014 SCC 26, he pursued his wish to appeal his sentence. [3] The Crown has advised that it does not oppose the granting of credit at a rate of 1:1.5 and that the appellant is not disqualified from such credit under s. 719(3.1). [4] In these circumstances, I would grant an extension of time for the filing of this appeal, grant leave to appeal, and allow the appeal to the extent only that the sentence be reduced to two years and 66 days, reflecting credit of three years plus 299 days for pre-sentence custody. “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice Stromberg-Stein”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Wong, 2015 BCCA 12 Date: 20150115 Docket: CA042256 Between: Regina Respondent And Devan Markcus Wong Appellant Corrected Judgment: The cover page of the judgment was corrected on January 16, 2015. Before: The Honourable Madam Justice Newbury The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein On appeal from:  An order of the Supreme Court of British Columbia, dated June 26, 2013 ( R. v. Wong , Kelowna Docket No. 76442-3). Counsel for the Appellant: M. Poulsen Counsel for the Respondent: E. Campbell Joint Statement filed: January 5, 2015 Place and Date of Judgment in Writing: Vancouver, British Columbia January 15, 2015 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The appellant was convicted on March 18, 2013 and sentenced on June 26, 2103 as follows: Count 2 – robbery using a firearm – 6 years, 230 days Count 1 – unlawful confinement – 5 years concurrent Count 3 – disguising face – 1 year concurrent Count 6 – discharging firearm – 5 years concurrent He received credit on a 1:1 basis for 500 days. [2] The record indicates that upon learning of the Supreme Court of Canada’s decision in R. v. Summers 2014 SCC 26, the appellant moved promptly to pursue his wish to appeal the sentence. [3] The Crown has advised that it does not oppose the granting of credit at a rate of 1:1.5 and that the appellant is not disqualified from such credit under s. 719(3.1). [4] In these circumstances, I would grant an extension of time for the filing of this appeal, grant leave to appeal, and allow the appeal to the extent only that the sentence on Count 2 be reduced to five years, 345 days, with credit granted of two years and 20 days for pre-sentence custody. “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice Stromberg-Stein”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: British Columbia v. Burlington Resources Canada Ltd., 2015 BCCA 19 Date: 20150116 Docket: CA040742 Between: Her Majesty the Queen in Right of the Province of British Columbia Appellant (Defendant) And Burlington Resources Canada Ltd. Respondent (Plaintiff) Corrected Judgment:  the word “intangible” was corrected to read “tangible” in the second paragraph of the summary and in paragraph 57. Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Chiasson The Honourable Madam Justice Stromberg-Stein On appeal from:  An order of the Supreme Court of British Columbia, dated February 26, 2013 ( Burlington Resources Canada Ltd. v. British Columbia , 2013 BCSC 292, Vancouver Docket S090759). Counsel for the Appellant: D.R. Poore Counsel for the Respondent: D.W. Pangman Place and Date of Hearing: Vancouver, British Columbia October 20, 2014 Place and Date of Judgment: Vancouver, British Columbia January 16, 2015 Written Reasons by: The Honourable Mr. Justice Chiasson Concurred in by: The Honourable Mr. Justice Lowry The Honourable Madam Justice Stromberg-Stein Summary: The respondent Burlington Resources Canada Ltd. procured well cementing services from BJ Services Company Canada (“BJ Services”). BJ Services places cement in the “annulus” of wells, and once set, the cement becomes part of the realty. Following a tax audit, the appellant concluded that the materials associated with the cementing process were sold as tangible personal property to the respondent by BJ Services and attracted provincial sales tax (“PST”). The respondent objected to the assessment of PST, claiming that its contract with BJ Services was a contract of service and that it never had possession of the cementing materials, which lost their character as tangible personal property once they set and became affixed to the land. On appeal from the Minister’s decision, the chambers judge agreed with the respondent and set aside the assessments, holding that the cement materials remained under the control of BJ Services until the work was completed, at which point the materials were affixed to the land and title to them passed to the Crown, which owns the real property. The Crown appealed, submitting that the trial judge erred in her application of the burden of proof in tax appeals and in her characterization of the contractual relationship between the respondent and BJ Services. Held: the appeal is dismissed. The trial judge correctly stated that while the Crown is entitled to rely on assumptions of fact in tax cases and the burden of proof lies with the respondent, these assumptions may be “demolished”. Based on the evidence before her, she found that the Crown’s assumptions were demolished, and there was ample evidentiary support for her to do so. She was correct to set aside the assessments because the cementing material, the tangible personal property, did not pass to the respondent before it lost that character and became part of the realty. The Crown’s assumption to the contrary was based on a misconception of the initial auditor, who did not have and did not ask for the contractual documents. Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] This appeal concerns whether British Columbia provincial sales tax (“PST”) is payable arising out of the supply to the respondent by BJ Services Company Canada (“BJ Services”) of well cementing materials.  At issue is whether taxable material was sold to the respondent and the application of the rule that a taxpayer has the onus of disproving a taxing authority’s assumptions of fact that are the foundation of a tax assessment. Background [2] The respondent carries on the business of oil and gas exploration in British Columbia and elsewhere in Canada.  It contracts with BJ Services and other companies for the construction and service of its wells. [3] At issue in this case is the provision of well cementing and well stimulation services by BJ Services to the respondent.  BJ Services placed cement in the “annulus” of wells (the space between the outside of the casing and the well bore).  Once set, the cement acts as a barrier to protect the casing from corrosion and seals the well from fluids and gases that might otherwise escape to the atmosphere.  The process makes the well casing an immoveable part of the realty. [4] The Crown concluded that the materials associated with the cementing process were sold as tangible personal property to the respondent by BJ Services and attracted PST. [5] The respondent objected to the assessment of PST on the basis that its contract with BJ Services was a contract of service.  It contends it did not have possession of the cementing materials and they lost their character as tangible personal property once they set and became affixed to the land. [6] On appeal from the Minister’s decision, the chambers judge held that the cement materials remained under the control of BJ Services until the work was completed.  At that point, the materials were affixed to the land and title to them passed to the Crown which owns the real property. [7] The assessments were set aside. Reasons of the trial judge [8] The judge’s reasons are lengthy and thorough.  It was necessary for her to examine many aspects of well construction.  On appeal the focus is somewhat more limited.  I am grateful for the very full explanation provided by the judge, but will attempt to limit my reference to her reasons to those portions that are applicable to the issues on appeal. [9] The judge began by stating the issue and the positions of the parties: [7]        Are the contracts between [the respondent] and BJ Services properly characterised as service contracts to which the provision of materials was incidental, or are they contracts by which BJ Services sold materials to [the respondent]? [8]        The Crown submits that the contracts were time and materials contracts.  In other words, they are contracts for sale of the materials from BJ Services to [the respondent]. [9]        The Crown further submits that the form of the contracts is not determinative and that any transfer of tangible personal property (“TPP”) for consideration regardless of the form of contract is subject to PST. [10]      [The respondent] states that the essence of the contracts between it and BJ Services is determinative of the correct characterisation as service contracts and not contracts for the sale of goods. [11]      [The respondent] further states that if this is not conclusive, pursuant to the [ Social Service Tax Act , R.S.B.C. 1996, c. 431], the materials which are used by BJ Services and which both do and do not become affixed to the real property in the course of providing services are not taxable. [10] She then examined the burden of proof in a tax appeal.  In summary, because the taxpayer has direct knowledge of facts relevant to liability for tax which may not be known or known fully by the taxing authority, the Crown is entitled to make assumptions of fact when making an assessment.  These assumptions must be pleaded if litigation ensues.  The taxpayer has the onus of disproving the Crown’s assumptions. [11] The judge clarified this onus: [21]      The taxpayer has three options in dealing with the facts assumed by the Crown in raising the assessment under dispute: (a)        Challenging the Crown’s allegations that the facts were assumed; (b)        Assuming the onus of showing that one or more of the assumptions was wrong; and/or (c)        Contending that even if the assumptions were made, they do not of themselves support the assessment under appeal. ( Pillsbury Holdings Ltd. v. Minister of National Revenue (1964) , 64 D.T.C. 5184 (Ex. Ct.) at pg. 5188) [23]      The taxpayer bears the burden of proving on a balance of probabilities that the assumptions were not made or that the assumptions are wrong.  ( Canada v. Loewen , 2004 FCA 146 at para. 8) [25]      A court may draw a negative inference from the taxpayer’s failure to adduce material evidence in the taxpayer’s possession or control and conclude that the taxpayer has not met its initial legal burden with respect to the assumptions.  ( Northland BCCA 2010 [ Northland Properties Corp. v. British Columbia , 2010 BCCA 177] at para. 33) [12] At para. 27, the judge commented that s. 116 of the Social Service Tax Act, R.S.B.C. 1996, c. 431 [ SSTA ], codified the common law burden of proof.  It states: Evidence that an assessment or estimate has been made or a penalty has been imposed under this Act is proof, in the absence of evidence to the contrary, that the amount stated in the assessment or estimate or imposed as a penalty is due and owing, and the onus of proving otherwise is on the person liable to pay the amount estimated, assessed or imposed. She observed at para. 29: The Federal Income Tax Act , R.S.C. 1985, c. 1 (5th Supp.), the legislation under which the common law of assumptions and the taxpayer’s burden of proof developed, does not contain such a provision.  Nor does the provincial statute, the Corporation Capital Tax Act , R.S.B.C. 1996, c. 73 (“CCTA”) contain an equivalent to s. 116.1 of SSTA.  In considering the CCTA, the British Columbia Court of Appeal has suggested that a provision in the Tobacco Tax Act, R.S.B.C. 1996, c. 452, which is identical to s. 116.1 of the SSTA, may impose an even higher burden on the taxpayer than arises at common law.  ( Northland BCCA 2010 at para. 13) [13] The judge went on to describe the well cementing provided by BJ Services: [39]      Well cementing is a process in which quick-drying cement is mixed with water and other additives (the “materials”) to produce a slurry which is injected under pressure into a well casing in order to make a well casing an immovable part of the real property and to reinforce the well’s walls, permitting better access to the well’s contents. [47]      In order to provide well cementing services, the cementing materials are blended with water at the well site by BJ Services using BJ Services’ mixing equipment to manufacture cement slurry.  The cement slurry is then pumped continuously into the well by BJ Services using BJ Services’ pumping equipment at high pressure through pipes rigged up by BJ Services to the connection point of the casing at the top of the well head. [48]      The cementing materials provided by BJ Services for use in the well services are in the possession of BJ Services at all times. [49]      All of the cementing materials brought to a well site by BJ Services are mixed into slurry and pumped as described above.  The cement slurry is pumped out of the bottom of the casing into the annulus. [50]      In order for BJ Services to be paid for the well cementing, the cement slurry must reach the annulus and set in accordance with the treatment program designed for the well. [52]      On occasion and in particular in some projects, a portion of the cement slurry may reach the top of the casing and come out of the annulus, resulting in waste cement slurry which [the respondent] must dispose of. [53]      No part of the well services was conducted by [the respondent]. [14] The judge addressed the contractual arrangements between the respondent and BJ Services at length.  They include a provision referring to products supplied by BJ Services stating that “the risk of loss remains with [BJ Services] until title passes upon [the respondent’s] acceptance of the products or equipment”.  This occurred when the respondent signed documentation acknowledging that the work was completed (at para. 95).  The judge noted the respondent’s position at para. 161: BJ Services does not request payment and is not entitled to be paid for the materials brought to the well site until the materials have been used in providing a successful service and [the respondent] has authorized payment of the invoices. After canvassing the contractual materials, she summarized the relevant provisions: [169]    The contractual provisions relevant to this appeal have been set out above.  In summary, they provide that:  the [Master Service Agreement] governs the rights and obligations concerning all services, materials, products or equipment provided by BJ Services to [the respondent]; BJ Services is an independent contractor; if a party signs the other’s forms for receipt or other purposes, the terms and conditions do not modify the [Master Service Agreement] or any Work Order; the risk of loss remains with BJ Services until title passes on [the respondent’s] acceptance of the products or equipment; only authorized persons working for BJ Services or its subcontractors are permitted to enter a work site where BJ Services is working; and, the warranty period for products and materials consumed by their ordinary use is ninety days rather than twelve months; and BJ Services’ compensation is to be set out in the Work Order. [170]    [The respondent] and BJ Services also entered into SPCs [Special Purchasing Contracts] which by definition in the [Master Service Agreement], were Work Orders.  There were 3 SPCs in effect during the audit period. [171]    …  Of most relevance, the services [in the SPCs] are specified as stimulation and cementing services, and pricing discounts are set out for those services. [172]    [The respondent] submits that the contract between it and BJ Services consists of the [Master Service Agreement], the SPCs and any Work Orders for a specific well or project.  I agree. [15] The judge commented on the pre‑contract evaluation undertaken by the respondent and BJ Services: [87]      In evaluating pricing, [the respondent] would only look to the total projected costs of the services and not to the cost of the components such as materials and service costs going into the cost of the services. [91]      In negotiating a discount or analyzing a bid, [the respondent] considered the total cost of the well services and did not concern itself with the charges listed for the material and services. [92]      In proposing a discount or making a bid, BJ Services looked at the projected total revenue it could expect to obtain from [the respondent] for the well services and not at the revenue attributable to products and materials or services. [16] At para. 102, the judge commented on the form of invoice submitted by BJ Services: the invoices are consistent in that each invoice has, regarding materials, a column called “Quantity Used”.  None of the invoices say “Quantity Sold”. [17] Relevant to the history of the treatment of cementing materials, the judge reviewed historical interactions between the government and BJ Services: [105]    Ms. Linda J. Smorang, the former Manager of Tax & Treasury for BJ Services (formerly known as Nowsco), testified regarding a conversation she had in the year 2000 with an individual in the Refunds Group of the British Columbia government.  It was her evidence that the individual told Ms. Smorang to stop charging PST on the materials used by BJ Services in the course of providing cementing services to its customers. [106]    As a result, BJ Services stopped charging PST and started self-assessing as of October 1, 2000, which was the first day of BJ Services’ fiscal year.  BJ Services also added an additional one per cent to their BC surcharge to recoup the money BJ Services paid in the self-assessment. [107]    On September 11, 2000, Ms. Smorang sent a letter to one of BJ Services’ customers in which she stated: For your information, effective October 1, 2000, we will no longer be charging British Columbia Social Service Tax on our invoices for materials consumed in British Columbia.  Rather we will self assess the sales tax on the cost of such materials. [111]    On February 26, 2007, Mr. Joe Chahal, the government auditor, sent an email to Marlene Madsen of [the respondent] in which Mr. Chahal stated, in part: BJ Services Company Canada provides time and material contracts for well cementing services, where the price of the materials are separately stated from the service charges.  Therefore, [the respondent] is liable for the cost of the cement, calcium chloride and other materials purchased.  Our branch is treating all well cement service contracts as time and material contracts. [112]    On March 1, 2007, Mr. Chahal wrote to [Taxation Branch - Oil and Gas Sector Specialist] Ms. Clarotto and stated, in part: I am auditing [the respondent] and was advised by Appeals & Litigation Branch to assess all purchases of materials purchased for the well servicing invoices from BJ Services Company.  We treat all well servicing contracts as time and materials, as opposed to lump-sum contracts.  The auditors who had audited BJ Services Company had erroneously allowed BJ to self-assess on the cement and other materials purchased and used under these contracts [18] Mr. Chahal concluded his audit based on extrapolations from 51 invoices.  The judge noted, at para. 117, that the proceedings before her were “based on the same extrapolation method.  If [the respondent] can establish that there is no tax payable on those 51 invoices, the appeal should be allowed”. [19] The judge discussed the audit and its conclusions.  I repeat salient portions of her analysis: [124]    In an email dated February 26, 2007, Mr. Chahal advised [the respondent] that “BJ Services Company Canada provides time-material contracts for well cementing services where the price of materials are separately stated from the service charges”.  Mr. Chahal was referring to the invoices from BJ Services to [the respondent].  He had concluded that because there were separate line items in the invoices for materials and labour or service, they were time and materials contracts, and [the respondent] therefore would be liable to pay PST on the costs of the materials. [125]    Mr. Chahal also advised [the respondent] that the Ministry was treating all well service contracts as time and material contracts. [126]    One of the bases for Mr. Chahal’s conclusion that the contracts were time and material contracts was because there was a separate line item for products and for labour on the invoice.  Another reason was that he understood that title passed before the material was installed as realty. [127]    Mr. Chahal did not consider whether BJ Services provided the materials to [the respondent] or whether BJ Services used the materials in the course of providing a service.  He concluded that the cementing materials were sold as a sale of tangible personal property in conjunction with the work performed. [128]    Mr. Chahal agreed in his testimony that his thought process was essentially to look at the 51 sample invoices where he noted the separate line item for materials and labour.  From that he concluded that these were time and material contracts.  He applied government policy to treat time and material contracts as a sale of tangible personal property.  Therefore, in his opinion, PST was payable by [the respondent]. [20] Although Mr. Chahal had not seen the contractual documentation between the respondent and BJ Services, the judge noted this would have made no difference to his opinion because “he had concluded that these were time and material contracts and that sales tax was payable on the cost of the materials”.  She continued: [131]    Mr. Chahal was asked about para. 2.34 of the [Master Service Agreement] which states in its last paragraph, “unless otherwise stated in a work order, the risk of loss remains with contractor until title passes upon company’s acceptance of the products or equipment”.  He testified that would not have made any difference to the audit because the statement of risk of loss being with the contractor until title passes is standard with any contract.  He further stated: “The question is when did title pass?”.  He was then asked: “Your conclusion that title passes before installation is based on the fact that you believe this to be a time and material contract?”.  He replied yes to that question.  His conclusion was that the title to materials passed before it is installed to real property. [132]    The audit was concluded and the assessment was issued on the basis that the contracts between BJ Services and [the respondent] were time and material contracts.  Pursuant to a policy of the Ministry at that time, as set out in Bulletin SST072, in time and material contracts, a tax was payable by the purchaser on the materials.  [The respondent], it was determined, was the purchaser. [21] The judge then turned to the legislative framework which was followed by a discussion of the Crown’s assumptions.  These were summarized by the judge at para. 143: · BJ Services provided the materials to its customers…; · The materials were used for the benefit of [the respondent]…; · BJ Services purchased the materials on its own account for the purpose of resale and not for its own use…; · BJ Services charged for the materials used and the basis for the provision of materials was that [the respondent] was to pay for material by quantity and unit price…; · Contracts for well services explicitly provided that a price would be charged for material…; · [The respondent] acquired the materials pursuant to the contract…; · BJ Services did not provide the materials at its own expense…; · [The respondent] used the materials or allowed BJ Services to use the materials at its expense…; · [P]rovision of the materials was not merely incidental to the contracts…. She added: [147]    In issuing the assessment, it was assumed that the [tangible personal property] provided by BJ Services was purchased by [the respondent] at the time of delivery.  It was assumed that delivery would have occurred at the well site, but “no more specific assumption was made with respect to the exact time of delivery under the contract, except that such delivery occurred prior to any installation of the [tangible personal property] in real property”. [148]    It was also assumed that the General Terms and Conditions in the Price Books of BJ Services applied to the transactions.  Specifically, it was assumed that the following condition in s. 11 applied: Customer shall nominate a responsible representative to be present throughout the performance of the Services to designate and provide the point of connection into which BJ Service Company Canada is to deliver any material and to designate the quantities of which and the pressure and times at which same are to be delivered. [149]    The Crown interpreted this provision to be a contractual term which applied to the transactions indicating that the point and time of delivery of the materials was at [the respondent’s] well site, but otherwise might change from transaction to transaction.  Thus it was not necessary to assume a more specific time of delivery. [22] After summarizing the contractual provisions the judge turned to contract interpretation: [182]    Returning to the onus upon a taxpayer in a tax case, as stated by Mr. Justice Lowry in [ Trac v. British Columbia , 2007 BCCA 60] at para. 30:  “The act of ‘demolishing’ a ministerial assumption entails proving on the balance of probabilities the material facts that are within the taxpayer’s knowledge if those facts do not support the assumption.” [183]    I am satisfied that [the respondent] has proven on a balance of probabilities that the facts and assumptions relied upon by the Crown are incorrect. [185]    [The respondent] has proven that the contract with BJ Services is not a contract for the sale of materials, but is a contract for services.  It was formed between two corporations who contracted in their roles as a well operator and a service provider in the oil and gas industry.  The terms and provisions of the contract are consistent with those roles.  The operation of the contract as described by the witnesses was consistent with the terms and provisions of the contract.  Not only is the essence or true nature of the contract a contract for services, but the terms as a whole on their plain meaning form a contract for services. [186]    Specifically, in their role as a service provider, the evidence establishes that BJ Services purchased the materials for its own use; the benefit to [the respondent] was a completed well service; [the respondent] paid a price for the service which included the materials; the price for the materials is set out in the contract; [the respondent] did not acquire the materials pursuant to the contract; and [the respondent] was not the user of the materials.  Provision of the materials is proven to be incidental to the contracts.  The materials were not delivered to [the respondent], but to the control of BJ Services at the site for their use in mixing the cement or preparing for well stimulation in the course of their provision of well services to [the respondent]. [187]    Accordingly, I find that [the respondent] has demolished the Crown’s assumptions. [23] Having concluded that the Crown could not rely on its assumptions, the judge considered whether the Crown had established that the assessment was valid.  The first question was whether the respondent failed to provide complete disclosure resulting in a negative inference. [24] The judge observed that the audit was based on a sample of 51 invoices.  Supporting material for the remaining approximately 1,000 invoices was not produced by the respondent.  The Crown contended that it was not possible to know “the true nature of the contractual arrangements”.  The judge reviewed the positions of the parties.  She rejected the Crown’s contention.  The judge then turned to the assessment. [25] The Crown asserted that the contracts between the respondent and BJ Services were time and material contracts based on “the separate line items in the invoices for materials and services [which were] determinative of the nature of the contract”.  The judge reviewed sale of goods law and administrative practices and policies of the Crown.  She stated: [205] The issue for decision is the application of the provisions of the SSTA to these facts. The inclusion of materials as a separate line item on the invoices under column headed “Quantity Used” is not determinative of the contractual arrangements between the parties or the taxability of the transactions between the parties. [26] It was the Crown’s position that the respondent was a purchaser because there was a large-scale transfer of property to it for economic consideration.  It relied on s. 5(1) of the SSTA : 5 (1) At the time of making a purchase, the purchaser must pay to the government a tax at the applicable rate under section 6. [27] The judge addressed this position stating: [221] On the facts, [the respondent] did not acquire the incidents of title to the materials when they arrived at the well site. Nor did they acquire title when the materials were mixed and pumped into the well head. It was BJ Services who controlled the pumping process. More fundamentally, it is without an air of reality that [the respondent] would purchase mixed wet cement or any materials at that point. For example, the well does not require mixed wet cement at the well head in order to become operational and yield hydrocarbons. What is required is that the annulus be filled and the casing become secured to the earthen side of the well bore by cement which has set properly so that the pumping of hydrocarbons can take place. [222] The service provided by BJ Services is the application of their knowledge, skills and equipment to ensure that the material has the required effect on the well. Again, for example, BJ Services’ services include steps taken to determine the proper mix for the cement for a particular geological and geographic location with engineering input, and after arrival and mixing at the well, pumping it into the well in correct quantities and at the correct pressure, so that it results in a cemented well ready for production. The materials used are incidental to the technical service provided. She also noted that pursuant to the contractual arrangements between the respondent and BJ Services “the risk of loss remains with BJ Services until title passed on [the respondent’s] acceptance [of the products or equipment]”. [28] The judge observed: [226] The title to the materials which became affixed to the real property passed to the owner of the real property, in this case the Crown who owns the lands, by accession. At the point in time when the materials became incorporated into the realty, they ceased to be [tangible personal property]. [227] With regard to the materials that come out of the well bore, they have no use and must be disposed of. In the case of the cement slurry returns, they are necessary to the provision of the service in order that it can be determined that the cement has been pumped to the bottom of the well bore and then up through the annulus to the top of the annulus. [29] The judge rejected the Crown’s submission that any transfer of tangible personal property for consideration is subject to tax on the basis that the respondent did not acquire the materials from BJ Services. [30] One of the Crown’s assumptions was that BJ Services claimed an income tax manufacturing and processing tax credit on the basis that it was manufacturing and processing goods for sale.  The judge discussed jurisprudence dealing with this tax credit and noted differences in the applicable legislation.  In her view, the fact that BJ Services “who is not the taxpayer in this case” followed a particular practice under the Income Tax Act , R.S.C. 1985, c. 1 (5th Supp.), “does not affect the application of the SSTA to [the respondent’s] transactions with BJ Services….” [31] The judge concluded: [257]    … I find that none of the bases upon which the Crown relies demonstrate that the assessment is valid. The Crown has not discharged the conditional legal burden. She allowed the appeal from the assessment. Positions of the parties [32] The positions of the parties are set out in their factums as follows: Appellant: 32.       The Trial Judge erred in law in applying the burden of proof in tax appeals by finding that [the respondent] could (and did) disprove the Crown’s assumptions regarding the terms of its contracts with BJ Services while failing to provide the contractual documents that govern the Transactions. 33.       The Trial Judge erred in law in applying the burden of proof in tax appeals by finding that [the respondent] could (and did) meet its burden of disproving the Crown’s assumptions about the contractual terms governing all the Transactions simply by providing contractual documents relating only to the 51 Sample Invoices. 34.       The Trial Judge erred in law by interpreting the contracts on the basis of her view of the “economic realities” of the relationship between [the respondent] and BJ Services rather than on the text of the contracts.  Her determination a priori that in the oil and gas industry, BJ Services was a “service provider” led her to conclude that the contracts were service contracts. 35.       The Trial Judge erred in law in finding that BJ Services’ provision of materials could not have been a sale of [tangible personal property] because the provision was incidental to a contract for services.  The dichotomy between contracts for the sale of goods and contracts for services is a dichotomy that arises under sale of goods.  This court has specifically rejected that dichotomy in applying the Act ( CW Agencies v. BC , 2003 BCCA 52). 36.       The Trial Judge erred in law in distinguishing the CW Agencies case on the basis that [the respondent] did not “acquire” the materials it purchased from BJ Services and therefore was not a “purchaser” subject to tax under the Act.  The Trial Judge relied on sale of goods common law and dictionary definitions of “acquire”.  The Trial Judge did not consider the expanded definition of “acquire” found in s. 29 of the [ Interpretation Act , R.S.B.C. 1996, c. 238]. 37.       The Trial Judge made a palpable and overriding error in concluding that [the respondent] had, in fact, provided the contractual documents governing the 51 Sample Invoices. Respondent: 42.       [The respondent’s] position with respect to the errors alleged by the Crown is as follows. 43.       The trial judge did not err in applying the burden of proof and finding that Burlington disproved the Crown’s assumptions.  [The respondent] produced thousands of pages of documents.  [The respondent] had no notice that document disclosure was an issue until the Crown’s closing submission. 44.       The trial judge did not decide that [the respondent] could disprove the Crown’s assumptions by only providing documents relating to 51 sample invoices. 45.       The trial judge did not interpret the contracts on the basis of her view of the economic realities of the relationship between the parties.  The judge analyzed the key terms of the contract between the parties and applied the correct principles of contractual interpretation. 46.       The trial judge did not decide that there could not have been a sale of [tangible personal property] because the provision of materials was incidental to a contract for services.  The judge decided that [the respondent] did not acquire [tangible personal property] at a sale. 47.       The trial judge was correct in deciding that [the respondent] did not acquire the materials.  Even if the judge had considered the definition of “acquire” in the Interpretation Act , her decision would have been the same. 48.       The trial judge did not make a palpable and overriding error in her findings regarding the contractual documents that [the respondent] produced. 49.       [The respondent] submits that the issues on appeal include the following: a.         BJ Services was the final user of materials that became affixed to land; b.         [The respondent] did not acquire materials before they became affixed to land; c.         [The respondent] did not acquire waste products at a sale. Discussion Preliminary observation [33] As noted, the judge discussed the burden of proof in tax cases and the basis for the Crown’s reliance on assumptions of fact.  It often is said that the taxpayer must “demolish” those assumptions.  A very helpful discussion of these matters is found in Northland Properties Corporation v. British Columbia , 2010 BCCA 177. [34] Writing for this Court, Madam Justice Huddart stated: [5]        Another critical distinction it will be helpful to review is that between the “onus”, “persuasive burden”, “ultimate burden”, or “legal burden of proof” in a case, and other “evidential” and “tactical” burdens. The legal burden lies on the party whose responsibility it is to prove a fact or an issue to the required standard of proof. If the party who bears the legal burden fails to prove its case, or if the evidence weighs equally between the two sides, then that party loses. There can be multiple legal burdens of proof in a single action: [6]        The evidential burden is not synonymous with legal burden. An evidential burden means that a party has an obligation to adduce sufficient evidence to put a matter in issue; it is not the same as having the obligation to prove a fact. Care should be taken to use the term only where appropriate. [10]      The important point is that there are two legal burdens in a tax assessment appeal: the initial legal burden on the taxpayer to prove that the Minister’s assumptions are incorrect, and, if the taxpayer is successful, the conditional legal burden on the Crown to show that the assessment as a whole is nevertheless valid: [21]      Returning to the proper approach in an assessment appeal, it is important to recall that, at the outset, the responsible Minister assesses the tax, then communicates that assessment, and the assumptions on which it is based, to the taxpayer. The need for the Minister to make assumptions emerged because, in a self-assessment system, the taxpayer generally has much greater knowledge of his or her affairs than the taxing authority. The courts responded to this imbalance by permitting the taxing authority to make assumptions of fact, on the basis of which it may assess the taxpayer accordingly: … The corollary to this power is the principle that, on judicial review, the taxpayer has the initial burden to rebut the Minister’s assumptions: [26]      The use of “demolish” [with regards to the taxpayer’s onus of rebuttal] has carried through to the present: The choice of word is unfortunate, because it tends to cloud the actual nature of the standard of proof. “Demolishing” does not imply a higher standard [27] The standard of proof in discharging this burden is nothing more or less than the balance of probabilities. [Citations omitted; underlining in original.] Standard of review [35] The Crown addressed the standard of review in its factum.  It contends: 38.       The standard of review on errors of law is correctness. The standard of review on errors of fact is palpable or overriding error.  A palpable error is one that can be clearly or plainly seen.  An overriding error is one which must have or may well have affected the judge’s decision. 39.       The Trial Judge’s error in finding that [the respondent] had adduced the contractual documents governing the 51 Sample Invoices was palpable and overriding.  There was no basis for her to make that finding and that finding undoubtedly formed the basis for allowing [the respondent’s] appeal. [Citations omitted.] The Crown’s assumptions [36] The judge correctly stated the law concerning the effect of the Crown’s assumptions in a taxing case.  The judge addressed this as follows: [14] When the word “assumptions” is used by the courts, it refers to all the findings, conclusions or assumptions of fact made by the assessor. ( Johnston v. Minister of National Revenue , [1948] S.C.R. 486 at 489; Northland Properties Corp. v. British Columbia (Finance) , 2012 BCSC 721 at para. 121) [15] Since the decision of the Supreme Court of Canada in Johnston , in an appeal of an assessment of tax, it is incumbent upon the Crown to set forth in its pleadings the specific facts on which it relies in raising the assessment in dispute. Facts on which the Crown relies in raising the assessment must be accepted as facts in any proceeding which challenges the assessment unless questioned by the taxpayer. ( Johnston at 489‑490) [16] The rule in Johnston has resulted in what is referred to as the reverse onus on the taxpayer in so far as the assumptions of the fact made by the Crown at the time of issuing the assessment. In other words, the taxpayer faces the onus of disproving that which the Crown assumed. ( Anchor Pointe Energy Ltd. v. R., 2003 FCA 294) [17] The assumptions are accepted as true subject to being disproven by the taxpayer. The taxpayer, who has firsthand knowledge of its affairs and therefore is in the best position to adduce relevant evidence to prove the material facts, necessarily bears the legal burden of disproving, on a balance of probabilities, that the assessor’s findings, conclusions, or assumptions of fact are wrong. ( Trac at para. 25; [Northland] at paras. 10, 15, 22, and 25…) [18] The rule with respect to the assumptions of fact made by the Crown has been extended to include assumptions of fact made at the time of the consideration of an appeal of the assessment by the Crown. [19] Proper communication of the assumptions is achieved when the assumptions are set out in the Crown’s pleadings. The practice is for the Crown to disclose in its pleadings assumptions of fact made at both the assessment and ministerial appeal level upon which the determination of tax was based. Where pleaded, the assumptions have the effect of reversing the burden of proof and casting on the taxpayer the onus of disproving that which Crown has assumed. ( Anchor-Pointe at paras. 27 and 28) [37] It is apparent immediately that the Crown’s assumptions must be assumptions of fact.  I repeat the judge’s summary of the Crown’s assumptions: · BJ Services provided the materials to its customers…; · The materials were used for the benefit of [the respondent]…; · BJ Services purchased the materials on its own account for the purpose of resale and not for its own use…; · BJ Services charged for the materials used and the basis for the provision of materials was that [the respondent] was to pay for material by quantity and unit price…; · Contracts for well services explicitly provided that a price would be charged for material…; · [The respondent] acquired the materials pursuant to the contract…; · BJ Services did not provide the materials at its own expense…; · [The respondent] used the materials or allowed BJ Services to use the materials at its expense… ; · [P]rovision of the materials was not merely incidental to the contracts. The extent to which these are assumptions of fact is questionable. [38] The judge addressed the position of the respondent stating: [150]    [The respondent] challenges the assumptions on the following basis: (a)        Certain of the assumptions are assumptions of law and not assumptions of fact. (b)        Certain of the assumptions are made with respect to facts relating to BJ Services and not [the respondent] and are therefore not assumptions which trigger the reverse onus on [the respondent]. (c)        The only assumption made by the Crown in issuing the assessment and the denial of [the respondent’s] appeal of the assessment was that the materials were listed separately on the invoice from a charge for services. This assumption of fact will lead to the conclusion that the contracts between [the respondent] and BJ Services were “time and material” contracts which resulted in a sale of the materials listed on the invoice. [151]    It is the submission of [the respondent] that the essence of the contracts between it and BJ Services is that they are contracts for the provision of services or service contracts and not contracts for the sale of goods. [152]    The evidence, [the respondent] submits, supports its position and demolishes the Crown’s assumptions. She then reviewed the evidence and the contractual material that was before her. [39] In my view, there was evidentiary support for the judge’s conclusion.  There also was support in the contractual material. [40] The Crown relied on BJ Services’ Price Book as being the applicable contract, which it was not.  At the hearing, we were advised that counsel for the Crown did not know whether the auditor requested contractual material from the respondent. [41] The Crown asserts that a key assumption it made was described by the judge at para. 147: In issuing the assessment, it was assumed that the [tangible personal property] provided by BJ Services was purchased by [the respondent] at the time of delivery. It was assumed that delivery would have occurred at the well site, but ‘no more specific assumption was made with respect to the exact time of delivery under the contract, except that such delivery occurred prior to any installation of the [tangible personal property] in real property’. This assumption was based on the General Terms and Conditions in the BJ Services Price Book.  The auditor attached a copy of this document to his Audit Report as being the terms and conditions of the agreement between the respondent and BJ Services.  On the evidence, that document was not applicable to the contract in issue.  The judge specifically so found at para. 80. [42] The auditor was not aware of a Master Agreement that controlled the arrangements between the respondent and BJ Services or other relevant contractual documents.  Although counsel for the Crown did not know whether the auditor asked the respondent for contractual documents, he agreed that failure to do so was an error. [43] The Master Agreement states that risk remains with BJ Services, unless otherwise dealt with in other documents.  Those documents did not address risk.  The default provision was applicable. The respondent’s production of documents [44] The Crown contends strongly that the judge erred in her consideration of the alleged failure of the respondent to produce required contractual documents.  It asserts that this is not simply a document production issue, but a failure to prove the respondent’s case. [45] The judge addressed the issue as follows: [190]    I must first address the submission by the Crown that, with regard to the documents produced by [the respondent], there is an issue of incomplete disclosure by [the respondent]. It seeks that a negative inference be drawn. Pursuant to Northland BCCA 2010 , I may find that the taxpayer has not met its initial legal burden. (para. 33) [191]    The audit was based on a sample of 51 invoices for the audit period. While the issue is not strongly taken for those 51 invoices, the Crown says that supporting documents for the balance of the approximately 1000 invoices in the audit period were not disclosed and it is therefore not possible to know the true nature of the contractual arrangements. [192]    It says that this is particularly problematic because approximately 45% of all invoices between [the respondent] and BJ Services for the audit period relate to the Ring Border project in northern British Columbia which was the subject of a special arrangement. [193]    In response, [the respondent] submits that Mr. Chahal was given direct access to [the respondent’s] electronic records during the field audit in Calgary. He decided to use a proration method of extrapolating and chose the sample of 51 invoices. The appeal utilized the same proration procedure. [194]    The Crown’s pre-trial application for disclosure of any less formal pricing arrangements was adjourned generally after more than 1000 invoices, approximately 5000 pages of documents, were produced by [the respondent]. The Crown did not pursue the issue before or at trial. [195]    The pricing arrangements are in evidence and are contained in the [Master Service Agreement] and the [Special Purchasing Contracts]. The absence of evidence regarding invoices not included in the audit sample of 51 invoices does not raise an adverse inference or negatively affect the discharge of the onus on the taxpayer. [46] Insofar as the question was whether to draw an adverse inference, the issue was within the discretion of the judge.  In my view, there is no basis on which this Court would interfere with her exercise of discretion. [47] In my view, the absence of further documentation also does not undermine the respondent’s position or the judge’s findings of fact.  She had evidence of the actual operation of the project.  It was consistent with the contractual material that was produced.  As a matter of fact, and consistent with the contractual arrangement between BJ Services and the respondent, there was no transfer of tangible personal property from BJ Services to the respondent. Whether the assessments were valid [48] At the hearing of the appeal, the Crown contended that the legal form of the arrangement between the respondent and BJ Services, not the financial reality, governs in the contest of taxation.  This flows from the proposition that, with limited exceptions, a taxpayer may organize its affairs as it chooses in order to minimize tax.  That is, the form or organization is respected.  That said, I question the extent to which the legal form of an arrangement – a contract – could be divorced from the financial reality of the parties. [49] The Crown’s position at the hearing may be slightly at variance with its apparent position before the trial judge. The Crown relies on C‑W Agencies Inc. v. British Columbia, 2003 BCCA 52.  The judge reviewed that case carefully and distinguished it starting at para. 233: [233]    The Crown submits that under the law in British Columbia, any transfer of [tangible personal property] for consideration is subject to tax under the SSTA regardless of the form of contract . [Emphasis added.] [234]    It relies on the 2003 decision of Canadian Overseas Marketing v. British Columbia , 2003 BCCA 52 [ C‑W Agencies ], where the British Columbia Court of Appeal interpreted the meaning of provisions of the SSTA including s. 5(1), s. 17, and the definitions of purchaser, purchase price and sale said: [20]      From these provisions, it is apparent the Legislature intended to capture for taxation purposes every transfer of a good between persons for economic consideration, without regard to its form or to the amount or mode of payment. ... [22]      ... No identifiable price need be stated, so long as the good being transferred is identifiable. That means every person who acquires an identifiable good in British Columbia for his own use by way of a contract for consideration, whether for delivery to himself or to another at his direction, must pay the social service tax . [Emphasis added.] [235]    In C-W Agencies , the Court held that an advertising agency which had prepared packages of promotional materials for its clients and mailed those materials directly to prospective customers of its clients made a “sale” of those materials to its clients. [236]    The written and verbal contracts between C‑W Agencies and its clients described themselves as contracts for services. The Crown denied C‑W Agencies’ request for refund of tax paid for goods purchased for resale or for incorporation into products for resale which are not subject to tax. [237]    At the appeal, the Crown argued that the contracts between C‑W Agencies and its clients were, in substance, contracts for services such that the provision of tangible personal property was only incidental to such contracts for services. The Chambers judge accepted the Crown’s argument and upheld the refund denial. However, the British Columbia Court of Appeal rejected the Crown’s argument and held that the lottery companies were purchasers who acquired tangible personal property under a contract for consideration for their own use. [238]    The Crown submits that the British Columbia Court of Appeal decision in C‑W Agencies is the law in British Columbia with respect to the sale of [tangible personal property]. It argues that on the basis of C-W Agencies , it is irrelevant for the purposes of the SSTA whether goods were supplied pursuant to a contract for services. It follows that the transfer of materials in this case cannot avoid taxation on the basis that it is incidental to a contract for services. I am unable to agree with that submission. [239]    There are four relevant features identified in the ratio of C‑W Agencies at para. 22 (emphasised above), all of which must be present for a transaction to be taxable, and which are not all present here. Those features are an acquisition of identifiable good, for the person’s own use, by way of a contract for consideration, and for delivery to himself or another at his direction. [Emphasis in original.] [50] The judge concluded that this Court’s decision in Re Commissioner of the Social Services Tax Act and Con‑Force Pacific Ltd. (1970),12 D.L.R. (3d) 490 (B.C.C.A.), was more on point: [223]    This is similar to the case of Re Commissioner of the Social Services Tax Act and Con-Force Pacific Ltd . in which Con-Force contracted for a completed wharf or dock. It fabricated concrete piles and deck panels at its plant and transported them to the site to be installed according to its design and plans. They were installed under the supervision of Con-Force. They were assessed for failing to charge and collect PST on the sale of the piles and deck panels. On allowing their appeal, the Court of Appeal held at para. 24: 24        The learned trial Judge found, as the evidence warranted, that in each case the contract was for a completed dock or wharf. In each case the design and engineering of the structure was that of Con-Force and the structure was designed to withstand certain designated stresses peculiar to the dock or pier in question. The piles and panels were all designed and custom built for certain designed structures. If the piles and panels were not used on that structure they were completely useless and could not be used on any other structure unless it should happen that the design of that structure were identical. The piles and panels designed would likewise be of no use on the structure for which they were designed and built unless tied into the structure and tensioned in accordance with the procedures laid down in engineering plans made by Con-Force. The evidence disclosed that unless the piles and panels were tied in as set forth in the engineering plans prepared by Con-Force on the basis of which the contract was bid and the post-tensioning work done as designed by Con-Force that the structure would collapse like a house of cards. Similarly, the formulated and mixed materials at the well head are of no use unless they are properly utilized with BJ Services’ skill and equipment. [224]    The evidence is consistent with the terms of the contract between BJ Services and [the respondent]. With regard to payment, BJ Services is not paid for delivery of the materials to the well site. They are not paid if the materials delivered to the well site are not used. [225]    Of importance, by para. 2.34 of the [Master Services Agreement], the risk of loss remains with BJ Services until title passes on [the respondent’s] acceptance. This provision regarding risk of loss is in the same section of the [Master Service Agreement] as para. 2.31 which states that BJ Services shall decide how such services shall be performed, and [the respondent] is “interested only in the results obtained, and has no control over the manner, method, or details of [BJ Services’] performance”. [51] The judge rejected the Crown’s contention that the contract between BJ Services and the respondent was one of time and materials.  She held it to be a service contract with the incidental supply of materials.  It clearly was open to her to do so both on the documents and the evidence.  She observed: [219]    [The respondent] submits that on the evidence and on the operation of the [Master Service Agreement] it did not acquire all of the incidents of title such as possession, use, control and risk. I agree. [220]    The evidence is clear that BJ Services brought the materials to the land in their trucks. The materials were stored in BJ Services bins. The trucks and bins were verbally cordoned off from persons who were not BJ Services employees. BJ Services personnel mixed the materials and moved and pumped the materials with its own equipment. [The respondent] did not exercise any control over the materials. BJ Services controlled the materials at all times from their arrival at the site until the completion of the well service and the signing of the field service order by [the respondent]. [221]    On the facts, [the respondent] did not acquire the incidents of title to the materials when they arrived at the well site. Nor did they acquire title when the materials were mixed and pumped into the well head. It was BJ Services who controlled the pumping process. More fundamentally, it is without an air of reality that [the respondent] would purchase mixed wet cement or any materials at that point. For example, the well does not require mixed wet cement at the well head in order to become operational and yield hydrocarbons. What is required is that the annulus be filled and the casing become secured to the earthen side of the well bore by cement which has set properly so that the pumping of hydrocarbons can take place. [222]    The service provided by BJ Services is the application of their knowledge, skills and equipment to ensure that the material has the required effect on the well. Again, for example, BJ Services’ services include steps taken to determine the proper mix for the cement for a particular geological and geographic location with engineering input, and after arrival and mixing at the well, pumping it into the well in correct quantities and at the correct pressure, so that it results in a cemented well ready for production. The materials used are incidental to the technical service provided. [52] I see no error in this analysis or conclusions. [53] On appeal, the Crown relies on the definition of “acquire” in the Interpretation Act , R.S.B.C. 1996, c. 238, and asserts that the judge erred in holding that to acquire goods all the incidents of title were required.  This argument was not presented to the trial judge. [54] In my view, little turns on the judge’s observation that the respondent did not acquire all of the incidents of title.  The definition of purchaser in the SSTA is one who acquires tangible personal property by sale.  The simple fact is that the judge concluded that possession of the cementing material was never transferred to the respondent by BJ Services.  In her view, there was no air of reality to the contention that the respondent “would purchase mixed wet cement or any materials” when the material arrived on site.  The site was controlled completely by BJ Services.  The respondent’s interest was in the final product (at para. 221).  These conclusions were supported amply by the evidence. Conclusion [55] I have quoted extensively from the reasons of the trial judge.  I did so because they are thorough and address carefully all of the issues raised by the Crown.  In a number of instances, I can do no better than to adopt the analysis of the judge. [56] In my view, many of the Crown’s assumptions were either assumptions of law or of mixed fact and law on which the Crown was not entitled to rely, but even if they are characterized as assumptions of fact, the judge correctly held that the respondent had “demolished” them on the basis of evidence and the contractual material before her. [57] The assessments cannot stand simply because the materials, the tangible personal property, did not pass to the respondent before it lost that character and became part of the realty as was found by the judge.  That conclusion, again, was based solidly on the evidence and the contractual material before the judge. [58] The Crown’s assumption to the contrary was based on a misconception of the auditor who apparently did not have, and did not ask for, relevant contractual documents. [59] I would dismiss this appeal. “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Mr. Justice Lowry” I agree: “The Honourable Madam Justice Stromberg-Stein”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Spookw v. Gitxsan Treaty Society, 2015 BCCA 77 Date: 20150116 Docket: CA041986 Between: Spookw also known as Geri McDougall on behalf of herself and other Gitxsan Chiefs and members, Baskyalaxha also known as William Blackwater Sr., Suu Dii also known as Yvonne Lattie, Luutkudziiwuus also known as Charlie Wright, Xsimwits Inn also known as Lester Moore, Moolxhan also known as Noola and as Norman Moore, Gitanmaax Indian Band, Glen Vowell Indian Band, Gitwangak Indian Band, Kispiox Indian Band, and Gitksan Local Services Society Appellants (Plaintiffs) And Gitxsan Treaty Society, Her Majesty the Queen in Right of the Province of British Columbia and the Attorney General of Canada Respondents (Defendants) Before: The Honourable Mr. Justice Groberman (In Chambers) On appeal from: an order of the Supreme Court of British Columbia dated June 18, 2014 ( Spookw v. Gitzsan Treaty Society , 2014 BCSC 1100, Smithers Registry No. 15150) Oral Reasons for Judgment Counsel for the Appellants: M.L. Macaulay and C. Joseph Counsel for the Respondent, Gitxsan Treaty Society: A. Schalles Counsel for the Respondent, Attorney General of British Columbia K.J. Phillips Counsel for the Respondent, Attorney General of Canada N. Wright and A. Singh Counsel for the Proposed Intervenor, Tsetsaut/Skii km Lax Ha Nation M.C. Power and D.P. Taylor Place and Date of Hearing: Vancouver, British Columbia January 16, 2015 Place and Date of Judgment: Vancouver, British Columbia January 16, 2015 Summary: Application for intervenor status by the Tstesaut/Skii km Lax Ha Nation. The underlying appeal concerns the right of the Gitxsan Treaty Society to speak on behalf of Gitxsan houses during consultations and negotiations with the Crown. The TSKLH identified itself as a Gitxsan house in earlier litigation, but now takes the position that it is not a Gitxsan house. The appellant and respondents take the position that the TSKLH is a Gitxsan house. Held: Application dismissed. Because the TSKLH takes the position that it is not a Gitxsan House, and because the validity of that position will not be before the court in the appeal, this appeal will not finally determine rights of the proposed intervenor. It therefore does not have a “direct interest” in the appeal. Further, the proposed intervenor does not a have unique perspective on the issues before the court, and there is no necessity of giving it intervenor status to ensure that all issues are fully canvassed. [1] GROBERMAN J.A. : This is an application by the Tsetsaut/Skii km Lax Ha Nation (the “TSKLH”) to intervene in the appeal. [2] The underlying claim in this case concerns the right of the Gitxsan Treaty Society to speak on behalf of Gitxsan houses during consultations and negotiations with the Crown. [3] The appellant Gitxsan houses say that the Society is wrongly purporting to represent them in discussions with the Crown. In addition to making claims against the Society, they make claims against the Crown, both federal and provincial, asserting that the Crown has breached its obligations to the appellants by conducting consultations and negotiations with the Society. [4] The issue of who speaks on behalf a First Nation group is one of the most complex and difficult facing First Nations, the Crown, and the courts in respect of Aboriginal law. This case may ultimately be of considerable importance to the development of the law in that area. In the circumstances, it is not surprising that there is considerable interest in the appeal. [5] The intervention application is not made in a timely manner in accordance with the Rules, but all parties consent to an extension of the time to apply for intervenor status. Such an order, would, I think, have been granted in any event, as there is no prejudice resulting from the delay. Indeed, there is still an issue outstanding in the court below, that being costs. The order in the court below has not yet been entered, so no one is adversely affected by the late application. [6] I turn then to the question of whether intervenor status should be granted. One of the underlying difficulties in this case is that there is dispute as to the nature of the TSKLH. It appears to have been a plaintiff in the Delgamuukw litigation, apparently as a Gitxsan house. The parties to this litigation, for various reasons (and perhaps with varying degrees of commitment to the proposition), take the position that it is a Gitxsan house. TSKLH, however, denies that it is part of the Gitxsan First Nation, and says that it is an independent entity. [7] That issue is far too complex be determined on a simple chambers application such as the one today. However, as I will explain, the nature of the group does impinge on the analysis of whether to grant intervenor status. While I will make reference to the issue, therefore, I am not making any determination with respect to it, and nothing that I say should be taken as indicating that the Court has come to even tentative conclusions as to the relationship, if any, between the Gitxsan and the TLSKH. [8] It is now well-established in this Court’s jurisprudence that there are two separate routes to intervenor status. For convenience, I will refer to my own reasons for judgment in the intervention application in Ahousaht Indian Band and Nation v. Canada (Attorney General), 2012 BCCA 330, upheld on review by this Court at 2012 BCCA 404. There are a number of other cases that stand for the same propositions, and I mention Ahousaht simply because all of the parties have referred to it. [9] As indicated in para. 2 of the chambers decision in Ahousaht , applicants will be granted leave to intervene in two circumstances. The first is where a decision on an appeal will have a direct impact on the applicant. In such situations, the applicant for intervenor status, while not a party to the appeal, is in a position analogous to that of a party. His, her or its rights will be determined by the appeal. [10] As I indicated in Ahousaht , concerns of fairness dictate that the Court will generally grant intervenor status in cases where the proposed intervenor’s rights will be directly determined in the appeal. Few prospective intervenors can demonstrate a direct interest of that sort in litigation. As this Court has indicated on a number of occasions, merely being affected by the precedential effect of a decision does not constitute a direct interest. [11] The issue in this case is one of general importance in Aboriginal law and general importance to First Nations collectives in Canada, as well as to the Crown. The case, however, will only directly decide whether the Gitxsan Treaty Society can properly negotiate and consult on behalf of specific Gitxsan houses. If it is not a Gitxsan house, this appeal will only affect the proposed intervenor in an indirect manner, by establishing general legal principles. On the other hand, if it were a Gitxsan house, the applicant might be directly affected by the appeal, because it would be in a position precisely analogous to that of the appellants. [12] If I were to accept the position taken by everyone but the applicant on this intervention application, then, I would find that the applicant had a direct interest in the litigation, and I would grant intervenor status. The intervenor itself, however, does not accept that it is a Gitxsan house. The position it takes here, and the position that it will be entitled to take in the future, is that the decision in this case will not be conclusive of its own rights. The case will, therefore, not determine the intervenor’s rights directly. [13] In my view, the proposed intervenor’s factual characterization of the case is decisive, and the fact that the respondents on this application consider the TSKLH to be a Gitxsan house cannot be determinative. It is the TSKLH that will ultimately be entitled to make representations in an appropriate case as to whether it is or is not a Gitxsan house. [14] Although Mr. Power made a valiant effort to suggest that this case is one in which his client has a direct interest, I am not satisfied that any decision by this Court will directly decide the capacity of the Gitxsan Treaty Society to represent the interests of the TSKLH. That issue will have to be determined in separate litigation. [15] In saying this, I recognize that if the Gitxsan Treaty Society is not in a position to speak on behalf of the appellants, it is probably not in a position to speak on behalf of the TSKLH, either. The converse is not true, however. If the Gitxsan Treaty Society is entitled to speak for the appellants, it may, nonetheless, not have status to speak on behalf of the TSKLH. [16] Because the TSKLH contends that it is not a Gitxsan house and that the Gitxsan Treaty Society cannot in any sense speak for it, it seems to me that its interests in this case do not differ from the interests of any other First Nation collective in British Columbia or, indeed, in Canada. As an independent First Nation, the intervenor might be affected by the precedential effect of the appeal but it does not come within the “directly affected” branch of the test for intervenor status. [17] For those reasons I find that the TSKLH has not established that it has a direct interest in this litigation or that its rights will be directly decided in this litigation. [18] The next question is whether the TSKLH brings a unique perspective to the case such that it should be granted intervenor status to make arguments that ensure that a specific perspective is not ignored and is in front of the court. [19] The issues upon which TSKLH wishes to make its intervention are the fiduciary obligations of the Crown and the honour of the Crown. It wishes to make arguments on how those obligations impact the Crown’s duty to ensure that it is conducting negotiations and consultations with appropriate First Nations collectives. [20] With all due respect, I am not convinced that there is any uniqueness in the perspective of the TSKLH with respect to the Crown’s fiduciary obligations and the honour of the Crown. The same arguments that the TSKLH proposes to make can be made by the appellants and, indeed, could be made by any other Aboriginal collective in British Columbia or Canada. While the arguments are in no sense frivolous and will definitely be of interest to the court, there is no necessity of giving intervenor status to the TSKLH in order to ensure that the arguments are made. [21] For those reasons I am not convinced that intervenor status should be granted to the TSKLH. [22] On this application the Gitxsan Treaty Society seeks costs from the TSKLH. I am not convinced, given the nature of this application, that costs should be awarded. This was an attempt by the TSKLH to offer its assistance to the Court. While I acknowledge that the Gitxsan Treaty Society has opposed the application and has provided the Court with argument, I am not convinced that it has been put out or inconvenienced by this application in such a way that would justify the granting of costs. Without purporting to provide any guidance for judges in the future as to whether costs are granted on intervenor applications, I am convinced that this application was in the interests of the TSKLH and not contrary to the other parties’ interests. I am also satisfied that it was in the interest of the Court to consider the application. For that reason I am ordering that each party bear their own costs of this application. “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Boxer Capital Corporation v. JEL Investments Ltd ., 2015 BCCA 24 Date: 20150120 Docket: CA041527; CA041526; CA041531 Docket CA041527 Between: Boxer Capital Corporation and Yanco Management Ltd. Respondents (Appellants) And JEL Investments Ltd. Appellant (Respondent) and Docket: CA041526 Between: Boxer Capital Corporation, Yanco Management Ltd. and Chung Properties Ltd. Respondents (Plaintiffs) And Marine Land Development Ltd., Jeana Ventures Ltd., Lily Lo, Miriam Pallai, Donald Ruttan, Norman Chung, Christine Chung, Barbara Marrie, Properties Worldwide Limited, 0765998 B.C. Ltd., Felix Tam, Alicia Tam, Melvyn Ackerman Inc., Ronald Robertson, and all other defendants not known and collectively referred to as John Doe and Mary Doe Respondents (Appellants) And JEL Investments Ltd. and Les Sallay Appellants (Defendants) and Docket: CA041531 Between: Boxer Capital Corporation, Yanco Management Ltd. and Chung Properties Ltd. Respondents (Plaintiffs) And JEL Investments Ltd., Les Sallay and all other defendants not known and collectively referred to as John Doe and Mary Doe Respondents (Defendants) And Marine Land Development Ltd., Jeana Ventures Ltd., Lily Lo, Miriam Pallai, Donald Ruttan, Norman Chung, Christine Chung, Barbara Marrie, Properties Worldwide Limited, 0765998 B.C. Ltd., Felix Tam, Alicia Tam, Melvyn Ackerman Inc., Ronald Robertson Appellants (Defendants) Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Bennett The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated December 27, 2013 ( Boxer Capital Corporation v. JEL Investments Ltd. , 2013 BCSC 2366, Vancouver Docket No. S126588). Counsel for the Appellants, JEL Investments Ltd. and Les Sallay: I.G. Nathanson, Q.C. J.V. Payne Counsel for the Respondents, Boxer Capital Corporation and Yanco Managements Ltd. and Chung Properties Ltd.: D.C. Harbottle Counsel for the Appellants, Marine Land Development Ltd., Jeana Ventures Ltd, Lily Lo, Miriam Pallai, Donald Ruttan, Norman Chung, Christine Chung, Barbara Marrie, Properties Worldwide Limited, 0765998 B.C. Ltd., Felix Tam, Alicia Tam, Melvyn Ackerman Inc., Ronald Robertson: R.J. Kaardal, Q.C. Place and Date of Hearing: Vancouver, British Columbia November 4, 2014 Place and Date of Judgment: Vancouver, British Columbia January 20, 2015 Written Reasons by: The Honourable Chief Justice Bauman Concurred in by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Mr. Justice Willcock Summary: Appeal from an order of a Supreme Court judge sitting on appeal from a commercial arbitration award. The judge held the arbitrator had erred in finding that issue estoppel did not apply. Held: Appeal allowed. The arbitrator did not err in finding that issue estoppel did not apply. The arbitral award is reinstated. Reasons for Judgment of the Honourable Chief Justice Bauman: I.        Introduction [1] This is an appeal from an order of a Supreme Court judge sitting on appeal from a commercial arbitration award. [2] The parties have agreed that the result in this appeal will determine the result in CA41526 and CA41531, as well. [3] Commercial Arbitration is intended to provide a speedy and, in the vast majority of cases, final determination of the issue or issues between the parties. The issues between the sophisticated commercial parties in the present case are not terribly complex. They involve the construction of a joint venture agreement. Yet I count two separate arbitrations and nine judicial proceedings to date in this saga. Surely that procedural history is inconsistent with the objectives of commercial arbitration. [4] This appeal serves as a reminder of the importance of judicial restraint in the review of arbitral awards, at least in the commercial context. When sitting on appeal from an arbitral award, a court’s jurisdiction is narrow. The inquiry differs fundamentally from a trial, and even from a judicial review of an administrative decision. [5] The applicable legislation is the Arbitration Act , R.S.B.C. 1996, c. 55 (known as the Commercial Arbitration Act until March 2013). Section 31(1) provides that a party may appeal an arbitral award to the Supreme Court on a question of law if all the parties consent or the court grants leave. Leave “may” be granted if the court determines that (s. 31(2)): (a)        the importance of the result of the arbitration to the parties justifies the intervention of the court and the determination of the point of law may prevent a miscarriage of justice, (b)        the point of law is of importance to some class or body of persons of which the applicant is a member, or (c)        the point of law is of general or public importance. [6] Parties are afforded such narrow scope to appeal arbitral awards because arbitration is intended to be “an alternate dispute mechanism” rather than “one more layer of litigation” ( BCIT (Student Association) v. BCIT , 2000 BCCA 496 at para. 14, per Madam Justice Saunders, emphasis added). [7] This was recently confirmed by the Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, a decision released shortly after the appellant filed its factum in this appeal. In Sattva , Mr. Justice Rothstein for the Court observed that an appeal from an arbitral award “takes place under a tightly defined regime specifically tailored to the objectives of commercial arbitrations and is different from judicial review of a decision of a statutory tribunal” (at para. 104). In general, parties choose to submit their dispute to arbitration; they also choose the number and identity of their arbitrator or arbitrators. This means that the judicial review framework developed in Dunsmuir v. New Brunswick , 2008 SCC 9, “is not entirely applicable” to appeals from arbitral awards ( ibid. ). For example, while the Dunsmuir framework merely affords deference to an administrative tribunal’s factual findings, the Arbitration Act “ forbids review of an arbitrator’s factual findings” ( ibid ., emphasis added). [8] Like the present appeal, Sattva dealt with an issue of contractual interpretation. Mr. Justice Rothstein explained that in most cases, issues of contractual interpretation will be important only to the parties themselves, and will not have a broader impact (at para. 51). However, the role of appellate courts (including the B.C. Supreme Court, when sitting on appeal from an arbitral award) is generally not to provide “a new forum for parties to continue their private litigation” but rather to ensure “the consistency of the law” and decide legal issues of public importance ( ibid .). Accordingly, “our legal system leaves broad scope to tribunals of first instance to resolve issues of limited application” (at para. 52). In sum, “the goals of limiting the number, length, and cost of appeals, and of promoting the autonomy and integrity of trial proceedings … weigh in favour of deference to [arbitrators] on points of contractual interpretation” ( ibid .). [9] Sattva held that questions of contractual interpretation should almost always be regarded as questions of mixed fact and law (at para. 50). (Historically they were seen as questions of law.) This means that, after Sattva , leave will rarely be granted to appeal an arbitral award on a question of contractual interpretation. (If Sattva had been decided earlier, leave arguably would not have been granted to appeal the parties’ initial arbitral award and this lengthy saga would have been avoided.) [10] When leave is granted to appeal an arbitral award, the reviewing court is bound by the arbitrator’s factual findings ( Sattva at para. 104). The normal “palpable and overriding error” standard does not apply; the arbitrator’s factual findings simply cannot be disturbed. The standard of review on the question of law under appeal will “almost always” be reasonableness (at para. 75). Here the Dunsmuir framework does apply (at para. 106), so the standard would be correctness if, for example, the question was both centrally important to the legal system as a whole and outside the arbitrator’s area of expertise (see Dunsmuir at para. 60; Toronto (City) v. C.U.P.E. , 2003 SCC 63 at para. 6). [11] Finally, when leave is granted to appeal an arbitral award, it is important for the reviewing court to strictly honour the boundaries of the question or questions of law on which leave was granted. The appeal is not one at large. The reviewing court must constantly remind itself of the narrow question or questions before it, lest it improperly expand its search for error into areas that go beyond those questions, let alone areas that go beyond the scope of the dispute referred by the parties to the arbitrator. I proceed on this basis. II.       Background [12] In January 2007, JEL Investments Ltd. contracted to purchase certain real property in North Vancouver. The down payment was $4 million. JEL paid a $1.1 million non-refundable deposit and had until 27 August 2007 to secure the remaining $2.9 million. [13] JEL contacted Boxer Capital Corporation to inquire whether it was interested in joining the venture and contributing the remaining capital. Boxer was interested but was not willing to contribute the full amount. It contacted Yanco Management Ltd., which also expressed interest in the venture. [14] I will refer collectively to Boxer and Yanco as the “Boxer Parties”, as their situations are identical in respect of the issues in this appeal. [15] The principals of JEL and the Boxer Parties conducted negotiations over the telephone. This led to a meeting on 10 August 2007. An initial term sheet proposed that JEL would contribute 50% of the equity and own 50% of the joint venture, while each of the Boxer Parties would contribute 25% of the equity and own 25%. The Boxer Parties would loan $1 million to JEL to finance its equity contribution. JEL’s share of the profits from the venture would be paid to the Boxer Parties until the loan was repaid in full. [16] JEL rejected this proposal but the parties agreed to an alternative. JEL would contribute proportionately less equity than the Boxer Parties, but profits from the venture would be paid to the Boxer Parties as capital reductions until their capital balances became proportionate to their ownership stakes. [17] On 22 November 2007, the parties entered into a formal Co-Owners’ Agreement (the “COA”). Pursuant to it, JEL contributed 25% of the equity ($765,732) but received 50% of the shares. Each of the Boxer Parties contributed 37.5% of the equity ($1,148,598) and received 25% of the shares. [18] Section 4.7 of the COA sets out the priority schedule for profits. It provides that, after debt expenses, maintenance of a reserve fund and interest on shareholder loans, any profits would first be paid to the Boxer Parties to reduce each of their capital balances to $382,866. This is the amount which is proportionate to their ownership stakes of 25%, given that JEL contributed twice that amount for its 50% stake. In other words, s. 4.7 provides that profits could not be distributed to the parties as shareholders unless and until the venture distributed $765,732 (being $1,148,598 less $382,866) to each of the Boxer Parties to make their capital balances proportionate to their ownership stakes. I will refer to the total amount of $1,531,464 (being double $765,732) as the “Disproportionate Capital”. [19] Section 7 of the COA is a shotgun clause: 7.1       Trigger: Any Co-Owner (hereinafter called the “Offeror”) may give to the other Co-Owners (hereinafter called the “Offerees”) a written offer to sell all, but not less than all, of the Offeror’s Interest in the Property and Shares owned by the Offeror, specifying: (a)        the sale price being offered for the Interest; (b)        the completion date for the sale and transfer of the Interest (which shall not be less than sixty (60) days from the date of the offer); (c)        any other terms and conditions of the sale; and (d)        that the offer to sell is being made pursuant to the Part 7 Compulsory Buy-Out provisions of this Agreement. 7.2       Sale by Offeror. If any of the Offerees accept the offer to sell by the Offeror, then those Offerees shall purchase, and the Offeror shall sell to those Offerees, the Offeror’s interest in accordance with those Offerees’ respective JV Interests. 7.3       Purchase by offeror. If none of the Offerees accept the offer to sell by notice in writing to the Offeror within thirty (30) days of delivery of the offer to sell to the Offerees, then the Offeror shall purchase, and the Offerees shall sell, all of the Interests of the Offerees on the same terms and conditions specified in the offer to sell, except the price. The sale price for each Offeree’s Interest shall be that amount determined by multiplying the sale price offered by the Offeror to the Offerees by a fraction, the numerator of which is the Offeree’s JV Interest, and the denominator of which is the Offeror’s JV Interest. [20] “Interest” is defined to mean “with respect to any Co-Owner, all of that Co-Owner’s right, title and interest in this Joint Venture including its shares, invested capital as shareholder loans and its interest in the Property” (s. 1.1(b)). Sections 7.1 and 7.3 refer to an “Interest” while s. 7.2 refers to an “interest”. [21] The COA also contains a mandatory arbitration clause (s. 10.2). [22] In the spring of 2008, Yanco sold half its interest in the venture to Chung Properties Ltd. Nothing in the present appeal turns on this detail and for simplicity I will ignore it. [23] In May 2008, JEL triggered the shotgun clause by offering its 50% interest to the Boxer Parties for $1.425 million. At this time the project was not yet profitable and none of the Disproportionate Capital had been paid out to the Boxer Parties’ pursuant to s. 4.7. The Boxer Parties declined JEL’s offer, meaning JEL was required by s. 7 to purchase their interests. [24] A dispute arose as to the price. Relying on s. 7.3, JEL took the position that it had to pay only $1.425 million, the offer price, for the Boxer Parties’ combined 50%. The Boxer Parties took the position that JEL had to pay $2.19 million, being the offer price of $1.425 million plus half the Disproportionate Capital ( i.e. , $765,732). If JEL paid $765,732 (the “Equalization Amount”) to the Boxer Parties, JEL’s net equity contribution would effectively increase from $765,732 to $1,531,464 and the Boxer Parties’ net equity contribution would effectively decrease from $2,297,196 to $1,531,464. In a letter to JEL, the Boxer Parties asserted it was “a term of the [COA] (in part, s. 7.1(c)) and an obligation between the parties” that JEL would pay the Equalization Amount as part of the shotgun purchase price. III.       Procedural History A.       Braidwood Arbitration [25] In early 2009, the Boxer Parties referred the matter to arbitration before Mr. Thomas Braidwood, Q.C. [26] The Boxer Parties framed the central issue as whether JEL was required to pay the Equalization Amount in addition to the $1.425 million “as a term or condition of the completion of the compulsory purchase of the [Boxer Parties’] interests” (Claimants’ Submission, Issue (a)). In their submissions to Arbitrator Braidwood, the Boxer Parties repeatedly emphasized that if JEL was not required to pay the Equalization Amount as part of the shotgun purchase, JEL would realize a windfall. [27] Arbitrator Braidwood held that there is an implied term in the COA that if JEL was required by the shotgun clause to purchase the Boxer Parties’ interests, it would also pay the Equalization Amount (to the extent the Disproportionate Capital had not already been paid out pursuant to s. 4.7) (the “Implied Term”). He found that the parties had not, when they entered into the COA, turned their minds to what would happen in these circumstances. However, he considered that the COA as a whole suggested it was the parties’ mutual intention that JEL could not recoup its capital contribution or earn profits unless and until the parties’ capital balances were rendered proportionate to their ownership stakes. Thus, he concluded that, if the parties had turned their mind to the issue, they would have immediately agreed that, if JEL was required by the shotgun clause to purchase the Boxer Parties’ interests, it would also pay them the Equalization Amount. Otherwise JEL would receive a windfall and, in Arbitrator Braidwood’s view, that was plainly not the parties’ intention. Accordingly, he found the Implied Term to be necessary to give business efficacy to the parties’ mutual intentions. [28] Arbitrator Braidwood ordered, inter alia , that JEL purchase the Boxer Parties’ interests for $2.19 million, being the shotgun price of $1.425 million plus the Equalization Amount of $765,732 (“the Braidwood Award”). [29] Arbitrator Braidwood also ordered the parties to execute an agreement terminating the COA, confirming their relationship was over. As will become clear, the way in which I propose to dispose of this appeal renders the termination agreement irrelevant. Accordingly, I will not discuss it further. B.       Dickson Order [30] Pursuant to s. 29 of the Arbitration Act , the Boxer Parties applied to Madam Justice Dickson of the Supreme Court for leave to enforce the Braidwood Award as an order of that Court. Madam Justice Dickson ordered, inter alia , that the Braidwood Award “is made” an order of the Supreme Court (the “Dickson Order”). [31] JEL began an appeal of the Dickson Order, but then abandoned the appeal. C.       Application for Leave to Appeal Braidwood Award [32] Pursuant to s. 31 of the Arbitration Act , JEL applied to Madam Justice Adair of the Supreme Court for leave to appeal the Braidwood Award. She dismissed the application, with reasons indexed as 2010 BCSC 947. She held that the issues of contractual interpretation raised by JEL were issues of mixed fact and law. As noted, leave to appeal is available only on issues of law (s. 31(1)(b)). [33] JEL appealed that dismissal to this Court, which allowed the appeal. With reasons indexed as 2011 BCCA 142, Madam Justice Newbury for the Court granted leave to appeal the Braidwood Award “on the grounds only that the arbitrator erred in failing to have regard to established principles of law in deciding that a term should be implied” (at para. 31, emphasis in original). D.       Appeal of Braidwood Award [34] The appeal of the Braidwood Award was heard by Mr. Justice Goepel (then of the Supreme Court). He allowed JEL’s appeal. [35] With reasons indexed as 2011 BCSC 1526, Mr. Justice Goepel held that Arbitrator Braidwood had erred in finding the Implied Term. He concluded the Implied Term is not necessary to give business efficacy to the parties’ intentions, and is inconsistent with the express provisions of the COA. [36] After setting out the positions of the parties, Mr. Justice Goepel discussed the law of implied terms. He quoted from this Court’s decision in Olympic Industries Inc. v. McNeil (1993), 86 B.C.L.R. (2d) 273 at 278-279, where Mr. Justice Finch (as he then was) adopted Lord Scrutton’s comments in Reigate v. Union Manufacturing. Co. (Ramsbottom ), [1918] 1 K.B. 592 at 605 (C.A.): an implied term is not to be added because the Court thinks it would have been reasonable to have inserted it in the contract. A term can only be implied if it is necessary in the business sense to give efficacy to the contract; that is, if it is such a term that it can confidently be said that if at the time the contract was being negotiated someone had said to the parties, “What will happen in such a case,” they would both have replied, “Of course, so and so will happen; we did not trouble to say that; it is too clear.” Unless the Court comes to some such conclusion as that, it ought not to imply a term which the parties themselves have not expressed. [37] Mr. Justice Goepel found, contrary to Arbitrator Braidwood, that if the parties had turned their minds to the issue at the time they entered into the COA, JEL would not have agreed to the Implied Term (at para. 43): [43]      The factual matrix makes clear that the implied term would not have been agreed to by JEL. It had rejected a similar term during negotiations. The initial term sheet contemplated Boxer Capital and Yanco lending JEL $1 million to fund its capital contribution. JEL rejected that proposal. In its place, instead of lending money to JEL, Boxer Capital and Yanco agreed to make a disproportionate capital contribution to the venture, to be repaid with interest from the venture’s profits in priority to JEL receiving any return from the project. If the project did not prosper their disproportionate capital contribution would be lost without any recourse against JEL. [38] Mr. Justice Goepel described the Implied Term as “the antithesis of the bargain that the parties made” (at para. 45). [39] However, Mr. Justice Goepel agreed with Arbitrator Braidwood that the COA as a whole suggested it was the parties’ intention that JEL could not recoup its equity contribution or realize a profit unless and until the Boxer Parties first recouped the Disproportionate Capital. Mr. Justice Goepel stated the Implied Term was not necessary “to reach this result” because, in his view, while the shotgun clause allows JEL to purchase the Boxer Parties’ shares , the Disproportionate Capital “remains in the project” to be paid out to the Boxer Parties, if and when the project becomes profitable, in accordance with the priority schedule in s. 4.7 (at paras. 40, 53). Thus, properly interpreted, the shotgun clause does not operate to fully separate the parties’ interests. [40] This led the Boxer Parties to request that Mr. Justice Goepel add a term to his order stating the Disproportionate Capital “remains in the project”. Mr. Justice Goepel declined to make such an order. JEL submitted that such an order would be inappropriate because Mr. Justice Goepel did not have jurisdiction to interpret the COA. Leave to appeal the Braidwood Award had been granted only on the question of whether Arbitrator Braidwood had erred in finding the Implied Term. In supplementary reasons indexed as 2011 BCSC 1767, Mr. Justice Goepel disagreed, finding he did have jurisdiction to interpret the COA. He reasoned it was only by interpreting the COA that he could determine whether the implied term was necessary to give business efficacy to the parties’ intentions, i.e. , whether Arbitrator Braidwood had erred. However, he stated his order should reflect only the result of his inquiry – that there is no Implied Term – rather than the reasons for which he had reached that result. [41] In the end, Mr. Justice Goepel ordered, inter alia , that: The appeal herein is allowed and that the provision in the Arbitration Award of Thomas Braidwood, Q.C. dated March 23, 2009 requiring payment of a capital adjustment in the amount of $765,732.26 [ i.e. , the Equalization Amount] to [the Boxer Parties] be and is hereby set aside. [42] No appeal was taken from this order (the “Goepel Order”). [43] The parties concluded the shotgun purchase. JEL paid the undisputed $1.425 million. The Equalization Amount was placed in trust. E.       Ghikas Arbitration [44] On 22 December 2011, the Boxer Parties commenced Supreme Court action S118836 against JEL (and a number of other parties) to recover the Equalization Amount from JEL (among other purposes). Pursuant to s. 15 of the Arbitration Act , JEL applied to Mr. Justice Savage (then of the Supreme Court) for a stay of that action. He granted the stay, with reasons indexed as 2012 BCSC 684. [45] JEL referred the matter for arbitration before Mr. Gerald Ghikas, Q.C. [46] JEL sought a declaration that the Boxer Parties had no continuing interest of any kind in the venture. The Boxer Parties initially took the position that JEL had no right under the COA to refer this matter to arbitration, given that it had already been arbitrated and appealed. They wished to pursue their Supreme Court action. However, the Boxer Parties ultimately withdrew this objection and argued the merits before Arbitrator Ghikas. [47] The Boxer Parties raised the defence of issue estoppel. They submitted that JEL was estopped, by the decisions of both Arbitrator Braidwood and Mr. Justice Goepel, from arguing that the Boxer Parties did not have a continuing interest in the venture. [48] Arbitrator Ghikas considered (at para. 38) the requirements for issue estoppel articulated by Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) , [1967] 1 A.C. 853 at 935, adopted by the Supreme Court of Canada in Angle v. M.N.R. , [1975] 2 S.C.R. 248 at 254 , per Mr. Justice Dickson (as he then was): (1)        That the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons or the parties to the proceedings in which the estoppel is raised. [49] On the meaning of “same question”, Arbitrator Ghikas quoted (at para. 38) this Court’s decision in Re Cliffs Over Maple Bay Investments Ltd. , 2011 BCCA 180 at paras. 31-33, per Madam Justice Newbury: [31]      …There is also the well-known formulation of issue estoppel given by Middleton J.A. in McIntosh v. Parent [1924] 4 D.L.R. 420 (Ont. C.A.): When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains. [32]      The narrow wording (“directly determined”) adopted in these and other authorities, however, has not been construed as strictly as one might expect. In Danyluk [ v. Ainsworth Technologies Inc. , 2001 SCC 44] , Binnie J. for the Court stated at para. 54 that issue estoppel applies “to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that ‘issue’ in the prior proceeding”. This would seem to echo the formulation provided by Lord Shaw in Hoystead [ v. Taxation Commissioner , [1926] A.C. 155 (J.C.P.C.)]: Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle – namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision , taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ rights to rest applies and estoppel occurs. The wording used in Hoystead (where it was held that issue estoppel applied not only to the admission of a fact fundamental to the first decision, but also to “an erroneous assumption as to the legal quality of that fact”) which I have underlined above was approved in Angle, supra , at 255, and by this court in Morgan Power Apparatus v. Flanders Installations Ltd . (1972) 27 D.L.R. (3d) 249, at 252. [33]      Lange [ The Doctrine of Res Judicata in Canada , 3rd ed. (Markham: LexisNexis, 2010)] (see 58-65 and the cases cited therein) suggests that an “extended form” of issue estoppel has been adopted in some provinces such that any question that could have been decided or could have been raised at the first proceeding, will be barred in the second. However, this approach has not received appellate approval in this province, and when it has been used, seems not to have led to a different result than the traditional approach. [Emphasis added by Madam Justice Newbury.] [50] Arbitrator Ghikas concluded that neither Arbitrator Braidwood nor Mr. Justice Goepel had decided the same question as was before him. [51] According to Arbitrator Ghikas, the claim before Arbitrator Braidwood was for an order that JEL pay the Equalization Amount as part of the purchase price under the shotgun clause. At that time it was common ground among the parties that the shotgun clause would fully separate their interests. By contrast, the claim before him was for a declaration that the Boxer Parties had no continuing interest in the project after the operation of the shotgun clause. [52] Arbitrator Ghikas then carefully analyzed the reasoning of Mr. Justice Goepel. He indicated that Mr. Justice Goepel’s reasons “must, in a sense, be ‘deconstructed’ to distinguish his decision on the matter before him from his reasoning and to determine the extent to which his reasoning was or was not fundamental to his decision” (at para. 50). Mr. Justice Goepel’s conclusion that the parties would not obviously have agreed to the Implied Term was clearly fundamental to his decision. It was on this basis that he held Arbitrator Braidwood had erred in finding the Implied Term. However, according to Arbitrator Ghikas, nothing that followed was fundamental to Mr. Justice Goepel’s decision. In particular, Mr. Justice Goepel’s conclusion that the Boxer Parties retained a continuing interest was not fundamental to his decision because it was not necessary to support his holding that Arbitrator Braidwood had erred (at para. 52). [53] Arbitrator Ghikas went on to consider the “extended form” of issue estoppel discussed in Cliffs Over Maple Bay , holding that it too would not apply (assuming such a doctrine indeed exists in this province). [54] Arbitrator Ghikas conducted his “own analysis” of the COA (para. 73). He concluded that, properly interpreted, the COA provides that the Disproportionate Capital became JEL’s property when it purchased the Boxer Parties’ interests for $1.425 million pursuant to the shotgun clause. [55] In the result, Arbitrator Ghikas declared that the Boxer Parties had no continuing interest of any kind in the venture, including any right to be paid the Disproportionate Capital (the “Ghikas Award”). F.       Application for Leave to Appeal Ghikas Award [56] Pursuant to s. 31 of the Arbitration Act , the Boxer Parties applied to Mr. Justice Leask of the Supreme Court for leave to appeal the Ghikas Award. He granted leave, with reasons indexed as 2013 BCSC 678. [57] JEL appealed Mr. Justice Leask’s granting of leave. This Court dismissed the appeal, with reasons indexed as 2013 BCCA 297. Leave to appeal the Ghikas Award was granted on the question of whether Arbitrator Ghikas “erred in law by holding that the doctrine of res judicata did not apply” to the Braidwood Award and Goepel Order (at para. 1). G.      Appeal of Ghikas Award [58] The appeal of the Ghikas Award in Supreme Court was heard by Mr. Justice Abrioux. With reasons indexed as 2013 BCSC 2366, Mr. Justice Abrioux held that Arbitrator Ghikas had erred in holding that issue estoppel did not apply. Accordingly, he allowed the Boxer Parties’ appeal. [59] Mr. Justice Abrioux held that Arbitrator Ghikas had erred in taking overly narrow views of the question which was before him and those which had been before Arbitrator Braidwood and Mr. Justice Goepel (at para. 56). Mr. Justice Abrioux stated that the “real issue” had been the same throughout, namely whether the $1.425 million shotgun purchase price included the Disproportionate Capital such that if JEL paid $1.425 million to the Boxer Parties, the Boxer Parties would have no remaining interest of any kind in the venture (at paras. 57, 71). [60] Arbitrator Braidwood and Mr. Justice Goepel both answered this question in the negative, albeit for different reasons. Arbitrator Braidwood held JEL had to pay the Equalization Amount (to compensate for the Disproportionate Capital) at the time of the shotgun purchase, in addition to the $1.425 million. Mr. Justice Goepel disagreed, holding that JEL only had to pay $1.425 million at the time of the shotgun purchase. However, he also held that the Disproportionate Capital remained in the project and, if the project became sufficiently profitable, would have to be paid out to the Boxer Parties according to the priority schedule in s. 4.7 of the COA. [61] According to Mr. Justice Abrioux, Arbitrator Ghikas “reached a different conclusion on the same issue” (at para. 60). He found that the $1.425 million included the Disproportionate Capital in the sense that if JEL paid $1.425 million to the Boxer Parties, they would have no further interest in the project. IV.      Grounds of Appeal [62] JEL appeals to this Court. The material grounds of appeal are that Mr. Justice Abrioux erred by: a) holding that the reasons of Mr. Justice Goepel granted rights to the Boxer Parties beyond those contained in those portions of the Braidwood Award and Dickson Order which remained extant following the Goepel Order; and, b) holding that the reasons of Mr. Justice Goepel supported a finding that issue estoppel applied in the circumstances of this case. V.       Summary of the Positions of the Parties [63] In essence, JEL’s position is that all issues were settled, and the litigation should have stopped, after the Goepel Order. It says the effect of the Goepel Order was to set aside the term of the Braidwood Award and Dickson Order requiring JEL to pay the Equalization Amount as part of the shotgun purchase price. It emphasizes that it was common ground among the parties before Arbitrator Braidwood and Mr. Justice Goepel that the shotgun purchase would fully separate the parties’ interests, whether or not the price included the Equalization Amount. Accordingly, JEL says that after it paid $1.425 million and the shotgun purchase closed, the parties’ interests were fully separated and the dispute was over. [64] In JEL’s submission, Mr. Justice Goepel exceeded his jurisdiction by publishing reasons for judgment containing dicta to the effect that the Disproportionate Capital would remain in the venture to be paid out to the Boxer Parties pursuant to s. 4.7, if the venture became sufficiently profitable. JEL notes that it could not appeal from this finding, as it was not reflected in the Goepel Order. It says this finding led the Boxer Parties to abandon their earlier position and assert that, notwithstanding the shotgun sale, they retained a contractual right to be paid the Disproportionate Capital pursuant to s. 4.7. It was on the basis of this position that the Boxer Parties commenced action S118836, which JEL succeeded in staying in favour of the arbitration giving rise to the present appeal. [65] In a sense, the Boxer Parties agree the litigation ought to have ended after Mr. Justice Goepel’s decision – though they take a very different view of the significance of that decision. In their submission, Mr. Justice Goepel’s decision established that, even after the shotgun sale, they retained the right under s. 4.7 of the COA to be paid the Disproportionate Capital, if and when the venture became sufficiently profitable. They say he had jurisdiction to make this finding because it was necessary for him to interpret the COA to determine if Arbitrator Braidwood had erred. They emphasize that JEL did not appeal Mr. Justice Goepel’s decision. [66] The Boxer Parties say they commenced action S118836 only because it seemed there was a risk that the Disproportionate Capital would be paid out, but not to them. (JEL had brought in new co-owners.) Arbitrator Ghikas considered the same issue as had been before Mr. Justice Goepel and Arbitrator Braidwood: who owns the Disproportionate Capital? Mr. Justice Abrioux was correct to conclude issue estoppel applied. VI.      Discussion [67] I begin my discussion by observing that the analysis in this matter has been complicated by the description, in some of the decisions below and even the parties’ submissions, of the sum of $765,732 as the “disproportionate capital” . In fact, this is only half the Disproportionate Capital. [68] The Disproportionate Capital is the amount by which the Boxer Parties’ equity contribution to the venture ($2,297,196) exceeds the amount which is proportionate to their ownership stake of 50%, given that JEL contributed $765,732 of equity in exchange for its ownership stake of 50%. In other words, the Disproportionate Capital is $1,531,464, being $2,297,196 less $765,732. This is confirmed by the fact that the Boxer Parties enjoy priority under s. 4.7(d) to $1,531,464 of the venture’s profits, not only $765,732 of the venture’s profits. [69] $765,732, which I have defined as the Equalization Amount, is the sum that, in the Boxer Parties’ submission, JEL is required by the COA to pay to the Boxer Parties as part of the shotgun purchase price (in addition to the $1.425 million). The Equalization Amount is only half the Disproportionate Capital because it is JEL, rather than the venture itself, that (allegedly) must pay it to the Boxer Parties. If JEL paid $765,732 to the Boxer Parties, JEL’s net equity contribution would effectively increase from $765,732 to $1,531,464 and the Boxer Parties’ net equity contribution would effectively decrease from $2,297,196 to $1,531,464. This is proportional, given that JEL and the Boxer Parties both owned 50% of the venture (before the shotgun sale). [70] Although Mr. Justice Goepel agreed with Arbitrator Braidwood that the COA as a whole suggested it was the parties’ intention that JEL could not recoup its contribution or realize a profit unless and until the Boxer Parties first recouped the Disproportionate Capital, their decisions lead to very different results. [71] The Braidwood Award requires JEL to pay $2,190,732 to the Boxer Parties, after which they would have no remaining interest in the venture. This would permit the Boxer Parties to recover almost their entire investment of $2,297,196, irrespective of the venture’s success or failure. [72] A very different result flows from the decision of Mr. Justice Goepel, assuming (without deciding) that it was effective in conferring a continuing interest on the Boxer Parties. His decision requires JEL to pay $1,425,000 to the Boxer Parties, after which they would remain entitled to be paid $1,531,464 (the true Disproportionate Capital) from the venture, pursuant to s. 4.7, if the venture became sufficiently profitable. If the venture did ultimately succeed, the Boxer Parties would receive $2,956,464, plus interest on the Disproportionate Capital pursuant to s. 4.7(e). This represents a significant return on their original investment. [73] With this clarifying explanation, I turn to discuss the issues in this appeal. It is necessary to recall exactly what those issues are because, respectfully, some of us have lost sight of the narrowness of the issues and ventured opinions which go well beyond them. What has been lost in the process are the benefits that all acknowledge flow from commercial arbitration and restrained judicial review of its fruits, arbitral awards. [74] The first step, reflecting this focus on specificity, is to recall the narrow issue before Mr. Justice Goepel because it defines, in my view, the scope of any issue estoppel that arises. The sole issue before Mr. Justice Goepel was whether Arbitrator Braidwood erred in law in finding the Implied Term. This issue does not call for a construction of the COA generally; many issues tied to the meaning and operation of the COA are not included in the narrow compass of the sole issue properly before Mr. Justice Goepel. [75] If the parties had not chosen to include a mandatory arbitration clause in the COA and the Boxer Parties had commenced a Supreme Court action rather than arbitration, many issues might have been harboured in that action and the scope of any issue estoppel might have been substantially broader. Of course, that is not what happened. The parties did agree to resolve any disputes through arbitration. As a result, the only issue before Mr. Justice Goepel in Supreme Court was whether Arbitrator Braidwood erred in law in finding the Implied Term. [76] After holding that Arbitrator Braidwood did so err, Mr. Justice Goepel went on to construe the COA generally in an effort to deal with his concern that JEL would realize a windfall if it was able to exercise the shotgun clause without paying the Equalization Amount. He found that the Disproportionate Capital remained in the venture to be paid out to the Boxer Parties pursuant to s. 4.7, if the venture became sufficiently profitable. However, what must be asked is whether, for the purposes of issue estoppel, this finding is part of the “question” Mr. Justice Goepel decided. In other words, was JEL estopped by this finding from seeking a declaration from Arbitrator Ghikas that the Boxer Parties had no continuing interest? [77] Angle and Cliffs Over Maple Bay establish that the question which is said to give rise to an estoppel must not arise collaterally or incidentally, or be one which must be inferred by argument from the judgment in question. Rather, the question must be so fundamental to the substantive outcome that the latter cannot stand without the former ( Angle at 255). The question must be “necessarily bound up with” the substantive outcome ( Cliffs Over Maple Bay at para. 32). [78] As noted, an implied term can be found only if ( Olympic Industries at 278-279): it can confidently be said that if at the time the contract was being negotiated someone had said to the parties, “What will happen in such a case,” they would both have replied, “Of course, so and so will happen; we did not trouble to say that; it is too clear.” Mr. Justice Goepel concluded this was not the case with respect to the Implied Term. ( I note parenthetically that I make no comment as to the merits of that conclusion, which is not itself on appeal.) In my view, that is all that was fundamentally necessary to dispose of the narrow question before him. B y that point in his reasoning, Mr. Justice Goepel had concluded “ that the arbitrator erred in failing to have regard to established principles of law in deciding that a term should be implied”, as Madam Justice Newbury framed the question on appeal. Accordingly, I agree with Arbitrator Ghikas that Mr. Justice Goepel’s conclusion that the Boxer Parties retain a continuing interest was not a fundamental part of his reasoning, nor was it necessarily bound up with the substantive outcome. [79] Indeed, Mr. Justice Goepel himself recognized this, at least implicitly, when he refused to include his “continuing interest” construction in his order (at para. 10 of his supplementary reasons): [10]      That said, I do not accept [the Boxer Parties’] submission that the order should amend the award of the arbitrator by adding a provision that sets out my interpretation of the agreement. The issue before the arbitrator was whether the capital adjustment had to be paid as a condition of the buy-sell agreement. After implying a term into the agreement, he held that the amounts that must be paid included the capital adjustment of $765,732.26. I have found that the arbitrator erred in his interpretation of the agreement. As a result of that error, I have set aside the arbitrator’s award insofar as it concerns the payment of the capital adjustment. [80] It is also significant that it was common ground before both Arbitrator Braidwood and Mr. Justice Goepel that the Boxer Parties would have no further interest in the venture after the shotgun purchase closed, whether the price was $1.425 million (as in JEL’s submission) or $2.19 million (as in the Boxer Parties’). This is evident from the Boxer Parties’ repeated submission that, if the price did not include the Equalization Amount, JEL would realize a windfall. This submission makes sense only if the purchase would leave the Boxer Parties with no further interest. The fact that Mr. Justice Goepel’s “continuing interest” construction departed from the common position of the parties provides further support for the view that it was not a fundamental part of his reasoning, nor was it essential to his holding on the only issue properly before him. [81] We come at last to the decision on appeal by Mr. Justice Abrioux. I stress again the narrow question before him, whether “the arbitrator erred in law by holding that the doctrine of res judicata did not apply” to the decisions of Arbitrator Braidwood and Mr. Justice Goepel. [82] Mr. Justice Abrioux characterized the issues before Arbitrator Braidwood, Mr. Justice Goepel and Arbitrator Ghikas in the broadest possible terms. He stated that the “real issue” had been the same throughout and was whether the $1.425 million shotgun purchase price included the Disproportionate Capital such that if JEL paid $1.425 million to the Boxer Parties, the Boxer Parties would have no remaining interest of any kind in the venture (at paras. 57, 71). [83] Respectfully, Mr. Justice Abrioux erred in characterizing the issues so broadly, and in finding that they had been the same throughout. When the issues are properly framed, it becomes apparent that they are quite different. The issue before Arbitrator Braidwood, as defined by the parties who chose to submit their dispute to him, was whether the shotgun purchase price under the COA was $1.425 million or $2.19 million. The issue before Mr. Justice Goepel, as defined by this Court’s decision granting leave to appeal, was whether Arbitrator Braidwood “erred in failing to have regard to established principles of law in deciding that a term should be implied”. Finally, the issue before Arbitrator Ghikas, again as defined by the parties, was whether the Boxer Parties had a continuing interest in the venture. These are different issues. [84] I therefore agree with Arbitrator Ghikas that the doctrine of issue estoppel did not apply. It was open to Arbitrator Ghikas to construe the COA afresh on the continuing interest issue. It is not for this Court to review the merits of his decision in this regard. His decision is the last word on the interpretation of the COA. [85] For these reasons, I would allow the appeal and reinstate the Ghikas Award. “The Honourable Chief Justice Bauman ˮ I AGREE: “The Honourable Madam Justice Bennett ˮ I AGREE: “The Honourable Mr. Justice Willcock ˮ

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Charlton v. Abbott Laboratories, Ltd., 2015 BCCA 26 Date: 20150122 Dockets: CA041278 & CA041291 Docket: CA041278 Between: Terry Charlton, Mayra Charlton, Angela Leone, Paula Smith-Turner, Carl Turner and Mark Mandell Respondents (Plaintiffs) And Abbott Laboratories, Ltd. Appellant (Defendant) And Abbott Laboratories and Apotex Inc. (Defendants) - and - Docket: CA041291 Between: Terry Charlton, Mayra Charlton, Angela Leone, Paula Smith-Turner, Carl Turner and Mark Mandell Respondents Appellants on Cross Appeal (Plaintiffs) And Apotex Inc. Appellant (Defendant) And Abbott Laboratories, Ltd. and Abbott Laboratories Respondents on Cross Appeal (Defendants) Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Groberman The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated September 17, 2013 ( Charlton v. Abbott Laboratories, Ltd. , 2013 BCSC 1712, Victoria Docket 110721). Counsel for the Appellant Abbott Laboratories, Ltd.: N. Finkelstein, C. Zayid, B. Kain Counsel for the Appellant Apotex Inc.: K. Kay, S. Hosseini Counsel for the Respondents: E.F.A. Merchant, Q.C. C. Churko, A. Sadaghianloo Place and Date of Hearing: Vancouver, British Columbia September 29 & 30, 2014 Place and Date of Judgment: Vancouver, British Columbia January 22, 2015 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Chief Justice Bauman The Honourable Mr. Justice Groberman Table of Contents Introduction . 4 The Certification Hearing .. 5 The Pleadings . 5 Evidence of Representative Plaintiffs . 7 The Plaintiffs’ Medical Expert 8 The Defendants’ Experts . 13 Apotex’s Evidence . 15 Judgment Appealed From .. 15 Section 4(1)(a): a cause of action . 15 Section 4(1)(b): an identifiable class . 16 Section 4(1)(c): claims raising common issues . 17 Section 4(1)(d): preferable procedure . 19 Section 4(1)(e): a representative plaintiff 20 Certification . 20 Issues on Appeal and Cross Appeal . 21 The Appellant’s Argument . 21 Insufficient Evidence of a Method of Proof of General Causation . 21 The Remaining Common Issues . 23 The Cross Appeal 25 Applicable Law .. 26 The Class Proceedings Act 26 Evidentiary Basis for Certification . 27 Identifiable Class . 28 Common Issues . 29 Preferability . 37 Standard of Review of a Certification Order 38 Analysis . 39 Certification of the General Causation Question . 39 Other Common Issues . 40 Conclusion . 43 Summary: Patients who had used sibutramine commenced an action against Abbott Laboratories, Ltd. and Apotex Inc., founded upon allegations the drug increased the risk of cardiovascular events, including heart attack and stroke. They pleaded causes of action in negligence and that sibutramine had been marketed in breach of obligations described in the Business Practices and Consumer Protection Act and the Competition Act and sought damages pursuant to the doctrine of waiver of tort. This is an appeal by the manufacturers from the certification of the proceedings as a class action against two defendants and a cross appeal from the refusal of the judge to certify class proceedings against a third defendant. The appellants argue the plaintiffs failed to meet the criteria for certification under s. 4 of the Class Proceedings Act by failing to adduce some evidence of a workable methodology to prove causation of damages on a class-wide basis. Held: appeal allowed. The certification judge erred in certifying the class action. Each common issue required a finding that sibutramine increases the risk for all class members. The plaintiffs did not adduce evidence of a methodology to address this question. While the plaintiffs provided evidence that sibutramine increased the risk of cardiovascular events for those with pre-existing conditions, there was no evidence before the certification judge of a method of establishing that sibutramine increased the risk of harm to patients without pre-existing conditions, for whom it was intended. The evidence before the certification judge was that the question of causation for the class was incapable of resolution. The certification order is set aside. Reasons for Judgment of the Honourable Mr. Justice Willcock: Introduction [1] This appeal, from an order certifying class proceedings against the appellant, for reasons indexed as Charlton v. Abbott Laboratories, Ltd., 2013 BCSC 1712, requires us to consider the nature and extent of the evidentiary burden that must be discharged by parties seeking to certify class proceedings. [2] The class action is brought on behalf of patients for whom sibutramine was prescribed. Sibutramine was developed as an antidepressant. In its use for that purpose it was believed to suppress appetite. In late 2000, Health Canada approved the marketing by prescription of Meridia, a drug containing sibutramine, for use as part of weight loss regimes. Abbott Laboratories, Ltd. (“Abbott”) distributed and sold Meridia in Canada. In late 2009, Abbott’s exclusive right to distribute Meridia ended and Health Canada approved an application by Apotex Inc. (“Apotex”) to distribute a generic weight loss drug containing sibutramine under the name Apo-Sibutramine. [3] A clinical trial conducted between January 2003 and March 2009 (the Sibutramine Cardiovascular Outcome Trial, or “SCOUT Study”) suggested an increased risk of serious cardiovascular events was associated with sibutramine use by patients with pre‑existing heart problems. The results of the SCOUT study were published in The New England Journal of Medicine on September 2, 2010. The drug was voluntarily withdrawn from the Canadian market by Abbott and Apotex in October 2010. [4] The plaintiffs claim to have suffered cardiovascular events, ranging from increased heart rates and elevated blood pressure to myocardial infarction, as a result of their use of Meridia or Apo-Sibutramine. Their application to certify a class action on behalf of all Canadian consumers of sibutramine resulted in the order from which this appeal is brought. The Certification Hearing The Pleadings [5] The pleadings describe the proposed class of plaintiffs as persons resident or situated in British Columbia or another Canadian province or territory who have used or purchased sibutramine. The plaintiffs allege that ingestion of sibutramine causes or contributes to an increased risk of adverse cardiovascular events, such as heart attacks and strokes, increased blood pressure and heart rate, and irregular heartbeat. They allege that the SCOUT study determined that sibutramine increases the risk of cardiovascular events. Some named plaintiffs claim to have suffered cardiovascular events as a result of the use of sibutramine. The plaintiffs say damages arising from the defendant’s actions and omissions in marketing a drug that increased the risk of cardiovascular events include: a) high heart rate and blood pressure, palpitations, irregular heartbeat, and heart attack; b) direct or indirect economic losses including, but not limited to, out-of-pocket expenses for treatment, cost of future care and loss of employment income; and c) other pain and loss suffering stemming from illness of a class member as the result of the use of sibutramine. [6] The plaintiffs claim general and special damages, punitive, aggravated and exemplary damages, and remedies available under the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 [ BPCPA ], and the Competition Act , R.S.C. 1985, c. C‑34. [7] Misrepresentation by the defendants of the risks associated with the use of sibutramine is said to constitute an unlawful, unfair and deceptive trade practice and a violation of s. 52 of the Competition Act . [8] The plaintiffs say the marketing of sibutramine had the effect of deceiving or misleading consumers and the defendants engaged in unfair practices under the BPCPA . [9] The defendants are alleged to have failed to adequately test sibutramine, to control its quality, or to properly manufacture it. [10] It is alleged the defendants negligently marketed sibutramine when they knew, or should have known, that its propensity to injure outweighed the value of its use. [11] Not having removed the product from the market, the defendants are alleged to have failed to adequately and promptly warn consumers of risks. They are said to have promoted sibutramine as a safe and effective weight loss drug when it was neither safe nor effective. [12] The plaintiffs claim that if the defendants had complied with the standard of care expected of them, they would not have sold sibutramine to class members, nor received any of the revenues generated by its sale. As an alternative to advancing the claims in negligence, the plaintiffs say they will waive the tort and seek to recover for the class all revenue earned by the defendants from the sale of sibutramine. [13] The pleadings may be read as advancing claims of two types: a) claims on behalf of those members of the class that have suffered cardiac injuries, founded upon the assertion that those injuries were caused or contributed to by the use of sibutramine; and b) a claim that the manufacturers should repay all profits earned by marketing sibutramine, because it was ineffective and its use exposed class members to a risk of harm. Evidence of Representative Plaintiffs [14] Angela Leone deposes that she was prescribed and began taking Meridia in January 2006, and had her first heart attack on May 10, 2009. [15] Mark Mandell deposes that he was prescribed and began taking Meridia in February 2009, and had his first heart attack on May 25, 2009. [16] Carl Turner deposes that his wife Paula Smith-Turner began taking Meridia in November 2006 and had a stroke on December 23, 2006. [17] Paula Smith-Turner deposes that in November 2006 she began taking Meridia as directed by her doctor, and on December 23, 2006, suffered a stroke. She does not describe her medical condition before the stroke. [18] Terry Charlton deposes that in May 2010, he began taking Apo-Sibutramine at the direction of his doctor for a weight loss program and he began to have shortness of breath around June or July 2010 and chest pains around August 2010. He does not describe his pre‑June 2010 health. [19] Mayra Charlton deposes that her husband, Terry Charlton, was prescribed and began taking Apo-Sibutramine in May 2010 and in August 2010, he began to experience chest pains and shortness of breath. She does not describe Mr. Charlton’s pre‑August 2010 medical condition. The Plaintiffs’ Medical Expert [20] In support of their application for certification, the respondents filed two affidavits sworn by Dr. David H. Fitchett, a cardiologist at St. Michael’s Hospital, Associate Professor of Medicine at the University of Toronto, and former director of the coronary care unit of St. Michael’s Hospital. Dr. Fitchett has a particular interest in the management of cardio-metabolic risk and is familiar with sibutramine. [21] He describes sibutramine as a monoamine oxidase (“MAO”) inhibitor . H e deposes that phase 1 studies, reported in 1988, demonstrated a mean increase in the resting systolic and diastolic blood pressures of users of the drug and a mean increase in users’ heart rates. He summarizes tests of the efficacy and safety of sibutramine, reported in 2000 and 2004, and notes that they concluded, “Sibutramine has … been shown to improve cardiovascular risk factors such as lipid and glycemic profiles. The impact of these improvements on cardiovascular and other clinical outcomes and mortality is unknown ” (emphasis added). [22] Dr. Fitchett says cardiovascular risks of sibutramine treatment arise from the increase in sympathetic nervous system activity as a result of its hypertensive effect. He notes, “Agents that increase heart rate, especially in patients with heart failure, may be associated with greater CV [cardiovascular] events”. [23] A critical opinion is set out in paras. 19‑20 of his November 2011 affidavit: 19.       Drugs that increase blood pressure may be associated with increased CV events including mortality. In the individual with      pre-existing hypertension, the hypertensive effect of sibutramine further increases BP and will increase the CV risk for stroke, myocardial infarction and CV death. 20.       The mechanism of the increased heart rate and blood pressure is inhibition of reuptake of the neuro-transmitter norepinepherine in autonomic nerve terminals. This results in more norepinephrine being     available for sympathetic nerve terminal stimulation. Increased sympathetic nerve stimulation increases blood pressure and heart rate. In susceptible individuals increased sympathetic nerve terminal stimulation can provoke cardiac arrhythmias. Certain medications can prolong cardiac repolarisation recognized by prolongation of the ECG QT interval. This results in an increased risk for localized instability and the generation of ventricular tachycardia that can degenerate to fatal ventricular fibrillation. [24] He describes the SCOUT study and its conclusion that for subjects receiving sibutramine in the group of patients studied, those with pre‑existing cardiovascular disease, the risk of myocardial infarction, stroke, cardiac arrest or cardiovascular death was increased 16% in comparison with the placebo group. He summarizes his opinion with respect to the conclusions of the SCOUT study as follows: 25.       The conclusions of the authors were that sibutramine should not be used in patients with existing cardiovascular disease, implying that sibutramine should continue to be limited to persons without preexisting cardiovascular disease. The editorial that accompanied the SCOUT publication disagreed with the SCOUT conclusion and stated “The investigators’ conclusion is based on a narrow interpretation of the SCOUT data, in which only the patients with preexisting cardiovascular disease had an increase in the risk of new cardiovascular events.” “The FDA advisory committee will now take up the matter,” they conclude. “We surely need safe and effective medications to help overweight and obese patients lose weight and improve their long-term health. But given that sibutramine has minimal efficacy for weight loss, no apparent benefit for clinical outcomes, a worrisome cardiovascular risk profile, and a plausible mechanism to explain the cardiovascular risk, it is difficult to discern a credible rationale for keeping this medication on the market.” [25] Addressing the question whether all patients share an interest in the assessment of the risk of sibutramine use, Dr. Fitchett deposes: 34.       All class members have a risk of cardiovascular issues of common cause due to sibutramine. In this case the effects of one agent, sibutramine, are being considered. Both Meridia® and Apo-Sibutramine contain the same active agent and will cause the same adverse outcome profile. Sibutramine causes an increase in heart rate, blood pressure and risk of arrhythmias, stroke and heart attack. The mechanism of these adverse events is common in all users and is related to inhibition of norepinephrine reuptake by sibutramine. Other agents that prevent norepinephrine re-uptake also result in increased heart rate and blood pressure. No study has been performed of any of these agents that has sufficient power to show adverse cardiovascular events . [Emphasis added.] [26] With respect to the prospect of proving the claim, Dr. Fitchett concludes: 38.       There has been no controlled study in individuals without cardiovascular disease. Yet sibutramine has the same pharmacological effect in individuals with and without CV disease. Individuals with CV disease are more susceptible to CV complications such as heart attack and stroke as well as arrhythmias. Those without known CV disease are still at risk but the risk would be smaller. Hence sibutramine causes harm, with minimal benefit. [27] Appended to Dr. Fitchett’s affidavit of November 30, 2011 are studies of the risks and benefits of sibutramine to which he refers in support of his opinion, including: a) “Clinical pharmacology of sibutramine hydrochloride (BTS 54524), a new antidepressant, in healthy volunteers”, Br. J. of clin. Pharmac. (1988), 26, 607 – 611, in which the authors note, at p. 608: Sibutramine was associated with dose-dependent increases in both supine and standing HR [heart rate] which were statistically significantly different from placebo for supine HR at six h after 45 mg and 1, 2, and 6 h after 60 mg… Supine systolic BP [blood pressure] was significantly elevated by the 60 mg dose at all times and by 30 mg at 2 h, compared with placebo. b)  The Data Sheet for REDUCTIL® (sibutramine hydrochloride 10 mg and 15 mg) which cautioned, at p. 8: BLOOD PRESSURE AND PULSE RATE MUST BE MONITORED IN ALL PATIENTS ON REDUCTIL AS SIBUTRAMINE HAS CAUSED CLINICALLY RELEVANT INCREASES IN BLOOD PRESSURE IN SOME PATIENTS. c)  “The Efficacy and Safety of Sibutramine for Weight Loss: A Systemic Review” Arch Intern Med, 2004; 164: 994-1003, at p. 994 and p. 1001: Conclusions: Sibutramine is effective in promoting weight loss. Weight loss with sibutramine is associated with both positive and negative changes in cardiovascular and metabolic risk factors. There is insufficient evidence to actively determine the long-term risk-benefit profile for sibutramine . One of our goals was to estimate the cardiovascular and metabolic effects of sibutramine. The trials we identified were not designed and powered to detect changes in these outcomes. Among those trials that did measure cardiovascular and metabolic outcomes, the results were inconsistently reported, and we could not exclude confounding due to concomitant changes in the antihypertensive, lipid-lowering, and diabetes mellitus medications in most of the trials. Given these limitations, the highest quality trials suggest that weight loss with sibutramine is associated with modest increases in heart rate and blood pressure, small improvements in high-density lipoprotein cholesterol and triglycerides levels, and, among diabetic patients, small improvements in glycemic control. We found no direct evidence that sibutramine prevents or reduces obesity-associated morbidity or mortality. While it is “highly probable that weight loss that reduces blood pressure and cholesterol will reduce the number of deaths from heart disease and stroke” our review suggests that weight loss with sibutramine is associated with both positive and negative changes in cardiovascular and metabolic risk factors. Thus, we cannot exclude the possibility that these changes will have important long-term effects on cardiovascular disease risk that enhance, diminish or reverse the health benefits that result from modest weight loss . [Emphasis added.] d)  “Long-term pharmacotherapy for obesity and overweight (Review)” The Cochrane Library 2009, Issue 1, at p. 3, p. 12, and p. 13: Sibutramine, which inhibits re-uptake of serotonin and norepinephrine, is the most widely used agent in this category and primarily attacks to suppress appetite. The most common adverse effects of sibutramine are related to increased adrenergic activity and include dry mouth, headache, insomnia, and constipation…  Sibutramine may also cause increases in blood pressure and heart rate. Potential concerns regarding cardiac arrhythmias and cardiac mortality have been raised and the drug has been reviewed by several regulatory agencies and deemed safe to remain on the market (Health Canada 2002; Wooltorton 2002). Sibutramine increased systolic blood pressure by 1.7 mm Hg…  diastolic blood pressure by 2.4 mm Hg…  and pulse rate by 4.5 bpm, compared to placebo. The increase in blood pressure and heart rate observed with sibutramine therapy are of potential concern, particularly on a population-wide basis where even mild increases in blood pressure can be expected to result in an increase in cardiovascular events in a population already at risk. A small rise [sic] blood pressure may have a detrimental effect on patients with pre-existing cardiovascular disease, a patient population excluded from these trials . This further underscores the need for studies examining mortality and cardiovascular morbidity and the ongoing SCOUT trial should provide further information…  If sibutramine is prescribed, careful blood pressure monitoring is recommended. [Emphasis added.] e)  “Effect of Sibutramine on Cardiovascular Outcomes in Overweight and Obese Subjects” N. Engl. J. Med 2010; 363: 905‑17 (the SCOUT study), at p. 905: RESULTS The mean duration of treatment was 3.4 years. The mean weight loss during the lead-in period was 2.6 kg; after randomization, the subjects in the sibutramine group achieved and maintained further weight reduction (mean, 1.7 kg). The mean blood pressure decreased in both groups, with greater reductions in the placebo group than in the sibutramine group (mean difference, 1.2 /1.4 mm Hg). The risk of a primary outcome event was 11.4% in the sibutramine group as compared to 10.0% in the placebo group…  The rates of nonfatal myocardial infarction and nonfatal stroke were 4.1% and 2.6% in the sibutramine group and 3.2% and 1.9% in the placebo group, respectively…  The rates of cardiovascular death and death from any cause were not increased. CONCLUSIONS Subjects with preexisting cardiovascular conditions who were receiving long-term sibutramine treatment had an increased risk of nonfatal myocardial infarction and nonfatal stroke but not of cardiovascular death or deaths from any cause. [Emphasis added.] [28] In his second affidavit, sworn on May 23, 2013, Dr. Fitchett deposes: 5.         As described in my first affidavit, scientific evidence establishes that sibutramine hydrochloride monohydrate, the medicinal ingredient in both Meridia® and Apo-Sibutramine… increases the risk of cardiovascular events such as heart attacks, strokes, arrhythmias and increased heart rate and blood pressure, and there is a scientific mechanism for the increase in cardiovascular risk in individuals who ingest sibutramine. 8.         … [I]n a population with a high incidence of cardiovascular disease (i.e., overweight or obese individuals in this case), silent disease is … more frequent… Hence the population has an increased risk of cardiovascular events even when there are no clinically apparent signs or symptoms of cardiovascular disease. [29] In short, Dr. Fitchett’s opinion is that sibutramine acts by causing an increase in sympathetic nervous system activity and an increase in blood pressure and heart rate. Hypertension is associated with an increased risk of arrhythmias, heart attacks and strokes in individuals with cardiovascular disease. Dr. Fitchett does not dispute that, based on the contraindications in the product monograph, doctors understood that Meridia should not be prescribed to patients with a history of cardiovascular disease. Those with silent cardiovascular disease are said by Dr. Fitchett to be at increased risk and the population for whom sibutramine was prescribed included more patients with silent disease than the population at large. That is the theoretical basis for the view that the risk of cardiovascular incidents is increased for this patient population. The extent of the risk has not been studied. The statistical evidence that is available suggests there is no measurable increase in the risk for patients without a diagnosed history of cardiovascular disease and Dr. Fitchett acknowledges he is unable to quantify the risk. The Defendants’ Experts [30] Dr. Richard Lewanczuk is an endocrinologist and the Senior Medical Director for Primary and Community care for Alberta Health Services. He has prescribed Meridia to patients. He deposes to the physician’s role in understanding the product monograph and appropriately prescribing medication. He says he understood from published material that Meridia ought not to be prescribed to patients with a history of coronary artery disease, congestive heart failure, arrhythmia or cerebrovascular disease, to patients with inadequately controlled unstable hypertension, or to patients taking certain other weight reducing drugs or other specified drugs. [31] He says he understood that the risk that Meridia might increase a patient’s blood pressure and heart rate and the caution that patients on this medication should have their blood pressure and heart rate monitored and regulated. [32] Dr. Robert Myers, a cardiologist practicing at Sunnybrook and Women’s College Health Sciences Centre in Toronto as a staff cardiologist and founder of the Congestive Heart Failure Clinic, deposes that the information in the product monograph alerts physicians that Meridia should not be prescribed to patients with a history of cardiovascular disease and makes it clear that the use of Meridia can cause increased blood pressure. The monograph specifically recommends regular monitoring of blood pressure and heart rate because cardiovascular disease is a known complication of hypertension. [33] In Dr. Myers’ opinion, the SCOUT study demonstrated an increased incidence of primary outcomes, as defined, among sibutramine treated subjects who had pre‑existing cardiovascular disease, but that increased incidence was not found in subjects without a history of cardiovascular disease. He says the results of the SCOUT study cannot be extrapolated to suggest any increased risk for patients for whom Meridia had been prescribed by physicians in Canada because the vast majority of patients in the SCOUT study had a history of cardiovascular disease and would not have been eligible to receive Meridia. In response to the proposed class action, Dr. Myers deposes: 68.       For the reasons discussed above, it will not be possible to determine the cause of any individual class member’s medical condition without careful consideration of the individual’s medical history, including all the factors listed in paragraph 5. [factors listed in paragraph 5 are: patient’s age, sex, history of disease, history of hypertension, cholesterol level, diabetes, smoking history, nutrition, alcohol consumption, stress, physical activity, weight and body mass index, and family history, as well as dosage of sibutramine, duration of medication, compliance, and use of other medications.] [34] There was evidence before the certification judge to the effect that sibutramine improves cardiovascular risk factors such as lipid and glycemic profiles but that it acts by increasing blood pressure and heart rate (its hypertensive effect), and that hypertension may lead to an increased incidence of cardiovascular events in patients with a history of coronary artery disease (and, presumably, undiagnosed coronary artery disease). Dr. Fitchett noted that the group of patients for whom sibutramine was prescribed, as part of a weight loss regime, were at increased risk of having silent cardiovascular disease but he cannot quantify the risk of increased cardiovascular events to the whole population for whom sibutramine was prescribed. He does not suggest a method of addressing the question. Dr. Myers says it will not be possible to determine the cause of any individual class member’s medical condition without consideration of the individual’s medical history. There is no ongoing study of the effects of sibutramine because it has been off the market since October 2010. Apotex’s Evidence [35] Bernice Tao, the Director of Apotex’s Co-Development Program, deposed to the nature of the regulatory approval program that preceded the marketing of Apo‑Sibutramine in Canada, including the provision to Health Canada of evidence of efficacy and safety. She deposed that an Abbreviated New Drug Submission (“ANDS”) for Apo‑Sibutramine was provided to Health Canada on July 30, 2008 and the Notice of Compliance (“NOC”) authorizing Apotex to market sibutramine was issued by Health Canada on December 2, 2009. She deposed that the NOC would not be issued until Health Canada had reviewed and approved the manufacturer’s Product Monograph. Judgment Appealed From [36] The certification judge, citing Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, noted that his role was not to test the merits of the action, but rather, to focus on the form of the action: whether the suit should appropriately be prosecuted as a class action. He recognized that the class representative was required to show some basis in fact for each of the certification requirements set out in s. 4 of the Class Proceedings Act , R.S.B.C. 1996, c. 50 [the Act ] , other than the requirement that the pleadings disclose a cause of action. Section 4(1)(a): a cause of action [37] The first requirement, set out in s. 4 (1)(a), that the pleadings disclose a cause of action, requires only consideration of whether it is “plain and obvious” that no cause of action is disclosed in the pleadings, assuming that the facts pleaded are true. [38] The certification judge held that the pleadings did not disclose a cause of action against Abbott U.S. and he declined to certify any part of the action against Abbott U.S. [39] He found that the facts pleaded supported certain claims against the other defendants: a) for damages and declaratory relief arising from alleged breaches of the BPCPA ; b) for damages under the Competition Act ; c) in negligence for breach of a duty of care to “provide adequate warnings about the side effects of Sibutramine,” or “to inform the public and proper governmental authorities of the results” (of ongoing testing for new health risks); d) in negligence for breach of a duty of care to “only offer safe drugs for sale and human consumption in the streams of commerce,” or to “recall Sibutramine promptly after becoming aware of adverse health risks.”; and e) for waiver of tort, holding at para. 74: [74]      It remains unclear whether, as a matter of law, this is a separate cause of action, or a remedy available on proof of an established cause of action. This does not require determination at this point. If it is a cause of action, sufficient facts have been pleaded …that I am persuaded that this plea it is not bound to fail. If it is remedy only, no facts are required beyond those necessary to support the cause of action giving rise to the claim for the remedy. [40] Claims founded upon allegations of negligent design and manufacturing were not certified, because the plaintiff pleaded the defendants inherited sibutramine when Abbott and Abbott U.S. acquired the Knoll Pharmaceuticals business. There was no allegation a defendant, or any entity for which a defendant was responsible, took actions in relation to design, fabrication or manufacturing that fell below a standard of care. [41] A cause of action founded upon a breach of the Sale of Goods Act, R.S.B.C. 1996, c. 410, was abandoned by the plaintiffs. Section 4(1)(b): an identifiable class [42] The certification judge observed the criteria for membership in the class should be rationally related to the claims advanced on behalf of the class and required the applicants to discharge the burden of demonstrating some basis in fact for that rational relationship. The proposed class included all persons in Canada who took sibutramine pursuant to a prescription. The judge held: [81]      Those who took the drug and who allege harm as a result have a rational relationship to the negligence, failure to warn, and some claims pleaded under the Business Practices and Consumer Protection Act and the Competition Act . [82]      Those who took the drug and suffered no harm but got no benefit have a rational relationship to the claims based on ineffectiveness of the drug, as well as to other claims pleaded under the statutes just mentioned. [43] In response to the defendants’ argument that, in the light of the medical evidence, the plaintiffs had not and could not show some basis in fact for any of the causes of action, the judge noted there could be only “some limited recourse to the evidence put forward by the plaintiffs and defendants on the certification hearing”. He observed: [95]      It seems to me that the arguments of the defendants invite rather more weighing of evidence than is appropriate on a certification application, and as well fail to deal with the individual statutory criteria under s. 4(1) of the Act ; instead they drift into broader considerations that tend to detract from the applicability of the argument to the statutory criteria. [44] The plaintiffs were held to have established the existence of an identifiable class of plaintiffs rationally related to the claims advanced. Section 4(1)(c): claims raising common issues [45] Citing Campbell v. Flexwatt Corp. (1997), 44 B.C.L.R. (3d) 343 (B.C.C.A.), the judge required the plaintiffs to establish some basis in fact, on the evidence, supporting the conclusion that resolution of a common issue of fact or law would move the litigation forward and to establish some basis in fact of a rational relationship between the class proposed and the proposed common issues. He then turned to specific issues and addressed them as follows: 1)  Does sibutramine cause or contribute to heart attacks, strokes, and arrhythmia? [46] There was found to be a rational relationship between the proposed class of people who were prescribed and used Meridia or Apo‑Sibutramine and this issue. [47] The causation issue was considered to be common to class members. The judge found: [104]    …The affidavits of the four plaintiffs who took one or other of the drugs, the affidavits of the experts, which introduce the SCOUT study, the product monograph, and the editorial in The New England Journal of Medicine that accompanied publication of the SCOUT study provide a sufficient basis in fact. While the post hoc nature of the plaintiffs’ affidavits referred to might be open to attack, the evidence as a whole is sufficient to establish the required rational relationship. 2)  Was sibutramine unfit for its intended purpose? [48] Claims said to arise out of the breach of a warranty or condition implied into a contract for the sale of goods by s. 18 of the Sale of Goods Act were abandoned by the plaintiffs. 3)  Did the defendants breach a duty of care owed to the class in the marketing, selling or distributing of sibutramine? [49] These issues were found to be common to all members of the proposed class as they are the basis for each plaintiff’s claim in negligence in relation to the manufacture and marketing of sibutramine. 4)  Did the defendants knowingly, recklessly, or negligently breach a duty to warn the class of the risks of harm from the use of sibutramine? [50] The judge found this proposed common issue was necessarily part of the claims based on the inadequacy of any warning and bore on the question of negligence generally. This proposed issue was found to be a substantial ingredient of these claims and common to members of the class. 5)  Did the defendants engage in conduct that constituted deceptive acts or practices contrary to the BPCPA or equivalent legislation in other provinces? or 6)  Did the defendants’ marketing and sale of sibutramine breach s. 52 of the Competition Act ? [51] The members of the proposed class, even those who took sibutramine as prescribed who did not experience health problems, were held to have this issue in common. Resolution of this issue was held to be necessary for the claims of all class members. 7)  If any of questions 1 to 6 are answered in the affirmative, does the defendants’ conduct warrant an award of punitive damages; and 8)  If any of questions 1 to 6 are answered in the affirmative, should the defendants be ordered to disgorge the revenues they received from the sale of sibutramine? [52] The judge held that these claims for remedies beyond damages for injury or breach of statute were “truly common to all members of the class”. Section 4(1)(d): preferable procedure [53] Finally, the judge engaged in the exercise described in Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, by addressing whether class proceedings would be a fair, efficient and manageable method of advancing the claims, and whether class proceedings are preferable to other proceedings. [54] Resolution of the common issues by class proceedings was held to be preferable to multiple individual actions or representative actions because the complexity of the issues made them unwieldy for resolution by individuals. There was no evidence of any interest in an individual action. There are no other pending proceedings arising out of the marketing or use of sibutramine in Canada. There was an unsuccessful attempt to certify class proceedings in Québec ( MacMillan c. Abbott Laboratories , 2012 QCCS 1684), and an action commenced in Ontario has been abandoned. There was no suggestion of other more efficient means of addressing the interests of the proposed class plaintiffs. The judge concluded: [129]    No more efficient means of resolving the issues raised in the pleadings have been suggested, nor were there any suggestions of means that would pose fewer difficulties than if the matter proceeds as class proceedings. [130] On balance, therefore, I conclude that class proceedings are the preferable way to resolve common issues in this case. Section 4(1)(e): a representative plaintiff [55] The proposed representative plaintiffs were found to have met the statutory criteria. Certification [56] The certification judge found that all of the requirements of s. 4 of the Act were met and a class proceeding was certified. The class was defined as: All persons in Canada who were prescribed and ingested Meridia or Apo-Sibutramine and all spouses, parents, or children of these primary class members who are entitled to make claims under the Family Compensation Act in B.C. in respect of the death of such members and all persons outside of B.C., who by reason of their relationship to a member of the primary class, are entitled to make claims under the equivalent provincial dependents legislation in respect of the death or personal injury of such primary class members. [57] The following common issues were identified: 1.       Does sibutramine cause or contribute to heart attacks, strokes, and arrhythmia? 2.       Did the defendants breach a duty of care owed to the class in the testing, marketing, selling or distributing of sibutramine? 3.       Did the defendants knowingly, recklessly, or negligently breach a duty to warn the class of the risks of harm from the use of sibutramine? 4.       Did the defendants engage in conduct that constituted deceptive acts or practices contrary to the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2, or equivalent legislation in other provinces? 5.       Did the defendants’ marketing and sale of sibutramine breach s. 52 of the Competition Act, R.S.C. 1985, c. C‑34? 6.       If any of questions 1 to 5 are answered in the affirmative, does the defendants’ conduct warrant an award of punitive damages? 7.       If any of questions 1 to 5 are answered in the affirmative, should the defendants be ordered to disgorge the revenues they received from the sale of sibutramine? Issues on Appeal and Cross Appeal [58] The appellants say the certification judge erred in principle by certifying the class proceedings, because the plaintiffs did not lead evidence of a methodology for establishing general causation on a class-wide basis. They say the only evidence of causation before the certifying judge was the SCOUT study, which pertained to patients with pre‑existing diagnosed cardiovascular disease for whom sibutramine ought not to have been prescribed. It is of no value to the class plaintiffs, they say, to obtain a judgment that the drug posed a risk to those for whom it ought not to have been prescribed, precisely because of that acknowledged risk. [59] The appellants further argue that the judge erred in certifying the class action because there is no commonality to the claims of members of the defined class. As a result, it says, a class action is not the preferable means of addressing the plaintiffs’ claims. [60] The plaintiffs, on their cross appeal, say the judge erred in law in dismissing the claim against Abbott U.S. They say the pleadings allege that the defendants collectively designed, manufactured and distributed sibutramine products in Canada, making no distinction between them; those allegations are not expressly denied in the defence filed by Abbott U.S. The Appellant’s Argument Insufficient Evidence of a Method of Proof of General Causation [61] The appeal is founded upon the ground that the certifying judge failed to subject the plaintiffs’ case to the scrutiny described in the jurisprudence, intended to ensure that certification serves the purpose of efficiently advancing a claim in the common interest of class members. No issue is taken with the judge’s conclusion that the pleadings disclose a cause of action, that there is an identifiable class of plaintiffs, or that the proposed representative plaintiffs meet the criteria set out in the Act. [62] The appellants say the plaintiffs failed to show any basis in fact to support the conclusion that a common issue may be effectively adjudicated upon to the benefit of class members. This is so, in particular, in relation to the common issue of general causation. Whereas the plaintiffs say the question is whether there is some basis in fact for the allegation that the product causes harm, the appellants say the certification judge ought to have considered whether there is some basis in fact in the evidence of an available methodology to effectively determine the common questions certified. [63] The appellants say the evidence before the certification judge was insufficient to meet the test described in the Supreme Court of Canada trilogy of decisions: AIC Limited v. Fischer , 2013 SCC 69, [2013] 3 S.C.R. 949; Sun‑Rype Products Ltd. v. Archer Daniels Midland Company , 2013 SCC 58, [2013] 3 S.C.R. 545; and Pro‑Sys Consultants Ltd. v. Microsoft Corporation , 2013 SCC 57, [2013] 3 S.C.R. 477. They say those cases stand for the proposition a class action should not be certified unless there is evidence of a methodology that may be used to answer the common questions. They say it is an error to simply ask whether there is some basis in fact for the allegation of negligence in the case. They do not suggest the plaintiffs have to adduce evidence of the methodology upon which they intend to rely, but argue they must establish there is a workable methodology so that the Court, in employing its gatekeeping function, can be confident the case will be efficiently prosecuted. [64] The appellants argue general causation has been certified as a common issue in the absence of any evidence of a methodology that may be used to address the issue. They say evidence sibutramine causes or contributes to heart attacks, strokes, and arrhythmia among class members is non‑existent. In their view, it is significant that the plaintiffs’ expert acknowledges no study has been performed on sibutramine with sufficient power to show adverse cardiovascular events are associated with its use by patients for whom it should have been prescribed and to whom it was marketed. There is nothing proffered by the plaintiffs illustrating how the issue of general causation on a class-wide basis is going to be litigated. [65] The principal attack on the judgment is therefore that the action was erroneously certified because there was no basis in fact to conclude resolution of a common issue of fact or law would move the litigation forward. In part, that is a question of commonality: whether there are questions that can properly be addressed by the class as a whole; and, in part, it is a question of preferability: whether a class proceeding would be the preferable procedure for the efficient resolution of the common issues. The Remaining Common Issues [66] If general causation is not amenable to a decision on a class-wide basis, the appellants say the class action is not the preferable procedure for determining the balance of the questions certified for determination. The remaining common issues will either collapse or be subsumed by individual ones. All common issues are said by the appellants to hinge upon general causation. [67] With respect to common issue no. 2 ( Did the defendants breach a duty of care owed to the class in the testing, marketing, selling or distributing of sibutramine? ), the appellants say: “There can be no finding of negligence applicable to the class if there is no prior finding that Meridia can cause a health risk on a class wide basis”. [68] With respect to common issue no. 3 ( Did the defendants knowingly, recklessly, or negligently breach a duty to warn the class of the risks of harm from the use of sibutramine? ), the appellants say: “The court cannot ask whether Abbott breached a duty to warn the class if it cannot first establish what specific danger Meridia creates that is common to the class.” [69] The appellants say the same problems arise with respect to common issue no. 4 ( Did the defendants engage in conduct that constituted deceptive acts or practices contrary to the BPCPA, or equivalent legislation in other provinces? ) and common issue no. 5 ( Did the defendants’ marketing and sale of sibutramine breach s. 52 of the Competition Act? ), which they say are largely premised on the existence of deceptive acts relating to Meridia’s health risks. [70] The appellants say the claim is unmanageable and that the case will be overwhelmed by the many individual causation issues that would be necessary to resolve the central allegations in the claim which, they say, will require particularized evidence and discoveries for every class member. [71] In response to the misrepresentation and trade practice claims, the appellants say the laws that apply to this issue will vary among the class based upon where each class member was injured or purchased the drug. Consumer protection statutes in some provinces contain definitions or provisions that are not common to all provinces. Some of the statutes were enacted during the class period and others were amended during the class period. [72] The appellants say the proposed class action would not be a fair, efficient and manageable procedure for meaningfully advancing the central issue in this case which, in their words, is whether when used as intended Meridia causes heart attacks, strokes or arrhythmias. [73] In its defence, Apotex adopts the arguments of Abbott. It argues common issues nos. 2 to 5 all necessitate individual findings of fact which cannot be made on a class-wide basis. It says that the resolution of those common issues is entirely dependent upon additional individual findings of fact pertaining to the role of learned intermediaries. It acknowledges that the learned intermediary considerations would be irrelevant if the defendants failed to provide accurate product labels or did not fairly state the risks of the drugs, but they say there was no evidence before the chambers judge that there was any such failure on the part of the defendants. [74] Apotex adds that the claim does not disclose causes of action against it for violation of statutory obligations, negligent testing, negligent marketing and failure to warn and the chambers judge erred in law in so finding. This distinct defence is founded upon American cases that limit the liability of generic drug manufacturers when their acts have been determined by statutory obligations imposed as a condition of marketing generic drugs. [75] Apotex argues, further, that there is no evidence Mr. Charlton, the only plaintiff who is said to have consumed Apo‑Sibutramine, suffers from a cardiovascular disease and the plaintiffs’ own evidence (that of Dr. Fitchett) is that the causative association of the drug with his symptoms is “less than clear”. [76] The respondents say the class action does not hinge upon a finding that sibutramine increases the risk of heart attacks, strokes and arrhythmia to individuals without pre‑existing cardiovascular disease. Even if the trial judge finds that only those with cardiovascular disease are at risk, they will advance the claim described in the respondents’ factum as follows: “In this case, the plaintiffs allege that sibutramine medication is defective because it causes minimal weight loss and causes or contributes to heart attacks, strokes and arrhythmia.” [77] In response to the defence of Apotex, the respondents cite Heward v. Eli Lilly & Company (2008) , 91 O.R. (3d) 691 (Ont. S.C.J.), and Miller v. Merck Frosst Canada Ltd. , 2013 BCSC 544, in support of the argument that Canadian courts have repeatedly held that compliance with Health Canada regulations does not shield an innovator drug manufacturer. The respondents say the issue is one of first impression in Canada and for that reason it should not be decided at certification but at trial on a full record. The Cross Appeal [78] In their cross appeal, the plaintiffs say the certification judge erred in: a) dismissing the claim against Abbott Laboratories as it was not plain and obvious on reading the pleadings that the cause of action against Abbott Laboratories would fail; b) dismissing the cause of action in negligent design against Apotex as it was not plain and obvious Apotex could not be held liable for formulating Apo‑Sibutramine, although it was a copy; and c) dismissing the cause of action in negligent design against Abbott U.S. when Abbott acquired the company that designed the drug and is therefore liable. [79] In response to the cross appeal, Abbott U.S. says the certification judge was right to refuse to certify an action against Abbott U.S. because the pleadings did not contain any claim that Abbott U.S. had been engaged in a specific act of misconduct. The defendants say it is expressly pleaded by the plaintiffs that sibutramine was introduced into the Canadian market in 2000 by Knoll Pharmaceuticals and that Knoll was acquired by Abbott in 2001. That being the case, on the plaintiffs’ own pleadings, Abbott U.S. cannot have been involved in the design, testing or manufacture of the drug before 2000 and the plaintiffs do not allege that Abbott U.S. was involved in the marketing of the drug in Canada. Applicable Law The Class Proceedings Act [80] The Act reads, in part, as follows: 4 (1) The court must certify a proceeding as a class proceeding … if all of the following requirements are met: (a) the pleadings disclose a cause of action; (b) there is an identifiable class of 2 or more persons; (c) the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members; (d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues; (e) there is a representative plaintiff who (i) would fairly and adequately represent the interests of the class, (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members. (2) In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, the court must consider all relevant matters including the following: (a) whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members; (b) whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions; (c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings; (d) whether other means of resolving the claims are less practical or less efficient; (e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means. Evidentiary Basis for Certification [81] The Act calls for evidence to be introduced at a certification hearing. In Microsoft, Rothstein J. for the Court, addressed the standard of proof. Microsoft, citing American authorities, argued that because the certification judge was finally determining questions, an applicant must lead evidence that the case meets the certification requirements on a balance of probabilities. That argument was rejected: [99] The starting point in determining the standard of proof to be applied to the remaining certification [other than the existence of a cause of action] requirements is the standard articulated in this Court’s seminal decision in Hollick . In that case, McLachlin C.J. succinctly set out the standard: “. . . the class representative must show some basis in fact for each of the certification requirements set out in . . . the Act, other than the requirement that the pleadings disclose a cause of action” (para. 25 (emphasis added)). She noted, however, that “the certification stage is decidedly not meant to be a test of the merits of the action” (para. 16). Rather, this stage is concerned with form and with whether the action can properly proceed as a class action (see Hollick , at para. 16; Pro-Sys Consultants Ltd. v. Infineon Technologies AG , 2009 BCCA 503, 98 B.C.L.R. (4th) 272 (“ Infineon ”), at para. 65; Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.), at para. 50). [Emphasis in original.] [82] In Ernewein v. General Motors of Canada Ltd. , 2005 BCCA 540, 46 B.C.L.R. (4th) 234, Newbury J.A., at para. 25, described the evidentiary requirements for certification as follows: [25]      Although it is clear that no assessment of the merits of the claim takes place at the certification stage, it is equally clear that an “evidentiary basis” is required for each of the certification requirements other than that the pleadings disclose a cause of action. The phrases “evidentiary basis” and “basis in fact” were used by the Supreme Court of Canada in Hollick , ( supra , at paras. 24‑26) in such a manner as to be synonymous with “evidence”, and as the Chief Justice pointed out, the requirement arose from the statutory obligation placed on the plaintiff in a class proceeding in Ontario to file “one or more affidavits setting forth the material facts” to be relied upon. The British Columbia legislation is similar in this regard: s. 5(1) of the Act requires an applicant for certification to file an affidavit containing the items specified at s. 5(5), and the recipient of the notice of motion may also file affidavit material: s. 5(4). In Hollick , after citing with approval the Ontario cases of Caputo v. Imperial Tobacco Ltd. (2004), 236 D.L.R. (4th) 348 (Ont. Sup. Ct. J.) and Taub v. Manufacturers Life Insurance Co. (1988), 40 O.R. (3d) 379 (Ont. Ct. (Gen. Div.)), McLachlin C.J.C. noted: I agree that the representative of the. asserted class must show some basis in fact to support the certification order. As the court in Taub held, that is not to say that there must be affidavits from members of the class or that there should be any assessment of the merits of the claims of other class members. However, the Report of the Attorney General's Advisory Committee on Class Action Reform clearly contemplates that the class representative will have to establish an evidentiary basis for certification : see Report, at p. 31 (“evidence on the motion for certification should be confined to the [certification] criteria”). The Act, too, obviously contemplates the same thing: see s. 5(4) (“[t]he court may adjourn the motion for certification to permit the parties to amend their materials or pleadings or to permit further evidence” ). In my view, the class representative must show some basis in fact for each of the certification requirements set out in s. 5 of the Act, other than the requirement that the pleadings disclose a cause of action . That latter requirement is of course governed by the rule that a pleading should not be struck for failure to disclose a cause of action unless it is “plain and obvious” that no claim exists: see Branch, supra, at para. 4.60. [Emphasis in original.] Identifiable Class [83] Identification of class members was not a contentious issue in this case. As in other pharmaceutical cases, the defendants argue that establishing general causation (that sibutramine causes or contributes to cardiac events) will not greatly assist individual plaintiffs to establish specific causation (that their injury was caused or contributed to by the use of sibutramine). But that is a question of commonality or practicality. This is not a case, like the indirect consumer cases (such as Microsoft and Sun‑Rype ), where expert evidence is required to identify the class of plaintiffs affected by general causation. In those cases, the plaintiffs themselves could not know if they had been affected by the impugned market conduct until they were identified by experts. Here, consumption of sibutramine is the identifying element. The class can be identified by objective criteria without reference to the merits of the case. Common Issues [84] Where the applicants seek to address questions of causation on a class-wide basis and where causation is said to give rise to the commonality of interests, there must be some evidence of a methodology that will enable them to prove causation on a class-wide basis. While that rule is most clearly evident in cases brought by indirect purchasers, such as the claims considered in the 2013 Supreme Court trilogy, there is in my view no basis in principle to distinguish such claims insofar as this requirement is concerned. The evidence at the certification hearing must support the conclusion that certification of the common issue will advance the claim as pleaded. Where the proposed common issue is causation, there must be some evidence that issue may be resolved on a class-wide basis. Seeking evidence of a methodology of addressing causation for the class serves the objective of class proceedings and the Act must be applied with a purposive approach. [85] Mr. Justice Strathy, as he then was, described an appropriate analysis of the common issues question in Singer v. Schering-Plough Canada Inc. , 2010 ONSC 42, a product claim brought against manufacturers. He provided a helpful description of the jurisprudence prior to the Supreme Court of Canada’s recent restatement of the evidentiary requirements for certification: [140]    The following general propositions, which are by no means exhaustive, are supported by the authorities: A : The underlying foundation of a common issue is whether its resolution will avoid duplication of fact-finding or legal analysis: Western Canadian Shopping Centres Inc. v. Dutton , above , at para. 39. B : The common issue criterion is not a high legal hurdle, and an issue can be a common issue even if it makes up a very limited aspect of the liability question and even though many individual issues remain to be decided after its resolution: Cloud v. Canada (Attorney General) , above, at para. 53. C : There must be a basis in the evidence before the court to establish the existence of common issues : Dumoulin v. Ontario , [2005] O.J. No. 3961 (S.C.J.) at para. 25; Fresco v. Canadian Imperial Bank of Commerce, above, at para. 21. As Cullity J. stated in Dumoulin v. Ontario , at para. 27, the plaintiff is required to establish “a sufficient evidential basis for the existence of the common issues” in the sense that there is some factual basis for the claims made by the plaintiff and to which the common issues relate . D : In considering whether there are common issues, the court must have in mind the proposed identifiable class. There must be a rational relationship between the class identified by the Plaintiff and the proposed common issues: Cloud v. Canada (Attorney General) , above at para. 48. E : The proposed common issue must be a substantial ingredient of each class member’s claim and its resolution must be necessary to the resolution of that claim: Hollick v. Toronto (City), above, at para. 18. F : A common issue need not dispose of the litigation; it is sufficient if it is an issue of fact or law common to all claims and its resolution will advance the litigation for (or against) the class: Harrington v. Dow Corning Corp. , [1996] B.C.J. No. 734, 48 C.P.C. (3d) 28 (S.C.), aff’d 2000 BCCA 605, , [2000] B.C.J. No. 2237, leave to appeal to S.C.C. ref’d [2001] S.C.C.A. No. 21. G : With regard to the common issues, “success for one member must mean success for all. All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent.” That is, the answer to a question raised by a common issue for the plaintiff must be capable of extrapolation, in the same manner, to each member of the class: Western Canadian Shopping Centres Inc. v. Dutton , above, at para. 40, Ernewein v. General Motors of Canada Ltd. , above, at para. 32; Merck Frosst Canada Ltd. v. Wuttunee , 2009 SKCA 43, [2009] S.J. No. 179 (C.A.), at paras. 145‑146 and 160. H : A common issue cannot be dependent upon individual findings of fact that have to be made with respect to each individual claimant: Williams v. Mutual Life Assurance Co. of Canada (2000), 51 O.R. (3d) 54, [2000] O.J. No. 3821 (S.C.J.) at para. 39, aff’d [2001] O.J. No. 4952, 17 C.P.C. (5 th ) 103 (Div. Ct.), aff’d [2003] O.J. No. 1160 and 1161 (C.A.); Fehringer v. Sun Media Corp ., [2002] O.J. No. 4110, 27 C.P.C. (5th) 155, (S.C.J.), aff’d [2003] O.J. No. 3918, 39 C.P.C. (5th) 151 (Div. Ct.). I : Where questions relating to causation or damages are proposed as common issues, the plaintiff must demonstrate (with supporting evidence) that there is a workable methodology for determining such issues on a class-wide basis : Chadha v. Bayer Inc. , [2003] O.J. No. 27, 2003 CanLII 35843 (C.A.) at para. 52, leave to appeal dismissed [2003] S.C.C.A. No. 106, and Pro-Sys Consultants Ltd. v. Infineon Technologies AG , 2008 BCSC 575, [2008] B.C.J. No. 831 (S.C.) at para. 139. J : Common issues should not be framed in overly broad terms: “It would not serve the ends of either fairness or efficiency to certify an action on the basis of issues that are common only when stated in the most general terms. Inevitably such an action would ultimately break down into individual proceedings. That the suit had initially been certified as a class action could only make the proceeding less fair and less efficient”: Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, [2001] S.C.J. No. 39 at para. 29. [Emphasis added.] [86] In Microsoft, the Court looked for some basis in fact upon which the certifying judge could have concluded questions were capable of resolution on a common basis. In the case of indirect purchasers, that was “expert evidence in the form of economic models and methodologies” (para. 114) led to establish that the effects of the impugned market behaviour were passed on to the indirect purchasers, making the issue common to the class as a whole. The methodology will, obviously differ from case to case. In Microsoft , the Court held: [115]    …The requirement at the certification stage is not that the methodology quantify the damages in question; rather, the critical element that the methodology must establish is the ability to prove “common impact”, as described in the U.S. antitrust case of In Re: Linerboard Antitrust Litigation , 305 F.3d 145 (3rd Cir. 2002). That is, plaintiffs must demonstrate that “sufficient proof [is] available, for use at trial, to prove antitrust impact common to all the members of the class” ( ibid. , at p. 155). It is not necessary at the certification stage that the methodology establish the actual loss to the class, as long as the plaintiff has demonstrated that there is a methodology capable of doing so. [87] In AIC, the Court referred with approval to the Ontario Court of Appeal’s analysis in Chadha v. Bayer Inc. (2003), 63 O.R. (3d) 22 (C.A.), leave to appeal refused, [2003] 2 S.C.R. vi : [43] The standard of proof on a motion for certification was at the heart of the appeal in Chadha v. Bayer Inc . The decision makes clear that at the certification stage, the court cannot engage in any detailed weighing of the evidence but should confine itself to whether there is some basis in the evidence to support the certification requirements. In Chadha , the court denied certification on the basis that there was no evidence that the loss component of liability could be proved on a class-wide basis (and thus that there was no common issue). It was not necessary to establish that there was a compelling method to prove such loss, but it was necessary to provide some basis in fact to think that there was some method to do so. The plaintiffs had failed to provide that basis. This Court reached the opposite conclusion in Pro‑Sys with regard to the commonality of the issues, because there was “an expert methodology that ha[d] been found to have a realistic prospect of establishing loss on a class-wide basis” (para. 140). [88] The 2013 trilogy was followed in a case relied upon by the appellants, the short, recent decision of the Alberta Court of Appeal in Andriuk v. Merrill Lynch Canada Inc. , 2014 ABCA 177, dismissing the appeal from the longer and considered decision of Martin J. reported at 2013 ABQB 422. [89] Andriuk was an appeal from an order dismissing an application to certify a class action in a financial services case. The plaintiffs sought damages said to arise from Merrill Lynch’s conduct in relation to the plaintiffs’ investments in a speculative biotech stock. They alleged Merrill Lynch had diminished the stock’s value when it orchestrated sales intended to reduce the concentration of holdings in its hands and its risk position, without regard to the risk tolerance or priorities of its clients. Those who sold at a nominal profit, those who sold at a loss, and those who did not sell but were forced to move their accounts and incurred fees, all claimed to have suffered damages. The defendants opposed certification, arguing the plaintiffs had adduced no evidence of how they might establish Merrill Lynch’s decision to reduce its holdings, or the value of holdings, under its management actually affected the price of the shares sold or still held by proposed class members. Martin J. held difficulty doing so was not a bar to establishing the existence of a cause of action. It was, however, problematic for other reasons: [104]    …The failure to adduce evidence of a methodology to establish causation and class-wide damage is not fatal at the cause of action stage of the certification hearing. For reasons to be explained in more detail below, however, the absence of such evidence raises insurmountable obstacles to the certification of common questions of loss and causation and whether there can be a claim for aggregate damages. [Emphasis added.] [90] The certification judge referred to Chadha as authority for the rule that where questions relating to causation of damages are proposed as common issues, the plaintiff must demonstrate (with supporting evidence) that there is a workable methodology for determining such issues on a class‑wide basis: [132]    In the case at bar, the Plaintiffs’ entire theory of liability rests on common causation and damage, which minimizes the individual assessment and fact-finding that would normally be required in this type of case. The Plaintiffs argue that it is neither possible, nor appropriate, to consider each investor individually. Rather, the cumulative impact of Merrill’s mandate and each investor’s response to that mandate is what has resulted in damage for all. Yet the Plaintiffs have offered no evidence to substantiate their novel theory of liability. They indicate that they will proffer an expert after examinations for discovery who will tease out the impact of the Defendant’s mandated actions, solicitation of sales and margin reductions, upon the share price from the myriad of other factors that can affect a stock’s price. They have not provided any indication in this certification hearing of a methodology for doing so. [91] That decision was upheld on appeal. The certification judge was held to have properly set out the statutory framework and general principles that must be satisfied on a certification application: [11]      Here, the certification judge found that the appellants had failed to demonstrate a methodology to determine causation. The respondent’s expert testified that he was unaware of any such methodology. The appellants did not adduce expert evidence on the issue. They argued on appeal that there was no need for expert evidence at the certification stage. We do not read the certification judge’s reasons as insisting on expert evidence at this stage. It seems to us that the need for expert evidence would depend upon the nature of the case and the determination of the common issues. What the certification judge did say was that it was the appellants’ burden to demonstrate a methodology and they had failed to do so. [92] There was nothing in the reasons, in relation to the certification or the appeal, to suggest that evidence of a methodology of establishing causation ought only to be required in class proceedings brought on behalf of indirect purchasers. I cannot accede to the respondents’ argument that Andriuk was wrongly decided and that the principles described in the 2013 trilogy have no application in cases other than claims brought by indirect purchasers. [93] Where there is some evidence by which general causation may be proven, that is sufficient; the evidence ought not to be weighed at certification. As this Court held in Stanway v. Wyeth Canada Inc., 2012 BCCA 260: [55] [A]s has been stated many times, on a certification hearing, the court is not to weigh the competing evidence. Here there is evidence that, if accepted at the trial of the common issues, may answer the general causation question as to whether there is a causal connection between hormone therapy and breast cancer. A positive answer would obviously move the litigation forward, although individual class members may face formidable challenges in establishing causation specific to themselves. [94] The analysis in Stanway is particularly apposite in the case before us. The pharmaceutical manufacturer in that case, Wyeth, sought to set aside the certification of a class action brought by patients who had undergone hormone replacement therapy and were faced with addressing the general causation question: whether estrogen-progestin therapy can be said to cause or contribute to breast cancer. At the certification hearing, there was evidence hormone replacement can effect changes in breast tissue and that the risk of breast cancer is increased as a result. A causal connection between estrogen-progestin therapy and the risk of breast cancer was established in a large clinical study. The “central opinion” of Wyeth’s expert was: The relative risk in the definitive report on breast cancer from the WHI study was 1.24. Accordingly, allowing for five years of estrogen-progestin use, the probability of breast cancer would be 1.24-fold higher than the average woman’s chance of breast cancer. Instead of ten cases per 1000 women, there would be 12.5 cases per 1000 women using estrogen-progestin treatment for five years. Also, with every 12.5 cases of breast cancer among estrogen-progestin users, ten would have been diagnosed regardless of the HRT use. There is no known means to determine which 2.5 of the 12.5 breast cancer cases might be related to HRT use . For this reason as well, none of the members of the proposed class would be able to demonstrate that her breast cancer was caused by HRT or by any one or more of numerous other risk factor(s). The presence of risk factors does not predict who will develop breast cancer or any other disease . [Emphasis added.] [95] The Court addressed the objection to certification by referring to the judgment of this Court in Harrington v. Dow Corning Corp. , 2000 BCCA 605, and an article by Patrick Hayes entitled Exploring the Viability of Class Actions Arising from Environmental Toxic Torts: Overcoming Barriers to Certification , 19 J. Env. L. & Prac. 190 at 195: Proving causation in the context of toxic substances, however, puts the added burden on plaintiffs to establish two types of causation, both general and specific. This is because, unlike the causal connection between being hit by a car and suffering a broken bone, for instance, the causal connection between a toxic substance and a disease is not as easy to decipher. Thus, a plaintiff must first prove “general” or “generic” causation--that a particular substance is capable of causing a particular illness. The issue must be addressed, whether explicitly or implicitly, in toxic torts litigation, since it is axiomatic that “an agent cannot be considered to cause the illness of a specific person unless it is recognized as a cause of that disease in general.” Next, a plaintiff must prove “specific” or “individual” causation--that exposure to a particular toxic substance did, in fact, cause the plaintiff’s illness. [96] A positive answer to the general causation question – whether there is a causal connection between hormone therapy and breast cancer – would obviously move the litigation forward. The case was held to have been properly certified, despite the fact individual class members might face formidable challenges in establishing causation specific to themselves. That conclusion, in my view, is an answer to the argument founded upon the opinion of Dr. Myers in the case before us: that it will not be possible to determine the cause of any individual class member’s medical condition without careful consideration of the individual’s medical history. [97] It is noteworthy, however, that Wyeth’s unsuccessful challenge to the certification was not founded upon the argument that there was no method of effectively answering the general causation question. It was, rather, that an answer to the general causation question could not possibly assist in proving specific causation; that specific causation could not be proven; and “if the action is doomed to fail there is little point in certifying the class proceeding”: L.(T.) v. Alberta (Director of Child Welfare) , 2006 ABQB 104 at para. 36, 58 Alta. L.R. (4th) 23. In the case before us, the question is whether it can be said there was some evidence of a method of establishing general causation before the certification judge. [98] The Qu é bec Superior Court refused to certify as a class action a claim brought on behalf of purchasers of Meridia in MacMillan c. Abbott Laboratories , 2012 QCCS 1684. In that case, the Court having considered much of the evidence that was before the trial judge in this case, including the SCOUT study, found the evidence insufficient to meet the statutory requirement in Québec, set out in s. 1003 of the Code of Civil Procedure , CQLR c. C‑25: 1003.  The court authorizes the bringing of the class action and ascribes the status of representative to the member it designates if of opinion that: (a) the recourses of the members raise identical, similar or related questions of law or fact; (b) the facts alleged seem to justify the conclusions sought ; (c) the composition of the group makes the application of article 59 or 67 difficult or impracticable; and (d) the member to whom the court intends to ascribe the status of representative is in a position to represent the members adequately. [Emphasis added.] [99] The Court found the proposed class plaintiff had not adduced evidence in the form of a study, opinion or document that might transform a hypothesis into facts that might justify the claim. In the Court’s opinion, causation of damages and the quantum of damages would have to be addressed as individual issues. The question whether the risk of a cardiovascular event had been increased for patients who had not yet suffered an adverse event could not be certified for consideration as a class issue because those patients had not suffered compensable damages. Referring to Laferrière v. Lawson , [1991] 1 S.C.R. 541, the Court noted, at para. 131, that damage which is only possible and therefore hypothetical is not compensable in Civil Law. [100] Given the distinct statutory language and the more recent and explicit direction with respect to the requisite evidentiary basis for certification in the 2013 decisions of the Supreme Court of Canada, the decision in MacMillan must be read carefully. Preferability [101] The certification judge must consider the evidence adduced in relation to both substantive and procedural questions in addressing preferability. [102] In Hollick, the Supreme Court of Canada addressed the requirements for certification in the Ontario Class Proceedings Act, 1992 , S.O. 1992, c. 6 . Resolving an issue that had divided the lower courts, the Supreme Court held that the applicants had adequately identified a class of plaintiffs, but did not certify class proceedings. The Chief Justice held: [27]      I cannot conclude…that “a class proceeding would be the preferable procedure for the resolution of the common issues”, as required by s. 5(1)(d). The parties agree that, in the absence of legislative guidance, the preferability inquiry should be conducted through the lens of the three principal advantages of class actions – judicial economy, access to justice, and behaviour modification: see also Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (2d) 453 (Div. Ct.); compare British Columbia Class Proceedings Act , s. 4(2) (listing factors that court must consider in assessing preferability). [103] Class issues were held, at para. 32, to be “negligible in relation to the individual issues”, and, “[o]nce the common issue is seen in the context of the entire claim, it becomes difficult to say that the resolution of the common issue will significantly advance the action”. [104] In Rumley , the Supreme Court held that the preferability inquiry is, in general terms, the same under British Columbia legislation, with the caveat that British Columbia legislation provides express guidance as to how a court should approach the question. [105] The preferability issue was addressed in Microsoft by application of the principles established in Hollick : regard for judicial economy, access to justice, and behaviour modification. The Court stated: [140] In the present case, there are common issues related to the existence of the causes of action, but there are also common issues related to loss to the class members. Unlike Hollick , here the loss-related issues can be said to be common because there is an expert methodology that has been found to have a realistic prospect of establishing loss on a class-wide basis. If the common issues were to be resolved, they would be determinative of Microsoft’s liability and of whether passing on of the overcharge to the indirect purchasers has occurred. [106] In AIC, the Court considered statutory certification requirements with particular attention to the preferability requirement. Cromwell J. for the Court noted, at para. 4: “the preferability analysis is not solely focused on procedural considerations but must, within the proper scope of the certification process, consider both substantive and procedural aspects”. [107] Referring to the preferability requirement in s. 5(1)(d) of the Ontario Class Proceedings Act , the Court held: [21]      In order to determine whether a class proceeding would be the preferable procedure for the “resolution of the common issues”, those common issues must be considered in the context of the action as a whole and “must take into account the importance of the common issues in relation to the claims as a whole”: Hollick , at para. 30. McLachlin C.J. in Hollick accepted the words of a commentator to the effect that in comparing possible alternatives with the proposed class proceeding, “it is important to adopt a practical cost-benefit approach to this procedural issue, and to consider the impact of a class proceeding on class members, the defendants, and the court”: para. 29, citing W. K. Branch, Class Actions in Canada (loose-leaf 1998, release 4), at para. 4.690. Standard of Review of a Certification Order [108] In Andriuk , the Alberta Court of Appeal set out the standard of review from a decision on a certification hearing in concise terms, which are equally applicable in this appeal: [5]        In certifying a class action, the certification judge is guided by the Class Proceedings Act , SA 2003, c C‑16.5 . Applying the legislated tests to the evidence involves questions of mixed fact and law. The certification judge is uniquely familiar with the factual context: Aryton v PRL Financial (Alta) Ltd , 2006 ABCA 88 , 384 AR 1 at para 3. The court must be reluctant to interfere with the exercise of judicial discretion on part of a case management judge in the context of complex litigation: Halvorson v British Columbia (Medical Services Commission) , 2008 BCCA 501 , BCJ No 2364 (CA) at para 17. Thus, absent an extricable error of law which attracts a correctness standard, substantial deference is accorded to a judge certifying a class proceeding: Ayrton at para 3, citing Campbell v Flexwatt (1997), 1997 CanLII 4111 (BC CA) , 44 BCLR (3d) 343 (CA) and Pearson v Inco Ltd , 2006 CanLII 913 (ON CA) , [2005] OJ No 4918 (CA). [109] In Wakelam v. Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc ., 2014 BCCA 36, this Court noted at para. 8: “ Obviously, while the court ‘must’ certify an action that meets the requirements in s. 4(1) of the CPA , the overall question of preferability involves considerable discretion and the decisions of certification judges are to be accorded deference”. Analysis Certification of the General Causation Question [110] The trial judge certified the case on two footings: as a class action brought by those who have suffered injury to recover damages, and as a class action brought by patients prescribed a drug that ought not to have been marketed. The claims of those who have suffered cardiac events are grounded in negligence and require proof of damages and causation. Such claims will be advanced by a finding of general causation. The claim advanced on behalf of users who have not suffered harm appears to be grounded upon the argument alluded to in the New England Journal of Medicine editorial: that relative ineffectiveness coupled with some risk ought to have kept sibutramine off the market as a weight loss drug. Like the claim brought by those who claim to have suffered injury, it must be founded upon some proof of a risk to the population of patients for whom sibutramine was prescribed. The plaintiffs’ own evidence at the certification hearing included evidence that sibutramine has some effect in inducing weight-loss. The successful prosecution of the class action in relation to the marketing of a drug with a poor risk-to-benefit ratio also hinges upon the evidence that those who ought to have been prescribed the drug were put at risk by its use. [111] The question that ought to have been asked at the certification hearing in relation to both types of claims, is not whether the resolution of the general causation question will advance the class claims, but rather, whether there is a reasonable prospect of doing so. [112] The evidence before the certification judge was that the question whether sibutramine causes or contributes to heart attacks, strokes, and arrhythmia on a class-wide basis is incapable of resolution. There was no evidence of a methodology for establishing that the class as a whole, as opposed to those who were wrongly prescribed sibutramine despite a history of disease, was affected or put at risk by its use of sibutramine. The appellants say the trial judge did not properly exercise his gatekeeping function; he is said to have erred by failing to consider whether the class had adduced some evidence of a method of proving the claim. I agree with that submission. [113] This cannot be said to be a case like Stanway , where the increased risk of a certain result to the class as a whole can be quantified. While there is no dispute that those with pre‑existing cardiopulmonary disease are at a statistically increased risk of adverse cardiac events, this is not a case where the experts disagree on the extent of the risk, but rather, a case where the experts are uncertain whether there is a risk to the class as a whole and cannot describe a methodology for addressing that question. Further, there is no reason to believe that the certification of the question whether sibutramine posed a risk to those with pre‑existing undiagnosed cardiac disease, an undefined segment of the class, will move the litigation forward. Other Common Issues [114] The appellants say that if the general causation question cannot be answered on a class-wide basis, no other questions are likely to advance the litigation. Further, they say a class action is not the preferable means of addressing the remaining questions. [115] The question whether the defendants breached a duty of care owed to the class in the testing, marketing, selling or distributing of sibutramine can only be answered in relation to the allegation that it poses a health risk to the population for whom it was supposed to be prescribed. As mentioned above, the appellants say, with respect to common issue no. 2, that there can be no finding of negligence applicable to the class if there is no prior finding that Meridia can cause a health risk on a class-wide basis. I agree with this submission. [116] Likewise, the question whether the defendants knowingly, recklessly, or negligently breached a duty to warn the class of the risks of harm from the use of sibutramine, can only be addressed in relation to an identified risk. If there is no means of identifying a risk, then the question cannot fruitfully be canvassed in the class action. The appellants say, with respect to common issue no. 3, the Court cannot determine whether Abbott breached a duty to warn the class if it cannot first establish what specific danger Meridia creates that is common to the class. I agree with this submission. [117] The fourth common issue arises from allegations that the defendants have breached the provisions of the BPCPA. That Act affords remedies to consumers who have been misled by deceptive acts or practices, including representations by a supplier that goods have performance characteristics, uses or benefits that they do not have. This Court has upheld the certification of some class proceedings founded upon such allegations. In Stanway , at para. 82 , the Court held that the common issue posed in relation to the BPCPA , an alleged systemic pattern of “representation by omission” by Wyeth in failing to disclose the risks of hormone therapy throughout the 27‑year class period, was supported by the pleadings and was properly certified. [118] The plaintiffs do not seek to advance a claim founded solely upon the alleged inefficacy of sibutramine as a weight-loss drug. They seek to establish, rather, that risks associated with the drug outweighed its purported benefit as a weight-loss drug. A class action founded upon that allegation might properly have been certified if evidence had been adduced of a method of establishing the risk to the class. As I have noted, no evidence of methodology was before the certification judge. [119] We have previously held class actions founded, in part, upon claims in waiver of tort to have been properly certified (or certification to have been wrongly refused) in Pro‑Sys Consultants Ltd. v. Infineon Technologies AG , 2009 BCCA 503 , 312 D.L.R. (4th) 419; Steele v. Toyota Canada Inc., 2011 BCCA 98, 329 D.L.R. (4th) 389; and Stanway. [120] In Serhan Estate v. Johnson & Johnson (2006), 85 O.R. (3d) 665, 269 D.L.R. (4th) 279 (Div. Ct.), Epstein J.A., writing for the majority, observed that where a wrong has been committed, it may be to the plaintiff’s advantage to seek recovery of an unjust enrichment accruing to the defendant rather than normal tort damages, by bringing a claim in waiver of tort. Discussing that observation in Koubi v. Mazda Canada Inc., 2012 BCCA 310 , Neilson J.A., for the majority, wrote : [17] The advantage to which she refers has been embraced in class actions and the doctrine has experienced a resurgence in that context, since it may be used to present damages as a common issue based on benefits obtained by the defendant through its wrongful conduct, thereby avoiding individual proof of loss by each class member. [121] However, in Koubi , this Court held that a claim in waiver of tort cannot be founded upon a breach of the BPCPA or the Sale of Goods Act because there is “nothing in the BPCPA to support the view that the legislature intended to augment its statutory remedies by permitting consumers to mount an action against a supplier for restitutionary relief based on the novel doctrine of waiver of tort” (at para. 64); and “a breach of s. 18(a) of the SGA cannot provide the required wrongful act to ground a claim in waiver of tort” (at para. 77). [122] The judgment in Koubi was more recently considered in Wakelam , where the Court, in the following terms, dismissed claims in relation to alleged breaches of constructive trust and unjust enrichment as well as waiver of tort, all said to be founded upon breaches of the BPCPA , at para. 66: In my view, the reasoning in Koubi applies not only to the allegation of waiver of tort advanced by Ms. Wakelam but also to her claims for unjust enrichment and constructive trust insofar as they are based on breach of the BPA . Although I might not have used the phrase “occupying the field” (which has constitutional connotations), I see no legislative intent to create restitutionary causes of action arising from or based on breaches of the BPA ; nor has the plaintiff sought to argue that the BPA provides only ‘ineffective enforcement’. [123] In light of the decisions in Koubi and Wakelam , the class proceeding cannot have been certified to permit the plaintiffs to advance a claim for recovery from the defendants of enrichment accruing to them as a result of the marketing of sibutramine in breach of a statutory duty. The action must be for damages, or, in waiver of tort, for breach of what are referred to in Koubi as “anti-harm” torts. [124] The question whether the defendants’ marketing and sale of sibutramine breached s. 52 of the Competition Act also requires consideration of whether the defendants , for the purpose of promoting the use of sibutramine, “knowingly or recklessly make a representation to the public that is false or misleading in a material respect”. Such an inquiry necessitates a determination of whether the drug causes or contributes to heart attacks, strokes, and arrhythmia. If there is no methodology of addressing that question it ought not to have been certified. Posing the question is unlikely to advance the action. Conclusion [125] In light of the centrality to all allegations of the establishment that sibutramine caused or contributed to the occurrence of cardiac events in patients for whom it could properly have been prescribed, and the absence of a means of establishing that was the case, I am of the view it was an error to certify the case as a class proceeding. [126] That being the case, it is unnecessary to address the cross appeal. [127] I would allow the appeal, dismiss the cross appeal and set aside the certification order. The Honourable Mr. Justice Willcock I agree: The Honourable Chief Justice Bauman I agree: The Honourable Mr. Justice Groberman

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Rabanes v. Pureza, 2015 BCCA 27 Date: 20150122 Docket: CA041466 Between: Medardo Rabanes and Myra-Flor Rabanes Appellants (Plaintiffs) And Guillermo Laylo Atienza Pureza Respondent (Defendant) Before: The Honourable Madam Justice Newbury The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein On appeal from:  An order of the Supreme Court of British Columbia, dated November 1, 2012 ( Rabanes v. Pureza , New Westminster Docket No. S81726). Counsel for the Appellants: A.C.K. Oh Counsel for the Respondent: M.G. Siren Counsel for the Attorney General of British Columbia: L. Greathead Place and Date of Hearing: Vancouver, British Columbia January 14, 2015 Place and Date of Judgment: Vancouver, British Columbia January 22, 2015 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein Summary: Division dismissed appeal as abandoned, and for failure of appellants to comply with Order of the Registrar re preparation of transcripts. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] On January 14, 2015, we dismissed the appellants’ applications to (i) adjourn the respondent’s application to have this appeal dismissed as abandoned, and (ii) consider whether the question of the constitutionality of Rule 20 of the Rules of this court should be set down for determination by a division. We also granted the respondent’s application to have the appeal dismissed. These are our “reasons to follow”. [2] The underlying action is a claim by the appellants for damages for personal injury arising out of a motor vehicle accident. On November 1, 2012, a jury rendered a verdict after a trial of 26 days, fixing the appellants’ damages at approximately $65,000 in total, considerably less than what the appellants had sought. They had alleged that they suffered chronic pain and depression due to the accident, while the respondent took the position that if the appellants were experiencing chronic pain and depression, they were due to pre-existing “psycho-social issues” and, to quote from the judge’s charge to the jury, “the adoption of a sick role with secondary gain issues that arose as a result of [their] new immigrant status.” [3] On December 23, 2013, some 13 months after the jury award, the appellants purported to file their Notice of Appeal. They then sought and obtained an extension of time for the filing. The chambers judge at that time also granted them a declaration of indigent status. [4] After long-running correspondence between counsel concerning the transcripts that would be necessary for the appeal, counsel appeared before the Registrar, Ms. Jordan, who directed on April 29, 2014 that the appellants produce the transcript evidence specified in Mr. Murphy’s letter of February 21, 2014 to Mr. Azevedo. The transcripts ordered were to include the evidence of 22 witnesses, many of whom were experts, who gave evidence at trial. [5] On June 13, 2014, Mr. Justice Low, sitting in chambers, dismissed the appellants’ application to vary the Registrar’s order. [6] The appellants sought a review of Low J.A.’s order and on October 6, 2014 a division of the Court dismissed that application. The division also dismissed an application by the appellants to have the hearing adjourned to permit them to file a constitutional challenge to the validity of Rule 20 of the Court of Appeal Rules . [7] By late October, the appellants had been advised that unless they could pay a deposit of $10,000, the company they had retained to prepare the transcripts would not proceed. The appeal was remitted to the inactive list on December 23, 2014. [8] Having been told that the appellants could not afford to produce the transcripts ordered by the Registrar, the respondent applied for an order, returnable in January 2015, dismissing the appeal as abandoned. By this time the appellants had become aware of the decision of the Supreme Court of Canada in Trial Lawyers Assn. of British Columbia et al. v. British Columbia (Attorney General) 2015 SCC 59. Mr. Azevedo for the appellants filed an amended motion for an order adjourning the respondent’s application for dismissal of the appeal and an order that Rule 20 of the Court of Appeal Rules be declared unconstitutional on the basis of the Trial Lawyers’ decision. (The motion was silent on the Charter issues previously raised.) He then wrote to the Registrar, Mr. Outerbridge, asserting that a single justice of the Court lacked jurisdiction to make such a ruling and requested that the Chief Justice appoint a quorum of the Court or a five-member panel to hear his motion. I understand that the Chief Justice set down the applications returnable for January 14 before this division in order to ensure that the Court had the necessary jurisdiction in the event that it elected to hear the applications brought on behalf of the appellants. [9] The appellants served the Attorney General of British Columbia with the required notice of constitutional challenge, pursuant to the Constitutional Question Act . Counsel for the Attorney General, Ms. Greathead, appeared on the Attorney General’s behalf for the initial part of the hearing before us. [10] Obviously, the appellants had taken the position at least since January 2014 that they were unable to comply with the order of Registrar Jordan—i.e., that they did not have the funds to pay for the transcripts she directed. At the hearing on January 14, 2015, however, Mr. Oh advised the Court that as of 8 a.m. that day, the appellants had obtained the necessary financing to pay the $10,000 deposit. Counsel advised that the deposit has not yet been received by his clients from an (unnamed) lender or been remitted to the transcript company. He said the appellants were abandoning their constitutional challenge to Rule 20 but sought an extension of 30 days in which to secure the transcripts in accordance with Registrar Jordan’s order. [11] For his part, Mr. Siren on behalf of the respondent said he wished to proceed with his client’s application to have the appeal dismissed. He referred to the three considerations described by Lowry J.A. in Redpath v. Redpath 2008 BCCA 400 at para. 13 – i.e., whether the delay has been inordinate, whether it has been inadequately explained, and whether any prejudice has been suffered. In his submission, the delay in this case had been inordinate; the appellants had provided no explanation as to why funds were suddenly “available” (although not yet in hand) after such a long period of alleged indigency; and the respondent had been prejudiced by the long delay. In particular, he noted, the respondent had had to appear in this court on four occasions since the expiration of the original 30-day appeal period. Counsel said he did not have instructions to seek an order for security for costs against the appellants. [12] Mr. Oh was asked about the merits of the appeal from the jury’s award. As I understand it, the appellants wish to question the “propriety” of a reference made by the trial judge, in the course of a charge that was approximately 100 pages long, to the “immigration status” of the appellants in her description of their legal position at trial. Most notably, at para. 402 of the charge, the judge told the jury: If you accept that Mr. Rabanes suffers from a chronic pain disorder, the defendant says that this was not caused by the accident but relates to significant psychosocial issues and the adoption of a sick role with secondary gain issues that arose as a result of his new immigrant status. He suggests that Mr. Rabanes could not find the work he wanted and had high expectations coming to Canada that were not met, and he wrongly blames the accident for all of the problems he says he has endured since. [13] Having read most of the charge, I must say that if this is the appellants’ only argument, it seems to me to be a very weak one. The judge’s reference to the appellants’ “immigrant status” was an accurate reflection of some of the expert evidence dealing with possible “stressors” that might be contributing to the appellants’ chronic pain and depression. There is nothing on the face of the charge that would indicate it was somehow “improper” or discriminatory. It is a sad reality that new immigrants to this country often face substantial challenges in finding meaningful and well-paying work commensurate with their skills. [14] In light of the inordinate delay, the failure of the appellants to explain the sudden location of financing until literally the last possible minute, and the dubious merits of the underlying appeal, I formed the view that it would not be in the interests of justice to subject the respondent to further delay and litigation in this matter. For these reasons, I concluded that the appellants’ applications should be dismissed and that the motion to dismiss the appeal should be granted, both on the basis that it has been abandoned and on the basis that the appellant failed to comply with the order of Registrar Jordan, as confirmed by the orders of Mr. Justice Low and by a division of this court. The Honourable Madam Justice Newbury I AGREE: The Honourable Madam Justice D. Smith I AGREE: The Honourable Madam Justice Stromberg-Stein

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: A.L.B. v. Park, 2015 BCCA 37 Date: 20150123 Docket: CA041732 Between: A.L.B. Respondent (Plaintiff) And Pius Park Appellant (Defendant) Before: The Honourable Madam Justice D. Smtih The Honourable Madam Justice Bennett The Honourable Mr. Justice Willcock On appeal from: an order of the Supreme Court of British Columbia dated April 16, 2014 ( A.L.B. v. Park , 2014 BCSC 1982, Vancouver Docket No. S127695) Oral Reasons for Judgment No one appearing on behalf of the Appellant: Counsel for the Respondent: I.G. Nathanson, Q.C. Place and Date of Hearing: Vancouver, British Columbia January 23, 2015 Place and Date of Judgment: Vancouver, British Columbia January 23, 2015 Summary: The respondent applies for an order dismissing the appeal as abandoned for the failure of the appellant to comply with an order requiring him to post security for the costs of the trial in the amount of $100,000 within 21 days. The respondent also applies for an order that $110,000 paid into court pursuant to an earlier order that required the appellant to post security for the trial judgment of $100,000, and for the appeal costs of $10,000, be paid out to herself. Held: Appeal dismissed as abandoned with costs of the appeal to the respondent. Application for the payment out of court of $110,000 granted in part: the $100,000 paid into court as security for the trial judgment shall be paid out of court to the respondent; the $10,000 security posted for appeal costs shall be held and available to be paid out of court to the respondent in the amount of the appeal costs as taxed. [1] D. SMITH J.A. : The respondent applies for an order dismissing the appeal as abandoned for the failure of the appellant, Pius Park, to comply with an order of December 17, 2014, that required Mr. Park to post security for the costs of the trial in the amount of $100,000 within 21 days. The respondent also applies for an order that $110,000 paid into court pursuant to an earlier order that required Mr. Park to post security for the trial judgment of $100,000 and security for the costs of the appeal of $10,000, be paid out to herself. [2] The underlying action relates to a damages claim for the sexual assault of the respondent by Mr. Park. On April 16, 2014, a jury found Mr. Park liable for the assault and awarded the respondent damages of $152,000 for non-pecuniary damages, $236,000 for past wage loss, and $2,544.11 for special damages, for a total award of $390,544.11. On April 17, 2014, Mr. Park filed a notice of appeal. [3] On August 8, 2014, Mr. Park was ordered to post security for the costs of the appeal in the amount of $10,000 and for the trial judgment in the amount of $100,000 based on a finding that there was a serious question as to whether the respondent would be able to recover the amount of the judgment and costs of the appeal. The appellant now resides in South Korea where he moved when the sexual assault allegation arose and where he has deposed that he is now employed as a senior tax manager for KPMG South Korea. He also has no apparent assets in British Columbia. With respect to that application, the chambers judge found that the order requested would not hinder the appellant’s ability to bring the appeal because Mr. Park had deposed that his parents would pay for his legal fees and the costs of the appeal but would not pay security for the trial judgment or trial costs. The application for security of the trial costs was adjourned pending the hearing of the costs application before the trial judge. On August 26, 2014, Mr. Park posted the $110,000 security ordered. [4] On October 22, 2014, the trial judge ordered Mr. Park to pay special costs of the trial in the amount of $254,426.33 based on what he found to be reprehensible conduct by Mr. Park during the course of the trial. [5] On December 17, 2014, Madam Justice Bennett ordered Mr. Park to post $100,000 security for the trial costs within 21 days. Mr. Park has not complied with the order and has filed no material in response to this application. We are advised that Mr. Chamberlain, who represented Mr. Park in these proceedings, has received no instructions. [6] In these circumstances I am satisfied that the order that the appeal be dismissed as abandoned should be granted. I would further order that: a) the $100,000 paid into court as security for the trial judgment be paid out of court to the respondent; b) Mr. Park pay the costs of the appeal to the respondent. [7] The $10,000 security posted for appeal costs shall be held and available for payment out of court to the respondent in the amount of the appeal costs as taxed.  Any excess funds must be subject to further proceedings. [8] BENNETT J.A. : I agree. [9] WILLCOCK J.A. : I agree. “The Honourable Madam Justice D. Smith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Roy, 2015 BCCA 35 Date: 20150123 Docket: CA042321 Between: Regina Respondent And Christopher Robert Roy Appellant Before: The Honourable Madam Justice D. Smith The Honourable Madam Justice Bennett The Honourable Mr. Justice Willcock On appeal from:  An order of the Provincial Court of British Columbia, dated November 26, 2013 ( R. v. Roy , Kelowna File Nos. 79359-1, 79550-A-1, 79492-B-1, 78983-B-1). Oral Reasons for Judgment Counsel for the Appellant: G. Barriere Counsel for the Respondent: E. Campbell Written Joint Submission Filed: January 13, 2015 Place and Date of Judgment: Vancouver, British Columbia January 23, 2015 Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. Based on a joint submission, the appellant is granted a modified additional credit of three days. [1] D. SMITH J.A.: The appellant, Christopher Robert Roy, applies for an extension of time to appeal, leave to appeal, and if leave is granted, the reduction of his sentence on information 78983-B-1 from seven days to four days based on the granting of enhanced credit for his pre‑sentence custody of 56 days at a ratio of 1.5 to 1 in accordance with R. v. Summers, 2014 SCC 26. [2] On November 26, 2013, the appellant was sentenced on four informations for break and enter with intent to commit theft (s. 348(1)(b)), breach of undertaking (s. 145(5.1)), and two breaches of probation (s. 733.1(1)). The sentences imposed included: File Date Offence Sentence 79359-1 28 March 2013 Break and enter and theft of electronics and jewellery from a residence 18 months jail and restitution 79550-A-1 29 September 2013 Breach Undertaking - inside area restriction 90 days consecutive 79492-B-1 5 September 2013 Breach Probation - fail to abstain from alcohol 90 days consecutive 78983-B-1 8 July 2013 Breach Probation - fail to report 7 days consecutive in addition to 53 days credit for pre-sentence custody [3] The appellant’s global sentence was 733 days or two years and three days. [4] In calculating the sentences, the judge gave the appellant 53 days credit for 53 days pre‑sentence custody at a ratio of 1:1. He applied that credit to the second breach of probation (information 78983-B-1), which resulted in an actual sentence of 7 days consecutive (60 days - 53 days = 7 days). [5] The Crown agrees the appellant was not statutorily barred by s. 719(3.1) from obtaining pre‑sentence credit at the ratio of 1.5:1 and there are no other reasons to deny the appellant that enhanced credit, which would reduce the appellant’s global sentence by a further 27 days. [6] The effect of this reduction, however, would be to transform the appellant’s global sentence from one to be served in a federal penitentiary to a sentence to be served in a provincial prison. Both parties agree that the appellant should remain in the federal system because of the structure it provides during the period of statutory release over the last one-third of his sentence. That structure, we are advised, is not available in the provincial system following an inmate’s earned remission at about two-thirds of his sentence. [7] The appellant and respondent jointly submit that a reduction in the appellant’s sentence of an additional credit of more than three days would have the effect of undermining the rehabilitative aspect of the current federal sentence as it would reduce the appellant’s sentence to one below two years resulting in the imposition of a provincial sentence. [8] In these circumstances, I would grant an extension of time to appeal, grant leave to appeal, and would vary the sentence on information 78983-B-1 by reducing it from seven days to four days.  This gives the appellant an additional three days credit on the sentence that was imposed. His global sentence is now 730 days or two years. [9] BENNETT J.A.: I agree. [10] WILLCOCK J.A.: I agree. “The Honourable Madam Justice D. Smith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Stone, 2015 BCCA 36 Date: 20150123 Docket: CA041965 Between: Regina Respondent And Thomas John Stone Appellant Before: The Honourable Madam Justice D. Smith The Honourable Madam Justice Bennett The Honourable Mr. Justice Willcock On appeal from:  An order of the Provincial Court of North Vancouver, dated June 9, 2014 ( R. v. Stone , North Vancouver Docket 58934). Oral Reasons for Judgment Counsel for the Appellant: J. Myers Counsel for the Respondent: D. Layton Place and Date of Hearing: Vancouver, British Columbia January 23, 2015 Place and Date of Judgment: Vancouver, British Columbia January 23, 2015 Summary: Mr. Stone pleaded guilty to six counts of robbery and three counts of using an imitation firearm in the course of committing robbery. He was sentenced to five years’ imprisonment. On appeal, Mr. Stone argued that the sentencing judge placed undue emphasis on the principles of deterrence and denunciation, did not adequately consider mitigating factors, and underemphasized the totality principle. Held: Leave to appeal granted; appeal dismissed. The sentencing judge appropriately considered the relevant factors and arrived at a fit sentence. [1] BENNETT J.A. :  Thomas Stone pleaded guilty to six counts of robbery contrary to s. 344(1)(b) of the Criminal Code , R.S.C. 1985, c. C-46 and three counts of using an imitation firearm in the course of committing an indictable offence contrary to s. 85(2) of the Criminal Code . He was sentenced to a total of five years’ imprisonment. With time deducted for pre‑sentence custody, he received a sentence of 34 months. Mr. Stone, a United States (USA) citizen, had returned to the USA after committing the offences. He was arrested in the USA and waived his extradition hearing. The sentencing judge calculated the time spent in custody from the execution of the warrant in the USA until the time of sentencing. (a)  Circumstances surrounding the offences [2] The following summary is taken from the Crown’s statement: Counts 1-2 : At 7:30 p.m. on March 31, 2012 in West Vancouver, the appellant entered the office of Safeway manager Darren Jankiprasad, pointed an imitation handgun at Mr. Jankiprasad and said “If I don’t see the money, I’m going to drill you.” He threw a bag at Mr. Jankiprasad’s feet. Mr. Jankiprasad took the appellant to the store floor and gave him $1,200 from two cash registers. Count 3 : At 6:45 p.m. on April 14, 2012 the appellant entered the staff area of a North Vancouver SuperValu store and showed employee Jason Benner the handle of an imitation gun tucked into his waistband. The appellant tossed Mr. Brenner a bag, told him to go upstairs and fill it with the money from the tills, and said, “Don’t make a fuss or I will shoot you.” The appellant obtained $300 from this robbery. Counts 5-6 : At 6:55 p.m. on May 6, 2012 the appellant entered the Queensdale Market in North Vancouver. He approached manager John Popove and said, “This is a robbery, clean out the tills and give me the money, I’ve got a gun.” He began to pull an imitation handgun from his waistband. Mr. Popove tried to stop him. The appellant hit Mr. Popove in the forehead with the gun, then left the store without any money. Mr. Popove received nine stitches to his head. Counts 7-8 : At 7:00 p.m. on May 12, 2012 in Vancouver, the appellant entered an Extra Foods Store. Employee Leslie Garrett was collecting money from the cash registers. He followed her into a small room. He pointed an imitation handgun at her, gave her a bag and told her to put the money inside. He left with $13,000. Count 9 : At 6:30 p.m. on October 11, 2012 in Vancouver, the appellant entered an IGA Marketplace and approached Antonio Ciaburri in the staff room. He said he had a handgun and demanded money. Mr. Ciaburri and a co‑worker gave him $250 plus envelopes containing an unknown amount of cash from a safe. Count 11 : At 5:55 p.m. on October 26, 2012 the appellant entered a Choices Market in Burnaby and approached employee David Olson at the customer service counter. He told Mr. Olson that he had “a gun right here” and indicated something on his hip. He gave Mr. Olson a bag and told him to fill it with money from the safe and the tills. The appellant left the store with $1,477. [3] On December 10, 2012, Mr. Stone fled to Washington to avoid arrest. [4] The Crown sought a sentence of five to six years and the defence sought a sentence in the range of 39 to 42 months. On appeal, Mr. Stone submits that an appropriate sentence is 39 months. The Crown submits that the sentence is fit. [5] The Crown seeks to adduce fresh evidence from Mr. Stone’s parole officer, indicating a deportation order has been made against Mr. Stone and he will be deported upon his release. As a result of the removal order, his day parole, full parole and unescorted temporary absence eligibility dates are all the same as his full parole date, May 15, 2015. Mr. Stone is scheduled for a parole hearing in April 2015. The parole officer is recommending that he receive full parole, which would be effective May 15, 2015. And, as noted, he will be deported on his release on parole. [6] Mr. Stone is 70 years of age. He has no criminal record. At the time he committed the offences, Mr. Stone was in dire financial straits. He was out of work, could not pay his rent and was running the risk of becoming homeless. He owed thousands of dollars on outstanding credit card debts. A pre‑sentence report and a psychiatric report indicate that he has no alcohol or drug problems, and that he was truly remorseful for his conduct. He had failed to appreciate the significant effect his conduct would have on the individuals he robbed, as he thought robbing grocery stores would only affect a corporate victim. [7] Mr. Stone joined the United States Air Force in 1963. He left without leave in 1972 and came to Canada. He has lived in Canada since that time. He has family in the USA who are supportive of him. He is not married and has no children. He was arrested for desertion when he returned to the USA after committing these offences and received a dishonourable discharge. [8] The sentencing judge set out the aggravating and mitigating factors that he was taking into consideration: Aggravating Factors 1.         These robberies were planned and premeditated. 2.         There were multiple robberies. 3.         The motivation for the robberies was financial gain. 4.         The imitation gun was used and displayed. 5.         Mr. Stone fled to the United States in an attempt to avoid being arrested. Mitigating Factors 1.         Mr. Stone is 69 years old and has no prior record. 2.         Mr. Stone pled guilty to the charges. 3.         Mr. Stone is remorseful and has apologized. 4.         Mr. Stone was motivated to commit these offences because of the extreme financial despair he was experiencing. 5.         Mr. Stone waived his extradition hearing. 6.         Mr. Stone filed a number of extremely positive reference letters in which the authors described their shock for this out-of-character behaviour of Mr. Stone. [9] The sentencing judge weighed these factors, and concluded that a fit sentence was one of five years, giving effect in particular to deterrence, and rehabilitation in addition to the principle of totality. He considered the fact that the robberies were planned, and committed over a period of six months. The sentencing judge had to craft a sentence that took into account the fact that the three offences under s. 85(2) of the Criminal Code required one year minimum sentences consecutive to the index offence and consecutive to each other ( Criminal Code, s. 85(4)). [10] The sentencing judge imposed two year concurrent sentences on each of the robbery counts, and one year consecutive on each of the weapons counts. [11] A sentencing judge is given great deference ( R. v. C.A.M ., [1996] 1 S.C.R. 500): 90 Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code . [12] Mr. Stone argues that the sentencing judge did not give effect to the totality principle and as a result imposed a sentence that was demonstrably unfit. The totality principle permits the court to mitigate what would otherwise be a disproportionate sentence as a result of imposing consecutive sentences for multiple offences. By imposing concurrent sentences of two years on the robberies, which could not be considered a “spree” given they were over a six month period, the sentencing judge gave effect to the totality principle. Otherwise, the sentence would have been significantly higher. [13] In my respectful view, Mr. Stone has not identified “an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors.” In my view, the sentencing judge considered all of the factors, weighed them and arrived at a fit sentence. [14] It is not necessary in my opinion to admit the fresh evidence. I would grant leave to appeal, but would dismiss the appeal. [15] D. SMITH J.A.: I agree. [16] WILLCOCK J.A.: I agree. [17] D. SMITH J.A.: Leave to appeal the sentence is granted, and the appeal from sentence is dismissed. “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: C.P. v. RBC Life Insurance Company, 2015 BCCA 30 Date: 20150126 Docket: CA041585 Between: C.P. Appellant (Plaintiff) And RBC Life Insurance Company Respondent (Defendant) Before: The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Willcock The Honourable Mr. Justice Goepel On appeal from:  An order of the Supreme Court of British Columbia, dated January 24, 2014 ( C.P. v. RBC Life Insurance Company , 2014 BCSC 117, Vancouver Docket S105106). Counsel for the Appellant: F.E. Hayman Counsel for the Respondent: J.A. Carmichael, Q.C. and K.A. McGoldrick Place and Date of Hearing: Vancouver, British Columbia October 23 & 24, 2014 Place and Date of Judgment: Vancouver, British Columbia January 26, 2015 Written Reasons by: The Honourable Mr. Justice Goepel Concurred in by: The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Willcock Summary: C.P. was insured under a disability policy she obtained in 1999. She began receiving benefits under the policy in 2006. Her benefits were discontinued between August 2009 and April 2010. After her benefits were reinstated, C.P. commenced an action alleging breach of good faith causing her severe mental stress. Prior to the trial, the defendant made an offer to settle for $50,000. At trial, she was awarded $10,000 in damages for mental distress but not punitive damages. The trial judge also awarded double costs against her from the date of the offer. Held: Appeal allowed in part. The trial judge did not err in determining the award of damages. However, it was not open to the trial judge to award double costs to the defendant; doing so was an error in principle. The judge could, however, have awarded the defendant its costs from the date of the offer to settle had he appreciated that double costs were not an available option. In the result, a cost award for single costs is substituted for the double cost award. Reasons for Judgment of the Honourable Mr. Justice Goepel: INTRODUCTION [1] The appellant, C.P., is insured under a disability policy she obtained in 1999. The respondent, RBC Life Insurance Company (“RBC”), ultimately became the insurer under the policy. C.P. began receiving benefits under the policy in 2006. For a period of time between August 2009 and April 2010, there was a disruption in the payment of benefits. [2] On July 14, 2010, after RBC had reinstated her benefits, C.P. commenced this proceeding alleging that RBC’s actions had caused her severe mental stress and constituted a breach of its duty of good faith. [3] At trial, C.P. sought damages for mental distress. The quantum of damages she sought varied depending on whether she received punitive damages:  $50,000 to $100,000, if punitive damages were also awarded, and $100,000 to $200,000, if punitive damages were not awarded. C.P. sought punitive damages in the range of $1,300,000 to $1,600,000. The trial judge awarded $10,000 in damages for mental distress. He dismissed the claim for punitive damages. The trial judge’s reasons are indexed at 2014 BCSC 117. [4] In advance of the trial, on May 15, 2013, RBC made a formal offer to settle all claims for $50,000. The trial judge awarded the plaintiff costs up to June 30, 2013 and awarded the defendants double costs thereafter. [5] C.P. now appeals both the damage and costs awards. For the reasons that follow, I would dismiss the appeal, save and except I would vary the cost award and award RBC only single costs after June 30, 2013. BACKGROUND [6] C.P. is a physician who practices part-time. She earned her medical degree from the University of British Columbia and subsequently completed fellowships in geriatrics and internal medicine. In 1999, not long after completing her fellowships,  she purchased a disability policy from the Paul Revere Life Insurance Company. On May 1, 2004, RBC became the insurer under the policy. [7] The policy covered both long-term and residual disability. The residual disability benefit arose when a claimant was not totally disabled, but was unable, due to injury or sickness, to earn more than 80% of prior earnings. Residual disability benefits were calculated on a monthly basis as a percentage of total disability benefits and were proportionate to the drop in the plaintiff’s pre-disability income. [8] An insured claiming a residual disability benefit was required to provide monthly income statements so that the benefit could be calculated. Premiums were waived after a 90-day period of disability. Under the policy, RBC could request from a claimant a “Claimant Supplementary Statement” (“CSS”), which set out the claimant’s current conditions and activities. RBC could also request a claimant attend at an independent medical examination (“IME”), to be assessed by an RBC-selected physician. [9] Commencing in the spring of 2005, C.P. began to suffer from depression and anxiety. In January 2006, C.P. first applied to RBC for long-term disability benefits. RBC initially denied the claim but, after receiving updated clinical records from her family physician, the claim was approved. [10] C.P. returned to work part-time in March 2006 and continued to work part-time, with the exception of brief periods of total disability, through to 2009. During this period, RBC paid C.P. either residual or total disability benefits. [11] Michelle Davidson was the RBC adjuster assigned to C.P.’s file. From the onset of the claim in 2006 until July 2009, Ms. Davidson and C.P. had a cordial relationship. They corresponded and contacted each other by telephone as required, usually when C.P. informed Ms. Davidson of brief periods when she would be totally, rather than residually, disabled. [12] In May 2009, RBC requested that C.P. attend an IME in order to clarify C.P.’s actual level of function. Before the IME could be arranged, C.P., on July 9, 2009, submitted a CSS to RBC indicating that her symptoms had improved as a result of a change in medication and that she anticipated a return to full-time duties by September 1, 2009. [13] In response, Ms. Davidson wrote to C.P. on July 15, 2009 advising her that she was paying the claim to September 1, 2009, without the necessity of C.P. submitting any further medical or financial records, so that C.P. could “focus on her recovery” (the “July 15 Letter”). Ms. Davidson testified that her focus was solely on being of assistance to C.P. The July 15 Letter read in part as follows: Residual Disability benefits have currently been paid to April 30, 2009. In an effort to assist you during this transition and to allow you to focus on your continued recovery and return to work full time, we have agreed to issue Residual Disability benefits from May 2009 to the end of August 2009 using your net income submitted for April 2009, $5914.56. Although we realize that while you are attempting to increase your hours at work this income will increase thus decreasing your Residual Disability benefit entitlement, nonetheless, we will issue this payment, Without Prejudice. In addition to issuing this payment we will also forgo your requirement to submit any further Monthly Income Statements and Claimant Supplementary Statements. Again, our intent is to allow you to focus on your continued recovery. Benefits have been issued and sent under separate cover. Your Disability claim will now be closed. Should you not return to work full time by the end of August 2009 we will require the following information to be submitted for consideration of continued benefits; a)         Copy of your clinical file (including office notes, consultation reports, referrals, labs, etc.) from Dr. [L.] for the period of April 2009 to the end of August 2009 b)         Copy of your clinical file (including office notes, consultation reports, referrals, etc.) from Dr. [B.] for the period of April 2009 to the end of August 2009 c)         Copy of your clinical file (including office notes, consultation reports, referrals, etc.) from Dr. [S.] for the period of January 2009 to the end of August 2009 d)         Copy of your clinical file (including office notes, consultation reports, referrals, etc.) from Dr. [C.] for the period of April 2009 to the end of August 2009 Upon receipt and review of the aforementioned documentation consideration will be given to rearranging the Independent Medical Assessment and you will be contacted with the details, accordingly. Submission of any additional information should be by the end of September in order not to prejudice our position on the claim. RBC Life Insurance does not accept liability for any cost(s) incurred for obtaining additional documentation for the submission of an appeal. [C.P.], we would like to take this opportunity to commend your motivation for recovery and wish you continued success with your return to work, full time. Should you have any questions or concerns please do not hesitate to contact our office. [Emphasis added] [14] The July 15 Letter was intended to implement an internal RBC procedure called “Advance Pay and Close” (“AP&C”). However, Ms. Davidson had not reviewed the AP&C procedures outlined in the RBC claims manual prior to writing the July 15 Letter. [15] The trial judge found that the July 15 Letter was contrary to the defendant’s internal AP&C procedure in four key respects. First, Ms. Davidson did not seek or otherwise obtain the plaintiff’s consent to the AP&C procedure. Second, she did not consult with any of the plaintiff’s doctors to determine whether the plaintiff’s plan to return to work was reasonable. Third, the letter states the plaintiff’s claim will be closed but, according to the claim’s manual, if the other AP&C requirements had been met, the claim would have been considered as a pending claim if the disability continued beyond the AP&C date. Finally, the letter indicated that if C.P. did not return to work by the end of August 2009, in order to have continued benefits, she would need to “appeal”. Defendant’s counsel conceded at trial that the July 15 Letter should have stated, “should you wish us to consider further benefits past August 31, we will require the following documents ---”. [16] The July 15 Letter set in motion a series of cascading events which led to a disruption in benefits to C.P. when her condition deteriorated and she was unable to return to full-time work in September 2009 as she had intended. [17] On August 27, 2009, C.P. faxed and mailed Ms. Davidson a letter stating her symptoms were worsening and that rather than returning to full-time work, she would need to reduce her work hours. Neither document came to Ms. Davidson’s immediate attention. On September 9, 2009, the plaintiff telephoned Ms. Davidson, advised she had not returned to work and agreed to refax the August 27, 2009 letter. [18] On September 10, 2009, Ms. Davidson prepared a response to C.P.’s August 27, 2009 letter. In her response, she referred C.P. to the July 15 Letter and the itemized documents set out therein that were required for consideration of additional benefits beyond August 2009. In her letter, she advised that upon receipt of the itemized documents, C.P. would be advised if an IME was still required. [19] Ms. Davidson attempted on three occasions to fax to C.P. her September 10, 2009 response. The attempts were unsuccessful. On September 25, 2009 she wrote to C.P. and advised her that she had attempted on a number of occasions to send a fax outlining the documentation required for consideration of further benefits and indicating that those attempts had been unsuccessful. The September 25, 2009 letter enclosed a copy of the July 15 Letter which detailed the documents required to continue benefits beyond August 2009. The September 25, 2009 letter advised C.P. that should she had any questions or concerns, she should contact RBC. [20] C.P. received the September 25, 2009 letter on October 1, 2009. On October 2, 2009, C.P. wrote to Ms. Davidson expressing surprise that RBC had not requested medical information from her doctors. She expressed the hope that the lack of information would not hinder RBC processing her September claim for benefits. [21] On or about the beginning of October 2009, C.P.’s file was transferred to another adjuster, Lata Wadhwani. Ms. Wadhwani had recently returned to full-time work with RBC. The file was transferred to her in order to build her caseload. [22] When Ms. Wadhwani assumed conduct of the file, she mistakenly thought, because of the last paragraph of the July 15 Letter, that C.P.’s claim was an appeal. In the case of an appeal the usual practice is that the claimant, not RBC, gathers any required medical documentation. Ms. Wadhwani thought her job was to await the medical records that Ms. Davidson had asked C.P. to gather. [23] When Ms. Wadhwani received C.P.’s October 2, 2009 letter, she believed that C.P. had misunderstood the July 15 Letter. On October 29, 2009, Ms. Wadhwani wrote to C.P. and advised that she was the individual handling C.P.’s “appeal” for disability benefits. She offered to obtain the needed medical records. [24] On November 3, 2009, Ms. Wadhwani sent letters to four of C.P.’s physicians. The letter sought the physicians’ assistance in reviewing C.P.’s claim and asked them to send to RBC their clinical records from April 1, 2009 to August 31, 2009. Unfortunately, none of the physicians responded. [25] On October 5, 2009, C.P. was voluntarily admitted to the psychiatric ward of one of our province’s hospitals. She was discharged on October 19, 2009. The treating psychiatrist, Dr. H., in the discharge summary, stated (in part): I have strongly recommended to [C.P.] that she reduce her work hours and abide by a more realistic schedule what would foster a healthier lifestyle and increase her changes of recovering from depression and anxiety ... It actually takes her approximately 50 hours to complete a 25 hour work week. This will usually come at a considerable expense to herself as she uses up her evenings and weekends to perpetually catch up. This maintains the cycle in which she feels demoralized, exhausted, has difficulties with her concentration, begins to feel overwhelmed and cannot manage her anxiety, which results in a deterioration of her sleep and mental state, frequently feeling overwhelmed by her predicament. [26] On November 10, 2009, C.P. and Ms. Wadhwani spoke on the telephone. During the conversation C.P. indicated that she understood that her file had been closed as a result of administrative error. Ms. Wadhwani brought C.P.’s attention to the specific reference in the July 15 Letter that the claim was being closed. This appeared to have come as a surprise to C.P. In the conversation, Ms. Wadhwani advised C.P. that her policy remained ongoing but that a claim would only be maintained if benefits were being paid. Ms. Wadhwani confirmed that she had written to C.P.’s doctors seeking information. C.P. advised that she would fax to Ms. Wadhwani the discharge summary from her October hospitalization which Ms. Wadhwani agreed to review. C.P. also asked Ms. Wadhwani to release the September benefit payment. Ms. Wadhwani advised that she could not promise that, but would review it as soon as possible. [27] Later on November 10, 2009, C.P. faxed the discharge summary to Ms. Wadhwani. This was the first that RBC knew of the details of C.P.’s October 2009 admission to hospital. RBC agrees that it should have reinstated residual disability benefits on receipt of the discharge summary. This was not done because Ms. Wadhwani continued to operate on the misunderstanding that C.P.’s file was closed and that appeal procedures should be followed. RBC did, however, send to C.P., later in November, her benefits for September and October 2009. [28] RBC continued to mishandle the plaintiff’s claim through to April 29, 2010, when the plaintiff’s file was “re-opened”. Much of the claim’s handling problems arose as a result of Ms. Davidson initiating the AP&C procedure in July 2009. As a result of that action, C.P.’s file was no longer an open claim “which would be subject to the usual management oversight”. It was also not a closed claim, which would be handled by the defendant’s appeal unit. The claim fell into a twilight zone best described as “closed pending evidence of reinstatement”. [29] Subsequent to 2009, communication continued between C.P. and Ms. Wadhwani. Ms. Wadhwani continued to seek medical information from the numerous physicians from whom C.P. was receiving treatment. C.P. was becoming increasingly upset at the failure of RBC to confirm coverage. [30] On April 26, 2010, C.P. was hospitalized overnight. She was released on April 27 and then sought legal advice. [31] On April 27, 2010, C.P.’s legal counsel faxed a letter to Ms. Wadhwani. In the letter, counsel advised that C.P. had been discharged from hospital that same day after a drug overdose, which counsel indicated occurred because of profound stresses caused by RBC’s conduct. The letter requested that RBC immediately reinstate C.P.’s benefits. [32] Also on April 28, 2009 Ms. Wadhwani spoke to, and received a fax from the plaintiff’s psychiatrist, Dr. C. Based upon the information received from Dr. C., Ms. Wadhwani determined that C.P. was entitled to ongoing residual disability benefits. [33] Despite of the manner in which RBC handled the claim, it did, with the exception of the November 2009 benefit payment, pay C.P. residual benefits upon receipt of her income statements. The timing of the payments for the relevant months was: (a)        September 2009 – paid November 19, 2009, the monthly income statement was received November 12, 2009; (b)        October 2009 – paid November 25, 2009, two days after the relevant monthly income statement was received; (c)        November 2009 – paid April 30, 2010, even though the relevant monthly income statement was received January 20, 2010; (d)        December 2009 – not applicable. Plaintiff reported sufficient income; (e)        January and February 2010 – paid June 18, 2010 after the relevant monthly income statements were received on June 4, 2010; (f)         March to June 2010 – paid June 18, 2010, before the receipt of the relevant monthly statements on August 19, 2010. [34] At trial, RBC acknowledged that the claim had been mishandled and that it  “went off the rails” in many places, commencing with the July 15 Letter which had led to a premature closing of the file. Because the file had been closed, it was then set up as an appeal as opposed to a regularly closed claim. When Ms. Wadhwani took over conduct of the file, she was not aware of the history and she did not appreciate how the file had come to be closed. As a result, she continued to treat the matter as an appeal in which the onus was on C.P. to establish her entitlement to further benefits. [35] C.P. continues to be covered under the policy. RBC has made payments to her continuously since reinstating the claim in April 2010. C.P. commenced this proceeding on July 14, 2010, after her claim had been reinstated. THE TRIAL REASONS [36] In closing argument, RBC’s counsel acknowledged that her client’s actions “were sloppy, very sloppy”. The trial judge agreed that the description of sloppiness was apt. He found, however, that the evidence did not support the plaintiff counsel’s general assertion of deft deflection and delay aligned with RBC’s financial interest. The trial judge found both Ms. Davidson and Ms. Wadhwani to be conscientious and forthright, that neither had animus towards C.P. and that they wished for her to succeed. Neither had a financial interest in either closing or keeping closed C.P.’s file. [37] That said, the trial judge found that C.P.’s file should not have been closed and after being closed, it should have been re-opened much earlier than it was. He found that RBC’s sloppiness may have flowed from Ms. Davidson and Ms. Wadhwani’s heavy caseloads. [38] In general, the trial judge found C.P.’s testimony to be often unsatisfactory and unreliable. He did find, however, that during the time that RBC was mishandling the claim, C.P. suffered periods of full disability related to her mental health. He also found that RBC’s actions could reasonably be contemplated to heighten the anxiety of the stress of C.P. beyond reasonable norms. On a balance of probabilities, he found that RBC’s actions were an effective cause of, or gave rise to, mental distress unrelated to any other mental health condition. However, the trial judge rejected the plaintiff’s submissions that any of RBC’s actions were the effective cause of the plaintiff’s hospitalizations, suicidal ideations or overdoses. [39] As to damages, the trial judge noted that C.P. was seeking general damages for mental distress in the range of $100,000 to $200,000 if punitive damages were not awarded which were higher than the amount sought if punitive damages were awarded. The trial judge made reference to the Supreme Court of Canada decision in Fidler v. Sun Life Assurance Co. of Canada , [2006] 2 S.C.R. 3, in which the claims similar to those in this proceeding were brought. In Fidler , the court awarded $20,000 as damages for mental distress. Using Fidler as his guide, the trial judge awarded $10,000 in damages for mental distress. [40] The trial judge rejected the claim for punitive damages. He noted that such awards are only made in exceptional cases and with restraint. While acknowledging that RBC’s actions were sloppy, he rejected the submission that they showed an “egregious level of stone-walling and dishonesty”. The trial judge concluded that the conduct of RBC was not such that warranted the punitive damages award. [41] Subsequent to the release of the reasons, the trial judge heard further submissions in regards to costs. At that hearing, it was disclosed that the defendant, on May 15, 2013, had made a formal offer to settle of $50,000. The offer was not time limited. The defendant applied for double costs on Scale B from June 1, 2013 onward. The trial commenced on September 9, 2013. [42] In brief unreported oral reasons, dated March 27, 2014, the trial judge held that the $50,000 offer ought to have been accepted. He referenced Hartshorne v. Hartshorne , 2011 BCCA 29, for the proposition that the Supreme Court Civil Rules (the “ Rules ”) encouraged parties to seek early resolution by making reasonable settlement offers and discouraged parties from refusing such offers. Without any analysis of the history of the R. 9-1, the trial judge awarded the plaintiff her costs to June 30, 2013 and awarded the defendant double costs thereafter. He noted that he had chosen the date of June 30, 2013 because it was approximately two weeks after examinations for discovery had taken place and gave the plaintiff a six week window to accept the offer. ISSUES ON APPEAL [43] The appeal focused on the assessment of damages and costs award. The foundation of the appeal was that the trial judge erred and applied the wrong legal test for assessing damages. In regards to mental distress, C.P. submits that the proper test has two components: (a) on the issue of foreseeability, the test is not what damages a reasonable person would reasonably foreseeably experience, but what damages a mentally ill insured would experience in the circumstances facing the plaintiff; and (b) in assessing damages, the test is not what a reasonable person would reasonably experience but what mental distress the plaintiff actually experienced. [44] In regards to the question of punitive damages, C.P. submits that the test should be objective, based on: (a) the absence of a reasonable basis for denying benefits; and (b) the defendant’s knowledge or reckless disregard of the lack of a reasonable basis for denying the claim. [45] In regards to the costs award, C.P. submits that the trial judge erred in awarding the defendant double costs and failing to consider all the factors set out in the offer to settle Rule . [46] RBC submits that the trial judge applied the correct legal tests in regard to the assessment of damages and the cost award. It does not challenge the finding that its conduct gave rise to mental distress. DISCUSSION A. Damages for Mental Distress [47] Historically, the law did not recognize damages for mental distress resulting from a breach of contract. In Warrington v. Great-West Life Assurance Co. , (1996) 24 B.C.L.R. (3d) 1 (C.A.), Newbury J.A. traced the evolution of the law at paras. 13-22. She concluded that a disability insurance policy was one of the few contracts for which damages from mental distress were recoverable when they are proven to result from a breach of contract. She noted that the cases indicate that judges should exercise caution in their awards for mental distress. [48] In Fidler , the Supreme Court of Canada confirmed that mental distress is a consequence that parties to a disability insurance contract reasonably contemplate may flow from a failure to pay the required benefits under the contract. The intangible benefit provided by a disability insurance contract is the prospect of continued financial security when a person’s ability to earn an income is disrupted. Damages for mental distress arising from the breach of a “peace of mind” contract flow from the reasoning in Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145. This is because such damages were within the contemplation of both parties at the time they made the contract as the probable result of a breach. [49] The facts in Fidler are very similar to the case before us. Ms. Fidler was insured under a disability policy. The insurer, having paid benefits for a number of years, discontinued the benefits after an investigation led them to conclude that Ms. Fidler was not disabled. The denial of benefits continued for approximately five years. A week before the trial was scheduled to start, the insurer re-instated Ms. Fidler’s benefits and paid all outstanding amounts. The trial, as did this trial, dealt only with Ms. Fidler’s entitlement to aggravated and punitive damages. [50] The trial judge, in reasons indexed at 2002 BCSC 1336, awarded Ms. Fidler $20,000 in what he termed aggravated damages. In doing so, he applied the Court of Appeal’s reasoning in Warrington. He denied the claim for punitive damages, finding that the insurer had not acted in bad faith. [51] The Court of Appeal, in reasons indexed at 2004 BCCA 273, upheld the award for aggravated damages. The Court divided, however, on whether the insurer’s conduct dealing with Ms. Fidler’s benefits rose to the level of bad faith. The majority of the Court held that it did and awarded punitive damages of $100,000. [52] In the Supreme Court of Canada, the insurer sought to set aside the awards for both aggravated and punitive damages. The Court upheld the aggravated damage award. It reviewed the history of awards dealing with damages for mental distress and, as noted, found damages for mental distress for breach of contract can be awarded in appropriate cases as an application of the principles of Hadley v. Baxendale . To make such an award, the Court must be satisfied: 1. that an object of the contract was to secure a psychological benefit that  brings mental distress upon breach within the reasonable contemplation of the parties; and 2. that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation (para. 47). [53] In this appeal, the entitlement to damages from mental distress is not an issue. The sole question is one of quantum. [54] C.P. submits that, given that under the terms of the insurance contract an insured might be entitled to claim disability benefits on the basis of mental illness, it would be in the contemplation of the parties that a mentally ill insured may be in greater need of “peace of mind” than an insured who is not mentally ill, and that the wrongful termination of benefits and loss of peace of mind may impact an insured who is mentally ill more intensely than someone who is not mentally ill. C.P. cites RBC Dominion Securities v. Merrill Lynch Canada Inc. , 2008 SCC 54 for the proposition of the need to distinguish between the unforeseeability of the breach and the unforeseeability of the consequences. [55] C.P. submits that the question to ask is whether the consequences would have been foreseeable had the breach occurred. Applied to the instant case, she submits the question is whether an insured’s attempted suicide and post-traumatic stress disorder would have been foreseeable had the insured, who suffered from severe psychiatric illness with a history of suicidal ideation, faced a wrongful closure of her file and ongoing delays that were clearly inconsistent with the professed intention to act promptly. [56] The foundation of these submissions is that the principles that apply to thin-skull plaintiffs in tort cases are applicable in contract cases. Authorities suggest otherwise. This point was discussed in Turczinski v. Dupont Heating & Air Conditioning (2004), 246 D.L.R. 4 th 95 (Ont. C.A.). In rejecting the submission, the Court said, at para. 45: [45]      I agree with the appellant that the principles that apply to thin-skull plaintiffs in tort cases are not applicable in contract cases. In tort cases the defendant wrongdoer takes the plaintiff as found, but in a contract case the parties make a bargain with each other and are made aware of and agree to the obligations and risks that they are undertaking . Therefore both the type and extent of the damages for breach of contract are based on what was within the reasonable contemplation of the parties. [Emphasis added.] [57] This distinction derives from the fundamental difference between the source of compensable obligations in tort and contract law. As the Ontario Court of Appeal explains, the underlying question in determining liability in contract is whether the loss at issue is of a type and extent for which the party in breach assumed contractual responsibility as a matter of law, with the ambit of the obligation determined on the basis of the parties’ bargain at formation. It is for this reason that the question of whether a loss occasioned by a particular infirmity is compensable must be understood in terms of the parties’ bargain. The court looks to the interaction of the parties to determine what obligations they intended to incur or, put another way, what risks they intended to assume under the contract. It is up to the parties to determine who will bear the risk of loss occasioned by any unexpected susceptibility to a type of loss. [58] In tort, in principle, the parties have no such pre-existing relationship (in the sense of defining the scope of their mutual obligation to each other prior to a tortious wrong). The risk of loss due to unexpected susceptibility has to be apportioned by a judicially devised mechanism extrinsic to the parties’ interaction, regardless of its form. In our system, this mechanism is the thin-skull principle. Such a mechanism must exist in tort, but it cannot be incorporated into contract because in contract risk is apportioned by the parties at formation. [59] The ability of a plaintiff to recover damages for a particular type of loss in contract is subject to the principle of remoteness. The reasonable contemplation of the parties does not include the possibility of events that might only happen in a small minority of cases. This is because the mere fact that a possibility could logically have been contemplated by the parties cannot be enough, as a matter of law, to turn it into an enforceable obligation compensable with damages. In The Heron II, [1969] 1 A.C. 350 (H.L.), Lord Reid explained at 385: [The Court in Hadley] clearly meant that a result which will happen in the great majority of cases should fairly and reasonably be regarded as having been in the contemplation of the parties, but that a result which, though foreseeable as a substantial possibility, would only happen in a small minority of cases should not be regarded as having been in their contemplation. [60] As I explained above, the scope of liability under contract is defined by the parties at contract formation. The inquiry into the expectation of the parties must, therefore, be determined based on contract formation. Mustapha v. Culligan of Canada Ltd. , 2008 SCC 27, concerned a case where the plaintiff, while in the course of replacing an empty bottle of drinking water with a full one, saw a dead fly and part of another dead fly in the unopened replacement bottle. Obsessed with the event and its revolting implications for the health of his family, he developed a major depressive disorder, phobia and anxiety. He sued the supplier of the bottle for psychiatric injury. The trial judge awarded him general and special damages. The Court of Appeal overturned the judgment on the basis that the injury was not reasonably foreseeable and did not give rise to a cause of action. [61] The Supreme Court of Canada held that the plaintiff’s damages were too remote to recover in tort. It also dismissed the contract claim. In that regard, it said: [19] The plaintiff also brought a claim for damages arising out of breach of contract, although he appears not to have pursued it with vigour. This claim fails. With regards to Mr. Mustapha’s psychiatric injury, there is no inconsistency in principle or in outcome between negligence law and contract law. Damages arising out of breach of contract are governed by the expectation of the parties at the time the contract was made ( Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145, at p. 151, applied with respect to mental distress in Fidler v. Sun Life Assurance Co. of Canada , [2006] 2 S.C.R. 3, 2006 SCC 30) , as distinguished from the time of the tort, in the case of tort . I have concluded that personal injury to Mr. Mustapha was not reasonably foreseeable by the defendant at the time of the alleged tort. The same evidence suggests that Mr. Mustapha’s damage could not be reasonably supposed to have been within the contemplation of the parties when they entered into their agreement. [Emphasis added] [62] Of import is the Court’s emphasis that damages arising out of the breach of contract are governed by the expectation of the parties at the time the contract was made, as distinguished from the time of the tort, as in the case of tort. In support of this principle the Court makes specific reference to Fidler . Given that the legally enforceable obligation in contract arises at contract formation rather than at the time of the breach, the nature of that legally enforceable obligation is determined by the events occurring at the time the contract is formed, not afterward. That the parties have an on-going relationship does not mean that the nature of the obligation under the parties’ contract has, somehow, been altered over that period of time unless the parties’ contract specifically incorporated such an eventuality in its terms. [63] The question in this case is whether the potentially unique susceptibility of C.P. to having her benefits denied could have been foreseen under the contract at the time of formation. In this case, the contract was made in 1999. It was, at least insofar as the evidence indicates, a typical disability insurance contract. As of that date, C.P. was a practicing physician with no history of mental illness. There was no basis to suspect she was anything other than a typical person of ordinary fortitude. In view of these circumstances, C.P.’s reaction to the suspension of benefits was extreme. It would not have been within the reasonable contemplation of the Paul Revere Life insurance company at the time the disability insurance was purchased, in whose position RBC now stands, that the risk of a loss occasioned by such an extreme susceptibility formed part of the disability insurance contract. [64] The evidence at trial was that C.P. did not have typical reactions to the stressors affecting her. There is no evidence that an indemnity for such atypical reactions formed part of the parties’ bargain. There is no evidence that the parties had intended for the insurer to assume liability for every reaction, no matter how extreme, caused by the breach of the contract. In my view, it was not within the reasonable contemplation of parties to this contract for disability insurance that a suspension of benefits for a few months, while the insured continued to practice medicine part-time, would lead the insured to overdose and/or attempt suicide. This “extreme level of suffering” was not reasonably foreseeable as being the probable result of or arising naturally out of RBC’s breach within the meaning of Hadley v. Baxendale . [65] The awards for damages for mental stress in the context of a disability policy have traditionally been modest. In Warrington , benefits were suspended for 26 months. The award was $10,000. In Fidler, in which benefits were suspended for five years, the award was $20,000. In the case at bar, while the claim was closed for some eight months, benefit payments were suspended less than four months, and re-instated before any litigation was commenced. While the award in this case could properly be described as modest, and it may well have been open to the trial judge to award more, the award cannot be considered inordinately low or entirely disproportionate to similar awards in other cases. I would not disturb the trial judge’s award of damages for mental distress. B. Punitive Damages [66] In Fidler , the Supreme Court of Canada stated the principles that are applicable to awards of punitive damages: [61] While compensatory damages are awarded primarily for the purpose of compensating a plaintiff for pecuniary and non-pecuniary losses suffered as a result of a defendant’s conduct, punitive damages are designed to address the purposes of retribution, deterrence and denunciation: Whiten v. Pilot Insurance Co. , [2002] 1 S.C.R. 595, 2002 SCC 18, at para. 43. [62]      By their nature, contract breaches will sometimes give rise to censure. But to attract punitive damages, the impugned conduct must depart markedly from ordinary standards of decency — the exceptional case that can be described as malicious, oppressive or high-handed and that offends the court’s sense of decency: Hill v. Church of Scientology of Toronto , [1995] 2 S.C.R. 1130, at para. 196; Whiten , at para. 36. The misconduct must be of a nature as to take it beyond the usual opprobrium that surrounds breaking a contract. As stated in Whiten , at para. 36, “punitive damages straddle the frontier between civil law (compensation) and criminal law (punishment)”. Criminal law and quasi-criminal regulatory schemes are recognized as the primary vehicles for punishment. It is important that punitive damages be resorted to only in exceptional cases, and with restraint. [63]      In Whiten , this Court set out the principles that govern the award of punitive damages and affirmed that in breach of contract cases, in addition to the requirement that the conduct constitute a marked departure from ordinary standards of decency, it must be independently actionable. Where the breach in question is a denial of insurance benefits, a breach by the insurer of the contractual duty to act in good faith will meet this requirement. The threshold issue that arises, therefore, is whether the appellant breached not only its contractual obligation to pay the long-term disability benefit, but also the independent contractual obligation to deal with the respondent’s claim in good faith. On this threshold issue, the legal standard to which Sun Life and other insurers are held is correctly described by O’Connor J.A. in 702535 Ontario Inc. v. Lloyd’s London, Non-Marine Underwriters (2000), 184 D.L.R. (4th) 687 (Ont. C.A.), at para. 29: The duty of good faith also requires an insurer to deal with its insured’s claim fairly. The duty to act fairly applies both to the manner in which the insurer investigates and assesses the claim and to the decision whether or not to pay the claim. In making a decision whether to refuse payment of a claim from its insured, an insurer must assess the merits of the claim in a balanced and reasonable manner. It must not deny coverage or delay payment in order to take advantage of the insured’s economic vulnerability or to gain bargaining leverage in negotiating a settlement. A decision by an insurer to refuse payment should be based on a reasonable interpretation of its obligations under the policy. This duty of fairness, however, does not require that an insurer necessarily be correct in making a decision to dispute its obligation to pay a claim. Mere denial of a claim that ultimately succeeds is not, in itself, an act of bad faith. [67] In this case, the trial judge rejected C.P.’s submissions that RBC’s conduct departed remarkably from ordinary standards of decency. He accepted the evidence of Ms. Davidson and Ms. Wadhwani that they were at all times acting in good faith and attempting to properly serve C.P.’s interest. It is to be remembered that the catalyst to the initial closing of the file was C.P.’s advice to RBC that she was returning to full-time work. [68] The trial judge’s findings of fact are with respect a complete answer to the punitive damage appeal. He found there was no improper purpose on the part of RBC. While accepting that the claim handling procedure was sloppy, RBC’s actions could not be characterized as malicious, oppressive or high-handed. The trial judge saw and heard the witnesses. It is for him to assess the evidence and determine its weight and effect. Although he characterized the conduct as sloppy, it clearly did not, in his view, depart from the ordinary standards of decency. C.P. has not been able to demonstrate that the conclusions of the trial judge were unreasonable or palpably wrong. [69] I would dismiss the claim for punitive damages. C. Costs i.        Overview [70] Unless the court otherwise orders, costs in a proceeding must be awarded to the successful party: R. 14-1(9). The successful party is the plaintiff who establishes liability under a cause of action and obtains a remedy, or a defendant who obtains a dismissal of the plaintiff’s case: Loft v. Nat , 2014 BCCA 108 at para. 46. [71] One circumstance in which a court may order otherwise under R. 14-1(9) is where the plaintiff fails to accept an offer to settle under R. 9-1. Rule 9-1(5) sets out the options that are open to a court in circumstances in which an offer to settle has been made: (a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle; (b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle; (c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made; (d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant's costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle. [72] When making an order under R. 9-1(5) the Court may consider the factors set out in R. 9-1(6): (a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date; (b) the relationship between the terms of settlement offered and the final judgment of the court; (c) the relative financial circumstances of the parties; (d) any other factor the court considers appropriate [73] In this case, C.P. was the successful party. She established liability and received an award of damages in her favour.  This success was recognized by the trial judge who awarded C.P. her costs up to June 30, 2013.  RBC, in recognition of its offer to settle, was awarded double costs for all steps in the proceedings taken after June 30, 2013. [74] The main issue raised on the costs portion of the appeal is whether the Rules authorize a trial judge to award double costs to a defendant, in circumstances in which the plaintiff was the erstwhile successful party. If an award for double costs is not available, the question then is what cost award in light of the offer to settle should be made. ii.       Availability of Double Costs [75] In most cases, an award of costs involves the discretion of the trial judge. This Court should not interfere with that discretion unless the trial judge made an error in principle or the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9 at para. 27. In this case, the main issue on appeal is one of statutory interpretation, which attracts a standard of review of correctness: Canada (Information Commissioner) v. Canada (Minister of National Defence) , 2011 SCC 25, at para. 23. [76] The principles of statutory interpretation apply to the Supreme Court Civil Rules : A.E. (Litigation Guardian of) v. D.W.J., 2011 BCCA 279 ( A.E. Appeal ).The legislative evolution of a provision or statute may be relied on by the courts to assist the statutory interpretation: Gravel v. St-L é onard (City) , [1978] 1 S.C.R. 660 at 687; Amos v. Insurance Corp. of British Columbia , [1995] 3 S.C.R. 405 at para. 13. Iacobucci J. summarized this interpretive principle in R. v. Ulybel Enterprises Ltd. , 2001 SCC 56 at para. 3, setting out the relationship between legislative evolution and legislative intent: 2. Legislative History and the Intention of Parliament [33]      To understand the scope of [a provision], it is useful to consider its legislative evolution. Prior enactments may throw some light on the intention of Parliament in repealing, amending, replacing or adding to a statute [Citations omitted.] [77] A.E. (Litigation Guardian of) v. D.W.J. , 2009 BCSC 505 traces the legislative and judicial history of pre-trial offers of settlement: paras. 35-46. Until 1976, the Rules recognized only offers made by defendants. The mechanism of the offer was by way of a payment into Court. If the plaintiff obtained a judgment for the amount of that payment or in a lesser amount, the plaintiff would be entitled to costs assessed to the date of the offer, and the defendant to costs after that date. [78] In 1976, in the context of a complete revision of the Rules , the Rules made provision for the first time for plaintiffs to deliver offers to settle: R. 57(13)). If the plaintiff received an amount greater than the offer to settle, the plaintiff would be entitled to costs to the date of the offer and double costs thereafter: R. 57(18)). [79] The rationale for the double cost provision was explained by Fraser J. in Martel v. Peetoom (1996), 27 B.C.L.R. (3d) 160 (S.C.) at para. 11: The concept of double costs is driven by the dynamics of the plaintiff's situation: given that it is predicated on the plaintiff recovering judgment, and given that the premise is that the defendant made no offer or made an offer for less than the award, the plaintiff would be entitled to costs of the action anyway. The only way to reward a plaintiff is to augment the costs award. This is the genesis of the concept of double           costs. The regime is even-handed between plaintiffs and defendants because it rewards each with a set of costs they would not otherwise receive. [80] In 1993, the provisions governing offers to settle by both plaintiffs and defendants were consolidated in a new R. 37 (B.C. Reg. 55/93). Payments into court were replaced by offers to settle. The costs consequences arising from an offer to settle were set out in Rules 37(23) and (24). Those consequences remained the same as before. A plaintiff who made an offer to settle more favourable to the defendant than the result obtained at trial (i.e., the eventual damage award is greater than the offer) was entitled to double costs from the time the offer was delivered. A defendant who made a more favourable offer to settle (i.e., the eventual damage award is less than the offer) became entitled to the costs of the action from the time the offer was delivered. [81] A gap in the Rules soon became apparent. In situations where a defendant made an offer to settle and the case was subsequently dismissed, the plaintiff suffered no additional consequences because the defendant was already entitled to costs. Several judges when faced with such a situation awarded defendants double costs subsequent to the date of the offer notwithstanding the lack of any rule authorizing same: Jetha v. Shefield & Sons-Tobacconists Inc. , [1997] B.C.J. No. 317 (S.C.); 32262 B.C. Ltd. v. Balmoro Investments Ltd ., [1998] B.C.J. No. 23 (S.C.); and Cook v. Bhanwath (1999), 73 B.C.L.R. (3d) 305 (S.C.). Given the authorities in this Court that judges are limited to the cost options set out in the Rules ( Kurtakis v. Canadian Northern Shield Insurance Co. (1995), 17 B.C.L.R. (3d) 197 (C.A.); A.E. Appeal at paras. 14, 39 ; Gichuru v. Smith 2014 BCCA 414 at para. 84 ) the correctness of those cases must be doubted. In any event, those cases prompted a change to the Rules . [82] In 1999, R. 37(24)(b) was adopted to address the circumstances in which an action was dismissed following an offer to settle. The new provision entitled a defendant to double costs from the date of the offer. (B.C. Reg. 149/99). The Rules remained in that form until the introduction of R. 37B which became effective July 1, 2008. [83] Over time the cost provisions of R. 37 were determined to be a complete code with respect to offers to settle, allowing for no judicial discretion: Cridge v. Harper Grey Easton & Co . , 2005 BCCA 33 at paras. 20-23. Rule 37B was adopted to restore discretion to trial judges in relation to offers to settle. Rule 37B was a clear movement away from the narrowly formulated, rigidly applied, approach to offers to settle which had applied under R. 37: Roach v. Dutra , 2010 BCCA 264 at para. 50. [84] As initially written, R. 37B(5) gave the court the following options in proceedings in which an offer to settle had been made: (a)        deprive a party, in whole or in part, of costs to which a party would otherwise be entitled in respect of the steps taken in the proceedings after the date of delivery of the offer to settle; (b)        award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle. [85] The Rule did not allow the court to order costs to a defendant where the offer to settle was in an amount greater than the judgment. In A.E. , the court held that there was no power to make such an order absent a specific provision in the Rules . Shortly thereafter R. 37B(5) was amended (am. B.C. Reg. 165/2009, s. 1(a), (b) and (c)). The amended wording of R. 37B(5) was carried forward in essentially the same terms in R. 9-1(5) of the Supreme Court Civil Rules , which took effect July 1, 2010. [86] It is against this historical background that the availability of double costs to a defendant, in a case in which the plaintiff has obtained a judgment in its favour, must be considered. [87] Double costs are a creature of statute unknown to the common law: Vukelic v. Canada (1997), 37 B.C.L.R. (3d) 217 at para. 9 (C.A.). Their introduction, in 1976, was to provide a remedy to plaintiffs who made offers to obtain judgments better than their offers to settle. Double costs were intended to augment the cost award to which a plaintiff would otherwise be entitled. A similar intent was behind the 1999 amendment which provided double costs to defendants when an action was dismissed. Such an award levelled the playing field between the parties and put each party at risk of a double cost award in circumstances in which they would ordinarily be entitled to an award of costs in their favour. [88] There is no suggestion in any of the cases that an award of double costs under R. 37 was unfair to plaintiffs or defendants. R. 37 was criticized for its lack of flexibility, not for the inadequacy of its remedies. [89] The case at bar is the second decision in which an award of double costs has been made to a defendant where the plaintiff has received a judgment. A similar award was made in Minhas v. Sartor , 2014 BCSC 47. In Danicek v. Lee , 2011 BCSC 444 the judge considered that he had jurisdiction to make an award for double costs in a similar situation but refused to do so. In none of the aforementioned cases did the judges make reference to the unequivocal comments in A.E. Appeal at para. 44 that “it is likely that double costs would be awarded in favour of the defendant only where the plaintiff’s action was dismissed”. [90] Neither the trial judge nor the judge at Minhas made reference to the decision in Gulbrandsen v. Mohr , 2013 BCSC 1481. In Gulbrandsen the trial judge, in reasons indexed at 2013 BCSC 959, initially awarded the plaintiff costs up to the date of the defendant’s offer to settle, and double costs to the defendant thereafter. He then reconsidered the double cost award. After reviewing numerous authorities including A.E. , A.E. Appeal , Ward v. Klaus , 2011 BCSC 99 and Currie v. McKinnon , 2012 BCSC 1165, he concluded that it was not appropriate to make an award of double costs to a defendant where the plaintiff had obtained a judgment. [91] I am of the same opinion. I do not believe that R. 37B intended to change the long-standing practice concerning the circumstances when double costs could be awarded. A plaintiff who obtains a judgment for less than an offer to settle is already subject to sanctions: R. 9-1(6)(a) allows the court to deprive the successful plaintiff of costs to which it would otherwise be entitled. Rule 9-1(5)(d) provides an even more punishing outcome as the plaintiff is not only deprived of costs he or she would otherwise receive, but must also pay the defendant’s costs subsequent to the offer to settle. To also allow a defendant double costs would skew the procedure in favour of defendants and unfairly penalize and pressure plaintiffs. I would adopt in that regard the comments of Madam Justice Adair in Currie : [18]      I think it certainly can be argued that if a defendant who has made an offer to settle in an amount higher than the amount awarded to the plaintiff at trial (and that is what has been done in this case) was then awarded double costs, this would skew the procedure in favour of defendants and unfairly penalize and pressure plaintiffs.  This is because a plaintiff who rejected an offer to settle would potentially risk a triple cost penalty if he or she were to win at trial an amount less than the offer.  The plaintiff would suffer loss of the costs that he or she would normally receive on obtaining judgment at trial, and face double costs payable to the defendant. [19]      In my view, there is a good reason to apply Rule 9-1 in a way that is even-handed, or more even-handed, as between plaintiffs and defendants.  I would say for this reason one would expect to see double costs awarded to a defendant, using the offer to settle procedure, in exceptional circumstances only, such as a situation where the plaintiff’s claim was dismissed all together after a plaintiff rejected an offer to settle. [92] In the result, I find that it was not open for the trial judge to award double costs to the defendant. It was an error in principle to do so. The decision in Minhas which made a similar order was also wrongly decided and should not be followed. iii.       The Proper Cost Award [93] The issue to be determined is the appropriate cost order on the facts of this case. Given the result at trial and the defendant’s offer to settle, the trial judge had three options. He could deprive the plaintiff any or all costs arising subsequent to the date of delivery of the offer to settle; he could award the defendant the defendant’s costs in respect to matters taken after the offer to settle; or he could, in the exercise of his discretion, give no effect to the offer to settle. [94] The underlying purpose of the offer to settle rule was set out in Hartshorne : [25]      An award of double costs is a punitive measure against a litigant for that party’s failure, in all of the circumstances, to have accepted an offer to settle that should have been accepted. Litigants are to be reminded that costs rules are in place “to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer” ( A.E. v. D.W.J., 2009 BCSC 505, 91 B.C.L.R. (4th) 372 at para. 61, citing MacKenzie v. Brooks, 1999 BCCA 623, Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 (C.A.), Radke v. Parry, 2008 BCSC 1397). In this regard, Mr. Justice Frankel’s comments in Giles are apposite: [74]      The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted. In addition to indemnifying a successful litigant, those purposes have been described as follows by this Court: · “[D]eterring frivolous actions or defences”: Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref’d, [1988] 1 S.C.R. ix; · “[T]o encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect”: Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.); · “[E]ncouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases: Bedwell v. McGill , 2008 BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33; · “[T]o have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuance of doubtful cases or defences”: Catalyst Paper Corporation v. Companhia de Navegação Norsul , 2009 BCCA 16, 88 B.C.L.R. (4th) 17 at para. 16. [95] A plaintiff who rejects a reasonable offer to settle should usually face some sanction in costs. To do otherwise would undermine the importance of certainty and consequences in applying the Rule: Wafler v. Trinh , 2014 BCCA 95 at para. 81. The importance of those principles was emphasized by this Court in A.E. Appeal at para. 41: [41]      This conclusion is consistent with the importance the Legislature has placed on the role of settlement offers in encouraging the determination of disputes in a cost-efficient and expeditious manner.  It has placed a premium on certainty of result as a key factor which parties consider in determining whether to make or accept an offer to settle.  If the parties know in advance the consequences of their decision to make or accept an offer, whether by way of reward or punishment, they are in a better position to make a reasoned decision.  If they think they may be excused from the otherwise punitive effect of a costs rule in relation to an offer to settle, they will be more inclined to take their chances in refusing to accept an offer.  If they know they will have to live with the consequences set forth in the Rule, they are more likely to avoid the risk. [96] As set out above when making an order under R. 9-1(5) the Court may consider the factors set out in R. 9-1(6). I will consider those factors in turn. a.       Should the Offer have been Accepted [97] Whether an offer to settle is one that ought reasonably have been accepted, is assessed not by reference to the award that was ultimately made, but under the circumstances existing when an offer was open for acceptance: Bailey v. Jane , 2008 BCSC 1372 at para. 24 and Hartshorne at para. 27. This factor is considered from the perspective of the person receiving the offer. It has both a subjective and objective component. The court is entitled to take into account the reasons why a party declined to accept an offer to settle. The court must consider whether those reasons are objectively reasonable. [98] The trial judge found that the $50,000 offer ought to have been accepted. I agree with that finding. $50,000 was well in excess of any prior award in this jurisdiction for mental distress. While the amount may have been considerably less than the plaintiff hoped to receive, an objective analysis of the plaintiff’s case should have led to the conclusion that the offer be accepted. b.       The Results at Trial [99] This factor is the mirror image of the first factor. It provides the court with an objective measurement of the reasonableness of the offer that has been made and the decision to reject it. In this case, the offer was five times the award made at trial. c.       Relative Financial Circumstances [100] This factor allows the court to consider the relevant financial circumstances of the parties. In the early cases decided under R. 37B, most judges concluded the fact that an insurer was involved should not be taken into account: Bailey at paras. 32-34; and Arnold v. Cartwright Estates , 2008 BCSC 1575 at para. 23. In Smith v. Tedford , 2010 BCCA 302 this Court held otherwise. In that decision, the Court recognized that in certain circumstances the existence of an insurer can be taken into account. [101] Subsequent to Tedford , there has been some debate in the trial court as to how this factor should be applied. In that regard, I follow the course charted by Humphries J. in Mazur v. Lucas , 2011 BCSC 1685 in which she held that “while insurance coverage is not automatically a factor to be considered against the insured party, the facts of the particular case will govern whether it should be considered, and if so, what weight should be given to it” (Para. 53). [102] In this case, RBC is undoubtedly a company of financial substance. However, there is no evidence that it used its financial strength in an untoward manner. In my view, the parties’ financial discrepancy in this case is not relevant to the proper cost award. d.       Other Factors [103] The court is also entitled to consider any other relative factors. In this case, C.P. argued that given her ongoing contractual relationship with RBC she needed to address RBC’s conduct and her peace of mind required that she confront what happened in 2009-2010. She argued that it was reasonable to not accept the defendant’s offer because “the issues in this action are not simply about money”. The trial judge rejected the plaintiff’s submission. The judge rightly noted that the offer ought not to have been dismissed for extraneous reasons. e.       Analysis [104] As noted in Hartshorne , the offer to settle rule is a punitive measure intended to encourage the early settlement of disputes by rewarding the party who makes the reasonable settlement offer and penalizing the party who declines to accept such an offer. The trial judge was clearly of the view that C.P. should be punished for failing to accept RBC’s offer and to that end awarded RBC double costs. [105] For the reasons set out above, double costs were not available to the trial judge. The trial judge clearly, however, could have awarded RBC its costs from a date following the offer to settle if he had appreciated that double costs were not available. There is little doubt that he would have made such an award. Such an award would have been within his discretion. In this case, it is not an award with which this Court would interfere. [106] Thus, given the circumstance of this case and the comments of the trial judge in the cost reasons, I would vary the cost award and substitute for the award of double costs an award of single costs to RBC from June 30, 2013 onward. SUMMARY [107] In summary, I would dismiss the appeal save and except for the variation of the cost award. Given C.P.’s limited success on the appeal, I would award RBC 80% of the costs of the appeal. “The Honourable Mr. Justice Goepel” I agree: “The Honourable Madam Justice MacKenzie” I agree: “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Samuelson, 2015 BCCA 29 Date:  20150126 Docket: CA041956 Between: Regina Respondent And Anthony Leonard Donald Samuelson Appellant Before: The Honourable Madam Justice Kirkpatrick The Honourable Madam Justice Garson The Honourable Madam Justice MacKenzie On appeal from:  An order of the Provincial Court of British Columbia, dated December 12, 2013 ( R. v. Samuelson , Penticton Registry File Number 41107). Counsel for the Appellant: M.F. Welsh Counsel for the Respondent: M.A. Street Place and Date of Hearing: Vancouver, British Columbia January 8, 2015 Place and Date of Judgment: Vancouver, British Columbia January 26, 2015 Written Reasons by: The Honourable Madam Justice Kirkpatrick Concurred in by: The Honourable Madam Justice Garson The Honourable Madam Justice MacKenzie Summary: Application for leave to appeal and an appeal from a sentence of two years less a day followed by three years’ probation for an aggravated assault. Following a provocative and aggressive exchange, the offender attacked the victim with a makeshift weapon, which was a rock placed in a sock and swung like a sling. The sentencing judge found that the assault was severe and premeditated. Held: Appeal dismissed. The sentence was not demonstrably unfit and the sentencing judge did not commit an error in principle, fail to consider a relevant factor, or overemphasize a relevant factor. Reasons for Judgment of the Honourable Madam Justice Kirkpatrick: [1] At close of submissions on this appeal, we dismissed the appeal with reasons to follow. These are those reasons. [2] Anthony Leonard Donald Samuelson seeks leave to appeal, and if leave is granted, appeals from the sentences imposed on May 6, 2014 of two years less a day followed by three years’ probation following his conviction for aggravated assault, contrary to s. 268(2) of the Criminal Code , R.S.C., 1985 c. C-46 and assault with a weapon (a rock contained in a sock), contrary to s. 267(a) of the Code . [3] Mr. Samuelson does not appeal the ancillary orders prohibiting him from possessing firearms and weapons, and requiring him to provide a DNA sample. He also does not contest the sentences imposed on matters to which he pleaded guilty: mischief to property owned by the RCMP (telephones) and three breaches of his recognizance, all of which were committed while he was on bail on these charges. [4] Mr. Samuelson submits the sentences imposed offend the principles of proportionality, parity, and restraint. He asks this Court to vary the sentence and impose a three year suspended sentence “with probation” or, alternatively, a reduction of the jail term imposed in the trial court. A conditional sentence order is not an available sanction by operation of s. 741(e)(i) of the Code . CIRCUMSTANCES OF THE OFFENCE [5] On the evening of September 7, 2012, Michael Ricciardi and five friends were walking to a local pub in Penticton, B.C. after drinking at a residence. Each member of Mr. Ricciardi’s group, with the exception of Dave Jevons, had consumed five to six beers and considered themselves to be “intoxicated”. [6] As the group neared the local art gallery on route to the pub, they heard Mr. Samuelson yelling aggressively. Although they could not understand what he was saying, the group interpreted Mr. Samuelson’s words as of a “fighting, provocative nature”. One member of Mr. Ricciardi’s group heard Mr. Samuelson call them “pussies” and “faggots” and another heard him say “Let’s fucking go”. [7] Mr. Ricciardi’s group exchanged unpleasantries with Mr. Samuelson as they continued toward the pub. No one in the group expressed any intention to fight with Mr. Samuelson. [8] Mr. Samuelson was described as appearing as though he wanted to fight − he was standing in a fighting stance with his hands in the low-ready position and bouncing on his feet like a boxer. [9] The judge described the assault as follows: [12]      Mr. Ricciardi and the accused stood face to face. Mr. Ricciardi stepped towards the accused. He did not make any threatening motions. At most, he shrugged his shoulders up and opened his palms face up when he asked the accused what his problem was. The two did exchange unpleasantries. At one point, Mr. Ricciardi suggested that Mr. Samuelson ought to return to Alberta where he came from. The tone coming from both men was aggressive in nature. [13]      Mr. Ricciardi testified that the accused then turned, walked away, and picked up a weapon, charged, and then struck him with it. Again, I preferred the evidence of the others that Mr. Samuelson had the weapon in his hands the whole time and did not back away to pick it up. [14]      It is important to note that not only had Mr. Ricciardi been drinking, but he had also sustained a severe blow to his head within seconds of the observations he testified about. [15]      After the blow, the accused turned and ran. Members of Mr. Ricciardi’s group gave chase. Mr. Jevons said that Mr. Samuelson was laughing as he ran. Mr. Samuelson was calling out for assistance from others in the area. [16]      Eventually the group was able to tackle him. There was a brief struggle on the ground and Mr. Samuelson then apologized. Others began to approach, and the members of Ricciardi’s group felt it too unsafe and left. [10] The weapon referred to by the judge was a rock placed in a sock and swung like a sling. Mr. Ricciardi sustained a serious head wound that resulted in a permanent, visible scar. He missed a week of work due to his injuries. [11] At the time of sentencing, Mr. Ricciardi continued to suffer from concussion symptoms, as well as anxiety, paranoia and anger. He takes prescription medication for his anxiety. He rarely leaves his house, which has affected his family and social relationships. CIRCUMSTANCES OF THE OFFENDER [12] The judge had the benefit of a pre-sentence report with a psychological component. Mr. Samuelson reported having an unstable childhood where he moved between the homes of his separated parents. His father was verbally, emotionally, and physically abusive toward him. His mother was drug-addicted and neglectful. She died from a drug overdose before the sentencing hearing. [13] Mr. Samuelson described himself as rebellious and poorly behaved in school. He was expelled from school in Grade 8 because of his disruptive behaviour in the classroom and from an alternative school in Grade 10. He had a sporadic employment history. He had no income at the time of sentencing. [14] It appears that the source of Mr. Samuelson’s difficulties can be traced to an early history of excessive consumption of alcohol beginning when he was 13 or 14 years old. He also used marihuana. Prior to the offence, Mr. Samuelson was consuming alcohol and marihuana daily. He consumed ecstasy and cocaine bi-weekly. [15] At the time of the pre-sentence report, Mr. Samuelson claimed to be abstaining from all substances. He also claimed to have completed an intake at an addiction resource centre and that he had an appointment with a counsellor, neither of which was confirmed by the centre. [16] Mr. Samuelson was seen by a psychiatrist, Dr. Agbodo in February 2012. Dr. Agbodo diagnosed him as having an impulse control disorder and prescribed carbamazepine. Mr. Samuelson failed to attend a follow-up visit although he says he continues to take the medication and that he finds the medication beneficial. [17] In a similar vein, Mr. Samuelson failed to follow instructions from his general practitioner to attend for blood work with drug screening and for specialist appointments, ultimately prompting the termination of his treatment. [18] The psychiatric report of Dr. Meldrum was filed at the sentencing hearing. Dr. Meldrum considered that Mr. Samuelson “had some insight into his difficulties” but “did however seem somewhat naïve with respect to his ability to maintain abstinence over the longer term without formalized treatment”. [19] Mr. Samuelson’s risk factors were described by Dr. Meldrum in part as follows: There are factors in Mr. Samuelson’s history that will increase his risk of violence compared to an individual without such a history. This includes Mr. Samuelson’s current convictions for violent offences. This was an act of serious violence which increases the risk of future violence. Additionally Mr. Samuelson was 18 years old at the time of his arrest and his young age statistically increases his risk. Other historical risk factors that are pertinent to predicting an increased risk of violence is Mr. Samuelson’s history of substance misuse, early developmental trauma and maladjustment and a possible mental illness, which could be bipolar disorder, attention deficit disorder or an impulse control disorder. Mr. Samuelson also has a history of early maladjustment and has a history of a breach charge both of which statistically increase his risk compared to an individual without these factors. REASONS FOR SENTENCE [20] The judge reviewed the foregoing background in his comprehensive reasons for sentence. He concluded that the assault was serious and pre-meditated: [19]      Mr. Samuelson removed one of his socks and placed a rock in it to act much like a slingshot. The nature of the weapon would have required some thinking and forethought on his part. It is not the same as simply picking up a stick or a rock. I am also satisfied that it was his intention to use it with the element of surprise when the group was near him. It was not a mere reaction on his part to what he says he perceived to be a threatening situation. The fact that he ran away laughing supports my belief. The evidence does not support the notion that the blow occurred in the course of a consensual fight or that Mr. Samuelson could have been mistaken in his belief that Mr. Ricciardi was a willing participant. [21] The judge reviewed the aggravating circumstances which he identified as: (a) the nature and permanence of Mr. Ricciardi’s injuries; (b) the fact that Mr. Samuelson “purposely lured” Mr. Ricciardi to the location and went to the effort to fashion a weapon from a rock and a sock; (c) the absence of provocation; (d) the nature of the weapon which the judge found could have only one purpose − to cause death or serious bodily harm; (e) the lack of insight into the crime as evidenced by his belief that he was acting in self-defence; and (f) Mr. Samuelson’s post-offence attitude exhibited by non-compliance while on bail “which demonstrate challenges for the system in effecting future rehabilitation” and “diminishes the prospects that he would be able to comply with a community-based sentence”. [22] The mitigating circumstances were found by the judge to include Mr. Samuelson’s “very difficult upbringing”; his relative youth − he was 18 at the time of the offence and 20 years old at the time of sentencing; and the absence of a criminal record. [23] The judge had particular regard to the objective circumstances of the assault. He referred to this Court’s decisions in R. v. Craig , 2005 BCCA 484 and R. v. Johnson (1998), 131 C.C.C. (3d) 274 (B.C.C.A.). [24] In Craig , the Court described the range of sentence for the commission of aggravated assault as follows: [10]      It is not disputed, and it appears clear on the cases, that a sentence of two years’ imprisonment for the commission of aggravated assault (which is the sentence that was effectively imposed by the judge) is at the low end of the range of sentences imposed on similar offenders in similar circumstances ( R. v. Chana (1998), 115 B.C.A.C. 159, [1998] B.C.J. No. 2458 (Q.L.) (C.A.) at para. 6). The range of sentence for similar offences was described as being between 16 months and six years in R. v. Johnson (1998), 131 C.C.C. (3d) 274 (B.C.C.A.), two years less a day to six years in R. v. Biln , 1999 BCCA 369, and, most recently, between 18 months and six years in R. v. Willier , 2005 BCCA 404. In determining an appropriate sentence within this broad range, an unprovoked attack with a weapon tends to result in the imposition of a sentence at the higher end while a consensual fight that has escalated with resulting injury tends to result in a sentence at the lower end. See in particular: R. v. Willier , at para. 22, and R. v. Johnson , at para. 10. [25] At the outset, it is important to emphasize that sentencing is an individualized process, as the Supreme Court of Canada recently explained in R. v. Pham , 2013 SCC 15 at para. 8. The potential of a person to rehabilitate is an important factor to consider in crafting such an individualized sentence. Assessing the potential of a particular offender to rehabilitate is a fact that is within the purview of the sentencing judge: R. v. C.A.M. , [1996] 1. S.C.R. 500 at para. 82. Even if the manner and the type of the offence is similar, and even where some background circumstances of the offender (e.g., age or criminal record) are partly analogous, the underlying potential of the offender to be rehabilitated may indicate the need for a more (or less) severe sentence. [26] At sentencing, the Crown sought a sentence of three to four years’ imprisonment. The defence advocated a suspended sentence, relying on R. v. Nakamura , 2012 BCSC 327; R. v. Nicholls , 2013 BCSC 1145; and R. v. Powell (1994), 134 N.S.R. (2d) 236 (N.S.C.A.), all of which imposed suspended sentences. The judge conceded that the defendant’s cases were “somewhat difficult to distinguish”. [27] With respect, those cases were clearly distinguishable. Nakamura concerned two youthful offenders who had shown sincere remorse for their actions and who had positive pre-sentence reports. Mr. Samuelson, while also a “youthful” offender, and who accepted responsibility for the conviction for assault with a weapon, was unable to accept the aggravated nature of the assault. He committed three breaches of his bail and committed another offence while awaiting trial. [28] Nicholls concerned an Aboriginal offender who was 21 years old at the time of the offence. The sentencing judge was impressed by Nicholls’ behaviour following the offence, including complete compliance with bail conditions. Mr. Samuelson has demonstrated obvious difficulty complying with bail conditions, which calls into question the extent of his potential rehabilitation if he were to receive a suspended sentence. [29] In Powell, the Nova Scotia Court of Appeal upheld a suspended sentence for a conviction for aggravated assault. On appeal, the Crown conceded that the injuries sustained by the victim were “more akin to one causing bodily harm than aggravated assault”. The sentencing judge, with due regard to the offender’s circumstances and the nature of his offence, concluded that incarceration would not have been the most appropriate sentencing given his underlying potential for rehabilitation. As the Court of Appeal explains, it was within the sentencing judge’s discretion to conclude that the suspended sentence was the “best hope for [his] reformation and rehabilitation” which might “bring a positive change in his life”. [30] Ultimately, the judge in the case at bar was moved to impose a custodial sentence. He reasoned: [48]      … However, a suspended sentence is primarily a rehabilitative tool. Where the offence is serious, such as this, and denunciation and deterrence are the primary objectives, the fact that conditional sentences are no longer an option ought to point the court in the direction of a custodial sentence and not probation. [49] Our Court of Appeal has commented previously that when Parliament closed the door on conditional sentences for certain offences like aggravated assault, it did not open the door to reducing sentences below the usual range to avoid Parliament’s clear intention. [50]      In my opinion, despite your age and the challenges you have faced over the years, the objectives, purposes, and principles of sentencing cannot be adequately satisfied with the imposition of a probation order. [51]      I appreciate that you have had a very difficult upbringing and you have not had much guidance with respect to formulating a proper moral compass. The crime that you have committed is indeed a horrible crime and warrants a period of incarceration. [52]      I thought very carefully about sending you to the penitentiary and acceding to the lower end of the range submitted by Crown counsel. However, given your age and other challenges, I am concerned that you will come out worse than you are now. Keeping your sentence in the provincial range will also allow me and permit me to place you on probation for three years. If I were to impose a federal sentence, I would not have that option. It gives me the peace of mind that I can place you on restrictions not to consume alcohol or drugs, and that you will have to follow through with treatment and counselling when you are ultimately released from jail. [53]      Having considered all of the factors, I have concluded that a fair and fit sentence to pass upon you is, with respect to 41107, Count Number 1, two years less one day, and I am placing you on probation for a period of three years following that sentence. ON APPEAL [31] Mr. Samuelson contends the sentences imposed are “proportionally excessive”, contrary to s. 718.1; offend the principles of parity, contrary to s. 718.2(b), and restraint, contrary to s. 718.2(d); and did not adequately consider other available sanctions, contrary to s. 718.2(e). PROPORTIONALITY [32] In my opinion, Mr. Samuelson’s argument that the judge failed to have adequate regard to the gravity of the offence and the degree of responsibility of the offender has no merit. It is abundantly clear from the judge’s thorough examination of the circumstances of the offence and Mr. Samuelson’s individual circumstances that the judge more than adequately fulfilled his obligation under s. 718.1 to fashion a sentence that balanced the statutory factors. [33] Mr. Samuelson emphasizes his personal circumstances − his youthfulness, his troubled childhood, potential mental illness, addiction issues, suicide attempts, and absence of a criminal record. However, it is clear the judge had specific regard to all of these circumstances. [34] In addition to the cases relied upon at the sentencing hearing to which I have above referred, Mr. Samuelson also placed some emphasis on the decision of this Court in R. v. Koop , 2008 BCCA 140, in which this Court substituted a sentence of two years less a day following guilty pleas to two counts of robbery with a conditional sentence order of two years less a day. [35] It is important to note that in Koop the Crown conceded that the sentencing judge failed to give sufficient weight to the factor of rehabilitation (at para. 13). That concession essentially invited intervention by this Court which found the first time youthful offenders to have taken positive steps toward rehabilitation. Unfortunately, the same cannot be said of Mr. Samuelson. [36] In my opinion, in considering the totality of Mr. Samuelson’s circumstances, including his potential for rehabilitation, the sentencing judge impliedly distinguished the cases cited by the appellant, notwithstanding his apparent concession that they were “ somewhat difficult to distinguish” (emphasis added). Given that the cases are clearly distinguishable, the sentencing judge did not err in principle by declining to impose a suspended sentence. [37] In this case, as he was obliged to do, the judge balanced Mr. Samuelson’s circumstances with the gravity of the offence which, by any measure, was extremely serious. PARITY [38] Accepting that “ranges of sentence” are merely guidelines (see e.g., R. v. Nasogaluak , 2010 SCC 6 at para. 44), it cannot be fairly said that this sentence, which falls at the lower end of the “range”, is unfit. It was a serious assault with a potentially lethal weapon in circumstances in which Mr. Samuelson lured his victim, evidently in order to inflict harm. [39] Furthermore, at the hearing of the appeal, counsel for Mr. Samuelson conceded that the sentences imposed were not a marked and substantial departure from sentences imposed on similarly situated offenders for similar offences. That concession signals that the sentences cannot be said to be unfit. RESTRAINT [40] The judge specifically considered alternatives to jail for Mr. Samuelson (at para. 47). The alternative proposed was a suspended sentence which, as the judge correctly noted, is primarily a “rehabilitative tool”. [41] The judge rejected the Crown’s contended three to four year sentence, and crafted a sentence that would permit Mr. Samuelson to be placed on probation for three years in recognition of his fundamental need for supervision and treatment. [42] The need for continued supervision and treatment was amply demonstrated by Mr. Samuelson’s misconduct while on bail and the psychiatric evidence before the court. There was simply insufficient evidence before the court that could offer any comfort that a suspended sentence, with the strict conditions that would necessarily have had to be put in place, would be successful. SUMMARY [43] In my opinion, Mr. Samuelson has failed to demonstrate that the judge committed an error in principle, or failed to consider a relevant factor, or overemphasized a relevant factor. The sentences were not demonstrably unfit. [44] I would grant leave to appeal but dismiss the appeal. “The Honourable Madam Justice Kirkpatrick” I AGREE: “The Honourable Madam Justice Garson” I AGREE: “The Honourable Madam Justice MacKenzie”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Bea v. The Owners, Strata Plan LMS 2138, 2015 BCCA 31 Date: 20150127 Docket: CA041895 Between: Cheng-Fu Bea and Huei-Chi Yang Bea Appellants (Petitioners) And The Owners, Strata Plan LMS 2138 Respondents (Respondents) Corrected Judgment:  The text of the judgment was corrected at paragraph 5 on January 29, 2015 and on the front page February 13, 2015. Before: The Honourable Madam Justice Garson The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Goepel On appeal from: An order of the Supreme Court of British Columbia, dated May 12, 2014 ( Bea v. The Owners, Strata Plan LMS 2138 , 2014 BCSC 826, New Westminster Docket S116228). Counsel for the Appellant: K. Deane-Cloutier Counsel for the Respondent: P.J. Dougan Place and Date of Hearing: Vancouver, British Columbia October 20, 2014 Place and Date of Judgment: Vancouver, British Columbia January 27, 2015 Written Reasons by: The Honourable Madam Justice Garson Concurred in by: The Honourable Madam Justice MacKenzie Dissenting Reasons by: The Honourable Mr. Justice Goepel (p. 33, para. 93) Summary: The appellants appeal from an order of the Supreme Court of British Columbia, ordering the seizure and sale of the appellants’ strata property as a remedy to put a stop to the appellants’ continuing contempt of court. The appellants launched numerous frivolous actions against the respondents. The appellants were subsequently found to be vexatious litigants and ordered to stop filing claims in respect of this matter. The appellants repeatedly disobeyed that order and were subsequently found in contempt of court. The respondents had obtained numerous orders for special costs against the appellants and had registered numerous judgments against the title to the strata property. The chambers judge determined that the only curative remedy available was the immediate seizure and sale of the strata property, with conduct of the sale to be carried out by the respondents. The appellants allege that there was no jurisdiction to make the order, and in the alternative that it was not an appropriate order in the circumstances. Held: Appeal dismissed. The majority (per Garson and MacKenzie J.A.) held that the chambers judge had jurisdiction to make an order for seizure and sale of property, as such an order is analogous to the historical power to use sequestration as a remedy for contempt. This power is constitutionally protected as a core aspect of a superior court’s inherent jurisdiction to punish for contempt, and therefore the language of the Supreme Court Civil Rules pertaining to available powers in contempt must be read as non-exhaustive. The chambers judge’s discretionary decision to grant the order deserves deference in the circumstances, and it cannot be shown to be inappropriate in this case. Goepel J.A. dissented. In his opinion the court’s inherent jurisdiction to sentence for contempt was limited by the provisions of the Supreme Court Civil Rules and the chambers judge did not have the jurisdiction to order the sale of the appellant’s property. Reasons for Judgment of the Honourable Madam Justice Garson: I. Introduction [1] Cheng-Fu Bea (“Mr. Bea”) and Huei-Chi Yang Bea (“Mrs. Bea”), appeal a Supreme Court chambers judge’s order in which, having found Mrs. Bea to be in contempt of court (a finding that is not under appeal), the chambers judge ordered as a remedy for the contempt that Mrs. Bea deliver up vacant possession of Strata Lot One in Strata Plan LMS2138 (“the Strata Unit”) to the respondents, the owners of strata units (the “Owners”), and that it be immediately sold. [2] The underlying dispute between the Beas and the Owners relates to the assignment of parking stalls. The dispute began after the strata council passed a parking bylaw in August 2006. The Beas objected to the change in the parking bylaws. They filed a petition challenging the bylaw in the Supreme Court of British Columbia. The judge hearing the petition dismissed it. What followed was six years of multiple proceedings, all essentially asserting the same cause of action against the Owners, in this Court and the court below. Both courts have since found the Beas to be engaged in an abuse of the litigation process while pursuing vexatious claims against the Owners: see Bea v. Strata Plan LMS 2138 , 2009 BCSC 783; Bea v. The Owners, Strata Plan LMS 2138 , 2010 BCCA 463. [3] This appeal focuses on two questions. First, whether the order selling Mrs. Bea’s Strata Unit as a remedy for contempt of court was one that is available to the chambers judge given that Rule 22-8(1) of the Supreme Court Civil Rules provides that the court “must impose a fine, committal or both” as punishment for contempt. The Beas argue it is not. [4] Second, even if the judge did have the inherent jurisdiction to make such an order, was it appropriate in the circumstances. Again, the Beas argue it is not. [5] I note that the chambers judge found that s. 173 of the Strata Property Act , S.B.C. 1998, c. 43, did not apply in this case, and similarly, the decision in The Owners Strata Plan LMS 2768 v. Jordinson , 2013 BCCA 484, which also involved findings of contempt in a strata-related dispute, was not determinative. These findings are not under appeal, and the Strata Property Act is therefore not before us. For the reasons that follow, I would dismiss the appeal. II. Background to the Dispute [6] The chambers judge set out the long and complicated background to this dispute at paras. 2−35 of his reasons for judgment (indexed at 2014 BCSC 826 [ Bea ]). I shall not repeat that background here. What follows is a brief summary of events particularly relevant to this appeal. [7] Mrs. Bea is the owner of the Strata Unit. On October 27, 2008, after the commencement of the first of these multiple proceedings, Mrs. Bea authorized Mr. Bea to act on her behalf in the proceedings between her and the Strata council. As will be made clear the court below determined that this authorization did not mean Mrs. Bea was not aware of and involved with the proceedings that followed. As such, for convenience and clarity, I will often refer to the subsequent judicial proceedings as having been conducted by the Beas together. [8] Following the dismissal of the first petition objecting to the amendment to the parking bylaws, the Beas commenced a second petition claiming the same relief. The second petition was dismissed as res judicata . No appeal was taken from the dismissal of the second petition. A third petition advancing the same claim was commenced by the Beas and dismissed by Master Taylor as an abuse of process. Various orders as to costs have been made against the Beas, but have not been complied with, or have been appealed. [9] On August 23, 2010, following another application by the Beas, this time seeking to prevent the Owners from executing their judgments for costs, Grauer J. issued a vexatious litigant order under s. 18 of the Supreme Court Act , RSBC 1996, c. 443. The order prohibited the Beas from filing, without leave , any document related to the dispute. The order was made in the following terms: THIS COURT ORDERS THAT: 1. The Petitioner’s Application is dismissed. 2. Mr. or Mrs. Bea, and anyone acting on their behalf, shall not file or attempt to file, by any means whatsoever, any document in any registry of the Supreme Court of British Columbia pertaining to or in any way connected with the subject matter of the proceedings in Supreme Court Registry File Nos. S113052, S114949, S116228 without leave of this Court. . . . [10] This Court subsequently issued another vexatious litigant order described in the reasons for judgment released October 21, 2010, indexed at 2010 BCCA 463. In issuing the vexatious litigant declaration, Smith J.A., writing for the Court, described the relentless campaign the Beas had waged against the Owners as follows: [24]      The respondent is a small strata corporation. The appellant, through his litigation in the court below and in this Court, has drawn the respondent into court more than 30 times on the substantive issue of the vires of the respondent’s parking bylaw. This is at a considerable cost to the respondent owners who are paying the legal fees to defend what amounts to an abuse of both courts’ processes. The respondent owners are also faced with the appellant’s attempt to insulate himself from enforcement proceedings by having no assets in his name. [25]      It is evident from the two appeals and multiple applications brought by the appellant in this Court on frivolous and unmeritorious issues, that the combined effects of s. 9(6) and s. 29 of the Act, absent something more, are insufficient to halt this ongoing abuse of the Court’s process. In this regard, Mr. Justice Frankel offered the resolution for such a litigant in Houweling : [40]      What, then, can a court do to bring to an end the misuse of the litigation process caused by the repetitive filing of unmeritorious applications that result in the needless expenditure of judicial resources and, in some cases, unnecessary expense to the other parties? The answer lies in the ancillary (inherent) jurisdiction that every court has to prevent its process from being abused. As Madam Justice Arbour stated in United States of America v. Schulman, 2001 SCC 21, [2001] 1 S.C.R. 616, an appellate court “like all courts, [has] an implied, if not inherent, jurisdiction to control its own process, including through the application of the common law doctrine of abuse of process”: para. 33. See also: United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587 at para. 37. [26]      I am persuaded that the time has come for this Court to grant the respondent an order similar to the one made in Houweling. The effect of such an order will be to limit the appellant’s access to the courts. While such an order is to be made sparingly and only in “the clearest of cases” ( Houweling at para. 44), in my view this is one of those cases. [11] In breach of Grauer J.’s vexatious litigant order, both Mr. and Mrs. Bea filed further proceedings leading to the order under appeal. The documents filed in breach of the August 23, 2010 order, as described by Grauer J., were: · In December 2010, the Beas applied for leave to commence a further petition, the application for which was inadvertently accepted by the Supreme Court registry before being brought to the attention of Grauer J. and dismissed. · On January 27, 2013, Butler J. dismissed another application brought by the Beas without leave and awarded special costs. · On March 27, 2013, Groves J. dismissed another petition commenced by the Beas against the Owners and awarded costs payable forthwith. · In September 2013, another application for leave was brought by the Beas to commence a petition against the Owners (the fifth brought seeking the same remedy). This application was brought to the attention of Grauer J., who issued a memorandum denying the leave application and warning the Beas that they have exposed themselves to contempt proceedings. [12] At least one additional request for leave was brought by the Beas in December 2013 and denied. On January 28, 2014, the Owners applied before Koenigsberg J. for an order holding the Beas in contempt of Grauer J.’s order of August 23, 2010. Mr. Bea appeared at this hearing but Mrs. Bea did not. However, Koenigberg J. was satisfied that Mrs. Bea had been properly served. [13] On January 31, 2014, in an order following the application made on January 28, 2014, Koenigsberg J. held both Mr. and Mrs. Bea in contempt. As a remedy for that contempt, the Owners sought orders that the Strata Unit be sold as well as a fine and, in default, imprisonment. Madam Justice Koenigsberg declined to make the order for sale of the Strata Unit as sought by the Owners, as she considered that she did not have jurisdiction to make such an order. Instead, she fined the Beas each $10,000. The terms of her order are as follows: THIS COURT ORDERS THAT: 1.         Mr. Cheng-fu Bea and Mrs. Huei-Chi Yang Bea be fined $10,000.00 for contempt. 2.         The fine be paid by Mrs. Huei-Chi Yang Bea by 4pm Friday February 7, 2014. 3.         That if the fine is not paid by the appointed time, a warrant issue for the arrest of Mrs. Huei-Chi Yang Bea, and she be brought before the court on the next court day following the arrest to be dealt with on an inquiry to determine whether she has committed a breach of the order granted. 4.         The inquiry into any such alleged breach should first be conducted before Mr. Justice Grauer if he is available, sitting in Vancouver; otherwise, the inquiry may be before any Judge of this Court sitting in Vancouver. 5.         Special costs payable by Mrs. Huei-Chi Yang Bea in the amount of $2,500.00; 6.         The signature of the Petitioner for approval as to the form of this order is dispensed with. [14] The nature of the Bea’s contemptuous conduct is described by Koenigsberg J. in her oral reasons for judgment pronounced on January 31, 2014. As these oral reasons are unreported, I quote from her judgment: [7]        Before making any findings of contempt against both Mr. and Mrs. Bea on January 28, 2014—and I note that Mrs. Heui-Chi Yang Bea was not present in this courtroom then although clearly served with notice of the hearing and clearly knowing that Mr. Bea could not represent her—I asked Mr. Bea, who did appear on his own behalf, what he wished to say as to why I should not find him in contempt on the basis of the clear evidence of several court orders which had been flagrantly disregarded. [8]        Among other things Mr. Bea denied that he was ever in breach of any court orders. I eventually was provided with Mr. Bea’s written response which I advised him I would attach to these reasons, as Mr. Bea did not believe that I was allowing him to be heard. I did read those submissions and Mr. Bea made further oral submissions. I gathered that at least one reason he submitted he was never in breach of Grauer J.’s order is because he claimed he had obtained leave to bring subsequent applications complained of. When I inquired where such orders granting leave were, he said, among other things, that he had not been allowed to file his leave application. . . . [9]        I find that Mr. Bea either so determined to reach his goal of defeating the strata council’s ability to pass bylaws he does not like and defeat its ability to collect on the judgments it has obtained from the court that he is unable or more likely unwilling to hear or read what he does not want to hear or read. He never obtained leave to file an application and he knew full well that that is true. He has nothing of any merit to say as to why he should not be found in contempt, and I so find him and Mrs. Bea. [10]      Mrs. Heui-Chi Yang Bea did not appear and Mr. Bea could not and did not purport to represent her in this contempt hearing. That Mrs. Bea is clearly in contempt for defiance of court orders, one needs only to read her notice of assignment of powers and duties of strata lot owner. She is the owner on title of the strata lot. She authorized Mr. Bea to act on her behalf as owner as of October 22, 2008, and he did so in each and every hearing, except this one before me. . . . [11]      The contempt in question is longstanding and persistent. Every step a court can take to prevent a litigant to continue to abuse its process and cause very significant stress and damage to his neighbours, in this case, all other members of the Strata Plan, has been flouted by Mr. and Mrs. Bea. Not one order as to costs has been paid, including security for costs. There have been in excess of 40 applications to this Court and the Court of Appeal, including hearings to challenge each and every cost award where it was not made specific, and probably attempts to challenge those, but I do not actually know that. [15] The fines imposed by Koenigsberg J. against the Beas were not paid. Subsequently, on application of the Owners, Mrs. Bea was brought before Grauer J. on February 17, 2014. At the hearing before Grauer J., questions arose as to whether Mrs. Bea had been properly served with the application for the previous contempt hearing before Koenigsberg J. On a cross-examination of the process servers at a subsequent hearing on March 3, 2011, Grauer J. determined that he could not be fully satisfied that Mrs. Bea had been properly served with the application for contempt heard before Koenigsberg J. Consequently he set aside the previous orders finding her in contempt and fining her $10,000. He did not set aside the orders against Mr. Bea. Mr. Justice Grauer then proceeded to re-consider the application for contempt against Mrs. Bea. After reviewing the same sequence of events as Koenigsberg J., Grauer J. concluded that Mrs. Bea was in contempt of court and a remedy was required to put an end to the contemptuous conduct. It is the result of that proceeding that is now under appeal. [16] The terms of Grauer J.’s order are as follows: 1.         The Order of the Honourable Madam Justice Koenigsberg pronounced January 31, 2014, is set aside insofar as it finds Mrs. Huei-Chi Yang Bea in contempt of court, but remains in force in relation to the Petitioner. 2.         Mrs. Huei-Chi Yang Bea is hereby found to be in contempt of this court. 3.         Mrs. Huei-Chi Yang Bea’s strata unit, #1- 2378 Rindail Avenue, Port Coquitlam, B.C., legally described as Strata Lot 1, District lot 289, Group 1, New Westminster District Strata Plan LMS 2138 (the “Unit”), shall be sold as soon as is practicable, with the respondent having sole conduct of sale; 4.         Mr. Cheng-fu Bea and Mrs. Huei-Chi Yang Bea shall provide vacant possession of the Unit to the respondent on or before June 15, 2014; [17] As I have already said, the actual finding that Mrs. Bea is in contempt is not under appeal. It is only the sanction, namely the immediate order for sale of the Strata Unit, that is under appeal. III. Discussion [18] Rule 22-8 of the Supreme Court Civil Rules deals with applications for contempt. I reproduce the pertinent sub-sections of the Rule: (1) The power of the court to punish contempt of court must be exercised by an order of committal or by imposition of a fine or both. Security (2) Instead of or in addition to making an order of committal or imposing a fine, the court may order a person to give security for the person’s good behaviour. [19] On appeal, the Beas argue that Rule 22-8(1) is cast in mandatory language. It provides that the court “ must ” impose as a remedy for contempt the punishment of imprisonment, a fine, or both. The Beas argue that the court has no inherent jurisdiction to impose a punishment other than those three enumerated. [20] The Owners argue that a superior court’s contempt power is an inherent power of the court, one that has existed for many centuries and is not proscribed or limited as the Beas would argue based on Rule 22-8(1). [21] Alternatively the Beas argue that the remedy, that is the sale of the Strata Unit, is not focussed on ensuring compliance with the orders that were breached, but rather appears designed to redress a civil wrong. Accordingly, the Beas argue the order for sale is not a fit punishment. [22] As I will explain, in my opinion, the remedy ordered is available as a response to contempt of court in extraordinary circumstances and the chambers judge did not err in ordering it in this case. To explain why such an order is available despite a lack of similar precedents in this Province, I will first discuss how a superior court’s inherent jurisdiction to punish for contempt is protected by the Constitution Act, 1867 , and cannot be limited by legislation, including the Supreme Court Civil Rules . Next, I will discuss how the historical remedy of a writ of sequestration was and is a part of this protected inherent jurisdiction to punish for contempt. I will then discuss how the English High Court has, in recent years, determined that a writ of sequestration ordered as a coercive remedy to cure contempt can lead to a sale of real property owned by the contemnor, and how the reasoning used by the English High Court equally leads to the conclusion that in British Columbia, an order for sale of the contemnor’s property is an available remedy for contempt of court in extraordinary circumstances. Finally, I will discuss how the chambers judge was correct to conclude that such an order was required in this case to prevent an injustice. A. Can a Rule or Statute Limit the Inherent Jurisdiction of the Court to Punish for Contempt? [23] I turn first to a consideration of the nature and origins of the court’s inherent jurisdiction in order to determine if a Rule can limit the inherent power of the court to punish for contempt. [24] The Beas argue that Rule 22-8(1 ) exhaustively codifies the court’s power to punish for contempt and therefore removes any historical inherent jurisdiction to fashion and apply alternative remedies for contempt. [25] This issue was considered by the Supreme Court of Canada in MacMillan Bloedel Ltd. v. Simpson , [1995] 4 S.C.R. 725. In MacMillan , the Court concluded that the portions of the Constitution Act, 1867 enshrining a legal system similar in principle to that of the United Kingdom, including ss. 96–101 and the preamble, prevents the Legislature from limiting the core of a superior court’s inherent jurisdiction, including the power to punish for contempt. MacMillan was most recently cited by the Supreme Court of Canada in Trial Lawyers Association of British Columbia v. British Columbia , 2014 SCC 59, where McLachlin C.J.C. stated, “neither level of government can enact legislation that abolishes the superior courts or removes part of their core or inherent jurisdiction ”: at para. 30 [emphasis added]. [26] In MacMillan the Court had before it the question of whether it was within the jurisdiction of Parliament to grant exclusive jurisdiction to youth courts (as opposed to superior trial courts) over contempt proceedings involving a young person. Chief Justice Lamer for the majority stated that “the power [of a court] to control its process and enforce its orders, through, in part, punishing for contempt , is within [the protected inherent] jurisdiction”: at para. 33 [emphasis added]. He concluded that “no aspect of the contempt power may be removed from a superior court without infringing all those sections of our Constitution which refer to our existing judicial system as inherited from the British, including ss. 96 to 101, s. 129, and the principle of the rule of law recognized both in the preamble and in all our conventions of governance”: at para. 41. In determining what constituted the scope of a superior court’s inherent jurisdiction to punish for contempt, he endorsed I.H. Jacob’s “The Inherent Jurisdiction of the Court” (1970), 23 Current Legal Problems 23, as a “starting point for many discussions of the subject”: at para. 29. [27] Chief Justice Lamer explained the reasoning for such constitutional protection of a court’s inherent jurisdiction to punish for contempt as follows: The seminal article on the core or inherent jurisdiction of superior courts is I. H. Jacob’s “The Inherent Jurisdiction of the Court” (1970), 23 Current Legal Problems 23. Jacob’s work is a starting point for many discussions of the subject, figures prominently in analyses of contempt of court, and was cited with approval by Dickson C.J. in B.C.G.E.U. v. British Columbia (Attorney General) , [1988] 2 S.C.R. 214. While the particular focus of Jacob’s work is the High Court of Justice in England, he notes that “[t]he English doctrine of the inherent jurisdiction of the court is reflected in most, if not all, other common law jurisdictions, though not so extensively in the United States” (p. 23, fn. 1). Moreover, the English judicial system is the historic basis of our system and is explicitly imported into the Canadian context by the preamble of the Constitution Act, 1867 . The superior courts of general jurisdiction are as much the cornerstone of our judicial system as they are of the system which is Jacob’s specific referent. Discussing the history of inherent jurisdiction, Jacob says (at p. 25): . . . the superior courts of common law have exercised the power which has come to be called “inherent jurisdiction” from the earliest times, and . . . the exercise of such power developed along two paths, namely, by way of punishment for contempt of court and of its process, and by way of regulating the practice of the court and preventing the abuse of its process. Regarding the basis of inherent jurisdiction, Jacob states (at p. 27): . . . the jurisdiction to exercise these powers was derived, not from any statute or rule of law, but from the very nature of the court as a superior court of law, and for this reason such jurisdiction has been called “inherent.” This description has been criticised as being “metaphysical” [cite omitted], but I think nevertheless that it is apt to describe the quality of this jurisdiction. For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law . While inherent jurisdiction may be difficult to define, it is of paramount importance to the existence of a superior court. The full range of powers which comprise the inherent jurisdiction of a superior court are, together, its “essential character” or “immanent attribute”. To remove any part of this core emasculates the court, making it something other than a superior court. . . . The core jurisdiction of the provincial superior courts comprises those powers which are essential to the administration of justice and the maintenance of the rule of law. It is unnecessary in this case to enumerate the precise powers which compose inherent jurisdiction, as the power to punish for contempt ex facie is obviously within that jurisdiction . The power to punish for all forms of contempt is one of the defining features of superior courts. . . . . . . . . . . . The full panoply of contempt powers is so vital to the superior court that even removing the jurisdiction in question here and transferring it to another court with judges appointed pursuant to s. 96 would offend our Constitution. [ MacMillan at paras. 29, 30, 38, and 41. Emphasis added.] [28] As noted by Lamer C.J.C. in MacMillan at para. 29, the English judicial system was explicitly imported into the Canadian legal system. The Constitution Act, 1867 provides for such, in part, in the following language taken from the preamble: Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom. [Emphasis added.] [29] MacMillan determined that the Constitution Act , 1867 protects the entirety of the “core” of a superior court’s inherent jurisdiction from legislative interference. To limit a court’s powers to punish for contempt takes away the court’s jurisdiction to control its own process in circumstances in which those powers would provide the only workable remedy. This is equivalent to the legislative removal of jurisdiction to punish for contempt in certain circumstances that was at issue in MacMillan . The Supreme Court of Canada applied MacMillan in this way most recently in Trial Lawyers , where the Court determined that the Legislature’s mandatory imposition of “hearing fees” interfered with a superior court’s “core” inherent jurisdiction to provide access to the superior courts to persons who could not afford said hearing fees. This was not a wholesale legislated removal of any part of the court’s inherent jurisdiction, but was rather unconstitutional legislation because it imposed mandatory procedural requirements that interfered with what would otherwise be part of a court’s “core” inherent jurisdiction to grant exemptions: Trial Lawyers at paras. 46–48. This is analogous to the case at bar, where the regulations at issue allegedly impose mandatory procedural requirements that interfere with what would otherwise be part of the court’s “core” inherent jurisdiction to punish for contempt in these circumstances. [30] Jacob provides a useful analysis of the inherent jurisdiction of the court. He emphasizes that a court’s inherent jurisdiction is part of procedural law not substantive law: at 24. Inherent jurisdiction must also be distinguished from judicial discretion. These concepts—that is, judicial discretion and inherent jurisdiction—may overlap but are vitally distinct: at 25. He notes that the powers conferred by the Rules of Court are in addition to and not in substitution for the powers arising from the inherent jurisdiction of the court: at 25. [31] Historically, inherent jurisdiction can trace its roots to a way of punishing an individual for contempt of court and “by way of regulating the practice of the court and preventing the abuse of its process”: at 25. Jacob notes further that “the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused”: at 27. This power to maintain its authority includes that power to “prevent a litigant from taking multiple or successive proceedings which are frivolous or vexatious or oppressive” as is the case here: at 43. As part of its inherent jurisdiction, a court may compel observance of its own process. Jacob notes that these coercive powers include either fining or imprisoning the offender and, importantly for the purposes of this appeal, seizing his or her property: at 45. [32] Jacob writes that “The powers of the court under its inherent jurisdiction are complementary to its powers under the Rules of Court; one set of powers supplements and reinforces the other”: at 50. He emphasizes that the inherent powers may fill any gaps left by the rules: at 50. Jacob’s summary provides a useful background for understanding the core of inherent jurisdiction the Supreme Court of British Columbia inherited from the English tradition. 1. Cases Relied on by the Beas [33] In their argument that the rules are exhaustive, the Beas rely on Evans v. Jensen , 2011 BCCA 279, and Cridge v. Harper Grey , 2005 BCCA 33, in which this Court held that the Rules pertaining to formal settlement offers and their implications for costs constitute a complete code permitting no discretion to the chambers judge to relieve against a possibly unjust result of the application of the double costs Rule (these Rules have since been amended to include an element of discretion: see Rule 9-1(5)). I disagree that these cases are applicable in this context. Evans and Cridge are clearly distinguishable. First, the double costs Rule and its incorporation of exigent settlement offers is a statutorily created regime that is not traced to a court’s inherent jurisdiction. Second, judicial discretion, as was emphasized by Jacob, is distinguishable from the court’s inherent jurisdiction to punish for contempt and may be limited by statute. The fact that judicial discretion to award costs may be limited by statute is not the same as, and must be distinguished from, the core of a superior court’s inherent jurisdiction as discussed in MacMillan . [34] The Beas also cite Baxter Student Housing Ltd. v. College Housing Co-operative Ltd. , [1976] 2 S.C.R. 475, for the proposition that a court may not rely on its inherent jurisdiction where doing so conflicts with a statutory provision. Again, I do not agree that this case is applicable. [35] In Baxter , Dickson J. cited Montreal Trust Company v. Churchill Forest Industries , [1971] 4 W.W.R. 542 at 547 (Man C.A.), in which Freedman C.J.M. said: Inherent jurisdiction cannot, of course, be exercised so as to conflict with a statute or Rule. Moreover, because it is a special and extraordinary power, it should be exercised only sparingly and in a clear case. In my view, Baxter and Montreal Trust do not conflict with and are distinguishable from the Supreme Court of Canada’s reasons for judgment in MacMillan , discussed above. [36] First, Montreal Trust dealt with an exercise of a court’s inherent jurisdiction to fill gaps in statutorily granted powers. In that case, the Manitoba Court of Appeal determined that a superior court had the inherent jurisdiction to grant a receiver powers that were not enumerated by statute, but were necessary in the circumstances in order to effect the powers that were enumerated by statute. It was in this context that the court stated such inherent jurisdiction could not be used in contravention of the very statute the court was trying to fill gaps in. The court expressly distinguished this form of inherent jurisdiction from a court’s inherent jurisdiction to prevent an abuse of its process or punish for contempt: Montreal Trust at 547. [37] In Baxter , the plaintiff was a university housing co-op involved in a dispute with a construction and building management company (Baxter Housing) over which party should bear the cost of fixing a moisture problem that had accumulated in student residence buildings. Baxter Housing had substantially completed construction on the buildings the previous year, and the plaintiff was alleging the moisture problems were due to a breach of contract. [38] There was some temporal urgency in resolving the situation, as the plaintiff did not have access to the funds required to pay for the repairs, and there was some suggestion that a failure to engage in needed repairs immediately might produce substantial damages. There were funds in a holdback account from the original contract between the plaintiff and Baxter Housing, and the plaintiff sought an order from the court appointing a receiver to use the funds to make the necessary repairs while the parties litigated who would bear the eventual responsibility. Importantly, Baxter Housing had previously placed a lien on the property pursuant to the previous construction contract. The Manitoba court appointed the requested receiver, and the appointment was upheld on appeal. [39] The Supreme Court of Canada (see para. 34 above), allowed the appeal and overturned the order appointing a receiver. In doing so, Dickson J. cited Montreal Trust for the proposition that “inherent jurisdiction cannot, of course, be exercised so as to conflict with a statute or Rule”. In Baxter , the appointment of the receiver was in contravention of s. 11 of the Mechanics’ Lien Act , by which Baxter Housing’s registered lien had priority over any receivership order. [40] In my opinion, when Dickson J. quotes Churchill Forest in Baxter for the proposition that “inherent jurisdiction cannot, of course, be exercised so as to conflict with a statute or Rule”, it was in the context of filling gaps in an express legislated power to appoint a receiver. Justice Dickson was saying that a court could not bolster the powers of a receiver through inherent jurisdiction, as happened in Montreal Trust , when such expanded powers would result in a direct contravention of statute. Baxter did not involve a procedural dispute over whether the authority to appoint a receiver pursuant to statute or inherent jurisdiction existed, but rather a dispute over the use of the funds in the holdback account. Granting a receiver access to the funds in this way was in express contravention of the Mechanics’ Lien Act , which was why the funds were being held in the holdback account in the first place. [41] Justice Dickson’s comments in Baxter are therefore similar to those of Freedman C.J.M in Montreal Trust in that they stand for the proposition that when a court is using its inherent jurisdiction in order to further the purposes of certain statutory powers (gap filling, so to speak), the inherent jurisdiction cannot then be used in contravention of the express language of that statute. In my opinion, this principle has nothing to do with a court’s inherent power to punish for contempt, and Baxter is distinguishable from this appeal. 2.  Conclusion on Whether Rule 22-8 Can Be Read as an Exhaustive Codification [42] In summary, in consideration of the statements in MacMillan quoted above, I conclude that the legislature’s rule-making power cannot detract from or limit the court’s inherent jurisdiction to punish for contempt. Rule 22-8 cannot therefore be read as an exhaustive codification and limitation of this power, but must instead be read as complimentary of a superior court’s inherent jurisdiction in order to be constitutionally compliant. [43] It remains to be examined whether that protected inherent jurisdiction includes the power to seize and sell the contemnor’s property. As mentioned, Jacob is of the view that a court’s inherent jurisdiction to punish for contempt does include the power to seize a contemnor’s property. [44] In the discussion below, I examine the historical development of the inherent jurisdiction power to seize property in England. I then turn to the application of that English law to British Columbia. In doing so I will also consider the historical development of the British Columbia Supreme Court Civil Rules . B. Inherent Jurisdiction to Seize Property as a Remedy for Contempt [45] I begin by noting two relatively modern English cases in which courts in England used the inherent jurisdiction of the court to seize, and in one case sell, the contemnor’s property as a coercive measure. While these English decisions are not binding on the courts of this Province, the inherent jurisdiction of the Supreme Court of British Columbia shares an origin with the inherent jurisdiction of English courts, and the scope of the English jurisdiction may assist in determining the scope of inherent jurisdiction in this Province. [46] Both of these cases deal with an order for sequestration. Sequestration, as defined in Black’s Law Dictionary, is a “judicial writ commanding the sheriff or other officer to seize the goods of a person named in the writ.” As a remedy for contempt of court, sequestration developed in England to include the sale of property after it had been seized by the officers. The details and history of sequestration will be discussed in further detail below. [47] In Webster v. Southwark London Borough Council , [1983] 1 Q.B. 698, the plaintiff was a politician who had been refused the use of a meeting hall to hold a political meeting in contravention of a statute. The Queen’s Bench court made a declaratory order that the plaintiff be permitted to use the meeting hall. The declaratory order was said to have been made because, as the defendant was a “responsible authority”, it was thought “inconceivable” that a declaratory order would not result in the defendant complying: at 708. However, even after the declaratory order was made, the defendant would not permit the plaintiff to use the hall. [48] The plaintiff returned to court, this time seeking an order of sequestration granting him the use of the property. The court determined that sequestration was historically only issued upon a finding of contempt. In this case, because the court’s order was declaratory, the defendant could not be found in contempt for failing to comply with it: at 706. However, Forbes J. went on to find that the use of a declaratory order, rather than an injunctive one was primarily due to the fact that the court was misled into thinking that the defendant would comply with a declaratory order: at 708. He said it would create an injustice if the plaintiff were forced to acquire a new, injunctive order and wait for the defendant to breach that order, because temporal exigencies required the political meeting to be held immediately. Importantly, Forbes J. determined that the court had, regardless of the language of the rules or tradition, “an inherent jurisdiction to enforce its orders where justice demands that those orders should be enforced”: at 709–10. [49] Despite the fact the defendant was not technically in contempt, Forbes J. issued an order of sequestration to force the defendant to comply with the court’s previous order that the plaintiff was legally allowed the use of the meeting hall. Although much of this judgment concerned the question of whether a party could be in contempt of a declaratory order (a point not pertinent to this case), there was no question about the court’s inherent jurisdiction to use its sequestration powers to seize the hall as a coercive measure to remedy contempt of court. [50] The second modern English case to which I shall refer is Mir v. Mir , [1992] 1 All E.R. 765, in which the court ordered that property be seized as a remedy for contempt concerning a child custody order. In Mir , the defendant had left England for Pakistan with his “ward”, in contravention of the court’s custody order. His former spouse had him declared in contempt of court and obtained an order for sequestration of his real property with leave to let it and use it as security for a loan. When the sequestration failed to coerce the defendant to return to England and discharge the contempt, the former spouse sought a variation of the order permitting her to sell the real property and use the proceeds to fund further litigation in Pakistan. In considering the availability of such a remedy, Baker J. reviewed the case law in England, which held provided an order for sequestration following a finding of contempt could not be used to sell real property, as opposed to personal property. He determined those historical cases were predicated on the fact that when they were decided there was no practical way for a court to effect a legitimate transfer of title without the compliance of the owner. [51] In considering the current state of English law regarding the writ of sequestration, Baker J. referred to a similar case he had decided, Richardson v. Richardson , [1989] 3 All E.R. 779 at 783, where he had observed: Sequestration is an ancient tool of the law used as a last resort for enforcing orders of the court. Ancient tools need if possible to be adapted for use in modern conditions. In my judgment where otherwise the whole purpose of the sequestration would be defeated, the court is not constrained by ancient practice . . . [52] Baker J. concluded that he had the power to order the real property to be sold as a remedy for contempt and its proceeds provided to the opposing party. In doing so, he said, “[i]t appears that the underlying reason why the courts in earlier times would not make an order for sale of freehold property was the absence of any procedure whereby good title could be given to the purchaser. It has been pointed out to me that difficulty no longer exists today”: at 767–68. In contrast to the historical powers available to the courts, the Senior Courts Act 1981 , c. 54, s. 39, gave the High Court of England and Wales the power to order a conveyance be executed by a person nominated by the court. In using the inherent jurisdiction to punish for contempt, Baker J. stated “the court does everything it can to secure compliance of its orders”: at 767. [53] Mir v. Mir was cited with approval as setting out the scope of sequestration orders in contempt proceedings in England in Re HM (A Vulnerable Adult: Abduction ), 2010 EWHC 870. Thus, the English High Court has interpreted its contempt powers as permitting a judge to order a contemnor’s real property be sold, and the proceeds distributed to the opposing party, as a remedy for contempt. [54] I shall now very briefly discuss the evolution of the ancient writ of sequestration to the result described in Mir and other modern English cases to examine how the common law in British Columbia might be said to have similar, protected inherent powers. 1. The Historical Use of Sequestration as a Remedy for Contempt [55] The power to seize and sell property as indirect coercion over parties subject to the court’s jurisdiction arose in the English chancery courts: see Charles Andrew Huston, The Enforcement of Decrees in Equity , (Cambridge, Mass: Harvard University Press, 1915) at 71–86. This power was initially often used to compel a debtor to pay his debts. Huston, translating William West’s Symboleography , published in 1611, describes the indirect coercion powers available to chancery courts in the late sixteenth century: ‘If’, West tells us, ‘the decree be in a suit for land and the defendant abide by all the said process of contempt and still detain the possession of the land from the plaintiff contrary to the said decree: then upon a motion thereof made in the court a commission is usually granted to the sheriff and some others near adjoining to the lands in question to put the plaintiff in possession, and to keep him in possession according to the said decree. [Huston at 78] [56] According to Huston, this practice later evolved into the writ of assistance, which would be used in a suit for the possession of land to put the successful party in possession of the disputed land “and maintain him there”: Huston at 80. Huston goes on to say “[w]hile [the writ’s] primary purpose is an indirect compulsion of the defendant to make him perform the decree, it provide[d] at the same time for a certain measure of specific execution of the decree ”: Huston at 80 [emphasis added]. [57] The writ of assistance later evolved, in part, into the writ of sequestration, which involved the direction of commissioners to sequester the personal and real property of the defendant. Personal property of the contemnor could be sold, and real property could be put to use in benefit of the opposing party: see e.g. Pope v. Ward (1785), 29 E.R. 1125. Importantly, despite the writ’s corollary effect of sometimes providing the substantive remedy sought by a party seeking the use of disputed land in the first place, sequestration was broadly used as a last resort to cure or end any continued contempt of court, including refusals to obey court orders pertaining to procedure: see e.g. Trigg v. Trigg (1759), 21 E.R. 294 (where the court ordered sequestration of a contemnor’s assets in mesne process for the refusal to comply with what were, essentially, disclosure requirements). [58] The importance of the sequestration power to the courts of chancery was emphasized in Hide v. Pettit (1667), 22 E.R. 709, where the Lord Keeper, in defending sequestration from the argument that it was beyond the powers of the chancery courts and “destructive to trade and commerce” agreed that, “[i]f you should take away Sequestrations, the Justice of the Court would be elusory” and it was “not unreasonable that so great a court as this should have an effectual means of bringing suitors to the fruit of their suit, which without a sequestration cannot be done”: at 710. He declared that sequestration was a necessary process of the chancery courts in contempt proceedings. However, it should be noted that this necessity of sequestration as a remedy for contempt was predicated upon a comparative lack of execution writs available to the chancery courts compared to the common law courts (such as, for example, a writ of fieri facias ). [59] The importance of maintaining a broad view of these sequestration powers to coerce contemnors was also emphasized in Guavers v. Fountain (1687), 22 E.R. 1083, where the court said, in reference to the writ of sequestration in contempt proceedings, “the jurisdiction of the court of equity would be to little purpose, if the court had not sufficient authority to see their decrees executed”: at 1083. [60] Sequestration remained an important remedy available to courts of equity to punish for contempt at the time of Confederation and British Columbia’s entrance into Canada, in 1867 and 1871 respectively. In 1889, it was said in Pratt v. Inman , 43 Ch. D. 175, that, “sequestration unquestionably was and is a process of contempt”: at 179 [emphasis added]. [61] Therefore, in 1871, when British Columbia joined confederation, a court of equity, which included a superior court of British Columbia, had the inherent jurisdiction to punish for contempt using sequestration of the contemnor’s personal and real property. This “core” aspect of the courts inherent jurisdiction was thereafter protected from legislative removal by all the sections of the Constitution Act, 1867 that enshrined a judicial system similar to that of England, including ss. 96–101 and the preamble: see MacMillan at para. 29. Thus, sequestration found its way into British Columbia law. [62] In 1879, eight years after British Columbia joined the Canadian Confederation, England passed the Judicature Act, 1879 , which granted the authority to create “Civil Rules” for the recently merged common law and equity courts. The newly drafted English “Civil Rules” were copied almost entirely for use in British Columbia as the Supreme Court Rules (1880). Prior to 1880, the Supreme Court of British Columbia drafted its own rules for internal use: see Thea Schmidt and Susan Caird, “B.C. Rules of Court” (2002) 27:5 Canadian Law Libraries 218 at 219. [63] The 1880 rules contained various references to the use of sequestration as a remedy for both contempt (O. 47, r. 1, M.R. 345) and execution (e.g., O. 42, r. 2, M.R. 308). For example, Marginal Rule 345 read as follows: Where any person is by any judgment directed to pay money into Court or to do any other act in a limited time, and after due service of such judgment refuses or neglects to obey the same according to the exigency thereof, the person prosecuting such judgment or order shall, at the expiration of the time limited for the performance thereof, be entitled, without obtaining any order for that purpose, to issue a writ of sequestration against the estate and effects of such disobedient person. Such writ shall have the like effect as a writ of sequestration had heretofore had, and the proceeds of such sequestration may be dealt with as the proceeds of writs of sequestration have heretofore been dealt with. [64] Essentially equivalent language from the corresponding English rule, from which Marginal Rule 345 was derived, was applied by the English Court of King’s Bench in 1913 in the case of R. v. Wigand , [1911-13] All E.R. Rep. 820. In Wigand , a husband in a custody dispute was ordered to deliver a child to its mother and ordered not to remove the child from the jurisdiction. The father did not comply with the order and took the child to Germany. The King’s Bench Court found him in contempt for failing to comply with the order and issued a sequestration pursuant to Order 43, r. 6 of the Rules of the Supreme Court . Avory J., in concurring with the judgment, emphasized that “it was for contempt in disobeying the order” of the court that the sequestration was being issued: at 822. Thus, the English origins of Marginal Rule 345 saw the remedy in this context as one rooted in contempt. [65] It should be noted that there were no rules expressly pertaining to contempt of court in the B.C. Supreme Court Rules (1880). This suggests that many contempt proceedings were largely intended to be brought pursuant to the court’s inherent jurisdiction at the time. [66] Marginal Rule 345 was removed from the B.C. Rules in 1890, when it appears to have been effectively replaced with the similarly drafted Marginal Rule 492. However, in the revised 1890 rules, Marginal Rule 492 was included in an Order devoted to writs of fieri facias and methods of execution (that being Order 43). In essence, this revision captures the apparent historical evolution of the writ of sequestration. When it developed in the courts of chancery, sequestration as a remedy for contempt also doubled as a method of execution, since chancery courts did not have access to what are now the traditional writs of execution. When the English courts of common law and chancery were united, sequestration became an order with two possible interpretations; it could be seen as both a remedy for contempt, and a method of execution similar to fieri facias . When the rules developed in British Columbia, these interpretations split into separate paths. [67] The “contempt” path of the development of sequestration was evidenced through the inclusion of Order 42, Rule 31 (Marginal Rule 609), which was added to the Supreme Court Rules in 1906. Marginal Rule 609 read: Any judgment or order against a corporation wilfully disobeyed may, by leave of the Court or a Judge, be enforced by sequestration against the corporate property, or by attachment against the directors or other officers thereof, or by writ of sequestration against their property. [Emphasis added.] [68] Subsequent cases in British Columbia considered this rule allowing for sequestration to be a remedy applicable in the context of contempt: see e.g. Re Amalgamated Transit Union and Ken Mar Handi Cabs Ltd . (1971), 23 D.L.R. (3d) 220 (B.C.S.C.); Re Arpeg Holdings Ltd. (1968), 64 W.W.R. 93 (B.C.S.C.); Skeena Kraft Ltd. v. Pulp & Paper Workers of Canada Local No. 4 (1970), 17 D.L.R. (3d) 17 (B.C.S.C.); and S.G. & S. Investments (1972) Ltd. v. Golden Boy Foods, Inc. (1991), 84 D.L.R. (4th) 751 (B.C.C.A., where this Court acknowledged that historically in British Columbia “[t]he ultimate weapons for the enforcement for a decree of specific performance were contempt proceedings followed by a writ of sequestration”). In Skeena , for example, a case involving a union (the “Guild”) charged with contempt for illegal picketing, Wilson J. noted that Dohm J. had, in an earlier ruling in a related proceeding “made an order of sequestration of the assets of the Guild for contempt of Court”: Skeena at 19. [69] In Twinriver Timber Ltd. v. International Woodworkers Local I-71 (1970), [1971] 1 W.W.R. 277, aff’d (1970), 14 D.L.R. (3d) 704, Aikins J. interpreted Marginal Rule 609 as being expressly limited to use as a remedy for contempt against corporations. Relying on Marginal Rule 609, Aikins J. was asked to enforce by sequestration an order against the assets of a union as punishment for the union’s contempt. Aikins J. determined that as Marginal Rule 609 was expressly limited to remedies against corporations, he could not make the order sought because the union was not a corporation. He rejected the argument that he had inherent jurisdiction to make the order sought holding: Assuming that I am correct in the conclusion that I have stated that sequestration lies only where authorized by Rule so that sequestration is not available to the plaintiff in this application because the matter is not within M.R. 609, I should not, I think, usurp a Rule-making or legislative function, and grant leave for sequestration simply because I might think, and I express no opinion on the matter one way or the other, that the law should be that wilful disobedience of an order of the Court by persons other than a corporation should in the discretion of the Court, be enforceable by sequestration, which after all, is a special and perhaps rather drastic means of enforcing an order or judgment. So, I conclude, assuming that the Court has as contended an inherent jurisdiction to enforce its orders, such as the order in the present case, that that inherent jurisdiction to enforce may not be exercised by sequestration because, put shortly, I think to hold otherwise would be to act outside the Rules and in effect usurp the Rule-making function. [At 283–84] [70] The reasoning of Aikins J. is inconsistent with the reasoning in MacMillan . Therefore, in my view, Twinriver should be considered overruled by MacMillan . It will be clear from the preceding discussion that I am of the view that a superior court has the protected inherent jurisdiction to punish for contempt, including seizing assets, regardless of the legal character of the entity in contempt. It therefore should have been acknowledged as an available remedy against non-corporations in Twinriver. [71] In 1976, Marginal Rule 609 was replaced with Rule 56(2), which read: An order against a corporation wilfully disobeyed may be enforced by one or more of the following: a) imposition of a fine upon the corporation, b) committal of one or more directors or officers of the corporation, and c) imposition of a fine upon one or more directors or officers of the corporation. [72] Equivalent language remains in the Rules today. There are therefore no remaining references to sequestration interpreted as a remedy for contempt in the Supreme Court Civil Rules . [73] In summary, British Columbia’s Supreme Court Rules contained, between 1880–1890, and 1906–1976, provisions for the use of sequestration in certain circumstances that were interpreted as a remedy for contempt. This review of the history of the rules is intended to show that for many years following Confederation, B.C. courts continued to acknowledge sequestration as a remedy for contempt, and it is only in more recent history that this aspect of the contempt remedy has essentially disappeared. [74] However, in my opinion, the inclusion or absence of rules pertaining to the use of sequestration is not determinative of whether such an order is within a court’s inherent jurisdiction as a remedy for contempt. English courts have not considered their inherent jurisdiction to issue a writ of sequestration as limited by the language of court rules when the interests of justice demanded it; rather, a superior court has “an inherent jurisdiction to enforce its orders where justice demands that those orders should be enforced”: Webster at 709. This principle is persuasive. A fortiori , a British Columbia superior court must have a similar scope of inherent jurisdiction because any legislated limitation imposed on this jurisdiction would be unconstitutional for the reasons discussed above. [75] I pause here to note that the preceding discussion has largely revolved around the remedy of sequestration, which was not specifically ordered by the chambers judge in the case at bar. In my opinion, the order of Grauer J. was, in effect, equivalent to an order for sequestration by the Owners along with a power to sell the property. I do not think the specific language used was determinative if the order was, in substance, an available remedy. [76] In conclusion, it is my opinion that an order of sequestration, or its equivalent power to seize and sell property, should be seen as a protected part of the core of the British Columbia Superior Court’s inherent jurisdiction, which cannot be legislatively limited without breaching the Constitution Act , 1867. Therefore, in my opinion, the order made by the chambers judge in the case at bar was within the court’s jurisdiction. [77] That leaves the question of whether the order was necessary to avoid an injustice or embarrassment of the court, such as further cost for the innocent defendants from a continued abuse of the court’s process by the Beas. [78] The chambers judge determined that no alternative would be effective, and a failure of the court to act would not only allow an injustice, but would perpetuate that injustice through the continued abuse of the court’s process and the consequent expense suffered by the Owners. C. Was the order for sale an appropriate use of the contempt power in this case? [79] In United Nurses of Alberta v. Alberta (Attorney General) , [1992] 1 S.C.R. 901, the Court discussed the nature of a trial court’s inherent jurisdiction to exercise its contempt power. The issue concerned the liability of the union, an unincorporated association, to be punished for criminal contempt. Although the case at bar concerns only civil contempt, nevertheless, the majority judgment of McLachlin J. (as she then was) provides some helpful analysis of the source of the court’s jurisdiction in which she described the nature of contempt as emphasizing that the object of orders for civil contempt is compliance not punishment: Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. [At 931] [80] In his reasons in United Nurses , (dissenting but on a different point), Sopinka J. contrasted the nature of civil contempt as opposed to criminal contempt. He emphasized that punishment for contempt is aimed at securing compliance: The criminal law of contempt must be distinguished from civil contempt. The purpose of criminal contempt was and is punishment for conduct calculated to bring the administration of justice by the courts into disrepute. On the other hand, the purpose of civil contempt is to secure compliance with the process of a tribunal including, but not limited to, the process of a court. . . . . . . . . . . In order to secure compliance in a proceeding for civil contempt, a court may impose a fine or other penalty which will be exacted in the absence of compliance. However, the object is always compliance and not punishment. [At 943–44. Emphasis added.] [81] In Larkin v. Glase , 2009 BCCA 321, this court emphasized that civil contempt is not a private matter between the contemnor and a party. Mr. Justice Chiasson, writing for this Court, stated: [8]        Contempt of court is an issue between a party and the court. It is not concerned with the merits of the dispute between parties to litigation ( Frith v. Frith, 2008 BCCA 2 at para. 36, 47 R.F.L. (6th) 286). Although the issue is pursued by the respondent, the court’s determination that Mr. Glase is in contempt only indirectly affects her interests. As was stated in Ontario (Attorney General) v. Paul Magder Furs Ltd. (1992), 10 O.R. (3d) 46 at 53, 94 D.L.R. (4th) 748 (C.A.), a finding of contempt of court “transcends the dispute between the parties; it is one that strikes at the very heart of the administration of justice . . .”. [9] A court’s ability to punish for contempt is at the core of its jurisdiction ( MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, 130 D.L.R. (4th) 385). It is a jurisdiction that must be exercised strictissimi juris , that is, the court must ensure no one is found to have transgressed without a full consideration of all the relevant information, including any explanations for the conduct of persons accused of violating court orders ( Frith; Claggett v. Claggett (1945), 61 B.C.R. 238 (C.A.)). [82] What I take from these authorities is that the focus of the contempt power is both a coercive and punitive power meant to be used as a means to address the conduct in breach of a court order. The power is not to be used as a means of providing a civil remedy to the underlying dispute. [83] Therefore, determining if the appealed order was an appropriate remedy for contempt in this case involves two main considerations: First, was the remedy’s primary purpose the coercion of the contemnor and the cessation of the contemptuous behaviour? Second, was the remedy necessary and was a less drastic remedy unavailable? [84] The order under appeal provides for the sale of Mrs. Bea’s Strata Unit. As the chambers judge said, it is Mrs. Bea’s ownership interest that fuels her ability “to frustrate and abuse the court’s process and afflict her fellow owners”: Bea at para. 66. The chambers judge considered punishment by fine or imprisonment would not secure the necessary compliance with his order not to file at the registry any further applications or other documents. At para. 49 of his reasons for judgment, the chambers judge wrote: . . . I am limited to imprisoning Mrs. Bea since a fine clearly is impracticable; she cannot pay it. Yet that would prevent her from earning her living without any prospect of changing her behaviour. If the former, then I must still decide whether the sanction sought by the respondent is appropriate in the circumstances. [85] The chambers judge concluded that the sale of the Strata Unit was the only appropriate sanction: I conclude from this review that in the very rare circumstance where the traditional punishments of fine or imprisonment offer no reasonable prospect of bringing a halt to the contemnors’ abuse of the court’s process, of ending their affront to the court, and preventing the injustice that continues to flow from their behaviour, the court is not to be rendered feckless by the Supreme Court Civil Rules . They must be taken to be procedural. Other penalties may be considered. See also Canada Post Corp v CUPW (1991), 61 BCLR (2d) 120 (SC); Westfair Foods Ltd v Naherny (1990), 63 Man R (2d) 238 (CA); and Health Care Corp of St John’s v Newfoundland and Labrador Assn of Public and Private Employees (2000),196 Nfld & PEIR 275 (SCTD). . . . Normally, a person’s property rights would be irrelevant to the question of an appropriate sanction for contempt of court. This case is not normal. Here, the property interest in question is precisely what fuels the Beas’ contemptuous acts and gives rise to the injustice that results. I conclude that a forced sale is the only appropriate and meaningful sanction for Mrs. Bea’s contempt of court . In the unique circumstances of this case, it is a proportional response to the manner in which Mrs. Bea has used her ownership interest to frustrate and abuse the court’s process, and afflict her fellow owners. As I have noted more than once, this represents a departure from precedent insofar as punishment for contempt of court is concerned. It is, however, as I see it, an appropriate evolution that is in line with sanctions that have been imposed in analogous circumstances for similarly egregious behaviour. In this case, it appears certain that Mrs. Bea is destined to lose her property in any event through the enforcement of the many judgments for costs registered against it. The question is whether the owners should be put through the additional expense and frustration of proceeding in that way in the face of the Beas’ unremitting pattern of abuse of the court process, and the ever mounting costs of dealing with them. I think not. The time to end their abuse of the court’s process is now. [At paras. 54, 66–68. Emphasis added.] [86] This Court was informed by counsel during oral arguments that the strata LMS 2138 is a smallish strata consisting of about 35 units occupied by about 70 individuals. The units are modest and the owners as a group are (according to counsel) of modest means. Apart from the first petition challenging the strata’s ability to modify the parking by-law, all the other proceedings could fairly be described as an abuse of the court’s process. The various orders of costs made against the Beas have been registered as encumbrances against the title to the Strata Unit, although we are told they will not come close to fully compensating the Owners for their own solicitor’s fees. [87] We are told that separate proceedings are underway to execute against the title of the Strata Unit to realize on the costs judgments against Mrs. Bea, although Mrs. Bea’s counsel advises the court that she expects to re-finance the property to satisfy these judgments. The sale of the unit would efficiently effect execution of the judgments registered against title; however, this should not be the motivation for crafting such an order as a remedy for contempt of court. Any remedy for civil contempt must be selected for coercive purposes to put an end to the contempt. In the context of a remedy as drastic as a forced sale of property, the judge must have confidence that no less drastic alternative is available. [88] Mrs. Bea has shown a contemptuous disregard for court orders both by her own conduct and the conduct she authorized Mr. Bea to pursue. The history of this litigation illustrates that she is unlikely to obey orders restraining future vexatious filings. Imprisonment is an available punishment, but it is time limited and I agree with the chambers judge, unlikely to effect compliance. A fine is unlikely to be paid voluntarily. [89] With this in mind, in my opinion, while the forced sale of the property may have salutary benefits for the Owners beyond the cessation of the contemptuous behaviour, the primary effect would be to remove the Beas’ connection to the Owners and the Strata Council against which the Beas have developed such a destructive animus. As the chambers judge found, it is Mrs. Bea’s continued ownership of the Strata Unit that fuels her vexatious court applications. He was of the view that forcing a sale was the only way to finally end these vexatious proceedings. The chambers judge’s discretionary decision to grant the order deserves deference in the circumstances, and it cannot be shown to be inappropriate in this case. I do not see any error in his conclusion. [90] As I have already discussed, courts must focus clearly on the question of compliance when crafting a remedy for contempt. The protected core of a superior court’s inherent jurisdiction to punish for contempt exists to prevent a court from being rendered feckless in the face of continued abuse of its process. A court must not allow itself to be used as an instrument of continuing injustice as innocent bystanders are put to continued expense and inconvenience for no legitimate purpose. While the powers of a superior court to punish for contempt are no doubt limited, as I have shown in these reasons, they include the power to order a forced sale of property when the circumstances demand it. IV. Conclusion [91] I see no error in the judge’s decision that sale of the Strata Unit is the only remedy that would ensure compliance with the previous orders prohibiting the Beas from bringing further proceedings. [92] I would dismiss the appeal. “The Honourable Madam Justice Garson” I agree: “The Honourable Madam Justice MacKenzie” Reasons for Judgment of the Honourable Mr. Justice Goepel: I. Introduction [93] I have had the privilege of reading, in draft form, the reasons of Madam Justice Garson. I have reached, however, a different conclusion on the authority of the chambers judge to order the sale of Mrs. Bea’s strata unit. For the reasons that follow, I am of the opinion that the sale of Mrs. Bea’s strata unit was not a remedy for contempt of court that was available to the chambers judge. I would allow the appeal and refer the matter back to the lower court to impose a sanction in accordance with R. 22-8 of the Supreme Court Civil Rules (the “ Rules ”). II. Background [94] The background of the dispute between Mrs. Bea and the Respondents (the “Strata”) has been set out in the reasons of Madam Justice Garson and in those of the chambers judge. I need not refer to them further. [95] The genesis of the present proceeding is an application brought by the Strata on December 19, 2013. The Strata sought the following orders: 1. The Respondent seeks the Petitioner and Mrs. Huei-Chi Yang Bea be found in contempt of court, and fined $10,000 or be committed to a term of imprisonment or both. [Rule 22-8(1)] 2. Further, that a warrant issue for the arrest of Mrs. Huei-Chi Yang Bea, the owner and real litigant in these proceedings if any fines ordered are not paid on time. [Rule 22-8(5)] 3. In the alternative, an order pursuant to the inherent jurisdiction of the court, and / or s.173 of the Strata Property Act, prohibiting the Beas from harassing the Owners, Strata Plan LMS 2138 and causing a nuisance for all the other owners. 4. An order providing vacant possession of the Bea’s home; legally described as Strata Lot 1, District Lot 289, Group 1, New Westminster District Strata Plan LMS 2138 (the “Unit”). 5. An order for conduct of sale of the Unit. 6. An order for the assistance of the RCMP or any other peace officer to enforce the orders for vacant possession and conduct of sale. 7. Special costs payable by Mrs. Huei-Chi Yang Bea. 8. Punitive costs payable by Mrs. Huei-Chi Yang Bea. [96] The initial contempt proceedings took place before Madam Justice Koenigsberg. She found both Mr. and Mrs. Bea in contempt of court and fined them $10,000. She further ordered, as requested in paragraph 2 of the notice of motion, that a warrant be issued for Mrs. Bea if the fines were not paid on time. [97] When the fines were not paid, Mrs. Bea was brought before the chambers judge on February 17, 2014. An issue then arose as to whether Mrs. Bea had been properly served with the original contempt applications. The chambers judge was not satisfied that she had been served and vacated the order finding Mrs. Bea in contempt. The chambers judge conducted a new hearing. [98] At the new hearing, the chambers judge found Mrs. Bea guilty of contempt. Having made that finding, the chambers judge then considered the matter of the appropriate sanction. The Strata urged the judge to order the sale of Mrs. Bea’s strata unit. He agreed. While acknowledging that he was not aware of any case in which a court had seen fit to sell a person’s property to remedy contempt of court, he found that he had such a power under the court’s inherent jurisdiction. He further concluded that, in the circumstances of this case, it was appropriate that he order a sale. He awarded the Strata special costs of the contempt proceedings. He assessed those costs at $17,000 which were a little less than 90% of actual costs. III. Issue On Appeal [99] The finding of contempt was not challenged on the appeal. What is at issue, instead, is whether the chambers judge had the authority to order, as a remedy for contempt, the sale of Mrs. Bea’s residence. Mrs. Bea submits that the judge was limited to the remedies set out R. 22-8 of the Rules. [100] The question for determination on this appeal is whether the judge, pursuant to his inherent jurisdiction, could order the sale of the strata unit notwithstanding the provision in R. 22-8 that mandates that the Court must punish contempt by an order of committal or by the imposition of a fine. The relevant provisions are: Power of court to punish (1)        The power of the court to punish contempt of court must be exercised by an order of committal or by imposition of a fine or both. Corporation in contempt (2)        If a corporation wilfully disobeys an order against the corporation, the order may be enforced by one or more of the following: (a)        imposition of a fine on the corporation; (b)        committal of one or more directors or officers of the corporation; (c)        imposition of a fine on one or more directors or officers of the corporation. Security (3)        Instead of or in addition to making an order of committal or imposing a fine, the court may order a person to give security for the person's good behaviour. Suspension of punishment (15)      The court at any time may direct that the punishment for contempt be suspended for the period or on the terms or conditions the court may specify. IV. Limits On Inherent Jurisdiction [101] Superior courts possess inherent jurisdiction to ensure that they can function as courts of law and fulfil their mandate to administer justice: R. v. Cunningham , 2010 SCC 10 at para. 18. The seminal article on the inherent jurisdiction of superior courts is I.H. Jacob “The Inherent Jurisdiction of the Court” (1970), 23 Current Legal Problems 23. As noted by Madam Justice Garson, the article provides a useful analysis of the scope of the inherent jurisdiction of the courts. [102] The courts’ inherit jurisdiction is not, however, unlimited. As noted by Jacob himself at 24 “the court may exercise its inherent jurisdiction even in respect to matters which are regulated by statue or by rule of court, so long as it can do so without contravening any statutory provision. ” [Emphasis added.] [103] This fundamental limit on the exercise of inherit jurisdiction has long been recognized. In Montreal Trust Co. v. Churchill Forest Industries (Manitoba) Ltd. , [1971] 4 W.W.R. 542 (Man. C.A.) Chief Justice Freedman, after considering the broad scope of inherent jurisdiction, cautioned at 547: Inherent jurisdiction cannot, of course, be exercised so as to conflict with a statute or Rule . Moreover, because it is a special and extraordinary power, it should be exercised only sparingly and in a clear case. [Emphasis added.] [104] Justice Dickson J. (as he then was), speaking for the Court in Baxter Student Housing Ltd. v. College Housing Co-operative Ltd. , [1976] 2 S.C.R. 475, specifically approved the analysis of Freedman C.J.M. in Montreal Trust. In my view, the comments in Montreal Trust and in Baxter are of general application; they are not limited to the specific facts or the issues in either case. [105] In her reasons in MacMillan Bloedel Ltd. v. Simpson , [1995] 4 S.C. 725, McLachlin J., (as she then was), dissenting on other grounds, discussed at paras. 78-80 how Parliament and legislatures can limit the ways in which superior courts can exercise their powers (including their inherent powers): [I]t has long been settled that under the rule of law Parliament and the legislatures may limit and structure the ways in which the superior courts exercise their powers. These inherent powers of superior courts are simply innate powers of internal regulation which courts acquire by virtue of their status as courts of law. The inherent power of superior courts to regulate their process does not preclude elected bodies from enacting legislation affecting that process [T]he superior courts of this country are controlled by an elaborate matrix of statute and regulation limiting the way they exercise powers over their own process. Legislation intrudes on a number of areas traditionally within the domain of the court’s inherent power, including matters such as contempt of court, testimonial compulsion, the attendance of spectators, hours of sitting and the imposition of publication bans over court proceedings . Parliament and the legislatures routinely         make rules limiting the scope for the exercise of the court’s inherent powers in these and other areas. In every province Rules of Court limit and define the ways in which superior courts can exercise their inherent powers . The Income Tax Act restricts the circumstances in which courts may exercise their inherent jurisdiction to order the Minister of National Revenue to release confidential information ... In the criminal sphere, s. 486(4) of the Criminal Code removes the discretion a judge would have at common law to refuse a publication ban upon the request of a complainant or prosecutor where the accused is charged with one of the listed offences. How a          court must deal with contempts arising in certain circumstances is now prescribed in some detail (see, e.g., ss. 127(1), 708(1), 605(2), 484, 486(1) and (5)) . Interestingly, in order to preserve the court’s jurisdiction over contempt in s. 9, the Code specifically excludes that offence from the general withdrawal of jurisdiction over the common law offences. The drafters clearly recognized the competence of Parliament to remove an aspect of inherent jurisdiction, and consequently the need to segregate contempt from the general provision eradicating those offences if the courts were to retain this power. All of this is simply to restate the general principle that courts must conform to the rule of law. They can exercise more power in the control of their process, in different ways, than is expressly provided by statute, but must generally abide by the dictates             of the legislature. It follows that Parliament and the legislatures can legislate to limit the superior courts’ powers, including their powers over contempt, provided that the legislation is not otherwise unconstitutional [Emphasis added.] [106] Inherent jurisdiction cannot be exercised in a manner inconsistent with the well-settled principles of the rule of law. In Ontario v. Criminal Lawyers Association of Ontario , 2013 S.C.C. 43 [ Criminal Lawyers ], Justice Karakatsanis emphasized that inherent jurisdiction is not unlimited and that the manner of its exercise may be regulated by legislative action. She specifically approved of the analysis of McLachlin J. from para. 78 of MacMillan Bloedel : [22] In spite of its amorphous nature, providing the foundation for powers as diverse as contempt of court, the stay of proceedings and judicial review, the doctrine of inherent jurisdiction does not operate without limits. [23] It has long been settled that the way in which superior courts exercise their powers may be structured by Parliament and the legislatures (see MacMillan Bloedel , at para. 78, per McLachlin J. , dissenting on other grounds). As Jacob notes (at p. 24): “... the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision” (emphasis added) (see also Caron , at para. 32). [Emphasis added.] [107] Rules of Court are, for the purpose of determining limits on inherent jurisdiction, in the same position as formally enacted statutes dealing with the courtroom process. It is well-settled that the Rules of Court, and in particular the current Rules , have the force of statute: Conseil scolaire francophone de la Colombie-Britannique v. British Columbia , 2013 SCC 42 at para. 50 [ Conseil scolaire ]. [108] The issue in Conseil scolaire was whether French language exhibits attached to an affidavit could be considered by the courts without English translations. Rule 22-3 required that exhibits attached to affidavits and filed in court had to be in English. The Supreme Court rejected a submission that a superior court could admit the documents in a language other than English pursuant to its inherit jurisdiction because doing so would contravene R. 22-3: [63]      There is no doubt that the British Columbia Supreme Court has the inherent jurisdiction and discretion to fulfill its judicial function, but as this Court noted in R. v. Caron , 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 32, they are subject to the requirement that the court exercise them without contravening any statutory provision. In the case at bar, Rule 22-3 limits the court’s discretion to admit documents in languages other than English . [Emphasis added.] [109] This Court has also commented on the limits to inherent jurisdiction. In Lines v. W & D Logging Co. Ltd. , 2009 BCCA 107 Saunders J.A. for the Court commented as follows: [23]      Inherent jurisdiction was described by Chief Justice Freedman in Montreal Trust Co. v. Churchill Forest Industries (Manitoba) Ltd . (1971), 21 D.L.R. (3d) 75 at 81, [1971] 4 W.W.R. 542 (Man. C.A.): Inherent jurisdiction is derived not from any statute or rule but from the very nature of the court as a superior court of law: “The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law.” [I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Curr. Legal Probs. 23 at 27] Inherent jurisdiction cannot, of course, be exercised so as to conflict with a statute or rule. Moreover, because it is a special and extraordinary power, it should be exercised only sparingly and in a clear case. [24]      The Manitoba Court of Appeal again usefully added to the comment on inherent jurisdiction in Gillespie v. Manitoba (Attorney General) , 2000 MBCA 1, 185 D.L.R. (4th) 214: [17]      Although many instances can be found in which the inherent jurisdiction of the Queen’s Bench (or equivalent court in other jurisdictions) has been invoked to justify an order, no satisfactory definition of inherent jurisdiction has been enunciated. That is perhaps because inherent jurisdiction has never been conferred on a court expressly, but exists as an auxiliary power to be invoked when necessary for the court “to fulfil itself as a court of law” (to use the words of Master I.H. Jacob, in his article “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23 at p. 27). [18]      I have chosen the word “auxiliary” to describe the power in order to emphasize the power’s supportive role. “Auxiliary” is defined in Webster's New World Dictionary, Third College Edition , 1988, as “giving help or aid; assisting or supporting” and as “acting in a subsidiary, or subordinate, capacity”. Inherent power, as I understand it, is the power a judge may draw upon to assist or help him or her in the exercise of the ordinary jurisdiction of the court. It does not generally stand alone waiting to be exercised on the judge’s own initiative without a suit or application or without parties. [19]      The auxiliary nature of inherent jurisdiction is reflected in the words of Lord Morris of Borth-y-Gest in Connelly v. Director of Public Prosecutions , [1964] A.C. 1254 (H.L.). In obiter comments, he said (at p. 1301): There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process. [25]      I refer as well to Borkovic v. Laurentian Bank of Canada , 2001 BCSC 337, wherein Mr. Justice Smith endorsed this passage from Halsbury’s Laws of England at para. 9: [the Court] has an inherent power to regulate its own procedure, save in so far as its procedure has been laid down by the enacted law, and it cannot adopt a practice or procedure inconsistent with rules laid down by statute or adopted by ancient usage. [Emphasis added.] [110] In summary, it is now well-established that the way in which superior courts exercise their powers may be regulated by the provincial legislature. V. Evolution Of The Rules Of Court [111] This case concerns civil contempt. Civil contempt was defined in Sir G. Borrie and N. Lowe, Borrie and Lowe on the Law of Contempt , 3d ed. (London: Butterworths, 1996) at 655-656 [Borrie and Lowe], which passage was approved by the Ontario Court of Appeal in Kopaniak v. MacLellan (2002), 212 D.L.R. (4th) 309 at para. 26: Civil contempts … are committed by disobeying court judgments or orders either to do or to abstain from doing particular acts, or by breaking the terms of an undertaking given to the court, on the faith of which a particular course of action or inaction is sanctioned, or by disobeying other court orders (e.g. not complying with an order for interrogatories, etc.). Civil contempts are therefore essentially ‘offences’ of a private nature since they deprive a party of the benefit for which the order was made. … [T]he courts’ jurisdiction in respect of civil contempts is primarily remedial, the basic object being to coerce the offender into obeying the court judgment or order [112] Civil contempt in British Columbia has, since 1880, been regulated by the Rules . The Rules governing such contempt, understood as defiance or disobedience of a civil order, were initially found in Rules 307-311 of the 1880 Supreme Court Rules . They read as follows: 307 A judgment for the recovery by or payment to any person of money may be enforced by any of the modes by which a judgment or decree for the payment of money might have been enforced at the time of the passing of the Act. 308 A judgment for the payment of money into Court may be enforced by writ of sequestration, or in cases in which attachment is authorised by law, by attachment. 309 A judgment for the recovery or for the delivery of the possession of land may be enforced by writ of possession. 310 A judgment for the recovery of any property other than land or money may be enforced: By writ for delivery of the property; By writ of attachment; By writ of sequestration. 311 A judgment requiring any person to do any act other than the payment of money, or to abstain from doing anything, may be enforced by writ of attachment, or by committal . [Emphasis added.] [113] Rule 311 concerned breaches of mandatory or prohibitory orders other than the payment of money, which are precisely the type of breaches contemplated in the definition of civil contempt as explained by Borrie and Lowe at 655-656. A breach of such orders was an act of contempt, which was remedied by way of a writ of attachment or committal. [114] In Golden Gate Mining Co. v. Granite Creek Mining Co. (1896) 5 B.C.R. 145, which was decided prior to the creation of the Court of Appeal by the appeal division of the Supreme Court, called the Full Court, McCreight J. at 149 explained the differences in the remedies of attachment and committal: This is a case in which committal and not attachment is the appropriate remedy. Where the injunction is mandatory the defendant is attached and brought into Court to explain why he has not done what was required of him, and the process is for the contempt, of which he is given an opportunity of purging himself by compliance, and the proceeding is tentative in its nature. But where the injunction directs that something shall not be done and it is proved that in disobedience thereof it has been done, then the process is punitive, and an order to commit the delinquent to prison for that misconduct is the proper course. [115] The Rules remained in identical language through to, and including, the 1961 revision of the Rules . In 1890, Rules 307 to 311 became Rules 458 to 461. From 1906 to 1976 they were set out in Marginal Rules 581 to 585. In 1976, Marginal Rules 581 through 585, in somewhat different language, were incorporated into Rule 42. Today they are found in R. 13-2. [116] The 1880 Supreme Court Rules contain separate provisions concerning writs of attachments and sequestration. Rule 345 set out when a writ of sequestration could issue: 345 Where any person is by any judgment directed to pay money into Court or to do any other act in a limited time, and after due service of such judgment refuses or neglects to obey the same according to the exigency thereof, the person prosecuting such judgment shall at the expiration of the time limited for the performance thereof, be entitled, without obtaining any order for that purpose, to issue a writ of sequestration against the estate and effects of such disobedient person. Such writ shall have the effect as a writ of sequestration has heretofore had, and the proceeds of such sequestration have heretobefore been dealt with. [ See Form No. 80.] [117] In 1890, R. 345 became R. 492 and in 1906 it became Marginal Rule 618. It remained so until the 1976 Rule revision when in revised form, it became R. 42(2). A similar Rule is presently found in R. 13-2(13). [118] In 1906, Marginal Rule 609 was added to deal with circumstances where a corporation failed to obey an order. Among the potential penalties was sequestration. That Rule read: Any judgment or order against a corporation willfully disobeyed may, by leave of the Court or a Judge, be enforced by sequestration against the corporate property, or by attachment against a director or other officers thereof, or by writ of sequestration against their property. [119] The historical manner by which Court orders were enforced and the reason that the remedy of sequestration was introduced in the case of corporate contempt was explained by Taggart J. A. in his dissenting reasons in Twinriver Timber Ltd. v. International Woodworkers of America, Local 1-71 , (1970) 14 D.L.R. (3d) 704 (B.C.C.A.): When one examines the history of the development of the rules relating to sequestration it is apparent that from the earliest times Courts of Equity and later of common law recognized the distinction between those cases involving breaches of orders requiring acts to be done and those cases involving breaches of Court orders prohibiting the commission of acts . If an individual was required to perform an act and failed to do so then the Courts did not hesitate to authorize the issuance of writs of sequestration. On the other hand, if an individual was prohibited from doing an act and continued to do the act in breach of the order, then the effective remedy was to attach the person of the offender whereupon the acts prohibited ceased, at least for so long as the offender remained in custody. That logical approach to the enforcement of orders could not apply in the case of a corporation for corporations have only a notional existence in law and can not be attached. Consequently the Courts authorized the issuance of writs of sequestration against corporations not only when a corporation failed to comply with an order directing an act to be done, but also in cases where the order prohibited the commission of an act for in the latter case it was impossible for the Court to attach the person of the corporation and thus cause a cessation of the prohibited act. [Emphasis added.] [120] In 1976, Marginal Rule 609 was incorporated into R. 56(2) and is presently found in R. 22-8(2). Since 1976, the Rules have no longer authorized the issuance of writs of sequestration against corporations for breach of a court order. The Rules have, however, allowed for the committal of corporate officers and directors. [121] The Rules of Court underwent a wholesale revision in 1976: P. Fraser “New Rules of Court: The Background” (1976) 34 The Advocate 117. Other than Marginal Rule 609, the existing enforcement provisions became part of R. 42. Rule 56 was adopted which dealt specifically with the penalties and procedures governing contempt. Those provisions were carried forward into the new Rules and are now found in R. 22-8. VI. Discussion [122] As can be seen from the historical review, the Supreme Court has long had, and continues to have, various powers to enforce the orders it makes. Those powers did not include the power to sell the property of a person in contempt. [123] In Twinrive r, this Court specifically rejected a submission that the court’s inherent jurisdiction allowed it to create a remedy for contempt not contained in the Rules . Twinriver concerned an application for a writ of sequestration directed to a union as a result of its contempt of court. The applicant relied on Marginal Rule 609, which dealt with circumstances in which a corporation had disobeyed an order. [124] The application for sequestration was heard before Atkins J. (as he then was). He concluded that the Marginal Rule did not apply to a union because a union was not a corporation. Moreover, he specifically rejected an argument that the court could exercise its inherent jurisdiction to order sequestration: [28]      Before proceeding further I should, I think, amplify my understanding of Mr. Giles’ argument. Mr. Giles took the position, as I understood him, that the only redress available to the plaintiff was sequestration, that is that the only way in which the plaintiff could bring the defendant union before the Court so that the defendant union’s disobedience of the order, if proved, might be dealt with or the plaintiff’s rights protected was by application for leave to enforce the order by sequestration. This being so, Mr. Giles argued, because the Court must have inherent jurisdiction to enforce an order which it has lawfully made, the Court must have inherent jurisdiction to enforce by sequestration because it is the only way in the instant case, in which the matter may be brought before the Court . Assuming that I am correct in the conclusion that I have stated that sequestration lies only where authorized by Rule so that sequestration is not available to the plaintiff in this application because the matter is not within M.R. 609, I should not, I think, usurp a Rule-making or legislative function, and grant leave for sequestration simply because I might think, and I express no opinion on the matter one way or the other, that the law should be that wilful disobedience of an order of the Court by persons other than a corporation should in the discretion of the Court, be enforceable by sequestration, which after all, is a special and perhaps rather drastic means of enforcing an order or judgment. So, I conclude, assuming that the Court has as contended an inherent jurisdiction to enforce its orders, such as the order in the present case, that that inherent jurisdiction to enforce may not be exercised by sequestration because, put shortly, I think to hold otherwise would be to act outside the Rules and in effect usurp the Rule-making function . [Emphasis added.] [125] The Court of Appeal upheld the decision. The majority judges, Maclean and Branca J.J.A., both said that they were doing so for the reasons given by the judge below. Justice Taggart dissented. In his view, the court had an inherent jurisdiction to grant leave to issue the writ of sequestration notwithstanding the provision of the Rules . [126] Twinriver remains, in my opinion, binding authority. It is consistent with the principle set out in the decisions discussed above: legislatures may limit and structure the ways in which the superior courts exercise their inherent jurisdiction and inherent jurisdiction is subject to and must yield to provisions set out in the Rules of Court and in statues. In reaching this conclusion, I have reviewed and considered the majority judgment in MacMillan Bloedel . In my respectful opinion MacMillan Bloedel has not directly or impliedly overruled Twinriver . [127] The central issue in MacMillan Bloedel was whether Parliament, pursuant to its criminal law power, could confer the exclusive jurisdiction of a superior court general jurisdiction over ex facie contempt to a statutory court. The constitutional question facing the Supreme Court of Canada was phrased as follows by Lamer C.J.C. in his majority reasons: Is it within the jurisdiction of Parliament to grant exclusive jurisdiction to youth courts , through the operation of s. 47(2) of the Young Offenders Act, R.S.C. 1985, c. Y-1, over contempt of court committed by a young person against a superior court otherwise than in the face of court? [Emphasis added.] [128] The discussion in MacMillan Bloedel regarding the constitutionally protected scope of the “core” or “inherent” jurisdiction of a superior court of general jurisdiction was predicated entirely on the question of whether the wholesale removal of that core power was a constitutionally permissible legislative or parliamentary action: To determine whether either Parliament or a provincial legislature may remove part of the superior court’s jurisdiction, we must consider the contours and contents of the “core” or “inherent” jurisdiction of the superior courts . On the facts of this appeal, the British Columbia Supreme Court being the superior court involved, we need only consider whether this jurisdiction can be removed from superior courts of general jurisdiction The full range of powers which comprise the inherent jurisdiction of a superior court are, together, its “essential character” or “immanent attribute”. To remove any part of this core emasculates the court, making it something other than a superior court . . [A]n inferior court of record has inherent jurisdiction to punish summarily for in facie contempt, but jurisdiction to punish for ex facie contempt must be conferred explicitly by statute. This point is important in framing the issue before the Court in this case, for the problem with s. 47(2) of the Young Offenders Act is not the grant of jurisdiction to the youth court but the removal of jurisdiction from the superior court . [ MacMillan Bloedel at paras. 28-31. Emphasis added.] [129] In the course of his analysis, Lamer C.J.C. makes reference to the decision of the Supreme Court of Canada in Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220. In that case, the Supreme Court held that it was constitutionally impermissible for the provincial legislatures to immunize administrative tribunals from judicial review because, in essence, this would remove the power of s. 96 courts to conduct judicial review. In his view, Crevier “establishes … that powers which are ‘hallmarks of superior courts’ cannot be removed from those courts.” The Chief Justice also referred to Attorney General of Canada v. Law Society of British Columbia , [1982] 2 S.C.R. 307, which held that Parliament lacked the authority to wholly remove the power of superior courts to rule on the validity of federal statutes. The question, in each case, was whether it was within the jurisdiction of Parliament or the provincial legislatures to wholly remove an area of jurisdiction (either judicial review of administrative decisions or constitutional judicial review of federal statutes) by way of an absolute transfer of jurisdiction to a statutorily created adjudicative body (either a statutory court or administrative tribunal). [130] The eventual conclusion of Lamer C.J.C., at para. 41, on the scope of the constitutional provisions breached by the transfer of jurisdiction over ex facie contempt from the superior courts to the statutory youth courts, was predicated on his conclusion that such a transfer of jurisdiction is tantamount to its wholesale removal: In light of its importance to the very existence of a superior court, no aspect of the contempt power may be removed from a superior court without infringing all those sections of our Constitution which refer to our existing judicial system as inherited from the British, including ss. 96 to 101, s. 129, and the principle of the rule of law recognized both in the preamble and in all our conventions of governance. I agree with Macdonald J. who [in Columbia (Attorney‑General) v. Mount Currie Indian Band (1991), 64 C.C.C. (3d) 172 at 177-178)] made the following statement in dealing with the identical issue: In this case, the question should be whether parliament can remove from this court its inherent jurisdiction to maintain its authority by contempt proceedings. I would have no difficulty with a concurrent jurisdiction in the youth court in that regard in so far as young persons are concerned. The philosophy which underlies the Act is entitled to support, and has certainly received it from the Supreme Court of Canada. Just as adult offenders could be charged in the provincial courts under the Criminal Code for failure to comply with a court order, so young persons should be subject to being charged under the Act and dealt with in youth court. It is quite another thing to deny this court the right to maintain its own authority . [Emphasis added.] [131] Given the context in which the case was decided, it is important to delineate between the comments made by the Lamer C.J.C. pertaining to the contempt power (understood to reflect the authority of courts to coerce compliance with their orders) and the options available to the courts to enforce compliance. When Lamer C.J.C. referenced the “full panoply of contempt powers”, he did so with regard to the distinction between ex facie and in facie contempt. The reference to the full panoply of contempt powers, in other words, was not a reference to the peculiar historical options that were available to the English courts to sanction contempt and coerce compliance with court orders. It was, instead, a reference to the scope of jurisdiction of the courts over all forms of contempt of court (i.e., both in facie and ex facie ). As he explained at paras. 38 and 42: The core jurisdiction of the provincial superior courts comprises those powers which are essential to the administration of justice and the maintenance of the rule of law. It is unnecessary in this case to enumerate the precise powers which compose inherent jurisdiction, as the power to punish for contempt ex facie is obviously within that jurisdiction. The power to punish for all forms of contempt is one of the defining features of superior courts. The in facie contempt power is not more vital to the court’s authority than the ex facie contempt power. The superior court must not be put in a position of relying on either the provincial attorney general or an inferior court acting at its own instance to enforce its orders . Furthermore, ex facie contempt is not limited to the enforcement of orders. It can include activities such as threatening witnesses or refusing to attend a proceeding (see R. v. Vermette , [1987] 1 S.C.R. 577). In addition, the distinction between in facie and ex facie contempt is not always easily drawn … increasing the difficulty of saying one is more essential to the court’s process than the other. While it will in most instances be preferable for the youth court to try and punish a youth in ex facie contempt of a superior court, the provincial superior court's jurisdiction cannot be ousted . It will always be for the superior court to elect whether to hold contempt proceedings against a youth in order to exert control over its process, or to defer to the youth court. In addition, in cases where the youth court does proceed against a youth for contempt ex facie of a superior court, the provincial superior court retains its supervisory power to ensure that the lower court’s disposition of the matter is correct. The full panoply of contempt powers is so vital to the superior court that even removing the jurisdiction in question here and transferring it to another court with judges appointed pursuant to s. 96 would offend our Constitution. [Emphasis added.] [132] Chief Justice Lamer was, to put it another way, solely concerned with whether the absolute removal of an area of jurisdiction falling within the “essential character” of a superior court of general jurisdiction, which removal was effected by way of a transfer of power to a statutory court, was constitutionally permissible under ss. 96-101, s. 129 and the general and foundational principles of the rule of law. The focus on ex facie contempt of court as being part of the “core” or inherent jurisdiction of the court is consistent with the analysis of the court in other cases dealing with the concurrent grant of jurisdiction over in facie contempt to inferior tribunals or courts: see e.g., Chrysler Canada Ltd. v. Canada (Competition Tribunal ), [1992] 2 S.C.R. 394. In my view, it is essential to bear this jurisprudential context in mind when considering the general comments made by the Chief Justice in McMillan Bloedel . [133] Justice McLachlin, as she then was, took a different view of the constitutional issue. She agreed with the Chief Justice that the effect of the impugned legislation was to remove an entire sphere of jurisdiction (namely, the jurisdiction over ex facie contempt of a superior court) from the superior courts. Her view, however, was that this ouster of jurisdiction was simply the typical consequence of any transfer of power from a s. 96 court, which was in itself nothing but an application of well-settled principle that under the rule of law Parliament and the legislatures may limit and structure the ways in which superior courts of general jurisdiction exercise their powers. [134] While the majority of the Supreme Court of Canada rejected that the complete ouster of jurisdiction over a particular area of inherent jurisdiction was equivalent to the aforementioned well-settled rule of law principle, McLachlan’s J. articulation of that principle of the rule of law from paras. 78-80 of MacMillan Bloedel was, as noted above, adopted in Criminal Lawyers at para. 23. [135] In this case, R. 22-8(1) does not purport to wholly remove the power of the Supreme Court to sanction contempt by, for example, transferring that power to a statutory court. Instead, the Rules simply structure how the civil contempt power, over which the court retains exclusive jurisdiction, ought to be exercised. [136] In my opinion, it is now well-established that, as a fundamental principle of the rule of law, Parliament and the provincial legislatures have the authority to structure and circumscribe how the courts will exercise their inherent jurisdiction so long as their legislative actions do not go so far as to wholly remove an area of such jurisdiction from the purview of the courts. The reasons of Lamer C.J.C. from MacMillan Bloedel , which were concerned with the general and wholesale removal of the jurisdiction of the superior courts of general jurisdiction over ex facie contempt of a superior court by a young offender, are not applicable to the present case. There is no basis to conclude that R. 22-8(1) removes the jurisdiction of the Supreme Court of British Columbia to punish civil contempt. That the Rules limit the options available in sanctioning civil contempt does not mean that they have the effect of removing jurisdiction over it. [137] The chambers judge recognized that that the Court’s inherent jurisdiction could not be exercised in the contravention of a statute. However, his attention was apparently not directed to the decision in Conseil scolaire that confirmed that the Rules have the force of statute law. [138] The principles of statutory interpretation apply to the Rules : A.E. (Litigation Guardian of) v. D.W.J, 2011 BCCA 279. The modern approach to statutory interpretation is set out in Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 S.C.R. 27 at para. 21: “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” [139] The plain language of R. 22-8(1) provides: Power of court to punish (1)        The power of the court to punish contempt of court must be exercised by an order of committal or by imposition of a fine or both. [Emphasis Added.] [140] The rule makes specific reference to the inherent power of the court to punish contempt, and then sets out the manner in which that power must be exercised (that is, by way of either or both of a fine or committal). In my view, this provision is a particular instance of the well-settled principle that the Legislature may limit and structure the ways in which the superior courts exercise their inherent powers: Criminal Lawyers at para. 23. [141] Based on its plain language, R. 22-8 provides a complete, comprehensive and exhaustive articulation of the options available to the courts in sanctioning civil contempt. Those options do not include an order of sale. [142] In this case, the Strata brought an application to have Mrs. Bea held in contempt. The chambers judge so found. Having found Mrs. Bea in contempt, the Rules mandated that the punishment be by fine or incarceration or both, albeit the judge had the power to suspend the sentence under R. 22-8 (15). The judge did not have the authority to fashion a remedy for contempt outside of those set out in R. 22-8. In particular, he could not order the sale of Mrs. Bea’s unit. VII. Disposition [143] In the result, I would allow the appeal and refer the matter back to the trial court to impose a penalty authorized by law. I would not disturb the cost order of the chambers judge. Given the history of this matter I would make no order for costs in this Court. “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: British Columbia/Yukon Association of Drug War Survivors v. Abbotsford Police Department, 2015 BCCA 97 Date: 20150128 Docket: CA042419 Between: British Columbia/Yukon Association of Drug War Survivors Appellant (Plaintiff) And Abbotsford Police Department Respondent And City of Abbotsford Respondent (Defendant) Before: The Honourable Madam Justice Garson (In Chambers) On appeal from: an order of the Supreme Court of British Columbia dated September 29, 2014 ( B.C./Yukon Association of Drug War Survivors v. Abbotsford (City) , 2014 BCSC 1817, New Westminster Docket No. S159480 Oral Reasons for Judgment Counsel for the Appellant: D.K. Wotherspoon D.J. Larkin Counsel for the Respondent: D.G. Butcher, Q.C. Counsel for the City of Abbotsford: J. Yardley Counsel for the Attorney General of British Columbia S.E. Lacusta Place and Date of Hearing: Vancouver, British Columbia January 27, 2015 Place and Date of Judgment: Vancouver, British Columbia January 28, 2015 Summary: The applicant sought leave to appeal an order for costs in any event of the cause flowing from an application for third-party disclosure in the Supreme Court of British Columbia. The applicant is a non-profit organization engaged in “public interest litigation” on behalf of drug-addicts. In the court below, the applicants successfully applied for third-party disclosure from the Abbotsford Police Department, but were ordered to pay the costs for such disclosure in any event of the cause. Held: leave granted. The applicant seeks relief pursuant to actions of the Abbotsford Police Department, but cannot sue the Abbotsford Police Department as a co-defendant because it is not a legal entity. There is some merit in the argument that the Abbotsford Police Department should not be treated the same as a “typical” third-party in these circumstances. The applicant may not be able to obtain the necessary disclosure if it is required to pay the costs in any event of the cause due to its financial status as a non-profit. Only the possible delay of the underlying action weighs against granting leave, but this does not outweigh the interest that the applicant and the legal profession has in resolving this issue. Overview [1] GARSON J.A. :  This is an application for leave to appeal an order of the Chief Justice of the Supreme Court of British Columbia in which he ordered that the British Columbia/Yukon Association of Drug War Survivors, (“the Association”), the Plaintiff in the underlying action and appellant on this appeal, pay the cost of production of certain records of the Abbotsford Police Department (“the APD”). The APD is not a party to the litigation in the Supreme Court. The Police Act , R.S.B.C. 1996, c. 367 provides that the City is jointly and severally liable for a tort committed by a police officer in the course of his duties. Thus, in this lawsuit, the City of Abbotsford is sued for its own alleged wrongs and also those of the APD. [2] The issue that brings the matter before this Court on an application for leave to appeal is the costs order associated with the application of the Association for production of APD documents. Because APD was considered by the chambers judge to be a third party, he ordered the Association to pay costs for production of the documents. I am told by counsel on this application for leave that the costs are as yet not calculated but are expected to be anywhere between $20,000 and $50,000. [3] The Association is represented by counsel on a pro bono basis. The Association cannot afford to pay costs for producing the documents. It argues that the City of Abbotsford should bear its own costs for producing the documents in this “public interest” litigation concerning issues of homelessness. On the application for leave, the Association argues that the issues raised on appeal merit the granting of leave. Background [4] The Association, founded in 2009, is made up of former and current drug users, with a mission to improve the lives of drug addicts, through the use of peer support, education, and lobbying for policy and social changes. The Association has most recently been funded primarily through a $7,000 grant from the Fraser Health Authority. [5] In March 2014, the Association commenced this action against the City of Abbotsford, including the APD, alleging various Charter breaches including, for example, that the bylaws of the City of Abbotsford and certain actions of the APD interfere with, inter alia , the s. 7 Charter rights of the Association’s members. In a portion of its Notice of Civil Claim that is pertinent to the APD, it is alleged: 16.       Abbotsford is, and has been, aware that homeless people living in Abbotsford, including Abbotsford’s Homeless, face barriers to shelter and housing as particularized above. 17.       Abbotsford has sought and continues to seek to reduce the number of Abbotsford’s Homeless through the use of policing and bylaw enforcement tactics. 18.       In particular Abbotsford relies on the: Parks Bylaw , 1996 No. 160-96 (the “ Parks Bylaw ); Consolidated Street and Traffic Bylaw , 2006, Bylaw No. 1536-2006 (the “Street And Traffic Bylaw”); and Good Neighbour Bylaw , Bylaw No. 1256-2003 (the “Good Neighbour Bylaw”). 19.       Tactics employed by Abbotsford, including members of the APD, include but are not limited to (the “Displacement Tactics”): a) issuing bylaw enforcement notices on Abbot sford’s Homeless requiring them to vacate the public spaces (“Eviction Notices”); b) enforcing Eviction Notices by way of court ordered injunctions, which injunctions include enforcement provisions pursuant to the Criminal Code, R.S.C., 1985, c. C-46; c) ordering Abbotsford’s Homeless to move and/or disperse from various public spaces verbally and without the issuance of Eviction Notices; d) selective policing practices, often referred to as proactive policing, in areas known to be frequented by Abbotsford’s Homeless; e) spraying bear spray by members of the APD into the tents and onto the belongings of some of Abbotsford’s Homeless, destroying their Survival Shelters, clothing, hygiene items, food and other personal property; f) slashing tents and belongings of some of Abbotsford’s Homeless by members of the APD, destroying their Survival Shelters and personal property; g) spreading chicken manure on a longstanding homeless camp located on Gladys Avenue by Abbotsford employees; h) otherwise destroying or disposing of the personal property of Abbotsford’s Homeless; i) failing to develop needed housing for people who are homeless or at risk of homelessness. [6] In December 2014, the Association appeared before Chief Justice Hinkson, requesting third-party disclosure from the APD pursuant to r. 7-1(18) of the Supreme Court Civil Rules . As already noted, Chief Justice Hinkson ordered the APD to provide the requested disclosure, but also included an order for “costs for the production of the documents requested from the [APD]” in any event of the cause. The Association seeks leave to appeal this order for costs in any event of the cause. Positions of the Parties [7] The Association submits that Hinkson C.J. failed to apply the correct legal test when determining which party should bear the costs of the disclosure. The Association submits that the correct test for determining which party should bear the costs is “what is just in the circumstances”, and cites A.L. Sott Financial (Newton) Ltd. v. Bauman , [1998] B.C.J. No. 950, for this proposition. The Association argues that Hinkson C.J. failed to apply this test, and instead made his determination on the basis that there was a presumption that a litigant should automatically be required to pay the costs of third-party document disclosure. [8] The Association submits that it would not be just in the circumstances to require it to pay the costs of third-party disclosure in any event of the cause because of the unique circumstances of this case. The Association is seeking relief pursuant to s. 24(1) of the Charter for various alleged Charter breaches, some of which are as a result of the actions of the APD. I understand, also, that certain tort claims are advanced against the APD. However, because the APD is not a legal entity, it cannot be sued directly by the Association and be made a party to the action as a co-defendant: Henry v. British Columbia , 2014 BCSC 1018. [9] In Henry , also decided by Hinkson C.J., it was determined that the records of the Vancouver Police Department were not within the possession, control, or power of the City of Vancouver: at para. 35. The consequence of Henry is that, despite the fact that the Association is alleging unconstitutional actions on the part of the APD, it cannot obtain any disclosure from the APD without resorting to the third-party disclosure process under r. 7-1(18). The Association argues that this is fundamentally unfair, as it would not be required to pay costs in any event of the cause if the APD was able to be sued as a co-defendant. In this case, the APD is not in the same position as an “innocent” third party, and the same costs considerations should not apply. The Association argues, and has provided affidavit evidence in support, that it will be unable to pay these costs. Implicitly, the disclosure may not occur if the Association must pay the administrative and legal costs in accordance with Hinkson C.J.’s order. [10] The APD submits that Hinkson C.J. made no error in ordering costs be paid by the Association in any event of the cause. The APD argues that A.L. Sott is a decision of a master and is not persuasive authority for the proposition that there is a “just in all the circumstances” test for ordering costs in these circumstances. As a third-party, the APD will be unable to speak to costs at the conclusion of the trial, and will therefore not have another opportunity to recoup the necessary expense in providing the ordered disclosure. [11] The co-respondent, City of Abbotsford, does not take any position on the appeal, and did not take a position before the chambers judge. The City does argue that leave ought not be granted if doing so would result in an adjournment of the trial presently set for June 29, 2015. [12] The Attorney General takes no position. The Legal Test for Leave to Appeal [13] Leave to appeal is required for all orders defined as “limited appeal orders” under the Court of Appeal Rules : see Court of Appeal Act , s. 7. and r. 2.1(f), which states that an order granting or refusing costs is a limited appeal order if the only matter being appealed is that grant or refusal. [14] An award of costs is a discretionary order, and is subject to limited appellate review: Neufeld v. Foster , 2000 BCCA 485 at para. 14 (in chambers). However, where there is a question of legal principle raised by the application that extends beyond the parameters of the particular case, leave may be granted: Yung v. Jade Flower Investments Ltd. , 2012 BCCA 168 at paras. 20, 23 (in chambers). [15] The general test to be applied on an application for leave to appeal requires the applicant to meet the following criteria: a) That the appeal has some merit, that is to say the applicant has to identify an arguable case of sufficient merit to warrant the scrutiny of a division of the court; b) There must be some important issue involved, both to the parties and to the public in general; c) There must be some practical utility to the appeal; and d) That the granting of leave would not cause delay in the proceedings such as to result in serious prejudice to the party opposing. [ Yung at para. 17] Analysis Merits of the Appeal [16] I turn to consider the first factor, the merits of the appeal. [17] At para. 3 of his reasons, Hinkson C.J. states, “I am not persuaded that the relationship between the Abbotsford Police Department and the City of Abbotsford [is] such that the police department should be treated as other than third parties for the purposes of document production”. I take this to mean that Hinkson C.J. found the APD to be in the same position as what would be considered a “typical” third party. In my opinion, there is some merit in the argument that the APD—as an organization allegedly directly involved in the Charter breaches or tort claims claimed by the Association, but one that cannot be sued as a co-defendant—should not be treated the same as other, “typical” third parties. [18] Because a police department or its officers cannot be sued directly, an action against police must instead be taken against a municipality, or possibly Her Majesty the Queen. The consequence of Henry is that document disclosure from a police department cannot be obtained without resort to the third-party disclosure rules. This appears to place plaintiffs pursuing claims against police departments in a somewhat anomalous position, as document disclosure will not flow automatically from r. 7-1(1), despite the fact that it is the documents concerning the very conduct that is in issue which are sought. [19] The APD argues that, as a third party, it will be unable to speak to costs at the conclusion of the trial, and therefore it must be able to claim its costs in any event of the cause. This will be an important consideration should the appeal be heard, but in my opinion, it is not obvious that this possible prejudice outweighs the arguments of the Association. I am persuaded that there is some merit to this appeal. [20] This factor weighs in favour of granting leave. Importance to the Parties and the Public in General [21] The Association claims that it will be unable to afford to pay the costs of the document disclosure. The Association does not adduce affidavit evidence swearing that it will not be able to proceed with the document disclosure should leave not be granted, but in my opinion that possible consequence may be inferred. Some of the claims in the Association’s underlying action turn on alleged conduct of the APD. Without proper disclosure these claims will be more difficult to pursue. [22] Further, in my opinion, this issue of disclosure of a separate legal entity for which the defendant is vicariously or jointly liable is of some importance to the public in general. This factor weighs in favour of granting leave. The Practical Utility of an Appeal [23] An appeal would resolve the procedural issue of whether the Association can continue with its request for document disclosure from the APD. This could affect the proceedings below, as the matters to be determined at trial will be affected by any evidence acquired through the disclosure. [24] This factor weight in favour of granting leave. Will the Appeal Delay the Progress of the Action Below or Cause Prejudice [25] The Association argues that granting leave would not cause prejudice and would create only minimal delay. [26] The co-respondent, City of Abbotsford, argues that granting leave could delay the start of the proposed trial. The underlying action is scheduled to be heard in a six-week trial beginning on June 29. The appeal may interfere with the trial. In addition to this appeal I am told there is a pending appeal of an earlier order of the Chief Justice granting standing to the Association (2014 BCSC 1817). Conclusion [27] In my opinion, leave should be granted. There is a legal principle to be resolved that is of importance to the parties, the public, and the profession generally, as already explained above. [28] In my opinion, only the possible delay of the underlying trial weighs against granting leave, but this does not outweigh the other factors. I believe that this factor may be ameliorated by ordering that this appeal be expedited. The parties should contact the registrar to arrange an expedited hearing date. The parties are at liberty to use their materials filed on the leave application on the appeal proper, or some combination of the leave materials and supplemental materials. The parties may apply to the Registrar to settle the contents of the appeal books and facta if they are unable to agree. [29] I therefore grant leave to appeal the costs order. I order that the appeal be expedited. “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Regional District Fraser-Fort George v. Norlander, 2015 BCCA 98 Date: 20150128 Docket: CA041780 Between: Regional District Fraser-Fort George Respondent (Plaintiff) And Glen Norlander and Carmen Ottaway Appellants (Defendants) Before: The Honourable Madam Justice Garson (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated April 2, 2014 ( Regional District Fraser-Fort George v. Norlander , Victoria Docket 132936). Oral Reasons for Judgment Counsel for the Appellants: J.H. Schenk Counsel for the Respondent: R.A. Bortolin Place and Date of Hearing: Vancouver, British Columbia January 28, 2015 Place and Date of Judgment: Vancouver, British Columbia January 28, 2015 Summary: The applicant sought leave for directions as to whether leave is required to appeal a statutory injunction pursuant to the Community Charter for breaching a property bylaw. The respondent argued that the order was an interlocutory injunction, and is therefore a limited appeal order requiring leave. Held: leave is not required. The order made by the chambers judge was a permanent injunction and a statutory final order, despite the language used by the chambers judge to the contrary. It was therefore not a limited appeal order. [1] GARSON J.A. :  This is an application for directions as to whether leave to appeal is required. [2] To quote A.L. Sott Financial (Newton) Inc. v. Vancouver City Savings Credit Union , 2000 BCCA 143, this matter comes before me in somewhat of a procedural muddle. The plaintiff, Regional District Fraser-Fort George (“Regional District”), commenced an action against the defendants and sought declaratory and injunctive relief on a notice of application before a Supreme Court judge. [3] The orders sought in the notice of application included a declaration that the appellants’ use of the land, buildings, and structures were being used in contravention of the Regional District’s Bylaw No. 833. The Regional District also sought an order restraining the appellants from continuing the impugned use, namely using two buildings on their property for vacation rentals. [4] The matter came on for hearing and the chambers judge began his reasons with the statement, “The plaintiff seeks a statutory injunction against the defendants as an interlocutory matter in these proceedings.” [5] The order from which the appeal is sought provides as follows: 1.         The Defendants use of the land, buildings and structures on property legally described as Parcel Identifier 008-217-351, Lot 3, District Lot 5676, Cariboo District Plan 24508 (the “Lands”) as vacation home rentals, or for the temporary accommodation of members of the traveling public or tourists, contravenes the provisions of the Regional District of Fraser-Fort George Zoning Bylaw No. 833 (the “Zoning Bylaw”). 2.         The Defendants, their agents, servants, lessees, employees, tenants, and anyone else with notice of this Order are prohibited from using or permitting the use of the Lands as vacation home rentals, or for temporary accommodation of members of the travelling public or tourists, in contravention of the Zoning Bylaw. 3.         The Defendants, their agents, servants, lessees, employees, tenants, contractors and anyone else with notice of this Order are prohibited from marketing or advertising the Lands as vacation home rentals, or for temporary accommodation of members of the travelling public or tourists, in contravention of the Zoning Bylaw. 4.         Costs are in any event of the cause. [6] In seeking directions, the appellants say that leave is not necessary because the matter was decided as a final order. They says that the Supreme Court’s jurisdiction is “spent”, and by that they mean that there has been a declaration and final remedy granted and there is nothing left to go to trial, and therefore, the order made must be a final order. They also argue that the chambers judge’s jurisdiction is derived entirely from the Community Charter, S.B.C. 2003, c. 26, and is not a listed limited appeal order in Rule 2. [7] They also argue that the first order made is clearly not an interlocutory order in that it is a declaration. They argue that an interlocutory injunction pursuant to the Supreme Court Civil Rules would involve the application of the RJR-MacDonald test ( RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311) and that that was not the analysis the chambers judge conducted. The analysis conducted by the chambers judge was the statutory injunctive analysis for which there is no discretion. [8] Finally, he argues that as the appeal from the declaratory order is an appeal as of right, the orders are sufficiently linked such that leave ought not to be required for the injunctive part of the order, and therefore the appeal of the entire order ought to go as of right. [9] The Regional District opposes this application and says that leave is required from the entire order. It points to the opening words of the judge’s reasons, in which the judge says that he is hearing the matter on an interlocutory basis. Counsel advised me that he had advised the chambers judge in his submissions that the matter was an interlocutory application. On further questioning by this Court, it is not clear to me whether the Regional District conceded that all the relief that had been sought has been granted and that there is nothing further for the Supreme Court to do if the matter were to be returned to it. [10] In my view, leave is not required. In spite of the opening words that the judge pronounced, the order under appeal was not an interim order, it was a statutory final order. As well, the declaratory and allegedly interlocutory orders are linked, and so I would find that leave is not required on that basis also. [11] I therefore order that leave is not required. The entire appeal may proceed as of right. [discussion with counsel] [12] By consent, there will be an order that appellant’s appeal books and factum will be filed by February 4, 2015. “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Flanders, 2015 BCCA 33 Date: 20150129 Docket: CA041435 Between: Regina Appellant And Kyriakos Dimitriouse Flanders Respondent Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Harris On appeal from:  An order of the Supreme Court of British Columbia, dated November 28, 2013 ( R. v. Flanders , 2013 BCSC 2397, Vancouver Docket 26347). Counsel for the Appellant: W.P. Riley, Q.C. Counsel for the Respondent: K. Merrigan Place and Date of Hearing: Vancouver, British Columbia November 6, 2014 Place and Date of Judgment: Vancouver, British Columbia January 29, 2015 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Chief Justice Bauman The Honourable Madam Justice Kirkpatrick Summary: Mr. Flanders’s $2,000 cash bail deposit was marked for estreatment after he violated the conditions of his release. Following estreatment proceedings, the presiding Provincial Court judge declined to order forfeiture of the deposit and instead directed the monies to Mr. Flanders’s counsel, who had taken assignment of the funds, in order to properly pay and recognize him for the work he had done on the case. The judge stated that he “might be flying in the face of authority” by doing so. The Crown brought an application in the nature of certiorari to quash the judge’s decision, which was dismissed in the court below on the basis that the judge had not acted outside his jurisdiction or breached the principles of natural justice. Held: Appeal dismissed. Though it was incorrect for the judge to consider the remuneration of counsel, it cannot be concluded that he failed or refused to consider the relevant factors. He therefore applied the wrong test and erred in law, not jurisdictionally. For the same reason, it cannot be concluded that the judge breached the principles of natural justice. Reasons for Judgment of the Honourable Mr. Justice Harris: Introduction [1] This is an appeal by the Crown from the dismissal of an application in the nature of certiorari to quash an order of a Provincial Court judge. The Provincial Court judge declined to order forfeiture of a cash deposit of $2,000 marked for estreatment in proceedings against Mr. Flanders and directed the return of those bail monies to his counsel, who had taken an assignment of the funds. The chambers judge dismissed the application because he concluded that any error made by the Provincial Court judge was an error of law within jurisdiction and that he had not acted outside his statutory jurisdiction in making the order. [2] The practical effect of the Provincial Court order was that Mr. Flanders’s counsel received the funds to pay his fees. It is clear that the Provincial Court judge made the order to ensure that counsel was properly paid and recognized for the work he had done in dealing with the underlying proceedings effectively. In so doing, the judge commented that he recognized that his order “might be flying in the face of authority”. [3] On this appeal, the Crown contends that the chambers judge erred: (a) in failing to recognize that basing a decision solely on an improper and legally irrelevant factor constitutes a jurisdictional error reviewable by way of certiorari ; (b) in failing to recognize that deliberately refusing to consider the applicable principles governing the exercise of discretion, in the context of a decision in respect of which there is no appeal or other statutory avenue of redress, is a breach of the principles of natural justice reviewable by way of certiorari . (c) in failing to recognize that remuneration of counsel who has taken an assignment of bail money is a legally irrelevant factor in estreatment proceedings under s. 771 of the Criminal Code . The Chambers Judgment [4] The chambers judge recognized that the scope of certiorari is different from the scope of review on an appeal. In a certiorari application, the superior court can only intervene where the inferior tribunal “has acted in excess of its assigned statutory jurisdiction or in breach of the principles of natural justice”: at para. 9, citing R. v. Earhart , [2007] B.C.J. No. 3120 (B.C.C.A.) at para. 23. A mere error of law falling short of jurisdictional error is not sufficient to quash an order. [5] As the chambers judge saw the matter, the critical issue was whether the judge “in apparently focusing exclusively on the funding of counsel … to deny forfeiture, proceeded on an entirely erroneous basis in law, thus acting in excess of or without jurisdiction”: at para. 24. [6] The chambers judge identified conflicting authority in Alberta on whether payment of counsel or the effectiveness of their representation of the accused is a factor that may be considered in estreatment proceedings. In R. v. Webster (1994), 94 C.C.C. (3d) 562 (A.B.Q.B.) at 563 and 565, Veit J. held that funding of counsel should not be taken into account in determining whether to forfeit bail monies. A contrary view was taken in R. v. Aw , 2008 ABQB 261 at para. 22, where Sanderman J. declined to order forfeiture of the entire bail deposit and ordered a portion of it returned to counsel as an assignee, citing among other considerations the fact that counsel had acted professionally in responding to, and arguing against, estreatment. [7] The chambers judge then turned to the helpful and thorough analysis of the principles governing the exercise of a judge’s discretion to order estreatment of bail funds in United States v. Le , 2010 BCSC 1653 , in which Maisonville J. recognized that “[t]he overarching purpose of a forfeiture order is to maintain the integrity of the bail system” because “[i]t is the threat of forfeiture that upholds the effectiveness of bail”: Le at paras. 14 and 15. The decision to order forfeiture of all, some, or none of the deposit is within the discretion of the presiding judge under s. 771 of the Criminal Code . As Maisonville J. observed, the discretion vested in the judge is “broad”: Le at para. 18. [8] The chambers judge then observed: [28] Neither Le nor the cases cited in it involved a situation in which counsel had been assigned bail deposits in payment or partial payment for services to be rendered and thus do not deal squarely with the issue of whether counsel’s efforts on behalf of the accused and the implications for the legal aid system constitute factors to be considered in deciding on forfeiture. ... [36]      In my view, the reasoning in Dubois leads to an opposite result in the present case.  While a cogent argument can be made that the presiding judge committed an error of law by failing to consider the factors referred to in various decisions such as Webster , Horvath , Le , and Balan , I am unable to conclude that his error was jurisdictional in nature.  Section 771(2) provides for the exercise of broad discretion, unlike s. 475(1) which mandates the exercise of specific and limited authority.  Within the broad discretion conferred by s. 771(2), there are certain factors which the authorities have identified as important considerations in its exercise, but the failure to consider or refer to those factors cannot be equated to anything more than applying the wrong test for sufficiency in the context of a preliminary hearing judge’s exercise of authority under s. 475(1). [37]      In other words, unless the judge in the present case did something quite different from the function assigned to him under s. 771(2), “in his discretion to grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he considers proper”, it cannot be said that he acted without or in excess of his jurisdiction. [9] The chambers judge relied on Dubois v. The Queen , [1986] 1 S.C.R. 366, as the decisive authority in distinguishing between an error of law within jurisdiction and making an order beyond jurisdiction. In that case, a Provincial Court judge had refused to commit an accused for trial at a preliminary hearing on the ground that he was not convinced beyond a reasonable doubt on the issue of identification. The Supreme Court of Canada upheld the decision of the Manitoba Court of Appeal quashing the Provincial Court decision. The chambers judge referred to Dubois at 380 in which this is said: In applying the wrong test for sufficiency, a preliminary inquiry judge does not commit jurisdictional error. In deciding an issue reserved to another forum, however, he does. That is the nature of the error in this appeal. Norton Prov. Ct. J.’s adoption of the reasonable doubt test indicates that he was not, as s. 475 requires, directing his mind to the question whether the evidence was sufficient to warrant committing the accused to stand trial. Rather, in effect, he arrogated to himself the decision of the issue reserved by Parliament to another forum, the trial court. … That jurisdiction was exceeded when, instead of performing the function assigned to him, he did something quite different. The error in this proceeding was not that the Provincial Court Judge merely misstated the test (which would, as was concluded in Hubbard , [[1976] 3 W.W.R. 152 (B.C.S.C.)], be an error of law within jurisdiction) but that he dismissed the information. [10] Relying on this reasoning, the chambers judge concluded: [38]      … [I]n Dubois , the Court makes it clear that the Provincial Court judge’s failure to follow the Shephard test was an error within his jurisdiction.  It was by purporting to dismiss the charge against the accused that the judge fell into jurisdictional error because that was not something that was open for him to do under his statutory authority.  Similarly, in the case at bar, the trial judge’s failure to consider the factors established in other decisions from other jurisdictions may constitute an error of law but it could not be said that he acted outside of his statutory authority or jurisdiction in making the order which he did. On Appeal [11] As I see the matter, the first and third grounds of appeal raised by the Crown are related because the third ground, the irrelevance of counsel remuneration, is a necessary aspect of the first, that making a decision solely on improper or irrelevant considerations is a jurisdictional error. I will deal with these grounds before turning to the second ground, procedural fairness. [12] It is helpful to begin by outlining the statutory provisions governing estreatment, which are set out in Part XXV of the Criminal Code , entitled “Effect and Enforcement of Recognizances”. These are conveniently summarized by the Crown in its factum, from which I quote: 16.       Section 770 sets out the procedure for issuance of a “Certificate of Default”.  Section 770(1) provides that a court, justice, or provincial court judge who is satisfied that a person bound by a recognizance fails to comply with the recognizance may issue a certificate in Form 33 setting out (a) the nature of the default, (b) the reason for the default, (c) whether “the ends of justice have been defeated or delayed by reason of the default”, and (d) the names and addresses of the principals and sureties.  Section 770(3) states that the certificate is “evidence of the default to which it relates”.  Section 770(4) provides that money deposited as security for a defaulted recognizance shall be sent to the clerk of the court to be dealt with in accordance with the law. 17.       The ends of justice may be “defeated” where the accused absconds or fails to surrender for trial, or where the accused breaches the terms of release in a manner which undermines public confidence in the bail system or results in further criminal activity 18.       The ends of justice may be “delayed” where the accused fails to appear in court when required to do so and the criminal proceedings are hindered or postponed as a result. 19.       Section 771 sets out the procedure for a forfeiture hearing in connection with a default of recognizance.  As Charbonneau J. explained in Canada (Attorney General) v. [ Nayally ] at para. 27, “[a] forfeiture hearing is an opportunity for the person who was bound by the recognizance and the sureties to be relieved from forfeiture”.  See also R. v. Howell , 2008 NLTD 70, 236 C.C.C. (3d) 373 at para.12. 20.       Section 771(1) provides that upon receipt of a certificate of default under s.770, the clerk is required to schedule a forfeiture hearing on request of the parties. 21.       Section 771(2) sets out the statutory test to be applied by the presiding judge, namely that “the judge may, after giving the parties an opportunity to be heard, in his discretion grant or refuse the application and may make any order with respect to the forfeiture of the recognizance that he considers proper”.  Section 771(4) states that where a deposit has been made, the amount of the deposit shall be transferred “to the person who is by law entitled to receive it”. [13] In the case before us, Mr. Flanders was arrested and charged with possession of cocaine for the purpose of trafficking. He was then released on a recognizance in the amount of $2,000, with a $2,000 cash deposit. Before he was sentenced on the trafficking charge, Mr. Flanders was arrested for possession of a loaded firearm, contrary to the conditions of his release, and charged with one or more offences. These charges led to a mandatory minimum three‑year jail term. Later, he pleaded guilty to the trafficking charge and was sentenced to a further two‑year jail term, consecutive to the firearms sentence. [14] The judge who sentenced Mr. Flanders for trafficking issued a Certificate of Default under Form 33 of the Criminal Code certifying that Mr. Flanders did not comply with the conditions of his recognizance and that by reason thereof the ends of justice had been defeated. The certificate identified the nature of the default, the name and address of the principal as Mr. Flanders, and the name and address of Mr. Merrigan, his defence counsel, as a “bail assignee”. [15] The Crown applied for forfeiture of the $2,000 cash deposit in connection with the default. Mr. Flanders appeared by video from jail. Mr. Merrigan attended personally. As summarized in the Crown factum and as reflected in the reasons of the chambers judge: (a)        Mr. [Flanders] confirmed that Mr. [Merrigan] had taken an assignment of the $2,000 cash deposit “as payment for services” and that Mr. Flanders had no further interest in the funds. (b)        The Crown briefly outlined its case for forfeiture of the entire cash deposit, given the nature of the default.  The Crown submitted (as per the Certificate of Default) that the ends of justice had been defeated by Mr. Flanders’ breach of the recognizance. The Crown also questioned the status or standing of Mr. Merrigan to appear on his own behalf at the estreatment hearing. (c)        Mr. Merrigan made submissions (presumably on behalf of himself and Mr. Flanders). He explained that after Mr. Flanders was arrested on the gun possession charge, he entered a guilty plea to that offence and received a three year sentence.  Mr. Flanders then re-elected trial in Provincial Court on the drug charge, and entered a guilty plea to that offence before Rideout P.C.J., who imposed a two‑year consecutive jail term.  Mr. Merrigan submitted that as a result of these events, the charges against Mr. Flanders had been resolved more quickly than they otherwise might have.  As Mr. Merrigan put it, “everything was dealt with quickly and properly.” (d)        Rideout P.C.J. expressed the view that the matter had been dealt with “effectively”, and noted that “it’s important that counsel are recognized for their efforts in that regard”.  The judge accepted that as a result of Mr. Merrigan’s efforts, the charges were dealt with more quickly than otherwise might have been the case. (e)        Crown counsel pointed out that this was a case where – according to the Certificate of Default – the interests of justice had been “defeated”, rather than a case where the interests of justice had been “delayed”.  The Crown asked for an opportunity to place the leading cases before the court.  Rideout P.C.J. agreed to receive the Crown’s cases, over Mr. Merrigan’s objection that the Crown should not be allowed to “split” its submissions. (f)         After receiving the cases submitted by Crown counsel, Rideout P.C.J. stated that he “might be flying in the face of authority”, but wished to ensure that counsel are “properly paid and recognized for the work they’ve done”.  The judge stated he was “exercising [his] discretion” by denying the Crown’s application, and directed that the funds be released to Mr. Merrigan. [16] It is common ground that the chambers judge could only intervene if the Provincial Court judge had acted in excess of his assigned statutory jurisdiction or in breach of the principles of natural justice. It is not sufficient for the Provincial Court judge to have committed an error of law within jurisdiction. The Crown submits the Provincial Court judge did commit jurisdictional error. [17] The first jurisdictional error, the Crown contends, was that the judge based his decision solely on a factor that was completely irrelevant to the exercise of his statutory function. In doing so, he “proceeded on an entirely erroneous basis in law” and thus exceeded his jurisdiction. [18] Ultimately, I cannot conclude that the Provincial Court judge made a jurisdictional error even though there is a powerful argument that he erred in law by not giving sufficient weight to t he overarching purpose of the threat of forfeiture, that being the maintenance of the integrity of the bail system. [19] In R. v. Russell , 2001 SCC 53, McLachlin C.J.C., for the Court, described the scope of certiorari as follows: [19]      The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari “runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”: Skogman v. The Queen , [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman , supra , at p. 100 (citing Forsythe v. The Queen , [1980] 2 S.C.R. 268). [20] In Dubois , at 377, Estey J. summarized the law as follows: In summary, it is clear enough that no jurisdictional error is committed where the justice incorrectly rules on the admissibility of evidence or incorrectly decides that a particular question or line of questioning cannot be pursued at the preliminary inquiry. This is, of course, subject to the important condition that rulings in the course of a preliminary hearing on evidentiary questions as to the extent of limitation on the basic right to cross ‑ examine or to call witnesses, may develop into a violation of natural justice and fall within the condemnation of Forsythe , supra , and hence be subject to judicial review. See also Re Martin, Simard and Desjardins and The Queen , [(1977), 20 O.R. (2d) 455 (C.A.)], at p. 488. Jurisdictional error is committed where “mandatory provisions” of the Criminal Code are not followed, and in the context of s. 475 [now s. 548(1)], this means at least that there must be some basis in the evidence proffered for the justice’s decision to commit. There is no jurisdiction to act “arbitrarily”. However, where there is some evidence, it is clearly within the justice’s jurisdiction to come to a decision as to whether that evidence is of sufficient weight to commit. It follows that if a judge refuses or neglects to follow a mandatory statutory provision, the judge will commit a “jurisdictional error” and therefore be amenable to certiorari . By contrast, if a judge commits an error of judgment in following a statutory provision, the judge will have made a “mere error of law” and will not be amenable to prerogative relief. [21] This is not a case in which a proceeding is started without jurisdiction. The statutory discretion afforded to the judge is broad. The statute does not stipulate specific criteria to be applied by the judge or lay out a specific test to be applied beyond providing in s. 771(2) that “the judge may, after giving the parties an opportunity to be heard, in his discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he considers proper.” [22] It is, of course, evident that even though the judge’s discretion is broad, it is properly to be exercised in a manner that is consistent with the purposes of the statutory scheme . That purpose is well-described by Maisonville J., for example, in Le and the cases referred to by her. I agree that the purpose of forfeiture is to maintain the integrity of the bail system because the threat of forfeiture provides a compelling incentive for the accused (and any sureties) to fulfil their obligations under the recognizance. The nature of this incentive was captured in Attorney General of Canada v. Nayally et al. , 2012 NWTSC 56, by Charbonneau J. who said at para. 31, “It must be made clear to anyone offering a cash deposit in support of an application for release that there will be consequences in the event that the conditions are not complied with, beyond the possibility of facing a breach charge.” Accordingly, refusing to forfeit funds to reward counsel’s efforts is far from obviously consistent with that purpose. It follows that in exercising the discretion under s. 771(2), a judge should have regard to the “preeminent importance” of preserving the “moral pressure” of the recognizance in ensuring that the accused complies with the terms of release and appears in court when required to do so: Le at paras. 15‑16, citing Canada (Attorney General) v. Horvath , 2009 ONCA 732 at paras. 40‑44; Nayally at paras. 25‑26, 31. Failing to weigh properly that objective would permit an accused or surety to avoid the financial risk inherent in posting security for bail, thereby undermining the “pull of bail” as a means of ensuring the accused’s good behaviour on judicial interim release: see Le at paras. 18 and 29; Horvath at para. 27; Nayally at para. 27. [23] Saying all of this only goes so far as to confirm the cogency of the argument that rewarding counsel’s efforts is not a relevant factor in the exercise of discretion and relying on them is an error of law. It does not, standing alone, support more than a conclusion that the judge applied the wrong test within his jurisdiction. [24] The question is whether the judge “proceeded on an entirely erroneous basis in law” in the sense described by Estey J. in Dubois at 378‑79, namely, that in discharging his statutory role, the judge acted in violation of his statutory jurisdiction by exceeding it or by declining to exercise it: see Dubois at 370‑71, or that instead of performing the function assigned to him, he did something quite different. [25] The Crown argues that the judge acted outside his jurisdiction by refusing to consider any relevant factors and taking into account only an irrelevant consideration (remunerating the efforts of counsel). He thereby proceeded on a wholly erroneous basis and failed to perform his statutory function. [26] I acknowledge that, in this instance, the certificate of default stated that the ends of justice were defeated, rather than delayed. I also accept that counsel, as an assignee of the bail monies, does not stand in a better position with respect to forfeiture than the accused. Indeed, counsel has no independent standing on a forfeiture application and as a result has no independent interest to be taken into consideration: Purves v. Canada (Attorney General) (1990), 54 C.C.C. (3d) 355 (B.C.C.A.) . [27] Nonetheless, I am not persuaded that the judge committed a jurisdictional error. With respect, it seems to me that the judge merely committed an error of law. I start from the proposition that the judge is presumed to know the law. I assume, therefore, that he would have appreciated the importance of the need to maintain the integrity of the bail system. Submissions on this point were made to him. I see no reason to assume that he did not take them into account. Further, there was some non‑binding authority before him suggesting that counsel’s efforts might be relevant to forfeiture and no binding authority decisively rejecting that proposition on similar facts to those he was considering. The judge acknowledged that he “might be flying in the face of authority” but did not say that he was refusing to follow binding authority. Rather, I interpret the comment as recognizing that the weight of authority was likely against his intended exercise of discretion. This suggests that he was alive to the arguments about maintaining the integrity of the bail system. His comment goes no further than acknowledging that he might be exercising his discretion by applying the wrong test, but not that he was failing or refusing to follow a mandatory statutory provision. [28] In short, I agree with the chambers judge’s observation that the Provincial Court judge applied the wrong test. He may well have relied on an irrelevant principle, but I am not persuaded that he can be said to have refused to consider relevant principles or simply ignored them and thereby committed jurisdictional error in his exercise of discretion. I do not think it can be said that instead of performing the function assigned to him, he did something quite different. [29] The second jurisdictional error, the Crown contends, is that the judge breached the principles of natural justice by expressly declining to consider those principles that ought to have governed the exercise of his discretion. He did so in proceedings where there is an absence of a right of appeal and the offender’s breach had defeated the ends of justice. In those circumstances, so the Crown argues, natural justice required, at a minimum, that the judge consider both the statutory test for estreatment and the legal principles guiding the exercise of his statutory discretion. Despite the judge’s broad discretion, he was required to exercise it judicially, and failed to do so when he expressed an intention to disregard the principles to be taken into account in exercising that discretion, and proceeded to decide the matter on the basis of a legally extraneous consideration. [30] In short, the Crown acknowledges that a failure to consider a relevant principle or the consideration of an irrelevant principle may be an error of law, but argues that the refusal to consider the applicable principles is both a failure to act judicially and a breach of natural justice. To hold otherwise, it argues, would mean that a Provincial Court judge responsible for determining whether estreatment is in the interests of justice within the meaning of s. 771 of the Criminal Code could deliberately disregard the relevant principles and proceed to make a final ruling based solely on legally irrelevant or improper considerations, under a process that is not subject to appeal and provides no other statutory avenue of redress. [31] To deal with this latter point first, I do not agree that the determination of whether a ruling involves jurisdictional error turns in any way on the lack of a right of appeal or other avenues of redress. The existence of jurisdictional error has to be determined by reference to the inherent characteristics of the ruling. The concept of jurisdictional error cannot be expanded in order to provide review because there is not otherwise a right of appeal. Further, the lack of an appeal right under the Criminal Code reflects a legislative choice. Expanding the notion of jurisdictional error in order to facilitate review would undermine the legislative scheme. [32] In any event, I do not think that the judge can be said to have breached the principles of natural justice. He heard from the parties, and was provided with and obviously reviewed relevant authorities. At most, one can say that he accepted that he was exercising his discretion in a manner that was contrary to the balance of the authorities. I have already expressed the view that the judge is presumed to know the law. I would not assume that he refused to consider the authorities that he had been given. The record falls far short of demonstrating any such thing. With respect, it seems to me that the issues raised by the Crown give rise to an issue about the merits of his decision, rather than a concern about natural justice. [33] I would not accede to the various grounds of appeal advanced by the Crown and would dismiss the appeal. “The Honourable Mr. Justice Harris” I agree: “The Honourable Chief Justice Bauman” I agree: “The Honourable Madam Justice Kirkpatrick”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Kwok, 2015 BCCA 34 Date: 20150129 Docket: CA040800; CA040722; CA041137 Docket: CA040800 Between: Regina Respondent And Yiu Tim Kwok Appellant - and - Docket: CA040722 Between: Regina Respondent And Hin Cheung Lau Appellant - and - Docket: CA041137 Between: Regina Respondent And Wing Kee Ng Appellant Corrected Judgment: The text of the judgment was corrected at paragraphs 89 and 90 where changes were made on April 24, 2018. Before: The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Frankel The Honourable Madam Justice Bennett On appeal from: An order of the Provincial Court of British Columbia, dated March 14, 2013 ( R. v. Kwok, Lau and Ng , 2013 BCPC 0053, Richmond Docket 55856-3-C). Counsel for the Appellant, Yiu Tim Kwok: L.D. Myers, Q.C. F. Arbabi Counsel for the Appellant, Hin Cheung Lau: J.B. Jackson, Q.C. S. Jackson Counsel for the Appellant, Wing Kee Ng: H. Patey Z. Myers Counsel for the Respondent: R.A. Prior Place and Date of Hearing: Vancouver, British Columbia October 1, 2014 Place and Date of Judgment: Vancouver, British Columbia January 29, 2015 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Frankel Summary: Mr. Kwok, Mr. Ng, and Mr. Lau were found guilty of drug offences involving over 1,000 kg of ketamine. Mr. Kwok and Mr. Ng were sentenced to a total of 16 years for importation and possession for the purposes of trafficking. Mr. Lau was sentenced to 10 years for possession for the purposes of trafficking. On appeal, the accused argued that the sentencing judge overstated the harmfulness of ketamine, and erroneously found the group to be a criminal organization as an aggravating factor under s. 718.2(a)(iv) of the Criminal Code. The accused also raised the issue of credit for pre-trial custody, as well as other individual issues. Held: Appeal allowed. The sentencing judge erred in finding the group to be a criminal organization as the group did not have a level of structure or continuity that would pose an enhanced threat to society. There was sufficient evidence to establish the use of ketamine as a harmful drug. The sentencing judge’s legal error led her to impose a sentence in a range similar to cocaine-related offences. Mr. Kwok and Mr. Ng’s sentences were reduced to a total of 12 years, and Mr. Lau’s sentence was reduced to 6 years. Credit for pre-trial custody at 1:1.5 granted. Reasons for Judgment of the Honourable Madam Justice Bennett: [1] Mr. Kwok, Mr. Ng and Mr. Lau were convicted, after a 21-day trial, of possession for the purpose of trafficking ketamine, a Schedule I drug under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 [ CDSA ]. Mr. Kwok and Mr. Ng were also convicted of importing the ketamine into Canada (reasons indexed at 2012 BCPC 514). Mr. Kwok and Mr. Ng were sentenced to a total of 16 years each, 12 years for possession for the purpose of trafficking and 16 years concurrent for importation (reasons indexed at 2013 BCPC 53). Mr. Kwok was given credit for pre-trial custody on a 1:1 basis. Mr. Ng was given credit for pre-trial custody on a 1:1 basis from the time of his arrest until June 23, 2012. On June 23, 2012, Mr. Ng suffered a serious fall while being transported by the sheriffs, at which time he was in leg irons and handcuffs. The injuries he suffered as a result of the fall made life in prison more difficult and he was given enhanced credit from June 23, 2012 to the date of sentencing on a 1.5:1 basis in compensation. [2] Mr. Lau was sentenced to 10 years, less time served in custody on a 1:1 basis. Ancillary orders prohibiting firearms and providing DNA samples were made against each appellant. All three seek leave to appeal their sentences, except the ancillary orders. [3] There are several issues that are common to each of the three appellants: i. that the sentencing judge erred in assessing the nature of ketamine, in terms of whether there was evidence that it was a “date rape drug”, and where it stood in the hierarchy of controlled drugs; ii. that the sentencing judge erred in concluding that the appellants were involved in a “criminal organization” and treating that conclusion as an aggravating factor in sentencing; iii. that the sentences were demonstrably unfit; iv. that the sentencing judge erred in failing to grant 1:1.5 credit for pre-trial custody in light of R. v. Summers , 2014 SCC 26; and v. that the sentencing judge erred in finding that there were no mitigating factors. [4] Individually, Mr. Kwok argues that the sentencing judge erred in finding that he lacked rehabilitative efforts, by taking into account a robbery conviction at age 15, and by failing to give any mitigation for his age and medical problems. [5] Mr. Ng argues that the sentencing judge erred in finding that there was no expression of remorse on his part, and by failing to find that he was lower in the hierarchy than Mr. Kwok. [6] Mr. Lau submits that the sentencing judge erred in failing to give effect to the lesser role he had. He argues that he was hired for a fee as opposed to sharing in profit from the importation, or in other words, he was “hired help”. Mr. Lau also argues that the sentencing judge erred in failing to take into account that there was no evidence of his involvement in the importation. Background [7] This case involved over 1,000 kilograms of ketamine imported into Canada on a marine container from Hong Kong. The trial initially commenced with five people: the three appellants plus Mr. Chan and Mr. Lai. Mr. Chan suffered a stroke while in custody, and was hospitalized at the time of trial. The Crown has stayed the charges against him. The trial judge severed Mr. Lai from the information and the Crown is proceeding against him in separate proceedings. [8] The ketamine was hidden in vacuum-sealed packages amongst a shipment of coffee mugs that had been purchased in India, sent to Hong Kong and then shipped to Canada. The Canadian Border Services Agency became suspicious of Mr. Kwok and Mr. Chan when they entered Canada. Mr. Kwok and Mr. Chan had documents relating to the shipment of coffee mugs in their possession. As a result, the shipment was intercepted, the drugs were found and sugar was substituted for the ketamine. A controlled delivery was performed, and the shipment of coffee mugs was delivered. All five of the suspects participated in various degrees with the delivery. Mr. Ng’s fingerprint was found on the packaged ketamine, which meant it had to have been placed there before it left Hong Kong. [9] A timeline and summary of events is useful as the role of each appellant is in issue on appeal. [10] August 7, 2010: Mr. Kwok entered India. [11] August 23, 2010: the coffee mugs were purchased from Unique Potteries in India. [12] September 5, 2010: Mr. Ng entered India. [13] September 24, 2010: Mr. Chan entered India. [14] September 2010: Mr. Bruce Lau (not the appellant), who worked for VTG Global Transportation (“VTG”), a company that specializes in marine shipments and freight forwarding, received a call from a “ Mr. Wong ” who inquired about procedures for shipping goods into Canada. Bruce Lau advised “ Mr. Wong ” (who was actually Mr. Chan) what was required and continued communicating with “ Mr. Wong ” regarding a possible shipment. [15] October 19, 2010: Mr. Chan and Mr. Kwok left India. [16] October 2010: Mr. Ng left India. [17] December 1, 2010: Mr. Chan and Mr. Kwok flew from Hong Kong to Canada together, sitting next to each other. They were both sent for secondary examination by the Canada Border Services Agency (“CBSA”). Mr. Kwok had receipts for an impulse sealer, a receipt for a cash advance to purchase a vacuum packing machine and a strapping machine, a cash invoice for the purchase of a scale from a Mumbai company, as well as a packing list and invoice dated August 23, 2010 for 402 boxes of coffee mugs from Unique Potteries in India. [18] Mr. Chan possessed documents regarding a marine container bringing goods into Canada. The documents included an invoice from Unique Potteries, and Maersk Line documentation from Mumbai dated October 27, 2010 relating to a shipping container of 402 boxes of coffee mugs from Unique Potteries to Hong Kong. Mr. Chan gave the CBSA Andy Lau’s name and telephone number as a contact person in Vancouver. The CBSA agent called the number, and told Mr. Lau to come to the airport. A man identifying himself as Mr. Lau appeared, but provided identification in the name of Joe Lai (both Lau and Lai are accused). [19] A CBSA and police investigation began, and the five suspects were placed under surveillance. [20] Around December 3, 2010: Bruce Lau received an Arrival Notice by fax about a shipment about to enter Canada by sea. He then received a call from “ Mr. Wong ” (Mr. Chan) advising him that the shipment was his. “ Mr. Wong ” and Mr. Kwok went to the VTG office and paid two invoices for container delivery and fees in cash, in an approximate amount of $700.00. Also around this time, “ Mr. Wong ” inspected and leased a warehouse in Richmond on Viking Way (“Viking Way warehouse”). Mr. Kwok was present when the lease was signed. They paid $5,200 cash, which included one month’s rent and the security deposit. [21] December 6, 2010: the five suspects met at a restaurant. Mr. Chan, Mr. Ng and Mr. Kwok walked to the restaurant from the La Quinta Inn where all three were staying, and Mr. Lau and Mr. Lai were seen driving in the same vehicle to the restaurant. [22] December 7, 2010: the shipping container arrived at the Port of Vancouver, Delta Port Terminal from Hong Kong. The container was transported to the CBSA container inspection facility, searched, and found to contain 1,003.9 kilograms of ketamine. The ketamine was seized and replaced with sugar. Motion detectors were placed in the boxes that had contained ketamine, and the shipping container was cleared by Canada Customs and CBSA for a “controlled delivery”. [23] December 8, 2010: after the shipping container cleared customs, VTG issued an invoice for customs duty and customs GST. Mr. Chan, Mr. Kwok and Mr. Ng were seen walking into a restaurant. [24] December 9, 2010: Mr. Kwok and Mr. Chan went to the VTG office and paid the final invoice in cash, in the amount of $2,763.95. Bruce Lau arranged for delivery and unloading of the shipment to the Viking Way warehouse. [25] On that same day, Mr. Lau, Mr. Lai and Mr. Ng were seen at the food court in Oakridge Mall. [26] December 10, 2010: the container was moved from the CBSA inspection facility in Burnaby to Delta Port where it was picked up and delivered to the Viking Way warehouse. Mr. Chan and Mr. Kwok were at the warehouse awaiting the delivery, and they made numerous calls to Mr. Ng. Mr. Lai and Mr. Lau drove around the warehouse but did not leave the car. After the delivery was completed, Mr. Kwok locked the warehouse and left with Mr. Chan in a taxi. [27] December 11, 2010: Mr. Chan, Mr. Kwok and Mr. Ng went to the Viking Way warehouse, and activated the motion detector placed by the police in one of the boxes. Mr. Lau rented a cargo van, using his own name and credit card. [28] The boxes were transported in the cargo van from the Viking Way warehouse to another warehouse in Richmond, on Rowan Place (“Rowan Place warehouse”). Mr. Lau drove the cargo van and Mr. Kwok supervised the loading and unloading between the warehouses. The cargo van made several trips. [29] Mr. Lai arrived at the Viking Way warehouse in a Mercedes automobile and went inside. Mr. Lai then drove Mr. Chan and Mr. Ng away in the Mercedes. Mr. Lai, Mr. Chan and Mr. Ng were later seen at the Rowan Place warehouse. [30] That afternoon, for approximately two hours, Mr. Kwok, Mr. Ng, Mr. Lau and Mr. Chan remained inside the Rowan Place warehouse. During this time, Mr. Lai was shopping at various stores, including London Drugs. After several stops, Mr. Lai returned to the warehouse and picked up Mr. Lau, Mr. Chan, Mr. Kwok and Mr. Ng and they went to a restaurant. It was apparent that by this time they had found the substitution of sugar. [31] They left the restaurant and returned to the Rowan Place warehouse and loaded the boxes from the warehouse back into the van. Mr. Lau and Mr. Kwok drove the cargo van to the Viking Way warehouse and unloaded the boxes back into the Viking Way warehouse. This occurred one more time. Mr. Lai drove Mr. Chan and Mr. Ng away from the Rowan Place warehouse. They were followed by police and arrested in Mr. Lai’s car. Mr. Kwok and Mr. Lau were simultaneously arrested at the Viking Way warehouse. [32] In the shopping bag in Mr. Lai’s car were packing tape, three box cutters, scissors, multiple packages of latex gloves, and two weigh scales, consistent with an intention to package the drugs. At the time of arrest, Mr. Kwok had a key that opened the Viking Way warehouse. [33] The Viking Way warehouse contained the boxes that had contained ketamine, which had been re-strapped with brighter strapping. Some boxes were opened and had been inspected. At the Rowan Place warehouse, the police found discarded Styrofoam and strapping material, a pill press machine, multiple plastic bags, scales, a coffee grinder and a quantity of cellulose (a cutting or binding agent for drugs). The police also found MDMA (N-methyl-3,4-methylenedioxy-amphetamine, also known as ecstasy), methamphetamine and ephedrine, which are all drugs known to be used to cut with ketamine. The Nature of Ketamine [34] At the trial and sentencing hearing, two experts testified on the use and abuse of ketamine. In addition, the Canada Gazette setting out the regulation amendment that moved ketamine from the Food and Drug Regulation s, C.R.C., c. 870, to the CDSA was filed as an exhibit ( Food and Drugs Act , Regulations Amending the Food and Drug Regulations (Ketamine) Canada Gazette Part II, Volume 139, No. 19). This document outlined the uses and abuses of the drug. The drug is legally used as a non-barbiturate anaesthetic in humans and animals, and in Canada, primarily animals. It states: Ketamine is commonly referred to as “special k”, “kit kat”, and “cat valium” on the streets, and has become popular as a “party or club drug” due to its dissociative effects; it creates the illusion of an “out of body experience”. It is also used as a “date rape” drug. Ketamine seizures by police have been increasing in recent years. Canada is a signatory to United Nations drug control conventions, and as such has an obligation to meet international requirements. Although ketamine is not currently listed in any of the United Nations drug control conventions, it has been recommended for critical review by the World Health Organization’s Expert Committee on Drug Dependence with a view to determine if it should be added to the Schedules of the Conventions. A number of countries have already elected to impose strict controls over ketamine, including the United States, Australia, Belgium, Italy, France, Greece, Luxembourg, and China. [35] Sergeant Rintoul testified during the trial that this amount of ketamine could produce up to 10,000,000 doses of the drug at $5.00 per dose for a maximum street value of $50 million dollars. Ketamine is used legally in Canada primarily as an analgesic for veterinary use, and for children and the elderly. It is used illegally as a “party” or recreational drug, sometimes in combination with other drugs. He testified that ketamine is the “number-one drug of abuse amongst adolescents in China”. [36] He also gave evidence about the nature of those involved in importing and trafficking this amount of drugs. He testified that an employee would not typically be privy to the entire scope of the operation. An employee would only be informed of their specific role, to protect the entire operation from being compromised in the event that the employee is compromised. Sergeant Rintoul also testified that “trust is paramount”. He said that in cases involving a significant financial investment, those organizing the operation would only involve people they know and trust. [37] Mr. Pon, a toxicologist, testified at the sentencing hearing that ketamine can give its user a euphoric, out-of-body experience. It is often combined with MDMA. Ketamine, while not physiologically addictive, has been known to exacerbate pre-existing mental illness, including schizophrenia, if used for long periods. There are very few deaths linked with ketamine, and usually they have been caused by ketamine used with other drugs. There are a few instances in which people taking the drug have remained in a catatonic state. [38] The Crown, relying on the passage from the Canada Gazette, pointed out in its submissions the use of the drug as a date rape drug. None of the appellants contested this characterization of the drug before the sentencing judge. [39] The Crown also submitted that the appellants were members of a criminal organization, which should be treated as an aggravating factor under s. 718.2(a)(iv) of the Criminal Code , R.S.C. 1985, c. C-46. [40] The appellants all denied that they were involved in a criminal organization, and said the circumstances were more compatible with the concept of a conspiracy. Reasons of the Sentencing Judge [41] The sentencing judge concluded that ketamine was on the hierarchical scale of Schedule I drugs just below heroin and cocaine. She recognized that ketamine caused less harm than heroin and cocaine, but concluded that because of its potential use as a “date-rape” drug, it was potentially very harmful to the date rape victims. [42] The sentencing judge also concluded that long-term effects of ketamine are not known, as it is a relative newcomer to the drug scene in Canada. [43] The sentencing judge seemed to accept the aggravating factors as set out by the Crown: the quantity of drugs, that the three appellants were solely motivated by profit, that none were users of ketamine, that ketamine is used by youth, that none of the accused acknowledged the harm that the drug may cause, that Mr. Kwok and Mr. Ng were involved in months of pre-planning, that all three accused were part of a criminal enterprise, and that Mr. Lau had a previous record. In response to the Crown’s submission that ketamine is not manufactured in Canada, she noted that the Canada Gazette identified seven lawful manufacturers of the drug in Canada. [44] She concluded that there were no mitigating factors. Mr. Ng’s bad health was considered in the enhanced credit for pre-trial custody analysis. [45] The sentencing judge addressed the issue of criminal enterprise as follows: [90]      In my view, the evidence has established that Kwok, Ng and Lau fit squarely within the definition of criminal organization set out in Section 467.1(1) of the Criminal Code . It is not a requirement that it be proven for the purposes of sentencing and s. 467.1(1) and s. [718.2(a)(iv)], that each member of a criminal organization be cognizant of every aspect of that criminal organization’s activities, or that any single member know the full extent of the organization. This aggravating factor applies to these accused. [Emphasis added.] [46] The sentencing judge conducted an extensive review of the sentencing case law submitted to her, comparing each case with the facts of this case. [47] The sentencing judge analyzed the role of each appellant. She found that while Mr. Lau’s position in the “criminal enterprise” hierarchy may have been lower than that of some others, his role was not confined to being a mere hired driver. She found that he knew he was handling a shipment of drugs. She concluded: [111]    Lai picked up Kwok and Ng at the Vancouver International Airport in a green Mazda MPV after they had been allowed to enter Canada. Lau was seen in company with Lai in and around the MPV on several occasions subsequently, and prior to his arrest. On December 8 th , Lau drove the MPV and picked up Lai. The MPV was later seen parked at the Oakridge Mall, and Lai, Lau, and Ng were together at the food court there. On December 10 th , the MPV was parked outside a restaurant on Main Street. Lai, Lau and Wing Ho Chu were sitting together inside the restaurant. Later that afternoon, as the container was being unloaded into the Viking Way warehouse by the labourers provided by VTG with Chan and Kwok present, Lau was driving Lai in the MPV as they watched the unloading. On December 11 th , Lau rented a cargo van, using his own credit card. He drove back and forth that day between the Viking Way warehouse and the Rowan Place warehouse, as he and Kwok transferred the boxes from one warehouse to the other. Lau was inside the Rowan Place warehouse while Lai was out purchasing scales, packing tape, packages of latex gloves, etc., and putting them in the trunk of his Mercedes. Under the circumstances of this case, the only rational inference to be drawn is that these items were to be used in re-packaging the Ketamine for distribution. Lau, Ng, Chan and Kwok had been inside the Rowan Place warehouse with the boxes for about two hours before they were picked up by Lai in his Mercedes and taken to a restaurant for a group meeting. Lau was there with the group for about an hour before they returned to the Rowan Place warehouse. Lau made a couple of trips in the van, removing the boxes from the Rowan Place warehouse and returning them to the Viking Way warehouse with Kwok. He was inside the van and parked outside the Viking Way warehouse at the time of his arrest. Some of the shipment boxes were inside the Viking Way warehouse. The boxes had been separated by the color of the strapping, which differentiated the boxes containing Ketamine and coffee mugs from those containing coffee mugs only. It was Lau and Kwok who had brought the boxes back to the Viking Way warehouse and who must have arranged them in this way. Some of the boxes had been opened and the contents shifted. The Rowan Place warehouse was found to contain considerable discarded Styrofoam, strapping, and packing material. The back room contained a pill press, multiple ziplock plastic bags, scales, a coffee grinder and small amounts of various drugs including MDMA, methamphetamine and ephedrine. [112]    Although Lau’s position in the criminal enterprise hierarchy may have been lower than that of some of the others involved, he was clearly a trusted member beyond merely handling and transporting the Ketamine. He remained in the Rowan Place warehouse for hours with the others while the boxes they thought contained the Ketamine must have been opened and the sugar substitute discovered. He was part of the group present at the restaurant immediately afterwards. It is reasonable to infer that a discussion took place there about what to do after the sugar had been found instead of Ketamine, given that the boxes were then immediately moved back to the Viking Way warehouse. This was done by Lau and Kwok. [113]    This criminal enterprise could not have been carried out without someone acting in the role that Lau played over the course of several days. Any criminal hierarchy involves those at the top, those at the bottom, and others in between. Lau’s role was not as significant as that of Kwok and Ng, but he was more than merely hired help at the very lowest level of this group. His being with Lai without Kwok or Ng on several occasions, his being present at what must have been an “insiders” meeting in the Rowan Place warehouse when the sugar substitute was discovered, and then being at the restaurant when the decision was made to hastily return the boxes to the Viking Way warehouse, as well as his activities in moving the boxes from place to place, are all indicative of his being firmly embedded as a mid-level participant. It is also significant that it was Lau’s name and telephone number that Chan gave to the CBSA officers when he was having difficulty gaining entry into Canada after his arrival at YVR. [114]    I find that Lau was a member of a criminal organization, and that this is an additional aggravating factor to be considered at his sentencing. Further, Lau’s previous criminal convictions for production of a scheduled substance, theft of electricity, and importing a scheduled substance, indicate that specific deterrence should be given some significance at his sentencing. Denunciation and deterrence, including specific deterrence in this instance, are the primary considerations when sentencing Lau. The possibility of his rehabilitation must be allowed for. [48] She found the following with respect to Mr. Kwok: [115]    Kwok was in India for the purpose of purchasing the coffee mugs as cover for the importation of the Ketamine into Canada. He was there at the same times as Chan and Ng, and played a key role in putting together the shipment. On his entry into Canada, it was Kwok who was carrying the shipping documents, the coffee mug invoices, packing lists, various emails with innocent third parties facilitating the shipment, the hotel arrangements for himself and Chan, and other records pertaining to this entire criminal enterprise. After his arrival in Canada, he stayed with Chan and Ng in the same hotel room, and was always in either their company or the company of others associated with this criminal enterprise. He was the person who dealt with VTG for customs clearance of the shipment and who paid in cash for services provided. He was a participant in the leasing discussions with the landlord of the Viking Way warehouse. The circumstances about Lau and Kwok’s moving of the boxes between the two warehouses and what was found in the Rowan Place warehouse set out above pertain as equally to Kwok as they do to Lau. [116]    I have not considered Kwok’s untruthful testimony at trial as an aggravating factor, but have considered the factors identified in Bhangal that apply to Kwok at his sentencing and the paramount considerations of deterrence and denunciation. This criminal enterprise involved a high degree of planning, organization and deliberation over a very long period of time. Kwok was a principal in this criminal organization and its plan to import and traffic Ketamine. The evidence from the Rowan Place warehouse and the trunk of the Mercedes indicate that he was also a hands-on participant in the planned distribution of the Ketamine. The only reason he was involved was for profit. The potential for financial gain was massive. Kwok’s conduct while in custody as evidenced by the North Fraser Pre-Trial Centre work evaluation indicates he is a good candidate for rehabilitation, and I take that into account in imposing sentence. [49] She made the following conclusions with respect to Mr. Ng: [117]    Ng was in India at some of the same times as Chan and Kwok. Ng was in physical contact with the packaged Ketamine before it was shipped to Canada. While in Canada, he stayed in the same hotel room with Chan and Kwok, and was seen constantly in their company or in company with Lau and Lai. Ng was at the warehouse when the motion detector hidden in the shipment was activated, and participated in the movement of the boxes between the two warehouses. He was inside the Rowan Place warehouse with the others on December 11 th , and at the group meeting at the restaurant that day. Upon his arrest, he was found to have a piece of paper with “Viking Way 2633” written on it in English. Many of my comments in relation to Kwok about the degree of planning involved in this scheme and the potential profit had it succeeded also apply to Ng. Ng was a principal in this criminal organization and in the plan to import and traffic the Ketamine. [50] The sentencing judge summarized her conclusions at para. 118: In summary: (a) Ketamine falls somewhere below heroin and cocaine, but above opium or doda in the spectrum of Schedule I drugs due to its unique properties as a means to commit criminal offences against unsuspecting ingesters of the drug; (b) The amount of Ketamine in this case was approximately 1,000 kilos. (c) Liquid Ketamine might be legally available in Canada, but powdered Ketamine is not. This case involved powdered Ketamine that would not otherwise have been available in Canada. (d) The target for the Ketamine, had it been trafficked as planned, was young people. (e) The Ketamine was to be pressed into pills, likely combined with other substances including methamphetamines, ecstasy or any of the drugs found in the Rowan Place warehouse, such that users of the pills would not know what they were ingesting. (f) Lau, Kwok and Ng were solely motivated by profit. (g) The value of the Ketamine might have been as much as $50 million. (h) Kwok and Ng were equal principals in the criminal organization and travelled to India from Hong Kong to obtain the means to import the Ketamine into Canada, having engaged in a sophisticated scheme over a period of many months’ planning. They acted far more than as mere couriers bringing the Ketamine into Canada. (i) Lau played a lesser but essential role once the Ketamine was delivered to the warehouse and thereafter. He was Chan’s first contact in Canada. (j) Lau has been convicted previously of designated substance offences. (k) Lau, Kwok and Ng are all mature adults in late middle age, with no addiction issues. (l) None have shown or expressed any remorse or insight into their actions. (m) Lau, Kwok and Ng were part of a criminal organization. (n) Lau’s bail terms since his release have not been restrictive. (o) Kwok and Ng have been in custody since their arrests. (p) None have taken any steps towards rehabilitation although Kwok’s conduct while in custody supports an inference he might be a good candidate for rehabilitation. Circumstances of Each Offender Mr. Kwok [51] Mr. Kwok is now 62 years old. He was born in Hong Kong. He admitted he had a conviction for robbery, which he committed in Hong Kong when he was 15 years old. He is married and his wife and four children live in the Philippines. He also has six grandchildren. He attained a grade 7 education, and has worked as a restaurant waiter most of his life. He has liver and stomach problems and requires a hip replacement. His work evaluation from the remand centre was filed and indicated he was working well in the sewing department. Mr. Ng [52] Mr. Ng is also 62 years old. He was born in China, but has lived for many years in the Philippines. He has a primary school education. His ex-wife and adult children live in the Philippines. He worked as a trader in the Philippines, and moved to Hong Kong in 2000. He has no criminal record. [53] Mr. Ng testified to problems he has had in custody resulting from injuries sustained in a fall from the sheriff’s van while being transported between court and the remand centre. He is in his cell more than 16 hours a day. He has pain, he cannot sleep and has difficulty walking. He has diabetes, he had a stroke in 2008 and he has high blood pressure. He has lost the vision in one eye due to diabetes, and has had four surgeries. [54] He expressed remorse and shame. He said he has not contacted his children because he is ashamed. His counsel said that he was remorseful because he was going to spend time in jail. Mr. Lau [55] Mr. Lau is a Canadian citizen born in China. He moved to Canada in 1990. He is now 46 years old, and is married with four children. He works in the construction industry. He has a prior criminal record: in 2000 he was convicted of production of a scheduled substance and sentenced to 8 months in jail, and of theft of electricity and sentenced to 30 days concurrent. In 2001 he was convicted of importing a scheduled substance and sentenced to 18 months to be served conditionally in the community and one year’s probation. He owns his own home with his wife. He spent 11 days in pre-trial custody before being released on judicial interim release. Position of the Parties [56] The Crown’s position is that there is no basis on which to disturb the sentences, except for the additional credit for pre-trial custody, in accordance with the decision in Summers . [57] Mr. Lau submits that his sentence should be reduced to three years. [58] Mr. Ng submits that his sentence should be reduced to eight years less time served in pre-trial custody on a 1.5:1 basis. [59] Mr. Kwok submits that his sentence should be reduced to eight years less 27 months served in pre-trial custody on a 1.5:1 credit, albeit he sought a sentence of eight to ten years at trial. Standard of Review [60] An appellate court is to accord great deference to the sentencing judge. As Lamer C.J.C. said in R. v. C.A.M. , [1996] 1 S.C.R. 500: [90]      Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code . [Emphasis in original.] Analysis [61] I propose to first address two of the common legal errors alleged: the classification of ketamine in terms of its level of dangerousness and whether it is a “date rape” drug, and the existence of a criminal organization. Then I will turn to the individual grounds. I will deal with the submissions regarding the judge’s conclusion that there were “no mitigating factors” under the individual grounds. I will then consider whether the sentences are demonstrably unfit, and finally I will address the pre-trial custody issue. [62] The appellants submit that the sentencing judge erred in finding certain matters as “aggravating factors” including that ketamine was a “date rape” drug and that the appellants were involved in a criminal organization. [63] The Crown has the burden of proving aggravating factors beyond a reasonable doubt in a sentencing hearing, but this onus is only engaged when the factor is clearly disputed by the accused. This principle is identified in R. v. Gardiner , [1982] 2 S.C.R. 368 and R. v. Lee , 2011 BCCA 73 and is codified in s. 724 of the Criminal Code : 724 (3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial; (b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (c) either party may cross-examine any witness called by the other party; (d) subject to paragraph ( e ), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and (e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. Classification of the drug Ketamine [64] Ketamine is a Schedule I drug, having been transferred to Schedule I by Federal Regulation in 2005. Other drugs in Schedule I include heroin, cocaine, MDMA, methamphetamine, GHB, morphine and oxycodone. The maximum penalty for both possession for the purpose of trafficking and importing Schedule I drugs is life imprisonment ( CDSA ss. 5-6). Some Schedule I drugs are available by prescription, including ketamine. Others are completely prohibited by law. [65] The evidence before the sentencing judge from Sergeant Rintoul and Mr. Pon indicated that ketamine is an anaesthetic that causes dissociation, a euphoric, out-of-body experience in the user. It is commonly used as a “party drug”, and is often combined with MDMA. In rare circumstances, prolonged use of ketamine can exacerbate pre-existing mental illness, schizophrenia, and cause relapses in hallucinations, although Mr. Pon could not say whether ketamine was a “cause” of these illnesses or if the illnesses were already underlying. [66] Ketamine is not physiologically addictive. There have been few deaths associated with ketamine. Ketamine is frequently used with other drugs, such as alcohol, GHB and MDMA, and the seriousness of the effects is elevated when combined. There are a few instances when a ketamine user has remained in a “catatonic” state. [67] As noted above, the Regulatory Impact Analysis Statement prepared for the transfer of ketamine from Schedule F of the Food and Drug Regulations to the CDSA was filed as an exhibit in the sentencing hearing and relied on by the Crown. For ease of reference, I will set out the relevant part again: Ketamine is commonly referred to as “special k”, “kit kat”, and “cat valium” on the streets, and has become popular as a “party of club drug” due to its dissociative effects; it creates the illusion of an “out of body experience”. It has also been used as a “date rape” drug. Ketamine seizures by police have been increasing in recent years. [68] The Crown alleged that ketamine was a “date rape” drug, and this factor was not challenged or disputed by any of the appellants. [69] In my view, there was a foundation of evidence before the sentencing judge in the viva voce evidence before her, and the exhibits filed, to find that ketamine is used as a “date rape” drug and that it is a drug that can cause serious harm to the user. [70] In addition, there was also evidence supporting the conclusion that the use of the drug is increasing, predominately among young people. There was a sufficient body of evidence for the sentencing judge to consider ketamine a dangerous drug, particularly since other harmful “cutting” drugs, including MDMA, were found with the ketamine. [71] I would not accede to this ground of appeal. Criminal organization as an aggravating factor [72] All three appellants, however, contested the Crown’s allegation that they were members of a criminal organization. They submit that the sentencing judge erred in her conclusion in that regard. [73] A criminal organization is defined in s. 467.1(1) of the Criminal Code : 467.1 (1) The following definitions apply in this Act. “criminal organization” means a group, however organized, that (a) is composed of three or more persons in or outside Canada; and (b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. (c) It does not include a group of persons that forms randomly for the immediate commission of a single offence. [74] Section 718.2(a)(iv) of the Criminal Code makes being a member of a criminal organization an aggravating factor in sentencing: 718.2 A court that imposes a sentence shall also take into consideration the following principles: ( a ) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, shall be deemed to be aggravating circumstances; [75] The sentencing judge concluded that Mr. Kwok and Mr. Ng were “involved in months of pre-planning, that all three accused were part of a [sic] inner circle of trust in relation to the criminal enterprise…and that the commission of these offences involved a criminal organization” (2013 BCPC 53 at para. 68). [76] She concluded that: [90]      In my view, the evidence has established that Kwok, Ng and Lau fit squarely within the definition of criminal organization set out in Section 467.1(1) of the Criminal Code . It is not a requirement that it be proven for the purposes of sentencing and s. 467.1(1) and s. 718.2(8)(iv), that each member of a criminal organization be cognizant of every aspect of that criminal organization’s activities, or that any single member know the full extent of the organization. This aggravating factor applies to these accused. [77] While the sentencing judge referred to the Criminal Code provisions on criminal organizations, and made brief mention of the defence position that this was more akin to a conspiracy than a criminal organization, she performed no other analysis to the question of whether the conduct of the group in question amounted in law to a criminal organization or whether the Crown had proved beyond a reasonable doubt this aggravating factor in sentencing. Definition of criminal organization [78] In order to establish there is a criminal organization as defined by s. 467.1(1) of the Criminal Code , the Crown must prove, beyond a reasonable doubt, the following: 1. There is a group of three or more persons, however organized; 2. The group has, as one of its main purposes or activities, the facilitation or commission of one or more serious crimes; and 3. The facilitation or commission of the crime or crimes, if committed, would likely result in the direct or indirect receipt of a material benefit by the group or any member of the group. [79] The term “criminal organization” has been constitutionally challenged several times. It has been found to be compliant with ss. 2(d) and 7 of the Charter ( R. v. Terezakis , 2007 BCCA 384, leave to appeal to S.C.C. refused, 226 C.C.C. (3d) vi; R. v. Ward , [2008] O.J. No. 5743 (S.C.J.)). [80] In R. v. Venneri , 2012 SCC 33, the Court adopted a purposive approach to the interpretation of “criminal organization”. When considering the statutory definition of “criminal organization”, rather than using a “check-list” definition of characteristics common to criminal entities, it is preferable to focus on the goal of the legislation. The goal of the legislation is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members ( Venneri at paras. 38-40). [81] Courts must not limit the scope of the provision to the stereotypical model of organized crime, i.e., the highly sophisticated, hierarchical and monopolistic model ( Venneri at para. 41). At para. 36 of Venneri the Court states: Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-minded felons. Organized criminal entities thrive and expand their reach by developing specializations and dividing labour accordingly; fostering trust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances, developing a reputation for violence. A group that operates with even a minimal degree of organization over a period of time is bound to capitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community. [82] However, groups of individuals that operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated by the regime ( Venneri at para. 40). At paras. 29 to 31 of Venneri , the Court addresses the meaning of “however organized”: [29]      … by insisting that criminal groups be “organized”, Parliament has made plain that some form of structure and degree of continuity are required to engage the organized crime provisions that are part of the exceptional regime it has established under the Code”. [30]      Qualifying “organized” in s. 467.1 by “however” cannot, as a matter of language or logic, be taken to signify that no element of organization is required at all. “Organized” necessarily connotes some form of structure and co-ordination, as appears from the definition of “organized” in the Shorter Oxford English Dictionary on Historical Principles (6th ed. 2007), vol. 2: Formed into a whole with interdependent parts; coordinated so as to form an orderly structure ; systematically arranged. [Emphasis added; p. 2023.] In French, the definitions in Le Grand Robert de la langue française (electronic version) are consistent with this: it defines the noun “ organisation ” as the [translation] “[a]ction of organizing (something); the result of such an action” and the verb “ organiser ” as “[t]o give a specific structure or composition, order, or method of functioning or administration to” (emphasis added). [31]      “However” and “organized” ― the two words read together, as they are written ― are complementary and not contradictory. Thus, the phrase “ however organized ” is meant to capture differently structured criminal organizations. But the group must nonetheless, at least to some degree, be organized. Disregarding the requirement of organization would cast a net broader than that intended by Parliament. [Emphasis original.] [83] In R. v. Sharifi , [2011] O.J. No. 3985 (S.C.J.), the Court found that a loose grouping of individuals with a few people directing drug trafficking activities was not a criminal organization. The Court made this finding based in part on the fact that there was no structure to the group, no name, no evidence that the individuals considered themselves to be members of a group or organization, no evidence or records of their activity, and because it was not possible to say how the individuals were going to benefit each other ( Sharifi at para. 38). The approach in Sharifi was cited with approval by the Supreme Court of Canada in Venneri at para. 27. [84] The phrase “main purposes or activities” in the definition of “criminal organization” indicates that a person will be part of a criminal organization regardless of whether the group also has legitimate purposes or activities. This is to acknowledge that criminal organizations often blend criminal operations with legitimate operations ( Terezakis at para. 59). [85] Regarding the term “facilitation”, under s. 467.1(2) of the Criminal Code , “facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed”. [86] The Court in R. v. Lindsay , 2005 CanLII 24240 (Ont. S.C.J.) found that like the concept of conspiracy, facilitation is broader than the actual commission of an offence, and does not require that a substantive offence actually be committed (see para. 947). In addition, in upholding the trial decision, the Court in R v. Lindsay , 2009 ONCA 532 stated that “ facilitate” has a clear meaning: [23]      …It is defined in The Concise Oxford English Dictionary (10th ed.) to mean, “make easy or easier”. Black’s Law Dictionary (7th ed.) indicates that the word “facilitation” has a recognized meaning in the context of criminal law, as follows: ”The act or an instance of aiding or helping; esp., in criminal law, the act of making it easier for another person to commit a crime”. [87] Lastly, the phrase “material benefit” under s. 467.1(1) of the Criminal Code specifically includes financial benefit, but is not limited to it (see R. v. Lindsay (2004), 70 O.R. (3d) 131(S.C.J.) at para. 58; R. v. Pereira , 2008 BCSC 184 at para. 162). [88] In the context of sentencing, there are several cases in which the Crown alleged the aggravating factor of a criminal organization for sentencing purposes, without charging a criminal organization offence under ss. 467.11-13 of the Criminal Code . In two such cases, R. v. Sipes , 2013 BCSC 383 and R. v. Payne , 2006 BCSC 1651 (aff’d 2007 BCCA 541), the Court made a criminal organization finding. However, both Sipes and Payne involved known gangs, and thus the issue was fairly straightforward. [89] For this case, I find the analysis in R. v. Dritsas , 2013 MBQB 186 helpful. Dritsas was found guilty of six drug-related charges (2012 MBQB 339, aff’d in 2014 MBCA 85). He was a kilogram-level cocaine trafficker. Trial evidence came from wiretaps, surveillance and experts on drug trafficking, drug hierarchies, and the meaning of coded language. The judge found that Dritsas conspired with four others to traffic cocaine. The group arranged for the delivery of cocaine, obtained the necessary payments, and processed the cocaine over a roughly four-month period (May 20−Sept 22, 2010). Dritsas was not charged with a criminal organization offence, but at the sentencing hearing the Crown requested that the aggravating factor under s. 718.2(a)(iv) be considered : [19]      It was argued by the Crown that Dritsas was “the boss” of his own criminal organization within the Winnipeg drug hierarchy. Examples of his leadership role emanated from the intercepted communications at trial (Ex. 2, tabs 75 and 76) where he had indicated that he could call his own shots in terms of supply, as well as decide when to distribute the cocaine, the price level, the meeting places and the collection of the sale proceeds. Dritsas expressed a similar leadership role in his conversations with his father related to the distribution of marijuana. Dritsas also discussed, as captured on the intercepted communications, that he had varied sources of cocaine at a time when the “Lopez” supply was thought to have been compromised. There was no evidence at trial that alternate suppliers were ever utilized. Dritsas had a number of regular “customers”/dealers within his organization, as was also evidenced from the intercepted communications with individuals such as James Gerwing, Ronald James, and Malcolm Amos. [90] The Court found that Dritsas’ organization did not constitute a “criminal organization”: [27]      This issue must be evaluated within the context of whether Dritsas’s actions constituted a criminal organization type of activity. Dritsas was never charged with a “criminal organization” offence with respect to his matter, nor did he have a known gang affiliation. Further, of particular importance in distinguishing a criminal organization from a conspiracy is the level of structure, continuity, and organization as was highlighted in the Venneri decision (at para. 35). There are generally certain characteristics of a criminal organization, which include (at para. 36): ▪ developing specializations and dividing labour; ▪ fostering trust and loyalty; ▪ sharing customers, financial resources, and insider knowledge; ▪ in some circumstances, developing a reputation for violence. This case shares some of the features of Venneri where the accused was found to be an “associate” of a criminal organization operated by his supplier and not a member. [28]      I am satisfied that the Criminal Code definition of a criminal organization and the comment from Venneri encapsulate certain of Dritsas’s activities in the context of this case. There was a loose hierarchic structure with a division of labour. Additionally, there was an evident use of coded language and a goal of advancing economic or otherwise personal interests through criminality. However, I am not satisfied that Dritsas’s “organization” satisfied sufficient attributes of a criminal organization as were set out in Venneri so as to attract a consideration of involvement in a criminal organization as an aggravating factor for sentencing purposes. [Emphasis added.] [91] In addition, in Sharifi , the accused was charged on 14 counts related to cocaine trafficking and weapons offences. Two of the counts were for criminal organization offences. [92] Sharifi was convicted on the counts related to the drug offences, weapons offences, and conspiracy, but acquitted on the counts related to the criminal organization offences. In finding that a criminal organization was not established, the Court stated: [38]      In my view, the evidence presented at this trial did not establish the existence of an organization regardless of how flexible that definition may be in the Criminal Code . The evidence or lack of evidence allows for the following conclusions: a) A group of individuals were involved in trying to obtain cocaine during a short timeframe November, December, January 2006/2007. b) It is not possible to say how they were going to benefit each other. c) There was no structure to this group. d) It cannot be said with any certainty who 20 exactly knew who, or for that matter who was responsible for what. e) There was no name to the group, no evidence that they considered themselves to be members of a group or organization. f) There was no evidence of any records of their activity. g) I cannot say the accused thought he was going to benefit anyone in the group or only going to benefit himself. h) Finally, there is no evidence to support the proposition that the accused “committed the predicate offence with the intent to do so in association with the group he knew had the composition of a criminal organization” [39]      In order to convict on the criminal organization counts on the evidence presented at this trial, I would have had to conclude that a conspiracy to commit an offence has all of the constituent elements required to support a conviction under s. 467.11 and 467.12. In my view, justice demands that there has to be some meaning to the term “organization” which extends beyond what was proven in this case. Therefore, there will be findings of not guilty with respect to counts 3 and 4. [93] In the present case, there is no evidence of a “criminal organization” except the appellants, Mr. Lai, and Mr. Chan. In other words, there is no evidence of a “known” gang affiliation or a larger group of individuals involved in this enterprise. Therefore the Crown would have to prove that these three to five people were a criminal organization in and of themselves, (or that Mr. Chan, Ng and Kwok were a criminal organization and Mr. Lau was associated sufficiently to bring him within the Code definition). The evidence suggests no more than Mr. Chan, Mr. Kwok and Mr. Ng came together for the purpose of importing ketamine into Canada, and that Mr. Lai (allegedly, as he has not been tried) and Mr. Lau assisted them when they arrived and were involved in preparing the drug for distribution. [94] There is no evidence that this group had any “form or structure” or “degree of continuity” beyond this one incident. Therefore, in my respectful view, the Crown did not prove beyond a reasonable doubt that they formed a criminal organization. [95] In my respectful view, the sentencing judge erred when she found as an aggravating factor that these appellants fit into the definition of criminal organization. [96] Once an error of law has been found, the next question is whether the error led the sentencing judge to impose a demonstrably unfit sentence ( R. v. Johnson (1996), 84 B.C.A.C. 261 at para. 37). I will address this once I discuss the individual issues. Individual issues and mitigating factors [97] Mr. Kwok submits that the sentencing judge found his lack of rehabilitative efforts to be an aggravating factor, when he did not have any opportunity to take such steps. The sentencing judge said this about Mr. Kwok’s rehabilitative steps, at para. 118: None have taken any steps towards rehabilitation although Kwok’s conduct while in custody supports an inference he might be a good candidate for rehabilitation. [98] The sentencing judge clearly treated his conduct as a mitigating rather than aggravating factor. There is no error as alleged. [99] Next, Mr. Kwok says that the sentencing judge took into account his robbery conviction, put forward by his counsel not the Crown, committed when he was 15 years old. The reasons reveal that the sentencing judge mentioned this record in her summation of Mr. Kwok’s circumstances, but she did not rely on it when imposing his sentence. There is no error as alleged. [100] Mr. Kwok submits that the sentencing judge erred in finding that there were no “mitigating factors”, as she failed to give any mitigating effect to his age, medical condition and lack of related criminal record. Mr. Kwok is in his early 60s. The sentencing judge concluded that he was a mature adult, and did not have the mitigating factor of youth in his favour. She noted that he did not have a drug-related criminal record. In my view, the weight to be given to Mr. Kwok’s age, medical circumstances and lack of a related criminal record was for the sentencing judge to determine. She was well aware of his age and his medical condition. I do not consider her decision to place little, if any, weight on these as factors in mitigation to be an error in the context of this large drug-importation operation. [101] Mr. Ng submits that the sentencing judge erred by failing to find that he had expressed remorse, when his counsel provided that submission. His counsel said: MR. BAKER:  He hasn’t -- he has not been in contact with them [his family]. He’s ashamed. He’s ashamed and he’s very remorseful and he’s obviously remorseful because he’s going to spend some time in jail; he’s been in jail for a long time. He’s also expressed to me his great regret at becoming involved in something like this. He -- so he hasn’t -- he hasn’t talked to his -- to his wife and kids about it. He’s not sure if they know he was -- he’s here. He was separated from his wife in 2006 so that has some -- his -- currently still is legally his wife [102] When remorse is considered as a mitigating factor, it is generally expressed as being sorry for the harm caused as a result of one’s actions, not remorse because you are going to jail or remorse because you have brought shame to your family (certainly a laudable emotion, but not a mitigating factor). Finding no remorse when there has been an expression of remorse could, in some circumstances, be a misapprehension of the evidence by the judge, and thus an error. In this case, however, the expression of remorse was not particularly aimed at being sorry for harm done, but rather bad personal results. Thus, in my view, the sentencing judge did not err in failing to give effect to this expression of remorse. [103] Second, Mr. Ng submits that the sentencing judge erred in her finding that he was not lower on the hierarchy than Mr. Kwok. The sentencing judge made the following findings of fact with respect to Mr. Ng, at para. 117: Ng was in India at some of the same times as Chan and Kwok. Ng was in physical contact with the packaged Ketamine before it was shipped to Canada. While in Canada, he stayed in the same hotel room with Chan and Kwok, and was seen constantly in their company or in company with Lau and Lai. Ng was at the warehouse when the motion detector hidden in the shipment was activated, and participated in the movement of the boxes between the two warehouses. He was inside the Rowan Place warehouse with the others on December 11th, and at the group meeting at the restaurant that day. Upon his arrest, he was found to have a piece of paper with “Viking Way 2633” written on it in English. Many of my comments in relation to Kwok about the degree of planning involved in this scheme and the potential profit had it succeeded also apply to Ng. Ng was a principal in this criminal organization and in the plan to import and traffic the Ketamine. [104] In my opinion, these findings of fact are supported by the evidence. There is no error on this basis. [105] Mr. Ng submits that the sentencing judge failed to consider his lack of criminal record in mitigation. The sentencing judge took into account Mr. Ng’s lack of criminal record. She did not specifically identify it as a mitigating factor, but she was alive to the fact he had no record. In these circumstances, I do not consider that the sentencing judge erred in this regard. [106] Mr. Lau submits that the sentencing judge erred by not giving effect to his “lessor role” in the operation. He submits that he was just “hired help” and not involved in the operation. [107] The sentencing judge gave lengthy reasons for her conclusions regarding Mr. Lau, which I have reproduced at para. 47 above (2013 BCPC 53 at paras. 111-114). [108] In my opinion, her conclusion that, while lower on the hierarchy, Mr. Lau was more than “hired help” is supported by the evidence, and there is no error in this regard. [109] Mr. Lau also submits that the sentencing judge failed to give effect to the fact he was not involved in the actual importation of the drugs. In his view, Mr. Kwok and Mr. Ng’s sentences of 12 years for possession for the purpose of trafficking take into consideration their importation of the ketamine as an aggravating feature. He submits that the sentence of 10 years imposed on him does not adequately take into account the differential in responsibility. Mr. Lau overlooks the fact that he had two drug-related criminal convictions, which weigh against him. In addition, in my view, the sentencing judge gave effect to the difference between the appellant in that she sentenced Mr. Kwok and Mr. Ng to 16 years each for the importation offences. Is The Sentence Demonstrably Unfit? [110] There are two considerations in this part of the analysis. The first is the effect of the legal error committed by the sentencing judge and the second is whether, regardless of the legal error, the sentence is so outside the range of similar sentences, it is demonstrably unfit ( R. v. Nasogaluak , 2010 SCC 6). [111] The principles of sentencing are codified in the Criminal Code and in the CDSA: Criminal Code 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. Controlled Drugs and Substances Act 10. (1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. (2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person (b) was previously convicted of a designated substance offence; [112] Importing drugs into Canada is more serious on the scale of culpability than trafficking drugs ( R. v. Saulnier (1987), 21 B.C.L.R. (2d) 232 (C.A.) at 235). The quantity of drug is also an important factor ( Saulnier at 237). [113] There are no cases involving the importation of ketamine of this quantity. Setting a sentencing range for this offence is a matter of first impression. The maximum penalty for importing and trafficking any Schedule I offence is life imprisonment. [114] Ketamine is a less dangerous drug than heroin or cocaine. It is perhaps closest to MDMA (or ecstasy), which is also a Schedule I drug. It appears to be more harmful to health than marihuana, a Schedule II drug. [115] To establish a range of sentence for ketamine, I will examine sentences imposed for other drug offences. I start with the marihuana cases. I examined only cases involving large quantities of marihuana in order to have some semblance of similarity with the present offences. Normally, this Court looks to its own decisions to ascertain a range of sentence, and failing that, cases within British Columbia as they reflect the attitude of the community. When there is a dearth of case law dealing with the appropriate range of sentence, this Court will look to decisions in other provinces for assistance, as I have done here. [116] In R. v. Jesson & Matthews , [1982] B.C.J. No. 914 (C.A.), the offenders pleaded guilty to conspiracy to traffic 1,200 lbs of marihuana. They were involved with several others to import marihuana from Thailand via Manila. Jesson and Matthews were not involved directly with the 1,200 lbs, but were to be distributors of the drugs. They were each sentenced to 2.5 years, which was upheld on appeal. [117] In R. v. Joys and Baker (19 February 1993), Vancouver CC900244 (B.C.S.C.), the two offenders were convicted of importing 22 tons of marihuana. They were seen to be at a lower level of the drug operation; Joys owned the boat used to import the drugs to Canada and Baker was a crew member. The trial judge sentenced Joys to six years and Baker to four years. [118] In R. v. Mai , 2005 BCCA 615, the offender received two years for importing 1,728 kilograms of marihuana. The enterprise was planned and premeditated. Mai was on a lower level than his co-accused, who received three years. Mai had a criminal record for possession of a handgun. His sentence was reduced to two years less one day to permit him to appeal his deportation order. [119] In R. v. Guilbride , 2006 BCCA 392, the appellants were convicted of conspiracy to import 12 metric tonnes of cannabis resin. Sentences of six, five, four, three and a half and two and a half years were imposed depending on the degree of involvement. Six years was the sentence imposed on the principal behind the operation, Sanford Hately. Hately was the owner and captain of the fishing boat that was used in the importation. Crown appeals from these sentences were dismissed. [120] I turn next to sentences imposed in cases involving other Schedule I drugs. [121] Conspiracy to import cocaine draws much higher sentences. For example, in R. v. Bengert (1979), 52 C.C.C. (2d) 100 (B.C.S.C.) (sentence of one co-accused, Ponak, upheld in R. v. Ponak (1981), 61 C.C.C. (2d) 60 (B.C.C.A.)), the accused were convicted of conspiracy to import large amounts of cocaine. The trial judge concluded that the group engaged in “organized crime”. The ring leaders, Robertson and Zamai were sentenced to 20 years each and a fine of $50,000. The next tier of culpability consisting of Bengert, Ferron, Jeffries and Ponak were sentenced to 14 years, Perry and Layman to eight years and Dupuis to four years. Most of them had been in custody for a year or more prior to trial. [122] In R. v. LePage , 2010 BCCA 249, the appellants Oliynyk and LePage were convicted of conspiracy to import and conspiracy to traffic in 32 kilograms of cocaine. Oliynyk had a previous drug conviction where he received a ten-year sentence in the United States. LePage had no record. Sentences of 18 years and 12 years respectively were upheld on appeal. [123] In R. v. Epp , 2006 BCCA 570, this Court reduced the accused’s 14-year sentence to 10 years for importing 126 kilos of cocaine in his propane tanker truck. The appellant had no criminal record, it was accepted he was the courier, and this was his first time trying to bring drugs across the border. [124] In terms of cases involving MDMA (ecstasy) and ketamine, in R. v. Ling , 2014 ONCA 808, the Court upheld a 16-year sentence for Ling and 14 years for Jian and Shi for possession for the purpose of trafficking and production of ketamine, MDMA and methamphetamine. The Court identified this as one of the two largest drug labs seen in Canada. At the time of arrest there was $12.2 million worth of drugs on the premises. The Court pointed to the danger of methamphetamine as an addictive drug, and concluded that MDMA and ketamine are less addictive, but still dangerous to human health. [125] In R. v. Ranger , 2014 ABCA 50, the appellant was found in possession of $37,000, plus 190 grams of cocaine, 66 grams of methamphetamine, 36 grams of ketamine, and 179.5 pills of ecstasy. The Court upheld a five-year sentence (reduced from 6 years on the basis of the totality principle), in relation to the drug charges. Ranger received an additional three years consecutive for a car chase and attempt to flee the scene, one year consecutive for property offences, and 6 months consecutive for non-compliance with court orders for a global sentence of 9.5 years. [126] In R. v. Pabla , 2013 BCSC 1588, Mr. Pabla was sentenced to two years less one day for conspiracy to produce and production of MDMA, then a Schedule III drug with a maximum sentence of ten years. He was found with 14.3 kilograms of controlled substances, 657.5 grams of mixed MDMA, ketamine, caffeine, lidocaine and procaine, 6.9 kilos of MDMA tablets (18,618 tablets) and 19.5 kilograms of buffering agents. Pabla was a “worker” in the pill press operation, not a leader, and he was under 20 years old. The sentencing judge cited his youth, mental health challenges, remorseful attitude and lack of criminal record as mitigating factors. [127] In R. v. Bamdad , 2013 BCCA 87, this Court upheld a six-year sentence for offering to sell 100 kilograms of MDMA, plus 3 years consecutive for possession of red phosphorus, a precursor used in the production of amphetamines and methamphetamine, but not MDMA. The global sentence was reduced to eight years to take into account pre-trial custody. [128] An examination of the case law suggests that the sentencing judge in the present case appears to have imposed sentences closer to the range for cocaine offences. The sentences in my respectful opinion are unfit as they are closer to the range of importing cocaine, a more dangerous drug than to MDMA, which shares more similarities with ketamine. In addition, the sentencing judge erred in concluding that these appellants were involved in a criminal organization as an aggravating factor under s. 718.2(a)(iv) of the Criminal Code . Having said this, these are still very serious offences. There was an enormous amount of ketamine, 1,000 kilograms, brought into this country. Plus, it was a highly sophisticated and planned importation of the drugs into Canada. The appellants were in possession of material that would turn the ketamine into pills with other drugs mixed into them. In other words, they were in a position to set up a “pill-press” operation. The ketamine, at street value, was worth up to $50 million. [129] There is no accepted evidence to suggest that Mr. Kwok or Mr. Ng were anything other than the leaders in the group, and that Mr. Lau, although on a lower level of the operation, was involved in more than simply driving them around. He was seen meeting with the others in restaurants and travelling with them around the Lower Mainland. In addition, Mr. Lau had a related criminal record. [130] Ketamine does not have the addictive qualities of heroin or methamphetamine, but it is still dangerous to the health of the user. In addition, it is dangerous to the unsuspecting user as a date-rape drug. [131] In my view, the sentencing judge erred when she imposed the sentences here. Although there is no established range for the importation of ketamine in this quantity, in my view, the sentences here were excessive when compared to the sentences imposed in the cases noted above. [132] In my respectful view, Mr. Kwok and Mr. Ng should be sentenced to 12 years for the importing of ketamine, and eight years concurrent for possession for the purpose of trafficking. I would impose a sentence of six years on Mr. Lau for possession for the purpose of trafficking to reflect his lesser role in the operation. Disposition [133] The Crown concedes that the appellants should be given credit at 1.5:1 for their time in pre-trial custody. I agree with this concession. I would grant leave to appeal, allow the appeals and vary the sentences as follows: Mr. Kwok − 12 years less 40.5 months’ credit for importing ketamine; eight years concurrent for possession for the purpose of trafficking ketamine; Mr. Ng − 12 years less 40.5 months’ credit for importing ketamine; eight years concurrent for possession for the purpose of trafficking ketamine; and Mr. Lau − six years less 16.5 days’ credit for possession for the purpose of trafficking ketamine “The Honourable Madam Justice Bennett” I agree: “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. T.E.C., 2015 BCCA 43 Date: 20150130 Docket: CA041796 Between: Regina Respondent And T.E.C. Appellant Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4(2) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or any witness under the age of 18. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Neilson The Honourable Mr. Justice Savage On appeal from: an order of the Provincial Court of British Columbia dated April 7, 2014 ( R. v. T.E.C. , Surrey Docket No. 197101) Oral Reasons for Judgment Counsel for the Appellant: R.M. Shore Counsel for the Respondent: M. Myhre Place and Date of Hearing: Vancouver, British Columbia January 28, 2015 Place and Date of Judgment: Vancouver, British Columbia January 30, 2015 Summary: The appellant was given a suspended sentence for assaulting his wife. He appeals that disposition on the basis that the judge erred in principle by over-emphasizing the domestic nature of the assault and by failing to give sufficient weight to his admission of the assault at trial as a mitigating factor. He also argues the sentence was unfit and a conditional discharge would be appropriate in his personal circumstances. Held: Appeal dismissed. The judge made no error in principle, and the sentence was fit. The sentence fell within the accepted range for similar offences, and the public interest did not favour a discharge. [1] NEILSON J.A. : On March 11, 2014, following a lengthy trial before a Provincial Court judge, the appellant was convicted of assault and acquitted on charges of sexual assault and uttering threats. The victim named in each charge was his wife. On March 11, 2014, the appellant received a suspended sentence of twelve months with conditions. [2] The appellant seeks leave to appeal his sentence and, if leave is granted, argues that the trial judge erred in over-emphasizing the domestic context of the assault, and in failing to recognize that his admission at trial of the facts constituting the assault was a mitigating factor equivalent to a guilty plea. He says this led to an unfit sentence, and an absolute or conditional discharge should be substituted for the suspended sentence. [3] The events leading to the charges occurred over several days. The appellant’s wife had recently advised him she had had an affair. He was angry and unforgiving, and the couple was in the process of an acrimonious separation. It is not necessary to relate the events underlying the other charges, other than to say the appellant and his ex-wife gave very different versions of them. The trial judge accepted that the couple was in “the throes of matrimonial strife” and that the appellant was hostile and volatile. He acquitted him on the more serious charges, however, primarily because of concerns about the reliability and credibility of the wife’s evidence. [4] During his testimony in chief, the appellant admitted that in one exchange he had thrown a plastic cup of water and a sleeve of crackers at his wife. The trial judge rejected his argument that these actions fell within the de minimus doctrine, and convicted him of assault. In doing so, he affirmed the view that the threshold of legal tolerance for assault within spousal relationships is very low, stating: [64]      …  Mr. C’s assault of Ms. C falls at the low end of the assault spectrum, but when considered in context I cannot conclude it was so trifling as to not engage the interests of the public. Mr. C’s act was intentional and not defensive, measured, or even retaliatory to a physical act against him by Ms. C. There was no legitimizing it. It escalated an intense verbal encounter to a physical one in an incendiary environment that risked escalating the conflict, thereby increasing the risk of violence. There is a clear public interest in preventing conflict between warring spouses from becoming physical and using the criminal law as that preventative measure. [5] At sentencing, the Crown sought a suspended sentence. [6] The appellant asked for an absolute or conditional discharge. His counsel summarized his personal circumstances and the impact of the proceedings as follows. He was 45 years old at the time of sentencing, and had no criminal record. His past employment included several years as a loss prevention officer and also some private investigative work. The circumstances surrounding the separation and the charges had a significant detrimental impact on his life. He had gone from living in a home with his wife and three children to being alone with no home, and being estranged from his oldest son. He was unable to work in security occupations due to the charges, and said the criminal record resulting from a suspended sentence would perpetuate this limitation, confine him to menial labour, and limit his ability to support his children. Reasons on Sentencing [7] The trial judge noted that the appellant had admitted the events constituting the assault, but that he had been precluded from pleading guilty to this charge as the allegation of assault was comprised of more than the one incident on which he was ultimately convicted. He stated: [2]        I accept what defence counsel says with respect to a lack of latitude to plead guilty to that aspect given the assault allegation against him contained far more than what he admitted. I acknowledge that he was in a difficult position with respect to taking responsibility and perhaps all he could do was when he took the stand was to say indeed that it happened, so it is not in theory a guilty plea and it does not have the salutary effects of a guilty plea such as saving court time, saving the taxpayers’ money, saving a complainant from testifying. But again I acknowledge the context of the case and the allegations in total. [8] The trial judge found the assault was not defensive or measured but intentional, and that it increased the risk of violence between the couple. He observed that the appellant had been intensely angry at the time, and the offence was not a momentary lapse of control but more akin to the eruption of a volcano that had been percolating. He accepted the effect of the charges on the appellant had been profound and life-changing. [9] The trial judge referred to the sentencing principles in s. 718 of the Criminal Code , and the specific provision in s. 718.2(a)(ii), which states that evidence that an offender abused his spouse is deemed to be an aggravating circumstance. He then expressed his conclusion in these terms: [7]        Given the emphasis I must place on that feature, given it is a violent offence and general deterrence and denunciation are principles squarely before me, acknowledging that I cannot ignore Mr. C’s rehabilitation, I am of the view that general deterrence and denunciation and the other purposes and principles of sentencing are best met in the context of this case by suspending of the passing of sentence and placing Mr. C on probation for a period of 12 months with the following conditions. Analysis [10] I begin by acknowledging the restricted ambit of appellate review of sentencing decisions. Our jurisdiction to interfere is confined to the circumstances set out by the Supreme Court in R. v. C.A.M. , [1996] 1 S.C.R. 500 at para. 90: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. [11] In that context, the appellant argues the trial judge made two errors in principle in imposing a suspended sentence instead of a conditional discharge. First, he over-emphasized the domestic context of the assault. Second, he did not sufficiently recognize the unique circumstances that precluded the appellant from pleading guilty to assault, and so failed to treat this as a mitigating factor equivalent to a guilty plea. As well, the appellant contends that even if the judge did not err in principle, the sentence was unfit, given his personal circumstances. [12] On the first point, the appellant accepts that s. 718.2(a)(ii) of the Code required the sentencing judge to view his assault on his spouse as an aggravating feature. He, however, points to the judge’s comment at para. 7 of his decision about the emphasis he must put on this as demonstrating that he permitted the domestic context to override other equally relevant considerations. [13] I am unable to agree. The jurisprudence of this country has long recognized the uniquely emotional and malevolent nature of domestic assaults and the inherent dangers they present, not only to the victims but to public interests as well. This Court recently affirmed these views in R. v. Gill , 2014 BCCA 88 at para.34: [34]      I am unable to accept Mr. Gill’s submission that the sentencing judge overemphasised denunciation. This Court has consistently stated that crimes of violence against women in domestic relationships require denunciatory sentences. In R. v. Stanley , [1986] B.C.J. No. 695 (C.A.) at para. 8, Mr. Justice Lambert said this: I wish to say particularly in this case that society has a deep interest in this kind of conduct. It is not a private matter between the parties to the relationship nor a matter that goes away if there is forgiveness within the relationship. This kind of conduct endangers and imperils society. In addition the guardians of the social interest, the people involved in social work and the police who are called out and into these situations, must have the protection of the law and the understanding that these offences will not be ignored by society or that forgiveness by one spouse will not put an end to the offence. [14] The trial judge properly recognized his obligation under s. 718.2(a)(ii), and the public interest in preventing domestic assaults, no matter how minor. I am not persuaded that in doing so he overly emphasized the domestic context of this assault. [15] As to the second alleged error in principle, the trial judge explicitly acknowledged that the more serious charges against the appellant and the multitude of allegations raised by the complainant precluded him from pleading guilty to assault at the outset of the trial. While he did not specifically mention this as a mitigating circumstance, I am satisfied that para. 2 of his decision, read as a whole, is reasonably interpreted as an indication that he would consider this favourably in determining the appellant’s sentence. I find no error in principle in this approach. [16] Finally, while the appellant acknowledges that a suspended sentence falls within the range of acceptable dispositions for a domestic assault, he argues that this result was unfit in his case, given his personal circumstances. He reiterates the arguments made at sentencing, and emphasizes that a criminal record will restrict his employment opportunities in the security field, and thus limit his ability to support his children and to restore his own life to a semblance of what it was before the assault. He says the brutal and unfounded allegations made by his ex-wife, the long and stressful legal process that followed, and the related detrimental changes to so many facets of his life have provided sufficient individual deterrence and punishment. As a result, a conditional discharge with the same conditions as his suspended sentence would be a fit sentence. [17] As noted above, this Court’s jurisdiction to interfere with a sentencing disposition is limited. We are not entitled to vary a sentence simply because we would have imposed a different penalty. Deference is due to the sentencing judge, particularly where, as in this case, he presided over a lengthy trial that enabled him to become thoroughly acquainted with the witnesses and the nuances of the case: R. v. Scott , 2013 BCCA 397 at para. 34. [18] A conditional discharge may be imposed if it is in the best interests of the offender, and if it is not contrary to the public interest: R. v. Fallofield (1973), 13 C.C.C. (2d) 450. [19] There is no question that a discharge would be in the appellant’s best interests. [20] As the judge observed, however, this assault engaged the public interest in generally deterring and denouncing domestic abuse. From his unique perspective as the trial judge, he determined it was an intentional and gratuitous gesture, emanating from the appellant’s intense anger with his wife. While a relatively minor assault, he found it had had the potential to escalate into more severe violence. Despite the appellant’s personal circumstances and potential for rehabilitation, he effectively concluded a discharge was not in the public interest and imposed a suspended sentence. [21] Given the circumstances I have outlined, I am not persuaded this was an unfit sentence. In my view, the disposition represents a proper exercise of the trial judge’s discretion and is supported by the record that was before him. I would grant leave to appeal but dismiss the appeal. [22] BAUMAN C.J.B.C. : I agree. [23] SAVAGE J.A. : I agree. [24] BAUMAN C.J.B.C. : Leave to appeal is granted and the appeal is dismissed. “The Honourable Madam Justice Neilson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: United Mexican States v. British Columbia (Labour Relations Board), 2015 BCCA 32 Date: 20150130 Docket: CA041589 Between: United Mexican States and Consulado General de Mexico en Vancouver Appellants (Petitioners) And British Columbia Labour Relations Board, Certain Employees of Sidhu & Sons Nursery Ltd., Sidhu & Sons Nursery Ltd., and United Food and Commercial Workers International Union, Local 1518 Respondents (Respondents) Before: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Harris The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated January 15, 2014 ( United Mexican States v. British Columbia (Labour Relations Board) , 2014 BCSC 54, Vancouver Docket S132385). Counsel for the Appellants: P.A. Gall, Q.C. & L.J. Wihak Counsel for the Respondents BC Labour Relations Board: D.W. Garner Counsel for the Respondents United Food and Commercial Workers International Union, Local 1518: C.G. Buchanan Place and Date of Hearing: Vancouver, British Columbia December 2, 2014 Place and Date of Judgment: Vancouver, British Columbia January 30, 2015 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Willcock Summary: Certain Mexican workers in a union representing agricultural workers applied to the British Columbia Labour Relations Board to cancel the union’s certification, following a representation vote. The union filed a complaint with the Board, arguing, inter alia, that Mexico had improperly interfered with the representation vote, within the meaning of s. 33(6)(b) of the Labour Relations Code, such that the vote was unlikely to disclose the true wishes of the union employees. Mexico raised a preliminary objection before the Board, arguing that the Board was barred by the doctrine of state immunity, as codified in s. 3(1) of the State Immunity Act, from adjudicating in relation to its conduct and was therefore prohibited from making a finding that it had engaged in “improper interference”. Held: Appeal dismissed. A finding of “improper interference” under s. 33(6)(b) of the Code does not amount to an exercise of jurisdiction over the individual or organization that engaged in improper interference. That individual or organization is neither directly nor indirectly impleaded by such a finding. The doctrine of state immunity therefore does not apply. Reasons for Judgment of the Honourable Mr. Justice Harris: Introduction [1] This is an appeal from the dismissal of a judicial review petition brought by the United Mexican States and Consulado General de Mexico en Vancouver (“Mexico”). The judicial review concerned the scope of state immunity codified in the State Immunity Act , R.S.C. 1985, c. S‑18 [ SIA ]. The issue arose out of a decision of the British Columbia Labour Relations Board (the “Board”) in the context of an application to decertify the United Food and Commercial Workers International Union, Local 1518 (the “Union”) as the bargaining agent for a group of agricultural workers. The Board concluded that state immunity did not prevent it from considering and making findings regarding Mexico’s conduct for the purpose of deciding whether a representation vote was unlikely to disclose the true wishes of the employees in the Union because of improper interference by Mexico. The chambers judge agreed. [2] This appeal also raised the question of whether the Vienna Convention on Consular Relations , 24 April 1963, 596 U.N.T.S. 261 [ Vienna Convention ], precludes the Board from hearing the voluntary testimony of former consular employees of a state without the consent of that state. The Board concluded that it could receive that evidence. The chambers judge agreed. [3] Since the hearing of the judicial review, the Board has considered the merits of the decertification application, including receiving the evidence from the consular employees. I am satisfied that this issue is moot, given that a primary purpose of the immunity provided to consular employees is to protect confidentiality and that protection has now been lost. Accordingly, I will focus in these reasons only on the state immunity doctrine. [4] At the outset, it is important to emphasize that the issue on this appeal is the extent of state immunity provided by the SIA. Section 3(1) of the SIA is the critical section. It provides: 3. (1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada. [5] I emphasize that the issue is the extent of state immunity because, in my opinion, Mexico seeks to expand the scope of state immunity by reference to the related, but different, doctrine of act of state. As I will explain, the doctrine of act of state may confer a subject matter immunity that will lead a court to decline to adjudicate matters involving the sovereign acts of foreign states even in circumstances where there is no state immunity under the SIA. In this case, however, Mexico has not argued at any stage in the proceedings that the Board should decline to consider its conduct on the independent ground that its acts are also protected by the doctrine of act of state. Accordingly, the only question on this appeal is whether the Board, in considering the conduct of Mexico, exercised jurisdiction over it contrary to the protection provided by s. 3(1) of the SIA. [6] For the reasons that follow I would dismiss the appeal. Background [7] A detailed background of the events leading to these proceedings is contained in the decision below: United Mexican States v. British Columbia (Labour Relations Board) , 2014 BCSC 54. For the purposes of this appeal, it is necessary to highlight only the following. [8] The Union is the certified bargaining agent for workers employed by Sidhu & Sons Nursery Ltd. (the “Employer”), an agricultural nursery and farming business in British Columbia. The Employer hires its workers through the Federal Government’s Seasonal Agricultural Workers Program (“SAWP”), a programme based on bilateral agreements between Canada and foreign governments, including Mexico. Under SAWP, Mexico is responsible for selecting and approving the citizens who will participate in the programme. It may repatriate its citizens or terminate their participation in SAWP at any time. Mexican workers were hired by the Employer, but not all members of the Union were Mexican; some came from other countries, it appears. [9] Following a representation vote, on April 11, 2011, certain employees of the Union (the “Employees”) applied to the Board to decertify the Union pursuant to s. 33(2) of the Labour Relations Code , R.S.B.C. 1996, c. 244 [ Code ]. [10] On April 19, 2011, the Union filed a complaint against Mexico, the Employer, and the Employees, seeking the dismissal of the decertification application on the basis that Mexico had engaged in: (a) unfair labour practices, contrary to ss. 6 and 9 of the Code ; and (b) improper interference, within the meaning of s. 33(6)(b) of the Code , such that the representation vote was unlikely to reflect the true wishes of the employees in the Union. The Union alleged that Mexico employed a policy of preventing workers who supported the Union from returning to Canada or from working in unionized workplaces. [11] Mexico raised a preliminary objection before the Board, claiming state immunity from the Board’s jurisdiction under s. 3(1) of the SIA . In its February 1, 2012, decision on this issue, the Board found that it lacked jurisdiction to require Mexico to participate as a party in the proceedings and that it could not make any orders against Mexico. Accordingly, it dismissed the Union’s unfair labour practices complaint. The Board held, however, that it could consider Mexico’s conduct insofar as any improper interference by Mexico affected the exercise of its discretion to cancel or refuse to cancel the certification arising from s. 33(6) of the Code : Re Sidhu & Sons Nursery Ltd. , BCLRB No. B28/2012 at paras. 46–47. [12] Following that decision but before the decertification hearing, the Union informed the Board and remaining parties that it intended to call former consular employees of Mexico to testify as to Mexico’s SAWP policy. Mexico then made submissions asserting that the Board was barred from hearing the testimony of the former employees by the Vienna Convention , and that the SIA prevented it from making any legal or factual findings of improper interference by Mexico on the basis of their testimony. [13] On February 23, 2012, the Board concluded that it could hear the evidence of the former consular employees if provided voluntarily, and started the decertification application, during which those former employees testified. [14] Subsequent to the decertification hearing but before a decision was rendered, Mexico again argued that the Board was barred by state immunity from inquiring into Mexico’s conduct for the purposes of an “improper interference” analysis under s. 33(6)(b) of the Code , and from making any legal or factual findings in relation to Mexico’s conduct. It asked the Board to rule on this issue prior to deciding on the decertification application. [15] The Board ruled on September 21, 2012, that the Vienna Convention prevented it from hearing the testimony of the former consular employees, but that it was not barred by the SIA from making findings of fact based on other admissible evidence concerning Mexico in relation to the allegations of improper interference: Re Sidhu & Sons Nursery Ltd. , BCLRB No. B194/2012. [16] All parties, including Mexico, applied for reconsideration of that decision. On March 7, 2013, the Board issued its decision in which a majority held that the Board was neither precluded from hearing the testimony of the former consular employees, so long as they testified voluntarily, nor from making findings in relation to whether Mexico’s conduct amounted to improper interference, within the meaning of s. 33(6)(b) of the Code : Re Sidhu & Sons Nursery Ltd. , BCLRB No. B54/2013. [17] Mexico then applied for judicial review of the reconsideration decision, which was dismissed by Madam Justice Warren in the court below. The Chambers Judgment [18] Madam Justice Warren decided that the SIA did not preclude the Board from inquiring into, and making factual or legal findings in relation to, Mexico’s conduct for the purpose of determining whether it had engaged in improper interference. In doing so, the Board was not exercising jurisdiction over Mexico contrary to s. 3(1) of the SIA. Mexico was no longer a party to the proceedings, no orders could be made against it, and no finding was made that it had violated the Code. She also held that nothing prevented former consular employees of Mexico from voluntarily giving evidence, even in the absence of a waiver of immunity by Mexico. In the result, she dismissed the petition. [19] The chambers judge reasoned that a finding by the Board of “improper interference” under s. 33(6)(b) is different in nature from a finding that someone has engaged in unfair labour practices and thereby violated the Code. At para. 61, she said: [61]      … the phrase “improper interference” is only referenced in s. 33(6)(b), there is no express prohibition against conduct amounting to “improper interference”, and a finding of “improper interference” for the purpose of s. 33(6)(b) is not a finding that the Code has been violated. [20] With respect to the nature of a finding of “improper interference” under s. 33(6)(b), Madam Justice Warren held that such a finding “is merely a basis upon which the Board may dismiss a decertification application without regard for the result of a representation vote and does not constitute a finding that the Code has been violated”: at para. 66, Madam Justice Warren went on to hold: [67]      The conclusions of the majority in the Reconsideration Decision regarding the nature of the Board’s jurisdiction under s. 33(6)(b) have not been shown to be patently unreasonable. In summary, a finding of “improper interference” under s. 33(6)(b) of the Code is unlike a finding that a party has engaged in “unfair labour practices”. It is not a declaration that a person has breached the Code . Rather, it is a finding that may result in a decision by the Board to refuse to decertify a union notwithstanding the outcome of a representation vote. This is a consequence that has legal effect on the employer, the employees, and the union. There is no legal consequence for any other person who is found to have improperly interfered . [Emphasis added.] [21] The chambers judge next considered the scope of the immunity conferred by s. 3(1) of the SIA , which as noted above, reads, “Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.” She stated the issue before her in this way: [68]      The question, then, is whether the immunity conferred by s. 3(1) of the SIA precludes the Board from considering and making findings regarding Mexico’s conduct in a decertification application to which Mexico is not a party, in which no remedy is sought against Mexico and no claim is advanced against any of Mexico’s property, and as a result of which Mexico is exposed to no legal consequence. [22] After a review of Canadian and international jurisprudence on the doctrine of state immunity, the chambers judge held that “the natural or ordinary meaning of s. 3(1) is that Canadian courts may not embark upon proceedings that could affect a foreign state’s legal rights, by impleading the state, directly or indirectly, or attacking its property, unless one of the exceptions provided elsewhere in the SIA applies”: at para. 98. Put another way, “[i]t is the subjection of [state] conduct to the control of a foreign court that is precluded” by s. 3(1) of the SIA : at para. 121. [23] Ultimately, Madam Justice Warren held that the SIA did not preclude the Board from inquiring into or making findings relating to whether Mexico had engaged in improper interference because Mexico was not subject to the control of the Board and remained free to administer SAWP in whatever manner it deemed appropriate: at para. 125. She stated, in summary: [133]    It is one thing for Canadian courts to refrain from imposing Canadian labour law on a foreign employer if necessary to avoid interfering with a foreign state’s sovereign functions. It is quite another thing to ignore conduct of a foreign state that is relevant to the imposition of Canadian labour law on a Canadian employer. In my view, a determination by the Board that Mexico’s conduct has legal consequences for Canadian employers and their employees would not interfere with Mexico’s autonomy. Such a finding, if made, would not purport to regulate, change, or interfere with Mexico’s conduct. It would merely acknowledge that Mexico’s conduct can have consequences for others under Canadian law. [134]    … In other words, it is accepted that Canadian courts and tribunals cannot purport to regulate the sovereign conduct of a foreign state. What is not accepted is the notion that the mere inquiry by a Canadian court or tribunal into the conduct of a foreign state in proceedings involving other parties, where no jurisdiction is asserted over the foreign state, where the state is not impleaded, where there is no possibility of any remedy being issued against the state, and where the state’s legal interests are not imperiled, would constitute the regulation of the foreign state or in any way interfere with its sovereign functions or authority. Issue on Appeal and Mexico’s Position [24] The issue in this appeal is whether, by finding that Mexico’s actions constituted “improper interference” within the meaning of s. 33(6)(b) of the Code , the Board exercised jurisdiction over Mexico, contrary to s. 3(1) of the SIA . [25] Mexico submits that the Board did assume jurisdiction over it. Mexico contends that the doctrine of state immunity is not limited to instances where the state is a party to the proceedings and where there is some legal remedy sought against the state. It argues that the chambers judge failed to recognize that “the doctrine of state immunity precludes a domestic tribunal from adjudicating the conduct of a foreign state vis‑à‑vis its own citizens under domestic law regardless of whether a remedy is imposed on the foreign state for a breach of domestic law.” Mexico asserts that the Board’s finding regarding unlawful interference amounts to a finding that Mexico violated the Code and that this is a result barred by the doctrine of state immunity. It contends further that the Board, in effect, took jurisdiction over it by indirectly impleading Mexico and making findings that implicate its legal interests. Standard of Review [26] In an appeal from a judicial review, this Court must first determine whether the reviewing court selected the correct standard of review and then whether it correctly applied that standard: Henthorne v. British Columbia Ferry Services Inc. , 2011 BCCA 476 at paras. 73 and 74. As a result, this Court will “for practical purposes be in the same position as it would be if it were reviewing the decision of the tribunal directly”, since no deference is to be afforded to the reviewing court: Henthorne at para. 79. [27] The Board’s decisions are subject to the standards of review set out in s. 58(2) of the Administrative Tribunals Act , S.B.C. 2004, c. 45 [ ATA ]. The preferred approach for determining whether a matter falls within the exclusive jurisdiction of a tribunal and attracts the standard of patent unreasonableness under s. 58(2)(a), or does not and attracts the standard of correctness under s. 58(2)(c) “is simply to examine whether the privative clause [in the tribunal’s enabling statute] covers the ‘matters’ in issue”: Kerton v. Workers’ Compensation Appeal Tribunal , 2011 BCCA 7 at para. 29. This analysis is required even where a tribunal is interpreting its home statute, as was the case in Kerton . [28] Section 139 of the Code provides that the Board “has exclusive jurisdiction to decide a question arising under [the] Code”. As the chambers judge correctly held, the scope of state immunity under the SIA is a matter that is clearly outside of the Board’s exclusive jurisdiction: at para. 56. Consequently, the standard of correctness applies, pursuant to s. 58(2)(c) of the ATA . This Court must therefore determine whether the chambers judge was correct to find that the Board itself was correct in its conclusions as to the scope of state immunity under the SIA . [29] Insofar as the Board’s conclusions relating to the Code are concerned, and in particular, its conclusions regarding the legal character and consequences of a finding of improper interference under s. 33(6)(b), the chambers judge correctly found patent unreasonableness to be the applicable standard of review: at para. 57. These are clearly “questions arising under [the] Code”. For this Court, the question then is whether in applying the patent unreasonableness standard, the chambers judge reached the correct result. Again, no deference is owed to the court below. Discussion [30] It is necessary at the outset to understand what it is that the Board did in examining the conduct of Mexico for the purpose of determining whether its conduct constituted improper interference such that the representation vote did not disclose the true wishes of the Union’s employees. This inquiry is necessary because it is critical to Mexico’s argument that the finding of improper interference by the Board is effectively a legal declaration that Mexico violated the Code . [31] The context in which the issue arises is the Union’s unfair labour practice complaint. That complaint is rooted in ss. 6 and 9 of the Code , which provide in part as follows: 6.   (1) Except as otherwise provided in section 8, an employer or a person acting on behalf of an employer must not participate in or interfere with the formation, selection or administration of a trade union or contribute financial or other support to it. ... 9.   A person must not use coercion or intimidation of any kind that could reasonably have the effect of compelling or inducing a person to become or to refrain from becoming or to continue or cease to be a member of a trade union. [32] These sections are in aid of protecting the fundamental right of employees enshrined in s. 4 of the Code , which stipulates that every employee is free to be a member of a trade union and to participate in its lawful activities. Where the Board concludes that there has been an unfair labour practice, it may make orders against the person committing the practice: s. 14. The Code requires notice to be given to any person alleged to have committed an unfair labour practice. [33] In this case, the Union complaint was made in the context of the Employees’ decertification application governed by s. 33 of the Code . Section 33 allows bargaining rights to be revoked if certain statutory preconditions are met, including that at least 45% of the employees in the bargaining unit sign a decertification application. If this occurs, the Board must order that a representation vote be conducted: s. 33(2). A majority of the employees casting a ballot in the representation vote must support the application for decertification: s. 33(4). Section 33(6), however, confers a discretion on the Board to refrain from cancelling the certification. That section reads as follows: 33. (6)  If an application is made under subsection (2), the board may, despite subsections (2) and (4), cancel or refuse to cancel the certification of a trade union as bargaining agent for a unit without a representation vote being held, or without regard to the result of a representation vote, in any case where (a)  any employees in the unit are affected by an order under section 14, or (b)  the board considers that because of improper interference by any person a representation vote is unlikely to disclose the true wishes of the employees. [34] As the chambers judge noted, the Code expressly prohibits unfair labour practices, which are defined in s. 6. O f particular relevance here is s. 6(3)(d), which  provides that an employer or a person acting on behalf of an employer must not (d) seek by intimidation, by dismissal, by threat of dismissal or by any other kind of threat, or by the imposition of a penalty, or by a promise, or by a wage increase, or by altering any other terms or conditions of employment, to compel or to induce an employee to refrain from becoming or continuing to be a member or officer or representative of a trade union[.] [35] Unlike a finding that a person has engaged in an unfair labour practice, which necessarily involves a finding of a breach of the Code , a finding of “improper interference” for the purpose of s. 33(6)(b) is not a finding that the Code has been violated. That phrase is only referred to in s. 33(6)(b) and there is no express prohibition against conduct amounting to “improper interference”. It seems to me that the purpose of a finding of improper interference by a person is simply a basis on which the Board can conclude that the vote does not disclose the true wishes of the employees. No orders of any kind can be issued against such a person, whose only connection to the proceeding is the conduct found to constitute improper interference. And because no orders may issue against them, there is no requirement on the Board to give the person notice of the proceedings. The finding has no legal effect and, in my view, does not affect their legal interests. [36] The majority of the panel in the Board reconsideration decision under review observed that “[t]he parties who have a direct and legally material interest in [a decertification application] are those bound by the certification—the employees, the employer and the certified trade union”: at para. 25. The majority summarized the Board’s jurisdiction under s. 33(6)(b) as follows: [29]      Section 33(6) permits the Board to cancel or to refuse to cancel the Union’s certification without regard to the vote if improper interference is found. A finding of “improper interference” under Section 33(6)(b) is not a contravention of the Code: 7‑Eleven . As such, the Board’s remedial authority under Section 133 is not engaged. That is the case regardless of how the parties or strangers to the proceeding choose to perceive that conduct or choose to portray it in public forums. The fact remains that the Board does not have jurisdiction under Section 33(6)(b) to issue a remedy—declaratory or otherwise—against the person who has engaged in improper interference. The Board’s sole mandate under Section 33(6)(b) is to remedy the consequences of such conduct by refusing to cancel the Union’s certification regardless of the vote. [37] This is an accurate statement of the law, and it is certainly not patently unreasonable. It is in this context that the application of s. 3(1) of the SIA must be assessed. [38] I am in substantial agreement with the analysis of s. 3(1) undertaken by the chambers judge. These principles have also recently been extensively reviewed by the Court of Appeal in England in Belhaj v. Straw, [2014] EWCA Civ 1394. The analysis of the Court of Appeal is directly pertinent to the issue before us. In particular, that court distinguishes between the scope of state immunity and situations in which there is no state immunity but courts nonetheless decline to consider certain state conduct by applying the related but independent act of state doctrine, as a form of subject matter immunity. [39] In the United Kingdom, as in Canada, state immunity as it existed at common law is now codified by statute. Section 3(1) provides, as we have seen: Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada. [40] This case turns on whether, in making its findings, the Board exercised jurisdiction over Mexico. None of the exceptions to the immunity referred to in that section apply in this case. [41] At common law, the courts would not directly implead a state as a party to proceedings, nor would a state be indirectly impleaded. This case does not give rise to a question of direct impleading – Mexico is not a party. Mexico argues, however, that it has been indirectly impleaded in the Board proceedings. [42] The concept of indirect impleading captures proceedings in which the state is not a party but in which proceedings are brought in relation to property in the state’s ownership, possession, or control: see Compania Naviera Vascongado v. S.S. Cristina (The Cristina), [1938] A.C. 485; The Parlement Belge (1879) 5 P.D. 197. [43] Mexico argues that the finding of improper interference is a finding that it breached the Code in respect of which it could claim immunity, as it did in respect of the unfair labour practices complaint, if it were a party to the proceeding. It argues that to defend against that finding would, improperly, require it to waive its immunity. Mexico has been indirectly impleaded, it argues, because the finding affects Mexico’s interest in the administration of SAWP, passes judgment on the legality of sovereign acts of Mexico conducted in its own territory, and achieves indirectly what could not be done directly. [44] A similar argument was advanced and rejected in Belhaj. Mexico submits, as was submitted in that case, that the scope of state immunity was expanded by the House of Lords in Buttes Gas and Oil Co. v. Hammer (Nos. 2 and 3), [1982] A.C. 888. The Court of Appeal noted that the decision in Buttes turned on the non-justiciability of the subject matter of the claims and expressly did not turn on state immunity. As Lord Wilberforce said in Buttes at 926 C-D: The doctrine of sovereign immunity does not in my opinion apply since there is no attack, direct or indirect, upon any property of any of the relevant sovereigns, nor are any of them impleaded directly or indirectly. [45] The Court of Appeal in Belhaj noted that cases arise in which no state is directly or indirectly impleaded, so that no issue of state immunity arises, but nevertheless courts decline to adjudicate on claims that turn on the validity of public acts of a foreign state. This is the application of the act of state doctrine. After referring to cases from other jurisdictions, including the decision of the chambers judge in this case, the Court of Appeal observed at para. 39 that “[p]roceedings will not be barred on grounds of state immunity simply because they will require the court to rule on the legality of the conduct of a foreign state.” [46] The Court went on to analyze the scope of the concept of indirect impleading for the purpose of the application of state immunity. In brief, it recognized that a state may be indirectly impleaded in circumstances where, although not named as a party, the proceeding, in effect, seeks to affect the property, rights, interests, or activities of that state, citing Article 6(2)(b) of the UN Convention on Jurisdictional Immunities of States and Their Property , 2 December 2004 (not yet in force). The Court considered academic writing, among other sources, approving of the view that the legal effects engaged should be specifically legal effects, such as the imposition of a lien or declaration of title, rather than social, economic, or political effects. Similarly, the relevant state interests should be confined to legal interests, as opposed to “interests in some more general sense”: Belhaj at para. 45. [47] The Court summarized its view of the relationship between state immunity and act of state in the following passage: [48]      The principles of state immunity and act of state as applied in this jurisdiction are clearly linked and share common rationales. They may both be engaged in a single factual situation. Nevertheless, they operate in different ways, state immunity by reference to considerations of direct or indirect impleader and act of state by reference to the subject matter of the proceedings. Act of state reaches beyond cases in which states are directly or indirectly impleaded, in the sense described above, and operates by reference to the subject matter of the claim rather than the identity of the parties. This is inevitably reflected in the different detailed rules which have developed in relation to the scope and operation of the two principles. In this jurisdiction exceptions to immunity are laid down in the 1978 Act. Limitations on the act of state doctrine, which are not identical, have now become established at common law. (See, in particular, Yukos Capital Sarl v. OJSC Rosneft Oil Co (No.2) [2014] QB 458.) The extension of state immunity for which the respondents contend obscures these differences. Such an extension is also unnecessary. Any wider exemption from jurisdiction extending beyond state immunity in cases of direct or indirect impleader is addressed in this jurisdiction by the act of state doctrine and principles of non-justiciability. The extension of state immunity for which the respondents contend would leave no room for the application of those principles. [48] I respectfully agree with this analysis. In my view, the argument advanced by Mexico is not a state immunity argument. Rather, to the extent it has merit, the argument invokes the related but separate principles of the act of state doctrine. Mexico did not argue act of state as an independent ground supporting a conclusion that the Board could not inquire into the sovereign acts of Mexico conducted within its own territory. It has not argued that proposition on appeal. Rather, its submission is, in substance, that the principle of indirect impleading should be expanded to incorporate principles drawn from the act of state doctrine. It submits that that is the proper meaning to be given to the exercise of jurisdiction by the Board in this case. [49] For the reasons already given, I would reject that submission. I do not agree that the Board exercised jurisdiction over Mexico when it considered whether Mexico’s conduct amounted to improper interference with the employees of the Union for the purpose of exercising its discretion to refuse to cancel the Union’s certification. The Board made no orders in relation to property in the ownership, possession, or control of Mexico. It did not affect Mexico’s legal interests. In my view, that conclusion is sufficient to dispose of this appeal. [50] This is not a case in which it is necessary to consider the scope or content of the act of state doctrine. I would say only this: I am not persuaded that the act of state doctrine has any application to the facts of this case. The Board did no more than examine Mexico’s conduct for the purpose of exercising its remedial powers under the law of British Columbia, in respect of the rights of the Employees, the Union, and the Employer in British Columbia. The Board considered whether certain conduct had occurred, but in doing so, the Board was not adjudicating its legal validity in Mexico or under international law, and was not adjudicating whether the conduct breached the Code. The Board was doing no more than vindicating the rights of persons in British Columbia. I do not see that the act of state doctrine, however articulated, has any application to the case before us. [51] I would dismiss the appeal. “The Honourable Mr. Justice Harris” I agree: “The Honourable Mr. Justice Groberman” I agree: “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Albu v. The University of British Columbia, 2015 BCCA 41 Date: 20150203 Docket: CA041595 Between: Mihaela Albu Appellant (Petitioner) And The University of British Columbia, Vancouver Senate Respondent (Respondent) Before: The Honourable Madam Justice Garson The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated February 14, 2014 ( Albu v. The University of British Columbia , 2014 BCSC 239, Vancouver Docket S134435) Counsel for the Appellant: P. T. Busch Counsel for the Respondent: D. J. Jordan, Q.C. Place and Date of Hearing: Vancouver, British Columbia January 7, 2015 Place and Date of Judgment: Vancouver, British Columbia February 3, 2015 Written Reasons by: The Honourable Madam Justice MacKenzie Concurred in by: The Honourable Madam Justice Garson The Honourable Mr. Justice Savage Summary: Appeal from the dismissal of a petition for judicial review of a decision by the University’s Senate Committee declining to hear an appeal of the petitioner’s academic standing in a course in which she committed plagiarism. The petitioner previously had agreed to withdraw her appeal in a settlement agreement. Held: Appeal dismissed. The settlement agreement was legally binding. The chambers judge properly confined the record on judicial review to the record of the proceedings before the Senate Committee, which does not support the petitioner’s allegations of bad faith and improper motive. Reasons for Judgment of the Honourable Madam Justice MacKenzie: [1] Mihaela Albu appeals the dismissal of her petition for judicial review of the refusal of the University of British Columbia’s Senate Committee on Student Appeals on Academic Standing (the “Senate Committee”) to hear her appeal of a failing grade. The Admissions and Academic Progress Committee of the Faculty of Dentistry (the “Faculty”) assigned her the failing grade for a course in the 2007-2008 academic year. [2] On judicial review, Ms. Albu sought orders in the nature of mandamus to compel the Senate Committee to hear her appeal of her academic standing in the course, to compel the respondent University of British Columbia (“UBC”) to enforce the decision of its President to issue a letter of reprimand regarding her academic misconduct but without further penalty (including reversing the failing grade assigned to her for the course), and to compel UBC to issue her a clean academic transcript. Mr. Justice Truscott dismissed her petition for judicial review. On appeal, she seeks an order granting the relief sought in the court below. [3] For the reasons that follow, I would dismiss the appeal. Background [4] The record of proceedings before the Senate Committee was enumerated by Mr. Justice Truscott in his reasons for judgment (2014 BCSC 239) at para. 6.  For convenience, I will set out the background as follows. [5] In the winter semester of 2008, when Ms. Albu was a student in the Bachelor of Dental Sciences (Dental Hygiene) program at UBC, an academic judgment was made in grading a paper – submitted by Ms. Albu for a literature review assignment for a course she was taking – that Ms. Albu committed plagiarism. She was given a failing grade for the course. The Dean of the Faculty referred the matter to the President’s Advisory Committee on Student Discipline (the “President’s Advisory Committee”), which found Ms. Albu had committed academic misconduct by submitting a plagiarized assignment. This Committee noted Ms. Albu had admitted her misconduct and she had apologized. [6] After receiving and considering the report from the President’s Advisory Committee, the President issued Ms. Albu a letter of reprimand on June 5, 2008.  On August 5, 2008, Enrolment Services advised Ms. Albu that her application of July 6 for “Review of Assigned Standing” had been returned and there was no change to the previously assigned grade of “0%”.  Ms. Albu then initiated an appeal to the Senate Committee. [7] However, on February 10, 2009, before that appeal was heard, Ms. Albu, represented by counsel, entered into a settlement agreement, a term of which required the Faculty to allow her to repeat the plagiarized assignment.  The agreement included these terms: 2.         Ms. Albu will withdraw her appeal by notifying the Senate Committee on Appeals on Academic Standing in writing of that fact; 3.         Ms. Albu will immediately and irrevocably execute a full and final Release of all claims in favour of the University; 8.         After Ms. Albu has submitted the Assignment for marking, the Instructor will grade the Assignment. This Assignment will be treated as a Supplemental Assignment and as such will be graded on a Pass/Fail basis; 10.       A Fail grade on the Assignment will result in a failing grade for the course, which will be recorded as a Supplemental grade of “F” on the transcript. In accordance with UBC policy, “A student at any level of university study who fails for a second time (which need not be consecutive) will be required to withdraw from the University. After a period of at least one year, an appeal for permission to re-enroll will be considered. Such an appeal will be granted only after the appeal has been reviewed and approved by the dean of the faculty concerned. A negative decision by the dean may be appealed to the Senate Admissions Committee.” (UBC Calendar 2008-09, V. Policies and Regulations, Advancement Regulations, para. 6); 13.       Ms. Albu will keep confidential and will not disclose to anyone except her legal advisors the fact that she has made this settlement agreement and the terms of this settlement agreement except as she may be compelled by law; 14.       The grade which Ms. Albu receives for the Assignment and the resulting grade for the course are final (“Grades”). Ms. Albu agrees that she will not pursue any grievance, appeal or any other remedy against the University as a result of the Grades or for any other reason. Ms. Albu recognizes that this is a last chance agreement as consideration for allowing her to redo the Assignment . [Emphasis added.] [8] Ms. Albu submitted the assignment on May 14, 2009.  An Associate Dean of the Faculty advised Ms. Albu by letter dated July 7, 2009, that her supplemental assignment had been graded and she had been given a failing grade. [9] In April 2010, Ms. Albu commenced a civil action against UBC, a professor in the Faculty, and the director of the Dental Hygiene program over the finding of plagiarism and her assigned standing in the course. Counsel for UBC says this action, which is outstanding, includes allegations of negligence, breach of contract and breach of fiduciary duty, which are based substantially on Ms. Albu’s claims that the Faculty entered the settlement agreement in bad faith and with improper motive. [10] In May 2012, by email, Ms. Albu sought to continue the appeal of her academic standing in the course to the Senate Committee. In a letter dated April 29, 2013, she requested a hearing before the Senate. The Senate Committee, by email dated May 14, 2013, denied her request to initiate an appeal on the basis that the agreement and release had fully resolved the issues. [11] Ms. Albu’s claims of bad faith and improper motive were not before the Senate Committee. The record on judicial review [12] At the outset of the proceedings below, the chambers judge refused Ms. Albu’s attempts to introduce various materials that were not part of the record before the Senate Committee. [13] Ms. Albu had obtained, through disclosure and examinations for discovery in the civil action, information she says demonstrates the Faculty’s bad faith. She had attempted to introduce, among other things, extracts from the transcript of an examination for discovery, emails between Faculty staff disclosed in the civil action, and materials obtained pursuant to an application under the Freedom of Information and Protection of Privacy Act , R.S.B.C. 1996, c. 165. Ms. Albu had endeavored to rely on those materials to support her argument that “the letter agreement was not done properly according to the law and in good faith”. [14] The chambers judge refused to consider those materials, acceding to UBC’s objections that the materials were not part of the record of proceedings before the Senate Committee, and therefore not part of the record to be considered on judicial review. He decided that, in law, the judicial review had to be based on the actual record that was before the Senate Committee. The judicial review [15] The chambers judge determined, subject to Ms. Albu’s claim the agreement was not legally binding, that the petition was an abuse of process in that she sought judicial review over matters she had compromised and settled through the agreement and release, with the assistance of her counsel, in consideration for the right to repeat the assignment. [16] At the hearing of the petition, Ms. Albu informed the court that it was she who had asked the Faculty if she could re-do the assignment. The Faculty agreed, but on the condition that she withdraw her appeal to the Senate Committee. [17] Ms. Albu also told the court below that she was satisfied and pleased with the paper she submitted for the repeated assignment. [18] The chambers judge noted that Ms. Albu sought to rely on the fact she has never complied with the term requiring her to withdraw (in writing) her appeal to the Senate Committee as one reason why she should be entitled to continue her appeal through judicial review. Subject to his determination as to whether the agreement was valid and binding on her, the chambers judge denied Ms. Albu’s judicial review, saying, “The Court will not countenance a party relying upon their own default to support a right to judicial review…” The agreement and release [19] Ms. Albu argued in the court below that the agreement allowing her to repeat the assignment required approval by the Senate or board of governors and because it was not so approved, executed or otherwise authorized in accordance with the University Act , R.S.B.C. 1996, c. 468, the agreement was void, voidable, unenforceable and illegal. She contended those members of the Faculty who negotiated the agreement acted without jurisdiction to bind UBC. While she submitted there were no rules or policies within the Faculty requiring an undergraduate student to sign an agreement and release, she also said negotiations, drafting the terms of the agreement, and deciding the execution of the agreement, are part of the Faculty’s “affairs and business” as authorized by s. 40(c) of the University Act . This argument also appeared to form part of her submission that the settlement agreement was entered into in bad faith and for improper motive on the part of the Faculty. [20] Having cited s. 27 of the University Act as to the powers of the board of governors, s. 37 as to the powers of the Senate, and ss. 39 and 40 as to the constitution of faculties and their powers and duties, the chambers judge then said he was satisfied the Faculty had received the approval of the Senate when its rules were promulgated and its examiners appointed. He concluded a supplemental examination, as accorded Ms. Albu under the agreement, “is part of the Academic Policies and Procedures of the Faculty of Dentistry and is stated to be a privilege and not a right” (para. 24). The judge determined the agreement required the Faculty to allow Ms. Albu to repeat the assignment; in return, she agreed to immediately and irrevocably execute a full and final release, in favour of UBC, of all claims. He found that the agreement and release were properly executed by Ms. Albu, and that, because neither the Senate nor the board of governors was obliged to do anything by the terms of the agreement, neither was required to execute the agreement or the release. He concluded the agreement was solely within the jurisdiction of the Faculty to negotiate with Ms. Albu. [21] The chambers judge considered other arguments advanced by Ms. Albu, including that the confidentiality term (term 13 replicated above at para. 7) was wrong and showed bad faith on the part of the Faculty. At the hearing, Ms. Albu argued this was so because “just drafting this term indicates the fact that faculty did not act in good faith and requested I withdraw my appeal and trying to keep everything within its boundaries …”. The judge responded, “I think the university, to put in this confidential clause, was concerned that if this became a matter of public knowledge other students who failed may ask for supplemental examinations”. [22] Ultimately, the chambers judge found no merit to the judicial review because the agreement was valid in law and stood as the resolution of the issues between the parties. He declined to direct the Senate to reconsider its decision not to permit an appeal by Ms. Albu. [23] Finally, the judge exercised his discretion not to grant the equitable remedy of mandamus as sought because, having taken the privilege of repeating the assignment but having failed to withdraw her appeal to the Senate Committee as she had agreed, Ms. Albu did not come to court with clean hands. On Appeal [24] Ms. Albu’s contentions on appeal, as described in her factum, can essentially be reduced to these: (a)      she did not have a fair hearing because the chambers judge did not permit her to adduce evidence, described above, discovered after she signed the agreement and release, and which she says demonstrated malicious behaviour and bad faith by the Faculty; (b)      the judge erred in limiting the evidence to the record before the Senate Committee and by not intervening as amicus curiae on her behalf when she was self-represented; (c)      the agreement and release were not legally binding and therefore it is not an abuse of process to seek judicial review; (d)      the agreement and release were illegal because (i)       the Faculty acted negligently and in bad faith in entering into the agreement and release, did not disclose material information to her, and created a natural injustice by requiring her to waive her rights to appeal her grade so they could avoid the oversight of their negligence and academic judgment; and (ii)      the agreement and release were not within the jurisdiction of the Faculty, the Faculty was required to obtain the approval of UBC for any contracts and therefore had no authority to bind UBC, and the Faculty did not follow the rules and procedures related to supplemental examinations; (e)      the judge erred in applying the clean hands doctrine to her. Ms. Albu also asserts the Faculty acted in bad faith in assigning and assessing the repeated assignment. [25] In oral submissions, Ms. Albu focused largely on her various allegations of bad faith and improper motive, which she had attempted to pursue without success before the chambers judge. She referred this Court to material he refused to consider because it was not part of the record of proceedings before the Senate Committee. [26] UBC repeats its argument that if the agreement and release are legally binding, these allegations, which are in effect the claims of breach of contract and breach of fiduciary duty that form the bases of Ms. Albu’s civil action, are outside the scope of judicial review. Fresh Evidence [27] Ms. Albu applies to adduce as fresh evidence certain exhibits attached to her affidavit, sworn May 5, 2014, to argue, it seems, that the Faculty’s academic judgment of her repeated assignment, and an expert report, Dr. Farah Shroff’s academic judgment of the repeated assignment (obtained for the civil action), are contradictory. She deposes, “The UBC Vancouver Senate did not look at how the Faculty of Dentistry arrived at its academic judgment regarding my repeat assignment 4 and the final grade for the DHYG 404 course” (para. 14). Through other exhibits attached to her affidavit, Ms. Albu appears to dispute the characterization of the repeated assignment as a supplemental assignment, and to clarify that she sought to appeal to the Senate Committee her academic standing in the course, not the President’s decision to issue the reprimand letter (as set out by the chambers judge in his summary of the record of proceedings in para. 6(e) of his reasons – I note that at the outset of his reasons he refers to “her appeal from the standing assigned to her…”). [28] Ms. Albu also applies to adduce a chambers decision on document disclosure made in the civil action, which is new evidence as it was made after the Senate Committee declined, in May 2013, to hear her appeal. [29] In Golder Associates Ltd. v. North Coast Wind Energy Corp. , 2010 BCCA 263, Mr. Justice Chiasson set out the test for admitting fresh evidence in civil appeals: [33]      The test for the admission of fresh evidence was stated in Palmer v. The Queen , [1980] 1 S.C.R. 759 at 775: (1)        The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [[1964] S.C.R. 484]. (2)        The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3)        The evidence must be credible in the sense that it is reasonably capable of belief, and (4)        It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [34] [35]      This Court in Spoor v. Nicholls , 2001 BCCA 426, confirmed that the Palmer criteria apply in civil cases and observed in para. 16 that “in Palmer the court said that the due diligence test should be applied more strictly in civil than in criminal cases”. [36]      In Scott v. Scott , 2006 BCCA 504, Ryan J.A. observed in para. 21: the nature of an appeal is to examine the record and determine whether there has been an error of law or a palpable error of fact: it is not a continuation of a trial at a different stage. Thus, generally speaking, the need for certainty and finality leaves no room for the admission of fresh evidence on appeal [30] In Jens v. Jens , 2008 BCCA 392, at paras. 31-34, Madam Justice Levine explained new evidence is rarely admitted, but this Court will admit it where the failure to admit would result in a long-term injustice. In this appeal, however, the chambers decision in the civil action is not relevant and should not be admitted. [31] I conclude Ms. Albu’s application does not meet the test for the admission of fresh evidence on appeal. The fresh evidence with respect to the contradictory academic judgments, the nature of the repeated assignment, and the subject of her appeal to the Senate Committee are not determinative of any issue in the judicial review, which turns on the validity of the agreement, and are not relevant to that proceeding. I view this application to be another attempt to have this Court consider material that was not part of the record before the chambers judge and which he properly refused to consider. [32] I would dismiss the application to adduce fresh evidence. Analysis [33] Ms. Albu largely repeats the arguments she either unsuccessfully advanced, or attempted to advance, in the judicial review. She seeks to refer this Court, as she endeavored to refer the chambers judge, to materials not before the Senate Committee, and therefore not part of the record on judicial review. [34] Ms. Albu says the chambers judge erred in limiting the evidence on the judicial review to the record before the Senate Committee. But I agree he was precluded at law from considering the extraneous material, including (amongst other items) emails between members of Faculty staff, and excerpts from the transcript of an examination for discovery in her civil action. [35] Ms. Albu’s submissions reflect a fundamental misunderstanding of this Court’s role in an appeal of a judicial review decision. That courts perform a supervisory role on judicial review is well known, as explained by Mr. Justice Bastarache and Mr. Justice LeBel in Dunsmuir v. New Brunswick , 2008 SCC 9, [2008] 1 S.C.R. 190: [28]      …  Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. The supervisory role, however, means that judicial review proceedings are to be conducted on the record: Actton Transport Ltd. v. British Columbia (Employment Standards) , 2010 BCCA 272 at paras. 19-23. [36] On judicial review, the reviewing court generally does not admit evidence that is not part of the record: SELI Canada Inc. v. Construction and Specialized Workers’ Union, Local 1611 , 2011 BCCA 353 at para. 80. This Court clearly explained in Actton Transport Ltd. at para. 23 that the reviewing court usurps the role of the tribunal where it receives new evidence that was not before the tribunal and conducts a de novo hearing rather than reviewing the tribunal’s decision based on the record that was before the tribunal. Such an approach is not appropriate on judicial review or on an appeal from a judicial review decision. [37] The chambers judge reviewed the Senate Committee’s decision on the basis of the material before it. Thus, there was no procedural unfairness in the court below in identifying the record, nor has Ms. Albu identified any other unfairness in the conduct of the hearing below. [38] Further, as the respondent accurately says, her affidavits that were before the chambers judge and are now in her Appeal Book contain various inadmissible statements of conclusion, argument and hearsay. [39] Ms. Albu makes various submissions about assistance she required as a self-represented litigant in the proceedings below. From the, albeit brief, extracts of the transcripts of the proceedings below that Ms. Albu put before us, I consider the chambers judge was courteous and patient during the proceedings. [40] Ms. Albu maintains the Faculty acted in bad faith in entering into and complying with the agreement and release, and therefore they should not be enforced. However, the evidence before the Senate Committee and properly before the chambers judge does not support the conclusion Ms. Albu advocates before this Court. The chambers judge concluded the agreement and release were legally binding on Ms. Albu. She has not identified any reason that would permit this Court to interfere with that conclusion. Disposition [41] I would not sustain any of Ms. Albu’s submissions. I see no merit to this appeal based on the record of proceedings as properly limited and considered by the chambers judge. I would dismiss the appeal. “The Honourable Madam Justice MacKenzie” I agree: “The Honourable Madam Justice Garson” I agree: “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Healey v. Chung, 2015 BCCA 38 Date: 20150203 Docket: CA041711 Between: Douglas Healey Appellant (Plaintiff) And Sun Im Sunnie Chung also known as Sun I. Chung Respondent (Defendant) Corrected Judgment:  The summary was corrected at p. 2 on February 4, 2015. Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Kirkpatrick The Honourable Madam Justice D. Smith On judicial review from:  An order of the Supreme Court of British Columbia, dated March 14, 2014 ( Healey v. Chung , 2014 BCSC 429, New Westminster Docket No. M98684). Counsel for the Appellant: G.R. Cameron Counsel for the Respondent: P. Mazzone Place and Date of Hearing: Vancouver, British Columbia November 17, 2014 Place and Date of Judgment: Vancouver, British Columbia February 3, 2015 Written Reasons by: The Honourable Madam Justice Saunders Concurred in by: The Honourable Madam Justice Kirkpatrick The Honourable Madam Justice D. Smith Summary: The appeal is from an award of damages for injuries sustained when the appellant in a crosswalk with the light in his favour, was struck by a vehicle driven by the respondent. He contends the judge erred in receiving as expert reports, consulting reports from physicians to his doctor disclosed to the defendant in the family physician’s clinical records, in misapprehending aspects of his medical files, in misapprehending evidence concerning the appellant’s recollection of the accident, in misapprehending evidence relating to his employment and loss thereof, and in considering the issue of mitigation of damages. Held: Appeal allowed. The two consulting reports in issue which were material to the order appealed, did not satisfy the requirement for attestation of the reports by the experts required by R. 11-2, or contain the essential requirements required by R. 11-6. As such, they were not expert reports for the purposes of R. 11-6(10) and (11). Further, the complaints of misapprehension of the medical files, and evidence of the appellant’s recollection of the accident, are established. On these two bases, a new trial is ordered. Reasons for Judgment of the Honourable Madam Justice Saunders: [1] Mr. Healey appeals from the judgment of $50,652.64 awarded to him for personal injuries suffered when, as a pedestrian, he was struck by a motor vehicle driven by the respondent, Ms. Chung. [2] Liability was admitted and the only issue at trial was the quantum of damages. Mr. Healey claimed the accident caused him ongoing physical and psychological injuries from what he said was a significant incident. Mr. Healey claimed damages of $485,000 or more for his injuries, including a significant sum for future loss of income. [3] In his reasons for judgment Mr. Justice Ball did not accept Mr. Healey’s view of the gravity of the incident or the injuries he claimed. Further, he held that Mr. Healey had failed to mitigate his damages. [4] Mr. Healey contends that the judge’s assessment of his credibility cannot stand for two reasons. First, he says the judge’s view of his evidence was heavily influenced by evidence in the form of consulting reports that he says were wrongly admitted as expert reports. Second, he contends that the judge misapprehended the evidence in matters relevant to the assessment of his credibility. Mr. Healey also submits that the judge erred in law in respect to the onus to prove a failure to mitigate by finding such a failure absent findings of fact that employment was or would have been available to Mr. Healey. [5] The accident occurred on December 4, 2005, at the intersection of 41 st Avenue and Clarendon Street, in Vancouver, British Columbia. Mr. Healey was walking southbound across 41 st Avenue in a marked crosswalk with a green light in his favour. As he crossed the street he was struck by a vehicle driven by Ms. Chung. Admission of Clinical Records [6] Mr. Healey’s first complaint is that the judge wrongly admitted documents found in the clinical records of the family physician (described by the parties as consult letters) as expert reports. [7] The medical evidence and evidence of Mr. Healey’s physical capacity consisted of expert reports from seven expert witnesses: Dr. Kuo, Mr. Healey’s family physician (three reports); Dr. Hershler, a specialist in physical medicine and rehabilitation (three reports); Dr. O’Shaughnessy, a psychiatrist; Dr. Schmidt, a clinical psychologist qualified in neuropsychology; Mr. Worthington-White, an occupational therapist (two reports); Ms. Landy, a registered nurse with expertise in rehabilitative nursing; and Dr. Powers, an expert in vocational rehabilitation. [8] Ms. Chung adduced one report from an independent medical examiner, Dr. Schweigel, an orthopaedic surgeon. In addition, Ms. Chung proffered as evidence the consulting reports of Dr. To and Dr. Truong, psychiatrists, reporting to Dr. Kuo following a referral of Mr. Healey. Mr. Healey says these two documents were wrongly admitted as expert reports. Dr. To’s consulting report is entitled “Mental Health Initial Assessment – Consult” and refers to a “psychiatric assessment”, but the doctor’s qualifications are not revealed in the report, nor is it signed. Dr. Truong’s consulting report is entitled “Psychiatric Assessment” and refers to the doctor as a psychiatrist, although it does not describe more fully the doctor’s qualifications. It is signed. [9] The two contested documents were part of the clinical file of Dr. Kuo, and were properly disclosed to Ms. Chung. Prior to trial, counsel for Ms. Chung advised counsel for Mr. Healey that she intended to rely on these documents as expert reports. Counsel for Mr. Healey did not respond to the letter, being of the view that the documents were not expert reports within the meaning of R. 11-6 of the Supreme Court Civil Rules and that the law therefore did not require him to provide notice of his objection unless and until they were tendered at trial. [10] When the two documents were tendered at trial, counsel for Mr. Healey objected on the basis they were not admissible opinion evidence, in form or content. Counsel for Ms. Chung offered to produce the doctors for cross-examination, although they were never called. [11] The judge ruled that the two documents met the admissibility requirements of the Supreme Court Civil Rules , saying: [8]        In the case before me I am obliged in the circumstances to look at Rule 11-6, and particularly Sub-Rule 1, where the requirements for an expert’s report [are] discussed. The rules are not to be taken out of context. In the context of this case, it is very clear that Dr. Kuo, who was the treating physician of Mr. Healey, the plaintiff, was well aware of the location, area of expertise, address, name, qualifications of the persons to whom she sent Mr. Healey because these reports resulted from her sending Mr. Healey to both doctors. [10]      As a result, we have a document which in these circumstances the expert's name, address, and area of expertise, with his qualifications, employment and educational experience are well known. The instructions are simple. The nature of the opinion sought and the issues are set out. The expert’s opinion is there on the issues and I am satisfied that the expert’s opinion contains the required factual underpinning set out in 11-6(1)(f). [18]      In the circumstances, I am satisfied that while it is not perfect compliance with the rules, it is certainly sufficient compliance in the circumstances where the parties knew so well who the experts were and, therefore, the documents will be treated as expert reports in the normal way. I will therefore admit the document signed by Agnes To and the document prepared by Dr. Truong to which I have referred. [12] Rule 11-6 of the Supreme Court Civil Rules sets out the requirements for tendering an expert report: (1)   An expert's report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following: (a) the expert's name, address and area of expertise; (b) the expert's qualifications and employment and educational experience in his or her area of expertise; (c) the instructions provided to the expert in relation to the proceeding; (d) the nature of the opinion being sought and the issues in the proceeding to which the opinion relates; (e) the expert's opinion respecting those issues; (f) the expert's reasons for his or her opinion, including (i)  a description of the factual assumptions on which the opinion is based, (ii)  a description of any research conducted by the expert that led him or her to form the opinion, and (iii)  a list of every document, if any, relied on by the expert in forming the opinion. [13] Rule 11-2 referred to in R. 11-6(1) provides: (1)   In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party. (2)   If an expert is appointed under this Part by one or more parties or by the court, the expert must, in any report he or she prepares under this Part, certify that he or she (a) is aware of the duty referred to in subrule (1), (b) has made the report in conformity with that duty, and (c) will, if called on to give oral or written testimony, give that testimony in conformity with that duty. [14] Rules 11-6(10) and (11) deal with notice of objection to an expert report in these terms: (10)      A party who receives an expert report or supplementary report under this Part must, on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date, serve on every party of record a notice of any objection to the admissibility of the expert's evidence that the party receiving the report or supplementary report intends to raise at trial. (11)      Unless the court otherwise orders, if reasonable notice of an objection could have been given under subrule (10), the objection must not be permitted at trial if that notice was not given. [15] Mr. Healey contends that the documents of Dr. To and Dr. Truong failed to set out the qualifications and educational experience of the doctors, the instructions provided to the doctors, the nature of the opinions sought and, significantly, most of the items required by R. 11-6(1)(f). [16] I will start with R. 11-2. While all of the authors referred to in para. 7 above attested as required by that Rule (Dr. Kuo in the last of her three reports), neither of the impugned consulting reports contains a commitment to the standards of R. 11-2, or evinces the author’s awareness that the documents would be tendered as expert reports. It is plain the two consulting reports were simply in response to Dr. Kuo’s referrals of Mr. Healey in the course of treatment. As such, while opinion, they do not meet the requirements of R. 11-2 in any respect. [17] It is plain, also, that the documents do not comply with R. 11-6(1). Indeed, I read the judge’s ruling on this issue as recognizing that they do not. Yet he held that there was “sufficient compliance” because the parties “knew so well who the experts were”. In particular, the judge referred to Dr. Kuo’s knowledge of the qualifications of Dr. To and Dr. Truong. In my respectful view, referral by a family doctor to a physician with specialized knowledge does not equate to knowledge by the patient of the specific information R. 11-6(1) requires in the expert report. Apart from the obvious fact that the family physician is not naturally privy to the knowledge, education, or experience of another physician, whatever is known to the family physician does not become the patient’s knowledge unless the doctor communicates that knowledge to the patient. More importantly, Dr. Kuo’s knowledge and comfort with the clinical expertise of Dr. To and Dr. Truong is of little assistance to the court seeking to determine the weight to be accorded various pieces of evidence, including not only the reports those physicians authored but also the evidence from other physicians. [18] Nor is there adequate recitation in the documents authored by Dr. To and Dr. Truong of the bases for the opinions expressed. For example, Dr. To states “[Mr. Healey] is very selective and inconsistent when he tells me what happens from that time on” and “[i]t seems that he has different interaction among the different health professionals who have been involved in his care”, but she does not describe the documents or research conducted that led to those opinions (R. 11-6(1)(f)), thereby to permit the court to assess the validity of the statements. [19] It is well established that clinical consulting reports, without more, may not be admitted for the validity of opinions expressed in them. In Mazur v. Lucas , 2010 BCCA 473, 325 D.L.R. (4th) 385, this court observed: [42]      New Rule 11-6 expands on what an expert was required to state under old Rule 40A, but does not alter the general principle that it is essential for the trier of fact to know the basis of an expert opinion so that the opinion can be evaluated. The Rule has a dual purpose. The second purpose is to allow the opposing party to know the basis of the expert’s opinion so that they or their counsel can properly prepare for, and conduct, cross-examination of the expert, and if appropriate, secure a responsive expert opinion. Thus, the result of these reasons would be the same if this case had arisen under the new Rules. There is nothing in these Rules touching directly on the question of the admissibility of hearsay evidence in expert reports. [20] While there is, perhaps, room for some latitude in determining whether a document meets the requirements of the Rules, for example as to including the address and expertise where those are capable of easy determination based upon the information in the document, the essential components of qualifications, education, experience, information and assumptions on which the opinion is based, the instructions given, and the research, must be included to justify receipt of the report as an exception to the hearsay rule. This conclusion is consistent with authorities addressing the admissibility of opinion or consulting reports included in clinical records: Seaman v. Crook , 2003 BCSC 464, 14 B.C.L.R. (4th) 132; Cunningham v. Slubowski , 2003 BCSC 1904; and F.(K.E.) v. Daoust (1995), 3 B.C.L.R. (3d) 128, 34 C.P.C. (3d) 393 (C.A.). In F.(K.E.) , Mr. Justice Hutcheon said, in relation to R. 40A of the Rules of Court , which was less demanding in the content of an admissible expert report than current R. 11-6(1): [13]      I can only say that what occurred was most unsatisfactory. The admissibility into evidence of the written reports of experts is an exception to the usual rule that witnesses be examined and cross-examined in open court. The exception was introduced into this Province in 1976 by way of an amendment to the Evidence Act . Certain safeguards were and are provided including the delivery of the report some days before trial (now at least 60 days) and a statement of the qualifications of the expert. The safeguards did not operate in this case. [15]      Other than the information on her letterhead we know nothing of the qualifications of Dr. Sivertz. No order was made to dispense with the requirement of Rule 40A(5)(b). [20]      Whatever the explanation, I am of the view that the plaintiff did not consent to the admissibility of Dr. Sivertz’s report under the provisions of Rule 40A. I am further of the view that in the circumstances of this case the report ought not to have been admitted as an opinion on the vital question of causation. [21] It is true, as the respondent contends, that Seaman and F.(K.E.) are cases in which the opinion sought to be adduced was found in clinical records that were voluminous, but I do not consider that circumstance detracts from the principle that a clinical record containing an opinion, such as these consulting reports, must substantially comply with the requirements of the Rules in order to attract the exception to the usual rule for examination of witnesses spoken of by Mr. Justice Hutcheon. [22] The respondent contends that she gave notice to Mr. Healey of her intention to use the letters, that Dr. Kuo knew of the qualifications of the two doctors, and that other deficiencies were “minor”. She says Mr. Healey was obliged to express his objections as required by R. 11-6(10) and (11). [23] Forthrightness between counsel is favoured and is to be expected in litigation. Yet I cannot say there was anything to which we have been referred that put the positive legal duty on Mr. Healey to object under those Rules for the reason that the consulting reports sent to Dr. Kuo and disclosed as part of her clinical records were simply not ‘expert reports’ as regulated by the Rules. While they may be professional opinions from one doctor to another in the course of treatment, the impugned documents do not comply with R. 11-2; I do not consider they carry the basic hallmark of an ‘expert report’, being an opinion intended by the author, at some point, to be presented for the assistance of the court. Significantly, they contain none of the information that is essential to qualification of the author as an expert, nor the information reviewed by the author by which the court may assess the cogency of the opinion. [24] As I do not consider that these clinical records can be considered to be ‘expert reports’ as that term is used in the Rules, entitled to the privileged treatment for receipt of hearsay evidence discussed by Mr. Justice Hutcheon, I conclude that R. 11-6(10) and (11) did not require a notice of objection. [25] In the alternative to the two documents coming within R. 11-6, Ms. Chung says the judge could have exercised his discretion and admitted the documents as opinions under R. 11-7. Rule 11-7 provides latitude to a judge to receive opinion evidence that is not included in an expert report: (1) Unless the court otherwise orders , opinion evidence of an expert, other than an expert appointed by the court under Rule 11-5, must not be tendered at trial unless (a) that evidence is included in a report of that expert that has been prepared and served in accordance with Rule 11-6, and (b) any supplementary reports required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served in accordance with Rule 11-6 (5) to (7). (6) At trial, the court may allow an expert to provide evidence, on terms and conditions, if any, even though one or more of the requirements of this Part have not been complied with , if (a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part, (b) the non-compliance is unlikely to cause prejudice (i)    by reason of an inability to prepare for cross-examination, or (ii)   by depriving the party against whom the evidence is tendered of a reasonable opportunity to tender evidence in response, or (c) the interests of justice require it. [Emphasis added.] [26] Ms. Chung does not contend the judge exercised his discretion under R. 11-7(1). Her approach is consistent with the record that shows the judge was not asked to exercise his discretion, and it is consistent with Ms. Chung’s submission at trial which approached the question as one of compliance with R. 11-6. We are invited, however, to approach these documents as admissible in the exercise of discretion. [27] I do not consider that this is an appropriate case for us to engage for the first time in a full analysis of discretion, so as to draw our own conclusions. At trial the judge did not consider his R. 11-7 discretion and accordingly the possibility of exercising discretion is without his expansion. In XY, LLC v. Zhu , 2013 BCCA 352, 366 D.L.R. (4th) 443, Madam Justice Newbury for the Court adopted this description from Perry v. Vargas , 2012 BCSC 1537 at para. 22: In my view the discretion provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules . None was provided. [28] Adopting that approach, in my view this is not a case for us to exercise the discretion that was available to the judge under R. 11-7.  There was ample medical evidence before the court, absent the opinions from these documents, to guide the trial judge in findings of fact. Further, it was open to the defendant to develop her own body of medical opinion and to advance it in proper form, including as to the required description of qualifications and experience and listing of opinion sought and matters considered. I see no compelling reason to derogate from the requirements of either R. 11-2 or R. 11-6 in this case. To do so, in my view, would admit into evidence opinions that were not crafted for that purpose and that are without the necessary information to permit consideration of their substance and effect in the context of the issues before the court. [29] Last, Ms. Chung contends that the two documents, in any event, were inconsequential in the judge’s reasons, and thus the admission of these documents had little impact on the outcome of the case. [30] One of the issues at trial was the assertion by Mr. Healey that he suffered from depression caused by the accident. This allegation bore upon the assessment of damages. To support this allegation was an expert report from Dr. O’Shaughnessy. Based upon the medical records and his interview with Mr. Healey, Dr. O’Shaughnessy diagnosed Mr. Healey as having an Adjustment Disorder with anxiety and an Adjustment Disorder with depressed mood. Yet the judge rejected all allegations of depression and instead relied upon the two consulting reports, saying: [58]      Mr. Healey stated that he suffered from depression because of the accident. Depression was not reported in his post-accident symptomatology until 2008. Dr. Kuo’s records do show that in 2003 she concluded that Mr. Healey had symptoms consistent with depression. This reporting, however, preceded the accident, and according to the psychiatric specialists Dr. Kuo referred Mr. Healey to in 2009 and 2010, no evidence supported any Axis 1 diagnosis in the DSM-IV, and no symptoms met the criteria for post-traumatic stress disorder. [31] I would first observe that Dr. Truong’s report cryptically states “Axis 1: Adjustment d/o with depressive symptoms – in remission” and by so saying Dr. Truong’s report appears to be inconsistent with the judge’s statement: “according to the psychiatric specialists [Dr. To and Dr. Truong] no evidence supported any Axis 1 diagnosis”. Perhaps this exemplifies the effect of non-compliance with the requirements for expert reports, as the judge drew from the report a categorical absence of any Axis 1 diagnosis which appears to be inconsistent with Dr. Truong’s report. Setting that discrepancy between the judge’s assertion and the notation in Dr. Truong’s report aside, it is clear from the judge’s para. 58 that he put weight on the consulting reports and drew conclusions from them adverse to Mr. Healey. In other words, they were consequential in the judge’s reasoning; one cannot say the reports had little bearing on the outcome, in my view. Errors of Fact [32] Mr. Healey also complains of several factual matters. The judge rejected Mr. Healey’s evidence, saying: [2]        … I reject the bulk of the plaintiff’s evidence regarding the nature of the accident and the injuries he claims to have sustained. He was not a credible witness. The plaintiff’s almost complete lack of credibility made determining what actual injuries occurred during the pedestrian-vehicle accident quite complicated. [3]        Many profound differences exist between the facts of the accident as I found them and the factual assumptions that many of the medical and other experts who have proffered opinions made (these differences seriously question the evidentiary value of those reports). [33] Mr. Healey says that this conclusion is fatally flawed because the judge misapprehended evidence, including evidence material to his credibility. He focuses on three areas of misapprehension of the evidence: his reporting of symptoms to doctors as understood by the judge; the mechanics of the accident; and his return to work. I need only address the first two of these complaints as they are sufficient, in my view, to amount to palpable and overriding error. Thus I do not address the more complex complaint as to the judge’s treatment of the evidence concerning Mr. Healey’s return to work. [34] In my respectful view, the judge overlooked and misapprehended evidence materially bearing on the credibility assessment, thus fatally undermining the judgment. [35] As to the evidence relating to Mr. Healey’s reports of symptoms, the judge found: [58]      Mr. Healey stated that he suffered from depression because of the accident. Depression was not reported in his post-accident symptomatology until 2008 . Dr. Kuo’s records do show that in 2003 she concluded that Mr. Healey had symptoms consistent with depression. This reporting, however, preceded the accident, and according to the psychiatric specialists Dr. Kuo referred Mr. Healey to in 2009 and 2010, no evidence supported any Axis 1 diagnosis in the DSM-IV, and no symptoms met the criteria for post-traumatic stress disorder. [67]      Dr. Schweigel, who conducted an independent medical legal examination of the plaintiff, confirmed that, apart from complaints of chest pain related to coughing during a viral illness, chest pain was not complained of until summer 2007 . In other words, it was too far away in time to be associated with the accident. [87]      With a single exception much later in the course of treatment by Dr. Kuo, none of the medical legal reports or clinical records presented by Dr. Kuo or any of the locums who dealt with Mr. Healey’s case mention vomiting . [88]      The law is clear that the failure to report a single symptom to a doctor will not itself become a basis for a negative credibility finding. In this case, one of the ongoing problems, as noted above regarding complaints about the nature of the accident or with symptoms in the ribs or chest, is that erroneous facts become the diagnostic basis for an expert doctor to connect a specific symptom with a specific injury. Here, no expert report connects vomiting with any injury caused by the accident. [Emphasis added.] [36] Mr. Healey contends, correctly in my view, that these passages reflect a misapprehension of evidence as to the first reporting of depression, vomiting and chest pain. Rather than the first report of depression being 2008, Dr. Kuo’s report reveals that Dr. Kuo addressed the potential issue of medicine and counselling for post-traumatic stress disorder on December 12, 2005, eight days after the accident. Dr. Kuo also administered the Beck Depression Scale and discussed antidepressant medication with Mr. Healey on August 31, 2006. He gave Mr. Healey samples of an antidepressant on October 13, 2006, all within one year of the accident. [37] So too, the judge’s reference to a failure to report vomiting to doctors appears to overlook evidence concerning stomach ailments found in Dr. Kuo’s reports, first that a month after the accident Mr. Healey was advised to take Advil rather than Voltarin because Voltarin often gives stomach upset and second that in June 2006 Mr. Healey was diagnosed with gastritis and reflux most likely due to use of anti-inflammatories to treat the on-going pain. And the clinical records of Dr. Posen, a naturopathic doctor, note on August 8, 2006, that Mr. Healey reported episodes of nausea and vomiting. [38] Dr. Kuo’s reports also note that contrary to the judge’s view that there was no complaint of chest pain until the summer of 2007, on the examination the day after the accident Mr. Healey reported chest pain. [39] These three symptoms selected by the judge for comment significantly bear upon the foundation for the judge’s findings of credibility. On my reading of his reasons, the judge used the evidence in respect to these three symptoms to explain his rejection of much of the medical evidence advanced by Mr. Healey. They are, thus, material and bear upon the resulting order. [40] Mr. Healey also is highly critical of the judge in his view of the mechanics of the accident. The judge said: [7]        Mr. Eng, who was a driver in the accident’s immediate vicinity, was the sole witness who saw the accident, and he testified at trial. He said Mr. Healey recognized he was going to be struck by a vehicle because Mr. Healey turned toward the vehicle putting both hands on the vehicle’s hood and pushing away from the vehicle. [8]        According to Mr. Eng, Mr. Healey’s body ended up on the road by the driver’s side door of Mr. Eng’s vehicle. [9]        Mr. Eng said the Chung vehicle was not speeding but did not stop for Mr. Healey. He said Mr. Healey “went maybe five to eight feet in the air” and landed about 10 feet from where he was struck. [12]      Mr. Eng was an independent witness and presented his evidence in a forthright and credible manner. I accept Mr. Eng’s version of the events of the accident as correct. [41] Referring to Mr. Healey in relation to the accident, the judge said: [17]      Mr. Healey used far more dramatic terms than Mr. Eng to describe the accident – especially to medical practitioners. [42] After discussing references in the medical reports to Mr. Healey saying he was told he had been flung 30 to 40 feet forward in the accident, the judge concluded with a minimal view of the accident: [35]      As previously noted, I accept Mr. Eng’s evidence as to the events of the accident. He was in a uniquely immediate position to see the accident from a stationary position. He was not distracted, and nothing blocked or reduced his vision. I accept his description of the accident and that Mr. Healey landed approximately 10 feet from the location where he pushed himself away from the Chung vehicle. While he gave no estimate of the actual speed the Chung vehicle was travelling, I also accept the evidence of Mr. Eng that the Chung vehicle was not speeding. [36]      The immutable laws of physics inform my analysis: they dictate that the force necessary to cause an adult body struck by a motor vehicle to fly 20 feet in the air and 40 feet from impact to landing is far more significant than the force necessary to move an adult body pushing against a vehicle’s hood to move 10 feet from impact to landing. [37]      Moreover, and perhaps more importantly, the immediate deceleration landing in contact with the hard asphalt surface of 41st Avenue following a 40 foot flight would be expected to cause injury well beyond “minor contusions”. [38]      I reject any suggestion that Mr. Healey flew 20 or 40 feet to a height of 15 or 20 feet from impact to place of rest. The evidence does not support that submission. [43] Later in the reasons for judgment, the judge directly attributed to Mr. Healey a version of the accident that was not true. He said: [161]    His “story” is at odds with the evidence of the accident, and he reported a variety of “stories”, inconsistent circumstances, and symptoms to the variety of medical practitioners whose expert reports were presented at trial. [162]    This trial’s only issue was the nature and extent of accident and its effect on the plaintiff. I find that his evidence was fabricated. [44] The “story” of the accident, and the nature and extent of the accident attributed to Mr. Healey in these paragraphs appears to be the one rejected, that is, of being flung 30 to 40 feet. Yet Mr. Healey never professed to recall the details of the accident, and attributed his knowledge of the event to what he was told by others. [45] Reading the reasons as a whole, then, it appears to me that the judge, in the end analysis, has factored into his assessment of Mr. Healey, as if it was Mr. Healey’s own recollection of the accident, the story of Mr. Healey flying 30 to 40 feet. [46] It was certainly open to the judge to accept the independent witness’s account and it was open to say the medical expert opinions were unreliable to the extent they relied on the greater travel distance to support the physical injuries alleged at trial. However, it was not open, given Mr. Healey’s evidence of the source of his version of the accident, to discount Mr. Healey’s reports to doctors as exaggeration because of his account of the accident unless the judge concluded Mr. Healey was not so informed, a finding that the judge did not make and an issue he did not address. Nor, in my view, was it open to attribute to Mr. Healey a “story” of the accident to which he professed no independent recollection. [47] I am mindful of the deference this court must accord a judge’s findings of credibility. However, where evidence is misapprehended that bears upon credibility in a way that is material to the outcome, the basis for this court’s interference is established. In this case, the finding against the appellant’s credibility pervades the judge’s rejection of his claim for greater damages. I consider that in the area of the three symptoms, and Mr. Healey’s lack of independent recollection of the accident, the judge’s comments fatally undermine his finding of credibility of Mr. Healey and bear upon the reliability of the expert reports. Conclusion [48] In my respectful view, both the error in admitting the consulting reports as expert reports and the misapprehensions of evidence I have discussed were material to the judgment. I conclude the appeal must be allowed. Accordingly, as this matter should be returned to the trial court for a new trial, I see no need to address mitigation of damages or the assertions by Mr. Healey challenging the findings of fact relating to his employment. [49] I would allow the appeal, set aside the order, and remit the case to the trial court for a new trial. “The Honourable Madam Justice Saunders” I AGREE: “The Honourable Madam Justice Kirkpatrick” I AGREE: “The Honourable Madam Justice D. Smith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: McKenzie v. McKenzie, 2015 BCCA 42 Date: 20150204 Docket: CA040937 Between: James Alexander McKenzie Appellant (Claimant) And Melanie Louise McKenzie Respondent (Respondent) Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Groberman The Honourable Madam Justice Garson Supplementary Reasons to McKenzie v. McKenzie , 2014 BCCA 381 Counsel for the Appellant: R.S. Gill N.J. Reid Counsel for the Respondent: J.A. Rose, Q.C. Place and Date of Hearing: Vancouver, British Columbia February 5-6, 2014 Place and Date of Judgment: Vancouver, British Columbia October 8, 2014 Written Submissions Received: January 20, 2015 Date of Supplementary Judgment: February 4, 2015 Supplementary Reasons of the Court: Summary: Application to re-open the appeal to reconsider the disposition of costs at trial. Application dismissed. Supplementary Reasons for Judgment of the Court: [1] Following release of our decision on this appeal:  2014 BCCA 381, counsel for the appellant applied for an order that the appeal be re-opened for the purpose of addressing the award of costs made at trial. The respondent had been awarded her costs at the trial. On appeal, we did not disturb the trial judge’s award of costs. [2] On this application to re-open the appeal, the appellant seeks an order that we remit the question of costs to the trial judge. His main basis for saying so is that he considers he achieved substantial success on appeal. In our view, the respondent remains substantially successful as compared to the position taken by the appellant at trial. This is not one of those exceptional cases in which we should re-open the appeal for further argument. The application to re-open the appeal is dismissed. “The Honourable Chief Justice Bauman” “The Honourable Mr. Justice Groberman” “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: United States of America v. Wilcox, 2015 BCCA 39 Date: 20150204 Docket: CA041188 Between: Attorney General of Canada On behalf of the United States of America Respondent (Requesting State) And George Wilcox Appellant (Person Sought) - and - Between: George Wilcox Applicant And Minister of Justice Respondent Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Bennett The Honourable Mr. Justice Willcock On appeal from: An order of the Supreme Court of British Columbia, dated August 13, 2013 ( U.S.A. v. Wilcox , 2013 BCSC 2541, Vancouver Docket 25219). On judicial review from: An order of surrender issued by Canada (Minister of Justice), dated March 4, 2014. Counsel for the Appellant: G. Botting A. Gray Counsel for the Respondent: D. Strachan A. Majawa Place and Date of Hearing: Vancouver, British Columbia September 25, 2014 Place and Date of Judgment: Vancouver, British Columbia February 4, 2015 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Madam Justice Saunders The Honourable Mr. Justice Willcock Summary: Mr. Wilcox is sought for extradition by the United States on charges of sexual conduct with a minor under fifteen years. He was tried in Arizona in absentia, and found guilty by a jury of two out of four counts. Mr. Wilcox appeals the extradition judge’s committal order and applies for judicial review of the Minister’s surrender order. On appeal, Mr. Wilcox argues that he did not touch the complainant for a sexual purpose but rather a therapeutic purpose, and that mistrial on two of the counts indicates the committal judge could not commit on those counts. Held: appeal dismissed. There was sufficient evidence to support the inference that Mr. Wilcox acted with a “sexual purpose”, and the test on committal is based on a reasonable jury, not any particular jury. On judicial review, Mr. Wilcox argues that he should not be surrendered due to the harsh sentencing regime in Arizona, and should be prosecuted in Canada instead. In the alternative, he argues that if surrendered, the Minister should seek assurances that he will receive a new trial, and not be prosecuted on the two counts that resulted in mistrial. Held: Judicial review dismissed. The Minister was reasonable in finding that his sentence would not shock the conscience of the community, that prosecution in the USA is favourable, and that assurances are not necessary. Reasons for Judgment of the Honourable Madam Justice Bennett: [1] Mr. Wilcox was ordered committed for extradition by Cullen A.C.J. (indexed at 2013 BCSC 2541) on four sexual offences and ordered surrendered to the United States of America (“USA”) by the Minister of Justice. He appeals the order for committal and seeks judicial review of the order for surrender. Background [2] Mr. Wilcox was convicted in absentia in Arizona of two out of four counts of sexual conduct with a minor under fifteen years. Mr. Wilcox was alleged to have masturbated the complainant between July 1-31, 2007, on December 30, 2007, and between January 1-5, 2008, and to have engaged in an act of oral sexual contact with the complainant between January 1-5, 2008. The complainant in all four counts is H.A., the step-son of Mr. Wilcox. H.A. is immobile, legally blind and unable to speak due to a childhood accident. The jury could not reach a verdict with respect to two of the counts, and a mistrial was declared with respect to those counts. [3] The USA alleges that Mr. Wilcox was seen by the complainant’s sister, I.A., masturbating and performing oral sex on H.A. I.A. told her mother, and Mrs. Wilcox set up a video camera. She says she captured Mr. Wilcox performing these acts on her son. Mrs. Wilcox went to the police with this evidence and charges were laid. [4] Mr. Wilcox admitted masturbating H.A., but claimed it was for H.A.’s benefit. He denied committing the offence alleging oral sex. He failed to appear for his trial, and his trial proceeded in his absence. The jury found Mr. Wilcox guilty of two of the four charges: masturbating H.A. on December 30, 2007 and between January 1-5, 2008. The jury could not reach a verdict on the two remaining counts: masturbating H.A. between July 1-31, 2007 and oral sexual conduct with H.A. between January 1-5, 2008. [5] The USA requested extradition of Mr. Wilcox. An authority to proceed before the British Columbia Supreme Court was issued by the Attorney General of Canada on November 13, 2009 for prosecution and sentence of offences that correspond to the offence of sexual interference, contrary to s. 151 of the Criminal Code , R.S.C. 1985, c. C-46. The Committal Appeal Issues [6] Mr. Wilcox raised three grounds of appeal in his factum: that the committal judge erred by not turning his mind to whether he performed the alleged conduct for a reason other than a “sexual purpose”; that the committal judge erred in failing to consider the fact that the jury could not reach a decision on two counts in assessing whether a reasonable jury, properly instructed, could return a verdict of guilty; and that the committal judge erred in holding that he did not have jurisdiction to determine treaty compliance. Mr. Wilcox abandoned this last ground at the hearing of the appeal. In addition, Mr. Wilcox raised several new grounds of appeal, not raised before the committal judge or in this factum, for the first time in his reply factum. The Statutory Framework for Committal [7] Section 29(1)(a) of the Extradition Act , S.C. 1999, c. 18 sets out the statutory basis for committal: 29. (1) A judge shall order the committal of the person into custody to await surrender if ( a ) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner; and (5) Subject to a relevant extradition agreement, if a person has been tried and convicted without the person being present, the judge shall apply paragraph (1)( a ). [8] The test for committal pursuant to s. 29 of the Extradition Act is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty” (see United States of America v. Ferras , 2006 SCC 33 at para. 9, citing United States of America v. Shephard , [1977] 2 S.C.R. 1067 at p. 1080). Standard of Review for Committal [9] This appeal is brought pursuant to s. 49 of the Extradition Act from the Order of Committal. Mr. Wilcox seeks to have the Order of Committal set aside. Under ss. 53 and 54 of the Extradition Act , this Court may set aside the Order of Committal and either order the discharge of the appellant or order a new extradition hearing if the Court is of the opinion that the Order of Committal: (a) is unreasonable or cannot be supported by the evidence; (b) is the result of a wrong decision on a question of law; or (c) is the result of a miscarriage of justice. [10] In United States of America v. Gunn , 2007 MBCA 21 at para. 49 (leave to appeal refused, [2007] S.C.C.A. No. 108), which was applied by this Court in United States of America v. Costanzo , 2009 BCCA 120, the Manitoba Court of Appeal said the following regarding the standard of review and the jurisdiction of the Court on a committal appeal: In summary, the appropriate standard of review with respect to an order of committal is derived from the wording of sec. 53 of the Act. A “reasonableness/cannot be supported by the evidence” test is applicable with respect to questions of fact. Nonetheless, deference is due to the extradition judge’s findings and conclusions; an appellate court is not free to simply substitute its view of the facts for that of the committal judge. Under sec. 53(a)(ii), a correctness standard is applied to questions of law. But an appeal may nonetheless be dismissed even if there is a “wrong decision on a question of law” if “no substantial wrong or miscarriage of justice has occurred” pursuant to sec. 53(b)(ii). Discussion i)        Sexual purpose [11] Mr. Wilcox submits that the committal judge erred in not turning his mind to the “sexual purpose” required by s. 151 as an element of the offence. Section 151 is as follows: Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years [12] The mens rea of this offence is that the act of touching be done “for a sexual purpose”. In R. v. Morrisey , 2011 ABCA 150 at para. 21, the Court said this: Touching is done for a sexual purpose, if it is done for one’s sexual gratification or to violate a person’s sexual integrity. In determining whether touching takes place in circumstances of a sexual purpose, we are of the view that a trial judge can in assessing the mens rea of the accused, consider whether the sexual context of the touching would be apparent to any reasonable observer. The “sexual purpose” may be proven either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touching itself (ie. the only reasonable inference to be drawn from the circumstantial evidence or from the nature of the touching itself is that the accused committed the touching for a sexual purpose). [13] In R. v. G.B. , 2009 BCCA 88 at paras. 25 and 30, this Court considered the relevance of motive, and said this: [25]      In my opinion, the trial judge erred in implicitly finding that the Crown must prove the accused touched the complainant for his or her own sexual gratification as an element of the offence. All the Crown must prove is that the touching be for a sexual purpose. In this case, no matter how one views the facts, the touching was for a sexual purpose. [30]      While it may be relevant on a sentencing hearing, in my opinion the respondent’s motive was irrelevant to the Crown’s proof of the essential elements of the offence. [14] The question for the extradition judge was not to decide whether there was a “sexual purpose” or not. The question was, as stated above, in Ferras , “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”. The extradition judge, after stating the correct test, said this at paras. 51-52: Similarly, in the January 2008 incident, in relation to which the jury convicted on the count relating to Mr. Wilcox masturbating H.A., but were unable to reach a verdict on the count which related to the alleged oral sex, the video showed his actions consistent with those activities (the movement of his arm in proximity to H.A.’s penis, the position of his head near H.A.’s penis, and the licking of his hand), but did not directly depict the actual contact. As I see it, even without using the similar fact as a basis for concluding what was afoot, there is a body of direct evidence of sexual contact in relation to the December 2007 incident which permits a conclusion that it is sufficient, in the sense of being not manifestly unreliable and not calling for unsupportable inferences, and it is evidence that a reasonable jury, properly instructed, could return a verdict of guilty in relation to. Moreover, Mr. Wilcox’s statement to the police officer acknowledges that he engaged in sexual touching of H.A., and in his response to the question of how often, his answer left available the inference that it was a number of times and not just on one occasion. That provides support for the observations which I.A. testified to in relation to the December 2007 incident, and lends reliability to the case against Mr. Wilcox in that connection. [15] In my respectful opinion, there was ample evidence to support the inference that Mr. Wilcox acted with a “sexual purpose”, and I would not give effect to this ground of appeal. ii)       Effect of the “hung” jury on two counts [16] Mr. Wilcox submitted that if the jury could not reach a verdict, then it could not be said that a “reasonable jury, properly instructed, could return a verdict of guilty”. He says, succinctly, that therefore, the committal judge could not commit on those two counts. [17] While this raises an interesting point, in my respectful opinion, it does not form a reason to dismiss a committal. The test is a “reasonable jury”, not any particular jury. A proper evidentiary foundation is present for the committal, and I would not give effect to this ground of appeal. [18] With respect to the additional grounds raised in the reply factum: the admission of the video evidence taken surreptitiously by his wife, failing to disclose material to Mr. Wilcox, the timing of the absconding (whether it was before or after the trial started) − none of these have any merit. The admissibility of the video tape was not raised before the committal judge (properly so in my view). There was no allegation of failure to disclose material before the committal judge; indeed Mr. Wilcox was provided with all the necessary material (and Mr. Botting apologized to counsel for suggesting otherwise). Lastly, the timing of the absconding is a matter for the Arizona appeal courts, not the committal court. [19] I would dismiss the appeal with respect to the order of committal. Judicial Review Issues [20] Mr. Wilcox brought many issues for the Minister’s consideration. He seeks judicial review on the basis of three alleged errors: 1.         That the Minister erred in ordering Mr. Wilcox’s surrender, given the harsh sentencing regime in Arizona, combined with the fact he was convicted in absentia ; 2.         That the Minister erred in giving only “cursory” consideration to prosecution in Canada pursuant to s. 7 (4.1) of the Criminal Code and s. 6(1) of the Charter ; 3.         In the alternative, that the Minister erred in ordering an unconditional surrender without seeking an assurance that if surrendered Mr. Wilcox would receive a new trial, or an assurance that Mr. Wilcox would not be prosecuted on the offences on which the jury did not reach a verdict. Standard of Review for Judicial Review [21] In Németh v. Canada (Justice) , 2010 SCC 56, the Court described the standard of review of the Minister’s decision at para. 10: The standard of judicial review is not contentious. The Minister’s decision to surrender for extradition should be treated with deference; it will generally be reviewed for reasonableness. However, in order for a decision to be reasonable, it must relate to a matter within the Minister’s statutory authority and he must apply the correct legal tests to the issues before him. As LeBel J. said on behalf of the Court in Lake v. Canada (Minister of Justice) , 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 41: [T]he Minister must, in reaching his decision, apply the correct legal test. The Minister’s conclusion will not be rational or defensible if he has failed to carry out the proper analysis. If, however, the Minister has identified the proper test, the conclusion he has reached in applying that test should be upheld by a reviewing court unless it is unreasonable. . . . Given the Minister’s expertise and his obligation to ensure that Canada complies with its international commitments, he is in the best position to determine whether the factors weigh in favour of or against extradition. [Emphasis added in Németh .] Discussion i)        Sentencing Regime [22] Mr. Wilcox’s argument is based on s. 44(1)(a) of the Extradition Act : 44. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that ( a ) the surrender would be unjust or oppressive having regard to all the relevant circumstances; [23] The Minister said the following in response to this submission: Whether the sentence Mr. Wilcox faces in the United States is disproportionate You submit that the sentence Mr. Wilcox faces in the United States is “so discordant” with the punishment that he would receive in Canada for the same conduct that it would shock the conscience of Canadians, especially since “the treatment was given out of human compassion for a young man who clearly benefits from it.” I understand that the USDOJ has provided the following information regarding the potential sentence faced by Mr. Wilcox: · Arizona law provides for a mitigated sentence of 13 years in prison, a presumptive sentence of 20 years in prison, and an aggravated sentence of 27 years in prison, for each of the charges. The USDOJ also advises that any sentences must be imposed consecutively; · Following a conviction, a probation officer will prepare a pre-sentence report that contains information about the defendant’s offence, his criminal history, and other background information. The defendant has the right to object to the information and conclusion in that report. At the sentencing hearing, defence counsel will be able to present mitigating factors to the judge that can result in a reduction in the sentence; · In deciding the sentence, pursuant to Arizona Revised Statute 13-702, the sentencing judge must consider: -     the age of the defendant; -     the defendant’s capacity to appreciate the wrongfulness of his conduct; -     whether the defendant was under any unusual or substantial duress; -     the degree of the defendant’s participation; and -     any other factor that is relevant to the defendant’s character or background or to the nature or circumstances of the crime. · The 27-year aggravated sentence is only available if the State proves one of the statutory aggravating circumstances to the trier of fact. Those circumstances include: 1) the infliction or threatened infliction of serious physical injury; 2) that the victim suffered physical or emotional harm; and 3) any other factor that the State alleges is relevant to the defendant’s character or background or to the nature or circumstances of the crime; · No aggravating circumstances were proven as part of the two convictions; and · Arizona law permits the State to allege aggravating circumstances after a conviction, but a new jury must be chosen to decide the sole issue of the aggravating circumstances. The USDOJ also advises that Arizona does not intend to re-try Mr. Wilcox on the two charges which resulted in a hung jury, and does not intend to allege aggravating circumstances with respect to the two convictions. However, the USDOJ clarifies that, if the two convictions were to be overturned on appeal, Arizona reserves the right to re-try Mr. Wilcox on the two counts which resulted in a hung jury and to allege aggravating circumstances. Accordingly, Mr. Wilcox is facing a presumptive sentence of 40 years in prison with respect to the two convictions, and a minimum sentence of 26 years. If he were to appeal his convictions and a new trial on all four counts were to result in convictions, he would face a maximum sentence of 108 years, a minimum sentence of 52 years, and a presumptive sentence of 80 years. You submit that even a sentence of 40 years would shock the conscience of Canadians and warrant a refusal of Mr. Wilcox’s surrender, particularly in view of his claim that he was only trying to treat [H.A.]. You submit, moreover, that Mr. Wilcox would not even receive a sentence of 40 months if convicted of the same conduct in Canada. I note that, at the time that Mr. Wilcox committed the alleged offences, the Canadian offence of sexual interference, contrary to s. 151 of the Criminal Code, carried a minimum sentence of forty-five days in custody if the Crown proceeded by indictment, and a maximum sentence of imprisonment for a term not exceeding ten years. The principles of comity and respect for state sovereignty, which are the foundation of the extradition process, mandate that deference be shown to a treaty partner’s criminal justice system, including their sentencing regime. The sentencing provisions that apply in different jurisdictions are a reflection of each country’s response to particular national concerns, and the extradition regime must be flexible enough to accommodate the different sentencing regimes of its respective treaty partners. Indeed, the Supreme Court of Canada has repeatedly upheld surrender decisions where the person sought for extradition was potentially facing a lengthy mandatory sentence upon conviction in the requesting state ( United States of America v. Jamieson (1994), 93 C.C.C. (3d) 265 (Que. C.A.), rev’d [1996] 1 S.C.R. 465; United States of America v. Whitley (1994), 94 C.C.C. (3d) 99 (Ont. C.A.), aff’d [1996] 1 S.C.R. 467; United States of America v . Ross (1994), 93 C.C.C. (3d) 500 (B.C.C.A.), aff’d [1996] 1 S.C.R. 469. See also: United States v. K. (J.H.) (2002), 165 C.C.C. (3d) 449 (Ont. C.A.), leave to appeal to S.C.C. refused, (2002), 101 C.R.R. (2d) 376; United States of America v. Gwynne (1998), 103 B.C.A.C. 1, leave to appeal to S.C.C. refused, [1998] I S.C.R. ix). I am satisfied that, while Mr. Wilcox is likely to receive a lengthier sentence in the United States than he would if convicted of the same conduct in Canada, this is not a factor which, alone, warrants a denial of his surrender. Although Mr. Wilcox faces a maximum sentence of 108 years, he is likely to face the presumptive sentence of 40 years. Furthermore, I note that, if Mr. Wilcox is sentenced in the United States, he will have the opportunity to present mitigating factors to the judge which may result in a reduction of his sentence. Accordingly, it is my view that Mr. Wilcox’s surrender, in these circumstances, would not shock the conscience or offend ‘‘the Canadian sense of what is fair, right and just” ( Kindler v. Canada (Minister of Justice) , [1991] 2 S.C.R. 779). Indeed, Mr. Wilcox is sought for the imposition of sentence and to face trial on very serious charges. Mr. Wilcox is alleged to have taken sexual advantage of the vulnerability of a severely disabled young man who was in his care. Canada’s commitment to protecting children against sexual offences involves not only prosecuting alleged perpetrators in Canada, but ensuring that Canada does not become a safe haven for those whose criminal actions have serious effects abroad. As such, Canada has increased its efforts to punish and suppress the sexual exploitation of children, a growing global concern. This is reflected in the increased mandatory minimum sentences which were enacted in 2012 for the offence of sexual interference. Although Mr. Wilcox’s conduct took place before the new mandatory minimums came into force, Parliament’s decision to increase the mandatory minimums nevertheless reflects Canada’s condemnation of this type of criminal conduct. In my view, the fact that Mr. Wilcox believes that his actions were justified is a matter for the courts in the United States. Mr. Wilcox will have the ability to raise his explanation for his actions in the context of his U.S. sentencing proceedings on the two counts for which he was convicted. In addition, should he successfully appeal those convictions and be re-tried by the Arizona authorities, he will have the opportunity to raise this issue in the context of the re-trial. In all of the circumstances, I am satisfied that Mr. Wilcox’s surrender to the United States to potentially face a lengthy custodial sentence would not be shocking to the Canadian conscience and would not cause his surrender to be unjust or oppressive or contrary to s. 7 of the Charter. [24] As is apparent from this decision, Mr. Wilcox will likely receive a significantly higher sentence than he would if he were convicted of these offences in Canada. He faces anywhere from 26 years upwards to 108 years imprisonment. The sentence for these offences in Canada is a minimum of 45-days imprisonment and a maximum of ten years per count. Theoretically, Mr. Wilcox could face a forty-year sentence in Canada, but it is accepted that the sentence imposed in this country would likely be in the lower penitentiary range. This is a far cry from the sentence he faces in the USA. [25] Mr. Wilcox submits that the Minister erred when he concluded that “[t]he principles of comity and respect for state sovereignty … mandate that deference be shown to a treaty partner’s criminal justice system, including their sentencing regime” and that “the extradition regime must be flexible enough to accommodate the different sentencing regimes of its respective treaty partners”. [26] Mr. Wilcox refers to the judgment in Kindler v. Canada (Minister of Justice) , [1991] 2 S.C.R. 779 at pp. 849-850: The test for whether an extradition law or action offends s. 7 of the Charter on account of the penalty which may be imposed in the requesting state, is whether the imposition of the penalty by the foreign state “sufficiently shocks” the Canadian conscience: Schmidt , per La Forest J., at p. 522. The fugitive must establish that he or she faces “a situation that is simply unacceptable”: Allard , supra , at p. 572. Thus the reviewing court must consider the offence for which the penalty may be prescribed, as well as the nature of the justice system in the requesting jurisdiction and the safeguards and guarantees it affords the fugitive. Other considerations such as comity and security within Canada may also be relevant to the decision to extradite and if so, on what conditions. At the end of the day, the question is whether the provision or action in question offends the Canadian sense of what is fair, right and just, bearing in mind the nature of the offence and the penalty, the foreign justice system and considerations of comity and security, and according due latitude to the Minister to balance the conflicting considerations. In determining whether, bearing all these factors in mind, the extradition in question is “simply unacceptable”, the judge must avoid imposing his or her own subjective views on the matter, and seek rather to objectively assess the attitudes of Canadians on the issue of whether the fugitive is facing a situation which is shocking and fundamentally unacceptable to our society. [27] He submits that the imposition of this length of sentence is “shocking and fundamentally unacceptable to our society”. [28] He adds a layer to this argument, and submits that a conviction in absentia adds another dimension to the shock of imposing such a high sentence. [29] The Minister applied the correct legal test, that is, would the disparity in the sentencing regimes “shock the conscience” of the community in determining whether the surrender of Mr. Wilcox would be “unjust or oppressive”. The question is whether his decision was reasonable. [30] In United States of America v. Burns , 2001 SCC 7, the Court discussed what the term “shock the conscience” was meant to convey at paras. 68-69: Use of the “shocks the conscience” terminology was intended to convey the exceptional weight of a factor such as the youth, insanity, mental retardation or pregnancy of a fugitive which, because of its paramount importance, may control the outcome of the Kindler balancing test on the facts of a particular case. The terminology should not be allowed to obscure the ultimate assessment that is required: namely whether or not the extradition is in accordance with the principles of fundamental justice. The rule is not that departures from fundamental justice are to be tolerated unless in a particular case it shocks the conscience. An extradition that violates the principles of fundamental justice will always shock the conscience. The important inquiry is to determine what constitutes the applicable principles of fundamental justice in the extradition context. The “shocks the conscience” language signals the possibility that even though the rights of the fugitive are to be considered in the context of other applicable principles of fundamental justice, which are normally of sufficient importance to uphold the extradition, a particular treatment or punishment may sufficiently violate our sense of fundamental justice as to tilt the balance against extradition. Examples might include stoning to death individuals taken in adultery, or lopping off the hands of a thief. The punishment is so extreme that it becomes the controlling issue in the extradition and overwhelms the rest of the analysis. The respondents contend that now, unlike perhaps in 1991 when Kindler and Ng were decided, capital punishment is the issue. [31] A number of courts have considered whether the lengthy prison terms imposed in the USA “shocks the conscience”, and none have found that the sentences reach that far. A brief examination of those decisions reveals the rationale behind this conclusion. [32] In United States of America v. Jamieson , [1996] 1 S.C.R. 465, the Supreme Court of Canada reversed the majority substantially for the reasons of Baudouin J.A. ((1994), 93 C.C.C. (3d) 265 (Que. C.A.)). Justice Baudouin acknowledges severe punishments imposed in the USA, in that instance, for drugs. He says, at p. 268-9: Of course, the Michigan state law is severe, even very severe, and is the reflection of a repressive philosophy which would probably be considered outdated in our country. This, however, is not the crux of the problem in the present case. First, the sentence is severe, but as appears from the record, the State of Michigan seems to have been in the throes of a problem for a number of years with trafficking in very hard drugs. The law of this state, which was voted by democratically elected persons, rightly or wrongly (it is not for me to decide) based its policy of repression on a strict philosophy of societal self-defence. If one were to reverse the situation, could one say that the U.S.A. would find unacceptable, and shocking to the conscience, the sentences imposed in Canada for the possession of weapons prohibited here … but freely available for sale there? [33] The majority decision in Jamieson at the Quebec Court of Appeal, which was reversed by the SCC, concluded that the 20-year minimum sentence for possession of 10 ounces of a cocaine mixture was “shocking and fundamentally unacceptable to our society” (p. 278). The SCC concluded otherwise, and agreed with Baudouin J.A. [34] In Gwynne v. Canada (Minister of Justice) (1998), 103 B.C.A.C. 1 (leave to appeal refused, [1998] S.C.C.A. No. 95), Gwynne was surrendered to the State of Alabama to serve the remaining 110 years of a 120-year sentence for extortion offences. Mr. Gwynne raised not only the length of his sentence, which was a reflection of habitual criminal legislation, but also the harsh conditions of imprisonment that he faced. [35] Mr. Justice Goldie, for the majority, after a review of the law delineating the role of the Courts and the role of the Minister, concluded the following on the issue of the harshness of the sentence, at paras. 27-29: But the severity alone of Mr. Gwynne’s sentence is not in itself ground for refusing to extradite him. It is harsh indeed to impose consecutive sixty year sentences. Nevertheless, it is possible under the Criminal Code of Canada , although not for crimes of extortion, for a person to be sentenced for a term during which he or she is ineligible for parole that could cause a middle-aged offender to doubt his or her normal life expectancy would exceed the period of parole ineligibility. I think it would be difficult to establish that the severity of a sentence in a foreign jurisdiction, imposed after a trial with reasonable procedural safeguards by a court of competent jurisdiction under legislation of general application, was a breach of s. 7 of the Charter . I say this in light of the judg­ment of the Supreme Court of Canada in United States of America v. Jamieson , [1996] 1 S.C.R. 465; 197 N.R. 1, which substantially adopted the dissenting reasons of Mr. Justice Baudouin in Jamieson v. Canada (Minister of Justice) (1994), 197 N.R. 2; 93 C.C.C. (3d) 265 (Que. C.A.). If this matter revealed no other circumstance than service of the unexpired portion of an admittedly harsh sentence, but one imposed by law, and the allegation of procedural unfairness on the part of the Minister, I would not be prepared to conclude he had exercised his discretion in a manner which would permit this court to interfere on either Charter or non- Charter grounds. [36] Goldie J.A. quotes from Kindler at para. 36: In Kindler, Madam Justice McLachlin said at p. 55 [C.C.C.]: “At the end of the day, the question is whether the provision or action in question offends the Canadian sense of what is fair, right and just, bearing in mind the nature of the offence and the penalty, the foreign justice system and considerations of comity and security, and according due latitude to the Minister to balance the conflicting considerations. “In determining whether, bearing all these factors in mind, the extradition in question is “simply unacceptable”, the judge must avoid imposing his or her own subjective views on the matter, and seek rather to objectively assess the attitudes of Canadians on the issue of whether the fugitive is facing a situation which is shocking and fundamentally unacceptable to our society.” [37] He concluded that the conditions in the Alabama prison were subjectively shocking, but that did not overcome the deference owed to the Minister. [38] In Burns , the Court affirmed the principles stated in Kindler , except to require assurances in death penalty cases in all but the most “exceptional cases”. At paras. 36-38: The Court has historically exercised restraint in the judicial review of extradition decisions, as McLachlin J. (as she then was) noted in Kindler , supra , at p. 849: In recognition of the various and complex considerations which necessarily enter into the extradition process, this Court has developed a more cautious approach in the review of executive decisions in the extradition area, holding that judicial scrutiny should not be over-exacting. As the majority in Schmidt pointed out, the reviewing court must recognize that extradition involves interests and complexities with which judges may not be well equipped to deal (p. 523). The superior placement of the executive to assess and consider the competing interests involved in particular extradition cases suggests that courts should be especially careful before striking down provisions conferring discretion on the executive. Thus the court must be “extremely circumspect” to avoid undue interference with an area where the executive is well placed to make these sorts of decisions: Schmidt , at p. 523. It must, moreover, avoid extraterritorial application of the Charter : Schmidt, supra . La Forest J. expressed similar views in Kindler , supra , at p. 837. The customary deference to the Minister’s extradition decisions is rooted in the recognition of Canada’s strong interest in international law enforcement activities: Cotroni, supra , at p. 1485, cited by McLachlin J. in Kindler , at pp. 843-44; Libman v. The Queen , [1985] 2 S.C.R. 178, at p. 214; Idziak, supra , at p. 662. The respondents do not quarrel with these general observations. Their argument is that despite McLachlin J.’s caution in Kindler that “the court must be ‘extremely circumspect’ to avoid undue interference with an area where the executive is well placed to make these sorts of decisions” (p. 849), a constitutional requirement of assurances does not undermine in any significant way the achievement of Canada’s mutual assistance objectives. The executive negotiated Article 6 of the extradition treaty, the United States agreed to it, and both parties must therefore have regarded its exercise as consistent with the fulfilment of their mutual assistance obligations. We affirm that it is generally for the Minister, not the Court, to assess the weight of competing considerations in extradition policy, but the availability of the death penalty, like death itself, opens up a different dimension. The difficulties and occasional miscarriages of the criminal law are located in an area of human experience that falls squarely within “the inherent domain of the judiciary as guardian of the justice system”: Re B.C. Motor Vehicle Act, supra , at p. 503. It is from this perspective, recognizing the unique finality and irreversibility of the death penalty, that the constitutionality of the Minister’s decision falls to be decided. [39] In United States of America v. Whitley (1994), 94 C.C.C. (3d) 99 (Ont. C.A.) (appeal dismissed, substantially for the reasons of Laskin J.A., [1996] 1 S.C.R. 467), the Court considered arguments in relation to minimum sentences of 20 years and 10 years in prison for offences related to the exportation of 1,100 lbs of marihuana from the USA to Canada. Laskin J.A. identified the questions as not whether the sentence would be constitutional or desirable in Canada, but whether sending the offender to face the sentence would be fair and just (at para. 49). He agreed with the Minister’s conclusion that the surrender would not shock the conscience of the community. [40] In the present case, the potential sentence is very long indeed. Given Mr. Wilcox’s age (he is presently 57 years old), it is potentially a life sentence even if the minimum 26-year sentence is imposed. The question is whether such a sentence for the offences of which Mr. Wilcox has been convicted and is potentially facing (the USA indicated it would not proceed on the two other charges unless the appeals court ordered a new trial on the two offences for which he has been convicted) would shock the conscience of the community. In my respectful opinion, it would not. [41] The Courts have also made it clear that absent sentences that would invoke behaviours of a nature like torture, the death penalty, the excising of limbs, for example, the sentencing regimes of other nations, no matter how much more severe than our own, will not generally “shock the conscience” of the community. This is not to say that a minor offence drawing a substantial sentence might not meet the test − it may very well (see for example Jamieson at p. 269, where Baudouin J.A. postulated that the case did not involve a 20-to-30-year sentence for possession of a single marihuana cigarette, which might shock the conscience of the community). In this case, however, where Mr. Wilcox has been convicted of sexually fondling a minor who was blind, mute and incapable of resisting or calling for help, in my respectful view, it would not shock the conscience of the community to know that Mr. Wilcox will face a significant term in prison. [42] Mr. Wilcox argues that the Minister failed to consider that he was convicted in absentia , I assume suggesting that Mr. Wilcox did not have proper procedural safeguards applied to his case. The case still went to trial before a jury. The prosecution had to call evidence, and the jury convicted on two counts and could not decide on the other two counts. The issue of the trial proceeding in absentia is one for the Arizona courts of appeal, and the Minister did not err in these circumstances by failing to find that this would add a dimension of “shock” in this case. [43] I would not give effect to this ground. ii)       Mobility Rights [44] Mr. Wilcox argues that the Minister erred by failing to permit Mr. Wilcox to be prosecuted in Canada in accordance with s. 7 (4.1) of the Criminal Code and s. 6 of the Charter : Criminal Code 7. (4.1) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171, 171.1, 172.1, 172.2 or 173 or subsection 286.1(2) shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act . Charter 6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada. [45] An extradition invokes s. 6 of the Charter and the Minister is obliged to consider these provisions. In this case the Minister said this: As Mr. Wilcox is a Canadian citizen and could, pursuant to s. 7(4.1) of the Criminal Code , be prosecuted in Canada in relation to the conduct for which his extradition is sought, I have also considered whether surrender would unjustifiably violate his s. 6(1) Charter rights. The Supreme Court of Canada has stated that the extradition of a Canadian citizen is a prima facie violation of his or her right to remain in Canada pursuant to s. 6(1) of the Charter. However, extradition may be a reasonable limit on that right when considering the ‘‘importance of the objectives sought by extradition — the investigation, prosecution, repression and punishment of both national and transnational crimes for the protection of the public” (United States of America v. Cotroni , [1989] 1 S.C.R. 1469; United States of America v . Kwok , [2001] I S.C.R. 332; Lake v . Canada (Minister of Justice) , [2008] 1 S.C.R. 761; Sriskandarajah v. United States of America , [2012] 3 S.C.R. 609). I note that, in determining whether the presumptive s. 6(1) violation is saved by s. 1 of the Charter , the relevant Canadian prosecuting authorities must give due weight to a Canadian citizen’s right to remain in Canada. This involves conducting a bona fide assessment of whether a Canadian prosecution would be a realistic option or equally effective to prosecution in the Requesting State, based on the factors outlined by the Supreme Court of Canada in Cotroni , supra, as being relevant to this assessment. In this case, the documentary evidence submitted by the United States in support of its request for Mr. Wilcox’s extradition was provided to counsel for the Attorney General of British Columbia, the competent authority to conduct a prosecution in this matter. Counsel concluded that a prosecution in Canada is not a realistic option. My role in determining the issue of surrender is not to re-examine the decision of counsel for the Attorney General of British Columbia, made in good faith. Nevertheless, I must be satisfied that Mr. Wilcox’s surrender would be consistent with the dictates of the Charter . This includes an independent consideration of the factors set out in Cotroni , supra. Having reviewed those factors in relation to Mr. Wilcox’s case, I am satisfied that all of them, other than Mr. Wilcox’s citizenship, favour prosecution in the United States. None of Mr. Wilcox’s conduct took place in Canada and all of the witnesses and evidence are located in the United States. Moreover, the investigation was conducted entirely by American law enforcement authorities, and the impact of Mr. Wilcox’s conduct was felt entirely in the United States. As noted above, Canada has an interest, not only in prosecuting offences involving the sexual exploitation of children, but in ensuring that those individuals are brought to justice in the jurisdiction most affected by the alleged crime. In all the circumstances of this case, I am satisfied that Mr. Wilcox’s surrender would not unjustifiably violate his s. 6(1) Charter rights. [46] In my respectful opinion, the Minister properly applied the factors in United States of America v. Cotroni , [1989] 1 S.C.R. 1469 and Sriskandarajah v. United States of America , 2012 SCC 70. He considered the option of prosecuting Mr. Wilcox in Canada, a proposition rejected by the Attorney General of British Columbia in apparent good faith. He went on and considered the Cotroni factors in any event, and concluded that all of the factors, save Mr. Wilcox’s Canadian citizenship, weighed in favour of a prosecution in the USA. In my respectful view, he committed no error in this regard. I would not give effect to this ground. iii)      Failure to Seek Assurances [47] Mr. Wilcox argues that the Minister erred in failing to seek assurances that i) Mr. Wilcox be granted a new trial, but only on the two charges on which he was convicted of, or ii) Mr. Wilcox not be prosecuted on the two outstanding charges against him, regardless of whether he receives a new trial on appeal on the offences of which he was convicted. [48] He argues that the prosecution’s position, that if he is granted a new trial on appeal, they will pursue the other charges, is tantamount to the conduct of the American trial judge in United States of America v. Cobb , 2001 SCC 19, found by the Supreme Court of Canada to be an abuse of process. In addition, Mr. Wilcox submits that these assurances are another way to alleviate against the harsh sentence Mr. Wilcox might face if tried on all four counts. [49] The Minister said this: You have requested that, if I decide to order Mr. Wilcox’s surrender to the United States, my surrender order must be subject to assurance. Pursuant to s. 40(3) of the Act , I am permitted to seek any assurances, from an extradition partner, that I deem appropriate. The seeking of an assurance is dependent on my preliminary determination that surrender without assurances would he contrary to the principles of fundamental justice or that there is some other compelling reason for me to exercise my general discretion to refuse surrender ( Mellino , supra). Assurance of a new trial in the United States You submit that, if Mr. Wilcox is surrendered, I should obtain an assurance that he will be given a new trial. You did not provide me with any submissions in support of this request. As noted earlier the USDOJ has advised that Mr. Wilcox will have the right to appeal his convictions. As part of his appeal, Mr. Wilcox will have the right to argue that he was either not made aware that his trial could proceed in his absence or that his absence was not voluntary. Furthermore, I note that Canadian law also permits in absentia trials. Specifically, I note that s. 475(1) of the Criminal Code provides that the trial of an indictable offence may proceed where an accused absconds during the course of the trial, and that s. 475(3) provides that an accused who has absconded is not entitled to re-open any of the proceedings that were conducted in his or her absence, unless it is in the interests of justice to do so. Accordingly, I have concluded that the requested assurance is neither required nor appropriate in the circumstances of this case. Assurance that the United States will consider laying different charges You submit that I should seek an assurance that the United States will consider laying charges, which more accurately reflect the nature of Mr. Wilcox’s alleged conduct. You have not provided any submissions in support of this request. As noted earlier, the extradition judge has committed Mr. Wilcox on the basis that his conduct, had it taken place in Canada, would constitute the offences set out in the ATP. In my view, it would be an inappropriate interference in the United States’ justice system, including the prosecutorial discretion of the Arizona prosecutors, to seek the requested assurance. Accordingly, I have concluded that this assurance should not be sought. [50] Section 40(3) of the Extradition Act gives the Minister the discretion to seek assurances from the requesting state: The Minister may seek any assurances that the Minister considers appropriate from the extradition partner, or may subject the surrender to any conditions that the Minister considers appropriate, including a condition that the person not be prosecuted, nor that a sentence be imposed on or enforced against the person, in respect of any offence or conduct other than that referred to in the order of surrender. [51] The conduct of the prosecution in this case is far from the egregious conduct found in the Cobb case. As put succinctly by the Crown in this case: The facts of this case are entirely distinguishable from those in United States of America v. Cobb , [2001] S.C.R. 581. There is no evidence that the American prosecutorial authorities have threatened the applicant with a more severe punishment if he does not abandon his rights in Canada, as was the case in Cobb. The foreign authorities have done nothing in this case that puts this Court’s integrity at issue. Nor has the applicant been pressured by the United States to abandon his appeal rights in that jurisdiction. To the contrary, the American authorities have simply provided information as to the applicant’s appeal rights in the United States. The Minister has conducted his analysis of the potential sentence of imprisonment faced by the applicant in light of that information and also in light of provisions of the Code which permit trials in Canada to proceed in the absence of the accused. [52] The Minister’s decision not to seek assurances is subject to deference. In my view, the Minister’s decision was reasonable and I would not interfere with it. [53] Mr. Wilcox argues that this Court should order a trial in Canada pursuant to s. 7(4.1) of the Criminal Code . This Court’s jurisdiction on judicial review flows from s. 57 of the Extradition Act . Section 57(6) states: 57 (6) On an application for judicial review, the court of appeal may (a) order the Minister to do any act or thing that the Minister has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, quash, set aside, set aside and refer back for determination in accordance with any directions that it considers appropriate, prohibit or restrain the decision of the Minister referred to in subsection (1). [54] It is clear that this Court has no jurisdiction to make the order requested. [55] I would dismiss the judicial review and affirm the decision of the Minister of Justice. Disposition [56] In summary, I would dismiss the appeal from the committal order and dismiss the judicial review of the Minister’s surrender order. “The Honourable Madam Justice Bennett” I agree: “The Honourable Madam Justice Saunders” I agree: “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Chellappa v. Kumar, 2016 BCCA 2 Date: 20160104 Docket: CA42613 Between Anurahini Chellappa Appellant (Claimant) And Niraj Deepak Kumar Respondent (Respondent) And Government of the Province of British Columbia, as represented by the B.C. Public Service Agency Respondent (Applicant) And British Columbia Government and Service Employees’ Union Respondent (Respondent) Before: The Honourable Madam Justice Kirkpatrick The Honourable Madam Justice Garson The Honourable Mr. Justice Goepel On appeal from:  An order of the Supreme Court of British Columbia, dated February 4, 2015 ( Chellappa v. Kumar , New Westminster Registry Docket E28935). The Appellant appearing In Person Anurahini Chellappa Counsel for the Respondent, Niraj Deepak Kumar: Did not appear Counsel for the Respondent, Government of the Province of British Columbia, as represented by the B.C. Public Service Agency E.L. Ross Counsel for the Respondent, British Columbia Government and Service Employees’ Union P.R. Shklanka Place and Date of Hearing: Vancouver, British Columbia November 3, 2015 Place and Date of Judgment: Vancouver, British Columbia January 4, 2016 Written Reasons by: The Honourable Mr. Justice Goepel Concurred in by: The Honourable Madam Justice Kirkpatrick The Honourable Madam Justice Garson Summary: Appeal from an order permitting the use by non-parties of documents filed in the appellant’s family law case. The appellant seeks to prevent the use of these documents in a labour arbitration grievance on procedural and substantive grounds. Held: appeal dismissed. The employer and union had standing to seek directions in the family law case under R. 10-9(8) of the Supreme Court Family Rules. The appellant does not enjoy an overriding right of privacy in regard to material filed in her family law case. The Rules define the general scope of protection for a litigant’s privacy interests in a family law proceeding. The employer accessed the family law file in compliance with the Rules. Reasons for Judgment of the Honourable Mr. Justice Goepel: [1] This appeal addresses the tension between the open court principle and a litigant’s privacy rights in a family law case. The matter has arisen in the course of a labour arbitration grievance. The parties to the grievance, who are not parties to the family law case, wish to rely on documents filed in the appellant’s family law case. The appellant seeks to prevent the use of these documents by the non-parties. [2] For the reasons that follow, I would dismiss the appeal. BACKGROUND [3] To put the issues in context, it is first necessary to chronicle the two separate legal proceedings. [4] The family law case is between the appellant, Anurahini Chellappa, and her now-former husband, Niraj Deepak Kumar. Mr. Kumar takes no position on the appeal. [5] The grievance concerns E.H., a friend of the appellant who testified on her behalf in the family law case, and his employer, the Province of British Columbia (the “Employer”). E.H. is represented by the British Columbia Government and Service Employees’ Union (the “Union”). The Employer is represented by the B.C. Public Service Agency (the “PSA”). [6] The appellant and Mr. Kumar began a relationship in 2005. They married in February 2007 and their son was born in July 2007. The parties separated in November 2007 and the appellant commenced the family law case in December 2007. [7] The proceedings in the family law case have been contentious. Most of the conflict has centered on issues of custody and access. There have been numerous court applications and orders concerning those issues. [8] The family law case came on for trial in June 2011. In reasons dated June 27, 2011, the trial judge awarded the appellant sole custody of their son with generous access to Mr. Kumar. The trial judge seized himself of further applications. In his reasons, the trial judge also made several comments that were critical of E.H.’s conduct in relation to the family law case. [9] Prior to December 2013, E.H. was employed as a child protection social worker with the Ministry of Children and Family Development. In January 2011, E.H. was suspended for five days (the “Suspension”). The stated reason for the Suspension was E.H.’s conduct in supporting the appellant in the family law case. [10] The Union grieved the Suspension. This grievance did not come on for arbitration until May 27, 2013. In the course of the hearing, the Union and the Employer exchanged certain documents from the family law case including the trial judge’s reasons from June 2011. On May 30, 2013, the parties agreed to adjourn the hearing so that the Employer could further investigate E.H.’s conduct. [11] Carol Graham, an employee of the PSA, was tasked with the Employer’s additional investigation. On June 5, 2013, she interviewed Mr. Kumar. During the interview, she requested that Mr. Kumar provide her with documents from the family law file. In response to this request, Mr. Kumar provided to Ms. Graham a copy of the transcript of E.H.’s testimony at the June 2011 trial. [12] On June 17, 2013, Ms. Graham attended the New Westminster Supreme Court Registry with Mr. Kumar to review the contents of the family law file. With Mr. Kumar’s consent, she obtained copies of some documents from that file. [13] A month or so earlier, on May 10, 2013, Mr. Kumar had filed an application seeking to vary the orders made by the trial judge after the June 2011 trial. The appellant filed a responding application seeking to confirm her custody rights. The hearing of these applications was set for November 12, 2013. [14] Mr. Kumar did not attend the hearing on November 12, 2013. At this hearing, counsel for the appellant raised the question of privacy. The following exchange took place between counsel and the trial judge: MR. BOYD:     Well, in this case, My Lord, one of the things I wanted to speak to is the issue of privacy.  And a problem that’s cropped up is that the materials that are filed by Ms. Chellappa in court are then broadcast by Mr. Kumar.  And despite our requests that he not do that, that’s continued to be the case. I looked to see if there’s some relief that we can obtain, and I [ sic ] closest I get really is in terms of the Rules .  You have the protection, for example, under the financial disclosure rule.  The next one is one that appears I believe under the chambers applications where the court can make a rule − I think it’s under Rule 10-3(5) − and that’s really just in terms of declaring the proceedings to be private.  And what I’m looking for really is some mechanism by which the court process can be private and my client’s materials are not simply broadcast to various people in the community.  So −− THE COURT:  10-3(5)? MR. BOYD:  So that’s the hearing of application in public.  So in case of emergency −− THE COURT:  Yeah, I’m on a different −− oh, I’m sorry, I’m in the civil rules, of course.  Let me just find the family rules.  What page are you at? MR. BOYD:  I’m looking at 1240 and the −− THE COURT:  Thank you.  Well, I’m not sure that that gets you where you want to go. MR. BOYD:  Well, I guess what I’m looking for really is some means by which −− THE COURT:  All right.  Well, I am prepared, subject to Mr. Kumar applying to set it aside, is, one, as I say, his application is dismissed.  He’s not shown up here today.  I am going to adjourn your client’s application.  It strikes me as moot in the face of the dismissal of his because, as I recall matters, she has custody, has she not? MR. BOYD:  She does. THE COURT:  So I don’t −− I’m still just going to adjourn it over so she doesn’t need to refile. I’m not sure that she needs an application, but in any event, hers will be adjourned. I am also going to make an order that the contents of the affidavits and material exchanged within the summary trial process, assuming it proceeds on, are not to be disclosed or divulged to other persons until I hear from Mr. Kumar.  And so that will be an interim order .  I am seized of it.  Obviously, it’s to be brought back in front of me, but by Mr. Kumar would be the one.  And you can put that in the form of an injunction if you wish, that he is to be restrained, but it should be a neutral restraint.  And by that I don’t mean to suggest − and I see Ms. (indiscernible) at the back of the −− or, sorry, Ms. Chellappa, pardon me, at the back of the room, to suggest she’s doing anything. But I think that just keeping a balance on this matter at this time, it should be each of them are restrained from discussing the matters in this litigation or arising from the affidavits .  Generally in the public, it involves a child, and I think it’s important that the privacy concerns be protected.  And then I’ll hear from each of the parties if I need to later on. [Emphasis added.] [15] The order entered after this hearing includes the following: THIS COURT ORDERS THAT 4.         There shall be a mutual conduct order pursuant to sections 222 and 227 of the Family Law Act , [S.B.C.] 2011, chapter 25 so that each party is prohibited from broadcasting, distributing, delivering or sharing any of the materials in these proceedings, and shall not broadcast, distribute, deliver or share any of the materials in these proceedings, or any material arising directly from these proceedings to any third-party. (the “November 12 Order”). [16] As will become clear, the November 12 Order is the foundation for the order that is the subject matter of this appeal. [17] In December 2013, the Employer terminated E.H.’s employment in part because of his involvement in the family law case (the “Termination”). The Union grieved the Termination. The Union and the Employer agreed that the Suspension and Termination grievances would be heard together and appointed John Hall as arbitrator. [18] On June 10, 2014, in response to a request from the Union for disclosure by the Employer, the PSA forwarded to the Union copies of the documents that it had obtained through its search of the family law file in June 2013. [19] On or around September 23, 2014, the Union raised a preliminary objection to the use of the family law documents in the arbitration. The Union’s objection was based on the November 12 Order. The Union argued that the order constituted a judicial “firewall” which precluded the use of any evidence from the family law case. [20] On November 14, 2014, Arbitrator Hall heard submissions in relation to the Union’s objection. He noted that the Employer had properly acquired the family law documents in June 2013, in advance of the November 12 Order. He identified the issues before him as whether the Employer could rely on these documents in the arbitration, and if yes, whether the Union would be unable to make full answer and defence in light of the November 12 Order that was by that time in place. [21] Arbitrator Hall concluded that the trial judge was best positioned to determine the scope of the November 12 Order. He therefore adjourned the arbitration to allow the Employer and the Union to seek directions from the trial judge. [22] On January 22, 2015, the Employer filed a notice of application for directions in the family law case. In particular, the Employer sought a direction that the November 12 Order did not apply to the family law documents that it had obtained prior to November 12, 2013. Alternatively it sought to amend the November 12 Order to permit it to adduce the documents as evidence in the arbitration. [23] The appellant opposed the Employer’s application. She submitted that the Employer and the Union were strangers to the family law case and had no standing to seek directions concerning the November 12 Order. [24] The trial judge found otherwise. In reasons given on February 4, 2015, he noted that the Employer had obtained copies of the family law documents prior to the pronouncement of the November 12 Order and followed the proper procedure in doing so. In his view, the November 12 Order only affected the conduct of the parties to the family law case, not third parties. He also found that the November 12 Order did not preclude the use of materials disseminated prior to its pronouncement. He held that, given that the Employer had acted on materials in its possession and the materials formed part of the consideration for the Employer’s action, it would be inappropriate to now restrict its use of the materials. [25] The trial judge agreed that the Union required its own independent access to the family law file so as to muster its defence. He noted that, had he known of the dispute between E.H. and his employer when the request for the November 12 Order was made, a different result may have ensued. He initiated a process to allow the Union access to the family law file. [26] The order arising from the proceeding reads as follows: THIS COURT DIRECTS that: 1. The November 12, 2013, order issued by [the trial judge] pursuant to sections 222 and 227 of the Family Law Act , SBC 2011, c. 25 does not apply to materials in Family Court file No. E028935 obtained by the PSA prior to November 12, 2013. THIS COURT ORDERS that: 2. Counsel for the BCGEU shall have access to and may make copies of the materials in Family Court file No. E028935; 3. Prior to making use of any of the materials obtained from Family Court file No. E028935 in the labour arbitration between the BCGEU and the PSA concerning the grievances filed on behalf of E.H., counsel for the BCGEU must: a. serve the material on the Claimant and Respondent in this matter, and on the PSA, by way of application; and b. set down an application before [the trial judge] to determine which, if any, of the materials may be adduced in the labour arbitration. (the “February 4 Order”). THE APPEAL [27] The appellant now appeals the February 4 Order. She seeks an order that any information received by third parties from Mr. Kumar be subject to an implied undertaking of non-disclosure. She also seeks an order prohibiting the parties to the family law case from disclosing any information from that proceeding to non-parties. [28] The appellant bases her appeal on procedural and substantive grounds. She submits that the trial judge ignored the Supreme Court Family Rules (the “ Rules ”) and the implied undertaking rule in allowing non-parties access to the family law file. She submits that, as a non-party, the Employer should not have been given standing to seek directions. Underlying all her submissions is the proposition that allowing non-parties to access her family law file is a violation of her privacy rights. DISCUSSION [29] Before turning to the issues raised on the appeal, I wish to comment briefly on the November 12 Order. While that order is not directly challenged on this appeal, it was made in a most irregular manner without any apparent regard to the rules that govern applications to court. There was no underlying application. It was made without notice to Mr. Kumar. There was no affidavit evidence to support it. It was based entirely on counsel’s brief comments which are set out in the reasons. Such practices should not be encouraged. [30] The November 12 Order is a complete gag on either party discussing the case with anyone. I have considerable doubt as to whether the trial judge had jurisdiction to make an order which so broadly restricts a party’s freedom of expression. If such jurisdiction does exist, it should only be invoked in the clearest of cases on a full evidentiary record with notice to all impacted parties. [31] The November 12 Order, as entered, is much broader in scope than what was discussed at the hearing. At the hearing, there was no discussion of sections 222 and 227 of the Family Law Act , S.B.C. 2011, c. 25. Further the order was intended to be interim in nature and should have specifically set out Mr. Kumar’s right to set it aside. [32] Turning to the merits of the appeal, I deal first with the appellant’s procedural objections. The appellant submits that the Employer and the Union are non-parties to the family law case and should not have been granted standing to seek directions concerning the November 12 Order. That objection is without merit. [33] Pursuant to R. 10-6(6) of the Rules , an application must be served on every person “who may be affected” by the order sought. Rule 10-9(6) allows the court to make an order without notice in case of urgency. Pursuant to Rule 10-9(8), a person “affected” by an order made without notice may apply to the court to change or set aside the order. Rule 10-9(8) provides recourse to persons affected by an order regardless of whether they are parties in the underlying proceeding. [34] In the circumstances of this case, the Employer and the Union were both persons possibly affected by the November 12 Order. As of November 12, 2013, they had in their possession documents from the family law file. Given Arbitrator Hall’s direction, the Employer had to bring the application for directions in order to determine if the documents could be used in the arbitration. The trial judge did not err in giving the Employer and the Union standing to speak to an order that affected them. [35] The appellant’s reliance on the implied undertaking of confidentiality rule is also misplaced. In Juman v. Doucette , 2008 SCC 8, the Supreme Court of Canada summarized the principles governing the implied undertaking rule. The rule holds that evidence compelled during pre-trial discovery from a party to civil litigation can be used by the parties only for the purpose of the litigation in which it was obtained. The foundation of the rule is the statutory compulsion to participate fully in pre-trial discovery. The rule is designed to encourage open and generous discovery by assuring parties being discovered of confidentiality. The rule recognizes that the public interest in getting at the truth in a civil action outweighs the examinee’s privacy interest, but that the latter is nevertheless entitled to a measure of protection. The implied undertaking rule is not absolute. A party bound by the undertaking may apply to the court for leave to use the information or documents otherwise than in the action. Further, the implied undertaking of confidentiality is extinguished when the evidence is used in open court. [36] The documents in issue in this proceeding are not covered by the implied undertaking rule. They were not created in the course of pre-trial discovery. The documents are court orders, reasons for judgment, affidavits, and transcripts of court proceedings. The implied undertaking rule does not apply to such documents. [37] Setting aside these procedural objections, the substance of the appellant’s complaint concerns her privacy rights in respect of the family law file. [38] The Rules contain some limitations on access to family law files. [39] While Rule 22-2(1) allows any person, unless otherwise provided by an enactment, on payment of the proper fees, to obtain from the registry a copy of a document on file in a family law case, Rule 22-8(1)(a), (5) and (6) limits access as follows: Search of files (1)  Unless the court otherwise orders, (a) no person, other than the following, may search a registry file in respect of a family law case: (i) a lawyer, whether or not a lawyer of a party; (ii) a party; (iii) a person authorized in writing by a party; (iv) a person authorized in writing by a party’s lawyer, and Search of exhibits (5)  The exhibits produced at the trial or hearing of a proceeding referred to in subrule (1) must be sealed by the registrar in a secure manner and, unless the court otherwise orders, no person other than a party’s lawyer, a party or a person authorized by a party or by a party’s lawyer may search the exhibits. Search of agreements (6)  Unless the court otherwise orders, no person other than a party, a party’s lawyer, a person authorized in writing by a party or a person authorized in writing by a party’s lawyer may search a separation agreement filed under section 122 of the Family Relations Act . [40] A party’s right to keep information in a family law case private has been the subject of prior judicial scrutiny. While a litigant’s right of privacy is an important right, it is subject to, and does not take precedence over, the right of the public to an open court process: Edmonton Journal v. Alberta (Attorney General) , [1989] 2 S.C.R. 1326. [41] The issue in Edmonton Journal was the constitutional validity of Alberta legislation which limited the publication of information concerning matrimonial disputes. The Court held that the legislative provisions violated the right to freedom of expression guaranteed under the Canadian Charter of Rights and Freedoms (the “ Charter ”) and could not be justified under s. 1 of the Charter . The majority recognized that a court can always use its supervisory power over its own record to grant restraining orders in appropriate cases: Edmonton Journal at 1346-1347. [42] In Leung v. Leung (1993), 77 B.C.L.R. (2d) 305 (S.C.), Chief Justice Esson suggested that a party in a matrimonial action was not entitled, as of right, to injunctive relief restraining the possession or use of documents from the court file even though the documents were obtained in contravention of the Rules. [43] In K.V.P. v. T.E. (1998), 56 B.C.L.R. (3d) 344 (S.C.), a party and several non-party media outlets applied to have a family law file unsealed. After reviewing the legislation and the authorities, Madam Justice Loo concluded: [20]      It therefore appears that notwithstanding Rule 60(22) [now R. 22-8(1)], parties do not have a right to insist that the proceedings remain private, or that information contained in the files not be disclosed to persons other than the parties, or any solicitor in all circumstances. If a third party seeks access to a matrimonial file, a general desire to keep matters private or to avoid publicity is not sufficient to deny access. It appears that a significant risk that significant harm will otherwise occur must be demonstrated in order to overcome the openness principle and the majority decision in Edmonton Journal . [Emphasis added.] [44] In Michie v. Michie , 2010 BCCA 232, this Court was asked to examine the confidentiality of financial information disclosed in matrimonial proceedings. Referring to the decisions in Edmonton Journal , Leung and K.V.P. , the Court concluded that there was no general right to privacy in such proceedings. The Court held that the Rules identify with some specificity the material to which confidentiality applies and that the Rules are an exception to the general open court policy of the law. The Court concluded: [31]      In matrimonial proceedings, as in other court proceedings, public access is the norm.  Recognizing the sensitivities of matrimonial proceedings, the Rules of Court provide some limitations on access. [45] Those comments are apposite. The appellant enjoys no overriding right of privacy in regard to material filed in her family law case. While a Supreme Court judge may limit access to a family law file, such an order is contrary to the open court principle and is an exception to the general rule. [46] In this case, the Employer obtained documents from the family law file with the consent of Mr. Kumar, who is a party to the family law case. In so doing, the Employer obtained the family law documents in compliance with the Rules. Nothing in the Rules prohibited Mr. Kumar from giving documents from the family law file to a third party. There is no legal basis to deny the Employer’s use of these documents in the grievance proceedings. Further, the documents are clearly relevant to the issues that are before the arbitrator in that proceeding. [47] I would dismiss the appeal. “The Honourable Mr. Justice Goepel” I AGREE: “The Honourable Madam Justice Kirkpatrick” I AGREE: “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Nathanson, Schachter & Thompson LLP v. Boss Power Corp., 2016 BCCA 1 Date: 20160104 Docket: CA42816 Between: Nathanson, Schachter & Thompson LLP Respondent (Lawyers) And Boss Power Corp. and Blizzard Uranium Corp. Appellants (Clients) Before: The Honourable Mr. Justice Donald The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Goepel On appeal from:  An order of the Supreme Court of British Columbia, dated May 1, 2015 ( Nathanson, Schachter & Thompson LLP v. Boss Power Corp. , 2015 BCSC 702, Vancouver Docket S148084). Counsel for the Appellants: D.B. Kirkham, Q.C. and P.A. Brackstone Counsel for the Respondent: I.G. Nathanson, Q.C. and J.K. Lockhart Place and Date of Hearing: Vancouver, British Columbia October 6, 2015 Place and Date of Judgment: Vancouver, British Columbia January 4, 2016 Written Reasons by: The Honourable Mr. Justice Chiasson Concurred in by: The Honourable Mr. Justice Donald The Honourable Mr. Justice Goepel Summary: The appellants included mineral claims owned beneficially by a shareholder in the settlement of litigation with the Province of British Columbia.  The appellant shareholder and his associates (the “Beruschi Group”) took the position that the respondent, which acted for the appellants, improperly included the claims.  This resulted in a lengthy and protracted dispute, the resolution of which included the assignment to the Beruschi Group of all of the appellants’ rights against the respondent, including the right to seek a review of its accounts.  The application for a review was made out of time.  An application to extend time was made by the Beruschi Group.  The chambers judge held that the assignment was champertous.  The appellants challenge this finding on appeal.  An issue arose whether the right to seek a review is assignable.  The respondent asserts that the Beruschi Group does not have standing to pursue a review and that the assignment was champertous.  It also contends that there are no special circumstances that would warrant extending the time for a review.  Held: appeal allowed.  The Legal Profession Act does not oust the inherent jurisdiction of the court to review the accounts of lawyers.  It is an implied term of the retainer contract that accounts can be reviewed.  The right to a review is a chose in action that is assignable.  The Beruschi Group has standing to seek a review.  The assignment was not champertous because the Beruschi Group had a pre-existing commercial interest in seeking a review.  In the circumstances of this case, there are special circumstances that warrant an extension of time. Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] This appeal concerns provisions of the Legal Profession Act , S.B.C. 1998, c. 9 [the Act ], the inherent jurisdiction of the court to review the accounts of lawyers and the assignability of the right to have an account reviewed.  The relevant provisions of the Act are: 70 (1)   Subject to subsection (11), the person charged or a person who has agreed to indemnify that person may obtain an appointment to have a bill reviewed before (a)  12 months after the bill was delivered under section 69, or (b)  3 months after the bill was paid, whichever occurs first. [Under the definitions in s. 64, “person charged” includes a person who has agreed to pay for legal services, whether or not the services were provided on the person’s behalf.] (5)  The following people may obtain an appointment on behalf of a lawyer to have a bill reviewed: (c)  the lawyer’s assignee; (11)  In either of the following circumstances, the lawyer’s bill must not be reviewed unless the court finds that special circumstances justify a review of the bill and orders that the bill be reviewed by the registrar: (a)  the lawyer has sued and obtained judgment for the amount of the bill; (b)  application for the review was not made within the time allowed in subsection (1). Background [2] The appellant, Blizzard Uranium Corp., is a wholly owned subsidiary of the appellant Boss Power Corp. (“Boss”).  Mr. Anthony Beruschi owned approximately 33 per cent of the shares of Boss.  I shall refer to him and his companies as the “Beruschi Group”. [3] Boss and Blizzard Uranium owned various uranium claims in the Province of British Columbia.  In 2008, the Province established a mineral reserve for uranium which effectively expropriated the appellants’ claims. [4] In October 2008, the appellants retained the respondent law firm to sue the Province.  In March 2011, acting on instructions from the president and chief executive officer of Boss, counsel amended the appellants’ notice of civil claim to include “B Claims”.  These claims were held by Blizzard Uranium in trust for the Beruschi Group.  It is counsel’s position that he did not know this.  The Beruschi Group asserts that it did not consent to the inclusion of the B Claims and did not know they were included. [5] In October 2011, counsel negotiated a settlement with the Province whereby the appellants would transfer all of the claims referred to in the notice of civil claim to the Province on payment of $30 million.  On learning this, the Beruschi Group objected and refused to authorize transfer of the B Claims.  The appellants were unable to complete the settlement transaction. [6] The Beruschi Group took the position that the respondent had acted negligently by including the B Claims in the litigation.  It also asserted that the majority of the board of directors of Boss were in breach of fiduciary duty.  A lengthy and protracted battle ensued which included arbitration, a contested proxy dispute, court applications in connection with that dispute, and other court applications.  The respondent acted for the appellant with respect to matters concerning the Province and other issues.  The Beruschi Group objected to this. [7] The appellants and the Beruschi group reached a settlement which was reflected in a letter agreement dated March 28, 2014.  It contained a number of provisions relevant to this appeal: 1.       the Beruschi Group would transfer the B Claims to the Province and would receive $3,600,000 as an initial payment; 2.       Boss would receive $2,500,000 with the balance of the Province’s settlement funds deposited in escrow; 3.       a new subsidiary of Boss, which became Blizzard Finance Corp., would be incorporated; 4.       Boss would be reorganized pursuant to a plan of arrangement under the Business Corporations Act , S.B.C. 2002, c. 57; 5.       Boss was to assign “any and all of Boss’s potential causes of action against, and rights to, claim compensation of any kind whatsoever” from the respondent to Blizzard Finance; Blizzard Finance also was assigned “Boss’s rights to dispute and recover payments made by Boss on [the respondent’s] accounts”; 6.       Boss was to pay the respondent’s accounts issued “in connection with the prosecution and settlement” of the action against the Province. [8] It was envisioned that the steps and documents required to effect the settlement would be taken soon after March 2014, but there was delay. [9] The parties entered into an Arrangement Agreement dated November 21, 2014.  It recited the agreement to assign Boss’s rights against the respondent and attached a plan of arrangement and assignment.  The plan of arrangement was approved by the Court on January 22, 2015.  In Article 2, the plan stated that it was “made pursuant to, is subject to the provisions of and forms part of, the Arrangement Agreement…”  The assignment was dated January 23, 2015.  It referred to the March 2014 letter agreement. [10] An issue arose at the hearing of the appeal concerning the timing of the assignment relative to the approval of the plan of arrangement.  Having reviewed the documents, I am satisfied that nothing turns on this point. [11] On March 27, 2014, a draft of the letter agreement was sent to the respondent.  Its final bill was sent on May 30, 2014 and was paid from the settlement proceeds on June 3, 2014.  It is common ground that the management of Boss did not dispute the amount of the respondent’s accounts. [12] In September 2014, after the three-month period specified for seeking a review, the Beruschi Group became aware that the respondent’s bill had been paid and asked Boss to take out an appointment to review the respondent’s accounts pursuant to the provisions of the March 2014 letter agreement.  The appellants did so. [13] The respondent took the position that the appointment was out of time.  Although the plan of arrangement had not yet been approved, on December 30, 2014, the Registrar directed that Blizzard Finance apply for an extension of time pursuant to s. 70(11) of the Act .  It did so. [14] On May 1, 2015, Mr. Justice McEwan dismissed the application to extend time. Trial Reasons [15] The judge began by setting out ss. 70(1) and (11).  He then discussed the background of the dispute between the appellants and the Beruschi Group which culminated in the March 2014 letter agreement.  He stated: [11]      Something called a “letter agreement” dated March 28, 2014 was sent to the lawyers.  It stated an intention that Boss Power would assign to the new company (Blizzard) any of its right to claim compensation against the lawyers in negligence, breach of contract, breach of fiduciary duty, and breach of trust…. [16] Boss was obliged to pay the respondent’s accounts. [17] The judge described the initiation of the review proceedings as follows: [14]      On September 4, 2014, a lawyer named Paul Brackstone, counsel for Mr. Beruschi, an anticipated shareholder of Blizzard, asked whether the lawyers had billed Boss Power and whether the bill had been paid. On October 30, 2014 an appointment to review the bill was filed by Boss Power. [15]      Blizzard took an assignment of the rights under the appointment on January 23, 2015, when its agreement with Boss Power concluded. [18] The judge referred to a number of authorities addressing the special circumstances requirement in s. 70(11).  He stated: [18]      There are a number of judicial pronouncements to the effect that the threshold is not high (see: Bull Housser & Tupper v. GPF Holdings Corp. , [1998] B.C.J. No. 2773 (S.C.) at para. 15), and that the determination of proof of “special circumstances” requires a balancing of the degrees of prejudice to either party, leading, in the end, to a question of whether it is “right and reasonable” to make the order. In Thornett v. Bull, Housser & Tupper (1998), 34 C.P.C. 4th 180 (B.C.S.C.), this court, per Hutchinson J. observed: [7]        There is no formula established by the case law to determine when “special circumstances” arise. Each case must stand on its own circumstances and the court must decide in each case whether the circumstances are such that it is right and reasonable that the bill should be taxed, even though it has been paid and the time for taxing the bill has elapsed [authorities omitted]. [19] The judge observed at para. 20 that the size of the bill may be a special circumstance.  He recapitulated the position of Blizzard Finance: [21]      Blizzard submits, in summary, that if no special circumstances order is made, it will be prejudiced because it will have lost a right to review a bill it had no capacity to challenge within the time limit stipulated in s. 70(1) of the Legal Profession Act . It submits that, on the other hand, the lawyers will not be prejudiced if a “special circumstances” order is made, because they knew an assignment was intended and were in a position to prepare themselves for Blizzard’s challenge. [20] The respondent relied on the payment of the accounts without protest by the appellants.  It asserted that Blizzard Finance had no standing to pursue a review and that the assignment was champertous.  The judge turned to the law of champerty, stating: [27]      Champerty is a species of maintenance. In Thomson v. Wishart (1910) 16 C.C.C. 447 the Manitoba Court of Appeal defined maintenance as follows: Maintenance, which includes champerty, is defined as “the act of assisting the plaintiff in any legal proceeding in which the person giving the assistance has no valuable interest, or in which he acts from any improper motive:” Stephen Dig., art. 141. * * * Although maintenance and champerty were once crimes, and are still sometimes classed as such, they are now obsolete as crimes and are only invoked in respect of the invalidity or illegality of contracts that may involve one or other of them. [28]      In Silverado Oilfield Ventures Ltd. v. Davidson , [2014] 6 W.W.R. 295 (ABQB) [ Silverado ], the court observed: 25        As noted in McIntyre Estate v. Ontario (Attorney General) (2002), 61 OR (3d) 257 (CA) at para 32, the fundamental aim of the law of champerty and maintenance is the protection of the administration of justice from abuse. It is a principle of public policy. 26        “Maintenance” is directed against those who become involved with the litigation of others in which the maintainer has no interest and for an improper motive, which may include but is not limited to “officious intermeddling” or “stirring up strife”. “Champerty” is an egregious form of maintenance where the maintainer shares in the profits of the litigation. Without maintenance, there can be no champerty. There is no maintenance if the alleged maintainer has a justifying motive or excuse: McIntyre Estate at paras 26, 27, 28 and 34. 27 Fredrickson v. Insurance Corp of British Columbia (1986), 3 BCLR (2d) 145 (CA), aff’d [1988] 1 SCR 1089 [ Fredrickson ], remains the leading case in Canada with respect to the rule against champerty and maintenance. Justice McLachlin (as she then was) referred to the general rule that a bare cause of action in tort is not assignable, noting that the “exact ambit of the rule is elusive.” She commented at para 23 that the rule is subject to a number of exceptions, and in each case: ... the court must ask itself whether the assignment can fairly be seen as prompted by a desire to advance the cause of justice rather than as intermeddling for some collateral reason ... [29]      In Fredrickson , referred to in Silverado , a party who was found liable for damages in excess of the limits of his automobile insurance assigned his right to sue the insurer to the plaintiff to recover the excess. McLachlin J.A. (as she then was) noted: While the entire transaction must be looked to, the essential question to be considered in determining whether the assignment smacks of maintenance or champerty is whether the assignee possessed the requisite financial interest at the time of the assignment. In my view, the fact that at some earlier date the interests of the assignee and the assignor were opposed, does not negate the fact that when the assignment here in question was made, Miss Nielsen had a very real financial interest in obtaining it. She had a judgment. The cause of action of which she took an assignment represented her only means of obtaining satisfaction of that judgment. Her interest in the cause of action assigned is not created by the assignment, in which case it might well be champertous, but antedated and existed independently of the assignment. The assignee, in pursuing the assigned cause of action, does not seek to make a profit, but only to recover the amount of her judgment. Moreover, she is not a stranger to the action assigned. She was involved in the proceedings which give rise to it. [30]      McLachlin J.A. also noted that the rule was similar for contract cases: The rule precluding the assignment of mere rights of action in contract is based on the rule against maintenance and champerty. As in the case of causes of action in tort, where the assignee possesses a sufficient pre-existing interest in the cause of action assigned, the suggestion of maintenance is negated and the assignment is valid. [21] The judge commented on the assignment agreement: [33]      The assignment agreement purports to assign to Blizzard any rights Boss Power may have had against the lawyers for their part in the inclusion of the “B” claims in the original settlement. Since at least March 28, 2014 the intention of Boss Power and Blizzard to conclude an agreement assigning Blizzard the right to claim compensation against the lawyers for negligence, breach of trust, breach of contracts, and breach of fiduciary duty was known to the lawyers. The effect of the assignment, from Blizzard’s perspective, is that it acquired the right to sue the lawyers for Boss Power’s loss of the $3.6 million paid to Mr. Beruschi, and to tax their fees. [Emphasis in original.] [34]      Blizzard’s claim is that its dissident position within Boss Power, followed by the assignment, gives it a sufficient interest to bring the matter to the attention of the court. They submit furthermore that the amount of the bill relative to the hourly value of the work is on its face so disproportionate that the court’s supervisory jurisdiction under the Legal Profession Act ought to be engaged, and that the court ought to find that “special circumstances” have been established. [22] The judge rejected this contention.  He stated: [35]      … that dissent within Boss Power as to the value of the lawyers’ services is not a “financial interest” as described in the case law. Collective entities like corporations deal with other entities and individuals through authorized representatives. The lawyers were not obliged to poll dissenting members to satisfy themselves that they were dealing with the entity lawfully. In this case the evidence is, at most, that the lawyers had been made aware that there was dissatisfaction within Boss Power respecting the settlement. There is nothing that undermines the normal inference that the lawyers, in discussing their account and the disbursement of funds with Boss Power, dealt with representatives authorized to deal with them, nor is there anything to suggest that the passage of three months without protest by those representatives was indicative of anything other than that Boss Power was satisfied with the account. Had the dissidents become the authorized representatives of the company before three months had elapsed, matters might have been different, but they never acquired that standing. [36]      The effect of Blizzard’s submission is that an interest they were unable to advance within the company by gaining control of Boss Power, and with it, the authority to deal directly with Boss Power’s lawyers, may be asserted from outside by means of an assignment to an entity that did not exist until several months after Boss Power had paid the bill. That is to argue that a financial interest the Blizzard dissidents could not assert within Boss Power, owing to the manner in which corporate entities operate at law, materialized upon assignment to a corporate entity they did control. This clearly offends the rule that for such an assignment to be valid, the assignee must possess “a sufficient pre-existing interest in the cause of action assigned.” Here, the interest only came about, if at all, upon the assignment. The transaction therefore offends the rule against maintenance. [37]      If I am wrong about that, or if the issue remains in doubt, the question, in any event, is what interest, relative to the bill, was actually assigned. Boss Power assigned an interest it did not assert in time, and had no apparent interest in pursuing on its own behalf. At most Boss Power assigned the opportunity to a legal stranger to assert the chance afforded by s. 20(11) of the Legal Profession Act to persuade the court that “special circumstances” justified a review. [23] The judge continued: [39]      … Boss Power never complained about the bill. All it has done is facilitate Blizzard’s opportunity to advance a claim if it can, as an incident of extricating itself from an unhappy internal dispute. Blizzard had no pre-existing financial interest: all it had was the prospect of making a grievance out of something that was not a grievance to the party who paid the bill. [40]      The foundation of that grievance is principally that the size of the bill, particularly when compared to the hourly rate value of the work, should be a matter of interest to the court as it was in Doig [ Doig v. Davidson Muir , 48 B.C.L.R. (3d) 53 (C.A.)]. Were this a case as between the lawyers and a client, or between the lawyers and a person who had actually paid the lawyers’ bill, this might be more persuasive. As I have noted, however, Blizzard was neither “a person charged” nor a person who had “agreed to indemnify” Boss Power and thus falls outside the class of entities who may apply to tax a lawyer’s bill before three months has elapsed. [42]      The Blizzard dissidents’ unhappiness with the settlement was not a “pre‑existing interest” in the requisite legal sense, and the purported assignment is, accordingly, a species of maintenance. [43]      It is also offensive on the grounds that the assignment is an attempt to assert an interest in the bill not shared by the assignor. Boss Power had no interest in challenging the bill, except as a bargaining chip in its dealing with the Blizzard dissidents. This is surely improper…. [24] The judge considered that the assignment was of an “abstract grievance” because the appellants did not dispute the respondent’s accounts.  He added that the size of the bill alone would not have moved him to find special circumstances. Positions of the Parties [25] The appellants assert that the judge erred in finding that the assignment was champertous and “in suggesting that there were not ‘special circumstances’ justifying an extension of time to review the account”. [26] The respondent contends that Blizzard Finance does not have standing to pursue a review of its accounts.  It states that the judge correctly concluded that the assignment was champertous and that the assertions of the appellants are not special circumstances as required by s. 70(11) of the Act . Discussion Assignment [27] In their factum, the appellants state: 51.       The right of a client to require the assessment of the account of a lawyer is a chose in action and is assignable. [28] In support of this assertion, they rely on Cem Ali (Re) , 2011 BCSC 822, where Mr. Justice Burnyeat observed at para. 40: The right of a client to require the assessment of the account of a lawyer is a chose [in] action arising either by way of the contract between the client and lawyer or by way of the statutory provisions created by the Legal Profession Act . Consideration of the provisions of the Act engages the issue of standing, but the first issue is the assignability of the right to an assessment as an implied contractual term. [29] The Act does not provide for the assignment of a client’s right to an assessment.  In the absence of an express contractual provision providing for assignment, the right to assign the right to an assessment must be an implied contractual term.  It is said to flow from the court’s inherent jurisdiction to review lawyers’ accounts. [30] In their reply factum at para. 24, the appellants assert: There is no reason in public policy or otherwise why an assignment of a right to review should be treated any differently than the assignment of a cause of action in negligence. The difference may be s. 70 of the Act . [31] Causes of action against lawyers for negligence are not dealt with in the Act .  The common law or contractual right to do so is not affected by the legislation.  The assessment of lawyers’ bills is addressed in the legislation.  The question is whether the Act provides a code for dealing with assessments so as to exclude the inherent jurisdiction of the court to do so. [32] In Harrington (Guardian ad litem of) v. Royal Inland Hospital (1995), 14 B.C.L.R. (3d) 201 (C.A.), writing for a majority of this Court, Mr. Justice Hinds observed: [192]    In my view there is no distinction between the inherent jurisdiction of a judge of a superior court to review a solicitor’s bill of costs and the inherent jurisdiction to review the reasonableness of a solicitor’s fee arising out of a contingency fee agreement. That prevails whether or not the contingency fee agreement has been approved in principle by a previous court order, or whether or not the contingency fee agreement involves an infant. [33] Hinds J.A. set out the relevant provisions of the Act and then stated: [196]    In my view, the inherent jurisdiction of the court was not curtailed by the statutory enactments contained in s. 71(1), (2), (3) and (4) and s. 78(8) and (9) of the Legal Profession Act . [197]    The second basis for jurisdiction in the circumstances of this case is the parens patriae inherent jurisdiction of the court to protect the welfare of infants. [198]    In Deans v. Armstrong [(1983), 46 B.C.L.R. 273 (S.C.)] the Chief Justice had directed that a substantial contingency fee sought by a solicitor who had negotiated a large structured settlement for an infant plaintiff be referred to the registrar for taxation. On taxation the Master (acting on behalf of the registrar) reduced the amount of the fee. The solicitor appealed the taxation and in the course of his decision with respect to the appeal McKenzie J. considered the jurisdictional basis for the reference by the Chief Justice. At pp. 278-279 he said this: By what authority did the Chief Justice refer this matter to the district registrar for taxation... I do not think there is any mystery about the authority to refer, and I infer that the reference was made under this court’s inherent jurisdiction. Wallace J. examined this jurisdiction in relation to legal bills in Ladner Downs v. Thauberger , [1983] 5 W.W.R. 522 (B.C.S.C.). At p. 532 he said: He also adopted the statement of I.H. Jacob in his work The Inherent Jurisdiction of the Court (1970), at p. 23: “The inherent jurisdiction of the court may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways”. One such way is, of course, the parens patriae inherent jurisdiction of the court to guard the welfare of infants as expounded in Wellesley v. Beaufort (Duke) (1827), 2 Russ. 1 at 18, 38 E.R. 236, affirmed by the House of Lords in 2 Bli. N.S. 124, 4 E.R. 1078. My conclusions up to this point are that the Chief Justice referred this matter to the registrar for taxation for two basic reasons – because the fee was extraordinarily large, and because an infant was involved. He did so under the court’s inherent jurisdiction. [199]    I conclude that because the plaintiff in this case was an infant the court had, under its parens patriae inherent jurisdiction, the right to review the contingency fee agreement. Moreover, it had jurisdiction to determine the reasonableness of the contingency fee and the amount thereof to which the solicitor was entitled. [34] Mr. Justice Finch (as he then was) agreed with the reasoning of Hinds J.A. [35] In Barnard, Robertson, Heisterman & Tait (Re) (1926), 37 B.C.R. 161, [1926] 3 D.L.R. 113 (C.A.) [ Barnard, Robertson ], two of five members of this Court suggested that a limitation provision in the Legal Professions Act , R.S.B.C. 1924, c. 136, barred an application for the delivery of a solicitor’s bill of costs for taxation.  The other judge who was considered to be in the majority did not comment on the issue.  The relevant sections of the legislation stated: 100.     Notwithstanding any law or usage to the contrary, any barrister or solicitor in the Province may contract, either under seal or otherwise, with any person as to the remuneration to be paid him for services rendered or to be rendered to such person in lieu of or in addition to the costs which are allowed to said barrister or solicitor, and the contract entered into may provide that the barrister or solicitor is to receive a portion of the proceeds of the subject-matter of the action or suit in which the barrister or solicitor is or is to be employed, or a portion of the moneys or property as to which the barrister or solicitor may be retained whether an action or suit is brought for the same or a defence entered or not, and such remuneration may also be in the way of commission or percentage on the amount recovered or defended against, or on the value of property about which any action, suit, or transaction is concerned. 101.     At any time within three months after the making of the contract, the person who has so contracted with a barrister or solicitor, or the representative of such person, may apply by motion or petition to a Judge of the Supreme Court; and if the Judge does not consider the contract fair and reasonable, he shall have power either to modify the contract or to order the contract to be cancelled, and the costs, fees, charges, and disbursements in respect of the business done to be taxed in the same manner as if no such contract had been made. [36] Referring to Barnard, Robertson in Monteith v. Calladine (1964), 47 D.L.R. (2d) 332 at 336, 49 W.W.R. 641 (B.C.C.A.), Davey J.A. stated: Under Re Solicitors [ Barnard, Robertson ], the failure to move within the stipulated time bars not only the statutory right of review but also the inherent jurisdiction of the Court, although if the matter had been at large, I should have preferred the conclusion of Martin and Galliher, JJ.A., that the limitation does not touch the inherent jurisdiction of the Court. [37] Neither of these cases was referred to in Harrington , but it would appear that from at least 1926 it has been considered that the law in this Province is that a limitation provision in the Act does oust the inherent jurisdiction of the court to review contracts between clients and lawyers providing for the remuneration to be paid to the lawyer.  In my view, while that does not resolve the question whether s. 70 has ousted the court’s inherent jurisdiction to assess lawyers’ accounts, it provides an example of the possible effect of legislation on the inherent jurisdiction of the court. [38] Both Barnard, Robertson and Monteith concerned the review of agreements, which were dealt with then and in the present legislation separate from provisions dealing with taxing lawyers’ accounts.  It also is instructive to consider what was addressed by the members of this Court in Barnard, Robertson . [39] The headnote of the case in the British Columbia Reports states: Per MACDONALD, C.J.A., McPHILLIPS and MACDONALD JJ.A.: That the application for an order for delivery of a bill for taxation should be dismissed not only on the ground that the application was not made within three months as required by section 101 of the Legal Professions Act but also on the general law applicable to the facts disclosed even if the section should not be regarded as a bar. [40] The Chief Justice allowed the appeal because the proceeding “was not taken within the delay mentioned in section 101 of the Legal Professions Act”.  He did not refer to the judgment of Mr. Justice MacDonald.  Mr. Justice McPhillips stated simply that he “allowed the appeal”.  Mr. Justice Martin, with whom Mr. Justice Galliher agreed, also allowed the appeal, largely relying on the inherent jurisdiction of the court to review the accounts of lawyers. [41] MacDonald J.A. stated at 178: on the facts disclosed in the material filed, this section [s. 101], once the agreement is produced, effectively bars the application. He continued: As, however, two of my brothers take a contrary view in respect to section 101 creating a bar and the matters involved are of some importance I will deal with the question on the merits apart altogether from the view expressed in regard to the limitations imposed by said section. [42] MacDonald J.A. did so and rejected the client’s position on the merits.  He concluded at 183: the application for an order for the delivery of a bill and for taxation should have been dismissed, not only on the ground that the application was not made within the three months referred to in section 101 of our Legal Professions Act, but also on the general law applicable to the facts disclosed even if said section should not be regarded as a bar. Pro forma the appeal should be allowed as, with deference, the proper course was not pursued below…. [43] Harrington concerned the approval of an infant settlement.  In dissenting reasons, Madam Justice Southin observed that the application that led to the orders under appeal was not “to determine the fees but simply to authorize payment in accordance with the agreement which had received the approval of the court”. [44] In Harrington , Southin J.A. relied on Harrison v. Tew , [1990] 2 A.C. 523, [1990] 1 All E.R. 321 (H.L.), and distinguished the analysis of Wallace J. in Ladner Downs on the basis that it had been overtaken by Harrison .  She concluded that: [143]    … the sections of the Legal Profession Act now in force clearly provide a code by which legal fees are to be assessed.  There is no longer an inherent jurisdiction. [45] The majority in Harrington clearly was aware of the analysis undertaken by Southin J.A.  It preferred the approach of Wallace J. and specifically held that the inherent jurisdiction of the court to assess a lawyer’s bill was not ousted by the legislation. [46] The applicable legislation in Harrington is analogous to the legislation applicable to the present appeal.  Although the circumstances in Harrington differ from those in the present case, both Southin J.A. and the majority were considering whether the legislation was a complete code that ousted the inherent jurisdiction of the court.  The majority held that it did not.  In my view, it is not open to a division of this Court to reach a contrary conclusion. [47] There being an inherent jurisdiction in the court to order the review of a lawyer’s account, subject perhaps to express contractual terms excluding such review, a term not contained in the agreement in issue on this appeal, it is an implied term of retainer contracts that they are subject to the court’s inherent review jurisdiction.  That jurisdiction has not been taken away by the Act .  I accept that the right to review is a chose in action and is assignable. Standing [48] The respondent contends that the appellants do not have standing to seek an assessment because they were not charged with paying the account.  They rely on the wording of s. 70(1) that gives the right of review to “the person charged”.  As noted, pursuant to s. 64, person charged “includes a person who has agreed to pay for legal services, whether or not the services were provided on the person’s behalf”. [49] The appellants note that the definition is inclusive.  That is, “person charged” is greater than stated in the definition.  I see merit in this contention.  The definition first appeared in the Legal Profession Act , S.B.C. 1987, c. 25, s. 69.  It was almost identical to the definition provided in the 1998 statute. [50] Clearly, the appellants were persons charged.  They had a right of review.  I have held that the assignment of that right was valid based on an implied term in the retainer contract flowing from the inherent jurisdiction to assess all retainer contracts, perhaps subject only to an agreed, enforceable contractual provision to the contrary. [51] In the absence of language expressly excluding that implied right to assign, I am not prepared to conclude that the omission of “assignees” in ss. 70(1) and 64 of the Act , excludes assignees.  I am aware that “the lawyer’s assignee” is included in the entities that can seek a review on behalf of a lawyer provided in s. 70(5), but I do not consider that to affect the reach of s. 70(1). [52] As the respondents assert, the limitation on assigning the right to assess a lawyer’s account is champerty.  I now turn to that issue. Champerty [53] I state at the outset that this appeal does not concern the merits of the dispute between the Beruschi Group and the respondent.  The issue is whether the assignment to the Beruschi Group of the appellants’ rights to seek a review was champertous. [54] In my view, the judge correctly dealt with the law of champerty.  The law does not countenance trading in causes of action.  The assignee must have a commercial interest in the cause of action.  The commercial interest must pre‑exist the assignment. [55] At the core of the analysis in this appeal is whether the Beruschi Group had a pre‑existing commercial interest in the right of the appellants to seek a review of the respondent’s accounts.  In my view it did. [56] The judge and the respondent focus on the internal management of Boss and the fact that it did not contest the respondent’s accounts.  At one level, the dispute was between the majority shareholders, who controlled Boss, and the minority Beruschi Group.  Some of the lengthy battle after the settlement of the action against the Province was fought on the corporate battlefield, but the underlying dispute involved the inclusion of the B Claims in the settlement and the respondent’s involvement in that process. [57] The corporate maneuvers served the objectives of the Beruschi Group in pursuance of that dispute, but they were merely part of the battle.  Mr. Beruschi gave examples of the proceedings that were taken over the years.  They included an application by Boss for an order imposing aspects of the settlement on the Beruschi Group, an application by the Province to interplead the settlement funds, and to require the abandonment of the B Claims or rescission of the settlement. [58] In my opinion, the judge and the respondent understate the import of the letter agreement.  It reflected the resolution of a long, protracted battle between the appellants and the Beruschi Group.  Part of that battle concerned the unhappiness of the Beruschi Group with the inclusion by the respondent of the B Claims in the pleadings. [59] The letter agreement was sent to the Beruschi Group.  It stated: the parties agree this letter agreement…sets out their agreement on the terms and conditions upon which, and the manner in which, Boss and the Beruschi Parties will settle the Disputes…. Representatives of Boss and the Beruschi Group signed the letter agreement signifying their “acceptance of the terms contained herein…” [60] Those terms included: payment to the Beruschi Group of $3,600,000; payment to Boss of $2,500,000; the incorporation of Blizzard Finance; negotiating and entering into a plan of arrangement agreement; court approval of a plan of arrangement; and the formal assignment of the appellants’ rights against the respondent.  All of these terms were fulfilled.  In my view, the fact that fulfillment took place over a number of months does not undermine the substance of the settlement and the fact that assignment of the appellants’ rights against the respondent was an integral part of it. [61] Of specific note in the context of this appeal was the specific assignment of “Boss’s rights to dispute and recover payments made by Boss on [the respondent’s] accounts”.  The letter agreement also assigned the right to make “claim[s] Boss may have against [the respondent] in connection with [the respondent’s] representation of Boss, including the inclusion of the B Claims in the Blizzard Settlement”. [62] In my view, the letter agreement did not merely express “an intention that Boss Power would assign”.  It was an agreement to do so; an agreement with consideration, signed by the parties that reflected the settlement of a long and protracted dispute. [63] The respondent’s position does not take into account the longstanding position of the Beruschi Group that the appellants should not have included the B Claims in the settlement with the Province and its contention that the respondent was complicit in this.  It long objected to the respondent continuing to act for the appellants in the matter.  The alleged conduct of the respondent was wrapped into the overall dispute the Beruschi Group had with the appellants.  In my view, the Beruschi Group had a pre-existing commercial interest in having the accounts of the respondent reviewed. [64] I conclude that the obligation of Boss to pay the respondent’s accounts as expressed in the letter agreement to be of no moment.  That simply set the stage for a review.  The appellants had no quarrel with the respondent, but they knew that the Beruschi Group clearly did so.  The settlement letter left the Beruschi Group to deal with the issue. Special Circumstances [65] The fact that the respondent’s accounts were paid by the appellants without protest is not a determining factor.  Boss was obliged to do so by the terms of the settlement letter. [66] The Beruschi Group did not know that the respondent’s account was paid until September 2014.  On September 4, 2014, a lawyer acting for the group asked whether the respondent “has issued accounts for its services” and “whether those accounts have been paid”.  He repeated the inquiry on September 19, 2014.  On September 22, 2014, he was informed that accounts had been issued and paid.  On September 23, 2014, the lawyer asked when the accounts had been paid and on September 24, 2014, he was informed that the accounts were paid on June 9, 2014 (in fact, the accounts had been paid on June 3, 2014).  By this time, the three-month period specified for seeking a review had expired. [67] On September 26, 2014, Mr. Beruschi told the appellants to take out an appointment to review the accounts and that an extension of time would be sought on the basis of special circumstances.  He stated that in due course Blizzard Finance would take over conduct of the review proceeding. [68] An exchange between lawyers representing the appellants and the Beruschi Group followed, concerning the form and content of the appointment.  It was filed on October 20, 2014. [69] In large part, this accounted for the failure of the review application to be filed in time.  The respondent contends that the Beruschi Group should have included a provision in the letter agreement requiring the appellants to advise it if the accounts were paid.  I question this.  The appellants knew they were obliged to pay the accounts and knew that the Beruschi Group intended to challenge them.  Arguably, they should have advised the Beruschi Group when the accounts were paid so as not to jeopardize the effectiveness of the assignment to which they agreed. [70] In my view, it is of some significance that the respondent knew of the assignment of Boss’s right to challenge its accounts as of March 27, 2014.  The respondent’s account was sent to Boss on May 30, 2014 and paid from trust funds held by the respondent on June 3, 2014.  The Beruschi Group did not know this until the latter part of September 2014.  It then acted.  The delay by the Beruschi Group is explained.  There is no legal prejudice to the respondent. [71] The judge noted that if the issue were between the appellants and the respondent, the size of the bill might be more persuasive as a special circumstance.  The bill for fees was $800,000; unbilled time was approximately $320,000.  In my view, the size of the account is a relevant factor. [72] The respondent contends that the court can look to only the circumstances of the appellants when considering whether special circumstances exist.  In my view, this is too narrow an approach on the facts of this case.  It risks putting form over substance. [73] The party of interest is the Beruschi Group.  Because of the failure of the appellants to advise that the respondent had issued an account, and the account was paid, until after the required three-month period had elapsed, the Beruschi Group is deprived of the right assigned to it unless the time is extended.  The Beruschi Group did not delay once it knew the true state of affairs.  In my view, on the facts of this case, there are special circumstances that warrant extending the time. Conclusion [74] In my view, the court retains inherent jurisdiction to direct the review of lawyers’ accounts.  It is an implied term of the retainer contract that accounts can be reviewed.  The right to a review is a chose in action that is assignable. [75] The Beruschi Group had a financial interest in the conduct and accounts of the respondent that pre-existed the settlement letter.  By that letter, the appellants contracted to assign their right to review the respondent’s accounts to Blizzard Finance.  Those rights ultimately were assigned to Blizzard Finance. [76] Blizzard Finance has standing as assignee to seek a review of the respondent’s accounts. [77] The assignment of the appellants’ right to seek a review of the respondent’s accounts was not champertous. [78] Special circumstances exist to extend the time for bringing an application to review the accounts. [79] I would allow this appeal and direct that the Registrar review the respondent’s accounts. [80] The appellants ask that this Court order that the review be postponed pending a determination of the claim of negligence against the respondent.  I would not make that order and leave it to the Registrar to proceed as is considered appropriate in the circumstances. “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Mr. Justice Donald” I agree: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Ma v. Nutriview Systems Inc., 2016 BCCA 4 Date: 20160105 Docket: CA41850 Between: Harry Ma Respondent (Plaintiff) Nutriview Systems Inc. and Brian Thurston Appellants (Defendants) Before: The Honourable Madam Justice Newbury The Honourable Madam Justice Bennett The Honourable Madam Justice Fenlon On appeal from:  An order of the Supreme Court of British Columbia, dated April 28, 2014 ( Ma v. Nutriview Systems Inc. , 2014 BCSC 725, Vancouver Docket No. S111643). Counsel for the Appellants: C.E. Hunter Counsel for the Respondent: N.S. Ganapathi A. Kurt, A/S Place and Date of Hearing: Vancouver, British Columbia December 14, 2015 Place and Date of Judgment: Vancouver, British Columbia January 5, 2016 Dissenting Reasons by: The Honourable Madam Justice Newbury Written Reasons by: The Honourable Madam Justice Bennett (Page 19, para. 38) Concurred in by: The Honourable Madam Justice Fenlon Summary: Mr. Thurston and Nutriview Systems Inc. appeal an order finding Mr. Thurston made fraudulent misrepresentations to induce Mr. Ma (respondent) to contract. The trial judge found Mr. Ma credible and Mr. Thurston not. After trial, a witness filed an affidavit stating Mr. Ma offered him a bribe for favourable testimony, he ultimately gave only truthful testimony he would have given anyway, and he accepted cash from the respondent after trial. The appellants argue (1) the trial judge engaged in impermissible propensity reasoning with respect to Mr. Thurston and (2) sought to admit the witnesses’ recent allegations as fresh evidence. Held: Appeal dismissed. The trial judge did not engage in propensity reasoning. The witness’s affidavit does not meet the test for admission of fresh evidence. Although satisfying the other criteria to varying degrees, it is not credible enough to be reasonably capable of belief. Madam Justice Newbury dissenting, would have admitted the fresh evidence in the interests of justice and ordered a new trial. Dissenting Reasons for Judgment of the Honourable Madam Justice Newbury: [1] This appeal was brought on one question of fact alone – whether the trial judge erred in finding that a contract for the purchase by the plaintiff Mr. Ma of the right to conduct the “Nutriview” vending machine business in certain school districts was induced by a misrepresentation made by the defendant Mr. Thurston, the principal of the defendant Nutriview Systems Inc. The misrepresentation was that the company would ‘buy back’ the franchise rights, “no questions asked,” for the full purchase price, if Mr. Ma was dissatisfied with his deal. This finding was reached after an 11-day trial in which the plaintiff had alleged breach of contract, breach of the Sale of Goods Act , breach of fiduciary duty, and negligent and fraudulent misrepresentation on the part of the defendants, and the defendants had counterclaimed for damages for breach of contract. [2] The trial judge issued lengthy reasons (indexed as 2014 BCSC 725) in which he rejected almost all of plaintiff’s claims. He did find, however, that Mr. Thurston had: made promises and representations knowing they were not true in order to induce the plaintiff to enter this improvident contract. Thus, this is a promise which Mr. Thurston made and which he had no intention of keeping. As such … this is a fraudulent misrepresentation. [At para. 202.] Finding that Mr. Ma had been induced to enter into the agreement by the ‘guarantee’, and that he had elected to “void” the contract within the first year of the transaction, the trial judge ruled that he was entitled to rescission. The Court ordered that Mr. Thurston and Nutriview were jointly and severally liable to repay the plaintiff the original purchase price for the franchise, namely $435,093.75. The defendants’ counterclaim was dismissed. [3] There is no doubt that the trial was fact-intensive, and depended to a large degree on credibility findings. On the whole, the Court favoured Mr. Ma’s testimony over that of Mr. Thurston. The latter (who acquired the business one day before selling it to Mr. Ma) was found to be a shrewd businessman. He had worked in the past as a motivational speaker. In his negotiations with Mr. Ma, he had “painted a rosy picture for Mr. Ma of a high potential of success and profits: remote monitoring, corporate sponsorship, advertising from sponsors, preferential pricing.” (Para. 67.) None of these materialized. Mr. Ma, on the other hand, was not experienced in business, was only 22 years old, and had used money from his parents to buy the franchise. Although the Court did not accede to Mr. Ma’s suggestion that he had difficulty with English, it accepted his testimony that only one of the nine documents Mr. Thurston said he had provided to Mr. Ma as Schedule B to the agreement, had been provided. Mr. Ma’s denial was found to be “more consistent with all the circumstances” than the “confident assertion” of Mr. Thurston. (Para. 97.) [4] The buy-back guarantee was not reflected in the written purchase agreement, and indeed the document stated that the purchase price was “non-refundable”. It also contained an “entire agreement” clause and provided in para. 13.7 that: It is expressly understood and agreed that Nutriview Systems Inc. has made no representations, inducements, warranties, or promises whether direct, indirect, has [sic] collateral, oral or otherwise, concerning this Agreement, the matters contained herein, or concerning any other matter which are not embodies [sic] herein. [5] Mr. Ma testified that although he had been told by a friend that the guarantee should be reflected in the agreement, he had not wanted to offend Mr. Thurston by insisting on it. The trial judge observed: I also find as fact that Mr. Thurston discouraged Mr. Ma from seeking the advice of a lawyer. The Franchise Agreement is completely one-sided. Mr. Thurston made several promises that are not contained in the document. I conclude that it is far more likely than not that Mr. Thurston told Mr. Ma not to waste money on a lawyer. Mr. Thurston’s advice in this regard was cynical and manipulative. Mr. Thurston was taking advantage of Mr. Ma’s naiveté. A reasonable person in Mr. Ma’s position would see the advice for what it was: the mere fact that Mr. Thurston advised him not to see a lawyer would be a cogent reason for Mr. Ma to seek independent legal advice. Mr. Ma was entering into the largest financial transaction of his young life. He had only met Mr. Thurston a couple of weeks earlier. Of course he should have sought legal advice. But Mr. Ma did not see it that way. He believed and trusted Mr. Thurston and let this trust overwhelm his common sense. [At paras. 77-80.] [6] The trial judge noted that clauses such as para. 13.7 of the agreement are normally construed to exclude all liability for misrepresentation except where the misrepresentation “is one of a fraudulent character rendering the contract of sale voidable”: see Peters v. Parkway Mercury Sales Ltd. (1975) 10 N.B.R. (2d) 703 (C.A.), cited in Leimbigler v. Rabbiosi [1983] B.C.J. No. 843 (Co. Ct.). See also 1018429 Ontario Inc. v. FEA Investments Ltd. (1999) 179 D.L.R (4th) 268 (Ont. C.A.); and D.L.G. & Associates Ltd. v. Minto Properties Inc. 2014 ONSC 7287, in which disclaimer and exculpatory clauses generally were found not to be effective in the face of fraudulent misrepresentations; and Sanghera v. Danger Figure Centre (Burnaby) Ltd. 2007 BCSC 1308 at para. 15, per Garson J. (as she then was). The trial judge found in the case at bar that Mr. Thurston had had no intention of honouring the buy-back guarantee, and that it was therefore a fraudulent misrepresentation. (Paras. 191-208). [7] Ms. Hunter on behalf of the defendants did not take issue with the law on this point, or with the high standard of review that must be met by a litigant who alleges errors of fact on the part of the court below. As is well known, the appellant must show that the trial judge made a “palpable and overriding error”: Housen v. Nikolaisen 2002 SCC 33 at para. 10. Instead, counsel argued that the trial judge had engaged in a “forbidden chain of propensity reasoning” in finding that Mr. Thurston had made the misrepresentation with no intention of living up to it. The defendants relied in particular on the trial judge’s reasoning at paras. 66-9 of his reasons, where he quoted the well-known passage from Faryna v. Chorny [1952] 2 D.L.R. 354 (B.C.C.A.) concerning credibility: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency, with the probabilities that surround the currently existing conditions . In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions . Only thus can a Court satisfactorily appraise the testimony of quick-minded experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skillful exaggeration with partial expression of the truth. [At 357; emphasis added.] The trial judge then continued: Mr. Thurston shrewdly painted a rosy picture for Mr. Ma of a high potential of success and profits: remote monitoring, corporate sponsorship, advertising from sponsors, preferential pricing. Yet he appeared to be sufficiently sophisticated to understand that if he made promises to Mr. Ma, omitted them from the contractual document, then included an “entire agreement” clause in the contract, his promises were unenforceable . Thus, it is entirely consistent with Mr. Thurston’s approach to these negotiations for Mr. Thurston to make a promise of a money back guarantee . He obviously knew that such a promise would give comfort to Mr. Ma. In the words of Faryna v. Chorny , Mr. Ma’s evidence is entirely consistent with the probabilities surrounding the existing conditions . [At paras. 67-69; emphasis added.] [8] In the defendants’ submission, this reasoning was prohibited by the principle that character evidence may not be used as circumstantial proof of conduct. (Ms. Hunter did not assert that this was an extricable error of law, although the point was arguable.)  Counsel referred us to R. v. Handy 2002 SCC 56. In that case, a court of appeal had overturned the respondent’s conviction on a charge of sexual assault causing bodily harm. His defence had been that the sex was consensual. The Crown had introduced evidence from his former wife regarding seven prior incidents to show that he had a propensity to inflect painful sex and that when aroused, he would not take “no for an answer”. [9] The Court characterized the case as a contest over the admissibility of similar fact evidence (see para. 27), but also addressed the use of character evidence as circumstantial proof of conduct. At para. 31, Binnie J. stated for the Court: The respondent is clearly correct in saying that evidence of misconduct beyond what is alleged in the indictment which does no more than blacken his character is inadmissible. Nobody is charged with having a “general” disposition or propensity for theft or violence or whatever. The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow an inference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence. The danger is that the jury might be confused by the multiplicity of incidents and put more weight than is logically justified on the ex-wife's testimony (“reasoning prejudice”) or by convicting based on bad personhood (“moral prejudice”): Great Britain Law Commission, Consultation Paper No. 141, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996), at s. 7.2. [At para. 31.] [10] An exception to the general non-admissibility of character or propensity evidence occurs, of course, where “evidence of previous misconduct [is] so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse”. (At para. 41; my emphasis.) Binnie J. explained in Handy : Canadian case law recognizes that as the “similar facts” become more focussed and specific to circumstances similar to the charge (i.e., more situation specific), the probative value of propensity, thus circumscribed, becomes more cogent. As the differences and variables that distinguish the earlier “similar facts” from the subject matter of the charge in this type of case are reduced, the cogency of the desired inferences is thought to increase. Ultimately the policy premise of the general exclusionary rule (prejudice exceeds probative value) ceases to be true. [At para. 48.] In Handy itself, the Supreme Court found that the evidence of similar facts was not sufficiently cogent as to outweigh its prejudicial effect, and affirmed its exclusion. [11] “Propensity” evidence, or reasoning, was discussed by Charron J.A. (as she then was) in R. v. L.B. (1997) 35 O.R. (3d) 35 (C.A.), which was cited with approval in Handy . She observed that: propensity reasoning in and of itself is not prohibited. Indeed, it is usually inevitable, given the nature of the evidence and the reason for its admission. Therefore, the trier of fact is entitled to infer from the evidence of prior misconduct … that he is more likely to be in possession of the narcotics in question and therefore guilty of the offence with which he is charged. It is this propensity reasoning that is based solely on the general bad character of the accused, as revealed through this evidence of discreditable conduct, which is prohibited . Consider, for example, if Lepage had been charged with trafficking in a narcotic as a result of a sale of a piece of cocaine to a police agent, and the sole issue at trial was identification. Evidence that Lepage was a major dealer in drugs, without more would have probative value, but only to show that he is the type of person who could well have been selling the narcotics as alleged. In this example, there is nothing about the evidence of prior discreditable conduct that connects it to the sole issue in the case, identification. The risk of prejudice, in the sense described above, would be substantial. There would be a real risk that the trier of fact who learns that the accused is a major drug dealer “may view him as a bad man, one who deserves punishment regardless of his guilt of the instant offence and may be less critical of the evidence presently marshaled against him.” No matter what probative value can be attached to the fact that he is a major dealer in drugs, the evidence would not be admissible since it is not connected to an issue in the case other than the accused's general disposition to commit the type of offence with which he is charged . If, on the other hand, the sale of the cocaine to the police agent had been carried out in unusual circumstances which bore some distinctive features and the evidence of prior drug dealings bore many of the same features, a connection may well be made to the issue of identification, and the evidence could be admitted if its probative value exceeded its prejudicial effect .         .         . Therefore, in assessing this aspect of the probative value of the evidence, it is important to circumscribe the meaning of “disposition” or “propensity” much in the same way as the notion of prejudice described above. The forbidden line of reasoning is that which leads to the conclusion that the accused committed the offence with which he is charged based, not on the strength of the evidence which has a connection to the issues in the case, but rather, on the strength of the evidence that he is a “bad person” who would have a tendency to commit this offence . [At 57-8; emphasis added.] [12] I fail to see the relevance of the principles discussed in Handy and L.B. to the case at bar. The trial judge was not presented here with similar fact evidence, nor with the prejudicial effect of prior conduct tending to support a “general disposition or propensity for fraud.” He considered the evidence of Mr. Thurston’s representations that had led Mr. Ma to sign the agreement and found they were consistent with Mr. Thurston’s promising a ‘money-back guarantee’ orally, but not in the written document. All of the evidence was of a piece: its consistency with the “probabilities that surrounded the … existing conditions” was carefully examined. ( Faryna v. Chorny. ) Mr. Thurston was found to have had acted in a particular way in his negotiations with Mr. Ma – not to have had a pre-existing tendency to do so, or to have done something similar on a previous occasion. [13] The defendants advanced other arguments in their factum as to why, in their opinion, the preponderance of evidence should have led objectively to the rejection of Mr. Ma’s evidence of a guarantee, but none of these reaches the standard of palpable and overriding error that is required to justify appellate interference. I would therefore not accede to the arguments made by the defendants on their main appeal. Fresh Evidence [14] The appeal is complicated, however, by an application for the admission of fresh evidence made on behalf of the defendants. The evidence consists of two affidavits, one of Mr. Kara and one of Mr. Thurston. [15] Mr. Kara appeared as a witness for the plaintiff on the first day of trial in connection with an application to adjourn; he was later called by the defendants in the trial proper. His testimony on the first day was limited to whether he had given Mr. Thurston a letter received from a school district, and need not concern us. [16] When he was called by the defendants in the trial proper, Mr. Kara told the Court he had first met Mr. Thurston in early 2010 when Mr. Kara had seen an ad for the sale of a “route” of vending machines that sold health foods. When he learned that the price was “in the hundreds of thousands of dollars”, he told Mr. Thurston he could not afford it, and wished him luck in finding someone else. [17] Mr. Kara testified that in March 2011, he received a call from Mr. Thurston inquiring whether he was “still interested”. Mr. Thurston needed someone right away because the previous “operator” (Mr. Ma) of the franchise had “stepped out or walked away from his contracts”. Mr. Thurston said he would “split the profit 50/50” to the end of the school year, i.e., from March to the end of June 2011, and Mr. Kara agreed to give it a try. He said he was required to pay the commissions to the schools “going forward”, but had discovered that school commissions had not been paid from the previous September. He paid them himself for the period from September to March 2011, and said he ended up paying about $6,700. [18] Once he had worked to the end of June, Mr. Kara wanted to continue with the business. He worked out an arrangement with Mr. Thurston under which Mr. Kara paid Mr. Thurston a “flat amount every month” of $2,000, paid all the expenses and kept the remaining profits. He was generally successful and was able to get back a couple of schools that had ceased dealing with Nutriview. Mr. Kara was taken through various spreadsheets he had sent to Mr. Thurston monthly, showing revenues and sales from the vending machines. They showed average monthly revenues of about $15,000. [19] Mr. Kara was not cross-examined at trial by opposing counsel. [20] Mr. Kara’s “fresh evidence” (if such it be) consists of an affidavit sworn on December 1, 2015. I set out below the paragraphs that are relevant to the defendants’ application: 3.      When I commenced work on the route, I learned that Harry Ma had not paid commissions to the schools that the schools believed were owed to them. I made some payments to the schools on account of the debt that I believed was owed to the schools by Mr. Ma. .         .         . 5.      Sometime later, I believe still in 2012, I received a phone call from Mr. Ma while I was shopping at Walmart. Mr. Ma asked me how it was going with Nutriview and I gave Mr. Ma some information about current income levels for the route. I asked Mr. Ma about the commissions that were outstanding to the schools and he told me he was sorting through the issue with Mr. Thurston. 6.      I did not speak to Harry Ma again until the spring of 2013. I received a call from Mr. Ma in around March 2013, approximately 4 weeks before the date set for trial in Ma v. Nutriview Systems . I was at Centennial High School when I received the call and I believe it was either right before or right after spring break. I was near the vending machines when Mr. Ma called. I recall that it was somewhat noisy where I was so I walked away to a quieter place so that I would be able to hear Mr. Ma clearly on the phone. 7.      During that call Mr. Ma said that he would be sending me a subpoena to give evidence at the trial and asked for my address for the subpoena. 8.      Mr. Ma then asked me how much I was out from the time I took on the route. I told him I believed I was out $25,000 - $35,000. Mr. Ma then said words to the effect that he would make me whole if I gave testimony in the trial that was favourable to him . 9.      Mr. Ma told me that the favourable testimony he needed related to three topics. First, I had to give information about the business’ income each month. Mr. Ma asked me what the income was and when I gave him the number, which was over $15,000/month, he said that for my testimony to be favourable I would need to say that the income was lower than it actually was. 10.    Second, Mr. Ma said that he needed me to give evidence about the split between Mr. Thurston and me. The true state of affairs was that for the three months the split was 50/50 and thereafter Mr. Thurston allowed me to pay less than 50% to him. Mr. Ma wanted me to say that the split was 50/50. 11.    Third, Mr. Ma wanted me to give evidence about whether Mr. Thurston had received a copy of a letter from Summit Middle School that was sent to me. I told Mr. Ma that I believed I had given the letter to Mr. Thurston. Mr. Ma said that it was important that the letter was sent to Mr. Thurston. 12.    Mr. Ma told me that if I gave the favourable evidence he had requested that he expected he would win the trial and he would then pay $30,000 to me. 13.    At this point in the conversation, Mr. Ma said words to the effect “Mr. Ganapathi, is that alright?” I knew at that time that Mr. Ma’s lawyer was named Mr. Ganapathi and assumed based on this comment that Mr. Ma was with Mr. Ganapathi during the call. I had the impression that he may have been calling from Mr. Ganapathi’s office. After Mr. Ma asked if it was alright, I heard a person who I assumed was Mr. Ganapathi respond that it was fine. 14.    I told Mr. Ma that I could not go into court lying. Mr. Ma responded with words to the effect that the evidence had to look like it was going his way. I told Mr. Ma that I accepted his offer and that I would provide the testimony he requested. From my perspective, the evidence I would provide would be truthful in any event. 15.    After the call with Mr. Ma, I prepared a spreadsheet showing the revenue on the route during the period I had been working on it that I sent to Bob Cooper, Mr. Thurston’s then lawyer. During the trial, I gave evidence about the revenue for the route. The spreadsheet that I had prepared for Mr. Cooper was introduced into evidence. The spreadsheets showed the correct revenue numbers. The numbers were lower in some months than they could have been because of the delay in getting the vending machines operational after Mr. Ma’s sudden departure; because a number of schools ended their contracts after Mr. Ma’s sudden departure; and because I was dealing with my own medical issues. 16.    In respect of the split with Mr. Thurston, I gave evidence that the split was 50/50 and that later I was paying Mr. Thurston $2,000 per month. This evidence is true . 17.    Finally, I was also asked about the letter from Summit Middle School. My evidence was that I believed I had given a copy of the letter to Mr. Thurston consistent with my belief today. 18.    After the judgment was released in 2014, I received another call from Mr. Ma. He told me that he had won the trial and that he would be giving me the money as we had agreed. He told me he would put the money in an envelope and put it through the mail slot on my front door. 19.    A few days later, I received a plain white envelope containing ten thousand dollars ($10,000) in hundred dollar bills through my mail slot . The envelope contained no note or identifying information. I assumed it was from Mr. Ma based on our conversation. 20.    When I received the money I was surprised by the amount as Mr. Ma had promised to make me whole by paying thirty thousand dollars. I tried at one point to call Mr. Ma to ask him why the amount was lower but I got his voicemail and did not want to leave a message about this. I did not try to contact him again and have had no further contact with Mr. Ma since I received the money through my mailbox slot. 21.    I did not tell Mr. Thurston until recently that I had received money from Mr. Ma that he linked to the testimony I was to give a trial. 22.    I have received independent legal advice in connection with this affidavit. For the past few weeks, I have been dealing with medical issues that have delayed the commissioning of this affidavit. [Emphasis added.] No documentary evidence – e.g., a bank deposit receipt – was appended that might corroborate Mr. Kara’s receipt of $10,000 in cash. [21] For his part, Mr. Thurston in his affidavit sworn December 8, 2015, stated that at the time of trial he was not aware of the allegations set out above, but that he was told of them by Mr. Kara in late spring or early summer 2015. Mr. Thurston further deposed: 7.     Mr. Kara told me that the reason he had not told me about Mr. Ma’s offer of money for favourable testimony during the trial, but was telling me now, was that he had seen the negative effect the trial judgment had had on me and was feeling bad about his evidence and wanted to make things right. [22] In response, Mr. Ma filed a very brief affidavit in which he stated at paragraph 2: I have read the Affidavit of Ashik Kara sworn on December 1, 2015. I deny the accuracy of the statements made by Mr. Kara and contained in paragraphs 8, 9, 10, 12, 13, 14 18, 19 and 20 of his Affidavit. There was no evidence that criminal charges had been sought or laid against Mr. Ma or Mr. Kara, or that Mr. Kara sought at any point to collect the rest of his fee from Mr. Ma. [23] Mr. Ganapathi did not file an affidavit, despite the fact he was implicated in Mr. Kara’s affidavit. He confirmed to us that he did not wish to retain counsel in this matter. R. v. Palmer [24] Counsel agree that the seminal case on the admissibility of fresh evidence on an appeal is the decision of the Supreme Court of Canada in R. v. Palmer [1980] 1 S.C.R. 759. Mr. Palmer had been convicted of conspiring to traffic in heroin, along with three other co-accused and alleged co-conspirators. An important witness against him had been a Mr. Ford, who was an admitted heroin trafficker and “disreputable character with a criminal record.” The Court recounted: His evidence was accepted by the trial judge and clearly played a significant part in the result. After the trial, Ford, in a series of declarations, asserted that his trial evidence was untrue, that it had been fabricated in its entirety, and that he had been influenced by threats and inducements, including the promise of payments of money, by the police. When this material came into the hands of the legal advisers of the appellants, they applied in the Court of Appeal, to adduce this new evidence in affidavit form. [At 762.] The application was dismissed by this court and the appellants then appealed to the Supreme Court. [25] The Crown filed extensive material in response, consisting of affidavit evidence from Crown counsel and various police officers denying any impropriety. The police did acknowledge that they had made an arrangement with Mr. Ford under which he would give evidence against Mr. Palmer and his brother, and the police would pay “maintenance” to him of $1,200 per month until the trial was over, and would thereafter make arrangements for the maintenance and relocation of Mr. Ford and his family, and their protection. (At 773.) Just before the trial, Mr. Ford “seemed to have changed his mind” and demanded a cash payment of around $50,000 in return for his testimony. After some negotiations, the Crown said it was prepared to pay only $25,000 which would have been in lieu of all “maintenance, moving and relocation expenses”. Ford accepted the cheque for $25,000 but in the Crown’s submission, became dissatisfied and, “no doubt influenced by fear as well”, changed his story. [26] In a well-known passage, Mr. Justice McIntyre speaking for the Court, noted the “broad discretion” given to appellate courts by s. 610(1)(d) of the Criminal Code , and the factors that are to be considered in exercising that discretion. In his words: ... The overriding consideration must be in the words of the enactment “the interests of justice” and it would not serve the interests of justice to permit any witness by simply repudiating or changing his trial evidence to reopen trials at will to the general detri­ment of the administration of justice . Applications of this nature have been frequent and courts of appeal in various provinces have pronounced upon them—see for example Regina v. Stewart; Regina v. Foster; Regina v. McDonald; Regina v. Demeter. From these and other cases, many of which are referred to in the above authorities, the following principles have emerged: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen. (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. The leading case on the application of s. 610(1) of the Criminal Code is McMartin v. The Queen, supra. Ritchie J., for the Court, made it clear that while the rules applicable to the introduction of new evidence in the Court of Appeal in civil cases should not be applied with the same force in criminal matters, it was not in the best interests of justice that evidence should be so admitted as a matter of course. Special grounds must be shown to justify the exercise of this power by the appellate court. … [At 775-6; emphasis added.] [27] The Court in Palmer reasoned that because the evidence sought to be admitted had not been available at trial and bore on a decisive issue, the only questions to be determined were whether the evidence might reasonably have been believed by the trier of fact, and if so whether it might, taken with the other evidence adduced, have affected the result. (At 776-7.) The Court ruled that the court below had been “fully justified” in finding that “the evidence tendered as to the validity of Ford’s trial evidence [was] wholly unworthy of belief.” As well, it agreed that the responsive evidence filed by the Crown with respect to the arrangements with Mr. Ford confirmed the version of the agreement which Mr. Ford himself had described at trial. (At 778.) This court’s rejection of his new evidence was said to be “amply justified” and in the result, the appeal was dismissed. [28] Although the Palmer criteria have been described using different words by Canadian courts (see, e.g., Cory v. Marsh [1993] 77 B.C.L.R. (2d) 248 (C.A.) at para. 28), the four criteria generally continue to be the starting point both in criminal cases and in civil cases, where they are said to be applied more strictly than in criminal cases. More recent authorities have clarified that even if the Palmer criteria are not met, a court of appeal has the discretion to admit fresh evidence if it is in the interests of justice to do so. As stated in Golder Associates v. North Coast Wind Energy Corp. 2010 BCCA 263: In my view, the Palmer criteria reflect the caution with which the admission of fresh evidence must be considered, but they are not absolute. The source of the criminal law admissibility of such evidence is the present s. 683(1)(d) of the Criminal Code , R.S.C. 1985, c. C-46, which provides for the admission of evidence “in the interests of justice”. That, I think, must be the overarching consideration in civil as well as criminal appeals. [At para. 37.] (See also Petrelli v. Lindell Beach Holiday Resort Ltd. 2011 BCCA 367 at para. 50). The Case at Bar [29] Counsel for the defendants argues that each of the criteria is met in this case – that the evidence was not discoverable by due diligence; that evidence that a party was prepared to bribe a witness is relevant and admissible both as “an admission by conduct that the respondent did not believe he had a good case” and on the issue of the credibility of the parties where the “case fell to be decided on such credibility” (citing Greenwood v. Fitts (1961) 29 D.L.R. (2d) 260 (B.C.C.A.), at 268-70). In Ms. Hunter’s submission, Mr. Kara’s evidence is credible or at least reasonably capable of belief and could reasonably be expected to have altered the trial judge’s perception of the relative credibility of Messrs. Ma and Thurston. As well, Ms. Hunter contends that in light of the serious nature of the evidence and the taint it casts on Mr. Ma’s actions as a litigant, it is in the interests of justice that the evidence be admitted and the allegations of bribery be fully explored at a new trial. [30] Mr. Ganapathi for the plaintiff takes issue with each of these submissions except for the discoverability criterion. He argues that Mr. Kara’s affidavit is “clearly false” (citing the difference between the $25,000 figure mentioned at para. 8 of Mr. Kara’s affidavit, and the $6,700 figure he testified to at trial); and that the evidence “had no bearing on the contract between Ma and Thurston” and is “fabricated evidence intended to mislead this court.” He submits that none of the three items which Mr. Kara says he was asked to testify to by Mr. Ma formed part of the trial judge’s critical reasoning; and that the events about which Mr. Kara testified at trial occurred well after Mr. Ma purported to rescind the agreement. Thus, Mr. Ganapathi contends, the fresh evidence is not relevant in the sense that it bears upon a decisive issue in the trial and would not have affected the result. [31] The application of the three latter Palmer criteria in this case is problematic. As far as the due diligence test is concerned, I agree with counsel that the alleged bribery of a witness was not reasonably discoverable by the defendants or their counsel. As Ms. Hunter submits, there was nothing in Mr. Kara’s evidence that should have alerted the defendants or counsel at trial to question Mr. Kara concerning his relationship with Mr. Ma. [32] As for the relevance of the evidence, it is relevant at least to Mr. Ma’s credibility. This, however, could be said of any dishonest conduct on the part of a witness arising after trial. I doubt that this degree of relevance was intended to satisfy the second criterion in most instances. It is not possible, moreover, for us to say the evidence was “wholly credible” (see Cory v. Marsh ), although it may be reasonably capable of belief. On this point, I note that Mr. Ma’s affidavit ‘denying the accuracy of the statements made by Mr. Kara’ is not worded in the direct fashion one might expect. Mr. Ma did not depose, for example, that Mr. Kara’s evidence was totally false or entirely without foundation. Thus a doubt arises as to whether in Mr. Ma’s mind, there was some basis for Mr. Kara’s allegations. [33] The final question is whether if believed, Mr. Kara’s evidence could reasonably be expected to have affected the result in this trial. This question overlaps with the issue of relevance, and one is driven to the same conclusion on both issues – that although Mr. Kara’s evidence was not relied upon by the trial judge in his reasoning and the three points referred to in his affidavit had no apparent bearing on the judge’s conclusions, the judge might have viewed Mr. Ma’s credibility differently had he known about and accepted the evidence of the alleged bribe. The judge referred to Mr. Ma as “gullible and naïve” (para. 1), while he described Mr. Thurston as “cynical and manipulative”. (Para. 78.) It is possible the judge would reach a different conclusion on credibility, and even on the question of the existence of the buy-back guarantee, had he had evidence of the alleged bribe and seen the relevant parties cross-examined thereon. [34] Judged on the four Palmer criteria, this case would not normally satisfy the stricter approach taken in civil cases to the admissibility of fresh evidence. At the end of the day, then, the issue in my view comes down to the interests of justice. It is seldom that this court hears of allegations of bribery of witnesses or suborning perjury. In this sense the case is “exceptional”. With some reluctance, I conclude that the interests of justice would not be served if we were to turn a blind eye to an allegation of this kind – even though the alleged bribe took place after the events in question and even though the parties can ill afford another trial of this matter. [35] The case seems to me somewhat analogous to Greenwood v. Fitts , supra . There this court ruled that the plaintiffs at trial were entitled to adduce fresh evidence consisting of testimony that the defendant had said he would perjure himself and induce others to do so if the plaintiff brought the action. All three judges gave separate reasons, but those of Tysoe J.A. are perhaps the most cogent for purposes of this case. He quoted the remarks of Cockburn, C.J. in Moriarty et al. v. London, Chatham & Dover R. Co. (1870) L.R. 5 Q.B. 314 as follows: The conduct of a party to a cause may be of the highest importance in determining whether the cause of action in which he is plaintiff, or the ground of defence, if he is defendant, is honest and just; just as it is evidence against a prisoner that he has said one thing at one time and another at another, as shewing that the recourse to falsehood leads fairly to an inference of guilt. Anything from which such an inference can be drawn is cogent and important evidence with a view to the issue. So, if you can shew that a plaintiff has been suborning false testimony, and has endeavoured to have recourse to perjury, it is strong evidence that he knew perfectly well his cause was an unrighteous one. I do not say that it is conclusive; I fully agree that it should be put to the jury , with the intimation that it does not always follow, because a man, not sure he shall be able to succeed by righteous means, has recourse to means of a different character, that that which he desires, namely, the gaining of the victory, is not his due, or that he has not good ground for believing that justice entitles him to it. It does not necessarily follow that he has not a good cause of action, any more than a prisoner's making a false statement to increase his appearance of innocence is necessarily a proof of his guilt; but it is always evidence which ought to be submitted to the consideration of the tribunal which has to judge of the facts; and therefore I think that the evidence was admissible, inasmuch as it went to shew that the plaintiff thought he had a bad case . [At 319 of Moriarty ; emphasis added.] Tysoe J.A. went on to state that since it was possible the evidence would have affected the trial judge’s opinion of the credibility of the parties, and the case fell to be decided on such credibility, he could come to no other conclusion than that there must be a new trial. [36] I know of no reason why, 145 years after Moriarty was decided, this court should be content to adopt any less stringent standard of propriety in ensuring that the interests of justice are served. In my respectful view, this court is bound to apply the same reasoning in this case. [37] I would allow the admission of the fresh evidence in its entirety, allow the appeal, and order a new trial. “The Honourable Madam Justice Newbury” Reasons for Judgment of the Honourable Madam Justice Bennett: [38] I have had the opportunity to read the draft reasons for judgment of Madam Justice Newbury. I agree with her analysis and result with respect to the main grounds of appeal. I also agree with her analysis of the law in relation to the test for the admission of fresh evidence on appeal. We differ on whether Mr. Kara is credible, and whether the affidavit evidence should be admitted. [39] I agree that where there are allegations that a plaintiff has suborned false testimony, the interests of justice require a new trial. I am not, however, satisfied that the evidence of Mr. Kara reaches the degree of credibility to require a new trial. [40] I accord with Newbury J.A.’s observation that one would have expected Mr. Ma to swear an affidavit denying the allegations, rather than “deny the accuracy” of the paragraphs in question. Furthermore, in my view, Mr. Ganapathi should have withdrawn as counsel and filed an affidavit since he was clearly implicated in the allegation by Mr. Kara. [41] Having made those observations, I turn to the context of the allegation of bribery and why I do not think it has the force of credibility necessary to require a new trial. First, as pointed out by Newbury J.A., the money owing to Mr. Kara according to his trial testimony was far less than what he says he was offered by Mr. Ma to “make him whole”. [42] More importantly, Mr. Ma’s conduct at trial does not support any suggestion that Mr. Kara was bribed to give favourable testimony on behalf of Mr. Ma. Mr. Ma did not call Mr. Kara as a witness, except for the adjournment request as noted by Newbury J.A. Mr. Kara’s evidence was not relevant to an issue engaged in the case; this alone would not be sufficient to exclude the evidence, but it is one factor in assessing the credibility of the allegation of bribery. When he did testify, Mr. Ma’s counsel did not cross-examine Mr. Kara. There is no other evidence supporting Mr. Kara’s allegation. [43] In my respectful view, the evidence does not meet the credibility test in Palmer , in that it is not reasonably capable of belief. It does not accord with the known, objective facts. It makes no sense in the context of the trial evidence and the conduct of Mr. Ma during the course of the trial. [44] Therefore, I would not admit the fresh evidence, and would dismiss the appeal. “The Honourable Madam Justice Bennett” I agree: “The Honourable Madam Justice Fenlon”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Johnston, 2016 BCCA 3 Date: 20160105 Docket:  CA39526 Between: Regina Respondent And Gary Donald Johnston Appellant Restriction on Publication:  A publication ban has been imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify undercover police officers. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Frankel The Honourable Madam Justice D. Smith On appeal from:  An order of the Supreme Court of British Columbia, dated April 15, 2011 ( R. v. Johnston , New Westminster Docket No. X073860-2). Counsel for the Appellant: B.B. Olthuis G.J. Allen Counsel for the Respondent: M.K. Brown Place and Date of Hearing: Vancouver, British Columbia October 30, 2015 Place and Date of Judgment: Vancouver, British Columbia October 30, 2015 Place and Date of Reasons: Vancouver, British Columbia January 5, 2016 Written Reasons by: The Honourable Mr. Justice Frankel Concurred in by: The Honourable Mr. Justice Chiasson The Honourable Madam Justice D. Smith Summary: Appeal by J. from his conviction by a trial judge for second degree murder.  The principal evidence implicating J. came from admissions he made in a Mr. Big interview and a videotaped statement his brother made to the police.  The videotaped statement was admitted under an exception to the hearsay rule.  The trial took place before the Supreme Court of Canada decision in R. v. Hart established a new common-law rule with respect to the admissibility of Mr. Big statements.  In a pre-Hart judgment this Court dismissed J.’s appeal.  In that appeal, J. did not challenge the admissibility of the Mr. Big interview.  Post-Hart, the Supreme Court of Canada remanded the case for reconsideration.  On the second appeal, J. challenged the admissibility of the Mr. Big interview.  He contended that:  (a) the Mr. Big operation was an abuse of process because it involved simulated violence; and (b) threshold reliability of the statements he made during the Mr. Big interview had not been established.  Held:  Appeal dismissed.  In the circumstances, the use of simulated violence directed at third parties was not an unacceptable investigative technique.  The threshold-reliability requirement was met having regard, in particular, to the fact J. knew details of the murder that it was likely only the killer would know. Reasons for Judgment of the Honourable Mr. Justice Frankel: Introduction [1] Gary Donald Johnston was convicted by Mr. Justice Crawford of the Supreme Court of British Columbia of the second degree murder of Victor Fraser.  Mr. Fraser died of stab wounds to his neck. [2] The Crown’s case included statements made by Mr. Johnston to undercover police officers engaged in what is known as a “Mr. Big” operation.  That operation involved 60 “scenarios”, i.e., occasions on which undercover officers and Mr. Johnston interacted.  In the last scenario—commonly referred to as the “Mr. Big interview”—Mr. Johnston admitted killing Mr. Fraser.  At the trial, Mr. Johnston did not object to the admissibility of any of the statements he made during the Mr. Big operation. [3] The Crown also tendered as evidence a videotaped statement made under oath by Mr. Johnston’s brother, Michael Johnston.  In that statement Michael Johnston said Mr. Johnston admitted to him that he killed Mr. Fraser.  At trial, Michael Johnston testified he could not remember giving the statement to the police.  Following a voir dire , the trial judge admitted Michael Johnston’s videotaped statement under the exception to the hearsay rule discussed in R. v. B.(K.G.) , [1993] 1 S.C.R. 740.  In finding that the threshold-reliability requirement for the admission of hearsay had been met, the judge relied on statements Mr. Johnston made during the Mr. Big interview. [4] Mr. Johnston’s conviction appeal was dismissed by this Court on April 11, 2014:  2014 BCCA 144, 354 B.C.A.C. 68.  On that appeal, his main ground was the admissibility of Michael Johnston’s videotaped statement.  He did not contest the admissibility of his Mr. Big statements, only their ultimate reliability. [5] On July 31, 2014, the Supreme Court of Canada released its judgment in R. v. Hart , 2014 SCC 52, [2014] 2 S.C.R. 544, in which it articulated a new common-law rule governing the admissibility of statements made during a Mr. Big operation.  Following the release of Hart , Mr. Johnston filed an application in the Supreme Court of Canada for an extension of time to file and serve an application for leave to appeal from this Court’s order dismissing his appeal.  On February 26, 2015, the Supreme Court of Canada, acting pursuant to s. 43(1.1) of the Supreme Court Act , R.S.C. 1985, c. S-26, remanded Mr. Johnston’s case to this Court for disposition in accordance with Hart :  [2014] S.C.C.A. No. 478. [6] Mr. Johnston’s appeal came back before this Court on October 30, 2015.  At that time he contended that his Mr. Big interview should not have been admitted because the manner in which the Mr. Big operation was conducted constituted an abuse of process.  He further submitted that the statements he made during the Mr. Big interview did not meet the threshold-reliability requirement set out in Hart .  He did not advance an alternative argument challenging the ultimate reliability of his statements.  Last, Mr. Johnston submitted that as the trial judge relied on his Mr. Big statements in finding Michael Johnston’s videotaped statement admissible, if the Mr. Big statements were found to be inadmissible, then so too should Michael Johnston’s statement. [7] At the conclusion of Mr. Johnston’s submissions we dismissed this appeal with reasons to follow.  These are my reasons for so doing. Factual Background [8] Mr. Fraser was murdered on March 10, 1998, at the home of his sister, Eugenie Fraser, in Surrey, British Columbia; he had gone there to check a water leak while she was at work.  Between 10:00 and 10:30 that morning, Ms. Fraser’s boyfriend found Mr. Fraser’s body on the floor inside the door on the east side of the house, off the kitchen; Mr. Fraser’s truck was parked in the driveway.  Two knives were missing from a block in the kitchen.  Mr. Fraser had been savagely attacked and stabbed in the neck.  The stabbing had been so forceful that a knife blade that had broken from its handle was lodged above Mr. Fraser’s right collarbone.  A second broken knife blade was found under Mr. Fraser’s body.  His wallet was missing. [9] At the time of the murder, Mr. Johnston lived in the vicinity of Ms. Fraser’s house.  Ms. Fraser testified she knew Mr. Johnston and he had been inside her house.  Shortly after the murder Mr. Johnston moved away. [10] There was damage to the front door of Ms. Fraser’s house, indicating someone had broken in.  The house had been ransacked; video-game and other electronic equipment had been left in a pile on the living room floor, drawers in the upstairs master bedroom were open, and a jewellery box kept upstairs was on the living room floor.  A telephone handset was missing from its charging station. [11] Darrell Barker, who lived two houses away from Ms. Fraser, testified that he acted as a crossing-guard at an elementary school up the hill from where he and Ms. Fraser lived.  He worked from 8:00 to 9:00 in the morning.  On the day of the murder he saw Ms. Fraser drive by on her way to work.  Shortly after 9:00 a.m., as he was putting away his crossing-guard gear, he saw a man dressed in black wearing what he described as a fisherman’s hat ride by on a black bicycle. [12] Mr. Barker said that as he was driving down the hill a few minutes later to return home, he noticed a black bicycle by the east side of Ms. Fraser’s house.  As he was backing his vehicle into his garage he saw the cyclist he had seen earlier going up the stairs to the front of Ms. Fraser’s house and entering through the front door.  That door faces south. [13] A member of the Royal Canadian Mounted Police who arrived at Ms. Fraser’s house at approximately 2:00 p.m. on March 10, 1998, observed bicycle tire tracks in the grass leading from the deck at the east side of the house through the yard to the street.  The back door of the house is on the east side and opens onto the deck. [14] On the day of the murder the RCMP issued a news release stating that a 43-year old man had been “found dead of apparent stab wounds in a north Whalley home just before 11:00 a.m. this morning”.  The victim’s name was not mentioned.  That release also contained the following: Police found the front door of the house had been forced open and effects from inside had been piled near the door.  Investigators are looking into the possibility that the victim had interrupted a break and enter at the residence sometime between 9:00 and 10:45 am. [15] The following day, March 11, 1998, the RCMP issued a second news release which contained Mr. Fraser’s name, the date of the murder, and the address at which he was stabbed.  That release contained the following: Victor FRASER had attended at the North Surrey address for the purpose of meeting a friend at that location.  When the friend arrived he found the victim on the floor inside the residence and subsequently called police. Police found the front door of the house forced open and there were a number of items from inside the residence piled near the door. Police investigators are working on the theory that the victim interrupted a break and enter in progress at the residence sometime between 9:00 and 10:45 AM. [16] An autopsy revealed the injuries Mr. Fraser sustained included eight to nine stab wounds to the neck and fractured displacement of the second to the fifth upper right ribs. [17] The RCMP did not disclose the following information to the public (what is commonly referred to as “holdback evidence”):  (a) the location of the body; (b) the autopsy results; (c) the broken knife blades; (d) the missing telephone; (e) the missing wallet; and (f) the bicycle and associated tire tracks. [18] The police considered both Mr. Johnston and Michael Johnston to be persons of interest.  In August of 1998, Michael Johnston gave a videotaped statement to the police in which he related that on the day of the murder Mr. Johnston told him that he had broken into Ms. Fraser’s house and stabbed someone to death using a kitchen knife.  The account of the murder Mr. Johnston gave to Michael Johnston included a number of details consistent with the crime scene, the autopsy, and other information gathered by the police. [19] Michael Johnston said he and Mr. Johnston went to a friend’s house in Vancouver where Mr. Johnston burned the clothes he wore during the stabbing.  Michael Johnston described the clothes as a rain jacket with a hood, pants, socks, gloves, and a shirt, all of which were black. [20] On April 10, 2000, Mr. Johnston pleaded guilty to manslaughter arising out of an incident in Saskatchewan and was sentenced to ten years’ imprisonment.  In March 2009, after Mr. Johnston had been released on parole, he became the target of a Mr. Big operation in which undercover officers posed as members of a criminal organization with connections to both the military and law enforcement. [21] The Mr. Big operation lasted five and one-half months.  During that period Mr. Johnston received varying amounts of money totalling around $14,000 for doing tasks for the criminal organization.  Undercover officers bought Mr. Johnston food and drinks and gave him a ticket to a rock concert. [22] The initial contact with Mr. Johnston took place on April 2, 2009, in Trenton, Ontario.  At that time, Mr. Johnston was living in a suite on the top floor of a house.  He did not appear to be employed, but may have been receiving a disability pension.  During the Mr. Big interview, he stated he had recently purchased a used motorcycle. [23] Constable I. approached Mr. Johnston on the street and asked for his assistance in searching for the officer’s “sister”.  He told Mr. Johnston he would pay for his assistance.  Mr. Johnston agreed and went with the officer to a strip club, restaurant, and billiard hall among other locations.  Constable I. told Mr. Johnston he was in the trucking business and had warehouses.  Without prompting, Mr. Johnston said he had spent 25 years in the penitentiary and was presently on parole for murder, having done time for killing a “rat” in Saskatchewan.  Constable I. gave Mr. Johnston $150 for helping him.  (Scenario no. 1) [24] On April 9, 2009, Constable I. and Mr. Johnston continued to look for the “sister”.  Constable I. gave Mr. Johnston $200.  (Scenario no. 2) [25] On April 10, 2009, Constable I. introduced Mr. Johnston to Constable N. and asked him to assist Constable N. to get a storage locker and to continue looking for his “sister”.  Mr. Johnston was paid $150.  Following this Constable N. became the Mr. Big operation’s primary contact with Mr. Johnston.  (Scenario no. 3) [26] Over the next several weeks, Mr. Johnston was involved with Constable N. and other undercover officers in various scenarios.  Those included continuing to look for Constable I.’s “sister”, obtaining a storage locker for Constable N. and being paid to manage the locker and its contents, picking up packages, and assisting Constable N. in repossessing a vehicle from a debtor.  Mr. Johnston also acted as Constable N.’s bodyguard.  Mr. Johnston was paid $250 per month for managing the storage locker and from $100 to $400 for the other tasks he performed. [27] On May 8, 2009, Mr. Johnston hosted a barbeque at his residence attended by Constable N., Constable I., and two other undercover officers.  He told the officers he had purchased a barbecue for that occasion.  Mr. Johnston offered Constable I. a leather jacket as a gift but, as it did not fit Constable I., Mr. Johnston gave the jacket to Constable N.  Mr. Johnston’s residence appeared clean and well-kept.  (Scenario no. 14) [28] In early June 2009, Mr. Johnston assisted Constable N. in collecting a $10,000 debt and received ten percent of the amount collected (i.e., $1,000) for his services.  (Scenario no. 19)  Also in June, Mr. Johnston assisted in picking up what purported to be explosives from an undercover officer posing as a corrupt member of the Royal Canadian Air Force.  (Scenario nos. 20, 21) [29] On June 27, 2009, Mr. Johnston picked up a briefcase containing $100,000 in cash from the storage locker and met with Constable N. and an undercover officer posing as a client of the organization who was borrowing that money. Mr. Johnston counted the money in front of the client.  Mr. Johnston was paid $500.  That day Constable N. told Mr. Johnston there was a “big score” coming with military involvement.  Constable N. said his father, who was the boss of the criminal organization, would decide whether Mr. Johnston would be allowed to participate in that big score.  (Scenario no. 27) [30] On July 4, 2009, Mr. Johnston participated with Constable N. and other undercover officers in kidnapping two undercover officers posing as a debtor and his girlfriend.  Before the kidnapping took place, Mr. Johnston was told he could leave if he was concerned about his parole conditions, but he agreed to participate.  Mr. Johnston drove the van used to transport the victims.  A simulated beating of the victims took place in the back of the van.  (Scenario no. 31) [31] On July 5, 2009, Constable N. took Mr. Johnston to a cabin where the kidnap victims were purportedly being held; they were in the cabin bound with tape.  Constable I. emerged from the cabin with blood on his face and hands and was angry with Constable N. for bringing Mr. Johnston with him.  Constable N. stated he was going to take care of the victims and went inside the cabin.  As Mr. Johnston walked away from the cabin with Constable I., Constable N. fired three shots to make it appear the victims had been killed.  (Scenario no. 32)  On July 7, 2009, Constable N. and Mr. Johnston went to a casino where a security video was taken with an altered date to provide an alibi for the incident at the cabin.  (Scenario no. 33) [32] Throughout the month of July, Mr. Johnston continued to perform tasks for the organization for which he was paid. [33] On August 4, 2009, Constable N. and Mr. Johnston had two meetings with undercover officers, each of whom invested $50,000 in the big score.  Mr. Johnston helped deliver that money to an undercover officer posing as a corrupt army officer.  Mr. Johnston was paid $800 that day, some of which was for past tasks.  (Scenario no. 44) [34] On August 6, 2009, Mr. Johnston assisted another undercover officer, Constable C., in picking up a duffel bag purported to contain guns from a storage locker in Trenton and taking it to Constable N. in Montreal.  On the drive to Montreal Constable C. told Mr. Johnston about an upcoming big job connected with an army base for which Constable C. would be paid $20,000.  Later, Mr. Johnston assisted Constable N. in delivering the guns to an undercover officer who paid $10,000 for them.  Mr. Johnston was paid $1,500 for his participation.  (Scenario no. 45) [35] Throughout August and into September, Mr. Johnston met and socialized with undercover officers a number of times and performed some tasks for the organization for which he was paid. [36] On September 16, 2009, Mr. Johnston and Constable C. drove to Montreal in connection with planning to kill a witness.  Mr. Johnston told Constable C. that he had brought clothes and shoes to throw away after the killing, that he was up for doing anything, and that he was looking forward to being involved in the killing.  Mr. Johnston said he wanted to kill his ex-wife and a person who had “ratted” on him.  With respect to the upcoming killing, Mr. Johnston told Constable C. he did not care about the money, he just liked the action and excitement.  (Scenario no. 58) [37] On September 17, 2009, in Montreal, Constable I. showed Mr. Johnston a motorcycle which Mr. Johnston took for a ride.  Constable I. said he had repossessed the motorcycle and told Mr. Johnston the motorcycle would be his.  It is not clear whether the motorcycle was presented as a gift, a reward for participating in the killing, or something Mr. Johnston could pay for over time.  Constable I. gave Constable C. $5,000 and told him it was half the money Constable C. was to be paid for the “hit” (i.e., killing the witness).  Constable I. said Mr. Johnston would be paid when given the go ahead for the hit.  Mr. Johnston then accompanied Constable N., Constable C., and another undercover officer, as they drove around Montreal looking at potential locations for the hit.  (Scenario no. 59) [38] The final scenario (no. 60) took place on September 18, 2009, in Montreal.  After Mr. Johnston had gone with several undercover officers to look at another possible location for the hit, he was taken to a hotel to meet with Sergeant D., who posed as the boss of the criminal organization.  Sergeant D. conducted the Mr. Big interview, which was secretly videotaped.  Having viewed the videotape, I agree with the following description of Mr. Johnston’s demeanor by the trial judge: [107]    … Gary Johnston is calm, he is composed, he is relaxed, he is comfortable and at times reflective and contemplative.  He knew and was secure in the confidence and friendship of the other gang members. [39] Sergeant D. expressed concern that Mr. Johnston had been involved in a murder that was still under investigation and that the investigation could bring “heat” on the criminal organization.  Sergeant D. had press releases about Mr. Fraser’s death and what he said were police documents. [40] Mr. Johnston disclosed to Sergeant D. that in 1998 he killed someone, who he said was the brother of a neighbour.  He told Sergeant D. that at about 10:00 or 10:30 in the morning he rode on a bicycle to the neighbour’s house in Surrey wearing a hoody with the hood pulled up over his head; he also had gloves on.  He entered the house through the back (i.e., side) door, which was open. [41] Mr. Johnston said no one was in the house when he entered.  He “ransacked” the place looking for things to take and left video-game and other electronic equipment on the living room floor.  When he heard the victim’s truck arrive he sat at the kitchen table and waited for the victim to come inside. [42] Mr. Johnston said he stabbed the victim in the neck about 30 times, using four knives he took from a block in the kitchen.  He said he kicked the victim in the ribs several times as he lay on the floor gasping for breath.  At one point Mr. Johnston said two knife blades broke off in the victim’s neck; at another point he said four knife blades broke off in the victim’s neck.  He said he killed the victim because the victim owed him $1,800 and did not want to pay it back.  The victim’s body was on the kitchen floor. [43] Mr. Johnston told Sergeant D. he left the house through the back (i.e., side) door and rode away on his bicycle.  He took the four knife handles and buried them.  He did not take a telephone.  With the help of his brother he burned everything he was wearing that day at a friend’s house.  He told his brother he “got into a beef” with someone who died. Analysis Abuse of Process [44] Mr. Johnston contends that the Mr. Big operation was an abuse of process because of the scenarios where it was made to appear that two persons were kidnapped, beaten, and then killed (Scenario nos. 31 and 32), and because the operation was designed to prey on the poverty and social isolation he experienced upon release from prison.  He submits that the simulated violence used in this operation is unacceptable to Canadians and that the statements he made during the Mr. Big interview should be excluded. [45] In discussing the application of the doctrine of abuse of process to Mr. Big operations in Hart , Mr. Justice Moldaver said: [115] It is of course impossible to set out a precise formula for determining when a Mr. Big operation will become abusive.  These operations are too varied for a bright-line rule to apply.  But there is one guideline that can be suggested.  Mr. Big operations are designed to induce confessions.  The mere presence of inducements is not problematic ([ R. v. Oickle , 2000 SCC 38 at para. 57, [2000] 2 S.C.R. 3]).  But police conduct, including inducements and threats, becomes problematic in this context when it approximates coercion.  In conducting these operations, the police cannot be permitted to overcome the will of the accused and coerce a confession.  This would almost certainly amount to an abuse of process. [116] Physical violence or threats of violence provide examples of coercive police tactics.  A confession derived from physical violence or threats of violence against an accused will not be admissible – no matter how reliable – because this, quite simply, is something the community will not tolerate (see, e.g., R. v. Singh , 2013 ONCA 750, 118 O.R. (3d) 253). [117] Violence and threats of violence are two forms of unacceptable coercion.  But Mr. Big operations can become coercive in other ways as well.  Operations that prey on an accused’s vulnerabilities – like mental health problems, substance addictions, or youthfulness – are also highly problematic (see [ R. v. Mack , [1988] 2 S.C.R. 903] at p. 963).  Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system.  As this Court has said on many occasions, misconduct that offends the community's sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement. [118] While coercion is an important factor to consider, I do not foreclose the possibility that Mr. Big operations can become abusive in other ways.  The factors that I have outlined, while not identical, are similar to those outlined in Mack , with which trial judges are well-familiar (p. 966).  At the end of the day, there is only so much guidance that can be provided.  Our trial judges have long been entrusted with the task of identifying abuses of process and I have no reason to doubt their ability to do the same in this context. [46] In the present case, the officer who directed the undercover operation testified that in a Mr. Big operation, each scenario (with the possible exception of the initial contact) is designed based on how the person under investigation responded to the previous scenario.  With respect to the staged killing of the kidnap victims, the officer testified: [T]he objectives at the start were to – to show Mr. Johnston that Constable [N.’s] organization were [ sic ] capable of violence, and to conduct a scenario which would expose a crime somewhat similar to the crime being investigated. [47] Mr. Johnston relies on the recent judgment of the Court of Appeal of Quebec in R. c. Laflamme , 2015 QCCA 1517, in which a Mr. Big operation was found to constitute an abuse of process, resulting in the setting aside of a conviction for first degree murder and the entry of a stay of proceedings.  He submits Laflamme stands for the proposition that it is unacceptable for the police conducting a Mr. Big operation to use scenarios involving violence or threats of violence.  I do not agree.  As I will explain, the Mr. Big interview in Laflamme was conducted in a significantly different manner than the interview involving Mr. Johnston. [48] In 2007, a Mr. Big operation was directed at Mr. Laflamme, who was suspected of killing his wife in 1976.  Undercover officers posing as members of a criminal organization engaged Mr. Laflamme in 40 scenarios over the course of four months, during which time he was paid some $12,000.  Mr. Laflamme’s primary contact with the organization was an officer known as “Vince”, with whom he developed a strong friendship.  The 41st scenario was the Mr. Big interview, during which Mr. Laflamme admitting strangling his wife to death. [49] In the first scenario involving violence, Mr. Laflamme accompanied Vince to visit a bad debtor.  While Mr. Laflamme waited outside a motel room, Vince went inside and simulated beating up the debtor.  In the next scenario involving violence, Vince, in Mr. Laflamme’s presence, grabbed an undercover officer posing as a corrupt bank employee by the throat and threatened her with a pistol. [50] As is typical, the Mr. Big interview was conducted for the purpose of determining whether Mr. Laflamme would be accepted into the criminal organization.  During that interview the undercover officer posing as the crime boss implied that serious harm would befall both Mr. Laflamme and Vince if the interview did not go well. [51] Scenarios involving violence are a common feature of a Mr. Big operation directed at a person suspected of having committed murder.  Such scenarios are used, as they were in the case at bar, to give the impression that the fictitious criminal organization tolerates and is prepared to use violence.  This is done to create an atmosphere in which the person under investigation will not be reluctant to discuss his or her past involvement in similar violent acts:  see R. v. West , 2015 BCCA 379 at para. 99. [52] In Laflamme , it was not the scenarios involving violence directed at persons outside the criminal organization that took the investigation over the line.  Rather, what the Court found unacceptable was the directing of threats at Mr. Laflamme and Vince.  Those threats were unacceptable because they amounted to coercion for the purpose of extracting a confession:  paras. 77-87. [53] That Laflamme does not stand for the proposition it is unacceptable for the police to use scenarios involving violence or threats of violence is reflected in R. c. Perreault , 2015 QCCA 694, 19 C.R. (7th) 393 (“ Perreault No. 2 ”), another recent judgment of the Court of Appeal of Quebec.  That judgment was the second by the Court of Appeal addressing an appeal by Mr. Perreault from his conviction for first degree murder.  The first judgment was rendered prior to the Supreme Court of Canada’s judgment in Hart : R. c. Perreault , 2013 QCCA 834 (“ Perreault No. 1 ”).  Following the release of Hart , Mr. Perreault filed an application in the Supreme Court of Canada for an extension of time to file and serve an application of leave to appeal from the order dismissing his appeal.  That Court, acting pursuant to s. 43(1.1) of the Supreme Court Act , remanded Mr. Perreault’s case to the Court of Appeal for disposition in accordance with Hart . [54] The Mr. Big operation in Perreault involved a fictitious criminal organization engaged in various illegal activities including the extortion of an escort agency.  There were 41 scenarios, the last being the Mr. Big interview.  In one scenario the undercover officer who befriended Mr. Perreault simulated beating up an escort.  Also, the officer who befriended Mr. Perreault told him that he had approved the murder of a woman: Perreault No. 1 at paras. 5-8; Perreault No. 2 , paras. 14-16. [55] In rejecting Mr. Perreault’s argument that the Mr. Big operation constituted an abuse of process, the Court, in Perreault No. 2 , noted no violence or threats of violence had been directed at Mr. Perreault.  Having regard to all the circumstances, it held that the admissions Mr. Perreault made during the Mr. Big interview were not the product of coercive police tactics:  paras. 87-89. [56] Also instructive is the recent judgment of the Court of Appeal for Saskatchewan in R. v. Allgood , 2015 SKCA 88, 327 C.C.C. (3d) 196.  Mr. Allgood was suspected of having shot and killed the mother of his child and attempting to kill her partner.  At the time the Mr. Big operation began, Mr. Allgood was unemployed and known to frequent a pawn shop.  There were two scenarios involving violence.  In the first, Mr. Allgood participated in the kidnapping of a person who owed the organization a large sum of money and witnessed that person being assaulted.  Shortly afterwards, it was made to appear that this person had been shot and killed out of Mr. Allgood’s sight.  In the second scenario, Mr. Allgood accompanied an undercover officer who intimidated and assaulted a woman and threatened both her and her daughter.  Over the course of the four-month operation Mr. Allgood was involved in 43 scenarios and received $8,500.  Prior to the Mr. Big interview he was told that if the crime boss approved, then he would be able to participate in a big job for which he would receive $25,000:  paras. 14-17. [57] Mr. Allgood was convicted of first degree murder and attempted murder by a judge sitting without a jury prior to the Supreme Court of Canada’s judgment in Hart .  In appealing those convictions, he argued that a new trial should be ordered so that the admissibility of his statements could be tested under the Hart framework.  In dismissing the appeal, the Court of Appeal applied that framework.  With respect to the contention that the Mr. Big operation constituted an abuse of process, Mr. Justice Herauf said this: [56]      In the context of Mr. Big operations, the Supreme Court held that the police cannot be permitted to overcome the will of the accused and coerce a confession.  Violence and threats of violence, preying on the accused’s vulnerabilities (e.g. mental health problems, substance addictions, or youthfulness) are also highly problematic.  Misconduct that offends the community’s sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement. [67]      I believe [the abuse of process] argument can be dealt with quickly. The Supreme Court found that operating a typical Mr. Big operation alone does not amount to an abuse of process.  Something more is required; the police must be shown to have overcome the will of the accused and coerced a confession.  There was no indication that there was violence, threats of violence, or taking advantage of Mr. Allgood’s vulnerabilities on the part of the police.  I do not find that there was any other misconduct that would offend the community’s sense of fair play and decency.  I would not give effect to this ground of appeal and agree with the trial judge that the confession was admissible evidence. [Emphasis added.] [58] In the case at bar, the Mr. Big operation directed at Mr. Johnston was, in substance, no different than those described in Allgood and in this Court’s judgment in West .  In other words, it was “typical”.  Although Mr. Johnston was unemployed, there is no suggestion he was destitute or socially isolated.  The police neither preyed on his vulnerabilities, nor directed violence or threats of violence at him or anyone close to him. [59] In a passage oft-quoted from Rothman v. The Queen , [1981] 1 S.C.R. 640 at 697, Mr. Justice Lamer (as he then was) said this: It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules.  The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work.  What should be repressed vigorously is conduct on their part that shocks the community. [60] In my view, reasonable and well-informed members of the community would not find the manner in which the police investigated Mr. Fraser’s murder shocking and unacceptable. [61] I would not accede to this ground. Threshold Reliability of the Mr. Big Interview [62] Mr. Johnston submits that the statements he made during the Mr. Big interview should be excluded because their probative value is demonstrably outweighed by their prejudicial effect.  He says his statements during that interview are unreliable and, therefore, of low probative value because:  (a) he is unsophisticated and was induced by the gifts, money, and friendships bestowed upon him by a fictitious criminal organization that implicitly subjected him to threats of violence; (b) there is a possibility Michael Johnston committed the murder and told him about it; (c) some of the details of the killing he related to Sergeant D. are inconsistent with the actual facts, i.e., the use of four knives to inflict 30 stab wounds, and that he killed the victim because of an unpaid debt; and (d) the interview did not result in the discovery of any new evidence.  He further submits the evidence from the Mr. Big operational is prejudicial as it shows he participated in simulated criminal activity and was prepared to participate in killing a witness. [63] As Mr. Johnston was being tried by a judge sitting without a jury there was little risk of either moral prejudice or reasoning prejudice: West at para. 78. [64] It is important to keep in mind that threshold-reliability is a gatekeeper standard; it is used to determine whether evidence can properly be considered by a jury or, in the case of a judge-alone trial, by the judge sitting as the trier of fact: Hart at para. 98.  In discussing the approach to be taking in deciding this issue, Moldaver J. said: [102]    … Thus, th e first step in assessing the reliability of a Mr. Big confession is to examine those circumstances and assess the extent to which they call into question the reliability of the confession.  These circumstances include – but are not strictly limited to – the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication, and mental health. [103] Special note should be taken of the mental health and age of the accused. … A confession arising from a Mr. Big operation that comes from a young person or someone suffering from a mental illness or disability will raise greater reliability concerns. [104] In listing these factors, I do not mean to suggest that trial judges are to consider them mechanically and check a box when they apply.  That is not the purpose of the exercise.  Instead, trial judges must examine all the circumstances leading to and surrounding the making of the confession – with these factors in mind – and assess whether and to what extent the reliability of the confession is called into doubt. [105] After considering the circumstances in which the confession was made, the court should look to the confession itself for markers of reliability.  Trial judges should consider the level of detail contained in the confession, whether it leads to the discovery of additional evidence, whether it identifies any elements of the crime that had not been made public (e.g., the murder weapon), or whether it accurately describes mundane details of the crime the accused would not likely have known had he not committed it (e.g., the presence or absence of particular objects at the crime scene). Confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence. [Emphasis added.] See also: R. v. Mack , 2014 SCC 58 at para. 34, [2014] 3 S.C.R. 3. [65] In Hart , the statements made by Mr. Hart implicating himself in the drowning of his two daughters were excluded because of a combination of factors.  At the time the Mr. Big operation began Mr. Hart was unemployed, socially isolated, and living on welfare.  Over four months he was paid over $15,000 and told a $25,000 pay day was coming.  The undercover officers became his closest friends and transformed his life.  His descriptions of how the crime was committed were inconsistent.  Further, and of considerable importance, there was no confirmatory evidence. [66] In the present case, while Mr. Johnston was unemployed, he was not socially isolated, destitute, or vulnerable.  He had a criminal past that he freely disclosed to Constable I. the first time they met; a past that includes taking another person’s life.  He was not a person unaccustomed to violence. [67] Although Mr. Johnston became friendly with a number of the undercover officers, particularly Constable N., those officers did not engrain themselves in his life to the same extent as occurred in Hart .  No violence or threats of violence were ever directed at Mr. Johnston, or at anyone close to him.  He was calm and composed during the Mr. Big interview. [68] Of particular significance is Mr. Johnston’s knowledge of aspects of the holdback evidence such as the killer’s use of a bicycle, the stab wounds to Mr. Fraser’s neck, and the broken knife blades.  His statement that he kicked the victim in the ribs is consistent with the injuries Mr. Fraser sustained.  That Mr. Johnston misstated the number of knives used and the number of stab wounds inflicted together with stating that he killed the victim over an unpaid debt does not render his statements unworthy of consideration by a trier of fact.  A finding of threshold reliability is not precluded merely because there are some inaccuracies in an accused’s description of the actual facts: West at para 87; Allgood at para. 64.  I note that the trial judge, in finding ultimate reliability, referred to Mr. Johnston having overstated the number of knives as well as the number of stab wounds as “exaggerations”:  paras. 146, 149. [69] Other markers of threshold reliability (i.e., potentially confirmatory evidence) are: (a)      Mr. Johnston’s description of how he was dressed and his statement as to the time at which he rode a bicycle to Ms. Fraser’s house (which is generally consistent with Mr. Barker’s testimony); (b)      his knowledge that Mr. Fraser arrived in a truck; (c)      his knowledge that the knives came from a block in the kitchen; and (d)      his knowledge that video-game and other electrical equipment had been left on the living room floor. [70] As is readily apparent, Mr. Johnston knew details of Mr. Fraser’s murder that it was likely only the killer would know.  This knowledge provides a powerful guarantee of the reliability of his statements during the Mr. Big interview.  At the threshold-reliability stage, that guarantee is not diminished by the possibility that Mr. Johnston could have learned those details from Michael Johnston. [71] In my view, the threshold-reliability requirement for Mr. Big statements set out in Hart was satisfied. [72] I would not accede to this ground. Admissibility of Michael Johnston’s Videotaped Statement [73] Mr. Johnston’s objection to the admissibility of Michael Johnston’s videotaped statement is tied directly to his objection to the admissibility of the Mr. Big interview.  He accepts that if the Mr. Big interview is admissible, then his objection to the videotaped statement must fail. [74] As I have found the Mr. Big interview admissible, I would not accede to this ground. Disposition [75] As noted, these are my reasons for dismissing the appeal. “The Honourable Mr. Justice Frankel” I AGREE: “The Honourable Mr. Justice Chiasson” I AGREE: “The Honourable Madam Justice D. Smith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. zombori, 2016 BCCA 9 Date: 20160106 Docket: CA42691 Between: Regina Respondent And Joseph Steve zombori Appellant Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Groberman The Honourable Madam Justice Dickson On appeal from: an order of the Supreme Court of British Columbia, dated April 9, 2015 ( R. v. zombori ) (conviction) and February 26, 2015 ( R. v. zombori ) (sentence), Williams Lake Docket No. 32113) Oral Reasons for Judgment Appellant appearing In Person (via teleconference): Counsel for the Respondent: R. Leong Place and Date of Hearing: Vancouver, British Columbia January 6, 2016 Place and Date of Judgment: Vancouver, British Columbia January 6, 2016 Summary: Extension of time for filing appeal (one year after convictions) was sought but the appellant had not complied with filing dates set in a Criminal Appeal Advisory Letter. The matter was referred to a division and appellant confirmed he would not file the transcript or appeal books. He demanded his appeal be referred to a Court of Equity to be dealt with in private. Appeal dismissed as abandoned. [1] NEWBURY J.A. : Mr. zombori was convicted by a jury on April 10, 2014 of the production of marihuana, possession of marihuana for the purpose of trafficking, and wilful interference with the lawful use of property. On February 26, 2015 he was sentenced to a term of 18 months’ imprisonment, a probation term of six months and the forfeiture of certain property. [2] Almost a year after his conviction, Mr. zombori filed a notice of appeal (from conviction and sentence) and notice of an application to extend time for the filing of the notice of appeal. In accordance with this court's practice, he was notified by the Registrar of certain deadlines that became applicable to his appeal – the filing of a transcript by May 5, 2015, the filing and serving of a transcript and appeal book by June 30, the filing and serving of his factum by October 20 and the hearing of the appeal no later than April 7, 2016. [3] The case was referred to case management and at a case management session, Madam Justice Neilson on June 24, 2015 urged him to apply for legal aid and to consider making an application under s. 684 of the Criminal Code , R.S.C. 1985, c. C-46, for the appointment of counsel. At a second case management session on July 24, Mr. zombori told the judge that he would not be applying for legal aid or for the appointment of counsel; nor did he wish to be represented by counsel. He asserted at that time that the Court did not have jurisdiction in respect of the offences for which he was convicted and that he would be filing materials challenging the Court's jurisdiction in due course. [4] Mr. zombori failed to meet the deadlines for the filing and service of a transcript and appeal books and was notified on October 21, 2015 by the Registry that a hearing would be held on November 24, 2015 to consider whether his failure to diligently pursue his appeal should be referred to a court or to a justice. [5] A month later, on November 24 of last year, Mr. zombori appeared at a Registrar's reference before Madam Justice Bennett. At that time, he confirmed that he had not ordered or filed transcripts or appeal books and again asserted that the Court and the Crown do not have jurisdiction in respect of the offences. Madam Justice Bennett referred the matter to this division of the Court and Mr. zombori has appeared by telephone link before us today. [6] Today, he has reiterated the position he outlined to Madam Justice Bennett, namely that the Court has, and the Supreme Court of British Columbia had no jurisdiction over him, and that these proceedings are a matter for a court of Equity. As I understand it, he says he has equitable rights arising out of a “private trust” that is cognizable only in Equity and that the Crown had no right to charge him with the offences. He also says “this” is a private matter and that the proceedings are irreparably damaging, either to his rights or those of the beneficiary of the trust (I am not quite sure which it is.) We attempted, without success, to explain to Mr. zombori that there is no longer an exclusive court of Equity in this Province, and that the Supreme Court now exercises both equitable and legal jurisdiction. It was in the Supreme Court, of course, that he was convicted. [7] Mr. zombori’s submissions are, I must say, entirely without merit and leave no hope that he intends to pursue an appeal. He has no intention of obtaining a transcript or filing appeal books as required by the Rules , nor of obtaining counsel who might put forward an argument that might have some merit. No reason having been given as to why further extensions of time should be granted, I conclude that the appeal must be dismissed as abandoned. [8] GROBERMAN J.A. : I agree. [9] DICKSON J.A. : I agree. [10] NEWBURY J.A. : The appeal is dismissed as abandoned. “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Cameron v. Cameron, 2016 BCCA 10 Date: 20160107 Docket: CA42809 Between: Shannon Marie Cameron Appellant (Plaintiff) And Gary Craig Cameron Respondent (Defendant) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Groberman The Honourable Madam Justice Dickson On appeal from:  An order of the Supreme Court of British Columbia, dated April 22, 2015 ( S.M.C. v. G.C.C. , April 22, 2015, Vancouver Docket E123621) Oral Reasons for Judgment Counsel for the Appellant: J. Predovic Counsel for the Respondent: M. Brandon Place and Date of Hearing: Vancouver, British Columbia January 7, 2016 Place and Date of Judgment: Vancouver, British Columbia January 7, 2016 Summary: The appellant appeals from a chambers judge’s decision on a review of a spousal support order. The original support order contemplated the appellant re-training and being able to generate income, and provided for a review of spousal support in 2015. On the review, the chambers judge imputed income of $1000/month to the appellant, based on the judge’s assessment that the appellant should now be earning that amount. The appellant argues that the chambers judge misapprehended the evidence or placed undue weight on the need for the appellant to achieve self-sufficiency. Held: appeal dismissed. The judge considered the difficulties encountered by the appellant, but, after assessing the evidence, concluded that she ought to be earning $1000/month. There is nothing in her judgment to suggest that she misapprehended the evidence or misapplied the law. [1] GROBERMAN J.A.: The appellant appeals from an order of the Supreme Court on a review of spousal and child support orders. She contends that the judge erred in imputing income of $1000 per month to her and in limiting the special or extraordinary expenses payable under s. 7 of the Federal Child Support Guidelines. [2] The original spousal support order was made in September, 2013. At that time, the appellant had lost her employment as an office assistant, and had decided to re-train as a jewellery designer. While she was not making any money as a jewellery designer at that time, the judge concluded that her decision to re-train was a reasonable one. He declined to impute any income to her, and ordered the respondent to pay $1359 per month as spousal support. He directed that the spousal support award would be reviewable no earlier than January 1, 2015. It is clear that the issue to be reviewed was the appellant’s income. It was anticipated that she would be able, with time, to earn income as a jewellery designer. [3] The review application was heard in May, 2015. It appears that the appellant was still not earning any income. The respondent argued that income should be imputed to her on the basis that she had not made reasonable efforts to secure employment. The appellant, on the other hand, contended that her lack of income was reasonable, given that she had suffered certain health difficulties and emotional challenges, and given that she was the primary caregiver for the couple’s child, who has special needs. [4] The judge imputed income to the appellant, but at a level well-below that contended for by the respondent. Her reasoning was succinct: [15]      Having considered the evidence, I am of the view that while there is no doubt that the claimant has had some very unfortunate circumstances with respect to her health, Justice Sewell did consider her health and [P.'s] special needs in structuring an order that allowed the parties to move forward and ultimately achieve self-sufficiency, as contemplated under the Divorce Act. He did anticipate, in my view, that by January 2015, that would have provided a reasonable opportunity for the claimant to obtain employment. [16]      I am of the view, however, that given the history of this relationship and considering [P.'s] special needs and the health difficulties of the claimant, it is far too early to consider terminating the spousal support provision. [17]      I am of the view overall that, given all of the circumstances, it is appropriate to impute an income to the claimant at this time of $1,000 per month or $12,000 per annum. I have considered her graduation from the jewellery design course and the success that she is capable of a jewellery designer. I have also considered the inventory that she currently has in her business, along with the tools to develop that business or to obtain employment. In my view, this is an appropriate amount that balances her need for flexible employment, her need to provide care for [P.] in a manner that allows her some flexibility, recognizes her health difficulties, but also recognizes the needs of the parties to move forward and become self-sufficient. [5] The judge, accordingly, reduced spousal support to $900 per month, effective July 1, 2015. She was obviously concerned about the appellant’s efforts to secure employment, noting that her affidavit indicated that she had applied for approximately 14 jobs, but that, in the course of argument, it was conceded that she had simply “reviewed” 14 jobs, and had not made applications. [6] With respect to special expenses, the judge determined that counselling and dental expenses, and one extra-curricular activity would constitute special expenses for the purpose of the Federal Child Support Guidelines . In doing so, she commented that she wished to “acknowledge the needs of [the child] but … also put a limit on these expenses, because … both parties have some financial challenges.” Special expenses payments are divided, with the respondent paying 70.4%. [7] Canadian courts have recognized that significant deference is afforded trial judges in respect of support orders. In Hickey v. Hickey , [1999] 2 S.C.R. 518, L’Heureux-Dubé J., for a unanimous court said: [11]      Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong …. [12]      There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently. [8] The appellant alleges that the judge erred in three ways: (1) by focussing on the appellant’s lack of success in obtaining employment rather than on the reasonableness of her efforts to obtain employment; (2) by misapprehending the evidence pertaining to the appellant’s medical and other difficulties which impeded her search for employment; (3) by failing to increase the amount of spousal support as provided for in s. 12.10 of the Spousal Support Advisory Guidelines for cases involving children with special needs. [9] I am unable to find errors in the judge’s assessment. She cited Jordan v. Jordan , 2011 BCCA 518 as setting out the nature of her task – the review did not depend on a finding that there was a material change in circumstances, but did require that she identify the issues to be reviewed and to determine those issues. She identified the appellant’s income as the issue of focus. She reviewed the evidence, and concluded that the appellant, even with her health difficulties and the special needs of her child, ought to be able to generate an income of $1,000 per month. I see nothing in her reasons that suggests that she misapprehended the evidence or applied the wrong legal tests. [10] The judge carefully assessed the special needs of the child, and took them into account in determining the appropriate amount of income to impute to the appellant. I am unable to find that there was any error on the part of the judge in declining to further adjust the spousal support based on the child’s special needs. [11] While the grounds of appeal do not specifically address the judge’s reasons for finding that payment for only one extracurricular activity should qualify as an extraordinary expense, the relief sought by the appellant includes overturning that order. I would not accede to that request. I am unable to find any error in the judge’s analysis of the question. After considering the needs of the child and the financial position of the parties, she found that it was reasonable to include only one extracurricular activity as an extraordinary expense. There is no basis to challenge that finding. [12] In the result, I would dismiss the appeal. [13] NEWBURY J.A. : I agree. [14] DICKSON J.A. : I agree. [15] NEWBURY J.A. : The appeal is dismissed. “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Krieger, 2016 BCCA 11 Date: 20160107 Docket: CA41114 Between: Regina Respondent And Scott Berthold Krieger Appellant Corrected Judgment: Text was corrected in the summary on January 25, 2016. Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Garson The Honourable Madam Justice Fenlon On appeal from: an order of the Supreme Court of British Columbia, dated August 9, 2013 ( R. v. Krieger , 2013 BCSC 1722, New Westminster Registry No. 73899) Oral Reasons for Judgment Counsel for the Appellant: N.L. Cobb Counsel for the Respondent: W.P. Riley, Q.C. Place and Date of Hearing: Vancouver, British Columbia January 6, 2016 Place and Date of Judgment: Vancouver, British Columbia January 7, 2016 Summary: The appellant appeals the two-year custodial sentence imposed following his conviction for possession of cocaine for the purposes of trafficking, and applies for a post-sentence report and/or admission of fresh evidence. The appellant submits that the sentencing judge erred by concluding that the offence was committed for profit, by treating the absence of addiction as an aggravating factor, by failing to treat Charter breaches as a mitigating factor, and by not imposing a conditional sentence. Held: The appeal and applications are dismissed. The sentencing judge reasonably concluded that the offence was motivated by profit, and did not treat the absence of addiction as an aggravating factor. The Charter breaches that occurred in the appellant’s case did not rise to the level of mitigating factors. A two-year custodial sentence was not unfit. The proposed evidence in the applications for a post-sentence report and/or fresh evidence primarily supported existing evidence, and there was no reasonable possibility that it would assist the Court in reviewing the fitness of the sentence imposed. I. Introduction [1] GARSON J.A. : The appellant Scott Berthold Krieger appeals from a two-year custodial sentence imposed by a Supreme Court judge following his February 20, 2013, conviction on a charge of possession for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. [2] On appeal, Mr. Krieger says that the custodial sentence is harsh and excessive, and he seeks the imposition of a conditional sentence. He submits that a conditional sentence is a fit one based on the following factors: he is a first time offender; he has been on bail since his arrest in 2009; he has fully complied with all bail conditions; he is the self-employed owner of an oil pipeline company employing about 20 people whose employment depends upon him; his family would suffer considerable hardship if he were incarcerated, particularly because of his wife’s recent cardiac difficulties; and his own health difficulties. [3] In imposing a custodial sentence, Mr. Krieger submits that the sentencing judge erred: a) By concluding that he had committed the offence for profit; b) By treating the absence of addiction as an aggravating factor; c) By failing to treat as mitigating factors breaches of the Canadian Charter of Rights and Freedoms that occurred respecting Mr. Krieger’s detention, and the searches of his vehicle, cellular telephone, and residence; and d) By declining to impose a conditional sentence order. [4] Additionally, Mr. Krieger seeks an order that this Court order a post-sentence report and/or admit fresh evidence. In support of this application, he tenders his own evidence as well that of his wife about her cardiac symptoms, although without any expert testimony. He tenders his updated evidence about his employment and his company’s contracts. He asserts that his personal supervision is required to service those contracts. [5] In reply, the Crown says that the appeal, the application for a post-sentence report, and the application for fresh evidence should all be dismissed on the grounds that the judge did not err, and that Mr. Krieger has failed to establish that the sentence is not fit. [6] For the reasons that follow I would dismiss the appeal and the applications. II. Background [7] The circumstances of the offence are summarized by the sentencing judge beginning at para. 12 of the reasons for sentence: 2013 BCSC 1722: [12]      The established facts are simple. They are set out in the judgment pronounced on February 20, 2013 and indexed at 2013 BCSC 1429. I will not repeat them now in detail. [13]      In summary, Mr. Krieger travelled from Alberta to Surrey, British Columbia on April 19, 2009 and met Mr. Goodkey in the parking lot of a hotel there on the morning of April 20, 2009. They drove in Mr. Goodkey’s vehicle to New Westminster, where they were lost to surveillance, and returned soon thereafter to the hotel parking lot. Mr. Goodkey then delivered to Mr. Krieger two boxes later found to contain over seven kilograms cocaine. [14]      Mr. Goodkey, wearing blue gloves, took boxes from the back of his vehicle and handed them to Mr. Kreiger while he was in the back deck of a pickup truck. Mr. Krieger tilted the tidy tank on the deck of the truck to a 45-degree angle to gain access to a compartment located under the tidy tank. [15]      The circumstances of the exchange supported the inference the accused knew they were trafficking cocaine. They are referred to in the judgment and include the fact both wore gloves at the time of the transfer; the exchange occurred in a secluded location at the back of an empty parking lot adjacent to a wooded area; the drugs were put into a secret compartment in the presence of Mr. Goodkey by Mr. Krieger; and Mr. Krieger was seen to discharge what appeared to be fuel around the tank after the drugs had been concealed. [16]      Following the meeting, the offenders went their separate ways. Mr. Kreiger, in the course of returning to Alberta, was stopped before he left British Columbia. When his vehicle was searched, the compartment beneath the tidy tank and the cocaine were located. [1]        Staff Sergeant Patrick Murphy was called to give opinion evidence in the trail involving the trafficking and possession of cocaine in British Columbia. It was his evidence that seven kilograms of cocaine are unlikely to be possessed by a street-level distributor. This amount of cocaine is likely to be held by an extremely high-level distributor or a low-level wholesaler of cocaine. In the hands of distributors, this cocaine would have a value in the range of $28,000 to $32,000 per kilogram, or approximately $210,000. Distributed at street level, the same amount of cocaine would have a value of approximately $600,000. This amount of cocaine would not be held by an individual for personal use, but would be held for trafficking. [2]        Because of its value and the risk of its interception or theft, those involved in the trafficking of this amount of cocaine from its point of production, likely Colombia, Peru, or Ecuador, across the border and to street-level distributors, would have a high interest in maintaining control over the cocaine. [3]        If Mr. Goodkey passed containers containing cocaine to Mr. Krieger without receiving money in return at the time of transfer, according to Staff Sergeant Murphy, that would suggest an established relationship between Mr. Krieger and Mr. Goodkey. Circumstances of the offender [8] The sentencing judge described Mr. Krieger’s personal circumstances and the various letters written in his support at paras. 23-36. The description of these circumstances is, to a limited extent, amplified by the fresh evidence sought to be admitted on appeal: [23]      Mr. Krieger has been married to Helena Krieger for 14 years. He has two children, aged 11 and 8 years. He was born in Prince George and raised there, as well as in Fort Nelson and Qualicum. His father died in a hunting accident when Mr. Krieger was 20, and at that point he is said to have been obliged to become the father of his family. He has worked throughout British Columbia. [24]      Counsel said that not only does he have no prior criminal history, but he has been a constructive and productive member of society. He has been steadily employed and done volunteer work. [25]      I am advised he is the owner of 49% of a company that employs dozens of individuals, 1742794 Alberta Ltd., which does business as High Range Energy. He is said to be essential to the company:  he signs the cheques. The company is actively in business, and currently about to bid on a significant job. He said to be important to his community. [26]      He suffers from a health problem -- polyarticular gout, and a complication from that problem -- septic arthritis, for which he takes medications and sees a rheumatologist. His illnesses is said to be painful and exaggerated by stress. I am informed that he has been hospitalized regularly. Counsel suggests that it may be difficult to treat this condition if he is incarcerated. [27]      He is the sole provider for his family. Letters [28]      Mr. Krieger is also the beneficiary of letters of support from friends and family. [29]      There is a letter from Ronald Noye, a retired RCMP officer, who has known him for years. He describes Mr. Krieger as hard-working, honest, and a good provider. He says that Mr. Krieger made a mistake and has learned from it. He says Mr. Krieger confesses his regret over his actions, but does not describe the nature of the mistake or Mr. Krieger’s regret. He describes Mr. Krieger’s concern for the effect of this offence upon his family. He says that if anyone deserves a second chance, it is Mr. Krieger. He says that to send him to prison would cause his family to suffer hardship. [30]      Pat Trainer, the mother of one Mr. Krieger’s childhood friends, describes him as popular, responsible, and hard-working. She remains proud of him. [31]      Rocky Scholz, a family friend of Mr. Krieger who has known him for 14 years, describes Mr. Krieger as organized, efficient, and extremely competent. He appears to been [sic] employed by Mr. Krieger. He described him as a man of integrity, dedicated to his family and friends. [32]      Miranda Scholz describes Mr. Krieger as genuine, sincere, and kind-hearted. She says he is a family person. [33]      Tammy Cowan is Mr. Krieger’s sister. She says Mr. Krieger has helped their brothers in dealing with a drug addiction. She says he steadily employed and has worked hard. She will continue to support him. [34]      James Keay describes Mr. Krieger is the best operator of a feller-buncher he has ever seen, a dedicated father and husband, and a hard worker. He says Mr. Krieger’s character is “beyond reproach”. Statement: [35]      Mr. Krieger also comes before the Court and says he made a great mistake, but does not know why he made that mistake. He says he should have asked more questions but has not described for me the natures of the questions he would have asked, or of whom he would have asked those questions. He says that he is remorseful for the effect his actions have had upon his family and friends. [36]      He asks the Court to give him an opportunity to show that he will not be further involved in criminal activity by imposing on him a conditional sentence. He says he is a good, hard-working person, and he seeks to minimize the effect of his sentence on other people. III. Analysis [9] I shall address the four grounds of appeal as set out above. [10] The first ground is that the judge erred in concluding that Mr. Krieger committed the offence for profit. The second ground is incidental to the first, in the sense that Mr. Krieger says the judge erred by treating the absence of addiction as an aggravating factor. [11] In describing Mr. Krieger’s involvement in the trafficking scheme, the judge noted that the appellant carried a substantial amount of cocaine and “must have done so for profit” (at para 118). The judge referred to and relied on the evidence at trial to conclude that the quantity of drugs was seven kilograms, valued on a wholesale basis at between $195,000−$225,000, and enough to produce 7,000 individual doses for sale to users (at para. 47). [12] Mr. Krieger argues that there was no evidence on which the judge could have relied to draw the conclusion that the criminal conduct was for a profit motive. Second, Mr. Krieger argues that while addiction may be a mitigating factor, its absence is not an aggravating factor. He interprets the judge’s reasons as so finding and he says that the judge erred in making that finding. [13] While it is correct to say that the evidence of trafficking does not always imply that profit is a motive, in this case, in my view, the inference is inescapable. The circumstances of the appellant’s involvement including the amount of cocaine involved, and the nature of the transfer and transportation of the cocaine are consistent with his being either a high level distributor, or a low-level wholesaler of cocaine. The judge’s inference that the offence was committed for profit was well-supported by the evidence. Indeed, it is difficult to imagine another motive for such high-risk involvement. The only apparent purpose of journeying from Alberta to Surrey, transfer of drugs to him, and returning towards Alberta, was to receive drugs. There was clearly a basis in the evidence for the judge’s finding that profit was a motive. [14] R. v. Fraser , 2009 BCCA 179, is authority for the proposition that trafficking for profit, if proven beyond a reasonable doubt, may be considered an aggravating factor (see, also, R. v. Li , 2009 BCCA 85 at paras. 33-34) and the converse proposition that trafficking to support an addiction, if proven on a balance of probabilities, may be cited as a mitigating factor diminishing the offender’s culpability (see also this Court’s discussion in R. v. Terezakis , 2010 BCCA 268 at paras. 15-17). In this case, as I have outlined, there is ample evidence to support the inference that the appellant’s involvement was for profit. [15] Mr. Krieger argues that the judge erred in finding the absence of addiction to be an aggravating circumstance. The judge set out the aggravating factors applicable to Mr. Krieger at para. 118 of the sentencing reasons: [118]    The aggravating circumstances affecting Mr. Krieger’s sentence are those affecting Mr. Goodkey. He carried a large amount of cocaine; he must have done so for profit; he was not an addict; to some degree planning was involved; the cocaine was to be transported over a significant distance to the market. [16] I do not read the judge’s reasons as concluding that the absence of addiction is an aggravating factor, which clearly it cannot be. In my view, when read in context, the judge is simply referring to the absence of evidence supporting any alternative explanation, apart from profit, for Mr. Krieger’s involvement in the offence. I would not accede to the first or second grounds of appeal. [17] The third ground of appeal concerns the Charter breaches the judge found to have occurred in respect of Mr. Krieger’s detention and searches of his vehicle, residence, and cellular phone. Mr. Krieger was originally under investigation for smuggling weapons into Canada from the United States. In April, police officers observed the transaction between Mr. Krieger and Mr. Goodkey described above. Believing that the transaction involved weapons, police arrested Mr. Krieger as he was driving towards Alberta. Mr. Krieger argued at trial that police did not have reasonable and probable grounds to make this arrest. After his arrest for smuggling, Mr. Krieger was detained and his vehicle was searched. The police found a hidden compartment containing the cocaine. [18] The Charter breaches at issue were summarized in this Court’s reasons on the appellant’s conviction appeal (2015 BCCA 64 at paras. 148-167): [148]    The following breaches of Mr. Krieger’s rights occurred in this case: a) his arrest was unlawful and, therefore arbitrary (s. 9); b) the search of his truck was unreasonable (s. 8); c) the search of his cellular telephone was unreasonable (s. 8); d) the search of his residence was unreasonable (s. 8); and e) his right to counsel was infringed when, while he was waiting for his wife to arrange for a lawyer, the police asked him how to access the hidden compartment in his truck and sought to interview him after the cocaine had been found (s. 10(b)). [149]    Mr. Krieger’s position is that the actions taken by the police represent a “pattern of disregard for Charter rights” deserving of judicial disapprobation. He submits the breaches were serious, highly intrusive and, in most cases, intentional. Although I agree with Mr. Krieger that there were serious breaches of his privacy interests, I do not agree with his assertion that the police systematically and deliberately disregarded his rights. [150]    To use a colloquial term, the police went “offside” when Staff Sergeant Baker made the decision to have Mr. Krieger arrested. However, the trial judge found that decision was not taken in bad faith but, rather, was the result of a judgment call that “fell just short of objectively sufficient reasonable grounds.”  In other words, as the investigation continued, the police had no reason to believe anything other than that Mr. Krieger had been lawfully arrested. [151]    The search of the truck was for the purpose of finding the boxes the police reasonably believed had been placed into a hidden compartment. Had Mr. Krieger’s arrest been lawful, a search of the truck incidental to that arrest would also have been lawful: R. v. Caslake , [1998] 1 S.C.R. 51. In the circumstances of this case, it would be wrong to treat the Charter breach occasioned by that search as an independent and distinct breach, indicative of a pattern of disregard for the Charter . Similarly, the search of Mr. Krieger’s cellular telephone should not be treated as an independent and distinct breach. [152]    As mentioned above, the trial judge held that the search of the cellular telephone infringed s. 8 solely because the arrest was unlawful. The judge also found that the officer who conducted that search, Constable Chand, acted in good faith, in that he had an honest and reasonable belief such a search could be conducted incidental to an arrest. ... [160]    This brings me to the search of Mr. Krieger’s Grande Prairie residence, a place where persons have a high expectation of privacy: Côté at para. 85. Without question, the unlawful search of a residence is a serious breach of privacy: Grant at para. 113. However, as with the other searches, that breach should not be viewed as independent and distinct. Rather, it should be viewed as part of the continuum of investigative steps undertaken by the police following what they believed to be a lawful arrest. Knowing that Mr. Krieger possessed a large number of firearms and believing that he was involved in both smuggling handguns and trafficking in drugs, it is understandable the police would take steps to remove those firearms from his possession. Whether registered or not, it generally is not in the public interest to allow a person reasonably believed to be involved in either smuggling handguns or trafficking in drugs to possess firearms. Had the arrest been lawful the information relating to the cocaine would have been properly included in the ITO and, on that basis, the warrant could have issued. [161]    What remains are the breaches of s. 10(b), neither of which I consider to be egregious. The first breach occurred while the police were looking for the hidden compartment in the truck, which was after Mr. Krieger had spoken with the legal aid lawyer. The trial judge found that one of the officers asked Mr. Krieger how to gain access to the compartment and he said the Tidy Tank had to be lifted. Given that the police had seen the Tidy Tank “tilted up” in the parking lot, what Mr. Krieger told them neither advanced the investigation nor compromised his interests. [162]    The second breach occurred when the police attempted to interview Mr. Krieger after the cocaine was found. Their efforts were unsuccessful because, as Mr. Krieger told them, he had been advised by the legal aid lawyer not to say anything and he wished to speak with the lawyer his wife was arranging for him. Because of this, the interview lasted less than 10 minutes. [163]    The evidence as a whole does not support Mr. Krieger’s contention there was a concerted effort by the police to interfere with his right to counsel of choice. Clearly, there was a lack of communication among the officers. This is evinced by the fact that:  (a) Constable Wikstrom did not inform the members of the Border Integrity Unit that Mrs. Krieger was arranging a lawyer for her husband; and (b) prior to attempting to interview Mr. Krieger, Constable Barlow only knew that Mr. Krieger had spoken with a legal aid lawyer. As Constable Barlow was unaware of what Mrs. Krieger was doing, it cannot be said his attempt to obtain a statement from Mr. Krieger amounted to a deliberate breach of Mr. Krieger’s rights. ... [167]    Balancing all of the factors, I have concluded that even with the additional breach relating to the search of Mr. Krieger’s residence, the admission of the cocaine would not, in the long-term, adversely affect the repute of the administration of justice. Reasonable and informed members of the public would understand and appreciate that the breaches here were not occasioned by disrespect or disregard for rights guaranteed by the Charter but, rather, resulted from unintended human errors. [19] It is clear from the foregoing passages that the Charter breaches were not considered by this Court to be serious, deliberate or systemic. The appellant argues that the breaches are nevertheless relevant to the judge’s decision on sentence and should be considered a factor. [20] Where state conduct is relevant to the circumstances of the offence or the offender for the purposes of sentencing, Charter breaches may justify a reduction in sentence ( R. v. Nasogaluak , 2010 SCC 6 at para. 2). In Nasogaluak , police used excessive force in subduing and arresting the accused, who was fleeing, following a report of impaired driving. As a result of the excessive force used, the accused suffered broken ribs and a collapsed lung. The Supreme Court of Canada upheld a judgment reducing the accused’s sentence to the statutory minimum on account of the excessive force used on his arrest. [21] Writing for the Court, Lebel J. explained that Charter breaches and state misconduct are most appropriately considered within the framework of sentencing as outlined in the Criminal Code , R.S.C. 1985, c. C-46, ss. 718 to 718.2. Lebel J. noted that Criminal Code , s. 718 describes the fundamental purpose of sentencing as that of contributing to “respect for the law and maintenance of a just, peaceful and safe society”, thus providing scope for sentencing judges to consider the actions of state actors (at para. 49). Accordingly, if the impugned conduct relates to the individual offender and the circumstances of the offence, sentencing can involve consideration of society’s collective interest in ensuring that law enforcement respects the rule of law and shared societal values (at para. 49). [22] The circumstances of Mr. Krieger’s arrest, detention, and search are very far from those in Nasogaluak , in which the relevance of the impugned conduct to the circumstances of the offender and the offence was readily apparent. For the purposes of sentencing, the effect of the Charter breaches on the circumstances of the offence and the offender in this case is not substantial, and does not raise those breaches to the level of mitigating factors warranting a sentence reduction. As already noted, this Court found on the conviction appeal that the Charter breaches were not of significance and were all essentially derivative of the unintentional breach related to his arrest. I do not agree that the judge erred in declining to reduce the sentence on account of the Charter breaches. There is no evidence of the effect of these Charter breaches on the circumstances of the offender. I would not accede to the third ground of appeal. [23] I turn to the fourth ground of appeal: whether the judge erred in declining to impose a conditional sentence order. I address this together with the applications for fresh evidence and/or a post-sentence report. [24] After reviewing the authorities presented by the Crown and Mr. Krieger, the sentencing judge determined that the low range of sentencing for similar offences for similar offenders was two years (at para. 111). I see no error in this conclusion. [25] The judge imposed a 2-year sentence, but out of an abundance of caution, considered and rejected the submission that a conditional sentence would be appropriate (at paras. 111, 122). I see no error in the judge’s decision to impose a custodial sentence. Given the quantity of the drug, the seriousness of the drug, and Mr. Krieger’s degree of culpability, it cannot be said that the two-year custodial sentence imposed is not fit. That the appellant has heretofore lead an exemplary life and has family and employment responsibilities, while factoring to his credit, does not necessarily lead to the conclusion that the sentence imposed was unfit. [26] I would dismiss Mr. Krieger’s application to adduce fresh evidence. This is because, with the exception of the evidence concerning his wife’s medical condition, the proposed evidence merely supports evidence already in the record ( R. v. Takhar , 2007 BCCA 505 at para. 17). The sentencing judge was aware of and accounted for Mr. Krieger’s family and employment circumstances when imposing a sentence at the low end of the appropriate range. The record discloses that the appellant has made commendable efforts to rehabilitate himself. The judge took this into account, but nevertheless, found that denunciation and deference required a custodial sentence. [27] An application for a post-sentence report implicitly imports the test for the admission of fresh evidence, as set out in R. v. Lévesque , 2000 SCC 47 (see R. v. Radjenovic , 2013 BCCA 131 at paras. 6-7) and also based on considerations in R. v. Palmer , [1980] 1 S.C.R. 759. The overriding consideration is the interests of justice. In my view, the circumstances of this case are not such that it would be in the interests of justice to order a post-sentence report. There is not, in my opinion, a reasonable possibility that the report would assist this Court in reviewing the fitness of the sentence imposed ( Radjenovic at para. 7; Takhar at para. 17), by bringing to the Court information not already known to the sentencing judge. [28] I would dismiss the applications, and would not accede to the fourth ground of appeal. IV. Disposition [29] I would dismiss the applications for a pre-sentence report and/or fresh evidence. [30] I would dismiss the appeal. [31] BAUMAN C.J.B.C. : I agree. [32] FENLON J.A. : I agree. [33] BAUMAN C.J.B.C. : The appeal and the applications are dismissed. “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: McCabe v. British Columbia (Securities Commission), 2016 BCCA 7 Date: 20160108 Docket: CA42515 Between: Colin Robert Hugh McCabe Appellant And British Columbia Securities Commission and the Executive Director of the British Columbia Securities Commission Respondents Before: The Honourable Mr. Justice Tysoe The Honourable Madam Justice Garson The Honourable Mr. Justice Goepel On appeal from:  The decisions of the British Columbia Securities Commission, dated July 8, 2014 (liability) ( Re McCabe , 2014 BCSECCOM 269) and December 18, 2014 (sanctions) ( Re McCabe , 2014 BCSECCOM 512). Counsel for the Appellant: S.K. Boyle M.P. Good Counsel for the Respondent: W.L. Roberts D. Chapman Place and Date of Hearing: Vancouver, British Columbia November 2, 2015 Place and Date of Judgment: Vancouver, British Columbia January 8, 2016 Written Reasons by: The Honourable Mr. Justice Goepel Concurred in by: The Honourable Mr. Justice Tysoe The Honourable Madam Justice Garson Summary: Appeal from decisions of the British Columbia Securities Commission finding the appellant liable for misrepresentations contrary to s. 50(1)(d) of the Securities Act, R.S.B.C. 1996, c. 418. The appellant argues that the Commission lacked the jurisdiction to make a finding of liability under s. 50(1)(d) because the impugned conduct took place in the United States. Held: appeal dismissed. The Commission was correct in taking jurisdiction. A real and substantial connection exists between the appellant’s conduct and the province of British Columbia. Reasons for Judgment of the Honourable Mr. Justice Goepel: INTRODUCTION [1] The appellant, Colin McCabe, appeals from decisions of the British Columbia Securities Commission (the “Commission”). The Commission found that Mr. McCabe contravened s. 50(1)(d) of the Securities Act , R.S.B.C. 1996, c. 418 (the “ Act ”) when he made gross misrepresentations concerning Guinness Exploration Inc. (“Guinness ˮ) in certain publications that were printed and distributed in the United States. The Commission made orders against him for disgorgement of approximately $2.78 million and an administrative penalty of $1.5 million. The liability decision is indexed at 2014 BCSECCOM 269; the sanctions decision at 2014 BCSECCOM 512. [2] Mr. McCabe sought leave to appeal. In reasons indexed at 2015 BCCA 176, a judge of this Court gave Mr. McCabe leave to appeal the single issue of whether the Commission had jurisdiction to sanction him for breach of s. 50(1)(d). [3] Mr. McCabe argues that the Commission was without jurisdiction because the impugned conduct took place outside the province of British Columbia. He seeks an order setting aside the Commission’s finding that he contravened s. 50(1)(d) along with the monetary sanctions that flow from this finding. [4] The Commission submits that it has the jurisdiction to sanction the appellant because his conduct had a real and substantial connection to British Columbia. [5] For the reasons that follow, I would dismiss the appeal. BACKGROUND [6] To put the parties’ submissions in context, it is first necessary to review the underlying facts. The facts are not in dispute. [7] Mr. McCabe is a British Columbia resident. He is the sole shareholder, director and officer of Jake Landon Publishing Inc. (“Landon”). He has no experience in the securities industry and has never been registered as an investment advisor under the Act . [8] Through Landon, Mr. McCabe published stock recommendations under his own name in a monthly report known as the “Elite Stock Report”. He carried on his business from his home in Abbotsford, British Columbia. [9] Between December 2009 and May 2010, Mr. McCabe wrote and published three reports in the Elite Stock Report promoting shares in Guinness (the “Guinness Tout Sheetsˮ). Guinness is a company incorporated in Nevada. Its shares are quoted on the Over-the-Counter Bulletin Board (the “OTCBB”) in the United States. [10] The appellant wrote each of the Guinness Tout Sheets at his home in Abbotsford. He then emailed a PDF of the documents from his home to a printing company in South Dakota. The Guinness Tout Sheets were printed in South Dakota and distributed by direct mail from South Dakota to approximately three million homes in the United States. There is no evidence that the Guinness Tout Sheets were received, read or known to any person in British Columbia or Canada other than Mr. McCabe. [11] The Guinness Tout Sheets were grossly misleading. They contained false and unfounded claims that Guinness’s mining property had in excess of one million ounces of gold (the “Guinness Misrepresentationsˮ). The Commission found that the Guinness Misrepresentations were intended to significantly increase trading volumes in Guinness shares in order to inflate its stock price. [12] Mr. McCabe prepared the Guinness Tout Sheets at the behest of Mr. Erwin Speckert, who identified himself to Mr. McCabe only as “Erwin” and provided a fax number to which Mr. McCabe was to send his invoices. Mr. McCabe invoiced Emma Marketing Services, Inc., a British Virgin Islands corporation. He was paid a total of $2.65 million for touting Guinness. Mr. Speckert arranged for payment through various offshore companies and a Swiss bank account. The funds were ultimately deposited in Landon’s bank account in Surrey, British Columbia. [13] On March 19, 2010, during the period in which Mr. McCabe was writing and distributing the Guinness Tout Sheets, the Commission issued a Cease Trade Order of Guinness shares for the company’s failure to meet its filing obligations as an OTC reporting issuer in British Columbia. Pursuant to BC Instrument 51-509, Issuers Quoted in the U.S. Over-the-Counter Markets , a company with a connection to British Columbia whose shares are quoted on the OTCBB is deemed to be a reporting issuer under the Act . [14] On July 31, 2012, the Commission issued a notice of hearing alleging in part that Mr. McCabe made misrepresentations contrary to s. 50(1)(d) of the Act . Section 50(1)(d) reads as follows: 50 (1) A person, while engaging in investor relation activities with the intention of effecting a trade in a security, must not do any of the following: (d) make a statement that the person knows, or ought reasonably to know, is a misrepresentation; [15] Around this time, Mr. McCabe’s conduct also came under scrutiny in the United States. The Guinness Misrepresentations were just one aspect of a broader case of alleged misconduct brought by the United States Securities and Exchange Commission (the “SEC”) against Mr. McCabe. [16] Prior to the hearing on liability before the Commission, Mr. McCabe applied for a stay of proceedings in British Columbia on the basis of forum non conveniens , arguing that the United States was the more appropriate forum.  His application was denied: Re McCabe , 2013 BCSECCOM 250. [17] The Commission’s decision on liability was issued on July 8, 2014. Its decision on sanctions followed on December 18, 2014. [18] In the liability hearing, Mr. McCabe argued that the Commission lacked jurisdiction because the Guinness Tout Sheets were only sent to residents of the United States, and Guinness shares were only traded in the United States. The Commission rejected this argument: [128]    This argument overlooks the facts that McCabe, at the time a British Columbia resident, wrote these reports from his home in British Columbia, and received the $5 million in fees for publishing them, in bank accounts he controlled, at least one of which was in British Columbia. [129]    Although the targets of the touting may have been investors in the US, and the companies concerned traded only in the US, McCabe engaged in this misconduct in British Columbia. Tolerance of that misconduct could not help but impugn the reputation of our markets. [19] At paras. 175-177 of its decision on liability, the Commission also stated: [175]    McCabe says that “the alleged misrepresentations only came into existence when they were received and acted upon in the United States and therefore there is no factual basis or jurisdiction” for a finding that McCabe contravened section 50(1)(d). [176]    This argument has no merit.  The executive director proved that McCabe, with the intention of effecting a trade in a security, made untrue statements of material facts about Guinness. That encompasses the entire prohibition contained in section 50(1)(d). [177]    Nothing in section 50(1)(d) says anything about the notion of misrepresentations “coming into existence”, much less a requirement that a misrepresentation be “received” or “acted upon”, in the United States or anywhere else.  McCabe’s suggestions otherwise are baseless inventions. [20] The SEC’s allegations against Mr. McCabe were never adjudicated. On August 13, 2015, without admitting or denying liability, Mr. McCabe consented to the entry of a final judgment against him in the United States. [21] The Commission has brought a new evidence application to introduce the SEC’s settlement with Mr. McCabe as evidence in this proceeding. THE APPEAL A.  Overview [22] While the sole issue on the appeal is whether the Commission had jurisdiction to find that Mr. McCabe contravened s. 50(1)(d) of the Act , this issue requires consideration of the standard of review and the applicable test for determining the scope of the Commission’s jurisdiction. B.  Standard of Review [23] Mr. McCabe submits that the question before the Court is one of correctness. He says that the constitutional applicability of the Act raises a “true” question of jurisdiction. He argues that it can never be reasonable for a tribunal to act beyond the constitutional territorial limits of provincial power. [24] The Commission submits that the appeal does not involve a question of “true jurisdiction” as contemplated by the Supreme Court of Canada in Dunsmuir v. New Brunswick , [2008] 1 S.C.R. 190. It says that Mr. McCabe has conceded the constitutional validity of s. 50(1)(d). It argues that the question in this case concerns the application of s. 50(1)(d) to Mr. McCabe’s conduct. It submits that, as such, the applicable standard of review is one of reasonableness. C.  Test for Determining the Commission’s Jurisdiction [25] Mr. McCabe argues that the Commission’s jurisdiction should be evaluated based on the concept of “constitutional inapplicability”. He submits that, where a provincial statute has extra-territorial effect, the appropriate inquiry is whether a “meaningful connection” exists between the province and the extra-territorial matter in question, and whether applying the statute will respect the legislative sovereignty of other jurisdictions, having regard to the factors set out in Unifund Assurance Co. v. Insurance Corp. of British Columbia , 2003 SCC 40 [ Unifund ]. He also relies on the presumption against the extra-territorial application of legislation. [26] Mr. McCabe submits that the facts of this case do not satisfy the meaningful connection test. He says that the purpose of the Act is to regulate conduct in British Columbia, and the purpose of s. 50(1)(d) is to target misrepresentations concerning securities traded in British Columbia, not misrepresentations by a resident of British Columbia concerning securities traded in other jurisdictions. He argues that no meaningful connection exists between a misrepresentation published outside of British Columbia and the purpose of the Act or the object of s. 50(1)(d). [27] Mr. McCabe points to the torts of misrepresentation and defamation for the proposition that the wrongful act of publication occurs in the jurisdiction where an impugned statement is received and acted or relied upon. Here, he says, publication of the Guinness Tout Sheets occurred in the United States. [28] While Mr. McCabe concedes that the Commission has a broad mandate to protect the capital markets and residents of British Columbia, he submits that its public interest jurisdiction does not extend to specific provisions of the Act . He characterizes the Commission’s findings under s. 50(1)(d) as an instance of jurisdictional overreach that is damaging to the principle of international comity. [29] The Commission submits that the applicable test for determining its jurisdiction is the “real and substantial connection” test. It argues that this test should account for the realities of modern securities trading and regulation, including technology that facilitates multi-jurisdictional securities markets and industries. [30] The Commission argues that a real and substantial connection exists between British Columbia and Mr. McCabe’s conduct which contravened s. 50(1)(d). It notes that Mr. McCabe resides in British Columbia, was contacted by Mr. Speckert in British Columbia, drafted the Guinness Tout Sheets in British Columbia, received payment in British Columbia, and that Guinness is an OTC reporting issuer in British Columbia. On this basis, the Commission submits that its finding of liability under s. 50(1)(d) did not overreach its jurisdiction. It argues that the place where a misrepresentation is received is irrelevant to a finding of liability under s. 50(1)(d). DISCUSSION [31] As set out above, the parties have different views as to the appropriate standard of review. The Commission submits that the appropriate standard ought to be reasonableness, while Mr. McCabe urges that this is a jurisdictional matter which should be reviewed on a standard of correctness. In the circumstances of this case, I need not reach a final determination on the standard of review because I have concluded that the more rigorous standard of correctness is, in any event, satisfied. [32] Modern securities markets are complex and multi-jurisdictional. The Act is regulatory in nature and the Commission is part of a network of administrative bodies that regulate securities markets throughout Canada and other jurisdictions. [33] The Commission plays the central role in the regulation of securities markets in British Columbia and has been granted a wide mandate to do so under the Act . The primary goal of the Act is to serve the public interest in British Columbia by protecting investors, fostering capital market efficiency, and promoting public confidence in the system. The Commission is a highly specialized regulatory tribunal that provides expertise in interpreting and applying the Act , and has broad discretion to determine what is in the public interest with respect to the securities industry. [34] In Unifund , the Supreme Court of Canada held that consideration of a provincial statute’s constitutional applicability can be conveniently organized around the following propositions (at para. 56): 1.         The territorial limits on the scope of provincial legislative authority prevent the application of the law of a province to matters not sufficiently connected to it; 2.         What constitutes a “sufficient” connection depends on the relationship among the enacting jurisdiction, the subject matter of the legislation and the individual or entity sought to be regulated by it; 3.         The applicability of an otherwise competent provincial legislation to out-of-province defendants is conditioned by the requirements of order and fairness that underlie our federal arrangements; 4.         The principles of order and fairness, being purposive, are applied flexibly according to the subject matter of the legislation. [35] The question is whether there is a real and substantial connection, not whether a particular connection is the most real and substantial. This question is to be answered with reference to the regulatory regime at issue, the particular provision being applied, the impugned conduct, and the individual or entity who is subject to the regulatory body. [36] In the context of securities regulation, the Commission’s jurisdiction depends on whether the impugned conduct has a sufficient connection to British Columbia, or, as recently expressed by this Court, there is “a state of facts demonstrating circumstances in which it would be appropriate for a tribunal to take jurisdiction over a legal issue or controversy”: Torudag v. British Columbia (Securities Commission) , 2011 BCCA 458 at para. 19. Whether this connection is termed a “meaningful” one or a “real and substantial” one, the concept is the same: Torudag at para. 19. [37] The analysis of whether a real and substantial connection exists must reflect the realities of modern securities regulation. For instance, conduct involving securities will often be transnational in nature, crossing provincial and state borders. [38] In Gregory & Co. v. Quebec (Securities Commission) , [1961] S.C.R. 584, the Supreme Court of Canada held that the Quebec Securities Commission could order sanctions against a company whose head office and place of business was in Quebec, but who dealt with and mailed promotional bulletins exclusively to persons in other provinces and countries. Fauteux J. for the majority noted at 588: The paramount object of the Act is to ensure that persons who, in the province, carry on the business of trading in securities or acting as investment counsel, shall be honest and of good repute and, in this way, to protect the public, in the province or elsewhere , from being defrauded as a result of certain activities initiated in the province by persons therein carrying on such a business. [Emphasis added.] [39] In R. v. W. McKenzie Securities Limited (1966), 56 D.L.R. (2d) 56 (Man. C.A.), the accused were charged with unlawfully trading in securities contrary to the provisions of The Securities Act , R.S.M. 1954, c. 237. The accused, who were not licensed to trade securities in Manitoba, conducted their business of promoting and selling securities entirely from Toronto by sending letters and making telephone calls to potential investors, including the complainant in Manitoba. The Court of Appeal underlined that an offence could occur in more than one place. At 63, it said: Although offences are local, the nature of some offences is such that they can properly be described as occurring in more than one place. This is peculiarly the case where a transaction is carried on by mail from one territorial jurisdiction to another, or indeed by telephone from one such jurisdiction to another. This has been recognized by the common law for centuries. [40] In R. v. Libman , [1985] 2 S.C.R. 178, the appellant sought to have his committal for trial on multiple counts of fraud and conspiracy to commit fraud quashed on the basis that the alleged offences occurred outside Canada. Pursuant to the appellant’s directions, sales personnel in Toronto telephoned United States residents and attempted to induce them to buy shares in two Central American mining companies. The sales personnel were directed to make material misrepresentations with respect to their identity, where they were telephoning from, and the quality and value of the shares they were selling. As a result of these misrepresentations, a large number of United States residents were induced to buy virtually valueless shares in the mining companies. Their money was sent to Central America where the appellant received his share to take back to Toronto. [41] The Supreme Court of Canada held that the counts of fraud for which the appellant stood charged could be properly prosecuted in Canada. Nothing in the requirements of international comity dictated that Canada should not exercise jurisdiction. Mr. Justice La Forest held that all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting the offence took place in Canada. It is sufficient that there be a real and substantial link between the offence and Canada. [42] In Re Al-tar Energy Corp. , 2010 LNONOSC 406, the respondents were located in Ontario but targeted investors outside of that province. The Ontario Securities Commission (the “OSC”) found that the conduct of the respondents had “significant and substantial connections to Ontario”: para. 52. In determining that it had jurisdiction, the OSC pointed to the fact that (1) the respondents were located in Ontario, (2) their materials and telephone calls to potential investors originated in Ontario, and (3) payments were received by the respondents in Ontario: para. 52. [43] In Crowe v. Ontario Securities Commission , 2011 ONSC 6918, the appellants appealed a decision of the OSC finding them liable for breach of the Securities Act , R.S.O. 1990, c. S.5. They argued that the OSC lacked the jurisdiction to make this finding because the impugned securities were sold only to offshore investors. The appeal was dismissed. The Divisional Court upheld the OSC’s finding that a substantial connection existed between the appellants’ activities and the province of Ontario, and the OSC’s decision to intervene because the appellants’ conduct negatively affected the reputation and integrity of Ontario’s capital markets. In reaching this decision, the Divisional Court said at para. 32: The appellants in the present case focus on the fact that the trades with investors occurred outside the province. However, that does not prevent the Commission from asserting jurisdiction on the facts of the present case. As Gregory makes clear, and contrary to what the appellants assert, a province is not limited to protecting the interests of domestic investors from unfair or fraudulent activities. Provincial securities legislation can also be applied to regulate corporations or individuals within the province in order to protect investors outside the province from unfair, improper or fraudulent activities. Where the Commission is regulating trades that have an extraprovincial character, the question is not the location of the investors; rather, it is whether there is a sufficient connection between Ontario and the impugned activities and the entities involved to justify regulatory action by the Commission. [Emphasis added.] [44] This Court recently considered the scope of the Commission’s jurisdiction in Torudag , in the context of insider trading. The Commission found that the appellant, who was not a resident of British Columbia, used insider information to buy shares in a company listed on the TSX Venture Exchange, contrary to s. 86 of the Act . Many of the sellers were residents of British Columbia. The appellant argued, as in this case, that the Act was constitutionally inapplicable to the impugned conduct by reason of extra-territoriality. This Court held otherwise, finding that the circumstances disclosed a real and substantial connection to British Columbia and that no error had been demonstrated in the Commission’s decision to take jurisdiction. In its analysis, the Court noted at para. 27: The Commission has the responsibility to regulate the activities of the Exchange to provide protection to the investing public. This responsibility includes the duty to ensure “a level playing field” for investors in exchange traded companies. Allowing the misuse of insider information to skew fairness in the trading arena is inimical to the operation of a fair and orderly market in securities. [45] The allegations in this case concern a breach of s. 50(1)(d) of the Act , the material elements of which are: (a) “the intention of effecting a trade”; (b) “must not … make a statement”; (c) “that the person knows, or ought reasonably to know”; (d) “is a misrepresentation”. [46] Section 1(1) of the Act defines “misrepresentation” as including “an untrue statement of a material fact” and defines “material fact” as “a fact that would reasonably be expected to have a significant effect on the market price or value of the securities”. The Commission found that the Guinness Misrepresentations were untrue statements of a material fact. It also found that Mr. McCabe wrote and caused the Guinness Tout Sheets to be distributed from his home in British Columbia with the clear intent to effect a trade in Guinness shares. [47] While the appellant asserts that the Act should be interpreted as containing language that limits its geographical applicability, s. 50(1)(d) does not contain any such language. I note that the Act does not include reference to when a misrepresentation comes into existence, nor does it specify that a misrepresentation must be received or acted upon. The material element under s. 50(1)(d) is the making of the statement. [48] The appellant, relying on the law of both misrepresentation and defamation, argues that the wrongful act of publication only occurs where a statement is read or acted upon, not where it is written, because publication is incomplete until a statement is consumed by a recipient. With respect, this analogy to tort law is not apt. Tort law is intended to protect individuals who have been injured by the conduct of another. Generally speaking, a tort cannot be committed in a vacuum and there must be a victim who has been harmed. The Act , however, is regulatory in nature. One of its central functions is to regulate conduct, not remedy harm to victims. Under s. 50(1)(d), the offence is committed when the statement is made. [49] I agree with the Commission’s finding that the evidence discloses a real and substantial connection between the impugned conduct and British Columbia. The Guinness Tout Sheets were written in British Columbia, by a resident of British Columbia, who was paid in British Columbia for his services. I find that the Commission was correct in its analysis of the relevant factors going to jurisdiction. I see no basis to interfere with its decision to take jurisdiction under s. 50(1)(d). [50] I would dismiss the appeal. [51] In the circumstances, it is not necessary to deal with the Commission’s new evidence motion. “The Honourable Mr. Justice Goepel” I AGREE: “The Honourable Mr. Justice Tysoe” I AGREE: “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Kondor v. Shea, 2016 BCCA 15 Date: 20160111 Docket: CA42577 Between: Bernadette Kondor Appellant (Plaintiff) And Dylan Shea and Lori Shea Respondents (Defendants) Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Lowry The Honourable Mr. Justice Fitch On appeal from: an order of the Supreme Court of British Columbia, dated January 22, 2015 ( Kondor v. Shea , Vancouver Registry no. M114203) Oral Reasons for Judgment Counsel for the Appellant: D.W. Grunder Counsel for the Respondent: D.H. Taylor Place and Date of Hearing: Vancouver, British Columbia January 11, 2016 Place and Date of Judgment: Vancouver, British Columbia January 11, 2016 Summary: Appeal by the plaintiff of an order made by the trial judge after judgment denying her the costs of two interlocutory applications. Held: appeal allowed. The costs of the two applications were effectively awarded to the plaintiff by the master who heard them. It was not open to the judge to deny the plaintiff those costs. [1] LOWRY J.A. : The question on this appeal, for which leave has been granted, is whether an order made by the trial judge with respect to the costs of two interlocutory applications heard by a master in the course of the litigation of the action can be upheld. [2] The action is one brought by the plaintiff against the defendants for personal injury suffered in a motor vehicle accident. A short time before trial and outside of the time limit provided by the rules to serve an expert’s report, the defendants applied for an order requiring the plaintiff to attend an independent medical examination. The master dismissed the application. The order made no provision for costs. The defendants subsequently applied for an adjournment of the trial and again for an order requiring the plaintiff to attend an independent medical examination. The master dismissed that application as well. His order provided the plaintiff “is entitled to the costs of this application in the cause”. Neither order was appealed. [3] Following a nine-day trial, the judge made a substantial award of damages. He concluded his reasons, 2014 BCSC 2146, by stating the plaintiff was “entitled to costs at Scale B” meaning of course the costs of the action apart from such costs as may have already been awarded in the course of the litigation of the action. He gave direction for written submissions in the event that any offers of settlement that may have been made were relevant to the costs awarded. [4] Thereafter, the plaintiff made application with respect to costs unrelated to offers of settlement. She sought an order awarding her costs of a second counsel at trial. The defendants then applied for the costs of the two applications heard before the master with respect to an independent medical examination. On hearing counsel, the judge made an order providing the plaintiff was “not entitled” to the costs of a second counsel, nor of the two applications heard before the master. [5] The plaintiff does not challenge the order with respect to the costs of a second counsel but contends that, given the provisions of the master’s two orders, the judge was precluded from depriving her of the costs of either application, although her counsel accepts that was not the position taken before the judge where the plaintiff’s entitlement to costs was argued on its merits. The defendants maintain the rules afford the trial judge both the jurisdiction and the discretion to deprive the plaintiff of the costs of the interlocutory proceedings as he saw fit. The defendants rely on Rules 14(1)(14) and (15) of the Supreme Court Civil Rules but those rules have no application in the circumstances because the orders the master made effectively disposed of the costs of the applications in favour of the plaintiff. [6] Under the heading “Costs of applications”, Rule 14-1(12) provides: (12)      Unless the court hearing an application otherwise orders, (a)     if the application is granted, the party who brought the application is entitled to costs of the application if that party is awarded costs at trial or at the hearing of the petition, but the party opposing the application, if any, is not entitled to costs even though that party is awarded costs at trial or at the hearing of the petition, and (b)     if the application is refused, the party who brought the application is not entitled to costs of the application even though that party is awarded costs at trial or at the hearing of the petition, but the party opposing the application, if any, is entitled to costs if that party is awarded costs at trial or at the hearing of the petition. [7] With respect to the first of the master’s two orders, which makes no provision for costs, it is clear Rule 14-1(12)(b) applies such as to entitle the plaintiff to her costs of the first application. The master, being by definition (Rule 1.1(1)) the “court hearing an application”, made no order as to costs. The application was refused. The plaintiff, being the party who opposed the application, is “entitled to costs” because she was awarded costs at trial to be taxed on Scale B. [8] There is no basis on which it can be said to have been open to the judge to make an order providing the plaintiff is not entitled to costs to which under the rules she is entitled. The rules must govern. [9] With respect to the second of the master’s two orders, which provides the plaintiff is entitled to costs of the application in the cause, it is clear the order the master made has the same effect as Rule 14-1(12)(b). Having successfully opposed the application, the plaintiff was entitled to costs if, but only if, she succeeded at trial such that the cause was resolved in her favour. She was not awarded costs in any event of the cause, as is sometimes the case, but was to be entitled to costs of the application provided her action was not dismissed. [10] Thus, again, it was not open to the judge to deprive the plaintiff of the costs she had been awarded by the master upon her action succeeding. [11] The judge was not hearing an appeal of the master’s orders that would have permitted him to consider whether the master had in some way erred in making one or both of his orders. Further, the master did not refer the costs of the applications to the judge as may be appropriate in some circumstances. There was then no place for the judge’s intervention. [12] It follows that I would allow the appeal and set aside the judge’s order depriving the plaintiff of her costs of the two applications heard before the master. I would substitute an order dismissing both the plaintiff’s application for the costs of a second counsel and the defendants’ application for costs of the two applications heard before the master. Given the divided success on the cross applications heard before the judge, I would order that each party bear the costs of their applications before him. [13] I would award the plaintiff her costs of the appeal. [14] SAUNDERS J.A. : I agree. [15] FITCH J.A. : I agree. [16] SAUNDERS J.A. : The appeal is allowed in the terms described by Mr. Justice Lowry, and the plaintiffs shall have the costs of the appeal. “The Honourable Mr. Justice Lowry”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Magdalena v. Vancouver Coastal Health Authority, 2016 BCCA 16 Date: 20160111 Docket: CA42500 Between: Gavrieal Magdalena, also known as Keyvan Economi Appellant (Plaintiff) And Vancouver Coastal Health Authority, operating a Public Hospital under the name and style of Vancouver Hospital and Health Sciences Centre U.B.C. site, and Dr. Andrzej Buczkowski Respondents (Defendants) Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Lowry The Honourable Mr. Justice Fitch On appeal from: an order of the Supreme Court of British Columbia dated December 11, 2014 ( Magdalena v. Vancouver Coastal Health Authority , Vancouver Registry No. S106678) Oral Reasons for Judgment Appellant appearing In Person: Counsel for the Respondent: J. Woznesensky Place and Date of Hearing: Vancouver, British Columbia January 11, 2016 Place and Date of Judgment: Vancouver, British Columbia January 11, 2016 Summary: The appellant appeals the dismissal of his action following a summary trial. The appellant alleged that the advice given to him during a pre-surgical medical consultation was negligent. The appellant’s action was dismissed because he failed to adduce expert evidence concerning the standard of care that the respondent failed to meet and he failed to adduce any evidence that his current difficulties were caused by the surgery. Held: Appeal dismissed. The summary trial judge correctly held that the appellant’s failure to adduce expert evidence regarding the applicable standard of care was fatal to his claim. [1] FITCH J.A. : The appellant, Gavrieal Magdalena, appeals the dismissal of his action following a summary trial heard December 11, 2014. [2] The respondent is a general surgeon. He removed the appellant’s gallbladder in a surgical procedure performed October 10, 2008. Since that procedure, the plaintiff says he has suffered from chronic diarrhea and related symptoms that have substantially reduced his quality of life. [3] The action arose not out of the surgery itself, but out of a pre-surgical medical consultation that occurred on September 19, 2008 in the respondent’s office. [4] The appellant alleged that the advice given to him during the pre-surgical consultation was negligent. Specifically, the appellant alleged that the respondent: (1) failed to inform him of other less invasive forms of treatment that could have relieved or significantly alleviated his pain, including lithotripsy, a procedure in which ultrasound is used to break up gallstones into smaller particles that can be passed by the body; and (2) failed to correctly inform him of the long-term risks associated with gallbladder removal, including chronic diarrhea and loss of the ability to control bowel functions. [5] The appellant’s action was dismissed primarily on two grounds. First, he failed to adduce any evidence that the respondent failed to meet the standard of care applicable in the circumstances. Second, he failed to adduce any evidence that his current difficulties were caused by the surgery. [6] The appellant submits that the summary trial judge erred in a number of ways, including by: 1. Finding that it was necessary for him to tender expert evidence to prove his claim; 2. Refusing to grant him leave to cross-examine the respondent’s expert on a report prepared by the expert and filed pursuant to Rule 9-7(5) Supreme Court Civil Rules ; 3. Finding that portions of the affidavit evidence relied on by the appellant were inadmissible; 4. Giving too much weight to the pre-surgical consent form signed by the appellant on September 19, 2008 and insufficient weight to his evidence about the discussions he had with the respondent at the time of the initial consultation and on the day of the surgery; 5. Finding there was no evidence upon which a reasonable conclusion could be reached that, with more time, the appellant would be in a position to put evidence before the court in support of his claims; 6. Making a final order without being satisfied that s. 5 of the Health Care Costs Recovery Act , S.B.C. 2008, c. 27 had been complied with; and 7. Failing to recognize the significance of the potential evidence that might be given by the only other person present at the time of the pre-surgical medical consultation - a medical student working in the respondent’s office. [7] The procedural history of this matter and background facts may be briefly stated. [8] Before being referred to the respondent by his family doctor, the appellant had been experiencing very painful epigastric symptoms that, on at least one occasion, led to his hospitalization. [9] In August 2008, he was diagnosed with gallstones and referred to the respondent for a surgical consultation. [10] That consultation occurred September 19, 2008. [11] It is common ground that the respondent told the appellant lithotripsy was not a reasonable option for him. The respondent deposes that lithotripsy was not an accepted treatment for the management of symptomatic gallstone disease in 2008. His evidence on this point is confirmed by the evidence of the respondent’s expert who said in his report that the routine treatment of gallstones with lithotripsy was abandoned in British Columbia more than 25 years ago due to complications arising from that procedure. [12] The appellant and respondent provided different accounts about the discussions they had concerning the risks and post-surgical complications that could potentially arise following removal of the gallbladder. On examination for discovery, the appellant agreed the respondent told him that removal of the gallbladder can result in a change in bowel functions but that it normally lasts for no longer than about six months. The appellant says he was told that a very small percentage of patients, mostly older people, have long-lasting bowel complications, but that it was very unlikely he would experience post-surgical symptoms of this kind. In his affidavit filed for use on the summary trial application, the appellant deposed that the respondent told him the only possible side effect of the surgery would be diarrhea for three to six months, that this was an extremely remote possibility which affected one in 1,000 patients, and that it would never happen to him. [13] The respondent deposed he told the appellant he could experience post-surgical bloating and diarrhea-like symptoms but that this normally resolves within three to six months. He said he also told the appellant that a small percentage of patients may experience diarrhea for longer than six months. [14] Following the pre-surgical consultation, the appellant signed a generic consent form agreeing to the surgery. The consent form did not address risks specifically associated with gallbladder removal. [15] The appellant underwent the surgical procedure on October 10, 2008. He says he attempted to alert the respondent to his ongoing concerns on the date of the surgery but by the time the respondent arrived to perform the procedure he was heavily sedated. [16] The appellant commenced the action on October 8, 2010. [17] Beginning in June 2012, and on multiple occasions thereafter, the respondent’s lawyer gave notice to the appellant’s lawyer and to the appellant personally, that expert evidence respecting the applicable standard of care was required and that if the appellant failed to produce such evidence, the respondent would bring a summary trial application to have his claim dismissed. [18] In July 2012, the action was, by consent, dismissed against the defendant, the Vancouver Coastal Health Authority. [19] On July 4, 2013 the respondent filed a notice of trial setting the trial for January 26, 2015. The deadline for the exchange of expert reports was November 2, 2014. [20] On September 17, 2013 the respondent served a supportive expert report on the appellant. [21] The parties agreed that the respondent’s proposed summary trial application would be set down for hearing on August 22, 2014. [22] In late June and early July of 2014, the appellant’s lawyer took steps to withdraw as counsel of record. [23] On July 7, 2014, the appellant was personally served with notice of the respondent’s summary trial application. [24] On August 22, 2014 the respondent’s summary trial application was adjourned at the appellant’s request on the basis that he was unrepresented and seeking legal counsel. The matter was reset for November 10, 2014. On the return date, the matter was again adjourned at the appellant’s request to December 11, 2014. This date was marked as being peremptory on the appellant. [25] On December 3, 2014 the appellant sent an email to counsel for the respondent requesting that the respondent’s expert witness attend for cross examination at the summary trial. [26] The appellant did not file a response to the summary trial application but did file affidavits on December 8 and December 10, 2014. The appellant did not file an application for leave to cross-examine the respondent’s expert in advance of the return date, nor did he seek a further adjournment of the summary trial application. [27] The appellant did not tender any expert opinion evidence to support his claim that the respondent failed to meet the applicable standard of care. The appellant attached some medical records to his affidavit, including a consultation report from a specialist that was sent to his family physician. That report did not comply with Rule 11-6 and did not, in any event, opine on the standard of care governing the respondent in his pre-surgical consultations with the appellant. The appellant also filed some of his own internet research and summaries of what he said other health professionals had told him about the risks associated with gallbladder surgery. [28] Relying on the respondent’s examination for discovery, the respondent’s expert concluded that the respondent appropriately discussed with the appellant the risks associated with gallbladder removal in the consultation of September 19, 2008. [29] The respondent’s counsel alerted the summary trial judge to the appellant’s request that the respondent’s expert be made available for cross examination on the summary trial application. The summary trial judge ruled that the appellant did not have a right to cross-examine the respondent’s expert in the absence of his own expert report that could provide a basis for informed cross-examination. In coming to this conclusion, the summary trial judge relied on Tripp v. Ur , 2013 BCSC 785 at paras. 13-14 and Mikhail v. Northern Health Authority , 2010 BCSC 1817 at para. 85. [30] The summary trial judge gave these reasons for allowing the respondent’s application for dismissal of the appellant’s action: [31]      In order to succeed in this case Mr. Magdalena must first prove that Dr. Buczkowski failed to meet the appropriate standard of care. The test is conveniently summarized by Mr. Justice Savage in Tripp v. Ur , 2013 BCSC 785, at paragraphs 30 and 31… . In medical negligence cases the court must judge a physician, and, for that matter, other health professionals, based on the standard of an ordinary average specialist in the same field under similar circumstances. Except, perhaps, in the most obvious of cases, it is not a standard that can be determined a priori or in an evidentiary vacuum by a court or tribunal. It is therefore incumbent on the plaintiff to produce expert evidence of a standard of care that should be imposed on the defendant or the defendants. [33]      In this case, the due date for delivery of any expert reports in connection with the January 26, 2015 trial date was November 2, 2014. No report has been delivered by Mr. Magdalena by the due date or in response to the summary trial application. Although Mr. Magdalena has had several years, for most of which he was represented by counsel, to assemble opinion evidence to support his case, and ample notice of Dr. Buczkowski’s intention to seek dismissal on a summary trial, Mr. Magdalena did not submit any expert evidence going to the key issue of standard of care. He did not submit any expert evidence diagnosing his current medical condition or conditions and linking those conditions in any way to the events involving Dr. Buczkowski in 2008. [34]      There is no opinion evidence on Mr. Magdalena’s side from which I can conclude that he would or might have been a suitable candidate in 2008 for lithotripsy rather than laparoscopic cholecystectomy, or that in his handling of Mr. Magdalena’s case, Dr. Buczkowski failed to meet the standard of care of a surgeon practising in British Columbia in 2008, or that any of Mr. Magdalena’s current problems are likely caused by or the result of negligence on the part of Dr. Buczkowski. [35]      Mr. Magdalena also did not submit any evidence based on which I could reasonably conclude that, with more time, he would or even might be in a position to put evidence before the Court to support his claims. [38]      In this case, like in Tripp , Mr. Magdalena has not met the evidentiary burden on him to adduce evidence of the standard of care that Dr. Buczkowski failed to meet. The courts have indicated clearly that the burden is on the plaintiff to prove that the defendant doctor fell below his or her required standard of care and to provide evidence to support those allegations. That simply has not been done in this case. [39]      Dr. Buczkowski has gone the extra step of providing evidence, in the form of Dr. Turner’s opinion, to show that the standard of care has been met, and there is no admissible evidence to the contrary. The failure of Mr. Magdalena to present any expert evidence that Dr. Buczkowski failed to meet the standard of care required of him is fatal to Mr. Magdalena’s case. [40]      The action is therefore dismissed against Dr. Buczkowski with costs. [31] With respect to the appellant’s first ground of appeal, the onus was on him to establish the respondent failed to meet the standard of care expected of an ordinary competent surgeon practicing in British Columbia in 2008 in similar circumstances. Subject to narrow exceptions not applicable to this case, courts have consistently insisted that claims of negligence in diagnosis and treatment, including the disclosure of risks, cannot be established in the absence of expert evidence: ter Neuzen v. Korn , [1995] 3 S.C.R. 674 at paras. 33 and 40; Reibl v. Hughes , [1980] 2 S.C.R. 880 at 895. In my view, the summary trial judge correctly held that the appellant’s failure to adduce this evidence on the summary trial application was fatal to his claim. In addition, I am of the view that the summary trial judge correctly held that the appellant’s failure to adduce any admissible evidence to establish that his current complaints are the result of the surgery performed by the respondent was also fatal to his claim. [32] With respect to the appellant’s second ground of appeal, the summary trial judge concluded that the appellant failed to file an expert report which could provide a basis for informed cross-examination, and failed to show that the proposed cross-examination could benefit his case. She accordingly denied the appellant’s oral request to cross-examine the respondent’s expert. The appellant asserts that he had a right to cross-examine the respondent’s expert. He did not. The summary trial judge was obliged to exercise her discretion in considering whether to grant leave to the appellant to cross-examine the respondent’s expert. That discretion is embedded in the language of Rule 9-7(12). In my view, the appellant has not shown that the summary trial judge erred in the exercise of her discretion in relation to this issue. [33] I will deal with the remainder of the appellant’s grounds of appeal together. The summary trial judge correctly ruled that some of the evidence sought to be adduced by the appellant was inadmissible hearsay, while other portions of the evidence he sought to rely on could not be admitted as opinion evidence because it was hearsay and because it had not been tendered by a qualified expert in admissible form. The summary trial judge was fully aware that the specific risks associated with gallbladder removal were not identified on the consent form. There was no error in the summary trial judge’s determination that the appellant led no evidence upon which she could reasonably conclude that, if given more time, he would be in a position to put evidence before the Court to support his claim. Specifically, the appellant has not shown that the summary trial judge erred in the exercise of her discretion by determining to proceed with the summary trial application on the basis of the material before her. With respect to the appellant’s assertion that the summary trial judge failed to appreciate that significant evidence might be given by the respondent’s medical student, it was the appellant’s obligation to secure that evidence if he thought it to be critical to the resolution of the summary trial. Further, the summary trial judge was aware of the evidence that medical student might give. There is no evidence that the student could speak to the standard of care or causation issues or that her evidence would in any way benefit his case. [34] Finally, I cannot give effect to the appellant’s argument that the alleged failure to give proper notice under s. 5 of the Health Care Costs Recovery Act is a basis upon which the appeal should be allowed in this case. This issue was not argued before the summary trial judge. While that fact is not necessarily fatal to this submission, particularly if it is alleged there has been a miscarriage of justice in respect to it, the failure to raise this issue with the judge means there is no evidence in the record of written advice to the government of the application which would establish s. 5 was satisfied. We are informed by counsel for the respondent, and I accept her statement given as an officer of the court, that such written advice was given. Thus, the failure to raise the issue before the judge has resulted in an incomplete record, which militates against entertaining the submission. Alternatively, we could take it, on the advice of counsel, that the section was satisfied. Either way, this ground of appeal does not provide a basis upon which to interfere with the order. Last, I would observe that the purposes underlying the Act are to protect government in collecting health care costs paid by them following a finding of wrongdoing. Those interests are not directly engaged in the circumstances of this case - in other words, the substance of the order appealed is not affected by any notice issue with the government. [35] For the foregoing reasons, I would dismiss the appeal. [36] SAUNDERS J.A. : I agree. [37] LOWRY J.A. : I agree. [38] SAUNDERS J.A. : The appeal is dismissed. “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Nixon v. MacIver, 2016 BCCA 8 Date: 20160111 Docket: CA41765 Between: William Nixon and Carol Nixon Appellants (Plaintiffs) And Marsali MacIver Respondent (Defendant) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice D. Smith The Honourable Madam Justice MacKenzie On appeal from:  An order of the Supreme Court of British Columbia, dated March 28, 2014 ( Nixon v. MacIver , 2014 BCSC 533, Kelowna Docket No. S68661). Counsel for the Appellant: T. McCaffrey Respondent Appearing in Person: M. MacIver Place and Date of Hearing: Vancouver, British Columbia October 29, 2015 Place and Date of Judgment: Vancouver, British Columbia January 11, 2016 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Madam Justice Saunders The Honourable Madam Justice MacKenzie Summary: The appellants were looking to purchase a house that was five to six years old. They entered into a contract of purchase and sale with the respondent that included a property condition disclosure statement. The disclosure statement included a question as to the age of the roof. The respondent answered it was six years old. The contract also contained a subject clause for the benefit of the appellants that required them to obtain a professional home inspection before completing the purchase. The appellants waived the clause. After the purchase completed, the appellants learned that six years earlier the house had been constructed by incorporating a cabin from elsewhere into a newly constructed foundation and lower level, and that the roof of the cabin was not replaced when the lower level was roofed. The respondent experienced no problems with the roof. The appellants commenced the underlying action, seeking rescission of the contract or alternatively damages for fraudulent misrepresentation, negligent misrepresentation and breach of contract. The trial judge dismissed their claims. On appeal, the appellants submitted the judge made errors of fact and law that affected his disposition of their claims. Held: Appeal dismissed. The respondent considered the house to have been constructed six years prior, assumed a new roof had been placed over the whole of the new structure at that time, and experienced no problems with the roof. The doctrine of caveat emptor applies in B.C., subject to exceptions, one of which is the duty on vendors to disclose latent defects which render the property dangerous or uninhabitable. No latent defects existed therefore caveat emptor applied and the purchaser bore the risk for any defects in the quality of the property. As to disclosure statements, vendors are only obliged to disclose their current knowledge of the state of affairs of the property in order to put prospective purchasers on notice of any current known problems. They do not have to provide detailed comments beyond their answers to the specific question posed. The judge found the respondent honestly answered the question with respect to the age of the roof based on her actual knowledge of the current state of affairs and thus she fulfilled her obligation. Reasons for Judgment of the Honourable Madam Justice D. Smith: Overview [1] The appellants, William and Carol Nixon, were in their 60s and looking to buy a house that was no more than five or six years old. On May 30, 2004, they entered into a contract of purchase and sale with the respondent, Marsali MacIver (the “Contract”). Ms. MacIver owned residential property at “Killiney Beach” in a rural area in the Regional District of Central Okanagan. On the property was a house. The MLS listing described the house as having been built in approximately 1998. The Contract incorporated a property condition disclosure statement (“PCDS”) that was completed by the respondent. In answer to a question on the age of the roof, the respondent indicated six years. The Contract was also subject to the condition that the appellants obtain a professional home inspection before completing the purchase. They chose not to do so and deleted that subject clause before executing the Contract. [2] After they took possession, the appellants had issues with the house. In particular, they learned that the owners previous to the respondent had built the house in 1998 by incorporating an older cabin from elsewhere into to a newly constructed foundation and lower level. The cabin was placed on top of the lower level and became the second floor of the home with half the footprint of the lower level. [3] On June 30, 2005, the appellants commenced the underlying action against the respondent and the realtor. In the action they applied for rescission of the Contract or alternatively damages for fraudulent misrepresentation, negligent misrepresentation, and breach of contract. They alleged Ms. MacIver deliberately concealed what they claimed were latent defects in the house and that she misrepresented the age of the home and the age of the roof. [4] There were extensive delays in their prosecution of the action. Twice the appellants amended their pleadings. In due course they settled with the realtor. On September 10, 2013, a five-day trial commenced before Mr. Justice Betton. At its conclusion, the judge found the appellants had failed to prove any of the essential factual assertions necessary to establish their claims and he dismissed all of them. See Nixon v. MacIver, 2014 BCSC 533. [5] On appeal, the appellants submit the judge made errors of fact and law that affected his disposition of their claims. The respondent submits the judge made none of the errors alleged and correctly found that she had fulfilled her obligations under the Contract. I am of the view that for the reasons below, the appeal should be dismissed. Background [6] The respondent purchased the property from Ron and Nalda Hughes in 2000. In 1998 the Hughes began the process of constructing a house on the property. The trial judge described that process as follows: [4]        …The project involved moving a seasonal dwelling or cabin from another location in the general vicinity of the Property and incorporating it into the construction of a larger home. In very general terms, the construction involved building a foundation and lower floor onto which the cabin was placed. The cabin essentially became the second/upper floor of the new structure. [7] The new structure included the foundation and first floor (sometimes referred to as the “basement” or “lower level”) with the incorporated cabin as the second floor. The cabin was of unknown age. Its footprint was about half the size of the habitable area of the final structure. A new roof extended over the newly constructed lower level. The roof over the incorporated cabin was not replaced. The new structure was completed in 1999. After obtaining all the necessary permits and inspections, the Hughes took occupancy in July 1999. [8] In 2000 the Hughes sold the property to the respondent. She was a first time owner. During the course of their dealings, the Hughes provided the respondent with a December 3, 1998 appraisal of the property. The appraisal included a notation that estimated the year the house was built as “1993/Bsmt. 1998”; the “effective age” of the house as “5 years”; and under “comments” noted: “Cabin moved [on]to new concrete foundation and basement fully developed with good quality workmanship and materials. Average services and extras for the area. House in good condition.” [9] The respondent testified that she bought the two-storey, two bathroom house knowing that a cabin had been moved to the property and incorporated into the construction of the final house. She said that she considered the house to have been built in 1998 and assumed the entire structure had received a new roof at that time. She described the house as “a lovely little place”, that was well-built, and in which she was “very happy”. She said that she experienced no problems with the house or with the roof. Other witnesses, including Mr. Nixon, observed that all of the roofing appeared to be of the same age and condition. In 2003 she listed it for sale and listed it again in 2004. Her listing agent on both occasions was David Deshane. [10] Mr. Deshane was familiar with the property including the interior of the home. He had viewed it before the 2004 listing on at least ten occasions. He described the property as “a very pretty place, very nicely situated on a nice piece of land adjacent to the beach in a very quiet, attractive neighbourhood”. He described the house as “very clean, but [having] a lot of incomplete items” such as kitchen cabinets, unfitted countertops, and lack of covering over the plumbing cleanouts. He observed no differences between the upper and bottom levels of the house. [11] In the MLS listing, Mr. Deshane noted that the dwelling was built in “1998 approximate”. He based that on information he said was provided to him by the respondent and that he verified through the MLS system. No evidence was led on his discussion with the respondent on the age of the home or the nature of his inquiries with the MLS system. He explained that he inserted the word “approximate” as a matter of practice because frequently there is a window of time between the start of a construction project and the issuance of the final occupancy permit. [12] On cross-examination, the respondent agreed that she had reviewed the information in the MLS listing and confirmed that it was correct. She testified that she told the appellants that a cabin had been incorporated into the larger structure however the appellants denied they were so advised. The judge made no finding on that disputed evidence. [13] The appellants viewed the property on two occasions before executing the Contract. They did not obtain a professional home inspection and deleted the clause in the Contract that expressly required one before executing the Contract. The trial judge found that the appellants were satisfied with the property, stating: [19]      …Mr. Nixon was satisfied that the overall presentation of the Property was consistent with his expectations regarding age. He concluded from viewing that everything appeared to support the indication that the home was six years old and that it was well-built. He described it as “very appealing” and “what we were looking for”. He specifically noted that the roof appeared to be a six year old roof noting that the top part of the roof was not visible without using a ladder. [14] A day after taking possession, the appellants discovered a set of blueprints for the 1998 construction of the house. The plans indicated that a foundation was constructed, on top of which a lower floor was built and the older cabin was placed in specie onto the lower level of the new structure. The plans also indicated that a new roof had been installed on the lower level addition that extended beyond the second level, but not over what had been the cabin. This led the appellants to investigate the files in the possession of the regional district relating to the property. Their investigation confirmed that the second floor of the house was an older cabin that had been incorporated into the larger newer structure. [15] The appellants also had complaints about the condition of the house, which they attributed to the incorporation of the cabin into the construction of the residence. At trial, considerable time was spent reviewing these complaints, all of which the judge found were patent defects that would have been discoverable had the appellants undertaken a professional home inspection before executing the Contract. Applying the doctrine of caveat emptor, which I shall discuss further below, the judge dismissed the appellants’ claims with respect to these “problems” and no appeal is taken from those findings. [16] In the action the appellants claimed that the respondent deliberately concealed, and fraudulently or alternatively negligently misrepresented, the age of the house and the roof. They applied for rescission of the Contract or in the alternative damages for misrepresentation and breach of contract. [17] The judge dismissed the claim with respect to the age of the house. He found that the reference in the MLS listing to the house having been built in 1998 was not “untrue, inaccurate or misleading”. He stated: [75]      … At its completion, the residence was an entirely different structure in size and appearance from the cabin that it incorporated. It was an entirely new structure on the Property. It was not “untrue, inaccurate or misleading” to use the year 1998 as the year built. The inclusion of the word “approximate” only strengthens this conclusion. It does not matter what Mr. Deshane’s reasons for including the word “approximate” were since they were not known to the plaintiffs or the defendant. That is the year in which the structure as it exists today was, in fact, built. That is not to say that it would be unreasonable to describe the year built differently, but a failure to do so is not fraudulent or negligent. [18] The judge went on to find that, in any event, it was Mr. Deshane, not the respondent, who made the statement in the MLS listing that the house was built in approximately 1998, based on his inquiries with the respondent and the MLS system. [19] The judge also rejected the appellants’ claim that the respondent had a positive obligation to disclose in the PCDS that the house had been constructed by the incorporation of an older cabin into a newer structure. He found there was no obligation on the respondent to disclose this information as it was not specifically requested for in the PCDS. On this issue he explained: [81]      In my view, to impose such an obligation would be to drastically and inappropriately alter the law that has developed regarding the PCDS and in respect of sales of real property generally. The general principle of caveat emptor referred to above would essentially be replaced by an obligation on the part of vendors to articulate every conceivable issue that might exist in respect of a property. [20] He also noted that the appellants had not asked the respondent any questions about the construction of the house and had made no inquiries of the regional district about the property and its residence in advance of their purchase. [21] Last, the judge found that the respondent did not knowingly misrepresent the age of the roof in the PCDS as six years, as she honestly believed that statement was “an accurate statement at the time she made it” (at para. 97). This finding followed from the judge’s finding that the respondent reasonably believed that the house she purchased from the Hughes in 2000 was constructed by them in 1998. Issues on appeal [22] The appellants advanced the following grounds of appeal: 1.       The trial judge erred in law in failing to conclude that the respondent negligently or fraudulently misrepresented the age of the dwelling; 2.       The trial judge erred in law by failing to conclude that the respondent misrepresented by omission, either negligently or fraudulently, material information with respect to (i) the age of the cabin that was incorporated into the newer structure, or (ii) that the older cabin was moved to the property where it was incorporated into the newer construction; and 3.       The trial judge erred in fact and law by not concluding that the respondent breached the Contract by misrepresenting the age of the roof on the dwelling as being six years old. Discussion [23] At the heart of this dispute, in my view, is the characterization of the house that was constructed by the Hughes in 1998. [24] The trial judge found as a fact that when the respondent purchased the house in 2000, she viewed the integrated house that was completed in 1999 as a new structure, that she made no inquiries about the age of the cabin roof as she “didn’t care”, and that she assumed the roof was about six years old when she completed the PCDS in 2004. The judge found that the respondent’s perception of the age of the house when it was constructed was a reasonable one. [25] The appellants say this finding amounts to a palpable and overriding error of fact because it ignores or gives insufficient weight to the incorporation of the older cabin into the newer structure. If the house had been properly characterized as a mixture of old and new, the appellants submit the judge would have had to find that the statement in the MLS listing, that it was built in approximately 1998, amounted to a negligent or fraudulent misrepresentation. Similarly, they submit the respondent misrepresented the age of the roof as six years, when it was in part six years (in 1998) and in part substantially older (being the unknown age of the cabin). [26] With respect, I cannot agree. A structure is variously defined as “the arrangement of and relations between the parts of something complex”, and “a building or other object constructed from several parts” ( The Concise Oxford English Dictionary (2008), 11d ed. at 1431). [27] The trial judge accepted the respondent’s evidence that she considered the house to have been constructed by the Hughes in 1998 as before that date there was no house on the property. Over the following year, the Hughes assembled together several parts to create the house that now sits on the property. The fact that the integrated house included some old and some new parts did not detract from the judge’s finding that the final structure was a dwelling that was constructed between 1998 and 1999. In my view, there was an evidentiary basis for this finding and for the judge’s finding that the respondent honestly believed the house was built in 1998. [28] Similarly, the judge accepted the respondent’s evidence that she assumed that the Hughes had placed new roofing over the whole of the completed structure. The age of the roof was not an issue for her when she purchased the house. She said she didn’t care about the roof, had never experienced any problems with it and made the assumption that it was of a similar age as that of the house. This evidence was accepted by the judge and provided the evidentiary basis for his finding that the respondent’s statement in the PCDS regarding the age of the roof was honestly held. [29] In my respectful view, the appellants are unable to demonstrate any palpable and overriding error with respect to either of these findings, both of which are grounded in evidence accepted by the judge. Accordingly, both are entitled to deference. [30] This brings me to the novel aspect of the appellants’ claims, namely that there was a positive obligation on the respondent when completing the PCDS to include comments about the property that extended beyond the specific questions in the disclosure statement. The doctrine of caveat emptor and the obligation to disclose [31] The doctrine of caveat emptor was colourfully summarized by Professor Laskin (as he then was) in “Defects of Title and Quality: Caveat Emptor and the Vendor’s Duty of Disclosure” in Law Society of Upper Canada, Contracts for the sale of land (Toronto: De Boo, 1960) at 403: Absent fraud, mistake or misrepresentation, a purchaser takes existing property as he finds it, whether it be dilapidated, bug-infested or otherwise uninhabitable or deficient in expected amenities, unless he protects himself by contract terms. [32] The leading decision on the maxim is Fraser-Reid v. Droumtsekas (1979), [1980] 1. S.C.R. 720 at 723, in which Mr. Justice Dickson (as he then was) recognized the continuing application of the doctrine of caveat emptor to the sale of land: Although the common law doctrine of caveat emptor has long since ceased to play any significant part in the sale of goods, it has lost little of its pristine force in the sale of land. In 1931, a breach was created in the doctrine that the buyer must beware, with recognition by an English court of an implied warranty of fitness for habitation in the sale of an uncompleted house. The breach has since been opened a little wider in some of the states of the United States by extending the warranty to completed houses when the seller is the builder and the defect is latent. Otherwise, notwithstanding new methods of house merchandising and, in general, increased concern for consumer protection, caveat emptor remains a force to be reckoned with by the credulous or indolent purchaser of housing property. Lacking express warranties, he may be in difficulty because there is no implied warranty of fitness for human habitation upon the purchase of a house already completed at the time of sale. The rationale stems from the laissez-faire attitudes of the eighteenth and nineteenth centuries and the notion that a purchaser must fend for himself, seeking protection by express warranty or by independent examination of the premises. If he fails to do either, he is without remedy either at law or in equity, in the absence of fraud or fundamental difference between that which was bargained for and that obtained. [33] The doctrine continues to apply to real estate transactions in this province, subject to certain exceptions: fraud, non-innocent misrepresentation, an implied warranty of habitability for newly-constructed homes, and a duty to disclose latent defects. [34] A vendor has an obligation to disclose a material latent defect to prospective buyers if the defect renders a property dangerous or unfit for habitation. A latent defect is one that is not discoverable by a purchaser through reasonable inspection inquiries. See McCluskie v. Reynolds (1998), 65 B.C.L.R. (3d) 191 (S.C.), and Cardwell et al v. Perthen et al, 2006 BCSC 333 [ Cardwell SC ] , aff’d 2007 BCCA 313 [ Cardwell CA ] . [35] In McCluskie , the plaintiffs had purchased a waterfront property from the defendants. Two years later, during a rainstorm, a steep slope behind the house collapsed causing significant damage to the house. The plaintiffs brought a claim against the defendants alleging, in part, that the defendants had breached their duty to disclose the condition of the slope. [36] In her reasons for judgment, Madam Justice Bennett (as she then was), relying on McGrath v. MacLean (1979), 22. O.R. (2d) 784 (Ont. C.A.) and Tony’s Broadloom & Floor Covering Ltd. v. NMC Canada Inc. (1997), 141 D.L.R. (4th) 394 (Ont. C.A.), reviewed the law of caveat emptor and its various exceptions: 46        The rule that the buyer must beware is not unassailable, however. For example, it has repeatedly been noted that the doctrine of caveat emptor will not apply in cases of fraud or reckless disregard for the truth of representations. In Allen v. McCutcheon (1979), 9 R.P.R. 191 (B.C. S.C.) for example, the court stated: The rule of caveat emptor does not apply where, as here, the latent defects were actively concealed by the vendors. 49        Between innocent misrepresentation, however, and active concealment, there lie the possibilities of negligent misrepresentation, or reckless disregard for the truth. The authorities also indicate that where the vendor fails to disclose a latent defect that could prove dangerous, he will be found liable. 53        In conclusion on this point, the authorities with which I have been presented suggest that the doctrine of caveat emptor will not operate to deny the plaintiff's recovery in the following situations: 1. where the vendor fraudulently misrepresents or conceals; 2. where the vendor knows of a latent defect rendering the house unfit for human habitation; 3. where the vendor is reckless as to the truth or falsity of statements relating to the fitness of the house for habitation; 4. where the vendor has breached his duty to disclose a latent defect which renders the premises dangerous. 54        In conclusion, I find that although the law of vendor and purchaser has long relied on the principle of caveat emptor to distribute losses in real estate cases, the rule is not without exception. Two major exceptions are in the case of fraud, and in cases where the vendor is aware of latent defects which he does not disclose. The law also supports the imposition of a duty to disclose latent defects on the vendor where he is not subjectively aware of those defects, but where he is reckless as to whether or not they exist. It is up to the plaintiff to prove this degree of knowledge or recklessness. [37] Bennett J. concluded that the instability of the slope was a latent defect, “which had the potential, and indeed proved, to be dangerous”, and that the defendants had breached their duty to the purchasers in failing to disclose this defect (at para. 55). Mr. Reynolds’ dual identity as both the vendor and the builder was key to her finding of liability (at para. 55). Although Ms. Reynolds was also a vendor, Bennett J. did not hold her liable for a breach of the duty to disclose the condition of the slope as she was not a builder and it had not been established that she knew or ought to have known that the slope stability was a problem. [38] In Cardwell SC , the plaintiffs purchased a property from the defendants. The defendant had substantially renovated the residence prior to sale. The plaintiffs did not undertake an inspection. Soon after taking possession, the plaintiffs discovered numerous problems, including leaks, mould, and faulty retaining walls. After selling the property for a loss, the plaintiffs brought a claim against the defendants for breach of contract, fraud, and negligent misrepresentation. [39] In her reasons for judgment, Madam Justice Ballance, relying on Fraser-Reid, held that caveat emptor “continues to endure with validity and effect in allocating responsibility between a vendor and purchaser in the context of the purchase and sale of real property” (at para. 119). She then considered whether the defects complained of were patent or latent, and whether the defendants had a duty to disclose latent defects. Citing McCluskie, she set out the following exceptions to the doctrine of caveat emptor : [121]    Although on its face caveat emptor appears to offer a vendor a complete defence to any claims made by a purchaser regarding defects in the property (absent specific contractual terms), the doctrine has been attenuated by a number of exceptions. Circumstances where caveat emptor will not operate to deny a plaintiff recovery were summarized by Bennett J. in McCluskie v. Reynolds (1998), 65 B.C.L.R. (3d) 191, 19 R.P.R. (3d) 218 (S.C.) [ McCluskie ]: 1.     where the vendor fraudulently misrepresents or conceals; 2.     where the vendor knows of a latent defect rendering the house unfit for human habitation; 3.     where the vendor is reckless as to the truth or falsity of statements relating to the fitness of the house for habitation; 4.    where the vendor has breached his duty to disclose a latent defect which renders the premises dangerous. [40] Ballance J. distinguished latent and patent defects, stating: [122]    The distinction between patent and latent defects is central to a vendor’s obligation of disclosure under the doctrine. Patent defects are those that can be discovered by conducting a reasonable inspection and making reasonable inquiries about the property.The authorities provide some guidance about the extent of the purchaser’s obligation to inspect and make inquiries. The extent of that obligation is, in some respects, the demarcation of the distinction between latent and patent defects. In general, there is a fairly high onus on the purchaser to inspect and discover patent defects. This means that a defect which might not be observable on a casual inspection may nonetheless be patent if it would have been discoverable upon a reasonable inspection by a qualified person:  [citations omitted]. In some cases, it necessitates a purchaser retaining the appropriate experts to inspect the property ... [Emphasis added.] [41] She added: [128]    Every imperfection or deficiency which a reasonably careful inspection and inquiry will not reveal cannot amount to a latent defect of the kind capable of displacing the doctrine of caveat emptor . In order to qualify as such, the defect must carry with it a consequence of substance ; that is, it must be of such a nature as to render the house uninhabitable or dangerous: McCluskie . Beyond that, the vendor has no obligation to disparage his own property. [42] In the result, Ballance J. found that the vendor “knew or was utterly reckless as to whether his sub-standard construction would cause moisture, rot and mold problems rendering the home unfit for human habitation and, as to the mold, unsafe” (at para. 131). She characterized the remainder of the deficiencies complained of by the purchasers as patent defects, i.e., ones that “could have been discoverable upon a reasonable inspection and making reasonable inquiries” (at para. 133). [43] On appeal, this Court agreed with the Ballance J.’s articulation and application of the legal test for distinguishing between patent and latent defects (at para. 34). Writing for the Court, Madam Justice Levine observed: [48]      The cases make it clear that the onus is on the purchaser to conduct a reasonable inspection and make reasonable inquiries. A purchaser may not be qualified to understand the implications of what he or she observes on personal inspection; a purchaser who has no knowledge of house construction may not recognize that he or she has observed evidence of defects or deficiencies. In that case, the purchaser’s obligation is to make reasonable inquiries of someone who is capable of providing the necessary information and answers. A purchaser who does not see defects that are obvious, visible, and readily observable, or does not understand the implications of what he or she sees, cannot impose the responsibility – and liability – on the vendor to bring those things to his or her attention. [44] Levine J.A. also referred to the four exceptions to caveat emptor as summarized by Bennett J. in McCluskie (at para. 23). In the result, the Court upheld the trial judge’s finding of liability against the respondent because the defects and deficiencies the appellants complained of were undisclosed dangerous latent defects which they were obliged to disclose. [45] In Wescan Enterprises v. Burnaby (City of) , 2006 BCSC 1978 [ Wescan SC ], aff’d 2007 BCCA 517 [ Wescan CA ], the purchaser bought a lot “as is” from the City of Burnaby. When it began to clear the land for construction, the purchaser discovered a ravine and stream near the rear of the lot. Madam Justice MacKenzie (as she then was), citing Cardwell SC and McCluskie , found that the ravine was not a defect, and that, even if it was, “it was a patent defect that could have been discovered by [the purchaser] on reasonable inspection of the property” (at para. 38). She also found that the presence of the ravine “did not displace the maxim caveat emptor because the defect did not render the property uninhabitable or dangerous” (at para. 49). [46] The purchaser appealed on three grounds submitting the judge erred in finding that: (i) the ravine was a patent defect; (ii) the heavy water flow or stream was a patent defect; and (iii) these defects did not render the property uninhabitable or dangerous. The Court dismissed the appeal finding that the trial judge correctly articulated and applied the legal tests with respect to latent and patent defects. [47] In summary, the doctrine of caveat emptor remains very much alive in the context of real estate transactions in BC: Fraser-Reid ; Cardwell CA ; Wescan CA . In general, purchasers bear the risk of defects in the quality of a property. Liability for this risk may shift to the vendor where there is established: (i) a breach of contract; (ii) active concealment (i.e., fraud); (iii) non-innocent misrepresentation; or (iv) an implied warranty of habitability in the case of newly-constructed homes. Liability for this risk may also shift where latent defects are established that render a property dangerous or uninhabitable. In short, a vendor has a common law duty to disclose: (i) a latent defect that is not discoverable through a reasonable inspection or through reasonable inquiries; and (ii) the latent defect renders the property dangerous or unfit for habitation. If a defect does not render a property dangerous or uninhabitable, caveat emptor applies regardless of whether the defect in question is patent or latent. Disclosure statements [48] Information contained in a disclosure statement that is incorporated into a contract of purchase and sale may be a representation upon which a purchaser can rely: Ward v. Smith, 2001 BCSC 1366 at para. 31. However, a vendor is only obliged to disclose his or her current actual knowledge of the state of affairs of the property to the extent promised in the disclosure statement and need say “no more than that he or she is or is not aware of problems”: Arsenault v. Pederson, [1996] B.C.J. 1026 (QL) (S.C.) at para. 12. In other words, the vendor must correctly and honestly disclose his or her actual knowledge, but that knowledge does not have to be correct. A vendor is not required to warrant a certain state of affairs but only to put prospective purchasers on notice of any current known problems. The purpose of a disclosure statement is to identify any problems or concerns with the property, not to give detailed comments in answer to the questions posed. See Anderson v. Kibzey, [1996] B.C.J. No. 3008 (QL) (S.C.) at paras. 13-14; Zaenker v. Kirk (1999), 30 R.P.R. (3d) 9 (B.C.S.C.) at para. 19; Kiraly v. Fuchs, 2009 BCSC 654 at paras. 47, 49; and Roberts v. Hutton, 2013 BCSC 640 at para. 83. Application to this case [49] In this case, the judge found no latent defects with the property and applied the doctrine of caveat emptor to the alleged patent defects (which finding is not under appeal). With respect to the PCDS, the judge found the respondent answered the question on the age of the roof based on her actual knowledge of the current state of affairs. The judge accepted her evidence that she understood the age of the roof to be six years and therefore any misrepresentation on that matter was an inadvertent and innocent one. [50] Here the PCDS only promised that the information provided is true based on Ms. MacIver’s current actual knowledge as of the date of the statement. Given that language, there was no positive obligation on the vendor to disclose information that may be relevant to a purchaser if that information was not directly responsive to one of the specific questions in the PCDS, provided the information did not relate to a latent defect that rendered the property dangerous or unfit for habitation. Disposition [51] In the result, I would dismiss the appeal. “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice Saunders” I AGREE: “The Honourable Madam Justice MacKenzie”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Ocean Pastures Corporation v. Old Masset Economic  Development Corporation, 2016 BCCA 12 Date: 20160113 Docket: CA42267; CA42272 Docket: CA42267 Between: Ocean Pastures Corporation and Russ George Respondents (Plaintiffs) And Old Masset Economic Development Corporation Appellant (Defendant) And Haida Salmon Restoration Corporation, Jason McNamee, Cecil Brown, John Disney, Blue Carbon Solutions, Inc., John (BC) Doe, John Doe #2 Respondents (Defendants) - and - Docket: CA42272 Between: Ocean Pastures Corporation and Russ George Respondents (Plaintiffs) And Haida Salmon Restoration Corporation Appellant (Defendant) And Old Masset Economic Development Corporation, Jason McNamee, Cecil Brown, John Disney, Blue Carbon Solutions, Inc., John (BC) Doe, John Doe #2 Respondents (Defendants) Before: The Honourable Mr. Justice Donald The Honourable Madam Justice Newbury The Honourable Mr. Justice Goepel On appeal from:  An order of the Supreme Court of British Columbia, dated September 24, 2014 ( Ocean Pastures Corporation v. Haida Salmon Restoration Corporation , 2014 BCSC 1788, Vancouver Registry Docket S140052). Counsel for the Appellant, Old Masset Economic Development Corporation: A. Paczkowski Counsel for the Appellant, Haida Salmon Restoration Corporation: R. Spigelman Counsel for the Respondents: No one appearing Place and Date of Hearing: Vancouver, British Columbia December 10, 2015 Place and Date of Judgment: Vancouver, British Columbia January 13, 2016 Written Reasons by: The Honourable Mr. Justice Goepel Concurred in by: The Honourable Mr. Justice Donald The Honourable Madam Justice Newbury Summary: Appeal from orders dismissing the appellants’ applications for security for costs against an impecunious corporate plaintiff. The chambers judge found that the applicants satisfied the test for security for costs against the corporate plaintiff but declined to award security because an individual plaintiff was a shareholder of the corporate plaintiff. Held: appeal allowed. The chambers judge erred in applying the “special circumstances” test to the corporate plaintiff. The presence of an individual plaintiff does not alter the established test for security against a corporate plaintiff. Reasons for Judgment of the Honourable Mr. Justice Goepel: INTRODUCTION [1] This appeal concerns security for costs. The issue for determination is whether the existence of an individual plaintiff modifies the test to be applied on an application for security for costs against an impecunious corporate plaintiff. BACKGROUND [2] Russ George and Ocean Pastures Corporation (“OPC”) commenced the underlying action in January 2014. Mr. George is the sole shareholder of OPC. [3] OPC owns 48% of the shares in the appellant Haida Salmon Restoration Corporation (“HSRC”). HSRC was formed to finance and operate an iron fertilization project aimed at stimulating plankton growth in the oceans off Haida Gwaii. The majority shareholder of HSRC is the appellant Old Masset Economic Development Corporation (“OMEDC”). Mr. McNamee, Mr. Brown and Mr. Disney are each directors or former directors of HSRC. Mr. Disney is also a director of OMEDC. [4] The causes of action pleaded by the plaintiffs include breach of contract, oppression, interference with economic relations, and breach of fiduciary duty. THE CHAMBERS APPLICATION [5] In February 2014, the corporate defendants, OMEDC and HSRC, each sought security for costs against OPC and Mr. George in the amount of $40,132.10. The individual defendants, Mr. McNamee, Mr. Brown and Mr. Disney, also sought security for costs in the amount of $35,000. The defendants argued that the plaintiffs would be unable to pay costs if their action was dismissed because neither plaintiff appeared to have any assets. Mr. George argued that both he and OPC had limited resources and would be unable to prosecute their claim if security was ordered. [6] In reasons indexed at 2014 BCSC 1788, the chambers judge first set out the principles governing an order of security for costs against a corporate plaintiff, citing the leading authorities of Kropp v. Swaneset Bay Golf Course Ltd. (1997), 29 B.C.L.R. (3d) 252 (C.A.) and Fat Mel’s Restaurant Ltd. v. Canadian Northern Shield Insurance Co. (1993), 76 B.C.L.R. (2d) 231 (C.A.) [ Fat Mel’s ]. [7] He noted that a defendant faces a more stringent test in seeking security for costs from an individual plaintiff, compared to a corporate plaintiff, citing Bronson v. Hewitt , 2007 BCSC 1751 and Han v. Cho , 2008 BCSC 1229. [8] He then considered the situation in which an individual plaintiff is also a shareholder in a corporate plaintiff. Citing Hawksview Enterprises Ltd. v. BC Hydro and Power Authority , 2014 BCSC 226 [ Hawksview ], he held that the usual test for security for costs against a corporate plaintiff may not apply when an individual plaintiff is also a shareholder in that corporation. On this basis, he dismissed HSRC and OMEDC’s applications for security for costs against OPC, reasoning as follows: [18]      I find that a similar approach [to that in Hawksview ] is appropriate on the facts of this case. The applicants have met the test in relation to the corporate plaintiff, OPC, but only if OPC is viewed in isolation from the individual plaintiff Mr. George. [19]      On the evidence before me, any order for security for costs against OPC would, for all practical purposes, be an order against the individual plaintiff. Mr. George is the sole shareholder of the company, which has no current business income and no assets against which it could raise funds. Realistically, any security posted by the company could only be supplied by Mr. George. [20]      On the application by the defendants HSRC and OMEDC, there are no special circumstances sufficient to an [ sic ] order that Mr. George post security for costs. His apparent inability to pay costs is not, on the authorities, a reason for the order and I am satisfied that an order would stifle the litigation. [9] The chambers judge reached a different conclusion regarding the individual defendants’ application for security for costs. He found that the plaintiffs’ claim against the individual defendants was weak and ordered security for costs in their favour in the total amount of $8,000. He stayed the action against the individual defendants until security was posted and ordered that the action against them would be dismissed if security was not posted within 60 days of the date of his order. [10] The plaintiffs did not post the security ordered in favour of the individual defendants. The action against them has now been dismissed. [11] HSRC and OMEDC sought leave to appeal the orders dismissing their applications for security for costs against OPC. On January 22, 2015, a judge of this Court granted leave to appeal. ISSUES ON APPEAL [12] On the appeal, the appellants submit that the chambers judge erred in law in failing to identify and apply the proper legal test governing the exercise of his discretion to order security for costs against the corporate plaintiff. In particular, the appellants submit that the chambers judge erred in: (a) applying to the corporate plaintiff the “special circumstances” test usually applicable to individual plaintiffs; and (b) failing to properly distinguish between the corporate and individual plaintiffs in this proceeding. [13] I would note that, although served, OPC took no role in the appeal. DISCUSSION [14] There is a distinction between the circumstances in which security for costs will be ordered against corporations as opposed to natural persons. [15] The foundation for an order for security for costs against a corporate plaintiff is s. 236 of the Business Corporations Act , [SBC 2002], c. 57, which provides: 236      If a corporation is the plaintiff in a legal proceeding brought before the court, and if it appears that the corporation will be unable to pay the costs of the defendant if the defendant is successful in the defence, the court may require security to be given by the corporation for those costs, and may stay all legal proceedings until the security is given. [16] That section traces its origin to at least the English Companies Act , 1862, s. 69. [17] The legal principles governing an application for security for costs against an impecunious corporate plaintiff were summarized in Kropp at para. 17: 1. The court has a complete discretion whether to order security, and will act in light of all the relevant circumstances; 2. The possibility or probability that the plaintiff company will be deterred from pursuing its claim is not without more sufficient reason for not ordering security; 3. The court must attempt to balance injustices arising from use of security as an instrument of oppression to stifle a legitimate claim on the one hand, and use of impecuniosity as a means of putting unfair pressure on a defendant on the other; 4. The court may have regard to the merits of the action, but should avoid going into detail on the merits unless success or failure appears obvious; 5. The court can order any amount of security up to the full amount claimed, as long as the amount is more than nominal; 6. Before the court refuses to order security on the ground that it would unfairly stifle a valid claim, the court must be satisfied that, in all the circumstances, it is probable that the claim would be stifled; and 7. The lateness of the application for security is a circumstance which can properly be taken into account. [18] Once an applicant for security for costs has shown that a corporate plaintiff will not be able to pay costs should its claim fail, security is generally ordered unless the court is satisfied that there is no arguable defence: Fat Mel’s at 235. [19] The principles relating to corporate plaintiffs stand in contrast to the general rule that poverty should not be a bar to an individual litigant. The historical evolution of the difference between security for costs as against corporations and individuals is traced in Bronson at paras. 21-34 and Han at paras. 12-27. [20] Han summarized the law concerning individual plaintiffs: [27]      The onus is on the applicant to establish that he or she will be unable to recover costs [citation omitted]. The fact that the plaintiff resides outside the jurisdiction, has no assets within the jurisdiction, or is impecunious, is not sufficient in itself. The power to order security for costs against an individual is to be exercised cautiously, sparingly, and only under special circumstances, sometimes described as egregious circumstances. Such special circumstances could arise if an impecunious plaintiff also has a weak claim, or has failed to pay costs before, or refused to follow a court order for payment of maintenance. [21] The reason for the distinction between corporate and individual plaintiffs was set out in Bronson : [41]      … For good reason, individual and corporate plaintiffs have always been treated differently.  Absent special circumstances, corporate shareholders are entitled to avail themselves of the protection of a limited liability company to avoid personal exposure for costs: [citation omitted]. An order for security for costs prevents the principals of a corporate plaintiff from hiding behind the corporate veil and, as noted by Megarry V.C. in Pearson , protects “the community against litigious abuses by artificial persons manipulated by natural persons.” [42]      With individuals, the fundamental concern has always been access to the courts. Access to justice is as important today as it was in 1885 when Lord Bowen declared in Cowell that “the general rule is that poverty is no bar to a litigant”. Individuals, no matter how poor, have always been granted access to our courts regardless of their ability to pay a successful defendant’s costs. Only in egregious circumstances have individuals been ordered to post security for costs. [22] In the case at bar, the chambers judge recognized that the applicants had met the usual test for security for costs against the corporate plaintiff but refused to order security, purporting to follow the decision in Hawksview . [23] In Hawksview , two individual plaintiffs and one corporate plaintiff claimed damages in relation to a fire that destroyed a lakefront home and its contents. The corporate plaintiff owned the home as its sole asset. The individual plaintiffs had lived in the home for several years. One of the individual plaintiffs was an officer and co-owner of the corporate plaintiff. The chambers judge acknowledged that the defendants would have been entitled to security for costs against the corporate plaintiff if the corporate plaintiff was viewed in isolation from the individual plaintiffs. She held, however, that the usual test for security for costs against a corporate plaintiff did not apply because of the presence of the individual plaintiffs. She concluded that, in those circumstances, the defendants’ applications for security for costs should be determined together according to the “special circumstances” test which generally applies to individual plaintiffs. [24] In Pearson v. Naydler , [1977] 3 All E.R. 531 (Ch. D.), a decision referred to with approval in both Fat Mel’s and Kropp , Megarry V.C. specifically rejected the submission that the existence of an individual plaintiff should shield a corporate plaintiff from an order for security for costs. At 535, he said: In the case of a limited company, there is no basic rule conferring immunity from any liability to give security for costs. The basic rule is the opposite; s 447 [of The Companies Act, 1948] applies to all limited companies, and subjects them all to the liability to give security for costs . The whole concept of the section is contrary to the rule developed by the cases that poverty is not to be made a bar to bringing an action. There is nothing in the statutory language (the substance of which goes back at least as far as the Companies Act 1862, s 69) to indicate that there are any exceptions to what is laid down as a broad and general rule for all limited companies. Nor is it surprising that there should be such a rule. A man may bring into being as many limited companies as he wishes, with the privilege of limited liability; and s 447 provides some protection for the community against litigious abuses by artificial persons manipulated by natural persons. One should be as slow to whittle away this protection as one should be to whittle away a natural person’s right to litigate despite poverty. Yet if counsel for the plaintiffs is right, there is an implied exception or qualification to s 447 which makes it operate as if there were inserted in some suitable place some words such as ‘unless the company sues with one or more natural persons as co-plaintiffs or co-pursuers’. I can see no grounds for making any such implication . [Emphasis added.] [25] I agree with and would adopt those comments. The existence of an individual plaintiff does not alter the well-established test to be applied on an application for security for costs against a corporate plaintiff. The same test applies to all limited liability companies. This test provides a degree of protection and comfort to a party sued by an impecunious corporation. [26] I also note that Kropp involved an individual plaintiff who was the principal shareholder of the corporate plaintiff. That individual’s presence as a litigant did not shield the corporate plaintiff from an order for security for costs against it. [27] Hawksview was, with respect, wrongly decided and should not be followed. The chambers judge in this case and the chambers judge in Hawksview both fell into error by conflating the claims of the individual and corporate plaintiff. They failed to recognize that the claims of the individual were separate and apart from those of the corporation and would continue regardless of whether the corporation posted security. The fact that Mr. George may be the only person who can post security for the corporation does not impact the principles governing the circumstances in which a corporation may be obliged to post security. [28] The chambers judge was satisfied that, subject to Hawksview , security for costs should be ordered against OPC in the appellants’ favour. The appellants each sought security in the amount of $40,132.10. Their draft bill of costs contemplated a ten-day trial and several interlocutory applications. This draft bill was prepared early on in the litigation, at a time when the individual defendants remained involved. [29] As noted in Kropp , the court can order any amount of security up to the full amount claimed, as long as the amount is more than nominal. The draft bill is a guideline. The court has the discretion to order security in the amount that it considers appropriate. [30] I would allow the appeal and order that OPC post security for costs in the sum of $25,000 for each appellant. I would stay OPC’s action against each appellant until the security in their favour has been posted. [31] If security in favour of an appellant is not posted within 45 days of the date of these reasons, that appellant will be at liberty to bring an application in the Supreme Court to have OPC’s action against it dismissed. “The Honourable Mr. Justice Goepel” I AGREE: “The Honourable Mr. Justice Donald” I AGREE: “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Premium Weatherstripping Inc. v. Ghassemi, 2016 BCCA 20 Date: 20160114 Docket: CA42708 Between: Premium Weatherstripping Inc. Respondent (Plaintiff) And Hossein Ghassemi Appellant (Defendant) Corrected Judgment: A correction was made in the text of para. 7 on March 7, 2016. Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Fitch On appeal from: an order of the Supreme Court of British Columbia, dated March 11, 2015 ( Premium Weatherstripping Inc. v. Panahandeh , 2015 BCSC 841, Vancouver Registry No. S149998) Oral Reasons for Judgment Counsel for the Appellant: C.R. Wardell Counsel for the Respondent: A. Spence Place and Date of Hearing: Vancouver, British Columbia January 14, 2016 Place and Date of Judgment: Vancouver, British Columbia January 14, 2016 Summary: The appeal from an interlocutory injunction is granted. The injunction ought not to have been issued on the basis of hearsay evidence when the source of the information was not provided and the deponent did not depose as to belief in that evidence. Further, the undertaking as to damages was not given as required, and the court did not relieve the applicant from that obligation. Interlocutory injunctions are a special remedy whereby relief is provided to the applicant without requiring proof, only that there is an arguable case. For that reason, the procedural requirements intended to guard the remedy of interlocutory injunctions must be assiduously met. [1] SAUNDERS J.A. : Premium Weatherstripping Inc. (“Premium”) obtained an interlocutory injunction in the Supreme Court of British Columbia enjoining Mr. Ghasssemi from: i) competing with it by way of providing goods that Premium manufactured; and ii) soliciting any of its customers for the provision of goods that it manufactured. [2] Mr. Ghassemi applied successfully for leave to appeal. The reasons for leave identify two practice points as issues for appeal - the adequacy of the affidavits filed in support of the interlocutory injunction and the absence of an undertaking as to damages. The respondent does not defend the injunction obtained. [3] The issue of costs contested in the factums is now not pursued with the parties agreeing that each party will bear their own costs of the application the Supreme Court of British Columbia and in this appeal. [4] It is clear, in my view that the order of an interlocutory injunction must be set aside. [5] Rule 22-2 of the Supreme Court Rules limits the evidence in an affidavit to that which is admissible at trial, unless excepted, in these terms: (12) Subject to subrule (13), an affidavit must state only what a person swearing or affirming the affidavit would be permitted to state in evidence at a trial. (13) An affidavit may contain statements as to the information and belief of the person swearing or affirming the affidavit, if (a) the source of the information and belief is given, and (b) the affidavit is made (i)   in respect of an application that does not seek a final order, or (ii)   by leave of the court under Rule 12-5 (71) (a) or 22-1 (4) (e). [6] By these sub-rules, hearsay evidence (not permitted at trial) generally may not be included in an affidavit unless sub-rule (13) is met. An interlocutory injunction, of course comes within the words of sub-rule (13), “an application that does not seek a final order”. [7] An interlocutory injunction is well understood to be a special sort of non-final order in that, by its very nature, it restricts the freedom of the party against whom it is made, without the applicant having had to prove any allegation beyond the standard of an arguable case. An interlocutory injunction often becomes the entire remedy in an action, and can endure for a very long time unless temporal limits are placed upon it. For that reason, assiduous care in preparation of the application is the standard, including strict compliance with the requirements for all hearsay evidence that would not be permitted to be stated at trial to be on information and belief, with the source identified. There is no room in interlocutory injunction practice for relaxation of that requirement, in my view. [8] In this case the affidavits did not comply with this requirement; the order appealed must be set aside as having been obtained on the basis of inadmissible evidence. [9] The requirement that an undertaking as to damages be given by the applicant is of similar importance. Such an undertaking provides an assurance to the Court of proper intention in the obtaining of the injunction, protects to some degree against abuse of the remedy, and provides a commitment to make right any harm done as a result of the granting of the order. In my view, the order ought not to have issued in the form it did without the court formally relieving the applicant of the required undertaking. [10] In summary, I would allow the appeal and set aside the order of an interlocutory injunction, with costs as I have described. [11] KIRKPATRICK J.A. : I agree. [12] FITCH J.A. : I agree. [13] SAUNDERS J.A. : The order will go as I have just indicated. “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Sidhu, 2016 BCCA 23 Date: 20160114 Docket: CA41882 Between: Regina Respondent And Manjit Singh Sidhu Appellant Restriction on Publication: A publication ban has been imposed under s. 486.5(1) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a victim or witness. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Fitch On appeal from: an order of the Provincial Court of British Columbia, dated May 29, 2014 ( R. v. Sidhu , 2014 BCSC 1335, Vancouver Registry No. 26562) Oral Reasons for Judgment Counsel for the Appellant: G. Botting Counsel for the Respondent: M. Mereigh Place and Date of Hearing: Vancouver, British Columbia January 14, 2016 Place and Date of Judgment: Vancouver, British Columbia January 14, 2016 Summary: Appeal from an order dismissing the appellant’s application to extend the time to file a notice of appeal from summary conviction by 16 days. The appellant was convicted in the Provincial Court of one count of sexual assault contrary to s. 271(b) of the Criminal Code, R.S.C. 1985, c. C-46. Held: appeal allowed; extension of time granted. The summary conviction appeal judge erred in law in failing to have due regard for all of the factors on an application to extend the time to bring an appeal, particularly whether granting an extension was in the interests of justice. [1] KIRKPATRICK J.A. : The appellant, Manjit Singh Sidhu, was convicted in the Provincial Court on November 12, 2013 of one count of sexual assault contrary to s. 271(b) of the Criminal Code , R.S.C. 1985, c. C-46 (a summary conviction offence). He was sentenced on March 7, 2014, to a 40-day conditional sentence and 12 months’ probation. [2] Mr. Sidhu filed his application to appeal the summary conviction on April 23, 2014. The time limit for filing a notice of appeal expired on April 7, 2014. [3] Mr. Sidhu’s application for an extension of time was heard in the Supreme Court on May 28, 2014. In brief reasons, the summary conviction appeal judge dismissed Mr. Sidhu’s application. The judge was evidently referred to the three-part test for granting an extension of time to file an appeal set out in R. v. Menear , [2002] O.J. No. 244 (C.A.). He accepted that Mr. Sidhu had satisfied the first two factors – a bona fide intention to appeal and a satisfactory explanation for the delay in filing the notice of appeal. [4] However, the judge concluded that the appeal was without merit, stating: [2]        This case turns entirely upon assessment of credibility in an alleged sexual assault where the learned trial judge heard all of the evidence and pronounced upon the lack of credibility of the accused. [3]        The trial judge specifically addressed the principles that are to be considered in the determination of whether, in the situation of where an accused testifies, a reasonable doubt has been raised. After doing so, she rejected his evidence and found in favour of the evidence of the Crown. [4]        I do not see this as being a case of the trial judge choosing between the Crown and the accused’s evidence. There was, in my view, a complete analysis of the situation before the trial judge on the evidence adduced. I am not satisfied that there is a meritorious appeal in this matter that is worthy of investigation. [5] The application for an extension of time was accordingly dismissed. [6] Mr. Sidhu then sought leave to appeal the decision that denied the extension of time. On February 6, 2015, a judge of this Court granted leave to appeal the order of the summary conviction appeal judge. [7] In the materials filed on appeal, Mr. Sidhu has not identified any error on the part of the summary conviction appeal judge which is, of course, the order appealed from. Rather, he has focused his attention on the merits of the appeal from the decision of the Provincial Court. [8] However, while the summary conviction appeal judge necessarily addressed the merits of the appeal as a factor to be considered, he did not address the merits in detail The decision was currently under appeal strictly procedural in that it denied an extension of time to permit Mr. Sidhu to appeal the summary conviction. The issue for us is whether the summary conviction appeal judge erred in refusing to grant an extension of time to file the appeal. [9] In R. v. Roberge , 2005 SCC 48, the Supreme Court of Canada summarized the factors to be considered on an application to extend the time for leave to appeal in that Court: 6          The power to extend time under special circumstances in s. 59(1) of the Act is a discretionary one. Although the Court has traditionally adopted a generous approach in granting extensions of time, a number of factors guide it in the exercise of its discretion, including: 1. Whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing party within the prescribed time; 2. Whether counsel moved diligently; 3. Whether a proper explanation for the delay has been offered; 4. The extent of the delay; 5. Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and 6. The merits of the application for leave to appeal. The ultimate question is always whether, in all the circumstances and considering the factors referred to above, the justice of the case requires that an extension of time be granted. [10] To similar effect is this Court’s decision in R. v. M.A.G., 2002 BCCA 413, in which Esson J.A. examined the test for an extension of time to file an appeal in the criminal law context: [27] I return to the language of Macfarlane J.A. in Smith (quoted supra , para. 11) [ R. v. Smith , [1990] B.C.J. No. 2933 (C.A.)] which for convenience I repeat here: [4] The appellant in order to obtain an extension of time must satisfy certain rules. The governing principle on which this Court acts on applications to extend time for doing an act is that the applicant must establish special circumstances. [5] In considering whether there are special circumstances this Court has always taken into account such factors as whether: (1) the applicant had a bona fide intention to appeal before the expiration date of the appeal date; (2) informed the respondent either expressly or impliedly of his intention; (3) the respondent would not be unduly prejudiced by an extension of time; (4) there is merit in the appeal in the sense that there is a reasonably arguable ground; (5) it is in the interest of justice, that is the interest of the parties, that an extension be granted. How much weight will be given to any of these factors in determining whether there are special circumstances will depend on the circumstances of each case. [28] My first observation is that the list of five factors set out in para. 5 are points which the court takes into account in deciding whether there are “special circumstances” which justify granting an extension. The five factors should not, although they sometimes are, be treated as an exhaustive checklist of conditions, all of which the applicant must meet in order to succeed on the application. The governing principle is that the applicant must establish special circumstances. In making that determination, the matter must be approached on the basis that the weight to be given to any factor will depend on the circumstances of each case. In my view, it must follow that in some cases the weight to be given to one or more criteria will be negligible because it is so heavily outweighed by the weight which must be given to others. [11] The summary conviction appeal judge confined his consideration to only three of the factors set out in R. v. Menear . However, in Minear, at para. 21, the Court stated: Depending on the case, the court may take into consideration other factors such as whether the consequences of the conviction are out of proportion to the penalty imposed, whether the Crown will be prejudiced and whether the applicant has taken the benefit of the judgment. In the end, the main consideration is whether the applicant has demonstrated that justice requires that the extension of time be granted. [Emphasis added.] [12] The issue thus devolves to this – whether in all of the circumstances, and considering the factors to be applied on an application for an extension of time, does the justice of the case require that an extension of time be granted. [13] Having regard to the relevant considerations, it is clear that there was a bona fide intention to appeal; the delay was minimal, and was explained; no undue prejudice to the Crown is raised; and the appeal has reasonably arguable grounds. [14] In my opinion, it can be said that the summary conviction appeal judge erred in law in failing to have due regard to all of the applicable factors and, most importantly, whether the granting of an extension of time was in the interests of justice. [15] I would allow the appeal, grant the extension of time for filing the notice of appeal in the summary conviction appeal court to April 23, 2014, and remit the matter to the Supreme Court for the hearing of the summary conviction appeal. [16] SAUNDERS J.A. : I agree. [17] FITCH J.A. : I agree. [18] SAUNDERS J.A. : The order will be entered in the terms expressed by Madam Justice Kirkpatrick. I will say that our order will not be filed until the order giving leave to appeal has first been filed. “The Honourable Madam Justice Kirkpatrick”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Veinotte, 2016 BCCA 21 Date: 20160114 Docket: CA43126 Between: Regina Appellant And Aaron Gerald Veinotte Respondent Restriction on Publication : A publication ban has been mandatorily imposed under s. 486.4(2) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or a witness. This publication ban applies indefinitely unless otherwise ordered. Section 16(4) Sex Offender Information and Registration Act (“SOIRA”) : this section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA. Before: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Groberman The Honourable Madam Justice Fenlon On appeal from: an order of the Provincial Court of British Columbia, dated September 2, 2015 ( R. v. Veinotte , Cranbrook Docket No. 31360) Oral Reasons for Judgment Counsel for the Appellant: M.A. Mereigh and M. Scott Counsel for the Respondent: G. Kosakoski Place and Date of Hearing: Vancouver, British Columbia January 14, 2016 Place and Date of Judgment: Vancouver, British Columbia January 14, 2016 Summary: The Crown seeks leave to appeal the one-year mandatory minimum sentence imposed on the respondent who pleaded guilty to one count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. The offence involved an intrusive but non-violent sexual assault of a 13-year-old girl. Held: leave is granted; the appeal is dismissed. The sentencing judge did not err in law or in principle, nor can it be said that the sentence imposed is demonstrably unfit. A mandatory minimum sentence is not invariably reserved for the least serious offence and the least culpable offender. [1] KIRKPATRICK J.A. : On September 2, 2015, a judge of the Provincial Court imposed a one-year mandatory minimum sentence on the respondent, Aaron Gerald Veinotte, who pleaded guilty to one count of sexual assault contrary to s. 271 of the Criminal Code , R.S.C. 1985, c. C-46 . The Crown seeks leave to appeal the sentence and, if leave is granted, asks that this Court substitute a sentence of two years’ imprisonment and a two-year period of probation. CIRCUMSTANCES OF THE OFFENCE [2] On September 6, 2014, the complainant, A.L., a 13-year-old M é tis girl with a troubled background, took her dog for a walk and went to Mr. Veinotte’s home. Mr. Veinotte was 29 years of age and had known A.L. and her parents for many years. They talked outside and when it became dark and cold, went inside. They sat on the floor, smoked a marihuana joint and cigarettes, and listened to music. [3] They moved to the bed to watch television. Mr. Veinotte eventually had sexual intercourse with A.L. In his sentencing submission, Crown counsel described A.L.’s reaction: She did note that she ignored the part about how he was older than me. She didn’t say that it bothered her. She didn’t tell him to stop. He was 29 and she was 13. She described that he did have intercourse with her, that she wasn’t sure if he ejaculated or not. She noted that afterwards they watched some more TV, listened to some music, that she felt all right. She noted that she had a lot to smoke, that she was really baked, and after they had intercourse he performed oral sex, as well, and then they had intercourse again. She noted that she was feeling really good, and she -- that no one had treated her in that way. She did note that she had sex previously, and that they did cuddle in the bed after intercourse again. [4] A.L. later told the police that she was not frightened of Mr. Veinotte, but was scared of losing him as a friend and family member. She did not feel angry, but was disappointed. [5] Mr. Veinotte expressed remorse to A.L.’s family shortly after the incident and made a statement to the police in which he admitted the circumstances of the offence. CIRCUMSTANCES OF THE OFFENDER [6] Both a psychiatric assessment and a pre-sentence report were available to the sentencing judge. These reports established that Mr. Veinotte’s parents are both of Mi’kmaq First Nations descent. His mother had a significant alcohol problem. The psychiatrist speculated that Mr. Veinotte might have fetal alcohol deficits although Mr. Veinotte has no awareness of those factors and has managed to obtain his Grade 12 equivalency. [7] Mr. Veinotte has no knowledge of his father who was described as a very violent man who broke Mr. Veinotte’s arm when he was two years of age. [8] Mr. Veinotte was molested by another male when he was 11 years of age. [9] Mr. Veinotte became involved in theft and mischief at age nine as a result of lack of supervision at home. He first tried alcohol and marihuana at age 10, and regularly consumed alcohol from age 13 and was described as an alcoholic. He has in the past been addicted to methamphetamine and cocaine. Mr. Veinotte has an admittedly thin employment history. It appears that Mr. Veinotte’s substance abuse is the primary contributing factor in his unemployment. Remarkably, Mr. Veinotte ceased consuming drugs or alcohol shortly after the offence in about September 2014 after he began living at a religious-based recovery centre. At the time of sentencing he had been “substance free” for almost a year. [10] Mr. Veinotte has a substantial criminal record primarily for property offences dating back to 1997, but no previous convictions for sexual offences. [11] The psychiatrist noted that Mr. Veinotte had “some insight” into the offence and that substance abuse was a notable factor in the offence. The pre-sentence report confirmed that Mr. Veinotte acknowledged the charges and “demonstrated sadness and remorse when discussing the charges, in particular on how this may have impacted the victim”. He also expressed a “heightened level of regret” at losing his good friend, A.L.’s father, and “accepts responsibility and acknowledges the emotional and mental damage it has caused the victim and her family”. SUBMISSIONS ON SENTENCE [12] At the sentencing hearing, the Crown advocated a sentence of between two and four years in accordance with the range of sentence expressed in R. v. G.M., 2015 BCCA 165, of two to six years. G.M. concerned a violent sexual assault involving anal intercourse. [13] During the course of those submissions, the judge observed: THE COURT: I was going to say there – there’s lots of sexual assault convictions in this area where people have received sentences of significantly less than two years. [14] In light of the mandatory minimum sentence, the defence advocated for a sentence of one year. SENTENCING REASONS [15] The judge commenced his reasons by expressing his frustration with the Crown’s decision to proceed by indictment, thereby effectively precluding the exercise of discretion in the fashioning of what the judge considered to be an appropriate sentence. By proceeding by indictment, s. 271(a) provides that, if the complainant is under the age of 16 years, the offender is liable to a minimum punishment of imprisonment for a term of one year. [16] The judge acknowledged the seriousness of the offence. He was specifically referred to s. 718.01 by Crown counsel in submissions. He accepted that denunciation and deterrence were the primary sentencing factors. He acknowledged that Mr. Veinotte had accepted responsibility, entered a guilty plea, and that the offence constituted a breach of trust between him and A.L. and her family. It is clear the judge was aware of the local community’s expectations of an appropriate sentence. [17] The judge ultimately imposed the mandatory minimum one-year sentence together with a one-year probation order, including a term that Mr. Veinotte abstain from the consumption of alcohol, a term which Mr. Veinotte said would help him and which had been identified as a risk factor. ON APPEAL [18] The Crown on appeal contends that the judge failed to give effect to “the new sentencing framework” represented by Parliament’s enactment of mandatory minimum sentences for sexual offences against children. The Crown contends that the judge failed to have regard to s. 718.01 of the Code which requires that when a court imposes a sentence for an offence that involves abuse of a person under the age of 16 years, it must give primary consideration to the objectives of denunciation and deterrence. The Crown maintains that the judge did not appreciate that “minimum sentences have the effect of raising sentences across the board for such offences [the making of pornography offence] to maintain proportionality”: R. v. Worthington, 2012 BCCA 454. [19] The Crown further contends that the judge did not impose a proportionate sentence. The Crown submits that the circumstances of the offence – two incidents of unprotected sexual intercourse and one incident of oral sex, on a 13-year-old child whose acquiescence was induced by the provision of marihuana – called for a sentence greater than one year which the Crown submits is reserved for the least culpable offender in the least serious circumstances. [20] Lastly, the Crown contends that the sentence imposed was not fit. The Crown submits that the range of sentences for crimes against children has been altered in recent years by reason of the mandatory minimum sentences such that sentences imposed in the past no longer reflect the appropriate sentence to be imposed in the present. DISCUSSION [21] On December 17, 2015, the Supreme Court of Canada handed down reasons in R. v. Lacasse , 2015 SCC 64, which reinstated a sentence imposed at trial for impaired driving causing death that had been reduced on appeal. The majority reiterated what has been said on many occasions: [11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except where a sentencing judge make an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. [12]      In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts. With respect, I am of the opinion that the Court of Appeal was wrong in this case to reduce the sentence imposed by the trial judge by basing its intervention on the fact that he had departed from the established sentencing range. [22] In order for the Crown to succeed in this appeal, it must establish that the sentencing judge made an error of law or an error of principle that had an impact on the sentence and that the sentence was demonstrably unfit. [23] In my opinion, the Crown’s appeal cannot succeed because it is, in essence, a request that we second-guess the sentencing judge. The Crown asks us to find that it was an error in principle for the judge to impose the mandatory minimum sentence because it failed to have regard to the so-called “inflationary floor” that such sentences represent. [24] The Crown’s submission rests on the minority views of Madam Justice Arbour in R. v. Morrisey , 2000 SCC 39, and this Court’s decision in R. v. B.C.M. , 2008 BCCA 365, in which the Court explained the effect of mandatory minimum sentences: [31] While the views of Arbour J. are not precedentially authoritative, the sentencing judge was entitled to adopt them as a logical and appropriate statement of the interaction between minimum sentences and the traditional sentencing principles, notably proportionality, which requires that similar offenders receive similar sentences. A minimum sentence does not oust that fundamental principle. The search for a fit sentence is still guided by similar sentences imposed in the past on similarly situated offenders. Nevertheless, a mandatory minimum sentence introduces a higher starting point and therefore a narrower range within which that principle will operate. The notion of a fit sentence must be adjusted accordingly if the principle of proportionality is to remain operative. [32] For example, in this case, the introduction of the mandatory minimum sentence of one year for making child pornography significantly shrinks the range of sentencing options. It excludes consideration of a suspended sentence and probation under s. 731, or a conditional sentence under s. 742.1 of the Code. The only remaining sentencing options are terms of imprisonment between the statutory minimum of one year and the statutory maximum of ten years. Thus, the least culpable offender in the least serious circumstances, who might have received a more lenient sentence prior to Bill C-2, will now be sentenced to one year in prison. It would be inconsistent with proportionality if worse offenders in more serious circumstances, who might have received a one year sentence prior to Bill C-2, continue to be sentenced to one year under the new regime. The principle that similar offenders should receive similar sentences requires acknowledgement that a minimum sentence has a proportionate inflationary effect on the balance of the sentencing range. [25] However, this Court in R. v. Lloyd , 2014 BCCA 224, expressed reservation as to the rigid application of an “inflationary floor”: [53] There is, I think, a need for some caution in accepting the “inflationary floor” principle as an invariable rule of interpretation. In light of the Supreme Court of Canada’s view in R. v. L.M., 2008 SCC 31 that the maximum sentence is not reserved for “the worst offender and the worst offence”, it may be doubted that the minimum sentence should be reserved for the “‘best’ offender”, as Arbour J. suggested. [26] The fallacy inherent in the Crown’s argument is that there is an invariable rule that a mandatory minimum sentence is reserved for the least serious offence and the least culpable offender. That submission cannot be logically sustained. It would mean, by comparison, that the maximum sentence is reserved only for the worst offenders and the worst offences. To accede to this would eviscerate the fine balancing that sentencing judges are charged with performing. [27] Even if we were to accede to that submission, I cannot say that, in the circumstances of this offence and this offender, the sentence imposed is demonstrably unfit. [28] The Crown tendered many cases which it suggested demonstrate the appropriate “range” of sentences. With respect, few of the cases are of assistance and many simply bear no comparison at all to the circumstances at bar. [29] As the majority in Lacasse stated, the cardinal principle is proportionality. It is self-evident from the review of the record in this case that this offence is very serious in that it involved an intrusive but non-violent sexual assault of a 13-year-old girl. No one would suggest that it is not serious or that Parliament’s intention in mandating a minimum sentence in a crime against a child should be minimized. [30] However, it is also self-evident that Mr. Veinotte had an exceedingly deprived childhood marred by his own alcohol addiction and drug use. He expressed his remorse at an early opportunity and pleaded guilty before the trial. He has embarked on rehabilitation with remarkable success given a history of addiction that appears to have spanned more than half his life. [31] In my opinion, this is not an appeal in which this Court should intervene. I would grant leave to appeal but dismiss the appeal. [32] GROBERMAN J.A. : I agree. [33] FENLON J.A. : I agree. [34] KIRKPATRICK J.A. : Leave to appeal is granted but the appeal is dismissed. “The Honourable Madam Justice Kirkpatrick”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Chang v. Leung, 2016 BCCA 42 Date: 20160115 Docket: CA43053 Between: Da Wei Chang Appellant (Plaintiff) And Elizabeth Foo-Yun Chang Leung, Executrix of the Estate of Hsieu Chang also known as Chen Hsieu Chang also known as Chang Chen Hsieu, deceased Respondent (Defendant) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Fitch On appeal from: an order of the Supreme Court of British Columbia, dated July 30, 2015 (Chang v. Leung, Vancouver Registry No. S078347) Oral Reasons for Judgment No one appearing on behalf of the Appellant: Counsel for the Respondent: J.D. Whyte Place and Date of Hearing: Vancouver, British Columbia January 15, 2016 Place and Date of Judgment: Vancouver, British Columbia January 15, 2016 The appellant appeals the dismissal of his property action in a summary trial. The appellant filed no material in response to the summary trial application, nor did he attend the hearing of the application or appeal. Held: Appeal dismissed. The appellant’s failure to adduce evidence on the summary trial application was properly held to be fatal to his claim. The remaining grounds of appeal are also without merit. [1] FITCH J.A. : The appellant, Da Wei Chang, appeals the dismissal of his action in a summary trial heard July 30, 2015. [2] Mr. Chang has not appeared at the hearing of his appeal this morning. He has been paged on at least two occasions and has not responded to those pages. We have been advised by counsel for the respondent that he has been in touch with the Registry this morning and the Registry has not received contact from the appellant this morning either. We have, however, had the opportunity to read the reasons of the summary trial judge and the factums that have been filed on this appeal. In my view, this appeal should be dismissed on its merits. BACKGROUND [3] The background facts necessary to dispose of this appeal may be briefly stated. [4] The respondent, Ms. Leung, is the executrix of the estate of her mother, Hsieu Chang. Mrs. Chang died on May 25, 2007. Mrs. Chang’s husband predeceased her in 2001. The appellant and respondent are siblings. [5] In May 1988, Mr. and Mrs. Chang purchased residential property in Surrey, British Columbia (the “Surrey Property”) for $175,000. They supplied the entirety of the purchase price. [6] The Surrey Property was registered in the names of Mr. Chang, Mrs. Chang and the appellant as joint tenants. [7] On January 9, 1998, Mr. and Mrs. Chang severed the joint tenancy by transferring their interests in the Surrey Property to themselves as joint tenants, but as tenants in common with the appellant. Thereafter, Mr. and Mrs. Chang held an undivided two-thirds interest in the Surrey Property as joint tenants, and the appellant held an undivided one-third interest in the Surrey Property as a tenant in common with Mr. and Mrs. Chang. [8] Mrs. Chang executed her last will and testament on July 10, 2000. In it, she bequeathed $10 to the appellant with the remainder of the estate to be divided between her other children. One of her stated reasons for doing so was that a one-third interest in the Surrey Property had already been given to the appellant. Mrs. Chang confirmed the will in a codicil executed July 6, 2005. [9] Mr. Chang Sr. died on January 11, 2001. His interest in the Surrey Property passed to Mrs. Chang by right of survivorship. [10] In 2004 and 2005, the appellant sought to sell his one-third interest in the Surrey Property back to his parents or, in the alternative, purchase his parents’ interest in the property. The letters proposing this arrangement, which were authored by the appellant, are addressed to “Mother and Father” and “Dad”. It would seem the appellant was unaware that his father had died in 2001. [11] Mrs. Chang died on May 25, 2007. Her interest in the Surrey property passed to her estate and constitutes virtually the whole of the estate. [12] On December 10, 2007, the appellant commenced the action that is the subject matter of this appeal (the Property Action). He alleged he had been a party to an oral agreement with Mr. and Mrs. Chang that they would not sever the joint tenancy in which the Surrey Property was originally held without his consent. Among other things, the appellant sought a declaration that he is the sole legal and beneficial owner of the Surrey Property. The Property Action was commenced nine years and 11 months after the cause of action arose - January 9, 1998, being the date upon which Mr. and Mrs. Chang severed the joint tenancy. [13] In May 2008, the respondent applied to prove Mrs. Chang’s last will and testament and the codicil in solemn form (the Probate Action). The appellant contested the Probate Action, challenging the validity of the will on grounds that Mrs. Chang lacked testamentary capacity and that the will was a product of coercion and/or undue influence. [14] Pending resolution of the Probate Action, the appellant’s Property Action was held in abeyance. Resolution of the Probate Action was required before the respondent’s authority to defend the appellant’s Property Action could be confirmed. [15] By reasons for judgment dated June 3, 2013 (indexed at 2013 BCSC 976), Madam Justice Dardi found that the last will of Mrs. Chang was a valid and subsisting will which had been proven in solemn form. The appellant’s appeal from the order of Justice Dardi was dismissed by this Court on January 21, 2014 for reasons indexed at 2014 BCCA 28. The respondent obtained a grant of probate of the will on May 15, 2014. The appellant’s further application for leave to appeal to the Supreme Court of Canada was dismissed on November 6, 2014. [16] On June 27, 2014, counsel for the respondent wrote the appellant noting that the appellant’s counsel on the Property Action had withdrawn as solicitor of record. The respondent re-served her Response to Civil Claim in relation to the Property Action on the appellant personally and asked that the appellant supply his List of Documents on or before July 11, 2014. The appellant took no steps to prosecute the Property Action. [17] On January 15, 2015 the respondent served her List of Documents upon the appellant. Once again, the appellant took no steps to prosecute the Property Action. [18] On July 7, 2015 the respondent filed a summary trial application which sought dismissal of the appellant’s Property Action. The application and supporting materials were delivered to the appellant’s address for service (the address of the Surrey Property) on July 12, 2015. The affidavit of service, which was before the summary trial judge, reflects that these materials were posted to the gate at the appellant’s address for service. [19] The summary trial application was returnable on July 30, 2015. [20] The appellant filed no material in response to the summary trial application, nor did he attend the hearing. [21] The summary trial judge allowed the respondent’s application and dismissed the appellant’s Property Action, with costs. She noted that the appellant’s contention he believed himself to be entitled to his parents’ interest in the Surrey property on their death was inconsistent with his efforts to sell his one-third share to them, or acquire their share, in 2004 and 2005. More importantly, she noted that the appellant’s action was unsupported by any evidence. Her reasons for allowing the respondent’s application for dismissal of the appellant’s claim were expressed as follows: I believe that absent any opposition and sworn evidence from Mr. Chang with respect to the alleged oral agreement, that on several bases the action should be dismissed. Firstly, that there is no evidence of a written or oral agreement, express or implied, between the deceased, Mr. and Mrs. Chang, and the plaintiff that they would not without his consent sever the joint tenancy. There is also no evidence … of any consideration that flowed from the plaintiff to either of his parents … to support that agreement. It is also an agreement that would necessarily have been required to be in writing pursuant to Section 59(3) of the Law and Equity Act [because it] … concerned an interest in land. And lastly the limitation period would have run from the date upon which the severance occurred. And that was January 9, 1998. The plaintiff [has] provided no evidence that there was a delay in his discovery that such severance had occurred and therefore there is no postponement of the limitation period and therefore the last day the plaintiff could file the action was on January 8, 2004, and he missed that limitation period by almost four years So for all -- so on all those grounds, I find the action of the plaintiff must be dismissed with costs to the defendant. [22] The appellant advances nine grounds of appeal. He is self-represented and English is likely not his first language. It is difficult to discern the appellant’s position in relation to many of these grounds, and I am grateful to counsel for the respondent who has attempted to group the appellant’s various complaints into discrete categories. [23] Before dealing with the appellant’s grounds of appeal, I note at the outset that the appellant has included material in his Appeal Book that was not before the summary trial judge, including what purports to be a handwritten loan agreement relating to the Surrey Property. In addition, the appellant’s factum refers to evidence and documents that were not before the summary trial judge. No application to adduce fresh evidence is before us and I would not admit this evidence for the first time on appeal. [24] Several grounds of appeal relate to the summary trial judge’s decision to proceed with the application. First, the appellant appears to take issue with the proposition that he was properly served with notice of the respondent’s summary trial application. He says the respondent “played tricky on document delivery”. I see no merit in this ground of appeal. The notice of application and accompanying materials were left at the appellant’s address for service in accordance with Rule 4-2(2) of the Supreme Court Civil Rules . [25] The appellant argues that the summary trial judge ought to have given effect to “medical notes” dated August 22, 2014. I take this to be a complaint that the summary trial judge ought to have adjourned the application. There is no merit in this argument. The appellant put no medical evidence before the summary trial judge, nor did he seek an adjournment of the application. [26] The appellant also alleges that the action was unsuitable for disposition by way of summary trial proceeding. In support of this position he cites the test applicable on applications for summary judgment. That test had no application in the circumstances of this case. The appellant chose not to respond to, or participate in, the summary trial application. In the result, his argument that the action was not suitable for disposition by way of summary trial proceedings is asserted for the first time on appeal. Even if we were to entertain the appellant’s submission on this point, in the absence of any evidence supporting his claim, the action was suitable for disposition by way of summary trial proceeding. [27] The appellant submits that the summary trial judge erred by failing to accept admissible evidence. There is no merit in this complaint as the appellant offered no evidence in response to the application. [28] The appellant also complains about the conduct of the respondent’s counsel on the summary trial. He submits that it was improper for the respondent’s counsel to refer to the Probate Action. He further submits that the respondent’s counsel misled the summary trial judge by advising that the Probate Action was at an end. Again, there is no merit to either of these submissions. It was entirely proper for the respondent’s counsel to refer to the Probate Action as part of the procedural history of the matter and to explain why the appellant’s Property Action was held in abeyance until 2014. Contrary to the appellant’s submission, the Probate Action is at an end and the respondent’s counsel accurately conveyed this state of affairs to the summary trial judge. [29] Finally, the appellant submits that the summary trial judge did not properly calculate the limitation date which applied to his Property Action. Clearly, this was an alternative basis upon which the appellant’s action was dismissed. Even assuming error in the calculation of the limitation period, a point not conceded by the respondent, that error could not possibly have affected the result for the simple reason that the appellant, having been duly served with notice of the summary trial application, adduced no evidence to support his claim. [30] In the result, I would dismiss the appeal. Regrettably, the appellant’s pursuit of this unsupported action and meritless appeal has caused considerable delay and expense. I would order that the respondent have her costs of the appeal against the appellant, with the balance of her legal expenses to be paid as special costs out of the estate. [31] SAUNDERS J.A. : I agree. [32] KIRKPATRICK J.A. : I agree. [33] SAUNDERS J.A. : The appeal is dismissed. The respondent shall have her costs of the appeal against the appellant, and the balance of her legal expenses are to be paid as special costs out of the estate. “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Delorme v. Normand , 2016 BCCA 28 Date: 20160115 Docket: CA42474 Between: Donald Edmund Delorme Respondent (Claimant) And Linda Joan Normand Appellant (Respondent) Corrected Judgment: The text on the front cover was corrected on March 5, 2016. Before: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Groberman The Honourable Madam Justice Fenlon On appeal from: an order of the Supreme Court of British Columbia, dated December 18, 2014 ( Delorme v. Normand , Chilliwack Registry No. E9150) Oral Reasons for Judgment Counsel for the Appellant: R.W. Krentz Counsel for the Respondent: F. Nudel Place and Date of Hearing: Vancouver, British Columbia January 13 2016 Place and Date of Judgment: Vancouver, British Columbia January 15, 2016 Summary: The appellant appeals the dismissal of her claim in unjust enrichment against the respondent on the basis that she was entitled to a proprietary interest in a condominium that the parties lived in together for many years. She claimed that it had become a joint family venture when she moved into it and contributed to its renovation and expenses. Held: Appeal dismissed. There is no presumption of a joint family venture simply because two people live together. The trial judge properly considered the evidence and made no error in his findings of fact or application of the doctrine of unjust enrichment. Introduction [1] FENLON J.A. : The issue on this appeal is whether the trial judge erred in finding that the appellant, Ms. Normand, was not entitled to a proprietary interest in a condominium the parties lived in together for many years. At Trial [2] As the trial judge found (at para. 18), the relationship between the parties was a long one spanning 17 years. They began living together in 1993, separating for a time in 2003. During that separation, Mr. Delorme bought the condominium in issue located on Old Yale Road in Abbotsford. The couple subsequently reconciled and Ms. Normand moved into the property. They continued to live there for seven years – until June 2010 when their relationship ended after Mr. Delorme was removed from the property by police. Ms. Normand continued to reside there until trial and has only recently vacated the property. [3] The trial judge noted at para. 1 of his reasons that: As originally cast, the parties claimed against each other for unjust enrichment with respect to various properties they respectively owned over the course of their relationship. By the time of the trial, that was distilled into a claim by Ms. Normand to a condominium owned by Mr. Delorme on Old Yale Road in Abbotsford. [4] The trial judge addressed Ms. Normand’s claim to a proprietary interest in the Old Yale Road property on the basis of both constructive trust and joint family venture as that is described in Kerr v. Baranow , 2011 SCC 10 . [I note parenthetically that the trial judge did not consider whether a single asset can be subject to a joint family venture: see Ibbotson v. Fung, 2013 BCCA 171.] [5] The trial judge correctly instructed himself on the elements required to establish an unjust enrichment claim: [10]      To succeed in an unjust enrichment claim, the claimant must show that he has enriched or benefitted the respondent, that she has suffered a corresponding deprivation, and that there was no juristic reason for the enrichment or benefit. The recognized categories of juristic reason disentitling recovery include a contract, disposition of law, donative intent, and other common law, legal or statutory obligations. If the case does not fall into one of those recognized categories, the onus lies on the defendant to establish a reason why the benefit should be retained: see Kerr v. Baranow , 2011 SCC 10. [11]      The conferring of mutual benefits may be a relevant factor in answering that question. As Cromwell J. stated in Kerr [109]    As I noted earlier, my view is that mutual benefit conferral can be taken into account at the juristic reason stage of the analysis, but only to the extent that it provides relevant evidence of the existence of a juristic reason for the enrichment. Otherwise, the mutual exchange of benefits should be taken into account at the defence and/or remedy stage. It is important to note that this can, and should, take place whether or not the defendant has made a formal counterclaim or pleaded set-off. [6] The trial judge then considered the circumstances of the parties. He observed that Ms. Normand acknowledged that she did not have a claim to the Old Yale Road property at the time of its purchase. Rather, she relied on the contributions she made over the years by paying expenses and paying for renovations. [7] The trial judge concluded at para. 12 that Ms. Normand had not established that Mr. Delorme was enriched by Ms. Normand paying the strata fees and other incidental expenses. He found that to be “equivalent to two people sharing rent for an apartment they are living in. Neither is enriching the other.” [8] The trial judge found Ms. Normand had established an enrichment of Mr. Delorme insofar as Ms. Normand had paid for countertops and a jacuzzi which together cost $1,700. But he found those benefits were offset by benefits Mr. Delorme had provided to Ms. Normand through painting and renovation work on other properties she owned. On Appeal [9] On appeal Ms. Normand submits that the trial judge erred in finding that the benefits bestowed on Mr. Delorme were offset by the benefits he conferred on her, and further erred in ultimately concluding that the Old Yale Road property was not a joint family venture. [10] In my view Ms. Normand is asking this Court to re-weigh the evidence that was before the trial judge and to come to a different conclusion. Among other things, Ms. Normand points to the significance of her monthly financial contributions after she moved into the property. She paid for most of the groceries and $150 for utilities in addition to $188 for strata fees each month while Mr. Delorme paid the mortgage of about $260 per month. [11] Ms. Normand emphasizes her agreement to co-sign a loan so that Mr. Delorme could pay off outstanding mortgage arrears, although she acknowledges that Mr. Delorme ultimately repaid that loan. She emphasizes that she paid Mr. Delorme $6,000 from the proceeds of the sale of a mobile home she owned, so that he could pay some legal fees. [12] The trial judge, however, expressly considered these contributions by Ms. Normand. The reasons for judgment are brief, but there is no suggestion that the trial judge misapprehended the evidence. [13] Implicit in the trial judge’s finding that the parties were not involved in a joint family venture is the finding that there was a lack of economic integration. That conclusion is supported by the evidence and facts found by the trial judge. For example, although the parties had a joint account, it was used by Ms. Normand only to deposit Mr. Delorme’s paycheque to assist him with handling his money. He would owe her for any overdrawn amount on that account. [14] Further, before the parties separated in 2003, they were living in a condominium on Clearbrook Road which Mr. Delorme had purchased. In relation to that property, Ms. Normand had paid for the utilities and groceries and Mr. Delorme had paid the mortgage. However, when the parties separated for that brief period in 2003, Ms. Normand bought the Clearbrook property from Mr. Delorme, paying for the full value of the equity and assuming the mortgage. In other words, she did not assert that she had acquired an interest in that property in any way through living in it and sharing expenses. [15] Finally, Ms. Normand owned a mobile home and retained the rental income from that property and all of the proceeds from its sale other than the $6,000 earlier alluded to. [16] The trial judge considered Ibbotson v. Fung , which was relied on by Ms. Normand, but found the circumstances in that case to be significantly different from those of the parties in this case. [17] The Supreme Court of Canada stated at para. 100 of Kerr v. Baranow : 4.         Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family. [Emphasis added]. The trial judge made a finding of fact that the Old Yale Road property was not a joint family venture. That finding is entitled to deference. [18] Ms. Normand and Mr. Delorme had a long relationship. But there is no presumption of a joint family venture simply because two people live together. In Kerr , Justice Cromwell said at para. 88: [88]      It is critical to note that cohabiting couples are not a homogeneous group. It follows that the analysis must take into account the particular circumstances of each particular relationship. Furthermore, as previously stated, there can be no presumption of a joint family venture. The goal is for the law of unjust enrichment to attach just consequences to the way the parties have lived their lives, not to treat them as if they ought to have lived some other way or conducted their relationship on some different basis. A joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence. The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court’s view of how they ought to have done so. Summary [19] In summary, I find no error in the trial judge’s findings of fact or application of the doctrine of unjust enrichment. I would accordingly dismiss the appeal with costs to the respondent. [20] KIRKPATRICK J.A. : I agree. [21] GROBERMAN J.A. : I agree. [22] KIRKPATRICK J.A. : The appeal is dismissed. “The Honourable Madam Justice Fenlon”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Petersen v. Mulrooney, 2016 BCCA 27 Date: 20160115 Docket: CA42509 Between: Andrew Petersen Appellant (Plaintiff) And Kevin Mulrooney dba Sniper’z Outdoor Paintball Adventures Respondent (Defendant) Before: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Groberman The Honourable Madam Justice Fenlon On appeal from: an order of the Supreme Court of British Columbia, dated December 17, 2014 ( Petersen v. Mulrooney , 2014 BCSC 2393, New Westminster Registry No. S143346) Oral Reasons for Judgment Counsel for the Appellant: J. Woods Respondent appearing In Person: Place and Date of Hearing: Vancouver, British Columbia January 11, 2016 Place and Date of Judgment: Vancouver, British Columbia January 15, 2016 Summary: The appellant appeals the decision dismissing his action for damages arising out of an eye injury allegedly sustained while he was playing paintball. He sought damages against the owner of the paintball business on the basis that he was given a defective mask that allowed paint to pass through it and strike him in the eye. Held: Appeal dismissed. The owner owed the appellant a duty of care. However, the trial judge’s findings that the appellant failed to prove a number of elements essential to establishing a claim in negligence were amply supported by the evidence. [1] FENLON J.A. : The appellant Andrew Petersen alleges that his right eye was injured in July 2010 while he was playing paintball at Sniper’z Outdoor Paintball Adventures in Chilliwack – a business owned and operated by the respondent Kevin Mulrooney. [2] The allegation at trial was that Mr. Petersen was given a defective mask that allowed paint to pass through it and strike him in the eye. After a three day trial in November 2014, Mr. Petersen’s claim for damages for negligence was dismissed: Petersen v. Mulrooney, 2014 BCSC 2393. Errors Alleged [3] Mr. Petersen submits that the trial judge made four main errors: 1.         Misapprehending the evidence and making a number of findings of fact that are plainly wrong; since she relied on those errors to make an unfavourable credibility assessment about Mr. Petersen’s evidence, those errors are said to be material because they could have altered the result. 2.         Accepting lay opinion evidence to the effect that it is not possible for paint to travel through a face shield and hit a player’s eye when foam is missing from the mask; 3.         Rejecting Dr. Tam’s opinion that the incident caused Mr. Petersen’s eye injury; and 4.         Failing to find that the paint spray caused the injury when there were no other possible explanations for how the injury occurred. Analysis 1.         Misapprehension of the Evidence [4] I turn to the errors relating to misapprehension of the evidence. First, Mr. Petersen submits that the trial judge incorrectly understood that he was claiming the entire vision loss in the right eye was due to the paint spray, when in reality he only claimed the incident caused his vision to become incrementally worse and led to his eye starting to drift (exotropia). [5] While the trial judge does refer at para. 23 to Mr. Petersen claiming that “his vision loss resulted from the injury,” in my view she was referring to the extent of the incremental vision loss Mr. Petersen attributed to the incident. [6] Mr. Petersen candidly admitted that he had a congenital eye condition which caused significant pre-existing poor vision in his right eye. It is unlikely that the trial judge understood him to be claiming the entire vision loss was due to the July 2010 incident. [7] The second misapprehension of the evidence Mr. Petersen points to is the trial judge’s assumption that Mr. Petersen told Dr. Tam that he had stopped to buy eye wash after leaving the paintball field when he did not say he did so in his evidence at trial. In reality, the purchase of eye wash was one of the assumptions Dr. Tam was asked to make by Mr. Petersen’s counsel in providing her expert opinion. [8] Third, Mr. Petersen says the trial judge mistakenly thought Mr. Mulrooney did not accept the type of coupon Mr. Petersen said he used to pay for the paintball outing (at para. 36). [9] The second and third errors of fact alleged form but a small part of the evidence considered by the trial judge in assessing the credibility of Mr. Petersen. I will not repeat all of that evidence here. Two examples are referred to at paras. 50 through 52 of the reasons for judgment: [50]      In my view, the frailty of Mr. Petersen’s evidence was made plain during his cross examination, as even he himself realized as time went on. Toward the end of his cross examination, in a futile attempt to emphasize or, in my view, inflate his claims as to the force of the paint hitting his mask, he alleged that he had suffered a cut to his nose. No one corroborated such an injury. I do not accept this account by Mr. Petersen. [51]      One final point of contradiction was Mr. Petersen’s evidence about how he travelled to the BBQ after the paintballing. At his examination for discovery, he stated that he drove home there “in excruciating pain”, which sounded similar to his evidence in direct about his drive from the BBQ. In cross examination, Mr. Petersen said his son drove him to the BBQ. [52]      In conclusion, I give little, if any, weight to the evidence of Mr. Petersen in terms of his description of the events on July 10, 2010. Indeed, Mr. Petersen quite understandably says that he has no idea what happened. In my view, he only surmises now that since he had paint on the outside of the mask, it must have been paint that hit his eye. [10] When the reasons are read as a whole, it is apparent that the factual errors identified by Mr. Petersen are relatively minor. In my view they were not, even taken collectively, material enough to potentially alter the trial judge’s assessment of Mr. Petersen’s credibility. [11] Mr. Petersen also raised under this first ground of appeal the trial judge’s use of his pleadings and the late filing of his notice of civil claim to assess the reliability of his evidence. I will address each of these issues in turn. [12] In my view the trial judge did not err when she considered that a fundamental aspect of Mr. Petersen’s claim – the mechanism of the injury – changed on the first day of trial. The pleading stated the injury occurred when a paintball passed through a ventilation hole in his mask and struck him directly in the right eye. At trial, for the first time Mr. Petersen said he was injured by paint spray passing through the mask and striking his eye. No explanation was offered to account for this sudden change or to distance Mr. Petersen from the earlier version of what happened on the paintball field. [13] I turn now to the trial judge’s mistaken inference, drawn from the filing of the notice of civil claim almost two years after the incident, that Mr. Petersen did not initially intend to pursue a claim (at para. 35). Mr. Petersen submits that the trial judge made a negative finding about his credibility as a result of that mistaken inference. [14] Read in context, in my view the trial judge’s comments are merely an attempt to explain why Mr. Petersen’s evidence contained so many inconsistencies. Just before referring to the late filing, the trial judge said: [34]      I would observe at the outset that Mr. Petersen's credibility and ability to recall the events in question were sorely tested during the course of the trial. The same can be said for the ability of his collateral witnesses, Mr. Collins and Mr. LeMond, to accurately recall the events of that day. 2.         Accepting Lay Opinion Evidence [15] I turn now to the second ground of appeal: the alleged error in relation to lay opinion evidence. [16] Mr. Mulrooney testified that it was not possible for paint to travel through one of his rental masks and strike Mr. Petersen in the eye, even if foam was missing. Similar evidence was given by Mr. Teodosio, an experienced paintballer. There was evidence before the court that Mr. Mulrooney had been involved in paintballing as a business owner and high-level competitor for 30 years. However, neither witness was formally qualified as an expert. [17] Mr. Petersen submits that the trial judge erred in relying on Mr. Mulrooney’s opinion when she said at para. 69 of her judgment: [69]      In any event, the uncontradicted evidence of Mr. Mulrooney and Mr. Teodosio is that foam is not necessary from a safety point of view. It is there for comfort. Their evidence was that a mask without any foam is still entirely safe and designed, if properly worn, to prevent any paint from entering the eye area. Mr. Mulrooney’s evidence was that it was not possible for paint to go through a face shield and travel to hit the eye even if there was a lack of foam. [18] In my opinion it is not necessary to determine whether the impugned evidence falls outside the parameters of admissible lay opinion evidence described in American Creek Resources Ltd. v. Teuton Resources Corp. , 2013 BCSC 1042, upheld by this Court in 2015 BCCA 170. That is so because the trial judge found as a matter of fact that the mask Mr. Petersen was wearing was not missing any foam. At paras. 68 and 80 she said: [68]      I do not accept Mr. Petersen's evidence concerning the lack of foam in his mask. Again, I consider that his evidence is largely reconstructed and intended to ex post facto support his claim here. I accept that there may have been some wear on the foam in these masks and Mr. Mulrooney confirmed that he would have rented out a mask with some deterioration in the foam. I accept his evidence, however, that if there was too much wear on the foam, he would have discarded the mask. [80]      As I have stated above, I found Mr. Petersen’s evidence concerning the foam entirely lacking in credibility and I reject his evidence. [19] After each of these references, the trial judge went on to say that “in any event” there was evidence that deterioration of the foam would not affect the mask’s safety. However, the evidence of Mr. Mulrooney and Mr. Teodosio about foam and mask safety did not affect the trial judge’s preliminary finding that Mr. Petersen had failed to prove that the mask he wore that day was missing foam. [20] Mr. Petersen also submits that the trial judge misconstrued the nature of the opinion evidence. She stated that Mr. Mulrooney denied paint spray could hit the eye through a mask, when in fact Mr. Mulrooney acknowledged in cross-examination that it was possible. However, it is apparent from the reasons as a whole that the issue before the court was whether the force of any spray that made its way through a mask could cause injury. [21] Further, the trial judge expressly acknowledged at para. 57 of her reasons “that paint may have splattered Mr. Petersen in the lower part of the left side of his face if he was hit on the left side of his mask”. Ultimately, however she did not accept that a paintball striking Mr. Petersen on the left side from a 90 degree angle could penetrate the mask and continue to “travel to the other side of his face on a straight trajectory in which his right eye would have been blocked by his nose” to end up striking the right eye with enough force to cause an abrasion injury. Her finding on the improbability of this mechanism of injury is distinct from the condition of the mask and its permeability. 3.         Failure to accept Dr. Tam’s opinion [22] I turn to the third ground of appeal. Mr. Petersen argues that the trial judge did not properly consider Dr. Tam’s opinion that the injury she observed in July 2010, two days after Mr. Petersen played paintball, was caused during the game. [23] Dr. Tam’s opinion was based on an assumption that Mr. Petersen was struck in the eye with a paintball about the size of a thumb. She did not of course observe the incident. She could only accept what her patient told her and reasonably concluded therefore that the injury was explained or caused by a paintball hitting Mr. Petersen’s eye. [24] It is trite law that the weight to be given an expert’s opinion depends in large part on whether the assumptions made by the expert to support her opinion accord with the facts proved at trial. Mr. Petersen did not prove at trial that a paintball hit his eye. Indeed, by the time the trial proper began, he did not even assert that to be so. He said instead that his eye was hit by paint spray. It is significant that there was no allegation that the injury to the eye was chemical in nature, i.e., caused by the composition of the paint itself. The injury was always described as due to a percussive force, i.e., something hitting the eye with enough force to cause an injury. [25] In support of his argument that the trial judge erred in rejecting Dr. Tam’s conclusion on causation, Mr. Petersen at para. 76 of his factum asserts: At no time was [Dr. Tam] asked whether or not her opinion would have changed had she been told it was paint that struck Mr. Petersen in the eye as opposed to a complete paintball. [26] However, it was not up to Mr. Mulrooney to elicit from Dr. Tam evidence that her opinion would remain the same even if paint spray rather than a paintball had struck Mr. Petersen’s eye. The onus was on Mr. Petersen to prove that his eye injury was caused by spray hitting his eye. Dr. Tam’s opinion did not address that question. I see no error in the trial judge’s decision to accord no weight to Dr. Tam’s opinion on the causation issue in these circumstances. [27] Finally, Mr. Petersen argues that the trial judge erred in rejecting his explanation for his eye injury when there was no other explanation for it. The trial judge was required to assess the evidence and determine on a balance of probabilities whether the elements of negligence had been made out by Mr. Petersen. It was open to her to reject the explanation and evidence of Mr. Petersen. That finding did not depend on her ability to explain how the injury in fact occurred. Summary [28] The trial judge found that Mr. Petersen proved he suffered an injury to his right eye in July 2010, and that Mr. Mulrooney owed him a duty of care. However,  the trial judge found Mr. Petersen did not prove a number of the other elements essential to establishing a claim in negligence, including that: 1. His injury was caused by paint entering his mask and hitting his right eye (at para. 78); 2. The mask he wore was defective (at paras. 79, 80); and 3. Mr. Mulrooney breached the duty of care he owed to Mr. Petersen. [29] In my view the trial judge’s findings on these issues are amply supported by the evidence. I would therefore dismiss the appeal with costs to the respondent. [30] KIRKPATRICK J.A. : I agree. [31] GROBERMAN J.A. : I agree. [32] KIRKPATRICK J.A. : The appeal is dismissed. “The Honourable Madam Justice Fenlon”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Thomasson v. Moeller, 2016 BCCA 14 Date: 20160115 Docket: CA42525 Between: Tanja Thomasson Respondent (Plaintiff) And Brett Moeller, Taurean Seib, Loren Perraton and Robert Thomasson Appellants (Defendants) Before: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Frankel The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated December 31, 2014 ( Thomasson v. Moeller , 2014 BCSC 2465, Victoria Registry Docket 114258). Counsel for the Appellant: S.B. Stewart Counsel for the Respondent: S. Sweeney Place and Date of Hearing: Victoria, British Columbia December 7, 2015 Place and Date of Judgment: Vancouver, British Columbia January 15, 2016 Written Reasons by: The Honourable Madam Justice Kirkpatrick Concurred in by: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Savage Summary: Appeal from an award of damages for injuries sustained by the respondent in a motor vehicle accident in 2011. The appellant contends that the trial judge erred in failing to draw an adverse inference against the respondent, in failing to reduce damages to account for the respondent’s lack of cognitive behavioural therapy prior to 2013, and in failing to reduce damages to account for various contingencies. Held: appeal dismissed. The judge did not err in failing to draw an adverse inference. It was open to him to find that the respondent did not act unreasonably in mitigating her damages, and it was within his discretion to weigh the potential effectiveness of various forms of treatment. His assessment of loss of future income factored in contingencies and was within the range of acceptability. Reasons for Judgment of the Honourable Madam Justice Kirkpatrick: [1] The appellant, Robert Thomasson, appeals from the order made in the Supreme Court on December 31, 2014, that awarded damages to the respondent, Tanja Thomasson, as a result of injuries she sustained in a motor vehicle accident on January 9, 2011. [2] The action was commenced against several defendants. The appellant admitted liability just prior to trial. The action against the defendants other than Mr. Thomasson was dismissed by consent. The trial proceeded only against the appellant on the issues of damages and causation. [3] There are three issues on appeal: (a) the trial judge’s failure to draw an adverse inference; (b) the respondent’s duty to mitigate her damages by undertaking cognitive behavioural therapy (“CBT ˮ); and (c)      the application of contingencies in the award for future lost earning capacity. BACKGROUND [4] On January 9, 2011, Ms. Thomasson was a passenger in a full size pick-up truck driven by her husband, Mr. Thomasson. They were travelling on the Nanaimo bypass. Mr. Thomasson was driving at a faster than appropriate speed. On making a turn, he suddenly realized that the traffic ahead of him had stopped. He collided with the back of one vehicle and came into contact with another vehicle before coming to a stop. His truck was extensively damaged and written off. [5] At the time of the accident, Ms. Thomasson was 36 years of age and married to the appellant, with whom she had two children. She qualified to be a licensed practical nurse in 2002. Apart from two maternity leaves, she worked full time until she and her husband moved to Nanaimo in 2008. She then obtained casual on-call work at the Nanaimo Regional General Hospital. At the time of the accident, she was working full time in a temporary position. [6] It is undisputed that Ms. Thomasson sustained injuries to her neck and back and bruising to both knees. She had low back pain and headaches, neck pain, and upper back and shoulder pain. The trial judge found that her condition was chronic and expected to persist “over a very long time ˮ. Ms. Thomasson also experienced depressed mood, had difficulty sleeping, and complained of nausea, fatigue, poor memory and dizziness. [7] It is also undisputed that Ms. Thomasson undertook many forms of therapy and treatment for her injuries including massage therapy, physiotherapy, chiropracty, acupuncture, and exercise. The judge found that “she sought out and participated in the treatments that were recommended for her, but none were particularly effective in spite of intense effort on her partˮ. [8] What is disputed is the course of her psychological treatment. The appellant contends that Ms. Thomasson failed to take CBT at an early opportunity, which, the appellant contends, consequently delayed her recovery from the injuries sustained in the accident. [9] In the months following the accident, Ms. Thomasson’s family physician, Dr. Collins, noted that her recovery was impeded by her poor mood and her frustration with the changes in her life and continuing pain. [10] On May 25, 2011, at the request of Ms. Thomasson’s counsel, Dr. Corney, a neuropsychologist, conducted a medical-legal assessment. Dr. Corney noted that anti-depressant medication had a positive impact on Ms. Thomasson’s mood and functioning but that: significant symptoms of depression remain, and it is therefore suggested that the pharmacological treatment be supplemented with a psychological intervention. Specifically, it is recommended that she be referred to a psychologist for cognitive behavioural therapy, as a large body of research has demonstrated that this type of therapy is effective for treating depression and enhancing coping skills. [11] Commencing in the summer of 2011 and continuing until December 2011, Ms. Thomasson received counselling from a psychologist, Dr. Jones. [12] There was no firm evidence as to whether Dr. Jones knew of Dr. Corney’s recommendation for CBT. Ms. Thomasson was unsure whether she provided a copy of Dr. Corney’s report to Dr. Jones. She believed that Dr. Jones had a copy but did not recall giving it to her. The judge concluded that Dr. Jones likely did not receive this report. The judge also found that there was no evidence that Ms. Thomasson ever received CBT from Dr. Jones. [13] Ms. Thomasson attempted a graduated return to work in December 2012. This return lasted only two weeks as she could not manage the work without considerable pain. [14] She then began a series of sessions with another psychologist, Dr. Tessier. The judge found that Ms. Thomasson “found these sessions helpful” but noted that, “as there is no report of Dr. Tessier in evidence, it is not known what therapy was undertaken or what Dr. Tessier concluded about her progress ˮ . [15] Ms. Thomasson was re-assessed by Dr. Corney on March 22, 2013. He reported to her counsel: At the time of my 2011 assessment, it was my recommendation that Ms. Thomasson be referred to a psychologist for cognitive behavioral therapy, a form of treatment that is effective for treating depression and enhancing copying skills. Information from the current assessment indicates that Ms. Thomasson did attended [ sic ] several sessions of psychotherapy with a psychologist, but the primary focus of those sessions appears to have been on developing and reinforcing strategies for pain management. This was certainly an important treatment goal and appears to have been effective in helping Ms. Thomasson cope with her pain symptoms. However, it is my opinion that her symptoms of depression have not been adequately treated and that clinically significant anxiety symptoms are now present as well. Ms. Thomasson may experience some spontaneous resolution to her symptoms as she continues to re-engage in work and other pre-accident activities, but it is my opinion that she would benefit from a referral for additional sessions of psychotherapy, with a primary focus being on treating her depression and anxiety symptoms. [16] In June 2013, Ms. Thomasson had further psychological counselling from Dr. Tessier, including a form of CBT, which she testified was beneficial. [17] At the request of counsel, two psychiatrists, Dr. Semrau (for the defendant) and Dr. O’Breasail (for the plaintiff), conducted independent medical examinations in October and November 2013. [18] Dr. Semrau recommended that Ms. Thomasson take counselling “utilizing evidence-based methods such as cognitive-behavioural therapy ˮ. He reported to defence counsel: Ms. Thomasson indicated she started to see psychologist Dr. Anne-Marie Jones in the summer of 2011, working on various psychological issues including acceptance, life coping strategies (as alternatives to the use of exercise pre-MVA), psychological pain management strategies, etc. Ms. Thomasson believes that this therapy had been going well, but Dr. Jones then semi-retired. Therefore Ms. Thomasson was since transferred to the care of psychologist Dr. Tessier. They have had 5-6 sessions so far roughly every 3 weeks, but Ms. Thomasson stated it has been recommended that this be increased to weekly sessions. She stated they have been working on generally dealing with her physical and emotional symptoms and coping strategies, including using (what sounded to the writer like) cognitive-behavioral therapy. She does not believe they have yet been utilizing psychological pain management strategies as yet, but Ms. Thomasson seemed to think this was part of their future therapeutic plan. [Emphasis added.] [19] Dr. O’Breasail recommended that “if possible a cognitive/behavioural technique should be used to specifically address her chronic pain, her depression and anxiety, and the link therein ˮ. Dr. O’Breasail acknowledged under cross-examination that Dr. Corney had recommended CBT in 2011, but noted that Ms. Thomasson had received an array of psychological treatments: Q         That treatment, which wasn’t the treatment that was recommended, it wasn’t treatment as effective likely as the one that was recommended, had given her some benefit? A          She certainly had benefited from that, yes. And in its own right it’s a good treatment focusing on pain management. Q         Yes, but cognitive behavioural therapy is more than pain management, it’s to treat the depression, correct? A          That is correct. But in reviewing Dr. Jones’ notes I believe that she did also treat depression. It wasn’t just the pain management. She didn’t isolate the two, because it’s impossible, as he indicated earlier, the two are so clearly intertwined that you cannot treat one without the other. [20] Dr. O’Breasail also conceded that if Ms. Thomasson had received CBT “at the outset, likely it would have pushed things on a bit and things would have turned out probably better sooner ˮ. [21] At trial, Ms. Thomasson advanced the position that she is likely to be disabled from full-time work as a licensed practical nurse for the remainder of her working life. [22] On the issue of loss of future income earning capacity, an occupational therapist, Min Trevor Kyi, testified that Ms. Thomasson was able to work as a licensed practical nurse, with a range of work tolerance between 20 to 40 hours per week, with the lower end of the range being “relatively tolerableˮ. [23] An economist, Robert Wickson, provided a loss of earning capacity report which took into account unemployment, possible part-time work, and non-participation in the labour force in the calculation of present value discount factors. TRIAL REASONS [24] In reasons indexed at 2014 BCSC 2465, the judge reviewed the evidence in detail, including (with one omission) the foregoing summary of the expert evidence. The judge’s central finding was as follows: [40]      The plaintiff is relatively young and was fit and active prior to the accident. She enjoyed regular exercise and fitness workouts as well as various activities with her family. Her injuries can be described as serious soft tissue injuries that have developed into chronic pain syndrome. I accept the evidence that there is a strong likelihood that she will continue to be affected by her injuries for the rest of her life. She experiences daily pain and reduced energy. Her ability to work at her profession is limited. She is not able to participate in the program of fitness that she had followed and enjoyed prior to the accident. [25] The judge specifically addressed the three issues raised on appeal. The first issue concerned an adverse inference that the defendant asked the judge to draw by reason of Ms. Thomasson’s failure to call Dr. Jones as a witness. The judge addressed this issue as follows: [129]    The defendant points out that there is no evidence from Dr. Jones and the defendant submits an adverse inference should be drawn. The defendant said that initially, the plaintiff testified that she had provided Dr. Jones with a copy of Dr. Corney’s report. The inference was that Dr. Jones was likely aware of the recommendation for cognitive behavioural therapy, but decided against it. However, under cross-examination, the plaintiff was less sure and said at some point that she did not recall giving Dr. Jones a copy of Dr. Corney’s report and she did not know if anyone else had done so. [131]    Dr. Jones was apparently listed as a potential witness, but was not called. The defendant says her evidence may well have shed some light on the issue of cognitive behavioural therapy, most importantly whether she did receive Dr. Corney’s report, and what type of therapy she delivered. [133]    The defendant relies on two cases: Jones v. Trudel, 2000 BCCA 298 and Zawadzki v. Calimoso , 2011 BCSC 45 at para. 149. The adverse inference suggested respecting Dr. Jones seems to be that she did not administer cognitive behavioural therapy or rejected its appropriate use. There is no evidence that the plaintiff has ever received cognitive behavioural therapy for [ sic ] either Dr. Jones or Dr. Tessier. I do not see how drawing such an adverse inference advances the analysis in any way. [26] I pause to note that the judge appears to have misapprehended the evidence as to whether Ms. Thomasson received CBT from Dr. Tessier. As Dr. Semrau stated in his November 2013 report, it “sounded” to him that Dr. Tessier had treated Ms. Thomasson with CBT. [27] The second issue, the alleged failure to mitigate, was answered as follows: [134]    As to the plaintiff’s failure to mitigate her loss by failing to take cognitive behavioural therapy, I am not inclined to make such a finding. The law in this area is not controversial. The leading cases are Janiak v. Ippolito , [1985] 1 S.C.R. 146 and Chiu v. Chiu , 2002 BCCA 618. In Chiu at para. 57, the court said: The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito , [1985] 1 S.C.R. 146. [28] The judge concluded that Ms. Thomasson had not behaved unreasonably in the manner alleged by the defendant. He stated: [136]    Here, the plaintiff sought out and participated in a wide variety of therapies. She was very proactive in trying to find a treatment that worked for her. The evidence indicates and I accept that she had [ sic ] at all times did her best to recover from the injuries so she could return to work. She wanted to work because she wanted to build the necessary seniority to obtain a full-time position along with the associated benefits of such a career. She wanted to recover because she was extremely active in recreational sport and with her family life. [137]    I do not find that she acted unreasonably in failing to take cognitive behavioural therapy. She was taking other therapy and was showing some improvement. The defendant accepts that he must prove that the plaintiff acted unreasonably in failing to undertake the recommended treatment and says that the defendant must go on to prove that there was a “possibility” that the course of treatment of cognitive behavioural therapy would have improved the plaintiff’s recovery. The defendant submits that it is not necessary to prove that her condition would definitely have been improved or even to prove on a balance of probabilities. [138]    The language of other cases uses the words “likely” as in “she would likely have improved.” However, in my view, defendant’s counsel sets the bar too low when he submits that all the defendant must show is a possibility her condition would have been improved. Even if I am wrong in that conclusion, it seems to me that the evidence here is at best a suggestion that it “might have” caused an improvement, not that it would have. [139]    Obviously, when dealing with psychotherapy or psychiatry, there is a great deal of room for conjecture as to what might have happened had a particular course of therapy been undertaken. In this case, the plaintiff sought and accepted many types of therapy in what I find was a genuine effort to recover her pre-accident condition. I do not find that the evidence satisfies me that there was even a likely improvement possible as a result of cognitive behavioural therapy. At best, it suggests that it is a therapy that had some possibility of being effective. I do not accept that the plaintiff has failed to mitigate her damages by not taking cognitive behavioural therapy. [29] In addition to the argument that Ms. Thomasson failed to mitigate her loss by not taking CBT, the defendant also alleged that she should have sought workplace accommodation. The judge addressed that submission as follows: [140]    The defendant also submits that the plaintiff should have sought a workplace accommodation so that she could have returned to work as an LPN with duties that were appropriate to her condition. The defendant called Mr. J. W. Rose who is the manager of disability management at the Vancouver Island Health Authority. (“VIHA”) He gave evidence that the plaintiff had not made any request for work accommodation. [144]    Applying the analysis in Janiak v. Ippolito and the cases referred to above, I am not able to say on the evidence before me that it was unreasonable of the plaintiff not to apply for workplace accommodation. It does not appear that anyone at VIHA advised her of the policy or gave her any direction or information on the issue. There is nothing in the evidence to suggest the plaintiff was, or should have been aware of the possibility of an accommodation. Also, given the nature of the work of an LPN, it does not seem likely that it would have been easy to find the kind of accommodation the plaintiff required. The plaintiff can do the work of an LPN, but only for a reduced length of time. In all of the circumstances I find that the plaintiff has not failed to mitigate her loss by seeking a workplace accommodation. [30] The third issue is that the judge erred by failing to reduce damages for the contingencies that Ms. Thomasson would obtain full-time work in the future, either due to recovery or by obtaining accommodations at her workplace. [31] The judge approached the question of contingencies with the relevant case law in mind: [96]      As noted in Gregory v. ICBC , 2011 BCCA 144, an award for future losses requires a comparison between the plaintiff’s likely future income had the accident not happened, to be compared with the plaintiff’s future post-accident period. In doing so, I must determine how long the plaintiff would likely have worked before retiring and the impact of various contingencies that may have impacted the course of her life. [32] The judge found that the medical opinions supported the presence of a disability that restricted or limited Ms. Thomasson’s ability to work full time and that there was unlikely to be much improvement in her ability to work as a licensed practical nurse. [33] The analysis that resulted in an award of loss of future income of $324,000 is set out in the reasons as follows: [99]      In this case, the plaintiff was qualified and well experienced as an LPN. She was a hard worker and well regarded by her peers and supervisors. I have concluded that she would have acquired a full-time permanent position by January 1, 2012 and as a result, she would have had a secure position in a health care profession. She had established her family and home and was secure in both. I find she would have worked full-time until likely retirement age at 65. I find that given two incomes, the likely pensions associated with those employers, and given the plaintiff’s disciplined and determined nature, she will be able to work two-thirds of full-time or 25 hours per week based on a week of 37.5 hours. I apply the finding that full-time salary for an LPN equals $60,000 per year. The result is an annual income of $39,999.99 at two-thirds time, which I will round up to $40,000. That results in an annual loss of income of $20,000 per year commencing in the year 2015. [100]    Using the factors set out in Table 2 of the revised calculations of Mr. Wickson (Discount factors allowing for contingencies), I apply a factor of 16.200 times $20,000 for a total loss of future income of $324,000. I have used the revised calculations to reflect the discount factors under the Law and Equity Regulation 352 / 81. That regulation is in effect at the date of the judgment and in my view is appropriate even though it was not in effect as at the date of the trial. Therefore I award the plaintiff $324,000 as the loss of her future income. DISCUSSION A.       ADVERSE INFERENCE [34] I first observe that “[w]hether an adverse inference is drawn from failure to call a witness is a question for the trier of fact ˮ: Buksh v. Miles , 2008 BCCA 318 at para. 33. Nor is a judge bound to draw an adverse inference from the failure of a witness or party to testify: Weeks v. Baloniak , 2005 BCCA 193 at para. 12. [35] The law relevant to adverse inferences was helpfully summarized in Zawadski v. Calimoso , 2011 BCSC 45, where Mr. Justice Voith stated: [149]    An adverse inference may be drawn against a party if, without sufficient explanation, that party fails to call a witness who might be expected to provide important supporting evidence if their case was sound: Jones v. Trudel , 2000 BCCA 298 at para. 32. The inference is not to be drawn if the witness is equally available to both parties and unless a prima facie case is established: Cranewood Financial v. Norisawa , 2001 BCSC 1126 at para. 127; Lambert v. Quinn (1994), 110 D.L.R. (4th) 284 (Ont. C.A.) at 287. [36] The appellant contends that the judge misinterpreted the adverse inference which the defence sought to be drawn from Ms. Thomasson’s failure to call Dr. Jones. The judge understood this inference to be that Dr. Jones was likely aware that Dr. Corney had recommended CBT but decided against administering it. The appellant now frames this inference as follows: that Dr. Jones did not provide CBT because she was unaware of Dr. Corney’s recommendation. [37] In my opinion, any adverse inference concerning Dr. Jones’ failure to provide CBT to Ms. Thomasson, no matter how that inference is framed, is of little consequence in the context of the judge’s findings as a whole. As I will go on to discuss, the significance of CBT in Ms. Thomasson’s care was, as the judge found, overwhelmed by the wealth of evidence that she undertook the treatments that were recommended by her care providers, which did not include Dr. Corney. The judge did not accept that Ms. Thomasson acted unreasonably in failing to take CBT. The force of that conclusion is only strengthened by the fact that Ms. Thomasson did indeed receive CBT from Dr. Tessier. [38] Setting this overriding concern aside, it seems perverse that, given all of the circumstances, the appellant now contends that the judge erred in failing to draw an adverse inference from Dr. Jones’ failure to testify: (a) Dr. Jones was initially listed as a witness in the plaintiff’s case but evidently refused to testify. Even so, the ability to call Dr. Jones as a witness was available to both parties. (b) Ms. Thomasson’s counsel received consultation reports from Dr. Jones but these reports were not prepared for medical-legal purposes. At trial, counsel for the defendant successfully objected to the admission of these reports on the basis that they did not conform to the expert evidence rule. (c) The defendant’s argument in favour of an adverse inference was advanced by way of written submissions at trial. In my view, these written submissions did not frame, at least in a coherent form, the adverse inference that the appellant now says was advocated for at trial. It is therefore not surprising that the judge may have misapprehended the inference which the defendant sought to be drawn. [39] It is also, in my opinion, a leap in logic in these circumstances to ask the court to infer that Dr. Jones did not provide CBT because she did not receive Dr. Corney’s report. This proposition rests, in part, on the implication that it was Ms. Thomasson’s obligation (or her counsel’s) to ensure that Dr. Jones received Dr. Corney’s report. In my opinion, such an implication should not be sustained. Dr. Corney was retained by plaintiff’s counsel to provide a medical-legal report. He was not a treating physician whose recommendations Ms. Thomasson was obliged to follow, nor was she obliged to tell her treating psychologist, Dr. Jones, of Dr. Corney’s recommendation for CBT. [40] I would not accede to this ground of appeal. B.       MITIGATION [41] It is trite law that the question of whether a refusal of treatment is reasonable or not is a question for the trier of fact: Janiak v. Ippolito , [1985] 1 S.C.R. 146 at 172. It is similarly trite law that an appellate court cannot interfere with a trial judge's finding of facts “unless a palpable error leading to a wrong result has been made by the trial judge ˮ: Housen v. Nikolaisen , 2002 SCC 33 at para. 4. [42] As can be seen from the judge’s reasons, he was guided by the authorities that required the defendant to prove two things: that Ms. Thomasson acted unreasonably in not taking CBT, and the extent to which her damages would have been reduced, if at all, had she acted reasonably. [43] Ms. Thomasson agreed in cross-examination that she received Dr. Corney’s report some time in 2011. She read the report and its recommendations. She could not recall if she gave Dr. Jones a copy of Dr. Corney’s report. [44] In direct examination, Ms. Thomasson described the treatment that she received from Dr. Jones. She was not cross-examined as to whether, in 2011, she appreciated the distinction between CBT and other forms of psychotherapy, or whether, as the defendant contended, she did not receive CBT from Dr. Jones. [45] When, in re-examination, her counsel attempted to have Ms. Thomasson elaborate on whether she did CBT exercises with Dr. Jones, counsel for the defendant successfully objected to it as not arising from his cross-examination. As a result, the judge was left with an inadequate record of the specific nature of Dr. Jones’ treatment. [46] Given Ms. Thomasson’s concerted efforts in obtaining treatment, it seems highly unlikely that she would have knowingly refused a treatment that was recommended to her. As the judge found, Ms. Thomasson “at all times did her best to recover from the injuries so she could return to work ˮ. [47] It is clear the judge did not accept that Ms. Thomasson acted unreasonably in failing to take CBT. While he was mistaken that she had not taken any CBT, this is a harmless error in the circumstances. He was persuaded that Ms. Thomasson was highly motivated to recover her health and, as the defendant’s witness, Dr. Semrau, observed, had undertaken generally appropriate mental health treatment. [48] The appellant further contends that the judge misconceived the evidence as to CBT’s efficacy. The judge found that, at best, there was some possibility that CBT would be effective. The appellant submits that CBT is the “gold standard” psychological treatment for individuals such as Ms. Thomasson and that early intervention with CBT would have increased the probability of improvement, relying especially on the evidence of Dr. O’Breasail. [49] In my opinion, Dr. O’Breasail’s evidence as to the probable course of Ms. Thomasson’s recovery was more nuanced than described by the appellant. In cross-examination, Dr. O’Breasail gave the following answers: Q         All right. The fact that she got better without the treatment just means             that she'd almost certainly got even better faster with the treatment? A          Yes, but again, treatment of chronic pain and depression is very -- you know, it’s complex. You need many different forms of treatment modalities. My understanding is that she engaged in physiotherapy, she had massage therapy, I believe she had chiropractic and she had individual counselling. She saw her general practitioner on a regular basis. She was on medications. So she had multiple treatments. I agree with you though that if she had the cognitive behavioural treatment at the outset, likely it would have pushed things on a bit and things would have turned out probably better sooner, I agree. Q         So you remove the depression, you enhance the effectiveness of the therapy, and that’s why you get a virtuous circle when you have both psychotherapy and physical therapy going on? A          I think it’s far too simplistic to say to remove the depression. The reason she is depressed is because of the chronic pain and associated difficulties that one gets with chronic pain. [50] It was within the judge’s discretion to accord the appropriate weight to the various modalities of treatment, including CBT, taken by Ms. Thomasson. [51] In my opinion, it cannot be said that the judge made a palpable error in his findings of fact with respect to mitigation. The burden was on the defendant to establish that the wide variety of therapies that Ms. Thomasson underwent did not satisfy her obligation to mitigate her damages. It was open to the judge to find that this burden was not met. [52] I would not accede to this ground of appeal. C.       CONTINGENCIES [53] The judge calculated Ms. Thomasson’s lost income earning capacity by assuming a loss of $20,000 per year and then multiplying that figure by 16.2000, the economist’s factor for future wage loss to age 70. That factor included contingencies for general market contingencies and added the value of employee benefits. The factor also included contingencies for voluntary withdrawal from the workforce (including disability and unemployment) and part-time work. [54] The appellant contends that there was evidence before the judge that, with CBT, Ms. Thomasson’s recent improvement, and the possibility of workplace accommodation, there was a prospect that she would be able to return to full-time work. The appellant submits the judge erred in giving no allowance for that contingency. [55] Ms. Thomasson submits that the judge considered and rejected the contingency advocated by the appellant. As the judge found, Ms. Thomasson attempted to increase her hours of work, but her symptoms worsened. The judge found that her work aggravated her injuries, and that there was inadequate evidence as to the availability of accommodation in her work as a licensed practical nurse. He ultimately found that she would not be able to increase her hours of work. [56] Further, as Ms. Thomasson points out, the judge used a multiplier that allowed for contingencies that were inapplicable to Ms. Thomasson – for example, that she would voluntarily choose to work part time, when the evidence was that she has, throughout her working life, always sought full-time work. The judge also assumed in his calculation that Ms. Thomasson would work 25 hours per week when the evidence suggested that she could only tolerate an average of 22.1 hours per week in 2013. [57] In these circumstances, I consider that the judge’s assessment of loss of future income was within the range of acceptability. Although the judge did not recite every contingency accepted or discarded, when one reads the reasons as a whole, it is clear that he was alive to the factors that affected the award. [58] I would accordingly not give effect to this ground of appeal. CONCLUSION [59] I would dismiss the appeal. “The Honourable Madam Justice Kirkpatrick” I agree: “The Honourable Mr. Justice Frankel” I agree: “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Jalifi, 2016 BCCA 18 Date: 20160119 Docket: CA42957 Between: Regina Respondent And Rachid Ali Jalifi Appellant Before: The Honourable Madam Justice Bennett (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated June 24, 2015 ( R. v. Jalifi , 2015 BCSC 1085, Kelowna Docket 75771). Counsel for the Appellant: N. Cobb Counsel for the Respondent: M. Scott Place and Date of Hearing: Vancouver, British Columbia November 24, 2015 Place and Date of Judgment: Vancouver, British Columbia January 19, 2016 Summary: The applicant applies for leave to appeal summary convictions for two counts of assault. The issue at trial was identification. HELD: Leave to appeal dismissed. There is no error of law that meets the test for leave to appeal. Reasons for Judgment of the Honourable Madam Justice Bennett: [1] Mr. Jalifi brings an application for leave to appeal a summary conviction appeal that dismissed the appeal from his conviction on two counts of assault entered on January 6, 2014. The reasons for judgment of the summary conviction appeal judge are indexed at 2015 BCSC 1085. [2] The guiding provision is s. 839 of the Criminal Code , R.S.C. 1985, c. C-46: 839. (1) Subject to subsection (1.1), an appeal to the court of appeal as defined in section 673 may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone [3] The issue at trial was the identification of the assailant. The two victims were assaulted outside a nightclub in Kelowna, B.C. The assailant fled the scene. Mr. Jalifi was later arrested in a black Mercedes Benz, his photo was placed in a photo-pack and identified by some of the witnesses. [4] The applicant raised numerous ground of appeal: i)        the summary conviction appeal judge erred by characterizing the trial judge’s determination on the fairness of the photo-pack as a question of fact; ii)        there were palpable and overriding errors made by the summary conviction appeal judge; and he misapprehended the evidence; iii)       the summary conviction appeal judge failed to deal with the argument that the trial judge erroneously relied on hearsay evidence; and then fell into the same error; and iv)       that the summary conviction appeal judge failed to apply the correct legal principles in relation to eye witness identification. [5] The test to apply to whether leave to be appeal should be granted is found in R. v. Winfiled , 2009 YKCA 9 at para. 13: [13]      To obtain leave to appeal from the decision of a summary conviction appeal court, the applicant must establish that (a) the ground of appeal involves a question of law alone, (b) the issue is one of importance, and (c) there is sufficient merit in the proposed appeal that it has a reasonable possibility of success. The overriding consideration in the exercise of the discretion to grant or refuse leave is the interests of justice: R. v. Cai , 2008 BCCA 332, 258 B.C.A.C. 235 at para. 26 (Chambers); R. v. Gill , 2008 BCCA 259 at para. 3 (Chambers). i)        Photo-pack [6] Mr. Jalifi takes issue with the manner in which the photo-pack was prepared, arguing that the process did not follow the acceptable procedure for photo-pack identification. The evidence, in short, is that the photos were chosen by a civilian jail guard, who was aware that he was looking for photos similar in appearance to the suspect. The photo-pack was reviewed by the investigating officer. He determined that the suspect should not have his large earrings or chain on in his photo. This is argued to be an error, as no witness described the jewelry. In my view, there was no error in removing the very distinctive jewelry. Not to do so would likely have been a fatal error in the presentation of the photo-pack. [7] The officer organizing the photo-pack did not know who the suspect was. She also reviewed the photo-pack for similarities between photos. The officers who presented the photo-pack to the witnesses also did not know which photo was that of the suspect. [8] The trial judge found, at para. 17: In each case the photographs were presented one-by-one to the witness. The constable presenting the photographs did not know the particulars of the case nor the identity of the accused. Each interview was conducted objectively and fairly. In my view, the photos which formed the photo pack, fairly matched Mr. Jalafi’s descriptors. In other words, the line-up was fair. [9] And at para. 30: I have carefully reviewed the evidence. I had an opportunity to review each of the videotaped photo pack interviews. They were procedurally correct and fair. In each case I was able to observe the witnesses’ identification as well as the words and actions that accompanied the identification. This is not a case where there is only one eyewitness. This is not a case where the witnesses only had a fleeting glimpse of the accused. Three of the four civilian witnesses have identified Mr. Jalafi as the male who struck Mr. Scott and Mr. Drechsler. Although I place little weight on the in-court identification, I am satisfied that the photo line-up was conducted fairly and in accordance with the law. On the totality of the evidence I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Jalafi was the male who assaulted both Mr. Scott and Mr. Drechsler. [10] The summary conviction appeal court judge found that there was no basis to disturb the trial judges’ findings. I agree with this conclusion. Whether the finding that a photo-pack is “fair” or properly conducted is a question of fact does not matter, as in this case, it is clearly not a question of law alone. The appellant disputes the findings of fact, not the conclusion of law reached on the basis of those facts. See R. v. Morin , [1992] 3 S.C.R. 286 at 294–296. [11] In my view, there is no basis to grant leave to appeal on this ground. The issue does not raise a question of law alone, it is not a question of importance and has little merit. ii)        Palpable and overriding errors and a misapprehension of the evidence [12] Although raised as a separate ground, Mr. Jalifi raises errors made by the summary conviction appeal judge in the context of his analysis of the photo-pack process. If the judge misstated the evidence in the context of the photo-pack, it was not to the degree of palpable or overriding, nor did it materially affect his decision. For example, Mr. Jalifi repeats the fact that the summary appeal judge referred to the photo-pack as a photo line-up. He discusses what he refers to as misstatements with respect to the “physical descriptors” of the suspect, when what the officers relied on was the photo of the suspect, and whether the other photos were sufficiently similar. None of the alleged “misstatements”, if they amounted to misstatements in relation to the photo-pack, were material. Indeed, most of the issues raised by Mr. Jalifi are trifling. The conclusion that the photo-pack was “fair” was based on general compliance with a process that has been recommended in the Sophonow Inquiry . [13] I would not grant leave to appeal on this ground. [14] In summarizing the evidence, the trial judge stated, at para. 12, “He describes seeing the male cross the street with his friends and get into a car which he believed to be a black Mercedes.” The “he” was one of the victims, Brian Dreschler. Mr. Dreschler did not give this evidence. The evidence was hearsay evidence provided by the police officer from a witness at the scene who would not identify himself. Mr. Jalifi did not raise this misstatement, however, I sought further submissions from counsel on this point. [15] The summary conviction appeal court judge correctly stated the evidence of Mr. Drechsler, that he did not see where the assailant went after the assault. However, he did not consider this error in assessing whether the trial judge misapprehended the evidence. The issue of misapprehension of evidence was before the summary conviction appeal judge, however, it appears that this particular passage was not drawn to his attention. [16] A close examination of this misstatement reveals that it is not material; the trial judge did not rely on this evidence when he convicted Mr. Jalifi. See reasons for judgment at para. 10 noted above. Thus, although this is an error in law, it is not one that merits granting leave to appeal as it is unlikely to succeed. Nor does it raise a matter of importance. iii)       Hearsay evidence [17] This issue refers to the evidence noted above in relation to the witness who refused to be identified. His evidence was used to base the officer’s reasonable grounds for stopping the Mercedes Benz and arresting Mr. Jalifi. This is a non-hearsay purpose, and the evidence was admissible for this purpose. [18] Mr. Jalifi also argues that the summary conviction appeal judge relied on this evidence to support the police photo-pack as they had “descriptors” from this witness. The photo-pack was prepared primarily from what the suspect looked like, thus any reference to so-called descriptors from a non-witness is irrelevant. [19] There is no basis to grant leave on this ground. iv)       Eyewitness identification [20] In his argument, Mr. Jalifi reviews each witness and their respective frailties. He does not identify how the trial judge or the summary conviction appeal judge erred in law in the analysis of the evidence. The trial judge reviewed the evidence, and the difficulties with each witness. He identified the problems with the frailties of eyewitness identification, specifically referring to the applicable case law (Reasons paras. 24-30). [21] The summary conviction appeal judge reviewed the various grounds of appeal relating to the photo-pack and was clearly alive to the identification issues at trial. I see no error in the reasons of the summary conviction appeal judge that would warrant granting leave to appeal on this basis. [22] The bottom line is that this was an eyewitness identification case. The trial judge carefully reviewed the identification evidence, the photo-pack evidence and turned his mind specifically to the issues relating to eyewitness identification. [23] The summary conviction appeal judge found no error in his approach. I find no error which meets the test to grant leave to appeal. [24] The application for leave to appeal is dismissed. “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Leung v. Yung, 2016 BCCA 64 Date: 20160121 Docket: CA43278 Between: Tsui Yu Leung Appellant (Claimant) And Kapo Yung, also known as Ka Po Yung and Menno Leendert Vos Respondents (Respondents) Before: The Honourable Madam Justice Bennett (In Chambers) On appeal from: an order of the Supreme Court of British Columbia, dated October 29, 2015 ( Leung v. Yung , 2015 BCSC 2434, Vancouver Registry No. E120389) Oral Reasons for Judgment Appellant appearing In Person: Counsel for the Respondent: J.W. Bilawich Place and Date of Hearing: Vancouver, British Columbia January 21, 2016 Place and Date of Judgment: Vancouver, British Columbia January 21, 2016 Summary: The applicant, V, seeks security for trial costs, security for protective disbursements pending appeal and other orders. The case below and instant appeal are delaying V’s attempts to execute a separate judgment by forcing the sale of certain residential properties belonging to the former spouse of the appellant, L. Held: security ordered for trial costs and protective disbursements, among others. L continues to live in one property and permits strata fees and property taxes to accrue. V made a “protective disbursement” by paying outstanding charges and pre-paying fees to preserve his priority in the property. L made little financial disclosure except to say she has no assets and earns no income. Yet, she is able to support herself, received large amounts of credit in the recent past and enjoys overseas travel. A foreign court found that she participated in frauds and she is implicated in questionable property transfers which appear to be designed to defeat creditors. [1] BENNETT J.A. : The applicant, Ms. Leung, seeks directions whether leave to appeal is necessary, leave to appeal and an extension of time to file documents relating to the appeal of the chambers order of Mr. Justice Masuhara: Leung v. Yung , 2015 BCSC 2434. [2] The applicant, Dr. Vos, seeks (i) security for costs in the appeal, (ii) security for costs at trial, (iii) security for what he refers to as “protective disbursements” related to the property involved in the action, and (iv) a stay pending posting of the security and leave to apply to have the appeal dismissed as abandoned if security is not posted within 30 days. Background [3] This appeal concerns the order of Mr. Justice Masuhara dismissing Ms. Leung’s family application for 50% interest in the proceeds from the sale of lease hold interest (also known as the “Richmond Property”) and a 50% interest in a condominium (the “Vancouver Property”), both owned by Mr. Yung. [4] Mr. Yung and Ms. Leung were married in 1989, claimed to have separated in 2003, and divorced in June 2015. Dr. Vos was a former business partner of Mr. Yung. They had a falling out and Dr. Vos sued Mr. Yung in Hong Kong for certain wrongs. Ms. Leung was joined as a defendant and default judgment entered against her, with damages to be later assessed in April 2001. She took no substantial steps to set aside the default judgment but claims it was obtained by Dr. Vos and his counsel lying to the Hong Kong court. Dr. Vos became a judgment creditor of Mr. Yung after obtaining a Hong Kong judgment in 2009. [5] The leasehold property in Richmond was under Ms. Leung’s name since 1989. She transferred it to her husband for $1 on November 6, 2001. This was the day before a Hong Kong order declared her bankrupt with proof of debt of $6,081,850 HKD. She was discharged from bankruptcy in 2005. [6] In 2010, Dr. Vos started a Vancouver action (S-105396) to enforce the Hong Kong judgment against Mr. Yung. He received judgment in B.C. in June 2012 for over $1.2 million. He then proceeded to try and sell the two properties to satisfy judgment. [7] Ms. Leung intervened in Dr. Vos’s attempts to execute the judgment on the properties. She cited her outstanding claims over the two properties in relation to the Vancouver family action (E-120389). She started the family action in February 2012 under the former Family Relations Act , R.S.B.C. 1996, c. 128. The order dismissing her claim was pronounced orally on October 29, 2015 and is the subject of this appeal. She filed notice of appeal and leave to appeal November 26, 2015. Both were amended December 23, 2015. Disposition of Ms. Leung’s Application [8] From the outset, Ms. Leung’s application can be addressed rather quickly. [9] First, Ms. Leung does not need leave to appeal the order. Apparently counsel for Dr. Vos informed her of this on more than one occasion. An order of a judge of the Supreme Court of British Columbia only requires leave to appeal, if it qualifies as a “limited appeal order” or the act it is made under states otherwise. Court of Appeal Act , ss. 6–7. The definition of a limited appeal order is set out in Rule 2.1 of the Court of Appeal Rules . Only interim family law orders and certain procedural rulings made under the Supreme Court Family Rules are listed as limited appeal orders. Since the order in issue dismissed Ms. Leung’s family claim under the Family Relations Act , it constituted a final disposition and she may appeal it as of right. [10] Second, Ms. Leung does not require an extension of time at this point. She is still within 60 days of when she filed her appeal on November 26. Thus she is not late filing her appeal record and transcripts under Rule 19 and 20 of the Court of Appeal Rules . She has asked today for an additional 30 days, until the end of February, to file her appeal record and transcripts despite having taken no steps since the filing of this application two months ago. II. Facts Relevant to the Application The Order Below [11] The issue before the chambers judge was whether Ms. Leung was entitled to a 50% interest in the proceeds of the leasehold Richmond property and the Vancouver property as family assets, and if so, whether Dr. Vos had a priority interest to hers. The hearing also concerned a fair division of family assets including certain debts. [12] The chambers judge found that Ms. Leung’s family claims rested on a very weak foundation at paras. 41–43: [41]      … there has been little evidence provided to support the claim she is pursuing except for an affidavit which provides little in terms of corroborative, objective evidence. There is a dearth of evidence in regard to demonstrating whether the Richmond property was a family asset. Certainly Ms. Leung transferring it back to Mr. Yung in November 2001 militates against this claim and raises doubts regarding her bona fides . [42]      Similarly, the evidence supporting that the Vancouver property is a family asset was not particularly strong in showing it was property being ordinarily used for a family purpose prior to separation. [43]      Similarly, the evidence regarding the recovery of family debts identified by Ms. Leung has a thin foundation. [13] Ms. Yeung pleaded she separated from Mr. Yung in 2003, however her tax returns do not claim separation until 2010. The chambers judge determined the triggering date for dividing of family assets was the date of divorce: June 9, 2015. He continued: [45]      Since the British Columbia judgments against those properties are registered long before this date, this militates against Ms. Leung having a priority interest over Dr. Vos' registered interest. [14] He concluded that Dr. Vos’s claim takes priority over Ms. Leung’s concerning the properties and debts. As a result, her application to have an interest declared in the properties was denied. The chambers judge also ordered that in relation to division of assets, “Mr. Yung’s judgment liability is allocated as against any interest that Ms. Leung has” (RFJ at para. 54). [15] In proceedings that occurred more recently, the condominium at issue has been ordered for sale. Grounds of Appeal [16] Ms. Leung raises three grounds of appeal: 1) The 2001 Hong Kong default judgment was not admissible or alternatively, unreliable to draw adverse inferences against Ms. Leung because it can be set aside. 2) The 2009 Hong Kong judgment concerning Mr. Yung was inadmissible, or alternatively, unreliable to draw adverse inferences against Ms. Leung because it contains a mistake regarding her bankruptcy status. 3) In the alternative, it is impermissible for Dr. Vos to enforce the 2009 Hong Kong judgment debt indirectly against Ms. Leung in her family action. Financial Means of the Appellant [17] The chambers judge found that while Ms. Leung volunteers extensively, she had not sought paid employment. The chambers judge had this to say about her financial picture: [29]      … in August 2003 Ms. Leung moved to Blaine, Washington …. In 2005 she established an irrevocable trust over which she is trustee. The assets of the trust include two residential properties in Blaine. One was purchased in 2005 and the other in 2007. In an affidavit she deposed that she established the trust with her own funds. The appraised value of the two properties in 2012 were US$53,835 and US$101,697. She states that there are no family debts except for $22,167 she borrowed to pay back condominium fees for the Vancouver property and $50,000 she borrowed to pay back the mortgage on the Vancouver property. [18] Ms. Leung appears to have been living in the Vancouver property since 2009. Shortly after Dr. Vos moved to execute judgment on that property, strata fees failed to be paid from about 2011 to 2013. The strata started legal proceedings to collect. Strata fees stopped being paid again in July 2015. As of December 1, 2015 the balance owing was $1,690.80 with fees continuing to accrue monthly at $399.40. Dr. Vos paid the strata $5,000 in early January 2016 to satisfy outstanding fees and pre-pay future expenses in order to preserve his priority. [19] Ms. Leung has filed no affidavit evidence in this application with respect to her financial situation. She submitted that she has no money but could borrow $5,000. She offered no explanation when asked about her failure to pay the strata fees. She advises that she is taking a trip to Hong Kong next month but does not state how she is paying for it. She has indicated that her sons have given her money on their line of credit. III.        The Law Security for Costs of the Appeal [20] Section 24(1) of the Court of Appeal Act provides that a justice may order that an appellant pay or deposit costs in an amount and in a form determined by the justice. [21] The ultimate question is whether the order would be in the interests of justice ( Lu v. Mao , 2006 BCCA 560 at para. 6). In this regard, Madam Justice Rowles in Ferguson v. Ferstay, 2000 BCCA 592 at para. 7, identified the following as relevant considerations: (1) appellant’s financial means; (2) the merits of the appeal; (3) the timeliness of the application; and (4) whether the costs will be readily recoverable. [22] The appellant against whom an order is sought bears the onus of showing why security should not be required ( Creative Salmon Company Ltd. v. Staniford , 2007 BCCA 285 at para. 9). [23] The appellant’s circumstances are the paramount consideration in determining whether some, all, or none of the security be ordered ( AB & A Matthews v. Dixon , 1999 BCCA 333 at para. 13). [24] The usual order is that the appeal be stayed until the security is posted: Pitt Polder Preservation Society v. Pitt Meadows (District) , 1999 BCCA 593 at para. 5 (Southin J.A. in Chambers). Security for Costs at Trial [25] A justice has jurisdiction to order security for costs awarded by the trial court pursuant to s. 10(2)(b) of the Court of Appeal Act . See Cadinha v. Chemar Corporation Inc. (1995), 17 B.C.L.R. 347 (C.A. Chambers); Paz v. Hardouin (c.o.b. Fiesta Travel and Fiesta Wayfarer) (1995), 10 B.C.L.R. (3d) 232 (C.A. Chambers). This is also the provision that Dr. Vos relies on to seek security for the strata fees. 10(2)    In an appeal or other matter before the court, a justice may do one or more of the following: (b)        make an interim order to prevent prejudice to any person. [26] Security for costs of the appeal is ordered more readily than security for trial costs: Siekham v. Hiebert , 2008 BCCA 299 at para. 13. In Adler International Investments Ltd. v. Central Okanagan (Regional District) , 2001 BCCA 416, Proudfoot J.A. (in Chambers) observed at para. 8: [8]        …This is so because trial costs are generally more substantial than costs of an appeal, and it is not right to keep an appellant with an appeal of obvious merit away from the Court by ordering the posting of security which the appellant cannot afford. [27] Mr. Justice Lowry provided a concise statement of the applicable principles on an application for security for costs for a trial judgment or for trial costs in Creative Salmon Company Ltd. at para. 11: 1) The onus is on the applicant to show that it is in the interest of justice to order posting for security of a trial judgment and/or of trial costs. 2) The applicant must show prejudice if the order is not made. 3) In determining the interests of justice the chambers judge should consider the merits of the appeal and the effect of such an order on the ability of the appellant to continue the appeal. IV. Positions of the Parties Security for Appeal Costs [28] Dr. Vos seeks security of $16,625 for the costs in the appeal. He has filed a draft bill of costs based on a one day appeal. He submits that despite filing a financial statement claiming to have no income or assets in the trial court, Ms. Leung has met her living expenses since 2003 and formed a trust which purchased two properties in the Blaine, Washington. Security for Trial Costs [29] Dr. Vos seeks security of $13,308 for costs at trial. He has a draft bill of costs prepared as well as $5,516 for disbursements he made to satisfy accrued strata fees and property taxes owing against the Vancouver property. I note that the hearing before Mr. Justice Masuhara lasted one day and the reasons for judgment were released orally about one week later. [30] Dr. Vos submits that his attempts to execute his Hong Kong judgment in BC have been “extraordinary” and already long-drawn out. He submits that the Hong Kong judgment is based on fraudulent acts which Ms. Leung participated in. He alleges that Ms. Leung transferred the Richmond Property to her husband in November 2001 to defeat creditors. He further submits that despite being bankrupt, she has managed to purchase property in Washington through a trust. [31] He submits that the value of the Vancouver Property is being eroded because strata fees and property taxes continue to accrue while Ms. Leung receives the benefit of living in it. Dr. Vos has paid the outstanding fees as a protective disbursement because they have priority over his claim on the property. Ms. Leung says she has a good appeal and can raise $5,000 for security. V. Discussion Security for Appeal Costs [32] Ms. Leung disclosed no information about her financial means. There is some information in the judgment of Mr. Justice Masuhara and affidavits filed previously in the trial court. She has been able to support herself for over a decade apparently without seeking regular paid employment. In her family law action, she disclosed that since 2003, she sometimes works four to eight hours per week and claims to have no assets or debts. However, it has been noted that she is taking a trip to Hong Kong at the end of the month and has not indicated how that is being funded. [33] The merits of the appeal may not be strong but are not frivolous and meet the tests for all applications. The application is timely. Dr. Vos filed it January 8, 2016, which is within one week of Ms. Leung’s amended notice of appeal and when she filed her motions. [34] Given that Ms. Leung claims to have no assets or income, and appears to have a history of avoiding payment of debt, in my view, the appeal costs are likely to not be readily recoverable should she lose the appeal. Security for Trial Costs [35] Whatever assets Ms. Leung did have in 2005 have been made difficult to reach because they were put into a trust and used to purchase property outside of this jurisdiction. She was found to have participated in fraudulent acts by a Hong Kong court, declared bankruptcy, and was implicated in a questionable 2001 property transfer. She continues to enjoy the use of the Vancouver Property while tax and strata fees mount, which further erode its value and utility to Dr. Vos. Furthermore, there is a history of the parties being delinquent in paying strata fees and property taxes. Ms. Leung maintains that she does not earn a regular income. [36] Given all this, in my view, Dr. Vos will likely face difficulty collecting trial costs and his protective disbursements. Counsel for Dr. Vos has submitted a draft bill of costs, as noted, in the amount of $13,308. He claims he has spent $5,516 in protective disbursements in relation to the Vancouver property. [37] I am not prepared to find that Ms. Leung will be prejudiced in advancing her appeal if some trial costs are ordered. Despite Ms. Leung claiming to have no income or assets, in her affidavit filed in support of the application at issue in this appeal she says she was able to borrow $60,000 to fund an appeal in Hong Kong. As noted by the chambers judge, she also was able to borrow a total of $72,167 to pay strata fees and a mortgage, thus being able to secure $132,000 in credit. It seems to me that she is getting money from somewhere although has not been forthcoming with the courts as to its source. [38] Ordinarily, it is the practice of this Court not to order security for trial costs until they have been assessed. However, given the circumstances, in my view it is in the interests of justice to order at least partial trial costs in this case. Other Relief [39] Dr. Vos also seeks an order granting leave to apply to dismiss the appeal, however, his draft bill of costs is based on a one day appeal and, in my view, that is likely excessive. Therefore, I would order security for costs of the appeal in the amount of $8,000, which is half of the amount claims. [40] I would grant Dr. Vos’s application for security for trial costs and for the protective disbursements . With respect to the trial costs, it is my view that the trial costs, as in the draft, for the length of hearing should be reduced for the purposes of the security. Therefore, I would order $5,000 posted as security for trial costs. In terms of the $5,000 for the protective costs, in my view, this is a proper claim given that the failure to pay the strata fees are diminishing the value of the property that he has obtained judgment for. [41] I impose the order that the appeal will be stayed until such time as security is posted. If it is not paid within 60 days, Ms. Leung is going to Hong Kong and will not have necessarily time to gather her resources in 30 days, Dr. Vos may apply for leave to appeal to dismiss the appeal. I add that that is subject to any other order made by a justice of this Court in terms of any extension of time. [42] If the security for costs are paid, I would grant Ms. Leung until March 30, 2016 to file her transcripts and appeal books. If not, her transcripts and appeal books would have to be filed forthwith upon paying the security for costs. [43] I would grant Dr. Vos costs in this application. [discussion with appellant re. filing dates and costs of today’s application] [44] BENNETT J.A. : Whoever wins the appeal will receive the costs of today. [discussion with counsel re. dispensing of appellant’s signature on the order] [45] BENNETT J.A. : Ms. Leung, counsel is asking that you not sign the order, that I simply sign it. I will make that order because apparently you did not respond to another one that he submitted. “The Honourable Madam Justice Bennett”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Boutilier, 2016 BCCA 24 Date: 20160121 Docket No.: CA42891 Between: Regina Appellant And Donald Joseph Boutilier Respondent Before: The Honourable Madam Justice Neilson The Honourable Mr. Justice Groberman The Honourable Madam Justice Fenlon On appeal from:  An order of the Supreme Court of British Columbia, dated November 21, 2014 and May 29, 2015 ( R. v. Boutilier , 2015 BCSC 901), Vancouver Docket No. 25686). Counsel for the Appellant: M. Brundrett R. Garson Counsel for the Respondent: E. Purtzki G. Botting Place and Date of Hearing: Vancouver, British Columbia September 23, 2015 Place and Date of Judgment: Vancouver, British Columbia January 21, 2016 Written Reasons by: The Honourable Madam Justice Neilson Concurring Reasons by: (p. 20, para. 53) The Honourable Mr. Justice Groberman Concurring Reasons by: (p. 30, para. 85) The Honourable Madam Justice Fenlon Summary: The respondent’s application to quash this Crown appeal on the basis that there is no statutory right to appeal is dismissed. Neilson J.A. holds s. 759(2) entitles the Crown to appeal a final decision made in dangerous offender proceedings under Part XXIV of the Criminal Code, including a final decision holding that s. 753(1) of the Code is constitutionally invalid. Groberman J.A., concurring, concludes as well that the Crown would in any event be entitled to appeal the declaration of constitutional invalidity through civil proceedings under the Court of Appeal Act. Fenlon J.A. concurs with Neilson J.A., and acknowledges the approach of Groberman J.A. but declines to express an opinion on it as this is unnecessary for the disposition of the appeal. Reasons for Judgment of the Honourable Madam Justice Neilson: [1] On May 29, 2015, in proceedings taken by the appellant Crown to have the respondent, Donald Joseph Boutilier, designated a dangerous offender under Part XXIV of the Criminal Code , R.S.C. c. C-46, a Supreme Court judge declared s. 753(1) in that Part to be constitutionally invalid. He suspended the declaration for a year, however, refused to grant Mr. Boutilier a constitutional exemption, designated him a dangerous offender, and sentenced him to indeterminate incarceration. [2] The Crown filed a notice of appeal of the declaration of constitutional invalidity under s. 759(2) of the Code , which enacts rights of appeal under Part XXIV. The respondent brings this application to quash the Crown’s appeal, arguing that s. 759(2) does not provide a statutory right of appeal. Background [3] On May 28, 2012, Mr. Boutilier pleaded guilty to six offences arising from a robbery of a drugstore in Vancouver on April 11, 2010. The Crown then commenced proceedings to have him sentenced as a dangerous offender under Part XXIV of the Code . [4] Part XXIV creates a unique sentencing scheme that engages a series of sequential steps due to the potential severity of its consequences. The Crown must, first, establish that the offender has committed a serious personal injury offence, and then apply to the court for a remand for assessment. If successful, in these steps, the Crown then applies under s. 753(1) to have the offender designated a dangerous offender. If this designation is achieved, the Crown seeks imposition of a sentence of detention for an indeterminate period under s. 753(4), which will be granted unless the court concludes, in accord with s. 753(4.1), that a lesser measure will adequately protect the public. The parts of this legislative scheme relevant to this appeal state: 753.(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (a)  that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i)  a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (4.1)  The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)( b ) or ( c ) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [5] These provisions were enacted as amendments to Part XXIV in 2008: S.C. 2008, c. 6, s. 51. They removed the court’s discretion under s. 753(1) to decline to declare an offender to be a dangerous offender and to instead find him a long-term offender if there was a reasonable possibility of eventually controlling the risk he presented to the community. Sentencing judges are instead required to designate offenders as dangerous if they simply meet the criteria in s. 753(1). Consideration of amenability to future treatment is deferred to the penalty stage under s. 753(4.1). [6] At the conclusion of Mr. Boutilier’s dangerous offender hearing, he filed a Notice of Constitutional Question under the Constitutional Question Act , R.S.B.C. 1996, c. 68, s. 8. This challenged the constitutionality of several provisions of Part XXIV, including ss. 753(1) and 753(4.1), on the basis they violated his rights under ss. 7 and 12 of the Canadian Charter of Rights and Freedoms , Part 1 of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [7] On November 21, 2014, the sentencing judge found s. 753(1) was constitutionally overbroad and therefore violated Mr. Boutilier’s rights under s. 7 of the Charter because it excluded consideration of an offender’s future treatment prospects at the designation stage. The balance of the constitutional challenge was dismissed: 2014 BCSC 2187. The sentencing judge explained his decision as follows: [93]      A failure to consider the treatment prospects of an offender impermissibly captures and designates as dangerous, some individuals who simply are not part of the legitimate or intended target population of Part XXIV. ... ... [95]      This “prospective” analysis under the 2008 regime, however, only considers “retrospective” evidence. There is no proper basis to limit a prospective analysis whose conclusions designate and label a person for life, in this way. The object of Part XXIV is not to address criminality. Its object is to address a particular type of dangerous criminal whose behaviour in the “future” is “likely” to cause harm to the public. Section 753(1), read in the context of the 2008 regime, requires a judge to close his or her eyes to “prospective” evidence that is relevant to the s. 753(1) criteria of dangerousness when making the designation that the section mandates. As such it gives rise to some designations that are not consonant with the purpose of Part XXIV and it is overly broad. There is then “no rational connection between the purposes of the law and some , but not all, of its impact”; Bedford at para. 112. [8] The sentencing judge then held a hearing directed to whether the constitutional violation could be justified under s. 1 of the Charter and, if not, to determine an appropriate remedy. On May 29, 2015, he delivered reasons holding that the s. 7 infringement could not be saved under s. 1, and declared s. 753(1) to be of no force and effect. He, however, suspended the declaration of constitutional invalidity for one year. He declined Mr. Boutilier’s application for a personal constitutional exemption and applied the impugned provision to find him a dangerous offender, as the evidence failed to support a reasonable expectation that a lesser sentence would adequately protect the public. The judge then imposed an indeterminate sentence: 2015 BCSC 901. [9] On June 25, 2015, the Crown filed a notice of appeal of the declaration of constitutional invalidity under s. 759(2) of Part XXIV. Section 759 enacts the rights of appeal under Part XXIV and reads in its entirety: (1)  An offender who is found to be a dangerous offender or a long-term offender may appeal to the court of appeal from a decision made under this Part on any ground of law or fact or mixed law and fact. (2)  The Attorney General may appeal to the court of appeal from a decision made under this Part on any ground of law. (3)  The court of appeal may (a)  allow the appeal and (i)  find that an offender is or is not a dangerous offender or a long-term offender or impose a sentence that may be imposed or an order that may be made by the trial court under this Part, or (ii)  order a new hearing, with any directions that the court considers appropriate; or (b)  dismiss the appeal. [10] On the same day, Mr. Boutilier filed a notice of appeal, by which he alleges the sentencing judge erred in designating him a dangerous offender and imposing an indeterminate sentence, and in holding that s. 753(4.1) of the Code did not violate s. 12 of the Charter . [11] On August 27, 2015, Mr. Boutilier brought this application to quash. [12] On August 28, 2015, the Crown, as a precautionary measure, filed an application for leave to appeal the sentencing judge’s declaration of constitutional invalidity directly to the Supreme Court of Canada, pursuant to s. 40(1) of the Supreme Court Act , R.S.C. 1985, c. S-26. This provision states: 40.(1)  Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court. Issues on Appeal [13] Mr. Boutilier’s application raises two issues: a) Is the Crown entitled to appeal the declaration of constitutional invalidity when it succeeded in obtaining its ultimate objective of having Mr. Boutilier designated a dangerous offender under Part XXIV? b) Does s. 759(2) provide a statutory right of appeal from the declaration of constitutional invalidity? Analysis [14] It is common ground that this Court’s jurisdiction to entertain appeals is derived entirely from statute. The central issue before us is thus a matter of statutory interpretation, resting on the proper construction of the Crown’s right of appeal under s. 759(2). The analysis is governed by the “modern approach” to statutory interpretation, developed in E.A. Driedger , Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983). The Supreme Court of Canada has frequently endorsed this approach, and approved its application in the context of dangerous offender proceedings in R. v. Steele , 2014 SCC 61 at para. 23: the words of legislation must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”. Mr. Boutilier’s Position [15] Mr. Boutilier argues the Crown has no statutory right to appeal the declaration of constitutional invalidity for two reasons. First, the declaration is not a “decision made under” Part XXIV of the Code . It is instead a decision made under s. 52(1) of the Constitution Act , 1982 . Second, the Crown succeeded in obtaining the ultimate disposition it sought under Part XXIV: his designation as a dangerous offender and the imposition of an indeterminate sentence, and is therefore precluded from appealing the constitutional ruling. Citing R. v. Barnes , [1991] 1 S.C.R. 449 at 466, Mr. Boutilier says s. 759(2) does not permit the Crown to appeal just because the interlocutory orders of the sentencing judge gave it less than what it requested. [16] Mr. Boutilier maintains that the Crown’s avenues of appeal are limited to either raising the constitutional ruling as a responsive argument in the factum it will file in his appeal, or pursuing its application for leave to appeal the issue directly to the Supreme Court of Canada under s. 40(1) of the Supreme Court Act . In support, he points to the “dual proceedings” approach developed in R. v. Laba , [1994] 3 S.C.R. 965, and R. v. Keegstra , [1995] 2 S.C.R. 381. [17] In Laba , the accused were charged with conspiracy to sell or purchase stolen minerals containing precious metals under s. 394(1)( b ) of the Code . Prior to trial, they brought a constitutional challenge to this provision, alleging it violated s. 11( d ) of the Charter because it contained a reverse onus clause. The trial judge agreed, declared s. 394(1)( b ) to be of no force or effect, and granted a stay of proceedings. In its appeal of that ruling to the Ontario Court of Appeal, the Crown conceded the clause infringed s. 11( d ) but argued it could be saved under s. 1 of the Charter . The Court disagreed, but nevertheless allowed the appeal to the extent of striking only the reverse onus clause, and holding the remainder of s. 394(1)( b ) was valid. When the Crown sought to appeal this ruling to the Supreme Court of Canada, the respondents argued the Court of Appeal had effectively allowed the Crown’s appeal by implicitly removing the stay granted by the trial judge, and the Supreme Court therefore had no jurisdiction to hear the appeal because s. 693(1)( b ) of the Code limited the Crown’s right of appeal to that Court to appellate decisions that have set aside a conviction or dismissed a Crown appeal. [18] Lamer C.J., writing for the majority, observed the specific issue raised the more general issue of appellate jurisdiction over, and proper conduct of, challenges under s. 52 of the Constitution Act , 1982 . At 977-78 he stated: My analysis will be grounded in the following premise: when the constitutionality of a law is challenged in the context of criminal proceedings, there are effectively two proceedings – the proceedings directed at a determination of culpability and the proceedings directed at a determination of constitutionality. They will usually proceed together but may, on occasion, proceed separately. These two proceedings will usually, but need not always, be governed by the same rules and practices. [19] Referring to Barnes , the Chief Justice affirmed that an appeal is allowed if the order is reversed, “even if the reasons for the reversal are not what the appellant would have liked”. He agreed that, because the Court of Appeal had implicitly lifted the trial judge’s stay, the Crown’s appeal had been allowed and the Supreme Court therefore had no jurisdiction to hear a Crown appeal of the constitutional ruling under s. 693(1)( b ). He went on, however, to decide that s. 40(1) of the Supreme Court Act did provide jurisdiction for that Court to grant leave to appeal a constitutional ruling that could not be “piggybacked” onto Criminal Code proceedings. In his view, to find otherwise would be absurd because whenever a ruling of unconstitutionality coincided with a conviction the impugned provision would remain inoperative until circumstances in a future case combined to raise the constitutional issue in a context that permitted appellate review. At 984, Lamer C.J. summarized the basis for this “dual proceedings” approach: To me, such a consequence is absurd. First, the constitutionality of a law is left dependent upon the resolution of an issue completely unrelated to constitutionality, i.e., the guilt or innocence of the accused and upon his or her decision to appeal a conviction. Second, a law can be struck down by a Provincial or Superior Court judge and then left to hang there inoperative until some time in the future when another case on point happens to come before another judge and happens to result in a verdict that provides for an avenue of appeal through the Criminal Code . Just as an accused is entitled to his or her day in court, so too is the legislature. The legislature does not properly get this day in court if its ability to get to court on the issue of the constitutionality of a law is dependent upon the contingency of a particular finding of guilt or innocence coinciding with a Criminal Code avenue of appeal. [20] In Keegstra , the Supreme Court affirmed the “dual proceedings” approach, and held that it may apply to an accused as well as the Crown. Mr. Keegstra had been convicted of unlawfully promoting hatred against an identifiable group, contrary to then s. 281.2(2) of the Code . The majority judgment of the Alberta Court of Appeal allowed his appeal and directed a new trial. The Crown had an appeal to the Supreme Court as of right under s. 693(1)( a ) of the Code , due to the dissenting judgment. Mr. Keegstra applied for leave to appeal to that Court on grounds that included a constitutional argument he had raised before the Court of Appeal. The Crown filed a motion to quash his application, arguing the Court had no jurisdiction to hear it. [21] Chief Justice Lamer, again writing for the majority, disagreed. He reiterated his analysis in Laba and, at 390-95, determined that the “dual proceedings” approach was available to both parties. Thus, offenders who sought to appeal a constitutional ruling to the Supreme Court that was not appealable under the Code could avail themselves of s. 40(1). He summarized his views at 392: Accordingly, where the highest court of final resort of a province has made a ruling on the constitutionality of a Criminal Code provision, either party may seek leave to appeal that ruling to this Court, regardless of whether a finding of culpability accompanied the ruling and, if there was an accompanying finding of culpability, regardless of whether that finding is appealable as of right or on granting of leave. Of course, the party choosing to seek leave to appeal a ruling of constitutionality will be the party whose interests are not served by the ruling on constitutionality below. Nonetheless, this dual proceedings approach insures that leave can always be sought to appeal rulings on constitutionality whether or not the party seeking leave “won” or “lost” in the ruling on culpability in the court below. [22] Mr. Boutilier submits that the application of the “dual proceedings” approach here must lead to a conclusion that the Crown has no right to appeal the declaration of constitutional invalidity to this Court, and must instead seek leave to appeal this order to the Supreme Court under s. 40(1). The Crown’s Position [23] The Crown responds that the scheme and context of Part XXIV are clearly distinguishable from the statutory framework that necessitated development of the “dual proceedings” approach in Laba and Keegstra . Those cases were decided under the restrictive wording of ss. 674, 691, and 693 of the Code , which limit appeals to the Supreme Court from provincial appellate courts. The Crown says that to prevent the absurdity of having those restrictions preclude appeals of what it refers to as interlocutory constitutional rulings, the Supreme Court analytically divorced the constitutional determination from the proceeding on culpability, and characterized the former as an independent proceeding under s. 40 of the Supreme Court Act . The Crown asserts that the dual proceedings approach was thus not developed to remove such interlocutory constitutional issues from the appeal provisions of the Code , but to ensure that such issues would not be rendered “unappealable” by those provisions: Keegstra at 402. [24] The Crown contends that, by contrast, it seeks to appeal the declaration of constitutional invalidity to a provincial appellate court under the broad terms of s. 759(2). It argues this declaration was integrally linked to Mr. Boutilier’s culpability under the Criminal Code . His constitutional challenge was brought during his dangerous offender hearing under Part XXIV for relief collateral to that criminal proceeding. The Crown points out that s. 759(2) gives this Court jurisdiction to hear Crown appeals from any “decision made under” Part XXIV on a point of law, and says the ordinary and grammatical meaning of that phrase must encompass a ruling that a core provision of that Part is constitutionally invalid. The declaration made by the sentencing judge is fundamental to the legitimacy and application of all future dangerous offender proceedings in this province. The Crown argues this is a matter of undoubted public importance, and calls for review by an appellate court at the earliest opportunity. It maintains this interpretation of s. 759(2) is consistent with the language and context of the provision, parliamentary intent, and common sense. [25] The Crown further submits that the expansive right of appeal provided by s. 759(2) is not confined to final decisions, or to decisions that are adverse to the appellant. It says that it is therefore unnecessary to adopt the “dual proceedings” approach and resort to s. 40 of the Supreme Court Act to appeal the declaration of constitutional invalidity. [26] In support of its position, the Crown points to dictionaries that define “decision” expansively, as including rulings, orders, judgments, findings, and determinations: Black’s Law Dictionary , 10th ed. 2014; Dictionary of Canadian Law , 3d ed. 2004. As well, it contends the word “under” does not always mean “by the authority of”, but is routinely used more broadly to mean “arising out of” or “with reference to”: Dictionary of Canadian Law , 3d ed. 2004. [27] The Crown also points to the French text of s. 759(2), which grants the Crown a right of appeal “de toute d é cision ... sur toute question de droit”. It maintains this defines appellate jurisdiction even more broadly than the English text, permitting an appeal of “any” decision. [28] As well, the Crown contends the multiplicity of remedial powers provided by s. 759(3) supports its position. It submits these are not restricted to final orders in a dangerous offender proceeding, and are broad enough to permit appellate consideration of the validity of a constitutional ruling. [29] As an indication of the breadth of appeal rights under Part XXIV, the Crown cites a series of cases, decided both before and after the 2008 amendments, which it says demonstrate that appellate courts have often heard appeals of “ancillary” or “preliminary” decisions made in the course of dangerous offender proceedings: Steele ; R. v. Mastronardi , 2015 BCCA 338; R. v. Fulton , 2006 SKCA 115; R. v. J.J.M. , 2006 NBCA 39; R. v. C.L.S. (1999), 43 O.R. (3d) 143, 133 C.C.C. (3d) 467 (C.A.). [30] The Crown asserts it is undisputed that the dominant legislative purpose of Part XXIV is to protect the public from offenders who have demonstrated a past propensity to perpetrate violent or sexual crimes, and so present a real risk of future harm: Steele at para. 29. While such proceedings have traditionally targeted only a small number of offenders, the 2008 amendments were directed at expanding the population that will fall under Part XXIV: R. v. Szostak , 2014 ONCA 15 at paras. 52-54. [31] The Crown also maintains the legislative evolution of s. 759(2) is indicative of an expansive legislative intent. Between 1953 and 2008, Crown appeals in preventive detention or dangerous offender proceedings were only permitted “against the dismissal of an application for an order under this Part”. It submits the broader wording in s. 759(2) as amended demonstrates an intent to extend the right of appeal to any decision made under Part XXIV. The Crown argues that a more restrictive interpretation of s. 759(2) would be inconsistent with Parliament’s intent to minimize the risk of harm presented by identifiably dangerous criminals, and the provision instead requires a “fair, large and liberal construction and interpretation” of appeal rights, in accord with s. 12 of the Interpretation Act , R.S.C. 1985, c. I-21. [32] Finally, the Crown relies on the well-established principle that the legislature does not intend absurd consequences that produce unreasonable or illogical results: Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27 at 43. It says Parliament could not have intended to deprive it of a direct route to a provincial appellate court to appeal a declaration of constitutional invalidity with significant ramifications for public safety. Nor could it have been the legislature’s intent to bifurcate appeal proceedings under Part XXIV, and require the constitutional issues raised by the Crown and by Mr. Boutilier to be heard at different times by different courts. The Crown submits such an interpretation is unreasonable, impractical and inefficient. The absurdity of this is evident from the fact that it would have had a clear right to appeal the declaration of constitutional invalidity but for the sentencing judge’s decision to temporarily suspend it. The Crown maintains it defies common sense that this Court’s jurisdiction to hear its appeal should be lost due to this ancillary aspect of the judge’s order. [33] Although the Crown does not rely on s. 784(1) of the Code , it cites two cases decided under that provision in support of its arguments: R. v. Ciarniello (2006), 81 O.R. (3d) 561 at paras. 23-25, 211 C.C.C. (3d) 540 (C.A.) and Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island , [1997] 3 S.C.R. 3 at 123-26. Section 784(1) provides: An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus , certiorari or prohibition. [34] In Ciarniello , the applicant successfully challenged a search warrant by way of a motion for certiorari . The judge found Mr. Ciarniello’s rights under s. 8 of the Charter had been violated, but refused to give him costs as a remedy under s. 24. When he sought to appeal that order, the Crown argued the Ontario Court of Appeal did not have statutory jurisdiction to hear the appeal, and the appellant’s only remedy lay under s. 40(1) of the Supreme Court Act . The Court disagreed, taking the view that the interests of justice required a broad interpretation of s. 784(1) to avoid the fragmentation of appeal rights: [24]      We must respect the principle relied upon by the Crown that this court has no jurisdiction to entertain an appeal that is not authorized by statute. However, that principle does not require us to interpret the appeal rights that Parliament has given in an unduly restrictive or technical manner. It is in the interests of the fair and efficient administration of justice that all appeals relating to the same issue and arising out of the same proceeding be brought before the same court at the same time. The Crown’s submission would lead to this court dealing with an appeal from the grant or refusal of certiorari , but require a separate application for leave to appeal to the Supreme Court of Canada with respect to the grant or refusal of any related relief. We would have to live with that situation if the statutory language compelled us to do so. However, where we are asked to interpret statutory language capable of bearing broader meaning, we should adopt an interpretation that avoids the fragmentation of appeal rights. [35] The relevant portion of the Reference addressed the decision of the Alberta Court of Appeal in R. v. Campbell (1995), 169 A.R. 178, 100 C.C.C. (3d) 167 (C.A.). The trial judge had struck portions of the Provincial Court Judges Act , S.A. 1981, c. P-20.1 as infringing s. 11(d) of the Charter , but then found this cured the Charter infringement. When the Crown sought to appeal the declaration of constitutional invalidity, two members of the Court held there was no jurisdiction to hear the appeal as s. 784(1) did not clearly and specifically provide a right of appeal to a successful party. The third member dissented, holding that a liberal interpretation of s. 784(1) allowed an appeal from any relief granted. In the Supreme Court, Lamer C.J., writing for the majority, agreed with the dissenting judgment and held the Crown had a statutory right of appeal. He stated: [214]    I find the arguments advanced in support of the view that s. 784(1) was unavailable to the Crown to be unconvincing. First, it is not clear to me that only unsuccessful parties can avail themselves of s. 784(1). But even if this limitation applies, the Court of Appeal had jurisdiction. Although the Crown may have been successful in its efforts to commence and continue the trials against the respondents, it lost on the underlying finding of unconstitutionality. A series of declarations was made which had the effect of striking down numerous provisions found in legislation and regulations. It was, at most, a Pyrrhic victory for the Crown. [36] The Crown argues that it similarly obtained a “Pyrrhic victory” in this case, and should therefore be found to have a right to appeal the declaration of constitutional invalidity under s. 759(2). Discussion [37] I agree with Mr. Boutilier that the Crown is entitled to raise the constitutional validity of s. 753(1) in its capacity as the respondent to his appeal. A respondent may raise any argument that supports the order of the court below: Keegstra at 396. I see no reason why this would not apply to the Crown’s constitutional argument here. A reversal of the sentencing judge’s declaration of constitutional invalidity would lead to the same result: the imposition of an indeterminate sentence on Mr. Boutilier as a dangerous offender. This option is unsatisfactory, however, as the Crown’s right of appeal remains at the mercy of Mr. Boutilier. Should he abandon his appeal, the Crown’s appeal will also come to an end. [38] It is common ground that the Crown may avail itself of s. 40(1) of the Supreme Court Act and the “dual procedure” approach if it has no other avenue to appeal the declaration of constitutional invalidity. This too is unsatisfactory from the Crown’s perspective, however, as there is no certainty it will obtain leave to appeal. As well, the inconvenience and inefficiency of bifurcating the parties’ appeals is evident. [39] The Crown’s argument that s. 759(2) provides a direct right of appeal to this Court is thus pragmatically attractive. There is a significant public interest in having the appeals of both parties’ constitutional issues heard as expeditiously as possible, at the same time and by the same court. These considerations cannot be determinative, however, in the absence of a clear statutory right of appeal. [40] I agree with the Crown that there are significant distinctions between the statutory framework that guided the analysis in Laba and Keegstra and that under consideration here. Those cases dealt with appeals from a provincial appellate court to the Supreme Court of Canada, which are confined by the restrictive wording of ss. 674, 691, and 693 of the Code . These provisions have no application here. The Crown seeks to appeal to a provincial appellate court, and the parties’ rights to appeal “decisions made under” Part XXIV are governed by s. 759. The questions before us are, first, whether the Crown may appeal an adverse constitutional ruling when it achieved its ultimate goal of having Mr. Boutilier designated a dangerous offender and, second, whether s. 759(2) provides a statutory right to appeal the declaration of constitutional invalidity. The “dual proceedings” approach will only become relevant if one or both of these questions are answered in the negative. 1.       Is the Crown entitled to appeal the declaration of constitutional invalidity when it succeeded in obtaining its ultimate objective of having Mr. Boutilier designated a dangerous offender under Part XXIV? [41] Mr. Boutilier argues that the declaration of constitutional invalidity was an interlocutory order as it did not finally determine the dangerous offender proceeding. Relying on Barnes , he maintains that the broad construction of s. 759(2) advocated by the Crown thus meets opposition from two related and longstanding principles. First, absent clear statutory language to the contrary, there are no interlocutory appeals in criminal matters. Second, only losing parties have a right of appeal. [42] I agree that s. 759(2) cannot be construed in a manner that abrogates these principles. The rule against interlocutory appeals is rooted in important policy concerns. Such appeals would fragment and delay proceedings, and potentially cause injustice by determining issues that should be left to the trial judge. As well, a party aggrieved by an interlocutory ruling may ultimately obtain a favourable result at the end of the proceeding, which renders the earlier ruling moot. The established practice is therefore that a party dissatisfied with an interlocutory ruling must wait to challenge it until the trial is concluded and, only if ultimately unsuccessful, may raise the unfavourable ruling as a ground of appeal: R. v. Johnson (1991), 3 O.R. (3d) 49 at 54-55, 64 C.C.C. (3d) 20 (C.A.); R. v. Sears , 2014 SKCA 72 at para. 5; R. v. Black , 2011 ABCA 349 at para. 20; Barnes at 466. [43] I am unable to agree, however, that the declaration of constitutional invalidity was an interlocutory order. In Laba at 977-78, Chief Justice Lamer outlined the analysis to be applied to criminal cases in which constitutional challenges under s. 52 of the Constitution Act, 1982 are brought: My analysis will be grounded in the following premise: when the constitutionality of a law is challenged in the context of criminal proceedings, there are effectively two proceedings – the proceedings directed at a determination of culpability and the proceedings directed at a determination of constitutionality. They will usually proceed together but may, on occasion, proceed separately. These two proceedings will usually, but need not always, be governed by the same rules and practices. [44] In Keegstra at 391, Lamer C.J.C. after quoting from Laba added: Even when the determinations of culpability and constitutionality arise in the same proceeding, the two rulings are separate and distinct. [45] To suggest that the declaration of unconstitutionality made by the sentencing judge was an interlocutory order is to ignore the conceptual framework mandated by the Supreme Court of Canada. This case may be analyzed as arising out of what were effectively two proceedings in the court below: a proceeding directed at the determination of whether Mr. Boutilier is a dangerous offender and a proceeding directed at the constitutionality of provisions of Part XXIV of the Criminal Code . Conceptually, the declaration of constitutional invalidity granted by the judge was not an interlocutory ruling in the dangerous offender proceeding. Rather, it was a final order in the proceeding directed at the constitutionality of s. 753(1), binding on the Crown and on other trial courts of this province. [46] A similar analytical flaw pervades Mr. Boutilier’s contention that the Crown is precluded from appealing because it was successful in the court below. The Crown was successful in the proceedings to have Mr. Boutilier declared a dangerous offender. It was, however, unsuccessful in defeating Mr. Boutilier’s constitutional challenge. [47] This approach is apparent in the constitutional declarations that were made in Laba and Keegstra . These were final orders made in the constitutional proceeding. The bar to appealing them was not related to a suggestion that they were interlocutory in nature, but arose from the restrictions on appeals to the Supreme Court of Canada enacted by ss. 691 and 693 of the Code . These provisions have no application here. Instead, appeal rights under Part XXIV are governed by the broader terms of s. 759. The question is therefore whether the final order of constitutional invalidity is a “decision made under this Part”, thereby granting the Crown a right of appeal under s. 759(2). 2.       Does s. 759(2) provide a statutory right of appeal from the declaration of constitutional invalidity? [48] Mr. Boutilier is correct that, since 1982, s. 52(1) of the Constitution Act, 1982 has provided the express basis for judicial review of legislation in Canada for consistency with the Constitution. I am not persuaded, however, that this removes constitutional determinations from the legal context in which they are made. The question of constitutional invalidity inheres in the impugned legislation itself. In Nova Scotia (Workers’ Compensation Board) v. Martin , 2003 SCC 54, a decision that considered whether an administrative tribunal had jurisdiction to apply the Charter , Justice Gonthier, writing for the Court, expressed this view as follows: [28]      First, and most importantly, the Constitution is, under s. 52(1) of the Constitution Act, 1982, “the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”. The invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but from the operation of s. 52(1). Thus, in principle, such a provision is invalid from the moment it is enacted, and a judicial declaration to this effect is but one remedy amongst others to protect those whom it adversely affects. In that sense, by virtue of s. 52(1), the question of constitutional validity inheres in every legislative enactment . Courts may not apply invalid laws, and the same obligation applies to every level and branch of government, including the administrative organs of the state. Obviously, it cannot be the case that every government official has to consider and decide for herself the constitutional validity of every provision she is called upon to apply. If, however, she is endowed with the power to consider questions of law relating to a provision, that power will normally extend to assessing the constitutional validity of that provision. This is because the consistency of a provision with the Constitution is a question of law arising under that provision. It is, indeed, the most fundamental question of law one could conceive, as it will determine whether the enactment is in fact valid law, and thus whether it ought to be interpreted and applied as such or disregarded . [Emphasis added.] [49] An assessment of constitutional validity is thus necessarily and integrally related to the impugned provision and its legislative context. This proceeding was initiated and prosecuted under Part XXIV of the Criminal Code . Section 753(1), the provision under review, lies at the core of Part XXIV, and its constitutional validity is fundamental to the legitimacy of dangerous offender proceedings. Despite the two-pronged analysis described in Laba , the underlying proceeding in this case remains a proceeding under Part XXIV of the Criminal Code . [50] I subscribe to the view of the Court of Appeal in Ciarniello that appeal rights should not be interpreted in “an unduly restrictive or technical manner”, and that it is in the interests of justice to have all appeals relating to the same issue and proceeding brought at the same time before the same court, to the extent that the statutory language permits this. [51] In that context, I acknowledge that the phrase “a decision under this Part” in s. 759(2) is open to different interpretations, but I am persuaded that it may properly be interpreted broadly as “a final decision made in proceedings under this Part”. To adopt Chief Justice Lamer’s terminology in Laba at 982, the declaration of constitutional invalidity of s. 753(1) can and should be “piggybacked” onto appeal proceedings permitted by Part XXIV of the Criminal Code . [52] I would dismiss Mr. Boutilier’s application to quash the Crown’s appeal. “The Honourable Madam Justice Neilson” Reasons for Judgment of the Honourable Mr. Justice Groberman: [53] I have had the privilege of reading the reasons for judgment of my colleague, Madam Justice Neilson, with which I agree. It is clear that the constitutional declaration is a final order. As my colleague points out, it is less clear that the declaration is “a decision under” Part XXIV of the Criminal Code . The language of s. 759(2) is open to different interpretations. Pragmatic considerations greatly favour an interpretation that makes constitutional declarations appealable as of right to this Court. I therefore agree that the best interpretation of s. 759(2) is one that affords the Crown a right of appeal from a declaration of unconstitutionality. [54] The matter is not, however, free from doubt. The power to declare a provision of the Criminal Code of no force and effect derives from s. 52(1) of the Constitution Act , 1982, and from the inherent declaratory jurisdiction of the Supreme Court. It is arguable, therefore, that a declaration that a provision is unconstitutional is, under the approach described by Lamer C.J.C. in R. v. Laba and R. v. Keegstra , not an order under Part XXIV of the Criminal Code , but rather an order under the Constitution Act, 1982 and under the inherent jurisdiction of the Supreme Court. Constitutional Challenges and the Court of Appeal Act [55] Even if the constitutional declaration is characterized as something other than an order under Part XXIV of the Criminal Code , however, I am of the view that an appeal lies to this Court. Section 6(1)(a) of the Court of Appeal Act , R.S.B.C. 1996, c. 77 provides: 6 (1) An appeal lies to the court (a) from an order of the Supreme Court or an order of a judge of that court [56] Because jurisdiction over criminal law and procedure is within the exclusive jurisdiction of the federal Parliament under s. 91(27) of the Constitution Act, 1867 , a provincial statute like the Court of Appeal Act is not applicable in ordinary criminal proceedings. An application for a declaration that a provision of the Criminal Code is unconstitutional, however, is not an ordinary criminal proceeding. [57] It is well established that a stand-alone challenge to the constitutionality of a criminal statute is brought as a civil matter: A.G. Canada v. Law Society of British Columbia , [1982] 2 S.C.R. 307. Such challenges are not uncommon, and appeals in such cases are governed by provincial legislation. Examples heard in this Court include Rodriguez v. British Columbia (Attorney General ) (1993), 76 B.C.L.R. (2d) 145 (appeal dismissed, [1993] 3 S.C.R. 519); Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General) , 2010 BCCA 439 (appeal dismissed, 2012 SCC 45); and Carter v. Canada (Attorney General) , 2013 BCCA 435 (appeal allowed, 2015 SCC 5). The source of this Court’s jurisdiction, in each of those cases, was the Court of Appeal Act . [58] A stand-alone declaration that legislation is constitutional or unconstitutional is generally characterized, then, as a civil matter, even where the declaration concerns a criminal statute. Appeals from Constitutional Declarations Issued in Criminal Prosecutions [59] Where a constitutional challenge is mounted in the context of a criminal proceeding, the issue of whether an appeal can proceed under a provincial statute is more complicated. It will depend on whether the appeal is properly characterized as a civil proceeding or a criminal one. [60] The answer to that question is not always a simple one. Cases can have both criminal and civil aspects – see, for example, this Court’s recent decision in Director of Civil Forfeiture v. Hells Angels Motorcycle Corporation , 2014 BCCA 330. The proper characterization of an appeal can be a matter of some subtlety. E.G. Ewaschuk, Criminal Pleadings and Practice in Canada , 2nd ed. (Toronto: Canada Law Book, 1987) (loose-leaf updated to release No. 123, December 2015) at § 23.0050 states: An appeal is either civil or criminal in nature. The nature and character of the appeal is not determined by the result of the proceedings being appealed from but, rather, by the nature of the law upon which the proceedings are based. The test is whether the proceedings being appealed are criminal in nature and founded on the federal criminal law power, or whether the proceedings are civil in nature and founded on provincial legislative powers. [61] Normally, where a constitutional declaration is sought within a criminal prosecution, the declaration is closely bound up with issues of guilt or innocence, with procedural rights, or with punishment. All of those matters are manifestly within the core of criminal law, and the proceedings are, therefore, governed by criminal procedures. In order to avoid the procedural chaos that could accompany the existence of a multiplicity of appeal proceedings, the courts have held that, in such circumstances, appeals are governed exclusively by criminal procedures. In Kourtessis v. M.N.R. , [1993] 2 S.C.R. 53 at 80, La Forest J., speaking for three of the six judges who participated in the decision [1] The admixture of provincial civil procedure with criminal procedure could, I fear, result in an unpredictable mish-mash where, in applying federal procedural law, one would forever be looking over one's shoulder to see what procedure the provinces have adopted (and this may differ from province to province) to see if there was something there that one judge or another would like to add if he or she found the federal law inadequate. And I see no reason in principle why appeals could not be read in for other interlocutory proceedings, or indeed why other provincial rules of procedure might not be adopted… That, barring federal adoption, is in my view constitutionally unacceptable. It is certainly impractical. In dealing with procedure, and particularly criminal procedure, it is important to know what one should do next. [62] Where a constitutional declaration remains bound up with issues of an accused’s guilt or innocence, the punishment to be imposed on a person convicted of a crime, or with procedural rights of an accused, there is no doubt that the “nature of the proceedings” will be criminal. Appeal rights must be found within the Criminal Code or some other applicable federal statute relating to the criminal law. [63] Circumstances will arise, however, where issues of constitutionality become separated from the criminal proceedings in which they first arose. The following situations are examples of such circumstances: · An accused may successfully challenge a particular provision of the Criminal Code , but still be convicted because other constitutionally-valid provisions of the Code are sufficient to sustain the charge; · An accused may succeed in obtaining a declaration that a provision is unconstitutional, but the declaration may be suspended for a period of time, and therefore not assist the accused; · A constitutional declaration may relate to a procedural provision of the Criminal Code that ceases to have effect or importance as the case progresses. [64] In each of these situations, a constitutional declaration that constitutes a final order has been made, but it has ceased to be connected with the prosecution in which it was granted. The declaration is irrelevant or inapplicable to the disposition of the criminal case in which it was made, but it has continued validity and vitality outside that prosecution. The declaration resembles a constitutional declaration granted in a free-standing constitutional challenge. It is fair to ask, therefore, whether civil appeal provisions that apply to declarations made in free-standing constitutional challenges are equally applicable to declarations that have been made in the context of criminal prosecutions, but which have, for one reason or another, become divorced from those prosecutions. [65] In Laba , Lamer C.J.C. noted that appeals from constitutional declarations in criminal prosecutions will normally be considered in the context of ordinary criminal appeal proceedings. He allowed, however, that appeals from constitutional declarations made in criminal prosecutions can, where necessary, proceed independently of any right of appeal in the Criminal Code . He noted, at 978, that criminal and constitutional proceedings “will usually, but need not always , be governed by the same rules and practices” [emphasis added]. I see no reason why, in appropriate cases, the rules and practices governing the constitutional proceeding could not include provincial legislation granting rights of appeal. [66] Where the constitutional issue has ceased to be bound up with the criminal prosecution in which it was issued, appeal proceedings are founded only on constitutional jurisdiction. An appeal in those circumstances is properly characterized as civil, notwithstanding that the proceedings in the court below were criminal. Ewaschuk provides some support for this conclusion. Further on in § 23.0050 he says: [I]t seems that a “direct challenge” to the constitutionality of a “federal statute” is essentially a civil procedure , even if the federal statute was enacted under the criminal law power of Parliament. The nature of the proceedings (and its appeal rights) is not governed by the subject matter of the target statute, but rather by the substantive nature of the proceedings and the order granted. In this sense, the proceedings may have a “dual aspect”. [67] Ewaschuk cites R. v. White , 2008 ABCA 294 (appeal on other grounds allowed, 2010 SCC 21 ( sub. nom. Toronto Star Newspapers Ltd. v. Canada )) for this proposition. In White , the accused was charged with the murder of his wife. He sought bail, and made an application under s. 517 of the Criminal Code for a mandatory publication ban pending trial. The publication ban was issued as a matter of course. [68] Some eight months later, several media outlets applied, within the criminal proceedings, for a declaration that the mandatory publication ban was unconstitutional. Their application was heard and judgment reserved. Before the judgment was issued, however, Mr. White’s trial ended, and the publication ban ended with it. The judge nevertheless proceeded to give judgment, granting a declaration that aspects of s. 517 of the Criminal Code were unconstitutional. The Crown appealed the decision to the Alberta Court of Appeal, which had to decide whether it had jurisdiction to hear the appeal. [69] Because the publication ban had expired, the issue of the constitutionality of s. 517 of the Criminal Code was irrelevant to the prosecution of Mr. White. Nonetheless, the judgment issued by the trial judge was a declaration that had independent force; it applied to future applications, in other cases, under s. 517. [70] The Court described the considerations to be applied in determining whether an appeal could be taken under provincial statutes: [22]      … The nature of the proceedings (and therefore the available appeal rights) is not governed by the subject matter of the target statute , but rather by the substantive nature of the proceedings and the order granted. If the proceedings are essentially related to the guilt or innocence of the accused, or some issue collateral to that (such as bail, or a publication ban in a particular case), then the proceedings are governed by the appeal and other procedures in the Criminal Code. But if the proceedings are directed at the constitutionality of the statute, they are civil, even if the challenge arises in a criminal context. [71] The Court then referred to Laba , and continued: [23]      … The issue is whether in this case, in contrast to Laba , the two issues (bail and constitutionality) proceeded separately, and are governed by different rules and practices. [72] The Court concluded that the proceedings that it was dealing with were essentially civil: [25] Which type of proceeding was this? The answer is found in the Notices of Motion filed. Neither of them makes any reference to setting aside the order restricting publication of the proceedings in which White was granted bail. They are entirely focused on the constitutionality of s. 517. The closest they come to the particular order in the White case is a request for a declaration “confirming” that the applicants are free to publish the material under restriction. This relief is, however, entirely collateral to the constitutional challenge to the statute itself. [29]      … [I]n this case the challenge to the constitutionality of the statute is the central issue, and is completely divorced from White’s guilt or innocence and his right to bail. These proceeding[s] are detached from the jury’s adjudication on White’s criminal liability, and also from whether or not he was entitled to judicial interim release. This is a case where the two issues “proceeded separately”, the most obvious manifestation of that being that the applications that resulted in the order under appeal were brought by non-parties to the criminal proceedings. If the challenge to constitutionality had been brought by the accused, it is more likely that the proceedings would fall under the Laba rule. [73] The case before us differs from White in the sense that the application for a constitutional declaration at the dangerous offender hearing was made by the accused, and did concern substantive issues of the disposition under Part XXIV of the Criminal Code . The proceedings before the trial judge were undoubtedly criminal in nature. However, the declaration that was granted did not, in the end, have any bearing on Mr. Boutilier; it did not apply to him. In challenging the order by way of appeal, the Crown is focussing exclusively on the constitutionality of the statute. In the context of the Crown appeal, that issue is completely divorced from issues as to the appropriate disposition in the dangerous offender hearing. The Crown appeal will not seek any relief as against Mr. Boutilier. The Crown appeal, then, is properly characterized as a civil matter. If the Criminal Code provisions are interpreted as insufficiently broad to permit a Crown appeal, then, s. 6(1) of the Court of Appeal Act is available to fill the lacuna. [74] I acknowledge that there will be some overlap between the arguments presented by the Crown in its appeal and those that it may make in response in Mr. Boutilier’s appeal, should that appeal also proceed. Such an overlap might raise the spectre of a procedural “mish-mash” of the sort described in Kourtessis . There is, however, no possibility of procedural chaos of the sort La Forest J. warned of. Both appeals will proceed in this Court, and they can be easily managed to ensure they are heard together. Undoubtedly, they will be co-ordinated so that they proceed in tandem. [75] Although I find the White decision to be the most relevant on this application to quash, there are other cases that support the proposition that, even when orders have initially been made in criminal proceedings, there is room for a civil appeal where the constitutional issue has become separated from criminal law issues. The cases are of limited precedential value, though, as the courts’ jurisdiction to hear the appeals do not appear to have been contested. [76] In R. v. Lepage (1997), 119 C.C.C. (3d) 193 (Ont. C.A.) (appeal on other grounds dismissed, [1999] 2 S.C.R. 744) in endnote 4 at 237, Doherty J.A. was of the view that the application for declaratory relief, brought within the context of criminal proceedings, would be sufficient to engage the court’s civil appellate jurisdiction. [77] In R. v. S.F. (2000), 141 C.C.C. (3d) 225 (Ont. C.A.), an accused challenged D.N.A. warrant provisions of the Criminal Code . He was partially successful. He was, ultimately, acquitted of the charge that gave rise to the issuance of the warrant, with the result that the constitutional declaration became divorced from the criminal proceedings. The Court of Appeal found that it had jurisdiction to hear an appeal from the constitutional declaration, relying, in part, on the footnote in Lepage . [78] One final case that should be mentioned is R. v. J.C. (2006), 206 C.C.C. (3d) 276 (Ont. S.C.J.). In that case, a judge of the Ontario Superior Court of Justice found that he did not have jurisdiction under civil appeal statutes to hear an appeal from a Youth Court Judge’s determination that a provision of the Youth Criminal Justice Act , S.C. 2002, c. 1 was unconstitutional. After referring to Kourtessis , Lepage , and S.F. , the judge said: These authorities support the position that a superior court judge has the inherent jurisdiction to grant declarations of constitutional validity, that whether or not they are part of a criminal proceeding, as was the case in LePage , or were distinct proceedings, as was the case in Koutessis and S.F ., an appeal lies to the Court of Appeal, applying the provincial civil appeal routes. [79] The judge rejected the idea that a similar appeal route lay from the Youth Court to the Superior Court of Justice under provincial legislation. That conclusion appears to be a sound one. A finding that a statute is unconstitutional, where not made by a superior court, does not appear to amount to a formal declaration that the law is of no force and effect (see R. v. Lloyd , 2014 BCCA 224 (appeal to SCC under reserve) at paras. 29-38; R. v. Sharkey , 2015 ONSC 1657 at para. 7). The dual proceeding approach discussed in Laba is, therefore, arguably inapplicable to constitutional findings of courts other than superior courts. Applicability of the Criminal Code Provisions [80] I wish to make it clear that a determination that the Court of Appeal Act provides a potential appeal route for the Crown in this case does not undermine the existence of an appeal route under the Criminal Code . I would characterize the Crown appeal in this matter as civil in nature, for the reasons I have articulated. I do not think that casts doubt on the constitutionality of the Criminal Code appeal provisions, which seem sufficiently closely tied to the federal jurisdiction over criminal law and procedure as not to offend the division of powers in the Constitution Act, 1867 . There is no operational conflict between the Criminal Code appeal provisions and the Court of Appeal Act , so there is no need to find either of them to be inoperative. [81] For the sake of completeness, I mention s. 674 of the Criminal Code , which might appear, at first glance, to create operational conflict: 674. No proceedings other than those authorized by this Part [Part XXI] and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences. [82] The section does not conflict with the existence of an appeal under the Court of Appeal Act for two reasons. First, the section has no application to appeals in dangerous offender proceedings. Such proceedings cannot have been contemplated as being included in the phrase “proceedings in respect of indictable offences” because the appeal provisions relating to such proceedings are found in Part XXIV of the Code , not in Part XXI or XXVI. [83] More generally, however, as Lamer C.J.C., writing for the majority, explained in Dagenais v. Canadian Broadcasting Corporation , [1994] 3 S.C.R. 835 at 859, the purpose of s. 674 was to replace appeal proceedings by way of writ of error and prerogative writ with new, statutory appeal rights. It was not intended to create new gaps in the availability of appellate review. In Keegstra , at para. 12, he reiterated the point: An appeal of a ruling against the constitutionality of a Criminal Code provision is not proscribed by the Criminal Code . In particular, the limitation imposed by s. 674, and mirrored in s. 40(3) of the Supreme Court Act , does not apply. Conclusion [84] I agree with Neilson J.A. that the Crown has a statutory right to appeal the declaration of unconstitutionality granted in the court below under s. 759(2) of the Criminal Code . If that provision were not broad enough to allow for a Crown appeal, however, the Crown would nonetheless be entitled to appeal the matter through civil appeal proceedings under the Court of Appeal Act . “The Honourable Mr. Justice Groberman” Reasons for Judgment of the Honourable Madam Justice Fenlon: [85] I have had the advantage of reading the reasons for judgment of both my colleagues. I concur with the reasons of Madam Justice Neilson. [86] While I do not necessarily disagree with the reasons for judgment of Groberman J.A., the analysis he presents is unnecessary for the disposition of this matter, and as the issues were not addressed in argument, I would prefer to express no opinion on it. “The Honourable Madam Justice Fenlon” [1] The other three judges rejected the idea that appeals under provincial legislation were ousted. Because the appeal was a combined appeal of two different proceedings, the question of whether the B.C. Court of Appeal had been correct to conclude that it did not have jurisdiction to hear an appeal of the matter that commenced under the Criminal Code ( Kourtessis v. M.N.R . (1989), 50 C.C.C. (3d) 201) was, ultimately, of only academic interest. Nonetheless, the result of the 3:3 split of the Supreme Court of Canada would technically have been to uphold the decision of the B.C. Court of Appeal that it lacked jurisdiction on that aspect of the appeal. Thus, in some sense, La Forest J.’s judgment is the “majority” judgment.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Simon v. British Columbia (Attorney General), 2016 BCCA 52 Date: 20160121 Docket: CA42664 Between: Zoltan Andrew Simon and Zuanhao Zhong Appellants (Plaintiffs) And The Attorney General of British Columbia The Attorney General of Canada Respondents (Defendants) Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Frankel The Honourable Mr. Justice Fitch On appeal from: an order of the Supreme Court of British Columbia, dated February 27, 2015 ( Simon v. Canada (Attorney General ), 2015 BCSC 924, Golden Registry No. 4756) Oral Reasons for Judgment Appellant appearing In Person: Counsel for the Respondent, Attorney General of British Columbia: M.N. Weintraub Counsel for the Respondent, Attorney General of Canada A.F. Brown and B. Sokhansanj Place and Date of Hearing: Vancouver, British Columbia January 21, 2016 Place and Date of Judgment: Vancouver, British Columbia January 21, 2016 Summary: The appellant appeals an order made under Rule 9-15 (1) of the Supreme Court Civil Rules striking their claim without leave to amend and dismissing their action. Held: appeal dismissed. No grounds had been shown to interfere with the conclusion of the chambers judge that the action failed to disclose a reasonable cause of action, was scandalous, frivolous and vexation and constituted an abuse of process of the court. [1] FITCH J.A. : This is an appeal from an order made on February 27, 2015 under Rule 9-5(1) of the Supreme Court Civil Rules striking the whole of the appellants’ claim without leave to amend and dismissing the action. [2] The detailed and well-considered reasons of the chambers judge are indexed at 2015 BCSC 924. [3] The chambers judge concluded the appellants’ pleadings failed to disclose a reasonable cause of action, were scandalous, frivolous and vexatious, and otherwise constituted an abuse of the process of the court. [4] The appellants assert that the chambers judge erred in articulating and applying the test governing applications to strike pleadings. In addition, the appellants assert that a reasonable apprehension of bias arises out of the manner in which the chambers judge dealt with the application. In conjunction with the appeal, the appellants have filed in this Court material that was not before the chambers judge. The additional material is summarized at para. 15 of the factum filed on behalf of the Attorney General of Canada. No application has been made to admit this additional material as fresh evidence on the appeal. [5] In my view, no grounds have been shown to interfere with the orders made by the chambers judge. Her articulation and application of the governing law is unassailable. [6] The reasonable apprehension of bias argument is unsupported by any factual foundation or principled argument and is wholly without merit. [7] Finally, I take no account of, nor would I admit, the additional material the appellants have filed in support of this appeal. This material is not properly before us and could not possibly meet the test under Palmer v. The Queen , [1980] 1 S.C.R. 759 for the admission of fresh evidence on appeal. [8] For these reasons, I would dismiss the appeal with costs against the appellant, Zoltan Andrew Simon. [9] LOWRY J.A. : I agree. [10] FRANKEL J.A. : I agree. [11] LOWRY J.A. : The appeal is dismissed and ordered accordingly. “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Young v. British Columbia, 2016 BCCA 25 Date: 20160122 Docket: CA42529 Between: Timothy Young and Seamus Young Appellants (Plaintiffs) And Her Majesty the Queen in Right of the Province of British Columbia and the Minister of Environment Respondents (Defendants) Before: The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Frankel The Honourable Mr. Justice Fitch On appeal from:  An order of the Supreme Court of British Columbia, dated December 29, 2014 ( Young v. British Columbia , 2014 BCSC 2445, Vancouver Registry S141625). Counsel for the Appellants: D.B. Kirkham, Q.C. & P.J. O’Neill Counsel for the Respondents: B.A. Carmichael & E.L. Ross Place and Date of Hearing: Vancouver, British Columbia October 26, 2015 Place and Date of Judgment: Vancouver, British Columbia January 22, 2016 Written Reasons by: The Honourable Mr. Justice Chiasson Concurred in by: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Fitch Summary: The Province expropriated 12 of 28 mineral claims owned by the appellants.  This seriously impacted the appellants’ ability to access the remaining 16 claims.  The trial judge dismissed their application for damages for injurious affection. Held: appeal dismissed.  On a plain reading of the applicable legislative provisions, compensation is confined to the fair market value of the mineral titles taken.  The phrase “consequential damages” includes damages for injurious affection. Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] This appeal concerns whether damages for injurious affection are available to a mineral claims holder when the Crown expropriates some of the holder’s claims for a park which results in interference with the holder’s ability to access remaining claims. Background [2] In 1999, the appellants began to acquire mineral claims in an area of British Columbia.  As of 2008, they owned 28 adjoining mineral claims.  The claims were registered variously in the name of either of the appellants or sometimes in both their names. [3] Initially, the appellants’ mineral claims were “legacy claims”.  In 2006, they abandoned and relocated many claims as cell claims.  The claims in issue on this appeal are cell claims. [4] The Province discussed the relevant legislative framework in its factum: 23.       Until its repeal in 2005, section 32 of the Mineral Tenure Act permitted the recorded holder of a mineral title to “group” mineral titles. In order to be grouped, the titles had to be in the name of the same recorded holder, and had to be adjoining. There was no requirement to group mineral titles; it was optional at the discretion of the recorded holder. 24.       Amendments to the Mineral Tenure Act in 2004 introduced the concept of “amalgamation” of mineral claims. Section 24.2 permits adjoining cell claims (all of the relevant claims held by the plaintiffs are cell claims) to be amalgamated with other cell claims if they are held by the same recorded holder. In the event of amalgamation, one mineral title is issued for all amalgamated cells. 25.       Both grouping (available until 2005) and amalgamation (from 2004 onward) require a positive step by a recorded holder, and result in a registration in the Mineral Title Registry (section 5). 26.       In order to group or amalgamate claims, the claims need(ed) to be held by the same recorded holder ( Regulation , s. 1 (definitions); Mineral Tenure Act , s. 24.2). [5] The appellants did not apply to group their legacy claims and did not seek to amalgamate their cell claims.  They assert that they were prevented from amalgamating due to the size of the claims. [6] In June 2008, the Province expropriated 12 of the appellants’ 28 mineral claims.  For the purposes of this appeal, it is assumed that this seriously impacted the appellants’ ability to access the remaining 16 claims. [7] In 2012, the appellants brought a petition seeking a declaration that they were entitled to be compensated as if their claims had been grouped.  Madam Justice Russell did not accede to this contention ( Young v. British Columbia (Energy and Mines) , 2012 BCSC 1369). [8] Subsequently, the Province and the appellants settled the compensation payable for the 12 expropriated mineral claims.  It was agreed that the associated release was “not intended to apply to the [the appellants’] common law claims for injurious affection”. [9] On February 27, 2014, the appellants filed a notice of civil claim seeking “judgment for damages for injurious affection”.  They subsequently filed a summary trial application seeking judgment in the amount of $3,000,000 or alternatively “for a determination that [they] are entitled, as a matter of law, to compensation to the extent that the unexpropriated mineral titles sustained injurious affection, with damages to be proved subsequently”.  At the hearing of the application the appellants limited their remedy to the alternative position. [10] Mr. Justice Truscott dismissed the application. Chambers Reasons [11] The judge noted that the appellants’ position was that this Court’s decisions in Rock Resources Inc. v. British Columbia , 2003 BCCA 324, 229 D.L.R. (4th) 115, and Adroit Resources Inc. v. HMTQ (British Columbia) , 2010 BCCA 334, 6 B.C.L.R. (5th) 244, are determinative of the present case.  The Province asserted that these cases no longer are applicable because the legislative scheme has changed. [12] The judge reviewed the decision of Russell J. and the positions of the parties advanced before her.  He noted that settlement of the claims related to the 12 expropriated mineral claims and also noted the release.  He then turned to Rock Resources . [13] Referring to the judgment of Chief Justice Finch, Truscott J. stated: [30] He determined that a plain reading of s. 11(c) of the Park Act , 1979, was not conclusive on the issue of compensation for mineral claims, as the provision was silent in that respect. He said mineral claims were excluded from s. 11(c) of the Park Act, 1979, only indirectly, through an amendment to s. 21(2) of the Mineral Act , S.B.C. 1977, c. 54 that deemed mineral claims to be a chattel interest and not an interest in land, and he said if the legislature had intended not to pay compensation for an expropriated mineral claim after 1977, it would have done so in a more direct and explicit fashion. [31] For those reasons, he determined that there was nothing in the Park Amendment Act 1995, read in the context of the legislative scheme as a whole, nor in the circumstances in which the legislation was introduced, that would clearly rebut the presumed intention that compensation would be paid. [32] His conclusion was the presumption of full compensation should prevail and the authorized taking of the plaintiff’s rights in the mineral claims required the Crown to pay full compensation for the value of those lost rights. [14] The judge discussed the applicable legislative scheme.  Section 11(2)(c) of the Park Act, R.S.B.C. 1996, c. 344, authorized the Province to expropriate mineral claims.  Compensation is to be determined “in accordance with section 17.1 of the Mineral Tenure Act [R.S.B.C. 1996, c. 292].”  He quoted s. 17.1: 17.1 (1) If, after the coming into force of this section, the minister responsible for the administration of the Park Act expropriates under section 11 of the Park Act the rights of a recorded holder of a lease or claim or of an owner of a Crown granted 2 post claim, compensation is payable to the recorded holder or owner, as the case may be, in an amount equal to the value of the rights expropriated, to be determined under the regulations. (2) If the minister responsible for the administration of this Act and the recorded holder or owner, as the case may be, do not agree as to the amount of compensation that is payable under subsection (1), the minister or the recorded holder or owner may require the dispute to be settled by a single arbitrator who has the prescribed qualifications and is to be appointed by the minister. [15] The applicable regulations are the Mining Rights Compensation Regulation, B.C. Reg. 19/99 [ Compensation Regulation ] . They provide: 5 (1) The value of an expropriated mineral title must be determined by estimating the value that would have been paid to the holder of the expropriated mineral title if the title had been sold on the date of expropriation, in an open and unrestricted market between informed and prudent parties acting at arm’s length. (5) The value of an expropriated mineral title must not include consequential damages caused to the expropriated mineral title holder as a result of the expropriation or the expenditures incurred in acquiring or operating an equivalent mineral title elsewhere. [16] The judge then reviewed the positions of the parties. [17] After commenting further on Rock Resources and Adroit, the judge observed that the appellants’ entitlement to compensation beyond what they received for the 12 expropriated claims “depends … on the issue of the proper statutory interpretation of the new legislative scheme” (at para. 60).  The parties were and are in agreement that there is no common law right to compensation for injurious affection. [18] The judge discussed s. 5(5) of the Compensation Regulation : [72] The wording of s. 5(5) deals with what the value of an expropriated title must not include by way of consequential damages, but the consequential damages not to be included are those caused to the expropriated mineral title holder (not to the expropriated title) as a result of the expropriation or the “expenditures incurred in operating an equivalent mineral title elsewhere.” [73] Accordingly, the wording supports the plaintiff’s submission that this issue is to be determined on the basis of a “partial taking” and not a “no taking”, following Adroit Resources . [19] The judge referred to a number of texts and case authorities that describe damages for injurious affection as “consequential damages”.  He held: [83] On the strength of these decisions it is my determination that s. 5(5) of the Compensation Regulation evidences a clear legislative intention to deny compensation for injurious affection as “consequential damages” to an expropriated mineral title holder. For this reason, he dismissed the appellants’ application. [20] The parties did not argue cause of action estoppel or abuse of process arising out of the decision of Russell J.  The judge raised, but did not decide, the issue. Positions of the Parties [21] The appellants contend that the judge misconstrued s. 5(5) of the Compensation Regulation . [22] The Province asserts that the judge correctly interpreted the statutory scheme.  It also states in its factum that: To the extent the appellants are relying upon a statutory provision as authority for their injurious affection claim, the claim is res judicata (cause of action estoppel), or alternatively, an abuse of process, and should be dismissed. [23] The appellants addressed this contention in their reply contending that the decision of Russell J. did not concern whether the statutory scheme allowed for a claim for damages for injurious affection and after her decision it was necessary for them to bring the present action. Discussion [24] Chief Justice Finch summarized the relevant law in Rock Resources : [136]    Whether or not compensation is payable for the taking of a property interest, therefore, is a question of the intention of the legislature.  The ordinary rules of statutory interpretation are relevant to the determination of legislative intent.  In addition, there is a presumption, based on justice and fairness, that the Crown will pay full compensation.  A clear contrary intention is required to rebut the presumption. [25] The Chief Justice also quoted from the reasons for judgment of Mr. Justice Lambert in British Columbia Medical Association v. R. in Right of British Columbia (1984), 58 B.C.L.R. 361 (C.A.), which emphasize that the interpretive exercise “is not a purely mechanical matter of examining the legislation and asking whether there is an express written reference to the fact that the taking is to be without compensation”.  Lambert J.A. added: the rule does not override the legislative intention.  It is not a device by which the courts can enable a claimant to outwit the legislature. [26] The appellants contend that s. 5(5) should not be interpreted to exclude damages for injurious affection because at the time it was enacted mineral claim holders could group claims and effectively receive compensation for claims not expropriated, but affected adversely by the expropriation, but since 2004 with the initiation of the cell claim regime, some holders cannot obtain the same benefit.  They assert that it is not appropriate to limit the scope of compensation based on a pre‑existing legislative scheme. [27] At the core of the appellants’ submission is the proposition that because legacy claims could be grouped and s. 17.1(1) of the Mineral Tenure Act provides for compensation “in an amount equal to the value of the rights expropriated”, s. 5 of the Compensation Regulation should not be construed to take away their right to injurious affection.  They state in their factum: How can a regulation promulgated in 1999, which expressly recognized injurious affection for legacy claims, be interpreted to deny injurious affection in respect to cell claims, which only came into existence in 2004? [28] The question is premised on the conclusion that the regimes changed.  That is, that the ability to group legacy claims or to amalgamate cell claims differs substantively.  In my view, it does not. [29] When enacted, the regulation expressed the Legislature’s intention that expropriated holders of so‑called legacy claims that were not or could not be grouped would not be entitled to consequential damages.  If claims were grouped the issue of consequential damages did not arise.  The same is true of cell claims that are amalgamated. [30] Section 6 of the Compensation Regulation gives the holder of grouped claims that are partially expropriated and “the expropriation eliminates the feasibility of exploiting the remaining portion” a right to be compensated based on the value of all mineral titles in the group.  The cell regime permits the amalgamation of cell claims which then are treated as one claim. [31] Under both regimes the ability to group or amalgamate is constrained both by size and the need for adjoining claims to be held by the same entity. [32] The purpose of the introduction of the cell claim regime was administrative.  Rather than require claims to be staked on the ground, they can be established using an electronic grid (British Columbia, Legislative Assembly, Hansard 37th Parl., 5th Sess. (21‑22 April 2004) at 10274, 10388 (Hon. R. Neufeld).  There is nothing to suggest that the rights of claim holders, or any limitation on their ability to obtain compensation if claims are expropriated, changed.  The ability to group or to amalgamate was and remains constrained.  Recovery of consequential damages was and remains prohibited. [33] In my view, the issue is whether damages for injurious affection are consequential damages. [34] The appellants state that s. 5(5) of the Compensation Regulation “is limited to consequential damages caused to the expropriated title holder in respect to the ‘value of an expropriated title’”.  They assert that the section does not apply “to injurious affection, which is the loss of value to other property” and that “[t]here is nothing in [the section] which indicates that damage to other property was the intended subject matter of s. 5(5)” (emphasis in original).  The appellants contend that s. 5(5) is limited to damages “arising from an expropriation, such as disturbance damages”. [35] The starting point is s. 17.1 of the Mineral Tenure Act .  It provides for compensation to the holder of a mineral claim “equal to the value of the rights expropriated” as determined by regulation. Section 5(1) of the Compensation Regulation deals with the value of an expropriated mineral title.  It is to be determined by estimating the fair market value of the title.  Section 5(3) provides some guidance to the evaluator and subsection (4) excludes certain factors from consideration.  Section 5(5) excludes “consequential damages caused to the expropriated mineral title holder as a result of the expropriation” (emphasis added).  In my view, this fits squarely within the classic definition of injurious affection: damages sustained to other property held by the expropriated party ( Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594 at para. 4).  I agree with the judge’s conclusion that “the consequential damages not to be included are those caused to the expropriated mineral title holder (not to the expropriated title) as a result of the expropriation….” [36] Section 5(5) also excludes “expenditures incurred in acquiring or operating an equivalent mineral title elsewhere”.  In the context of an expropriation, such expenditures generally are considered to be disturbance damages ( Adroit Resources Inc. v. HMTQ, 2009 BCSC 841 at para. 268, referring to Eric C.E. Todd, The Law of Expropriation and Compensation in Canada , 2nd ed. (Scarborough Ont.: Carswell, 1992) at p. 274). [37] In my view, on a plain reading of the applicable legislative provisions, compensation is confined to the fair market value of the mineral titles taken. [38] If the inquiry were confined to determining generally whether damages for injurious affection are consequential damages, I would reach the same conclusion. [39] “Consequential damages” is a broad concept.  It has been defined as: Losses that do not flow directly and immediately from an injurious act but that result indirectly from the act. ( Black’s Law Dictionary , 10th ed. 2014). Consequential damages have been described as “that loss which is related to the circumstances of the particular claimant” (Harvey McGregor, McGregor on Damages , 19th ed. (London: Sweet & Maxwell, 2014) at 3‑008.) [40] Conceptually, I see no basis for concluding that damages for injurious affection are not consequential damages. [41] In the context of expropriations, the Province relies on comments in two well-respected texts.  The judge referred to these comments: [65]      The Province relies for its submission that “consequential damages” within s. 5(5) of the Compensation Regulation includes damages for injurious affection, on the statement of E.C.E. Todd, The Law of Expropriation and Compensation in Canada (2d ed.) 1992, where he says at p. 331 that: Damage by injurious affection, sometimes referred to as “consequential damage”, may arise in three different situations, two of which involve the expropriation of a portion of the claimant’s land and a third which involves no such expropriation. [78]      In addition, George Challies in The Law of Expropriation (2d ed.) Wilson and Lafleur, 1963, defines injurious affection at p. 131 as follows: Compensation is recoverable not only for the value of land taken, but for consequential damage to other property. Such consequential damage is termed injurious affection in England and the common law Provinces of Canada. [42] The trial judge also referred to case authorities.  He stated: [77]      Mr. Todd’s definition was adopted by the Federal Court of Appeal in Semiahmoo Indian Band v. Canada , [1997] F.C.J. No. 842 (C.A.) where the Court dealt with the issue of whether the surrender to the government of 22.4 acres of the Band’s reserve impeded development on the remainder of the reserve. The Court pointed out, in reliance on Mr. Todd’s book, that: Damage by injurious affection, also known as “consequential damage”, recognizes inter alia that, “[w]here part of an owner’s land is expropriated, the piece or pieces of land remaining may be rendered less valuable as a result of their severance from the expropriated portion. Here a claim may be made for ‘injurious affection by severance’.” [79]      In Lamb v. Manitoba Hydro-Electric Board , [1966] S.C.R. 229 the Supreme Court of Canada dealt with lands and buildings of the appellant in low lying land expropriated by the Board pursuant to the Manitoba Hydro Act, 1961 (Man.), c. 28 . [80]      The appellant was not satisfied with the amount offered as compensation and arbitration proceedings followed. The parties reached an agreement as to the compensation payable for injurious affection but the arbitrator had to concern himself with fixing compensation for the value of the lands and buildings expropriated. [81]      The appellant was not content with the compensation awarded for the lands and buildings. [82]      In the Supreme Court of Canada, the judgment of the majority was written by Hall J. and during the course of his judgment at p. 233, he said the following: Meanwhile, as a result of negotiations between the parties, an agreement had been reached whereby compensation payable under the heading of injurious affection or consequential damage and the cost of relocating the sewage disposal field was agreed upon in the sum of $18,000. [43] The appellants are critical of the judge for relying on these authorities because the specific interpretive issues were not before the Court, but, in my view, they merely are examples of judicial comments that are consistent with the observations in the texts.  I note also, that in Antrim , Mr. Justice Cromwell referred to the page in Professor Todd’s text on which the Province relies, although the specific issue was not then before the Court. [44] In Rock Resources , this Court rejected as inadequate a plan of compensation that “would not permit compensation to be paid for damages for … consequential damages ….”  In context, the phrase clearly encompassed damages for injurious affection. [45] In summary, there is no conceptual reason to conclude that damages for injurious affection are not included in consequential damages.  There is no authority to the contrary.  It would appear that learned authors and the courts have assumed that such damages are included in consequential damages.  I see no basis to interpret s. 5(5) in a manner inconsistent with this. Conclusion [46] In my view, the judge correctly concluded that the appellants are not entitled to a declaration that they are entitled to advance a claim for injurious affection. [47] In such circumstances, I do not think it appropriate to consider whether the appellants’ pursuance of the present application was an abuse of process. [48] I would dismiss this appeal. “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Mr. Justice Frankel” I agree: “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Boekhoff v. Boekhoff, 2016 BCCA 33 Date: 20160125 Docket: CA42377 Between: Jayne Kathleen Boekhoff Appellant Respondent on Cross Appeal (Claimant) And Gerald Daniel Boekhoff Respondent Appellant on Cross Appeal (Respondent) Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Tysoe The Honourable Madam Justice Garson On appeal from:  An order of the Supreme Court of British Columbia, dated October 29, 2014 ( Boekhoff v. Boekhoff , 2014 BCSC 2027, Vancouver Docket D092660). Counsel for the Appellant: G.A. Phillips O. Gavrilova Counsel for the Respondent: M.R. Slay L.N. Marenco Place and Date of Hearing: Vancouver, British Columbia December 3, 2015 Place and Date of Judgment: Vancouver, British Columbia January 25, 2016 Written Reasons by: The Honourable Madam Justice Garson Concurred in by: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Tysoe Summary: The appellant appeals and the respondent cross appeals a summary trial judgment cancelling spousal support arrears and ordering recommenced payment of monthly spousal support. In 2001, the parties agreed to reduce monthly support payments. The appellant did not object to the reduction until 2010, when her counsel sent a letter demanding arrears and reinstatement of the full amount. She took no further steps until commencement of these proceedings in 2014. Held: The appellant’s appeal is dismissed. The respondent’s cross appeal is allowed in part. Because no consideration passed between the parties, the 2001 agreement was not a contract. However, the appellant waived her right to full support, and the waiver was not withdrawn unequivocally until she commenced this proceeding. The summary trial judge did not expressly consider if there was a material change in circumstances as required by the Divorce Act, R.S.C. 1985, c. 3 before cancelling arrears. However, the waiver and the consequences arising therefrom satisfy the material change in circumstances test. Arrears are cancelled until the date the waiver was withdrawn. In reinstating spousal support, the summary trial judge erred by beginning from the position that the parties’ income should be equalized without considering their current means, needs and circumstances. This case is an appropriate case for the application of the Spousal Support Advisory Guidelines. Support is reinstated based on a reduced Guideline amount. Reasons for Judgment of the Honourable Madam Justice Garson: Introduction [1] This appeal and cross-appeal arise under the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.). The appellant, Jayne Boekhoff, appeals a summary trial judgment cancelling spousal support arrears of approximately $99,000 owed by the respondent, Gerald Boekhoff, her former husband. Mr. Boekhoff cross-appeals a second order requiring him to recommence payment of spousal support in the amount of $800 per month. [2] The summary trial judge’s reasons are indexed at 2014 BCSC 2027 (the “2014 Reasons”). [3] For the reasons that follow I would dismiss the appeal of the order cancelling the arrears, and allow the cross-appeal in part by reducing the spousal support to $424 per month. Facts Background [4] The appellant and respondent were married for over 20 years. Throughout the course of their marriage, Ms. Boekhoff primarily remained at home to care for the parties’ two children, D. and L. Both children had and continue to have health and developmental difficulties. [5] The parties were divorced in 1997. Following a trial, Mr. Boekhoff was ordered to pay $800 per month in spousal support on an indefinite basis: Boekhoff v. Boekhoff , [1997] B.C.J. No. 838 (S.C.) (the “1997 Reasons”). [6] In the fall of 2000 or early 2001, the parties met to discuss the ongoing spousal support payments. There is some dispute about who was present at this meeting, and about what (if any) agreement arose as a result. Ms. Boekhoff says that her then common law spouse, Mr. White, one of her sons, and Mr. Boekhoff attended. Mr. Boekhoff says that only he and Ms. Boekhoff were present. [7] Mr. Boekhoff says that the parties agreed to reduce support payments to $200. The $200 was intended to provide financial assistance for their son L. Ms. Boekhoff says that she was pressured into agreeing by other people present at the meeting. [8] Following the 2001 meeting, Mr. Boekhoff paid Ms. Boekhoff $200 per month, and from 2001 to 2008, Ms. Boekhoff provided him with receipts for the full $800 amount. She took no issue with the amount of the support payments for approximately 10 years. [9] On September 8, 2010, Ms. Boekhoff’s counsel sent Mr. Boekhoff a letter requesting immediate reinstatement of the full $800 amount, as well as payment of the arrears said to have accrued in the period following the alleged agreement. That letter reads, in part, as follows: We act for Jayne Boekhoff who informs us that you unilaterally reduced the permanent spousal support payments effective January 1, 2001 from $800.00 per month to $200.00 per month. You should immediately resume support payments of $800.00 per month. We calculate arrears of support payments at $70,000.00 exclusive of interest. Kindly provide your cheque in that amount payable to Phillips Paul in trust within fifteen days of the date of this letter. [10] Mr. Boekhoff’s counsel responded by stating that the parties had come to an agreement respecting the amount of spousal support payments in 2001. Ms. Boekhoff took no further steps for over three years until she commenced the within application in March 2014. [11] In these underlying applications, Ms. Boekhoff sought payment of $99,000 in arrears and reinstatement of the monthly support payments, increased to an amount considered appropriate by the court. Mr. Boekhoff opposed the application for payment of the arrears, and brought his own application to vary the 1997 order by terminating or alternatively reducing spousal support. Circumstances of the Parties [12] At the time of summary trial, Mr. Boekhoff was 61 years old and Ms. Boekhoff was 59. [13] Prior to the parties’ marriage, Ms. Boekhoff obtained only a grade 10 education. She obtained no further education or training during the marriage, working unskilled labour jobs for short periods. At the time of the 1997 trial she worked part time earning approximately $1,800 per month (1997 Reasons at para. 18). Mr. Boekhoff worked as a body shop manager and automotive mechanic (2014 Reasons at para. 11). While not employed at the time of trial in 1997, he was “actively looking for work” and expected to be re-employed. I infer that the trial judge estimated his income in the $60,000 range (1997 Reasons at para. 21). [14] In the period following their divorce, Ms. Boekhoff has since improved her education and is now employed as an educational assistant (2014 Reasons at para. 41). Her employment income in 2013 was $23,000. Additionally, she receives $7,200 in tax free income providing respite care, and approximately $10,200 additional untaxed income (at para. 42). [15] Ms. Boekhoff purchased a home in 2003 with a market value of $406,000 (at para. 43). As of the date of summary trial, she had approximately $183,000 net equity in the home. [16] Without spousal support, the summary trial judge found Ms. Boekhoff’s annual income to be $48,700 (at para. 42.). He included income from her current common law spouse, who had been contributing approximately $500 per month to household expenses. She continues to provide limited financial assistance to D. and L. Mr. Boekhoff does not provide any financial assistance to the children. [17] Mr. Boekhoff operates a franchised restoration business with his common law spouse (at para. 45). His net business income in 2013 was $62,283. He owns a home which, at the time of summary trial, was worth $479,000 and in which he had net equity of $94,498. Reasons for Judgment of the Summary Trial Judge [18] As may be inferred from the foregoing, the key issue before the summary trial judge was whether the parties agreed to reduce spousal support in 2001. [19] After setting out the circumstances of the parties’ marriage and divorce, the judge described the circumstances surrounding the 2001 meeting in the following terms: [17]      In either late fall of 2000 or early January of 2001, the parties met to discuss ongoing spousal support. The respondent inquired about the duration of spousal support during his meeting with the claimant. At that meeting the claimant’s then common law spouse, Brent White, stated that she did not require the respondent’s spousal support. The parties agreed that a reduced amount of $200 would be paid by the respondent to the claimant to provide support to [L]. [20] The judge noted that Ms. Boekhoff refused to put the agreement into writing, or attend court to terminate the order, but that she continued to provide Mr. Boekhoff with $800 receipts. [21] Ms. Boekhoff argued at trial that the agreement was obtained under duress. The summary trial judge did not expressly consider this argument in his reasons. However, he noted at para. 20 that initially, she claimed that Mr. Boekhoff was abusive and intimidated her into accepting reduced support. He further noted that Ms. Boekhoff later stated it was Mr. White who persuaded her to accept the $200 per month. [22] Aside from the September 8, 2010, letter, the summary trial judge found that Ms. Boekhoff made no attempts to seek arrears or otherwise enforce the initial $800 payment order through the Family Maintenance Enforcement Program (the “FMEP”), despite being registered with FMEP (at para. 22). [23] Ultimately, the judge concluded that the parties had come to an “agreement” in 2001, stating the following: [32]      I am satisfied the parties agreed in 2001 to reduce the spousal support of $800 per month to $200 per month. [24] It would appear implicit in this and subsequent findings that he rejected Ms. Boekhoff’s argument that the agreement was the result of duress. [25] The summary trial judge found the facts justified an order cancelling arrears. He noted that the burden rested with Mr. Boekhoff to demonstrate that it would be grossly unfair not to cancel arrears (at para. 34). He found that there was no evidence indicating that Ms. Boekhoff had suffered financially as a result of the reduction in support (at para. 35). As a matter of principle, he stated that where support is reduced by agreement, a court is entitled to take into account a party’s failure to enforce the agreement and make an order retroactively reducing support to the date of the alleged agreement (at para. 36). [26] However, the summary trial judge considered the main point to be that Ms. Boekhoff was estopped from alleging an entitlement to the arrears, having agreed to a reduction (at para. 37). He cited public policy against “hoarding”, and found that if arrears were ordered to be paid, “it would work a hardship against [Mr. Boekhoff] and be financially prejudicial to him” (at para. 37). [27] Accordingly, the summary trial judge ordered arrears rescinded from January 1, 2001 to September 1, 2014, the month in which the summary trial occurred. [28] After reviewing the present circumstances of the parties, the summary trial judge reinstated prospective spousal support of $800 on an indeterminate basis from October 1, 2014. In making this order, he noted that the parties’ income would be approximately equal if an $800 per month award was made: [49]      The respondent’s present annual income is $62,283 while the claimant’s is $48,700, of which approximately half is tax free. [50]      If McEwan J.’s spousal support order of $800 per month tax free continues, the claimant’s annual income would be $58,400. [51]      The respondent’s annual income would then be $52,683 but his share of his business income is one-half of the total. The other half is attributable to his wife and business partner. His business and personal expenses are shared with his wife. Therefore the income of the parties will be approximately equal. [29] He considered an indefinite award equalizing the parties’ income to be fair given the duration of their marriage and the economic disadvantage suffered by Ms. Boekhoff after its breakup (at para. 54). Issues [30] The following issues are raised on appeal: a) Did the parties reach an agreement in 2001, and if so, what is the effect of that agreement? b) Did the summary trial judge err in cancelling the arrears that accrued between January 1, 2001 and September 1, 2014? c) Did the summary trial judge err in reinstating prospective spousal support of $800 per month on an indeterminate basis? Discussion Did the parties reach an agreement in 2001, and if so, what is the effect of that agreement? [31] As already noted, there are differing accounts of the meeting between the parties at which they agreed to reduce spousal support. In her first affidavit filed in support of this application, Ms. Boekhoff deposed that Mr. Boekhoff “unilaterally reduced the amount of spousal support” in January 2001. She made no reference to a meeting, and said that she consented to a reduction because she felt threatened by Mr. Boekhoff. In his responding affidavit, Mr. Boekhoff deposed that the parties had a discussion in September 2000, and that Ms. Boekhoff told him that she no longer needed support. He said that the ongoing payments of $200 were intended to support L. In her next affidavit, Ms. Boekhoff said that she did not agree to a permanent reduction in spousal support. She said that she agreed to a temporary reduction because of Mr. Boekhoff’s bullying, and that at the time, she was also living with “an abusive partner”, Mr. White. When cross-examined on this affidavit, she testified that the meeting in question took place at her home, and that it was Mr. White who had said, “She doesn’t need the money, she will take the 200.” She said that Mr. White, Mr. Boekhoff, and her son D. (who was also present) had agreed on her behalf that she would take $200. [32] Mr. Boekhoff testified in his cross-examination that he could not recall Mr. White’s presence at the meeting. [33] The summary trial judge accepted Ms. Boekhoff’s viva voce account of the meeting in the sense that he found that Mr. White was present and it was he who stated she did not require Mr. Boekhoff’s support. [34] However, it is clear that the judge found as a fact that Ms. Boekhoff “agreed” to the reduced amount (at para. 32). There was ample evidence to support this finding. Indeed, her differing accounts of the meeting were not reconcilable. From the cross-examination on her affidavits, it seems she finally settled on the assertion that it was Mr. White’s threats and intimidation that constituted the duress, but that she ended that relationship some time in 2001. As noted, she made no effort to enforce the terms of the original support order until 2010, long after her relationship with Mr. White ended or to enforce the arrears through FMEP. [35] While the summary trial judge found “agreement” as a fact arising out of the 2001 meeting, he did not address the issue of whether this agreement was legally binding. Arguments focussed on duress, apparently assuming that the constituent elements of a legally binding contract were otherwise present. [36] It is clear from a review of the facts that the 2001 agreement was not a legally binding contract. It is well established that a contract requires consideration. The “essence” of a contract is a bargain, or an exchange of promises by which each side receives something from the other (see: G.H.L. Fridman, The Law of Contract in Canada , 6th ed. (Toronto: Thomson Reuters, 2011) at 82). Accordingly, if one party to an agreement is neither giving anything, nor promising to do or give anything, there is no consideration and an agreement is not legally binding (see, e.g.: Can West Tree Fruits Ltd. v. T.G. Bright & Co , [1990] 6 W.W.R. 89 (B.C.C.A.). [37] A benefit accrued to Mr. Boekhoff as a result of the 2001 agreement. That benefit was in the form of Ms. Boekhoff’s promise to accept less than the amount of spousal support that she was legally entitled to. However, Mr. Boekhoff neither undertook a corresponding obligation nor provided any new benefit to Ms. Boekhoff in exchange for that promise. [38] Because no consideration flowed from Mr. Boekhoff to Ms. Boekhoff, no binding contract was created as a result of the 2001 meeting. [39] In some limited circumstances, the law may hold a party to an agreement despite the absence of consideration through doctrines such as promissory estoppel and waiver. Promissory estoppel occurs where one party, by words or conduct, makes a promise intended to affect the parties’ legal relationship, and in reliance on that promise, the other party acts to his or her detriment: Maracle v. Travelers Indemnity Co of Canada , [1991] 2 S.C.R. 50 at 57 . A “waiver” is said to occur where the evidence shows that the party waiving their rights had a full knowledge, and an unequivocal and conscious intention to abandon them: Saskatchwan River Bungalows Ltd. et al. v. Maritime Life Assurance Co. , [1994] 2 S.C.R. 490 at 499-500. The two doctrines are closely related; the principle underlying both is that a party should not be allowed to go back on a choice when it would be unfair to the other party to do so: Saskatchewan River Bungalows at 499. [40] On appeal, this Court raised the question of whether Ms. Boekhoff’s agreement in 2001 constituted a waiver. This in turn raised the question of what the effect of the September 8, 2010, letter was, since a waiver can be withdrawn on reasonable notice: Saskatchewan River Bungalows , at 502. [41] In my opinion, Ms. Boekhoff waived her right to receive $800 maintenance payments between January, 2001, and March 1, 2014. [42] The facts as found by the summary trial judge indicate that Ms. Boekhoff was fully aware of her right to receive the $800 payments. She was a party to the proceeding in which the order giving rise to that right was made. Mr. Boekhoff brought (unsuccessfully) at least one application to vary the support obligation before the 2001 meeting (2014 BCSC 2027 at para. 15) evidencing Ms. Boekhoff’s knowledge of her entitlement to spousal support. Prior to the 2001 meeting, Mr. Boekhoff paid Ms. Boekhoff the full amount of support (at para. 16). The summary trial judge’s recognition that the parties “agreed” to decrease the amount of support (whether or not that agreement rose to the level of a binding contract) presupposes Ms. Boekhoff’s full awareness of her rights. [43] The facts likewise support a finding that Ms. Boekhoff consciously and unequivocally intended to abandon her right to full payment. Again, in accepting that the parties reached an “agreement”, the summary trial judge accepted that Ms. Boekhoff communicated her willingness to receive less than the full amount of payment. He rejected (if not explicitly) Ms. Boekhoff’s assertion that she was under duress when she agreed to the reduction. Moreover, Ms. Boekhoff’s conduct following the 2001 meeting indicates a conscious intention to abandon her rights. As noted, she accepted $200 cheques, provided receipts for $800, and made no attempt to seek arrears until 2010, long after the end of her relationship with Mr. White. [44] This brings me to the question of if and when that waiver was withdrawn. In my opinion, the September 8, 2010, letter did not have the effect of withdrawing the waiver. A party’s subsequent conduct can nullify what would otherwise amount to reasonable notice: see, e.g., Chan v. Lorman Developments Ltd. , 2007 SKQB 173 at para. 45. While the letter might have acted as reasonable notice in other circumstances, in my view, Ms. Boekhoff’s subsequent conduct nullified its effect. Upon receiving the letter, Mr. Boekhoff responded by asserting the existence of the 2001 agreement. Ms. Boekhoff made no further attempt to collect arrears until filing this application. However, I view the filing of this application in March 2014 as an unequivocal withdrawal of the waiver. Ms. Boekhoff’s conduct in respect of this application indicates a clear intention to reassert her legal rights. [45] In my opinion, the summary trial judge correctly concluded that Ms. Boekhoff was estopped from asserting an entitlement to arrears arising as a result of the reduced payments. [46] This does not, however, fully resolve the question of whether arrears were appropriately cancelled . Since the authority to cancel arrears arises under the Divorce Act , the waiver analysis should be incorporated into an analysis of the requirements of that statute. Did the summary trial judge err in ordering arrears between January 1, 2001 and September 1, 2014 cancelled? [47] The statutory authority to cancel arrears of spousal support is found in s. 17 of the Divorce Act . Section 17(1) provides: 17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, ( a ) a support order or any provision thereof on application by either or both former spouses; or ( b ) a custody order or any provision thereof on application by either or both spouses or by any other person. [48] Section 17(4.1) sets out a number of factors considered on an application under s. 17(1), and reads as follows: Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. [49] An order cancelling arrears is a form of retroactive variation: Earle v. Earle , 1999 BCSC 283, [1999] B.C.J. No. 383 at para. 21 (B.C.S.C.). Accordingly, s. 17(4.1) applies to applications to cancel arrears (see for example: Eichen v. Eichen , 2012 BCCA 32; Whyte v. Whyte , 2002 BCCA 433 at para. 49). [50] In making a variation order, the Court must take into account the objectives set out in s. 17(7): A variation order varying a spousal support order should ( a ) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; ( b ) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; ( c ) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and ( d ) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [51] In L.M.P. v. L.S. , 2011 SCC 64, the Supreme Court of Canada described the proper approach to variation applications. First, a court must determine whether there has been a material change in circumstances since the making of the original order. A “material” change is one that, if known at the time the original order was made, would likely have resulted in different terms (at para. 32). Other factors, such as the “subsequent conduct of parties”, may provide indications as to whether they considered a particular change to be material (at para. 35). [52] The test the trial judge applied to cancel the spousal support arrears was whether it would be “grossly unfair” not to do so, relying on Lewis v. Lewis (1999), 2. R.F.L. (5th) 417, 1999 CarswellBC 2468 at para. 16 (S.C.). The test for cancelling arrears of spousal support under s. 174(1) of the Family Law Act , S.B.C. 2001, c. 25 is one of gross unfairness. However the test to cancel arrears of spousal support arrears under the Divorce Act is prescribed by s. 17(1) and 17(7) . [53] This Court’s decision in Cawker v. Cawker (1995), 18 R.F.L. (4th) 268, 1995 CarswellBC 658 (C.A.) highlights the significance of an agreement to reduce support, and a recipient’s delay in seeking enforcement of the original order. In Cawker , the husband agreed to pay child and spousal support totaling $2,100 per month following a divorce. After his income decreased owing to fewer working hours, the wife agreed to reduce the total maintenance to $1,800 per month. At trial, it was found that she consented to a reduction for a period of three months, believing maintenance would be restored to the previous level once the husband’s hours increased again. However, the husband continued to pay $1,800 monthly for approximately nine years, during which time the wife never sought arrears. Following further unilateral reductions, the wife sought enforcement of the $2,100 obligation and the husband brought a cross application for variation of support and cancellation of arrears. [54] In deciding whether to vary the order retroactively, this Court emphasized the significance of the wife’s delay (at para. 25): [I] t is, in my opinion, very significant that the wife never raised the question of the payments going back to $2,100 a month . She saw her husband pretty well every month when he came to visit the children. There were opportunities for her to raise that question. It may well be that she did not regard the reduction as proper but decided that she would not insist on her rights because she did not wish to provoke court proceedings or promote animosity and she should not be penalized for taking those kinds of positions. But the fact remains that the maintenance remained at $1,800 per month and there is no reason to believe that the wife would ever have asked that it go back up to $2,100 if the husband, ten years later, had not unilaterally sought to make significant reductions in the maintenance. [Emphasis added.] [55] The Court ordered a retroactive variation of arrears back to the date that the wife allegedly consented to a reduction. [56] In this case, the summary trial judge’s reasons emphasize the importance of the 2001 agreement and Ms. Boekhoff’s delay in seeking arrears. He considered questions of “gross unfairness” and delay, and relied on Lewis and Cawker in ordering arrears cancelled. [57] The summary trial judge did not structure his analysis around the requirements of s. 17. He did not consider whether there was a material change in circumstances that would justify a variation order. While he discussed the parties’ present circumstances, and noted that there was no evidence that Ms. Boekhoff had suffered financial prejudice as a result of the reduction, he did not compare their present circumstances to those extant in 1997. [58] Ms. Boekhoff submits that the summary trial judge erred in failing to address any of the requirements of s. 17 prior to cancelling arrears, and in applying the “gross unfairness” test. [59] Mr. Boekhoff submits that the summary trial judge made no error in ordering arrears cancelled. He submits that the judge was not required to explicitly analyze s. 17, that judges are presumed to know the law, and that the analysis in this case was appropriate and satisfactory. [60] In my opinion, the judge’s failure to consider whether there had been a material change in circumstances before making what amounted to a retroactive variation was an error in principle. However, on appeal I do not understand either party to dispute that there has been a material change in circumstances since 1997. (Both parties’ applications in the lower court were premised on a material change.) Given the length of time between now and the original order, it would be surprising if that were not so. Mr. Boekhoff is now self-employed earning business income, and Ms. Boekhoff has improved both her education and her income. These circumstances are different from those extant in 1997, described in some detail above. I consider them to be such that if known at the time the original order was made, would likely have resulted in different terms: L.M.P. [61] I likewise consider the fact of the 2001 agreement, Mr. Boekhoff’s reliance on it, and Ms. Boekhoff’s failure to take steps towards enforcing the original order, to be relevant to the question of a material change in circumstances. I agree with the approach of the New Brunswick Court of Appeal in P.M.B. v. M.L.B. , 2010 NBCA 5. The court discussed the meaning of “material change in circumstances” as applicable to both provincial legislation and the federal Divorce Act . At paras. 18-19, the Court said the following: As a general proposition, it is safe to conclude that under both the federal and provincial legislation, the right to a retroactive variation with respect to reducing or eliminating arrears of either spousal or child support, is dependent on the applicant payer establishing a material change in circumstances during the period of retroactivity. There is no reason why the concept of “change in circumstances” cannot be viewed flexibly as it has in the past, thereby accommodating a host of factual developments justifying the issuance of retroactive orders that reflect a partial or full remission of support arrears. Certainly, estoppel and detrimental reliance based arguments that the support recipient led the payer to believe that the obligation to pay support would not be enforced would fall within the ambit of the change in circumstances test . [Emphasis added.] [62] I have found that Ms. Boekhoff waived her right to full support payments. She did so with full knowledge of her right to receive full support payments. The effect of the 2001 agreement was to lead Mr. Boekhoff to believe that he was only required to make reduced payments. In my view, the waiver and the consequences arising from it must constitute a material change in circumstances. [63] Taking into account s. 17(4.1), and the factors listed in s. 17(7), in my opinion this was an appropriate case to order arrears cancelled. Considering Ms. Boekoff’s agreement to waive spousal support, and the undoubted hardship that enforcement would impose on Mr. Boekhoff, as well as the judge’s finding that Ms. Boekhoff did not suffer hardship in the interim period, I agree with the judge’s conclusion that arrears should be cancelled. I would cancel arrears up to the date Ms. Boekhoff filed her application to enforce the original agreement, that is March 13, 2014, the date she unequivocally withdrew the waiver. Did the summary trial judge err in reinstating prospective spousal support of $800 per month on an indeterminate basis? [64] As noted, in addition to her application for arrears, Ms. Boekhoff applied for an order that Mr. Boekhoff pay spousal support on a monthly basis, increased from $800 per month to an amount considered appropriate by the Court pursuant to s. 17(1) of the Divorce Act . Mr. Boekhoff applied to terminate spousal support. [65] The cross-appeal engages two separate enquiries. The first question is Ms. Boekhoff’s entitlement to ongoing spousal support. The second is the question of quantum and duration. [66] Given the nature of the cross-applications, I would infer that the summary trial judge construed the matter before him as an application to vary spousal support pursuant to s. 17(1), based on a material change in circumstances. [67] Mr. Boekhoff submits that the summary trial judge erred in finding that Ms. Boekhoff had a continuing entitlement to spousal support. He submits that Ms. Boekhoff’s conditions and means have significantly improved, and that if the judge had considered these improvements he would have found that no such entitlement existed. [68] Ms. Boekhoff submits that the summary trial judge made no error in reinstating the $800 payments. She emphasizes the findings respecting the disparities in the parties’ income and income earning capacity. She submits that it is evident from the reasons that the summary trial judge found there was no change in the parties’ relative means, needs or other circumstances that would justify variation of the original support obligation of $800. [69] In this case, the summary trial judge simply ordered that spousal support payments recommence at $800 per month. He did so without reference to statutory authority. He did not explicitly consider the extent of the material change in circumstances between those extant at the time of the application and the time of the original order. He did not directly address the two separate enquiries of entitlement and quantum. [70] Rather, the judge appears to have worked from the proposition that the parties were entitled to approximately equal income, concluding that continuing Mr. Boekhoff’s $800 support obligation would achieve that end. The relevant portions of his judgment (set out in part above) read as follows: [49]      The respondent’s present annual income is $62,283 while the claimant’s is $48,700, of which approximately half is tax free. [50]      If McEwan J.’s spousal support order of $800 per month tax free continues, the claimant’s annual income would be $58,300. [51]      The respondent’s annual income would then be $52,683 but his share of his business income is one-half of the total. The other half is attributable to his wife and business partner. His business and personal expenses are shared with his wife. Therefore, the income of the parties will be approximately equal. [52]      However, the respondent’s ability to generate more income in the future will always be greater than the claimant. [53]      Marriages of over 20 years duration with continuing economic disadvantage for one party after the marriage break up carries with it long term and perhaps permanent spousal support. It is therefore not unfair that the parties’ income be roughly equal. [71] In my opinion, the summary trial judge erred by beginning from the proposition that the parties’ income should be equalized. While the judge correctly stated that a lengthy marriage with continuing economic disadvantage may carry a lengthy and perhaps permanent spousal support obligation, he did not consider to what extent Ms. Boekhoff now enjoys a standard of living comparable to that experienced by the parties during their marriage. He did not consider the parties’ means, needs and circumstances as mandated by Divorce Act s. 17(4.1), nor did he consider the factors listed in s. 17(7). In my view, the summary trial judge erred in resting his analysis on the primary criteria that the parties’ incomes should be equalized, some 18 years following the initial support order without first considering Ms. Boekhoff’s (improved) financial circumstances. [72] There is little dispute on the facts of this case either as found by the judge or on the uncontested evidence adduced by the parties. Both parties ask that this Court avoid remitting the question of ongoing spousal support for a new trial. I agree that this Court is in a position to address this issue. [73] As there is no question that there is a material change in circumstances, it follows that the next question is Ms. Boekhoff’s ongoing entitlement. That question is addressed in large part by the findings respecting Ms. Boekhoff’s circumstances. The summary trial judge concluded that the original support order was compensatory, and that the basis of a compensatory award continued (at para. 40). He found that despite Ms. Boekhoff’s best efforts to educate herself, her income remained low, and her income earning potential would always be lower than Mr. Boekhoff’s (at paras. 41, 52). I do not consider that these findings were made in error. They are supported by the evidence. These findings indicate that Ms. Boekhoff has some entitlement to spousal support. [74] I now turn to the quantum and duration of that support. In his cross-application, Mr. Boekhoff submits that the summary trial judge erred by not referring to the Spousal Support Advisory Guidelines , (Ottawa, Dept. of Justice: 2008) (the “ SSAG ”), and by making an order for support outside the range of recommended outcomes under them. [75] Before I return to the application of SSAG , I shall address the question of the relevance of the standard of living enjoyed by the parties’ during the course of their marriage to ongoing support entitlement: Tedham v. Tedham , 2005 BCCA 502 at paras. 51-60. In Zacharias v. Zacharias , 2015 BCCA 376 at paras. 54 to 57, this Court said the following: Where entitlement to compensatory support is established, and the marriage has been a long one, the marital standard of living is often a reasonable measure of appropriate compensation. It represents the standard that the parties themselves established as a result of each individual’s sacrifices and advantages during the union, and will often represent the standard that they could have expected to maintain if the marriage had not broken down. In saying this, I do not imply that this measure will always be determinative of the amount of spousal support. All of the factors set out in s. 17(7) must be considered by a judge in fixing appropriate spousal support . It should be remembered, as well, the payee spouse, no less than the payor, is entitled, if possible, to maintain a standard of living similar to that enjoyed during a long marriage. Where the resources of the parties are not sufficient to allow both to enjoy that standard, it will usually be reasonable to equalize the deficit and allocate resources so as to allow each party to enjoy a similar standard of living. That said, there is no specific formula that can be applied to these cases, and specific factors unique to individual cases may justify other measures of support. [Emphasis added.] [76] Returning to the applicability of SSAG , this Court addressed the proper approach to the applicability of the SSAG on variation applications in Beninger v. Beninger , 2007 BCCA 619 at paras. 51-55: A question which arises in this appeal is what use, if any, a court may make of the SSAG on a variation application. This question is answered, to some extent, by the authors of the SSAG who indicate in their proposal that the SSAG should be approached with considerable caution on variation applications. They state that the SSAG were not designed to address some of the more complex issues which can arise on variation proceedings, including the impact of remarriage, second families and retirement. In some cases, entitlement may also have become an issue since the initial order was made. In certain circumstances, however, the SSAG can be used on a variation application, albeit with care. In my view, however, the more significant complications referred to by the authors of the SSAG arising on a variation application are not a barrier to using the SSAG as a tool in determining either the quantum or duration of spousal support in this case. At the time of the initial award of support, the SSAG were not available and, therefore, were not a factor in Mr. Justice Curtis’ determination of support. In short, almost all of the same factors which were relevant with respect to Ms. Beninger’s application for spousal support in the first instance continue to apply with equal force. In the particular circumstances of these parties, I am satisfied that it is appropriate to use the SSAG as a guide to the appropriate level and duration of support. In so doing, I wish to make it clear that the decision whether to use the SSAG as a guide on variation applications will have to be made cautiously and on a fact-specific basis. [Emphasis in original.] [77] In summary, SSAG may serve as a useful tool on variation applications provided that its use is approached with caution and advertence to context. Where the factors giving rise to a party’s initial entitlement to support remain essentially unchanged on the variation application, SSAG may be applied. [78] In my opinion, this is an appropriate case for the application of SSAG . This is because I view the factors giving rise to Ms. Boekhoff’s entitlement are somewhat attenuated but largely unchanged. The judge making the original support order noted that Ms. Boekhoff exited the marriage at a considerable economic disadvantage arising from her having foregone educational and employment opportunities to raise the children of the marriage (1997 Reasons at para. 27). The summary trial judge found that the basis for the original compensatory award continued. As noted, Ms. Boekhoff remains economically disadvantaged despite her best efforts to retrain. [79] Based on Mr. Boekhoff’s earnings of $62,283 and Ms. Boekhoff’s earnings of $45,700, the SSAG calculations suggest payments at a low range of $394 per month and a high range of $424 per month. On appeal Mr. Boekhoff did not strongly contend that the calculation should include the contribution of Ms. Boekhoff’s present common-law spouse to household expenses. The summary trial judge did not make a finding of fact about the likelihood of his continuing support. On cross-examination, Ms. Boekhoff said that their relationship had become less close due to her deteriorating health, and that he was contributing something less than the $500 amount initially deposed to. I would therefore exclude it. [80] Given the summary trial judge’s finding that Mr. Boekhoff has greater potential to increase his earnings, and his conclusion respecting Ms. Boekhoff’s continued entitlement to compensatory support, it seems to me reasonable to order support at the high end of the calculation. The SAAG calculations result in monthly support of $424. Payment of this amount should be retroactive to March 13, 2014. [81] I would make this order on an indefinite basis. It is well-established that a compensatory spousal support order should continue until the economic consequences flowing from the marriage are redressed, even if the spousal support payee has, in the interim, achieved some self-sufficiency as is the case here: Morigeau v. Moorey , 2015 BCCA 160 at para. 37. As I have noted, the economic disadvantages accruing to Ms. Boekhoff as a result of the breakdown of the marriage have not yet been (and may never be) wholly ameliorated. I consider this order to be consistent with the parties’ changed circumstances, as well as the objectives listed in Divorce Act , s. 17(7). Disposition [82] I would dismiss Ms. Boekhoff’s appeal of the judgment cancelling the arrears of spousal support. [83] I would allow in part Mr. Boekhoff’s appeal of the order reinstating spousal support by varying that amount to $424 per month commencing on March 1, 2014. [84] I would order costs to Mr. Boekhoff on the appeal. As success has been divided on the cross-appeal, I would order that each party bear their own costs of the cross-appeal. “The Honourable Madam Justice Garson” I agree: “The Honourable Mr. Justice Lowry” I agree: “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Fedan, 2016 BCCA 26 Date: 20160125 Docket: CA42318 Between: Regina Respondent And Wayne Rodney Fedan Appellant Before: The Honourable Mr. Justice Frankel The Honourable Madam Justice D. Smith The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated September 5, 2014 ( R. v. Fedan , 2014 BCSC 2527, Kamloops Docket No. 91944-2). Counsel for the Appellant: M.B. Rankin A. Varesi Counsel for the Respondent: D. Layton Place and Date of Hearing: Kamloops, British Columbia October 9, 2015 Place and Date of Judgment: Vancouver, British Columbia January 25, 2016 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Savage Summary: The appellant was convicted of two counts of dangerous driving causing death. He was the owner and operator of a pick-up truck involved in an accident where two passengers died. Following the accident, the appellant’s truck was lawfully seized pursuant to s. 489(2) of the Criminal Code. The police obtained a warrant authorizing a forensic search and seizure of blood, DNA, fingerprints, personal effects and documentation in the vehicle relating to registration, insurance and maintenance logs. A collision analyst and accident reconstruction expert removed the manufacturer-installed sensing diagnostic module (the “SDM”) from the vehicle and downloaded its data. This item was not listed in the search warrant. The data provided critical and reliable information with respect to the speed, throttle and braking of the vehicle in the five seconds immediately before a collision. A voir dire was held on the admissibility of the SDM data. The judge held that the appellant had no subjective expectation of privacy in the SDM data and therefore its warrantless seizure and search did not violate his s. 8 Charter right. In the alternative, she would have admitted the evidence under s. 24(2) of the Charter. On appeal, the appellant submits the judge erred in admitting the SDM data. He also submits the judge erred in relying upon evidence of a witness whose memory was improperly refreshed by the Crown, and in misapprehending and/or failing to address key pieces of evidence. Held: Appeal dismissed. The admissibility of the SDM data did not violate the appellant’s s. 8 Charter right. The jurisprudence supported a presumption that the appellant had a subjective expectation of privacy in his vehicle based on his territorial privacy interest. The SDM was a component of his vehicle and therefore the appellant also had a presumed expectation of privacy in the device. However, he did not have an objectively reasonable expectation of privacy in the SDM data. His territorial privacy interest in the device was extinguished by the lawful seizure of the vehicle, and he had no informational privacy interest in the SDM data as it contained no information that touched on his biographical core, including any personal identifiers linking him to the captured data. In the alternative, if a s. 8 breach was established, the evidence should be admitted under s. 24(2) of the Charter. The other two grounds of appeal had no merit. The process the Crown followed to clarify a witness’s evidence was transparent, authorized by the trial judge and did not engage s. 9(2) of the Canada Evidence Act, and the appellant failed to demonstrate any misapprehension of evidence that would meet the stringent test for appellate intervention. Reasons for Judgment of the Honourable Madam Justice D. Smith: Overview [1] Wayne Fedan appeals his convictions on two counts of dangerous driving causing death. The charges arose out of a single vehicle accident in a residential area of Kamloops. Mr. Fedan was the owner and operator of the pick-up truck involved in the accident. At the time he was transporting two passengers. All three occupants of the vehicle had been drinking; no one was wearing a seatbelt. Brittany Plotnikoff was ejected from the vehicle and died at the scene. Her boyfriend, Kenneth Craigdallie, died shortly thereafter at the hospital. [2] Following the accident, Mr. Fedan’s truck was lawfully seized without a warrant pursuant to s. 489(2) of the Criminal Code, R.S.C. 1985, c. C-46 [the Code ] and was stored in a towing compound. No issue is taken with the lawfulness of that seizure. [3] Two days later the police obtained a warrant to search the vehicle. The warrant authorized a forensic search and seizure of blood, DNA, fingerprints, personal effects, and any documents in the vehicle relating to the registration, insurance, and maintenance logs of the truck. It did not specify the seizure of the manufacturer-installed sensing diagnostic module (the “SDM”) embedded underneath the floor of the driver’s seat or a search of its data. [4] Sergeant Noonan, a collision analyst and accident reconstruction expert, removed the SDM from the truck and downloaded its data. The retrieved data provided critical and highly reliable information with respect to the speed, throttle, and braking of the vehicle in the five seconds immediately before the collision. The data established that: (i) the speed of the vehicle one second before the collision was 106 km/hour; (ii) the throttle (i.e., the pedal acceleration) was at 82% in the four seconds before the brakes were engaged; and (iii) the brakes were applied only in the last second before the collision. [5] A voir dire was held on the admissibility of the SDM data. Mr. Fedan did not testify on the voir dire and there was no evidence that he was aware of or understood the purpose of the device. In the absence of such evidence, the judge found that Mr. Fedan did not have a subjective expectation of privacy in the SDM or its data and therefore found it unnecessary to decide if he had a reasonable expectation of privacy in the SDM or the information contained therein. In the result, she held that the warrantless seizure and search of the SDM did not violate Mr. Fedan’s s. 8 Charter right and admitted the SDM data into evidence. [6] Applying the legal test from R. v. Beatty, 2008 SCC 5, the judge held that the Crown had established beyond a reasonable doubt both the actus reus and mens rea of the offences. With respect to the actus reus, the judge found Mr. Fedan’s driving in the five seconds before the accident was objectively dangerous. As to the mens rea, she found his objectively dangerous driving constituted a marked departure from the standard of driving of the reasonably prudent driver in all of the circumstances. The judge relied on the SDM data in making these findings. She also relied on R. v. Settle, 2010 BCCA 426, in finding that the mens rea of the offence was satisfied by Mr. Schneider’s evidence of Mr. Fedan’s pattern of driving in the half hour before the collision, together with the evidence of Ms. Gillis and Ms. Blackburn of the appellant’s consumption of alcohol and state of intoxication before he left their apartment. [7] The central issue in this appeal is whether the removal of the SDM and the downloading of its data violated Mr. Fedan’s s. 8 Charter right. Mr. Fedan submits the warrantless seizure of the SDM and the search of its data was unreasonable, violated his s. 8 Charter right, and therefore the information contained in the data should not have been admitted into evidence. He seeks an order for a new trial or, alternatively, a judicial stay of proceedings. [8] For the reasons set out below, I am of the view that Mr. Fedan did not have a reasonable expectation of privacy in the SDM data and therefore its warrantless seizure and search did not violate his s. 8 Charter right. I reach that conclusion, however, for reasons different from those of the trial judge. In the alternative, I agree with the trial judge that in the circumstances of this case the evidence should not be excluded under s. 24(2) of the Charter. Background [9] In the early morning hours of March 20, 2010, Mr. Fedan lost control of his 2004 GMC Sierra 2500 pick-up truck when he attempted to negotiate a counter-clockwise curve in a residential area of Kamloops, B.C. At the time, he was driving at a speed in excess of the municipal speed limit of 50 km/hour and in excess of the critical curve speed of 79 km/hour (the speed above which a vehicle will slide out of its path of travel). [10] As his vehicle rounded the curve it hit the curb of the road. The force of the impact caused his vehicle to sideslip in a counter-clockwise rotation over the edge of the curb, break through a wooden fence and ultimately side-swipe a large tree before rotating clockwise and coming to rest 9.7 metres past the tree. Both passengers were killed. [11] Mr. Fedan was charged with two counts of impaired driving causing death, two counts of operating a motor vehicle “over .08” causing death, and two counts of dangerous driving causing death, contrary to ss. 255(3), 255(3.1) and 249(4) of the Code, respectively. The trial judge excluded as evidence a number of Mr. Fedan’s statements, as well as the blood samples taken from him at the hospital following the accident. Those rulings are not disputed by the Crown. In the result, Mr. Fedan was acquitted of the “impaired driving” and “over .08” charges. [12] Following the accident, Mr. Fedan’s vehicle was lawfully seized and stored at a towing compound. On March 22, 2010, after obtaining a search warrant, the police searched the vehicle. The warrant did not specify the seizure and search of the SDM and its data. [13] An SDM is an electronic device that is bolted to the floor underneath the driver’s seat. Its primary function is to fire the airbags upon a “deployment event” (e.g., a collision) or a “near-deployment event” (e.g., a sudden deceleration in speed). Its secondary function is to capture limited data with respect to the speed, throttle, and braking of the vehicle in the five seconds before an event or near-deployment event. It does not capture any other data, nor can data be inputted into the SDM or be changed. The data also can only be imaged with highly specialized equipment that is generally not in the possession of the ordinary driver. [14] Although the airbags in Mr. Fedan’s vehicle did not deploy, a near-deployment event occurred when his vehicle hit the tree. That event was the trigger for the SDM to capture the speed, throttle and braking of Mr. Fedan’s truck in the last five seconds before the collision. [15] Sgt. Noonan conducted a physical examination of the scene of the accident and on March 22, 2010, attended at the towing compound. He knew that, based on the year and make of Mr. Fedan’s truck, it had an airbag system or a manufacturer-installed SDM. Sgt. Noonan removed the SDM and downloaded its data. He testified that he did not obtain a search warrant because he had been advised by the Department of Justice in 2005 that a search warrant for an SDM was not required as it contained no personal identifiers. His understanding changed in 2014 when R. v. Hamilton, 2014 ONSC 447, was published. Hamilton concluded that, in the circumstances of that case, a search warrant was required for the removal of an SDM from a vehicle. In this appeal, the Crown submits that Hamilton was not correctly decided or alternatively it is distinguishable on its facts. [16] The SDM data established that in the five seconds before the accident, Mr. Fedan’s truck: (i) was travelling at a speed of 106 km/hour, over twice the legal speed limit; (ii) had accelerated in the four seconds before the brakes were engaged; and (iii) had not engaged its brakes until one second before it hit the tree. [17] Mr. Fedan appeals his convictions principally on the issue of the admissibility of the SDM data recovered by Sgt. Noonan in a warrantless search. He submits the judge erred in law in finding that his s. 8 Charter right was not violated by finding that he had no subjective expectation of privacy in the SDM and its data. [18] Mr. Fedan also raises two additional grounds of appeal. He submits the judge erred: (i) in relying on evidence of a witness whose memory he submits was improperly refreshed by the Crown; and (ii) in misapprehending and/or failing to address key evidence, “the cumulative effect of which rendered the verdict unreasonable.” [19] At the hearing of the appeal, the division did not call upon the Crown to respond to the latter two grounds of appeal as we concluded they had no merit. In our view, the only arguable issue on appeal was whether the judge erred in finding that Mr. Fedan did not have a reasonable expectation of privacy in the SDM data. The Evidence (i)       The events leading up to the accident [20] At about 7:30 p.m. on the evening of March 19, 2010, Mr. Fedan arrived with Mr. Craigdallie at the residence of Nicola Corbo to pick up Ms. Plotnikoff. Mr. Corbo was Ms. Plotnikoff’s step-father. They had with them a sealed and unopened bottle of Crown Royal whiskey. Before the three left, Mr. Corbo warned them not to drink and drive. Mr. Fedan assured him they would not. [21] At about midnight, the trio arrived at Mr. Craigdallie’s apartment. His roommate Angela Gillis and her friend Michelle Blackburn were there. Ms. Blackburn testified that Ms. Plotnikoff and Mr. Craigdallie were “very drunk”. She said that while Me. Fedan also appeared to have been drinking he did not seem as drunk as the others. Ms. Gillis and Ms. Blackburn testified that when the trio arrived, the bottle of liquor they had with them was partially consumed. All of the occupants continued to drink the whiskey until the trio left at around 1:00 a.m. They took with them the liquor bottle, which by then was near empty. Ms. Blackburn said she was concerned about the state of the trio’s intoxication and asked who was driving. She said Mr. Fedan told her that he was driving and that they were going to a party. [22] James Schneider was driving home from work at about 1:00 a.m. on March 20, 2010. He noticed that a truck, later identified as Mr. Fedan’s vehicle, was tailgating him. He testified that for no apparent reason the truck changed lanes three or four times without signalling and flashed its high beams at him several times. Mr. Schneider also observed the truck turn onto a side street at a high speed without signalling, and nearly hit a pedestrian in a cross-walk. [23] At about 1:10 a.m., Mr. Schneider called 911 to file a complaint of an erratic driver. Mr. Schneider followed the truck for about nine blocks. During that period he saw it pull into a parking lot and saw two individuals exit the vehicle, one of whom he said was wearing a hat. He advised the police of this and gave them the license number of the truck. He continued to drive past the truck, made a U-turn and drove back again passing the truck. During that period he saw the truck leave the parking lot and turn back onto the street. He then drove home. [24] At about 1:30 a.m. Mr. Fedan was involved in a catastrophic accident. He crashed his truck in the manner described above, in a location about 12 blocks from where Mr. Schneider had last seen his vehicle. There were no witnesses to the accident. A local resident called 911 about one to three minutes after the crash. [25] The area of the collision was lit by three streetlights. The weather was overcast. The road surface was flat, in good repair, and dry. [26] Mr. Fedan’s truck was completely destroyed in the accident. (ii) The paramedic’s conversation with the appellant [27] Kamloops Emergency Health Services attended the scene. One of the paramedics was Aleah Morris. Ms. Morris testified that Mr. Fedan told her he had been driving the truck and that he had consumed three rye and cokes since 8:30 p.m. Ms. Morris said she did not smell any alcohol on Mr. Fedan when she attended to him. (iii)     Sgt. Noonan’s evidence [28] Sgt. Noonan worked independent of the RCMP on the criminal investigation into the accident. At about 3:02 a.m., he arrived at the scene of the accident. The Kamloops RCMP were already there and had recovered the near-empty bottle of Crown Royal whiskey. No ball cap was discovered. [29] Sgt. Noonan recorded the location and took the measurements of the roadway markings (i.e., the yaw marks). In his opinion, the yaw marks were consistent with a vehicle exceeding the critical curve speed of 79 km/hour and sliding and rolling. Based on the yaw marks alone, however, Sgt. Noonan could only give a conservative estimate of the vehicle’s pre-impact speed at between 50 and 81 km/hour. He said that the low end of that range estimate was illogical because the impact of the vehicle with the tree at 50 km/hour would have stopped the vehicle at the tree. Similarly, the top end of the range was also illogical as the vehicle would have been barely sliding out over the critical curve speed of 79 km/hour. The physical evidence at the scene of the accident belied both of those estimates. [30] On March 22, 2010, he attended at the towing compound. He had not been involved in the preparation of, obtaining or execution of the search warrant, which was done by officers in the Kamloops detachment. He was tasked with removing the SDM from under the driver’s seat and downloading its data. [31] The Delta-V data (i.e., the change of speed and the time it takes to reach that change of speed during a crash event) showed a loss of 50 km/hour in the half second after the truck’s impact with the tree. Based on the length of the yaw marks and the Delta-V data, Sgt. Noonan estimated the truck’s pre-impact speed at between 70 and 95 km/hour. The low end of that range assumed no braking at one second before the event. The high end of the range assumed 100% braking at one second before the event. In his opinion, however, this evidence still did not produce an accurate enough estimate. The most accurate record of the speed of the vehicle at the material time could only be obtained directly from the SDM. [32] The direct data from the SDM established that Mr. Fedan’s truck had been travelling at the following speeds in the last five seconds before the accident: (a) Five seconds before ‒ 91.71 km/hour; (b) Four seconds before ‒ 96.54 km/hour; (c) Three seconds before ‒ 101.36 km/hour; (d) Two seconds before ‒ 104.58 km/hour; (e) One second before ‒ 106.19 km/hour. [33] It also established that: (i) in the five seconds before the crash the throttle was at 82% until one second before the crash when it went to 0%; and (ii) the brakes were not applied until one second before the crash. [34] The SDM data has a margin of error of plus or minus 4%. Discussion [35] I propose to first address the two grounds of appeal dismissed summarily at the hearing. (i) Did the judge err in relying upon evidence of a witness whose memory was improperly refreshed by the Crown? [36] Ms. Blackburn testified that when Mr. Fedan, Ms. Plotnikoff and Mr. Craigdallie were leaving the apartment, she asked them who was driving as she was concerned about their state of intoxication. She said that Mr. Fedan told her he was driving and they were going to a party. This evidence was relied on by the Crown to establish that Mr. Fedan was the driver of the vehicle from the time he left the apartment around 1:00 a.m. [37] Mr. Fedan conceded that he was the driver of the vehicle at the time of the accident, but argued that Mr. Schneider’s evidence raised a live issue as to whether he was the driver at the time Mr. Schneider observed the erratic driving. Mr. Schneider’s observations of the erratic driving occurred after the trio left the apartment occupied by Ms. Gillis and Ms. Blackburn. [38] At the preliminary hearing, Ms. Blackburn testified that Mr. Fedan had told her he was going to be driving. When asked about this by the Crown in examination in chief, she testified that nothing was said about who would be driving. The Crown then presented Ms. Blackburn with her testimony from the preliminary inquiry and Mr. Fedan’s counsel objected. The judge ruled that the Crown could not refresh Ms. Blackburn’s memory while she was testifying in examination in chief by showing her a prior inconsistent statement from a transcript of her evidence at the preliminary inquiry. [39] Before the court adjourned for the day, the Crown asked the judge for directions on an alternative proposed course of action on this issue that would take place outside of the courtroom. He said that he was seeking these directions in order to be completely transparent and consistent with the court’s earlier ruling. He proposed that during the overnight adjournment, he would direct Ms. Blackburn to review the transcript of her preliminary inquiry evidence before returning to the witness stand the next day, when he would then ask her if she wanted to change any aspect of her evidence from the previous day. The judge ruled that the Crown’s proposed process was acceptable and would not amount to “an end run” around her earlier ruling as it differed from the manner in which the Crown had previously attempted to refresh the witness’s memory. She also expressed the view that if the proposed process resulted in Ms. Blackburn correcting or changing her evidence, Mr. Fedan could cross-examine her on that change, which might in turn affect the weight to be given to Ms. Blackburn’s evidence. [40] During the adjournment, Ms. Blackburn reviewed her evidence from the preliminary inquiry. The following day when she resumed her examination in chief, she corrected her earlier evidence and provided an explanation for why she could not remember it the previous day. On cross-examination, she clarified that Mr. Fedan’s response to her inquiry as to who would be driving was made to both her and Ms. Gillis. She also confirmed that the Crown had not asked her any specific questions about her preliminary inquiry evidence when he gave her the transcript to review. The judge accepted Ms. Blackburn’s explanation for the change in her evidence, and found her evidence to be reliable. [41] In these circumstances, the process followed by the Crown to clarify Ms. Blackburn’s evidence was transparent and expressly authorized by the trial judge. It did not engage s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, as it took place outside of the courtroom. It is well established that a witness’s memory can be refreshed in this manner provided the object is not to discredit the party’s own witness: R. v. Coffin (1956), 114 C.C.C. 1 (S.C.C.) at paras. 19-20, 22-24; R. v. MacDonald, [1976] B.C.J. No. 659 (QL) (C.A.); and R. v. Booth (1984), 15 C.C.C. (3d) 237 (B.C.C.A.). I find no error in the procedure that was followed. (ii) Did the judge misapprehend and/or fail to address key pieces of evidence resulting in errors that went to the root of the verdict? [42] Mr. Fedan submits the judge made three errors in her review of the evidence, and those errors required his convictions to be overturned. [43] The first alleged error is said to be in the judge’s finding that Ms. Gillis testified that Mr. Fedan admitted that he had been driving and was going to be driving when he left their place. Ms. Gillis did not give this evidence and in fact said she did not know who was driving. However, Ms. Blackburn testified that Mr. Fedan made this comment to both her and Ms. Gillis. That was the finding of the judge (at para. 45). The judge did not find that Ms. Gillis had testified to this evidence. [44] The second alleged error relates to the judge’s finding that there was no evidence “to suggest anyone else was driving or even that the other occupants of the truck were licensed to drive or capable of driving” (at para. 45). Mr. Fedan submits there was an inference that could have been drawn from Mr. Schneider’s evidence, that one of the individuals in the truck whom he thought was the driver was wearing a ball cap, and that because Mr. Fedan was not wearing a ball cap he might not have been the driver at that time. In fact, there was no evidence that any of the occupants of the vehicle were wearing a ball cap. Other reliable evidence indicated Mr. Fedan was the driver, including: (i) he was the owner of the vehicle in the collision; (ii) he admitted to be being the driver of the vehicle at the time of the collision, which occurred within 20 minutes of Mr. Schneider’s observations; (iii) he told Ms. Gillis and Ms. Blackburn that he was going to be driving to a party; and (iv) the two passengers were “very drunk” and there was no evidence they were licensed or were even capable of driving that evening. [45] The third alleged error by the judge was her failure to address what Mr. Fedan submits were inconsistencies in Mr. Corbo’s evidence, including: (i) he said the trio had a “40-pounder bottle of liquor” when it was a “60-pounder” that was retrieved at the scene of the accident; (ii) he described Mr. Fedan’s dog as small, cute and white when other witnesses described it as small, cute and black; and (iii) Mr. Fedan’s truck was white when it was black. [46] Each of these alleged errors were, in my view, at their highest insignificant, inconsequential, and immaterial to the judge’s reasoning process for conviction. The test for overturning a conviction based on a misapprehension of the evidence is a stringent one. As this Court noted in R. v. Swales, 2014 BCCA 350: [48]      The threshold to be met in demonstrating a misapprehension of evidence warranting appellate intervention is stringent. The misapprehension must be a question of substance; must be “material” to the trial judge’s reasoning process; and must play an essential role, not just in the narrative of the judgment, but in the reasoning process resulting in the conviction: R. v. Lohrer at para. 2, 2004 SCC 80, [2004] 3 S.C.R. 732. All three elements of the test must be satisfied to establish a material misapprehension of evidence. The trial judge must be shown to have erred by actually misapprehending the evidence. As Lebel J. explained in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. at para. 53, “[t]he plain language or the thrust of the reasons must disclose an actual mistake”. [49]      It is not enough for the appellant to merely suggest a different interpretation of the evidence, or merely point to some evidence which arguably weighs against the trial judge’s finding. Mere differences in interpretation on factual matters are not misapprehensions but simple disagreement with the judge’s differing view of the evidence. [47] Mr. Fedan failed to demonstrate any alleged error that would meet this test for appellate intervention. (iii)     Did the judge err in admitting the evidence of the SDM and its data? [48] The judge held that the removal of the SDM and the retrieval of its data did not constitute a breach of Mr. Fedan’s s. 8 Charter right as there was no evidence that he was aware of the embedded device. In the absence of any evidence to suggest otherwise, the judge found that Mr. Fedan had no subjective expectation of privacy in the data. She stated: [22]      In my view, this is where the accused’s application fails because he has not established any subjective expectation of privacy over the SDM or information contained therein. Although the threshold for establishing a subjective expectation of privacy is not high, this is not a situation where I can presume it existed. SDM’s are a relatively new feature of motor vehicles and it is unlikely that the majority of drivers even know their vehicle is equipped with one or what it does. An SDM cannot be accessed without special knowledge, it does not operate without a triggering impending collision, and the information recorded therein needs to be interpreted by special software that is unlikely to be in the possession of most people. [24]      I concluded that without some evidence of a subjective expectation of privacy, the accused’s s. 8 Charter rights have not been triggered, and I do not need to consider whether an expectation of privacy over an SDM and the information contained therein is objectively reasonable. [49] In the alternative, the judge held that if there was a s. 8 Charter breach she would not have excluded the evidence pursuant to s. 24(2) of the Charter as: (i) Sgt. Noonan had acted in good faith throughout, having based his decision that a search warrant was not required on legal advice from the Department of Justice; (ii) the impact on Mr. Fedan’s privacy interests in the vehicle was minimal, as the vehicle was completely destroyed in the collision and had been lawfully seized; and (iii) the evidence was not conscripted and was reliable and essential to the Crown’s case. [50] The judge went on to consider Hamilton and distinguished it on its facts. The accused in Hamilton was an off-duty police officer who was charged with dangerous driving causing death. He testified that in the course of his duties he had become aware that his vehicle contained an SDM and that the device stored information about the speed and braking of the vehicle in the few seconds before a collision. He also testified that he had a subjective belief that the data stored in the SDM belonged to him. The judge, relying on R. v. Jones, 2011 ONCA 632 (for the “plain view” doctrine) and R. v. Vu, 2013 SCC 60 (for the need of a warrant to seize and search a personal computer), compared the SDM-type device to an “onboard computer”. He found the accused had a subjective expectation of territorial and informational privacy in the interior of his vehicle and therefore in the SDM and its data, and that expectation of privacy was objectively reasonable. Although the judge found that the warrantless seizure and search of the SDM was an infringement of the accused’s s. 8 Charter right, he declined to exclude evidence under s. 24(2) of the Charter. [51] In this case, the judge rejected what she viewed as a flawed analogy in Hamilton between the device and an “onboard computer”, and therefore a flawed reasoning based on Jones and Vu. Jones involved the seizure and search of a personal computer; Vu involved the seizure and search of two personal computers and a cell phone. All the devices in both cases were taken from a residence. The judge in this case reasoned: [23]      … With all due respect to the court in Hamilton, seizure of an SDM from a vehicle that has been destroyed in an accident is not the same as search and seizure of a computer or a cellphone from a home or a person’s body. The evidence before me from Sergeant Noonan establishes that an SDM contains no biographical or identifying data, but is merely a highly precise observer and recorder of information generated by the vehicle, not the driver. Its primary purpose is to recognize deceleration over a given time period set by the manufacturer and deploy airbags to prevent injury. When there is a triggering or deployment event, it will capture five seconds of data regarding speed, brakes, and seatbelts. While it is true that the driver’s actions in operating the vehicle will cause the SDM to engage, those same actions would likely be visible to the public eye. The SDM does not record anything unless there is a crash event. A triggering event cannot be artificially created by anyone. The data from the SDM cannot be changed by anyone, nor can it be read without interpretation by special software. [Emphasis added.] Mr. Fedan’s submissions [52] Mr. Fedan submits the judge erred in admitting this evidence by finding that a presumed subjective expectation of privacy could not be made because of a lack of evidence that he knew about the device and/or its purpose. He contends that based on settled jurisprudence an individual may be presumed to have a subjective expectation of privacy in his or her vehicle, although the privacy interest is markedly reduced from that in a home or office. See R. v. Wise, [1992] 1 S.C.R. 527 (police installed tracking device); R. v. Mellenthin , [1992] 3 S.C.R. 615 (search of vehicle while driver detained at a check stop); and R. v. Belnavis, [1997] 3 S.C.R. 341 (search of vehicle while driver stopped for speeding). It follows, he submits, the judge erred in refusing to presume he had a subjective expectation of privacy in the SDM by reason of his presumed subjective expectation of privacy in his vehicle. [53] Relying on Hamilton and R. v. Glenfield, 2015 ONSC 1304, Mr. Fedan further submits that his expectation of privacy was objectively reasonable. In Hamilton, the judge found that: (i) the accused police officer had a direct interest, as the owner of the vehicle, in the data stored in the embedded electrical device; (ii) based on the reasoning in R. v. Patrick, 2009 SCC 17 (no reasonable expectation of privacy in discarded garbage) and Belnavis, the accused had a subjective expectation of territorial and informational privacy in the device; and (iii) the device was like an “onboard computer” and therefore the applicant’s expectation of privacy was reasonably objective. The judge in Hamilton also found that the warrantless removal of the electrical device amounted to an intrusive search that went well beyond the kind that “reasonable motorists would regard as incidental to the exercise of the privilege of operating a motor vehicle on a public highway” (at para. 51). He concluded: [72]      It may be that in the future with further advancement in the technology of the vehicle’s onboard computer, significantly more information may be stored in a computer device in a vehicle. However, in this case, as I have previously described, the information of the driving is limited to only a 2 1/2 second time period prior to the collision. Therefore, strictly speaking the information contained on the ACM could not reasonably be said to fall into the category of exposing “intimate details of the Applicant's lifestyle, or information of a biographical nature.” [73]      However, Binnie J. in R. v. M.(A.) [2008 SCC 19] at para. 68 said that not all information that fails to meet the “biographical core of personal information test is [open] to the police” and that certain information could be private “because they are reasonably intended by their maker to be private.” [Stuart Hargreaves in 59 Criminal Law Quarterly 2 86 at p. 103. The Proper Role of the “Biographic Core”.] [74]      In my view, it can reasonably be said that the Applicant, by the manner of how he was operating his motor vehicle at the relevant time was “the maker of the information” collected and stored on his vehicle's ACM which he intended to be private. [54] In the result, however, the judge declined to exclude evidence under s. 24(2) of the Charter. [55] In Glenfield, like Mr. Fedan in this case, the accused did not testify on the voir dire. However, the judge in Glenfield presumed a subjective expectation of privacy in the subject matter of the search, following R. v. Spencer , 2014 SCC 43 (there is a reasonable expectation of privacy in subscriber information given to police by an Internet Service Provider) and R. v. Cole, 2012 SCC 53 (there is a reasonable expectation of privacy in a personal computer). In finding a s. 8 breach, the judge applied the reasoning from Hamilton , including its analogy between the device and a computer, and concluded that the warrantless seizure and search of the device and its data violated the accused’s s. 8 Charter right. As in Hamilton , however, he declined to exclude the data under s. 24(2) of the Charter . [56] Mr. Fedan in this case draws a similar analogy between the search of the SDM and the search of a personal computer in Vu. In that case the police obtained a warrant to search the accused’s residence. In the course of their search the police discovered two computers and a cellphone, all of which they searched. The warrant did not specify the search was to include the computers in the home as the traditional legal framework for a search warrant of a place had permitted the search of traditional receptacles, such as a cupboard or a cabinet, without having to specify them in the warrant. The Court in Vu held that the warrantless search of the accused’s personal computers violated his s. 8 Charter right, explaining that the traditional legal framework was no longer appropriate for computers as they differed from traditional “receptacles” in the following ways: (i) the amount of personal information stored in them touches on a user’s biographical core and the intimate details and personal choices of his or her lifestyle; (ii) the information they automatically generate is unbeknownst to the user; (iii) the information is retained in them even after a user believes it has been destroyed; and (iv) the information accessed through a computer is connected to a network through the Internet and therefore is not contained in the same way as a conventional receptacle. [57] Mr. Fedan also relies on Spencer . In Spencer, the Court recognized a privacy interest in “anonymity”. At issue in that case was whether the accused had a reasonable expectation of privacy in subscriber information that an Internet Service Provider had provided to the police. That information was obtained by the police to identify the individual who had downloaded child pornography at a certain IP (Internet Protocol) address. In determining whether the accused had a subjective expectation of privacy, the Court took a broad and functional approach to defining the subject matter of the search, looking at the nature of the precise information sought as well as the nature of the information it revealed, and how it informed the accused’s subjective expectation of privacy. Privacy as anonymity was engaged because “the police request to link a given IP address to subscriber information was in effect a request to link a specific person… to specific online activities” (at para. 50). [58] In summary, Mr. Fedan submits that: (i) the presumed reasonable expectation of privacy in his vehicle (recognized in Wise, Mellenthin and Belnavis ) provides the basis for a presumed reasonable expectation of privacy in the device which was a component of his vehicle; (ii) although destroyed in the accident, he had not abandoned his privacy interest in the vehicle; (iii) his informational privacy interest in the SDM data is analogous to an “onboard computer” or a “black box”; (iv) the informational content of the SDM was not visible to the public eye in that a witness would not have been able to observe the precise speed of the vehicle, the extent of its acceleration and when it braked; and (v) the seizure of the SDM was intrusive as admittedly it was not an easy task to remove the device. The Crown’s submissions [59] The Crown submits the trial judge correctly found Mr. Fedan had no subjective expectation of privacy in his vehicle as it was completely destroyed in the accident and lawfully seized under s. 489(2) of the Code. Section 489(2) provides: 489(2) Every peace officer … who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds (a) has been obtained by the commission of an offence against this or any other Act of Parliament; (b) has been used in the commission of an offence against this or any other Act of Parliament; or (c) will afford evidence in respect of an offence against this or any other Act of Parliament. [Emphasis added.] [60] The Crown further submits the data captured by the SDM only related to the use of the vehicle (speed, throttle and braking), was limited to a five-second window before the crash, and did not record any intimate details of Mr. Fedan’s biographical core, lifestyle or personal choices. In this context, the Crown submits Mr. Fedan could not have had a subjective expectation of privacy. [61] In the alternative, if Mr. Fedan had a subjective expectation of privacy in the SDM and its data, the Crown submits the expectation was not objectively reasonable because: (i) his reduced expectation of privacy in his vehicle had all but vanished when the vehicle was destroyed in the accident and lawfully seized by the police in a criminal investigation; (ii) while the informational content of the SDM was not in public view when the data was captured, like the Forward Looking Infra-Red (“FLIR”) detected heat patterns emanating from the home in R. v. Tessling, 2004 SCC 67, the data obtained would have been visible to any witness who had been present to observe the event, albeit not with the same exact precision (in Tessling the accused was found to have no reasonable expectation of privacy in heat emanating from his house); (iii) the SDM data was not accessible to third parties as the vehicle had been lawfully seized and securely stored at a compound; (iv) the removal of the SDM was not intrusive as the vehicle was already destroyed; (v) the information obtained from the SDM was highly relevant and reliable; and (vi) the information retrieved did not expose any intimate details of Mr. Fedan’s biographical core, lifestyle or personal choices. Relevant legal principles [62] Section 8 of the Charter guarantees the right to be secure against unreasonable search and seizure. It is a personal right that protects people, not places: R. v. Edwards, [1996] 1 S.C.R. 128. Section 8 is only engaged if the applicant can establish a reasonable expectation of privacy in the subject matter of the seizure and search: Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 159. [63] A reasonable expectation of privacy requires a subjective expectation of privacy that is objectively reasonable. However, as was noted in Tessling : [42]      … The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by s. 8 to the values of a free and democratic society…. Suggestions that a diminished subjective expectation of privacy should automatically result in a lowering of constitutional protection should therefore be opposed. It is one thing to say that a person who puts out the garbage has no reasonable expectation of privacy in it. It is quite another to say that someone who fears their telephone is bugged no longer has a subjective expectation of and thereby forfeits the protection of s. 8. Expectation of privacy is a normative rather than a descriptive standard . [Emphasis added.] [64] The privacy interests protected by s. 8 include personal privacy, territorial privacy and informational privacy: Tessling at para. 20; Patrick at para. 32; and Spencer at para. 35. These three broad categories of privacy interests are “not strict or mutually exclusive” and often overlap ( Spencer at para. 35). Their usefulness is in providing “analytical tools” for a “principled” and “purposive” analysis of when a reasonable expectation of privacy is engaged: Tessling at para. 19; Spencer at para. 35. In this case, Mr. Fedan’s personal privacy interest, which protects bodily integrity, was not engaged; the inquiry was limited to whether he had a territorial and/or informational privacy interest in the SDM and its data. [65] Territorial privacy has been recognized in a “nuanced hierarchy” with a home at the top ( R. v. Feeney , [1997] 2 S.C.R. 13) and a vehicle near the bottom ( Wise ; Mellenthin ). In Wise at 534 , the Court held there was a significantly reduced expectation of privacy in a vehicle because of the highly regulated aspect of driving on a public road: Society then requires and expects protection from drunken drivers, speeding drivers and dangerous drivers. A reasonable level of surveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection. All this is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one’s home or office. [66] Similarly in Belnavis , the Court echoed the comments in Wise with respect to the reduced expectation of privacy in a vehicle: [39]      A person can expect that his home can and should be a safe castle of privacy. A person cannot possibly have the same expectation of a vehicle. Vehicular traffic must be regulated, with opportunities for inspection to protect public safety. A dangerous car is a threat to those on or near our roads. The reasonable expectation of privacy in a car must, from common experience and for the good of all, be greatly reduced. [67] Informational privacy is about protecting personal information that may reveal intimate details of the biographical core, lifestyle and personal choices of the individual, or that directly compromises the individual’s “dignity, integrity and autonomy”: R. v. Plant, [1993] 3 S.C.R. 281 at 293. In that case, the accused was found to have no reasonable expectation of privacy in computer records revealing the electricity consumption of his residence because he had no control over or access to the content of the information. Spencer introduced an additional facet to informational privacy: privacy as anonymity. While identifying the primary privacy interest as informational, the Court in Spencer also recognized that an overlap existed between the accused’s informational and territorial privacy as the computer that was the subject matter of the warrantless search was situated in the accused’s home. The subjective expectation of privacy [68] A subjective expectation of privacy requires a finding that an individual had or is presumed to have had an expectation of privacy in the information content of the subject matter of the search. See Patrick at para. 37. It may be presumed to exist ( Tessling at para. 38; R. v. Nolet, 2010 SCC 24 at para. 31) or may be inferred from the circumstances ( R. v. Cole, 2012 SCC 53 at para. 34; Spencer at para. 19). The finding of a subjective expectation of privacy is “not a high hurdle”: Patrick at para. 37. The reasonableness of the privacy interest [69] The objective reasonableness of a subjective expectation of privacy is determined on “the totality of the circumstances” of a particular case with “close attention to context” ( Patrick at para. 26). The analytical framework for assessing whether an applicant had a reasonable expectation of privacy in the subject matter of the search was set out in Patrick at para. 27 (see also Edwards at para. 45; Tessling at para. 19). It includes a consideration of the following factors: 1.       The nature or subject matter of the search; 2.       Whether the applicant had a direct interest in the subject matter of the search; 3.       Whether the applicant had a subjective expectation of privacy in the informational content of the subject matter of the search; and 4.       Whether the applicant’s subjective expectation of privacy was objectively reasonable. [70] In Patrick, the Court listed a number of factors to be considered in assessing objective reasonableness (at para. 27): a.       The place where the search occurred; b.       Whether the informational content of the subject matter was in public view; c.       Whether the informational content of the subject matter had been abandoned; d.       Whether the information was already in the hands of third parties; if so was it subject to an obligation of confidentiality? e.       Whether the police technique was intrusive in relation to the privacy interest; f.        Whether the use of this evidence gathering technique was itself objectively unreasonable; and g.       Whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature. [71] The more personal and confidential the information, the greater there will likely be a reasonable expectation of privacy in the information: Cole at para. 46. However, “not all information an individual may wish to keep confidential necessarily enjoys s. 8 protection”: Tessling at para. 26. Application of the principles to this case [72] A search warrant authorizes the search of a location and the seizure of specified items from that location for examination of a criminal offence. In some circumstances, an item can be seized without a warrant. Section 489(2) authorizes the seizure of any thing without a warrant where an officer in the execution of his or her duties reasonably believes that a thing: (i) has been obtained by the commission of an offence; (ii) has been used in the commission of an offence; or (iii) will afford evidence in respect of an offence . There must be an evidentiary basis to justify the use of the extended power to seize under s. 489(2)(a), (b) or (c). [73] Mr. Fedan’s vehicle was lawfully seized under s. 489(2) of the Code without a warrant. The authorized seizure of an item generally includes a right of examination of that item. The question is whether the lawful seizure of his vehicle, in which he had a direct interest as its owner and therefore in the SDM, extinguished any privacy interest he may have had in the SDM and its data. [74] Prior judicial authorization to search a specific location for specific things generally includes “a reasonable examination of anything at that location within which the specified things might be found … specific prior authorization to search anything at that location is not required” ( Vu at para. 23). However, in Vu the Court found that this conventional principle did not apply with respect to personal computers that were not specifically listed in the search warrant as there were significant privacy interests engaged in the search of a computer that might contain a vast amount of personal information. Therefore, judicial pre-authorization for the search of a personal computer was required. [75] In this case, the police obtained a search warrant for the forensic examination of the interior of Mr. Fedan’s lawfully seized vehicle. The warrant authorized a search of that location for evidence (blood, DNA, fingerprints, documentation) which might reasonably provide information that could identify the driver of the vehicle involved in the double fatality. The forensic search clearly engaged Mr. Fedan’s informational privacy interests and therefore required a search warrant. [76] The threshold issues for determining if a search warrant is required is whether there is a subjective expectation of privacy in the item to be seized and examined that is objectively reasonable. The trial judge recognized that this is not a “high hurdle” to be met in determining whether an accused has a subjective expectation of privacy in their vehicle and that it can often be presumed. In this case, however, the judge declined to make that presumption because of the absence of evidence that Mr. Fedan was even aware that the SDM was embedded in his vehicle. With respect, in the absence of evidence to the contrary, in my view the jurisprudence supports a presumption that Mr. Fedan had an expectation of privacy in his vehicle, albeit markedly reduced from a home or office, which extended to the SDM as it was an integral component of his vehicle, not unlike an engine. [77] The more difficult question is whether Mr. Fedan’s presumed expectation of privacy in the SDM translates to an objectively reasonable expectation of privacy in its data. Context is important in this analysis. [78] There is a distinction to be made between the device and the data downloaded from the device. Mr. Fedan had a territorial privacy interest in the device; he claims to have an informational privacy interest in its data. With respect, I am unable to see how Mr. Fedan could have any residual territorial privacy interest in the SDM after the vehicle was lawfully seized or any informational privacy interest in the SDM data as, standing alone, the data provided no personal identifiers that could link Mr. Fedan to the captured data. He therefore had no reasonable expectation of privacy in the SDM or its data after the vehicle was lawfully seized. [79] In Tessling, the accused’s territorial privacy interest in his home was relied on as “an analytical tool to evaluate the reasonableness of [his] expectation of privacy” in the personal information the FLIR technology produced about the activities in his home. In this case, however, Mr. Fedan’s limited territorial privacy interest in his vehicle was extinguished after the vehicle was lawfully seized. At that point in time, he no longer had any lawful right to possess, access, use or dispose of his vehicle in any manner. He could not therefore have had any objectively reasonable territorial privacy interest in the device. [80] In Tessling, the Court also held that the information obtained by the FLIR technology with respect to the heat emanating from the accused’s home did not engage the accused’s informational privacy interests because of the nature and quality of the information that it revealed about the activities inside the home. Binnie J. concluded at para. 62: Certainly FLIR imaging generates information about the home but s. 8 protects people, not places. The information generated by FLIR imaging about the respondent does not touch on “a biographical core of personal information”, nor does it “ten[d] to reveal intimate details of [his] lifestyle” ( Plant , at p. 293). It shows that some of the activities in the house generate heat. That is not enough to get the respondent over the constitutional threshold. [81] Similarly, in this case, the data recovered by the SDM provided no personal information about Mr. Fedan. The captured information pertained only to the use of the vehicle in a five-second window of time before a deployment or near-deployment event. It did not capture any information that revealed intimate details of Mr. Fedan’s biographical core, and in particular about who was driving the car. Further evidence had to be obtained to connect the driving of his vehicle to Mr. Fedan himself. In my view, Mr. Fedan’s informational privacy interests were not engaged by the downloading of the SDM data. [82] Nor do I accept Mr. Fedan’s analogy between the SDM and a personal computer or a “black box” and therefore do not find the reasoning in Vu to be applicable . As noted, the data recorded by the device did not extend to personal identifiers of the driver of the vehicle. Most significantly it contained no intimate details of the driver’s biographical core, lifestyle or personal choices, or information that could be said to directly compromise his “dignity, integrity and autonomy” ( Plant at 293). [83] In Hamilton and Glenfield, respectively, the courts held that the information captured need not pertain to the applicant’s biographical core, lifestyle or personal choices before a subjective expectation of privacy could be found to be objectively reasonable. In each of those cases, citing Justice Binnie in R. v. M.(A.), 2008 SCC 19, the judge concluded that even though the captured information did not rise to that level, it could still be considered private information if the maker of the information reasonably intended it to be private. With respect, I do not agree. In M.(A.), at issue was whether the accused had a reasonable expectation of privacy in his backpack. In distinguishing the case from Tessling and Plant, Binnie J. held that in those cases, “the information had already escaped the possession and control of the suspect,” where as in the case at hand, the “guilty secret of the contents of the accused’s backpack was not known to third parties” and was “intended to be private” (at para. 67). [84] Again, after undertaking a normative assessment of the reasonableness of Mr. Fedan’s privacy claim I find it difficult to see how an operator of a vehicle might be found to have reasonably intended the last five seconds of information pertaining to his or her driving before a collision to be private. Driving on a public road is a highly regulated activity that is open to public view, as evidenced by Mr. Schneider witnessing Mr. Fedan’s erratic driving 20 minutes before the accident. Had another member of the public witnessed the collision, that person would have seen the information captured by the SDM, albeit with less accuracy. [85] Nor am I persuaded that privacy as anonymity, as identified in Spencer, is applicable in this case. Spencer involved significant informational privacy interests in the contents of the accused’s personal computer located in his residence. The police accessed identifying information about the appellant through an Internet Service Provider. The Court found that the identity of a person linked by their Internet usage gave rise to a privacy interest based on anonymity. In doing so, it noted that the Internet is a unique public place in that a key feature of it is the ability for its users to remain anonymous. In this case, however, there was nothing private about the manner of Mr. Fedan’s driving on a public road. He admitted to driving the vehicle at the time of the accident. In my view a privacy interest in anonymity is not engaged in the circumstances of this case. [86] In sum, in the context of this case and the totality of the circumstances, I find Mr. Fedan did not have a reasonable expectation of privacy in the SDM and its data. His territorial privacy interest in the device was extinguished by the lawful seizure of the vehicle and he had no informational privacy interest in the SDM data as it contained no personal information linking him to the operation of the vehicle at the material time. Accordingly, I find no error in the judge’s finding that his s. 8 Charter right was not violated and in the admission of this evidence in the trial proper. [87] In the alternative, if a s. 8 Charter breach was established, I agree with the trial judge that the evidence should not be excluded under s. 24(2) of the Charter. The SDM could easily have been included in the information to obtain the search warrant had Sgt. Noonan known that a warrant was required for its search. He did not seek a warrant because he had received legal advice from the Department of Justice that a search warrant was not required. Once Hamilton was published, his practice changed. [88] The trial judge found that Sgt. Noonan acted in good faith throughout as he was relying on a legal opinion from the Department of Justice that a warrant was not required. There was also no apparent uncertainty in the law at that time until the decisions in Hamilton and Glenfield. Without any prompting, Sgt. Noonan immediately changed his practice and began obtaining a search warrant in these circumstances. His actions throughout supported the judge’s finding that he acted in good faith. [89] The trial judge also found that the impact of the Charter breach was minimal as Mr. Fedan’s vehicle was destroyed and had been lawfully seized, he was neither present nor had access to the SDM during its seizure and search, and in any event Sgt. Noonan had reasonable grounds to obtain a warrant for its seizure and search and would likely have obtained one. [90] Last, the exclusion of the evidence would have substantially weakened the Crown’s case in establishing that Mr. Fedan’s driving was objectively dangerous at the time of the accident, which would have had a marked negative impact on the truth-seeking function of the trial. The proposed evidence was non-conscripted, accurate and reliable. As in Hamilton and Glenfield, the evidence in these circumstances should not be excluded under s. 24(2). [91] In the result, I am satisfied the SDM and the data retrieved from the device was properly admitted into evidence and I would dismiss the appeal. “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Mr. Justice Frankel” I AGREE: “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Miller, 2016 BCCA 30 Date: 20160125 Docket: CA42721 Between: Regina Respondent And Leslie James Miller Appellant Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Frankel The Honourable Mr. Justice Fitch On appeal from:  An order of the Provincial Court of British Columbia, dated June 7, 2013 ( R. v. Miller , Richmond Docket 56387-2-C). Counsel for the Appellant: F. Arbabi and M. Reinhart Counsel for the Respondent: T. C. Gerhart Written Joint Submission filed: January 11, 2016 Place and Date of Judgment: Vancouver, British Columbia January 25, 2016 Written Reasons of the Court Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26.  Held: Appeal allowed.  The appellant was entitled to a credit on a 1:1.5 basis. Reasons for Judgment of the Court: [1] The appellant pleaded guilty to trafficking in a controlled substance, unlawful transfer of a firearm and unlawful possession of a loaded prohibited firearm.  He was convicted on December 18, 2012, and sentenced on June 7, 2013, to 6 years and 6.5 months’ imprisonment.  At the time of sentencing, he had been in custody for 197 days for which he received credit of 6.5 months on a 1:1 basis, resulting in a remaining sentence of 6 years’ imprisonment. [2] The record indicates that upon learning of the Supreme Court of Canada’s decision in R. v. Summers , 2014 SCC 26, he pursued his wish to appeal his sentence. [3] The Crown does not oppose the granting of credit at a rate of 1:1.5.  The appellant is not otherwise disqualified from such credit under s. 719(3.1) of the Criminal Code . [4] An extension of time for the filing of this appeal is granted and leave to appeal is granted.  The appeal is allowed to the extent that the sentence is reduced to 5 years and 267 days’ imprisonment, after allowing a credit of a further 98 days for pre-sentence custody. “The Honourable Mr. Justice Lowry” “The Honourable Mr. Justice Frankel” “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Paquet, 2016 BCCA 31 Date: 20160125 Docket: CA43334 Between: Regina Respondent And Justin Dwayne Paquet Appellant Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Frankel The Honourable Mr. Justice Fitch On appeal from:  An order of the Provincial Court of British Columbia, dated June 27, 2013 ( R. v. Paquet , Surrey Docket 197625-3C). Counsel for the Appellant: L. J. Helps Counsel for the Respondent: E. A. Campbell Written Joint Submission filed: January 11, 2016 Place and Date of Judgment: Vancouver, British Columbia January 25, 2016 Written Reasons of the Court Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26.  Held: Appeal allowed.  The appellant was entitled to a credit on a 1:1.5 basis. Reasons for Judgment of the Court: [1] The appellant was convicted on June 19, 2013, of robbery (count 1) with an imitation firearm (count 3), disguising his face with intent to commit an indictable offence (count 2), and willfully resisting or obstructing a peace officer (count 5).  He was sentenced on June 27, 2013, to 6 years’ imprisonment for each of counts 1 and 2, to be served concurrently, 1 year imprisonment on count 3, consecutive to counts 1 and 2, and 6 months’ imprisonment, concurrent, on count 5.  At the time of sentencing for another matter (June 21, 2013), he had been in custody for 201 days for which he received credit on a 1:1 basis. [2] The record indicates that upon learning of the Supreme Court of Canada’s decision in R. v. Summers , 2014 SCC 26, he pursued his wish to appeal his sentence. [3] The Crown does not oppose the granting of credit at a rate of 1:1.5.  The appellant is not otherwise disqualified from such credit under s. 719(3.1) of the Criminal Code . [4] An extension of time for the filing of this appeal is granted and leave to appeal is granted.  The appeal is allowed to the extent that the concurrent sentences on counts 1 and 2 are reduced to 5 years and 63 days’ imprisonment, after allowing a credit of a further 101 days for pre-sentence custody, for a total credit of 302 days. ‘The Honourable Mr. Justice Lowry” “The Honourable Mr. Justice Frankel” “The Honourable Mr. Justice Fitch’

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Smith, 2016 BCCA 29 Date: 20160125 Docket: CA43148 Between: Regina Respondent And Trevor James Smith Appellant Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Frankel The Honourable Mr. Justice Fitch On appeal from:  An order of the Supreme Court of British Columbia, dated September 26, 2011 ( R. v. Smith , Kamloops Docket 91778-2). Counsel for the Appellant: G. R. Kotz Counsel for the Respondent: E. A. Campbell Written Joint Submission filed: December 16, 2015 Place and Date of Judgment: Vancouver, British Columbia January 25, 2016 Written Reasons of the Court Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26.  Held: Appeal allowed.  The appellant was entitled to a credit on a 1:1.5 basis. Reasons for Judgment of the Court: [1] The appellant pleaded guilty to robbery with a firearm and assault causing bodily harm.  He was convicted on July 13, 2011, and sentenced on September 26, 2011, to 5 years and 5 months’ imprisonment on the first count, with 1 year concurrent on the second count.  At the time of sentencing, he had been in custody for eight months for which he received credit on a 1:1 basis, resulting in a remaining sentence of 4 years and 9 months’ imprisonment. [2] The record indicates that upon learning of the Supreme Court of Canada’s decision in R. v. Summers , 2014 SCC 26, he pursued his wish to appeal his sentence. [3] The Crown does not oppose the granting of credit at a rate of 1:1.5.  The appellant is not otherwise disqualified from such credit under s. 719(3.1) of the Criminal Code . [4] An extension of time for the filing of this appeal is granted and leave to appeal is granted.  The appeal is allowed to the extent that the sentence on count 1 is reduced to 4 years and 5 months’ imprisonment, after allowing a credit of a further four months for pre-sentence custody, for a total credit of one year. “The Honourable Mr. Justice Lowry” “The Honourable Mr. Justice Frankel” “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Azaz, 2016 BCCA 35 Date: 20160126 Docket: CA43065 Between: Regina Respondent And Brahim Mohammed Azaz Appellant Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Saunders The Honourable Mr. Justice Willcock On appeal from:  An order of the Provincial Court of British Columbia, dated July 25, 2013 ( R. v. Azaz , Vancouver Registry 227347). Counsel for the Appellant: C. Darnay Counsel for the Respondent: E. Campbell Joint Statement on Sentence Appeal filed: Vancouver, British Columbia November 26, 2015 Place and Date of Judgment: Vancouver, British Columbia January 26, 2016 Written Reasons of the Court Summary: The appellant appeals from sentence, seeking enhanced credit for his time in pre‑sentence custody pursuant to R. v. Summers, 2014 SCC 26. The Crown consents. Held: appeal allowed. The appellant is entitled to enhanced credit at the rate of 1.5 days for each day spent in pre‑sentence custody. Reasons for Judgment of the Court: [1] On 25 July 2013, the appellant was sentenced on Vancouver Information 227347-1 as follows: · Count 1: robbery, contrary to s. 344(1)(b) of the Criminal Code , R.S.C. 1985, c. C‑46: two years, in addition to 337 days credit for pre‑sentence custody; · Count 2: use of imitation firearm, presumably contrary to s. 85(2) of the Criminal Code , however the Notice of Appeal identifies the section as 85(1). The sentence for this offence was one year, consecutive; and · Count 3: face masked with intent, contrary to s. 351(2) of the Criminal Code : one year, concurrent. [2] The appellant had been in custody from 16 August 2012 until sentencing. That was 343 days. However, counsel calculated it as 337 days. [3] The appellant served another sentence during that time. On 12 October 2012, he was sentenced to eight days, in addition to 52 days credit for theft. After two‑thirds of that eight‑day sentence (five days), the appellant would have resumed earning credit toward the robbery sentence. Thus, 57 days (52 + 5 days) of the time spent in custody from 16 August 2012 until 25 July 2013 was not available as credit toward the robbery sentence. That leaves 286 days (343 less 57 days) spent in pre‑sentence custody that is available for credit. [4] On 11 April 2014, the Supreme Court of Canada rendered judgment in R. v. Summers , 2014 SCC 26. The record indicates that upon learning of Summers , the appellant acted in a timely manner to pursue an appeal from sentence. [5] Based on Summers , the appellant applies for an extension of time to apply for leave to appeal, and leave to appeal if an extension is granted. If leave is granted, the appellant appeals from sentence and seeks enhanced credit for pre‑sentence custody at the rate of 1.5 days for every day spent in pre‑sentence custody. [6] Applying that rate to the 286 days spent by the appellant in pre‑sentence custody results in 429 days (one year and 64 days) as the maximum enhanced credit under s. 719(3.1) of the Criminal Code . [7] The judge held that the appropriate sentence before credit for pre-sentence time in custody would have been 1,067 days (two years plus 337 days spent in pre‑sentence custody). Subtracting 429 days from that results in a sentence of 638 days (one year and 273 days). [8] The appellant and Crown agreed to conduct this appeal in writing, without oral argument, pursuant to a protocol established by this Court for certain post- Summers sentence appeals. The Crown does not oppose the application for an extension of time, and does not oppose the granting of credit at the rate of 1.5 days for each day spent in pre-sentence custody in light of Summers . [9] Accordingly, an extension of time to apply for leave to appeal is granted, leave to appeal is granted, and the appeal is allowed only to the extent that the sentence on count 1 is reduced to one year and 273 days, in addition to credit for 429 days (one year and 64 days) spent in pre‑sentence custody. “The Honourable Chief Justice Bauman” “The Honourable Madam Justice Saunders” “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Collins, 2016 BCCA 36 Date: 20160126 Docket: CA42886 Between: Regina Respondent And Neil Elliott Collins Appellant Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Saunders The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated January 20, 2014 ( R. v. Collins , 2014 BCSC 511, Kelowna Registry 78439). Counsel for the Appellant: C. Darnay Counsel for the Respondent: T. Gerhart Joint Statement on Sentence Appeal filed: Vancouver, British Columbia November 10, 2015 Place and Date of Judgment: Vancouver, British Columbia January 26, 2016 Written Reasons of the Court Summary: The appellant appeals from sentence, seeking enhanced credit for his time in pre‑sentence custody pursuant to R. v. Summers, 2014 SCC 26. The Crown consents. Held: appeal allowed. The appellant is entitled to enhanced credit at the rate of 1.5 days for each day spent in pre‑sentence custody. Reasons for Judgment of the Court: [1] On 20 January 2014, the appellant was sentenced on Kelowna Information 78439 as follows: · two counts of possessing controlled drugs for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19: three and one‑half years (1,277 days) for each count, served concurrently, less credit of 76 days for pre‑sentence custody, for a net sentence of 1,201 days imprisonment. · one count of possession of stolen property, contrary to s. 355(b) of the Criminal Code , R.S.C. 1985, c. C‑46: three and one‑half years (1,277 days), served concurrently, less credit of 76 days for pre‑sentence custody, for a net sentence of 1,201 days imprisonment. [2] The appellant had been in custody for 76 days prior to sentencing. [3] On 11 April 2014, the Supreme Court of Canada rendered judgment in R. v. Summers , 2014 SCC 26. [4] Based on Summers , the appellant applies for an extension of time to apply for leave to appeal, and leave to appeal if an extension is granted. If leave is granted, the appellant appeals from sentence and seeks enhanced credit for pre‑sentence custody at the rate of 1.5 days for every day spent in pre‑sentence custody. [5] Applying that rate to the 76 days spent by the appellant in pre‑sentence custody results in 114 days as the maximum enhanced credit under s. 719(3.1) of the Criminal Code . [6] The judge held that the appropriate sentence for all three counts before credit for pre‑sentence time in custody would have been three and one-half years (1,277 days) served concurrently. Subtracting 114 days from that results in a sentence of 1,163 days. [7] The appellant and Crown agreed to conduct this appeal in writing, without oral argument, pursuant to a protocol established by this Court for certain post‑ Summers sentence appeals. The Crown does not oppose the application for an extension of time, and does not oppose the granting of credit at the rate of 1.5 days for each day spent in pre‑sentence custody in light of Summers . [8] Accordingly, an extension of time to apply for leave to appeal is granted, leave to appeal is granted, and the appeal is allowed only to the extent that the sentence is reduced to 1,163 days, in addition to credit for 114 days spent in pre‑sentence custody. “The Honourable Chief Justice Bauman” “The Honourable Madam Justice Saunders” “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Gill, 2016 BCCA 37 Date: 20160126 Docket: CA42987 Between: Regina Respondent And Manraj Singh Gill Appellant Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Saunders The Honourable Mr. Justice Willcock On appeal from:  An order of the Provincial Court of British Columbia, dated December 6, 2013 ( R. v. Gill , Abbotsford Registry 79484). Counsel for the Appellant: G. Barriere Counsel for the Respondent: T. Gerhart Joint Statement on Sentence Appeal filed: Vancouver, British Columbia October 21, 2015 Place and Date of Judgment: Vancouver, British Columbia January 26, 2016 Written Reasons of the Court Summary: The appellant appeals from sentence, seeking enhanced credit for his time in pre-sentence custody pursuant to R. v. Summers, 2014 SCC 26. The Crown consents. Held: appeal allowed. The appellant is entitled to enhanced credit at the rate of 1.5 days for each day spent in pre‑sentence custody. Reasons for Judgment of the Court: [1] On 6 December 2013, the appellant was sentenced on Abbotsford Information 79484-1 as follows: · one count of possessing controlled drugs for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19: 28 months’ imprisonment served concurrently, in addition to credit of three months for pre‑sentence custody. · one count of possession of ammunition while prohibited from doing so, contrary to s. 117.01(1) of the Criminal Code , R.S.C. 1985, c. C‑46: 28 months’ imprisonment served concurrently, including credit of three months for pre‑sentence custody. [2] The appellant had been in custody from 5 September 2013 until sentencing. That was 92 days. [3] On 11 April 2014, the Supreme Court of Canada rendered judgment in R. v. Summers , 2014 SCC 26. [4] Based on Summers , the appellant applies for an extension of time to apply for leave to appeal, and leave to appeal if an extension is granted. If leave is granted, the appellant appeals from sentence and seeks enhanced credit for pre‑sentence custody at the rate of 1.5 days for every day spent in pre‑sentence custody. [5] Applying that rate to the 92 days spent by the appellant in pre-sentence custody results in 138 days as the maximum enhanced credit under s. 719(3.1) of the Criminal Code . [6] The judge held that the appropriate sentence for robbery before credit for pre‑sentence time in custody would have been 31 months (28 months plus three months spent in pre‑sentence custody). Subtracting 138 days from that results in a sentence of 26 months and 12 days. [7] The appellant and Crown agreed to conduct this appeal in writing, without oral argument, pursuant to a protocol established by this Court for certain post‑ Summers sentence appeals. The Crown does not oppose the application for an extension of time, and does not oppose the granting of credit at the rate of 1.5 days for each day spent in pre‑sentence custody in light of Summers . [8] Accordingly, an extension of time to apply for leave to appeal is granted, leave to appeal is granted, and the appeal is allowed only to the extent that the sentence is reduced to 26 months and 12 days, in addition to credit for 138 days spent in pre‑sentence custody. “The Honourable Chief Justice Bauman” “The Honourable Madam Justice Saunders” “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Nguyen, 2016 BCCA 32 Date: 20160126 Docket: CA42331 Between: Regina Respondent And Anh Tuan Nguyen Appellant Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Saunders The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated September 19, 2014 ( R. v. Nguyen, Vancouver Registry 26266). Counsel for the Appellant: D.L. Karp and M. Reinhart Counsel for the Respondent: M. Mereigh Place and Date of Hearing: Vancouver, British Columbia December 18, 2015 Place and Date of Judgment: Vancouver, British Columbia January 26, 2016 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Chief Justice Bauman The Honourable Madam Justice Saunders Summary: The appellant was convicted of aggravated assault of another nightclub patron. Club security intervened and held the appellant at the scene. Police arrived, handcuffed the appellant and arrested him. The appellant made comments to club staff and later to police indicating his involvement. The appellant appealed his conviction on the basis that his statements were erroneously admitted, and that his ss. 10(a) and (b) Charter rights were violated. He also argued the judge ought to have instructed the jury on honest but mistaken belief the victim consented to the altercation. Held: appeal dismissed. The judge found the nightclub staff were not acting as agents of the state or making an arrest, and had no obligation to inform the appellant of his Charter rights; the appellant’s access to counsel was delayed but there were no means of facilitating private communication with counsel until later at the station; and the appellant’s statements were voluntary. There is no reason to interfere with any of these factual findings. The judge’s charge to the jury was correct and comprehensive. There is no error justifying intervention. Reasons for Judgment of the Honourable Mr. Justice Willcock: Introduction [1] The appellant was convicted at the conclusion of a 10-day judge and jury trial on September 19, 2014, of the August 31, 2011 aggravated assault of Christopher Ball, contrary to s. 268(2) of the Criminal Code , R.S.C. 1985, c. C‑46. The appellant appeals his conviction and seeks a new trial. [2] The appellant argues the trial judge erred in admitting into evidence a series of his statements made after the commission of the offence. The appellant says the statements were obtained as a result of a breach of his s. 10 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [ Charter ], rights and their admission into evidence offends the conscience of the community. The ruling on admissibility was made for reasons indexed at 2014 BCSC 1499. [3] Further, he submits the trial judge erred in law by failing to charge the jury with respect to the appellant’s honest but mistaken belief that the victim consented to the altercation that resulted in the conviction. [4] At the outset of the hearing of the appeal, he abandoned the contention that the trial judge erred in failing to instruct the jury on self-defence under s. 34(1) of the Criminal Code . He also abandoned the contention that he had been arbitrarily detained by a police officer in breach of his rights under s. 9 of the Canadian Charter of Rights and Freedoms . The Evidence [5] The Crown’s case consisted of the evidence, first led on a voir dire , of the employees of the Republic Nightclub who witnessed events and produced video records of the evening in question, and the police officers who investigated, detained and arrested the appellant, and recorded his statements at the scene. The defence case consisted of two witnesses: the appellant and his girlfriend, Danielle Man. The appellant and Ms. Man did not testify on the voir dire . [6] The video evidence depicts the appellant with Ms. Man and a friend near the bar. Mr. Ball approaches the front of this group, moves around the appellant and walks away. The appellant is then seen to run behind Mr. Ball and strike him on the back of his head. Mr. Ball falls forward, out of the camera’s view. The appellant is then escorted out of the nightclub by an employee. Ms. Man follows him. [7] The appellant testified that Mr. Ball approached the group at the bar, nudged the appellant and said, “Your girlfriend’s hot”. The appellant responded “Get lost” or “Just keep moving on”. Mr. Ball responded, “Watch your back”. The appellant says Ms. Man then told him, “This guy just grabbed my ass”. He testified he confirmed she was certain this had occurred and then “went after him”. He pursued Mr. Ball in order to confront him and did not punch Mr. Ball, but struck his head or shoulder with an open hand. He did not intend to injure him. He explained he had no time to think; his “instant reaction” was to protect Ms. Man and himself by chasing after and striking Mr. Ball from behind. He agreed with the suggestion he was angry and  Mr. Ball was walking away when he pursued him but testified he remained concerned Mr. Ball would return. He acknowledged in cross-examination that the video did not show Mr. Ball touching Ms. Man. He also agreed the video appears to depict him directing a kick toward Mr. Ball as he lay on the ground and he agreed Mr. Ball did not expressly consent to engage in a fight. He denied being affected by alcohol. [8] Shane Dobie, a venue control host at the Republic Nightclub, saw the appellant tackle and punch Mr. Ball from behind and saw them both fall forward. Mr. Ball struck his head, possibly on the wall and then the concrete floor. When Mr. Ball was face down on the floor, the appellant sat on the victim’s back and started to throw punches. [9] Mr. Ball recalled having 10-15 drinks at the Republic Nightclub over the course of quite a few hours. He woke up in the hospital. While he has no memory of the incident, he conceded that if he had groped Mr. Nguyen’s girlfriend he should have expected some form of conflict to result. [10] Mr. Dobie testified in the voir dire that he had come across an altercation, which he stopped with the assistance of other patrons. He pinned the appellant against the wall and asked what was happening. The appellant replied that the other individual had “touched my girlfriend’s ass”. Mr. Dobie then handed the appellant over to Mr. Robinson to be escorted off the premises. Mr. Dobie returned to the victim, Mr. Ball, who lay unconscious on the floor. He then radioed his colleagues and advised them the person they were escorting out ought to be held for police questioning as the injury to the victim was serious and police and ambulance were needed. [11] Frank Robinson testified in the voir dire that he escorted a group of patrons through an emergency exit door and into a stairwell. As he was doing so, an Asian male in a white shirt, later identified as the appellant, said “yeah, I did it, I did it because he grabbed her ass.” Mr. Robinson had not engaged the appellant in conversation. [12] The group went down the stairs in about 20 seconds. As the patrons left the club and the appellant began to cross Granville Street, Mr. Robinson received instructions to hold him for police. When Mr. Robinson put out his arms to detain him, the appellant slapped his arm. Mr. Robinson, with the help of another venue control host, brought the appellant to the ground and held him. A marked police vehicle was just arriving at the scene. [13] Constable Rajprit Mander arrived in that marked police vehicle at 2:53 a.m. He observed the appellant and two uniformed employees of the Republic Nightclub, one of whom was Mr. Robinson, in the middle of the street. He saw the appellant shove Mr. Robinson and saw Mr. Robinson take hold of the appellant, who fought to get free. Constable Mander activated his emergency lights, pressed the siren a few times and parked his police vehicle. He ran up to Mr. Robinson and the appellant, who was continuing to struggle. When he asked what was going on he was told the appellant had likely hit someone on the head with a bottle inside the club. Constable Mander then yelled in the appellant’s ear “police” to identify himself and told the appellant to stop fighting. When he did not do so, Constable Mander placed handcuffs on him. He testified that he did so for officer safety, before investigating what had occurred. He did so because he was without any other police support; there were many intoxicated people on the street; he had seen the appellant fight with bar staff; the appellant did not cease fighting after police presence was announced, even after being restrained; and the appellant was observed to be strong, very angry and breathing heavily. [14] After handcuffing the appellant, Constable Mander walked him to a safer location on the sidewalk. Ms. Man approached and said “My boyfriend was just protecting me because a white guy had touched my ass.” The appellant then said “Listen man some guy grabs your girl’s ass you’d knock him out too wouldn’t you?” Constable Mander testified he had not asked the appellant any questions or engaged in discussion before that statement was made. [15] Within two minutes of handcuffing the appellant, Constable Mander thought he had reasonable grounds to believe the appellant had assaulted someone, so at 3:01 a.m. he arrested him for assault with a weapon and assault causing bodily harm. Constable Mander gave the appellant the ss. 10(a) and (b) Charter warnings. The appellant stated he understood and requested an opportunity to speak to a lawyer, David Karp. [16] Constable Mander testified he did not suggest the use of a cell phone at the scene because the scene was not safe, and it was impossible to provide the appellant with privacy. There were many people standing nearby them on the street. The appellant could not be placed alone in the police cruiser, which had no shield separator preventing access to the steering system, the computer and the radio. Any call made from the scene would have to be brief and would likely be interrupted to permit Constable Mander to manage the scene. [17] When Constable Mander started to write notes, the appellant made another un‑elicited statement: “Listen, some fucking fag grabbed my girl’s ass, so I knocked the motherfucker out. Yeah, I did, big fucking white guy, out cold. He threw a punch. I laid him out. Yeah.” Ms. Man again made a statement to Constable Mander regarding a male grabbing her and asked why the police had not done anything. Constable Mander asked her to describe the person who had grabbed her. The appellant interjected saying, “He was a big stocky white guy. You can’t miss him. He’s probably still out cold inside”. Ms. Man said, “Well, why don’t you go arrest him?” And the appellant said, “Yeah. Go arrest him for grabbing her ass and assault, once he wakes up.” [18] Constable Mander handed the appellant over to Constable Luccock, who took conduct of the appellant at 3:10 a.m. and read him the Charter warnings again. When the police wagon arrived, the appellant was loaded into the wagon and transported to the police station. [19] The appellant denied he made any of the statements testified to by Mr. Dobie, Mr. Robinson and Constable Mander. Rulings and the Jury Charge Ruling on Admissibility [20] Crown counsel sought to establish the voluntariness of the appellant’s statements to Shane Dobie, Frank Robinson and Constable Mander. [21] The appellant brought a pre‑trial application under s. 24(2) of the Charter seeking the exclusion of his statements on the grounds this evidence was obtained in breach of his s. 10(a) and (b) Charter rights. Relying on R. v. Dell , 2005 ABCA 246, and R. v. Asp , 2008 BCSC 794, aff’d 2011 BCCA 433, the appellant argued Mr. Dobie and Mr. Robinson acted as agents of the police, exercising a common law power of arrest, and should have advised him of his rights under the Charter immediately upon restraining him. The appellant further submitted he was arbitrarily detained by Constable Mander when he was handcuffed and, in any event, that he should have been advised of the reason for his detention and his Charter rights immediately upon being detained. [22] The appellant further claimed that his s. 10(b) right to counsel was breached, arguing he was detained by Mr. Dobie shortly after 2:51 a.m., physically held by Mr. Robinson, handcuffed by Constable Mander, and formally arrested at 3:01 a.m. but was not permitted to speak to counsel until 5:40 a.m. He requested to speak to a lawyer upon arrest and says he should have been provided with that opportunity immediately. He submits there was an 11- to 14-minute delay between detention and being informed of his s. 10(b) rights (depending upon when he may be said to have first been detained by nightclub employees), and a two-hour and 40-minute delay between his arrest by Constable Mander and access to counsel. [23] The trial judge admitted the statements made by the appellant into evidence. She found that evidence of the statements to both employees and to the police officer before the appellant was arrested, although hearsay, fell within the res gestae exception to the hearsay rule and was admissible for that reason. She therefore found it unnecessary to address voluntariness. She found evidence of the subsequent statements made to Constable Mander met the test for voluntariness described in R. v. Oickle , 2000 SCC 38, and was admissible on that basis. [24] Turning to the question whether the appellant’s Charter rights had been breached, the trial judge found: a) Mr. Dobie broke up the fight and asked Mr. Robinson to evict the appellant, and only when the severe nature of the injuries became apparent was Mr. Robinson instructed to detain the appellant, which he did for a brief period that could be considered no more than an investigative detention. The Republic employees had not arrested the appellant and there was nothing in the evidence that would suggest express delegation or abandonment of state powers to the employees. Although Mr. Robinson thought he was arresting the appellant when he physically held him, he did not receive instructions to arrest the appellant, only to detain him, and he did not tell the appellant or Constable Mander that he had made an arrest. Detaining the appellant and turning him over to police did not make Mr. Dobie or Mr. Robinson police delegates. Given the finding that they were not exercising a common-law power of arrest, nor acting as state agents, they owed no Charter obligations to the appellant. b) The appellant was not arbitrarily detained by Constable Mander when he was placed in handcuffs before he was arrested. He was detained for the purpose of preserving the peace and there was no breach of s. 9 of the Charter arising from his detention. Constable Mander’s stated concern that the appellant may be a danger to himself, to the public and to the police was held to have been reasonable in the circumstances. Referring to R. v. Mann, 2004 SCC 52, the trial judge held the police have a common law power to detain individuals with a view toward preserving the peace, preventing crime and protecting life and property. c) The delay between the detention of the appellant and explanation of the reason for his detention did not amount to a breach of s. 10(a) of the Charter , because the circumstances justified detention without provision of reasons. The case fell within the exception to s. 10(a) where the reason for detention is obvious in the circumstances surrounding the arrest. Citing R. v. Evans , [1991] 1 S.C.R. 869, and R. v. Boden , 2014 BCSC 66, she found no breach of s. 10(a) stating: Here it must have been obvious to the accused why he was being detained. He knew he had just beaten up and knocked unconscious the complainant and was now struggling with Mr. Robinson. He could have no other reason for thinking why he was being handcuffed other than his knowledge that he had just been in a fight and was now embarking on another one. d) The delay from the time the appellant was arrested until he was given an opportunity to retain and instruct counsel was not so inexcusable as to constitute a breach of s. 10(b) of the Charter . Citing R. v. Taylor , 2014 SCC 50, the judge found that “without delay” under s. 10(b) means at “the first reasonably available opportunity” or “as soon as practicable”. While the evidence established that Ms. Man had a cell phone, and the appellant and/or Constable Mander may also have had cell phones, it would not have been “safe or efficacious” to allow the appellant to use those cellphones to call his lawyer. There was no reasonably available opportunity for the appellant to make a phone call in private until he got to the police station. Further, “[n]o self-incriminating evidence was elicited accidentally or intentionally between the time the appellant expressed his desire to consult with a lawyer and the time his access to a lawyer was facilitated.” Therefore, no breach of s. 10(b) was found. The Jury Charge in Relation to Consent [25] Both the Crown and counsel for the appellant made extensive submissions to the trial judge with respect to the instruction that should be given to the jury in relation to consent. In his submissions, defence counsel referred the trial judge to four cases on assault and consent: R. v. Jobidon , [1991] 2 S.C.R. 714; R. v. Paice , 2005 SCC 22, [2005] 1 S.C.R. 339; R. v. Oppal (1984), 43 C.R. (3d) 365 (B.C. Prov. Ct.); and R. v. Doherty (2000), 227 N.B.R. (2d) 348, 146 C.C.C. (3d) 336 (N.B.C.A.). He submitted these cases stand for the rule that, where there is consent to the application of force, an accused cannot be convicted of assault unless he intends to cause bodily harm and does so. Once there is consent to the application of some force, the Crown will have to establish the existence of a situation or form of conduct which vitiates that consent. Defence relied upon the rule expressed in Jobidon at p. 743 in the following terms: Whether consent is formally categorized as part of the actus reus of the offence, or as a defence, its essential function remains unaltered -- if consent is proved, or if absence of consent is not proved, an individual accused of assault will generally be able to rely on the consent of the complainant to bar a conviction. [Emphasis in original.] [26] In Doherty the Court noted: Even in circumstances where serious harm is inflicted in the course of an altercation, the injured party’s consent to the application of force to his or her person will preclude a finding of unlawful assault against the combatant who stands accused, unless the Crown establishes that such serious harm was intended by the latter’s application of force. That view was expressed in 1984 by The Law Reform Commission of Canada in Working Paper 38: Assault , at p. 24: As regards the present law, it is clear that ... in general, where the contact is intended to cause death or serious harm, consent is no defence. [27] The Crown argued Mr. Ball did not consent to a fight of any kind and, even if there had been consent, it would not have extended to the blows inflicted after he fell to the ground and lost consciousness. The Crown acknowledged the jury would have to be instructed it was the Crown’s obligation to prove the absence of consent to the assault but should also be instructed that consent does not provide a defence where the accused intends to cause “serious harm or non‑trivial bodily harm” in a fist fight. [28] In the course of submissions on the charge, counsel and the judge turned to the provisions of the CRIMJI in relation to mistaken belief and consent. The judge indicated that this was not a case of mistaken belief. Crown agreed. Defence counsel said: I think that that -- usually it’s in sex assault cases, I think, where it arises. But I think there would first have to be a finding that it was mistaken and I’m arguing that there was consent. [29] He was asked to consider his position and address the matter further on the following day. No further submissions were made. [30] The jury was charged on the findings they would need to make in order to convict Mr. Nguyen of aggravated assault, as well as lesser and included offences. These included findings discussed in the charge as elements 5 (that Mr. Ball did not consent to the application of force) and 6 (that Mr. Nguyen knew Mr. Ball did not consent of the offence charged). [31] In relation to the absence of consent, element 5, the judge reminded the jury of Mr. Ball’s testimony that he did not recall consenting to the application of any force and the appellant’s evidence that Mr. Ball implicitly, by his words and conduct, did consent to some response to the groping of Ms. Man. They were told that they must first determine whether there was any consent and, if there was, the extent of that consent. The judge noted: “Even where a person does consent to the application of force, that consent only covers a certain amount of force. It does not cover force that goes beyond the consent.” [32] The jury was instructed that if they had a reasonable doubt as to whether Mr. Ball consented to the application of force by Mr. Nguyen they must give the benefit of that doubt to the appellant. [33] They were reminded the appellant had testified he thought it possible Mr. Ball was consenting to a fight, and that he was consenting to some response, but acknowledged Mr. Ball had not consented to the infliction of an injury. They were also reminded that Mr. Ball agreed that if he had groped Ms. Man he would be consenting to some type of conflict. [34] If they found no consent, they were instructed to go on and consider element 6, whether the appellant knew the fight was non‑consensual. [35] No issue was taken with the charge in relation to consent. [36] Jury deliberations commenced at 3:00 p.m. on September 18. At 10:01 p.m. the jury asked: Please clarify element 5, concerning the limits of consent to the application of force, specifically commenting on the definition of serious, non‑trivial bodily harm and whether the test of Mr. Nguyen’s intent to cause serious, non‑trivial bodily harm is his own mental state or that of another reasonable person in the same circumstance. We are unclear on this element so please review all of this element if possible. [37] After hearing lengthy submissions from counsel, which did not refer to mistaken belief in consent, the judge responded to the jury on September 19. She advised the jury that the question posed appeared to have three parts. Namely, the jury sought: a) clarification of consent and how it is vitiated; b) a definition of serious, non‑trivial bodily harm; and c) direction whether there must be subjective intent to cause such harm on the part of the accused. [38] The first was answered by directing the jury to consider whether on the evidence Mr. Ball could be said to have consented to the application of some force; if so, to consider what he consented to; and last, to bear in mind that individuals should not be held to have consented to suffering “serious hurt or non‑trivial bodily harm”. [39] The judge answered the second part of the question by reciting the definition of bodily harm in s. 2 of the Criminal Code . [40] The third part of the question was answered by directing the jury to consider the appellant’s subjective intent to cause bodily harm. They were told that they should weigh the evidence of what he said and did and told that, in addition to relying upon that evidence, they could draw an inference that he intended the natural consequences of his actions. [41] At 1:40 p.m. on September 19, 2014 the jury returned with a second question. They asked: Please recharge Element Number 6 with examples of each criteria if possible. [42] In the course of submissions to the judge on this question, there was a discussion of honest but mistaken belief in consent and an acknowledgement by defence counsel that the defence had not wanted the jury to be charged on mistaken belief. The judge indicated she understood defence counsel was taking that position because the argument that the appellant had an honest but mistaken belief in consent was usually advanced in cases where the accused acknowledged the victim had not in fact consented, whereas in the case at bar, the defence continued to assert consent could and should be implied from Mr. Ball’s conduct. The question was not further pursued by defence counsel. As I read the transcript of the submissions, defence counsel appeared to be content with the charge. [43] The jury was recharged on consent, including recklessness and wilful blindness as to the existence of consent, but specific examples were not provided. The jury was advised the issue was case-specific and examples would not be helpful. Grounds of Appeal Admissibility of Statements [44] In relation to the findings that his statements were admissible, the appellant argues the trial judge erred in the following respects and, as a result, failed to exclude his statements, obtained in violation of his Charter rights: a) finding that the Republic employees, Mr. Dobie and Mr. Robinson, were not agents of the police required to inform the appellant of his Charter rights; b) finding that the Charter warning was not required when the appellant was detained as the reasons for detention would have been obvious to him; c) finding that the detention of the appellant for safety reasons did not require the police officer to give the appellant a Charter warning; d) finding that the appellant’s s. 10(b) Charter rights were not breached when he was not provided with counsel on request; and e) finding that no further statements were elicited from the appellant after he requested to speak with counsel. Jury Charge [45] Further, the appellant argues the judge erred in law “by failing to charge to the jury with respect to honest but mistaken belief”. Argument Admissibility of Statements [46] The appeal from the ruling that the appellant’s statements at the scene are admissible evidence against him is founded solely upon the argument that the judge ought to have allowed his application under s. 24(2) of the Charter seeking the exclusion of his statements on the grounds this evidence was obtained in breach of his ss. 10(a) and (b) Charter rights. [47] The appellant argues at some point in his interaction with the Republic employees a decision was made not to let him walk away and to hold him at the scene, using force if necessary, until the police arrived, in order to turn him over to their custody. He says it was at this point he was arrested and was entitled to be notified of the reason for his detention. [48] While he no longer advances the argument that he was detained arbitrarily by Constable Mander when he was handcuffed, he says there is no doubt he was detained at that point and entitled, under s. 10 of the Charter , to be informed promptly of the reason for his detention and to retain and instruct counsel without delay. [49] The appellant argues he was only provided with a reason for his detention and notified of his Charter rights after several minutes of detention, a passage of time that does not meet the immediacy standard in the circumstances. Statements he made in the meantime were recorded and used against him, magnifying the significance of the delay. He submits the trial judge’s finding that no further statements were elicited after he was arrested and requested to speak to counsel is in conflict with her findings of fact with respect to subsequent statements made to the police officer. [50] In response, the Crown says the judge properly held the Republic employees were not agents of the police. The Crown says this was a finding of fact that ought not to be overturned in the absence of a palpable and overriding error. The Crown says it is settled law that a citizen who detains an individual for arrest is not required to give that individual a Charter warning. [51] Last, in this regard, the Crown says deference is owed to the trial judge’s factual findings that there were no Charter breaches in this case. Those findings were based upon her assessment of what amounted to reasonable conduct in the circumstances and there is no palpable and overriding error in her analysis. Jury Charge [52] The appellant argues that when the jury asked its second question (“Please recharge Element Number 6 with examples of each criteria if possible”) it was an error not to give the jury some instruction with respect to the effect of an honest but mistaken belief in consent. He says the jury was clearly considering recklessness and wilful blindness and considering the extent to which the appellant might have considered Mr. Ball to have agreed to engage in conflict. He says there was an air of reality to the argument the appellant honestly but mistakenly believed Mr. Ball had consented to an assault. Analysis Admissibility of Statements [53] All of the statements, the admissibility of which is in issue, were very similar in nature. There were four contentious statements: a) a statement made to Shane Dobie that the victim “touched my girlfriend’s ass”; b) a statement made to Frank Robinson: “Yeah, I did it, I did it because he grabbed her ass”. c) a statement made to Constable Mander: “Listen man some guy grabs your girl’s ass you’d knock him out too wouldn’t you?”; and d) a further statement made to Constable Mander: “Listen, some fucking fag grabbed my girl’s ass, so I knocked the motherfucker out. Yeah, I did, big fucking white guy, out cold. He threw a punch. I laid him out. Yeah.” and “Yeah. Go arrest him for grabbing her ass and assault … once he wakes up.” [54] No issue is now taken with the prima facie admissibility of the statements. There is no doubt, in my view, the statements are admissible – not, as the trial judge found, because any of the statements constituted part of the res gestae , but rather, because they fell within the party admissions exception to the hearsay rule (see R. v. Evans , [1993] 3 S.C.R. 653 at p. 664; R. v. Osmar , 2007 ONCA 50, 84 O.R. (3d) 321 at para. 53; and Sopinka, Lederman & Bryant: The Law of Evidence in Canada , 3rd ed. (Toronto: LexisNexis Canada, 2009) at § 6.396‑408 and § 8.1‑22). As Sopinka J. for the majority wrote in Evans : The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule.  Indeed, it is open to dispute whether the evidence is hearsay at all.  The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party.  Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements.  As stated by Morgan, “[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath” (Morgan, “Basic Problems of Evidence” (1963), pp. 265‑66, quoted in McCormick on Evidence , supra , at p. 140).  The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases. [55] Insofar as the special rules governing confessions are concerned, it is clear to me, on the evidence, that from the time the Republic employees first became involved in the altercation between the appellant and Mr. Ball, until the last recorded statement, all of the statements made by the appellant in this case were voluntary. They were spontaneous. There was no threat or inducement. No evidence was led to suggest the statements were not the product of an operating mind. The appellant denied that he was impaired. Even if the statements were long removed from the offence and could not form part of the res gestae , evidence the statements were made is admissible, subject to the Charter arguments considered below. [56] In my view, there is no basis upon which we can or should interfere with the trial judge’s conclusion that Republic employees were not obliged to protect the appellant’s Charter rights. The cases upon which the appellant relies do not support his argument. In R. v. Asp , 2008 BCSC 794, Arnold-Bailey J. held that security guards involved in investigative detention, prior to an arrest, do not have Charter obligations. In doing so, she considered the other authority relied upon by the appellant, R. v. Dell , 2005 ABCA 246. She held: [18] After finding that Lerke was still good law, it was necessary for the Alberta Court of Appeal to then consider whether its principles provide the foundation for extending Charter protection to an investigative detention by a private person.  The court held that Lerke , and the government function exception recognized in Buhay , did not apply to extend Charter protection to investigative detention.  At ¶24, the court held: “In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program”: Buhay at para. 28, citing Eldridge at para. 43. Arguably, citizen’s arrest involves not only a broad public purpose of maintaining the peace, but the delegation of a specific government function to private persons. The latter characteristic is absent from investigative detention, and, as such, detention by private persons cannot be considered a specific government function attracting Charter protection. And further at ¶26: In summary, unlike citizen’s arrest, investigative detention cannot be reasonably construed to be a specific government function that has been delegated to private citizens. Therefore, the principles on which Lerke is based, and the government function exception recognized in Buhay , do not apply to extend Charter protection to investigative detention. Moreover, sound policy reasons dictate that no such extension should be made. [19] I find this distinction, as drawn by the Alberta Court of Appeal in Dell , to be of assistance in my present analysis. If the security guard’s actions in relation to the applicant were to amount to an investigative detention, as opposed to a citizen’s arrest, the Charter does not apply . [Emphasis added.] [57] On the appeal from that decision, this Court was not asked to revisit that issue, as Frankel J.A. noted at 2011 BCCA 433 at para. 5: “In bringing this appeal, Mr. Asp does not challenge the trial judge’s finding that the Charter did not apply to Mr. Stewart [the security guard]. Mr. Asp’s principal ground of appeal relates to the actions of the police after they arrived at the scene of the altercation.” [58] I see no reason to disturb the trial judge’s finding that the Republic employees did not arrest the appellant. That being the case, the appellant’s argument that the Republic employees were required to inform him of his Charter rights must fail. [59] I turn to the appellant’s arguments with respect to the police conduct following Constable Mander’s arrival on the scene. There was a short delay from the time the appellant was handcuffed by Constable Mander until he was arrested and given a Charter warning. He was warned immediately upon his arrest. The trial judge’s finding that a Charter warning was not required when the appellant was first detained was based upon her conclusion that it was impracticable to do so in the circumstances. At para. 49 she held: A person cannot complain he was not promptly advised of reasons for his arrest when he himself creates the risk to safety which is peremptory: Christie [ v. Leachinsky , [1947] 1 All E.R. 567 (H.L.)] [60] The judge’s finding that exigent circumstances, some of which were of the appellant’s own making, prevented the warning from being given for a short period of time is a finding of fact with which we should not interfere. It is, in fact, unchallenged on the appeal. That being the case, the further question whether the trial judge was correct in concluding that an explanation of the detention was not required, because the appellant knew why he was being detained, is immaterial. [61] The trial judge, relying upon R. v. Mann , 2004 SCC 52, found the appellant had been lawfully detained by Constable Mander. The appellant no longer argues he was arbitrarily detained when he was handcuffed. He does maintain, however, his Charter rights were breached by long delay in permitting him to retain and instruct counsel. The trial judge properly noted that the words “without delay” under s. 10(b) mean at “the first reasonably available opportunity” or “as soon as practicable”. She correctly recognized the police duty, described in R. v. Taylor , 2014 SCC 50, to provide a detained person telephone access as soon as practicable, to reduce the possibility of accidental self-incrimination and to avoid eliciting evidence from the individual before access to counsel has been facilitated. Considering the difficulty providing privacy to the appellant in the circumstances, citing R. v. Nelson , 2010 ABCA 349, she held “overheard consultations are not an adequate alternative to the right to counsel”. Her conclusion there had been no Charter breach occasioned by delay was based upon findings of fact set out at para. 63 of the reasons: There was no reasonably available opportunity for the accused to make his phone call until he got to the station. No self-incriminating evidence was elicited accidentally or intentionally between the time the accused expressed his desire to consult with a lawyer and the time his access to a lawyer was facilitated. [62] These findings cannot be said to be founded upon a misapprehension of the evidence. To the contrary, they fairly represent the evidence before the trial judge. In my view, the appellant erroneously argues the judge believed no statements were made between the detention and the opportunity to consult counsel. The judge was aware statements were made but correctly considered the statements not to have been elicited by the police. The statements made after his arrest may reasonably have been regarded as a discussion initiated by the appellant and Ms. Man, who were seeking to have the police investigate Mr. Ball’s conduct. After the appellant was handcuffed, Ms. Man pressed Constable Mander to investigate Mr. Ball’s conduct. The appellant joined in, explaining why he “knocked out” Mr. Ball. After he was arrested and was given a Charter warning, which he acknowledged he understood and which resulted in his request to consult counsel, he again volunteered he had knocked the victim out cold. The judge concluded that the statements made by the appellant were not elicited by the police. I am not convinced the evidence was misconstrued in any way. Nor, in my view, was any legal error made in drawing a distinction between elicited and volunteered statements. [63] Even if the trial judge had found the delay in giving the appellant a Charter warning or an opportunity to consult counsel to have been breaches of his s. 10 Charter rights, I am of the view such breaches would not have justified a s. 24(2) remedy. As the Court noted in Mann at para. 52 and in R. v. Law , 2002 SCC 10, [2002] 1 S.C.R. 227 at para. 34, the key consideration under a s. 24(2) analysis is the “nature of the evidence obtained and the nature of the right violated”. [64] It should be borne in mind that the statements made in the presence of the Republic employees were made before any of the alleged breaches of his Charter rights, while the employees were breaking up a fight and escorting him from the premises. The appellant does not suggest otherwise. There is no basis for an argument those statements were obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter so as to be subject to exclusion under s. 24(2). [65] The evidence obtained after the appellant was handcuffed and before he was arrested can only be said to have resulted from a very brief detention and consisted of little more than repetition of statements previously made. [66] There was no evidence of bad faith on the part of Constable Mander. The trial judge accepted that Constable Mander believed he was handcuffing the appellant with authority to do so and he honestly believed he was doing so to prevent injury and to preserve order. [67] There is no basis, in my view, upon which it could have been said that the admission of the appellant’s statements to Constable Mander would bring the administration of justice into disrepute. In my view, the appeal founded upon the argument that the evidence of the appellant’s statements was wrongly admitted into evidence at trial should be dismissed. Jury Charge [68] At the hearing before us, the appellant abandoned the appeal from the judge’s refusal to charge the jury in relation to self-defence. He therefore does not suggest there was an honest but mistaken belief that force was necessary to prevent an assault or its repetition. He argues, rather, that the jury ought to have been given instruction on the effect of an honest but mistaken belief on the appellant’s part that Mr. Ball had consented to participation in a fight. He says the questions posed by the jury suggest jurors were having difficulty addressing the question of consent. [69] In my view, the appellant’s submission that the charge to the jury was deficient must be seen in light of the fact that Mr. Ball had no recollection of the events in question. There was no direct evidence that he did not consent to a fight, he simply had no recollection of doing so. The Crown was obliged to establish the lack of consent on the evidence of bystanders, the video record and the appellant’s own statements and testimony. The case hinged upon the jury’s assessment of whether, in all the circumstances, the appellant might have believed Mr. Ball to have consented to the application of force that resulted in his injury. That was the thrust of element 6 of the charge. The jury were expressly advised of their obligation to consider the appellant’s state of mind in the initial charge, and in response to the second question they were told: All right, so the sixth ingredient the Crown must prove beyond a reasonable doubt is that Mr. Nguyen knew that Mr. Ball did not consent to the assault by Mr. Nguyen. And I told you that proof that Mr. Nguyen knew that Mr. Ball did not consent to the assault could be established in one of three ways: by actual knowledge, by recklessness or by willful blindness to the fact that Mr. Ball did not consent to the assault. [70] The concepts of willful blindness and recklessness were further canvassed in detail. Nothing would have been added to that explanation by further instructing the jury as to the effect of an honest but mistaken belief on the appellant’s part that Mr. Ball had consented to the assault. [71] In my opinion, the charge to the jury and the answers to questions, read as a whole and in light of the submissions of counsel at trial, were correct and comprehensive. Applying the standard described in R. v. Brydon , [1995] 4 S.C.R. 253; R. v. Chahal , 2008 BCCA 529; and Lennox v. New Westminster (City) , 2011 BCCA 182, I cannot see any error justifying our intervention. [72] Those portions of the transcript relating to the jury charge to which I have referred suggest that defence counsel was content with the instructions given to the jury. While this alone is not determinative of the arguments now available to the appellant, it is worth bearing in mind the observations of Bastarache J. in R. v. Daley , 2007 SCC 53, that trial counsel are expected to assist the judge in instructing the jury, which responsibility includes identifying problems with the judge’s charge. A failure to object at trial “may be indicative of the seriousness of the alleged violation”: Daley at para. 58. Disposition [73] I am satisfied that the trial judge’s instructions to the jury, after input from Crown and defence counsel, were adequate in the circumstances and do not give rise to a reversible error. [74] I would dismiss the appeal. “The Honourable Mr. Justice Willcock” I agree: “The Honourable Chief Justice Bauman” I agree: “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Wiens, 2016 BCCA 34 Date: 20160126 Docket:  CA41140 Between: Regina Respondent And Keith Gregory Wiens Appellant Corrected Judgment:  The text of the judgment was corrected at paragraph 51 on March 3, 2016. Before: The Honourable Mr. Justice Frankel The Honourable Madam Justice D. Smith The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated July 23, 2013 ( R. v. Wiens, Penticton Docket 40090-K). Counsel for the Appellant: R.S. Fowler, Q.C. E. Purtzki Counsel for the Respondent: M.T. Ainslie, Q.C. T.A. Livingston Place and Date of Hearing: Kelowna, British Columbia October 6, 2015 Place and Date of Judgment: Vancouver, British Columbia January 26, 2016 Written Reasons by: The Honourable Mr. Justice Frankel Concurred in by: The Honourable Madam Justice D. Smith The Honourable Mr. Justice Savage Summary: Appeal by W., a retired member of the RCMP, from his conviction for second degree murder.  At trial, W. testified that he shot and killed his common law spouse in self-defence.  On appeal, W. argued evidence of his spouse’s peaceful disposition was improperly admitted at trial and, in the alternative, that the jury was improperly instructed with respect to the use of that evidence.  W. also argued that the trial judge applied the wrong test in ruling inadmissible expert evidence on police firearms training tendered by the defence.  Held: Appeal dismissed.  The peaceful disposition evidence was properly admitted.  The test is whether the disposition evidence is relevant and whether its probative value outweighs its prejudicial effect; it is not necessary for the disposition evidence to have “exceptional” probative value.  It was unnecessary for the trial judge to instruct the jury on peaceful-disposition evidence with the degree of detail W. suggested.  The expert evidence on firearms training was properly ruled inadmissible; the prejudicial effect of that evidence outweighed its limited probative value. Reasons for Judgment of the Honourable Mr. Justice Frankel: Introduction [1] Keith Gregory Wiens appeals his conviction on a charge of second degree murder following a trial in the Supreme Court of British Columbia before Mr. Justice Barrow sitting with a jury.  The victim was Lynn Kalmring, Mr. Wiens’s common law spouse.  She died as a result of a single shot from a pistol fired by Mr. Wiens, which struck her in the face.  The shooting occurred in the couple’s bedroom.  In convicting, the jury rejected Mr. Wiens’s evidence that he acted in self-defence. [2] Mr. Wiens contends that the trial judge erred in three respects, namely: (a)      admitting evidence of Ms. Kalmring’s “peaceful disposition”; (b)      inadequately instructing the jury with respect to that evidence; and (c)      refusing to allow him to call opinion evidence to the effect that when he shot Ms. Kalmring he was acting in a manner consistent with his training as a police officer.  (Mr. Wiens is a retired member of the Royal Canadian Mounted Police.) [3] For the reasons that follow, I would dismiss this appeal. Background [4] In August of 2011, Mr. Wiens and Ms. Kalmring were living in a home he had purchased in a gated retirement community in Penticton, British Columbia.  They had been in a relationship for about eight years.  Mr. Wiens was 57 years old, five feet ten inches tall, and weighed 200 pounds.  Ms. Kalmring was 55 years old, five feet six inches tall, and weighed about 150 pounds.  He was employed as a school bus driver; she was not then working. [5] The couple owned a home in Arizona that Mr. Wiens had purchased.  He placed the title to that home in both of their names. [6] At approximately 11:45 p.m. on August 15, 2011, Ms. Kalmring spoke to her sister, Shelley Pertelson on the telephone.  Ms. Kalmring was sobbing and told Ms. Pertelson she and Mr. Wiens had been arguing and that she had thrown $2,000 (U.S.) at him, along with a ring he had given her.  She said Mr. Wiens told her to get a job and had gone to bed.  Ms. Kalmring said she tried to find a motel room, but nothing was available.  Ms. Pertelson suggested Ms. Kalmring sleep in the spare bedroom.  Ms. Kalmring said she loved Mr. Wiens and did not want to leave. [7] Shortly after midnight on August 16, 2011, Mr. Wiens called 9-1-1 to report he had shot his wife two minutes before.  He told the 9-1-1 operator he was an ex-policeman and that what happened “is just a huge mistake” and that “something got out of hand here tonight”. [8] At around 12:30 a.m. the police arrived at the residence.  They found Ms. Kalmring’s body on the floor in the master bedroom.  She was lying on her back having been shot once in the face at close range, i.e., less than 30 inches. That shot came from a nine millimetre semi-automatic pistol belonging to Mr. Wiens.  The police located the pistol in a holster on the bed. [9] Ms. Kalmring’s left arm was extended at almost a 90 degree angle from her body.  There was a large knife in her left hand, pointing downwards.  At trial, the Crown’s position was that the knife had been planted, i.e., placed in Ms. Kalmring’s hand after she was shot.  The Crown called expert medical evidence to support that position.  Mr. Wiens called expert medical evidence to support his position that the knife had not been planted. [10] An examination of the residence by the police revealed: · The sheets on the bed in the master bedroom had been turned down on one side. · A bathrobe lying on the bed in the master bedroom had a large blood stain.  There was a beige hand towel on the bed. · There were sex toys and a bottle of lubricant on a bedside table in the master bedroom. · The sheets on the bed in the guest bedroom had been turned down. · Ms. Kalmring’s ring and about $2,000 (U.S.) were on an island in the kitchen together with handwritten documents which appeared to record payments Ms. Kalmring made to Mr. Wiens towards household expenses in January, February, March, April, and May of 2011. · A brown wooden box, in which Ms. Kalmring kept personal possessions, was near the door of the master bedroom. · A letter written by Mr. Wiens to Ms. Kalmring shortly after midnight on January 1, 2011, in which he states:  (a) he does not take kindly to being told “fuck you”; (b) is no longer prepared to pay all the expenses for a home they own in Arizona; (c) suggests they sell that home thereby giving her “a very nice profit for doing fuck all.  (financially speaking!)”; (d) “starting January, 2011 it will be a two way street regarding financial matters”; and (e) if she wants them to stay together and get married “we each start paying our way … as of today”.  [Emphasis in original.] [11] Ms. Kalmring’s daughter, Brandy Cummings, testified that at a family picnic about ten days before her mother was killed, Mr. Wiens complained to her that Ms. Kalmring was not working.  Using derogatory language, he stated that while he has a pension Ms. Kalmring has no money and needed to get back to work.  Ms. Cummings testified Mr. Wiens also told her he had lost money when the stock market crashed. [12] Over Mr. Wiens’s objection, the Crown called three former husbands of Ms. Kalmring to give evidence with respect to her peaceful disposition.  That evidence and the trial judge’s ruling permitting it to be called are discussed below. [13] Mr. Wiens gave evidence.  He began by relating the details of his service in the RCMP.  He was a member of that force for approximately 26 years, from June 1975 until January 2001, retiring as a corporal. [14] Mr. Wiens said he received basic training in the use of a revolver and a rifle during his initial six-month training period at the RCMP depot in Regina, Saskatchewan.  He graduated from the depot in January 1976.  In cross-examination, he said the following about the basic training he received: [S]o the way I was taught is, if you’re in a physical confrontation not including a weapon being used against you, you use self-defence techniques.  If somebody’s coming at you with a weapon, you shoot to kill, is how I was instructed, and this is 1975. [15] In the mid-1980s, Mr. Wiens became a member of the emergency response team (“ERT”).  He received specialized training in Ottawa and, on several occasions, at an RCMP training facility in Carleton Place, Ontario.  In Ottawa, Mr. Wiens received expert marksmanship rifle (i.e., sniper) training.  The training at Carleton Place dealt with hostage-taking situations.  Those training exercises took place in what he referred to as the “killing house”.  Trainees would enter a three-bedroom house and be confronted with situations requiring them to make instantaneous decisions with respect to whether to fire their weapons in close quarters. [16] Mr. Wiens said most of his ERT training involved firing a pistol similar to the one with which Ms. Kalmring was killed.  He purchased the pistol he used to shoot Ms. Kalmring in the mid-1980s, when he was stationed in Yellowknife, Northwest Territories.  One of the reasons he bought it was so his late wife, who passed away in 1997, could use it for protection.  He said that since acquiring that pistol he had always kept it at home loaded.  The last time he fired it was in the Northwest Territories on December 31, 1989, when he used it to kill some rabid coyotes.  He said that during the course of his duties as a police officer he never drew his service firearm other than to shoot an injured animal. [17] When asked by his counsel to explain the type of shooting he did at Carleton Place, Mr. Wiens stated: It was all what’s referred to as instinctive shooting which is very close range shooting, you don’t aim, you point and shoot in very rapid succession and the shooting that they taught us to do was two shots to the head. [18] In his examination-in-chief, Mr. Wiens related how he and Ms. Kalmring met and started dating in February 2006.  They began living together in June 2009.  In September 2010, he purchased a home in Penticton.  He also purchased a home in Arizona for their impending retirements, which he put in both their names.  He said he and Ms. Kalmring were generally happy and that there were new employment opportunities for both of them. [19] Mr. Wiens denied using the pejorative language attributed to him by Ms. Cummings, but agreed he had said something about Ms. Kalmring having to go back to work. [20] Mr. Wiens said that on the evening of August 15, 2011, he and Ms. Kalmring had been drinking at home.  They played a video game and had a bet of a sexual nature.  Ms. Kalmring won the bet and put some sex toys on his pillow in the master bedroom.  However, he did not want to have sex with her because he had a golf game the next morning; he put the sex toys on a bedside table.  She was very upset with him; they argued and she left the bedroom.  When she came back into the bedroom she was still upset and agitated.  He told her he wanted to go to sleep and asked her to sleep in the guest room.  She went to the guest room, but returned a few minutes later. [21] When Ms. Kalmring came back to the bedroom she was madder than before.  He told her to leave, which she did.  He then heard what he took to be her looking through a telephone book; he presumed she was looking for a motel.  He fell asleep. [22] He testified that he was awakened by Ms. Kalmring hitting him.  She was very mad and was screaming.  They argued and she left the bedroom.  He had never seen her act in this manner before.  As the bedroom door did not have a lock he took a wooden box in which Ms. Kalmring kept some items and placed it behind the closed door; he wanted to be alerted if she came back into the room. [23] Mr. Wiens said that within a minute Ms. Kalmring came back into the bedroom.  She was extremely upset and screamed at him.  He described her as having “snapped”.  Her eyes were “bugging out”, she was “purple”, and she spit on him.  She yelled, “I’ll f… die, I’m not f… leaving and I’m not f… living with my f… kids.  I’m f… not doing that.  I’ll f… die”.  He said she repeated “I’ll f… die” about six times.  In cross-examination, he said they stood nose-to-nose yelling at each other for one-and-one-half to two minutes.  He described it as the worst confrontation of his life. [24] Mr. Wiens said Ms. Kalmring left the bedroom and he heard her move down the hall towards the kitchen.  He felt fearful.  He closed the door and then took his pistol from a dresser drawer.  He removed the pistol from its holster, threw the holster on the bed, and racked the pistol’s magazine to load a bullet into the pistol’s chamber.  He did this, Because I feared Lynn.  She was not Lynn, she was crazy, and she had just assaulted me while I was sound asleep, and I was worried about what was coming next. [25] He said Ms. Kalmring came “flying through the door”, which he was unable to hold shut.  She was screaming and had a knife in her left hand.  She advanced towards him.  He backed away, hitting a bedpost.  She was two to three feet away from him and he believed she was going to strike him in the throat or heart.  Even as a police officer, he had never been in such a situation.  With his elbow towards his chest and the pistol at the height of his head, he fired a single shot at Ms. Kalmring.  Her knees buckled and she fell into a seated position and then backwards on to the floor. [26] In cross-examination, when asked whether he intended to kill Ms. Kalmring, Mr. Wiens stated: I can’t answer that.  I mean, I -- I know enough about weapons to say that when you point a weapon at somebody and pull a trigger that bad things are going to happen.  I mean, I did basically what I did, what I was trained to do, and it took one and a half seconds, and I did what I did because if I didn’t do it I would have died.  I mean, I felt my life was in danger when I saw a 15 inch butcher knife coming at my throat.  So did I intend to kill her?  I – I intended to protect my life. [27] The trial judge would not permit Mr. Wiens to call opinion evidence on how a police officer would be expected to react in the sort of confrontation Mr. Wiens described.  That proposed evidence and the judge’s ruling are discussed below. [28] Whether Mr. Wiens shot Ms. Kalmring in self-defence was the critical issue that the jury had to decide.  Mr. Wiens’s counsel submitted to the jury that on the whole of the evidence there could be no other conclusion.  Crown counsel asked the jury to reject Mr. Wiens’s evidence of the altercation and to find that he intentionally shot Ms. Kalmring following an argument over money, and then planted a knife in her hand to make it look like self-defence. Analysis Admissibility of the Peaceful-Disposition Evidence [29] A voir dire was held to determine whether the Crown would be permitted to call Ms. Kalmring’s former husbands to give evidence that she had a peaceful, non-violent, disposition; that evidence reached back to 1974.  It was not necessary for the former husbands to testify on the voir dire , as counsel agreed the admissibility question could be decided on the basis of statements the husbands had given to the police.  During submissions, Mr. Wiens’s counsel stated that the defence did not intend to attack Ms. Kalmring’s character by leading evidence she had acted aggressively on other occasions. [30] The statements of the former husbands contained the following: Robin Kuraoka:  He and Ms. Kalmring were married from 1973 until 1984.  When they married she was 17 and he was 23.  She was never violent towards him.  He never saw Ms. Kalmring being violent towards anyone, even when she had been drinking.  She would get affectionate when she had been drinking. Elmer Leroy Marchant:  He and Ms. Kalmring were married from 1985 until 1993.  She was not violent, even when she had been drinking.  He never saw her hit anyone.  Ms. Kalmring was bad with finances and money; she spent a lot of money. Blaine Richard Kalmring:  He and Ms. Kalmring were married for about six years.  When they argued it was basically over finances.  She never showed any physical aggression towards him.  He never saw her be violent towards anyone.  She did not have a drinking problem. [31] In ruling the evidence admissible, the trial judge said this: [32]      I am satisfied the evidence is relevant in this case on the basis that, as the authors of the [ Report of the Federal Provincial Task Force on Uniform Rules of Evidence , (Toronto:  Carswell, 1982)] noted, self-defence has been raised and by necessary implication the issue of whether the deceased was the aggressor arises.  Evidence of the disposition of the victim, whether towards violence or otherwise, is relevant to the resolution of that issue. [33]      Next, I find that the evidence in this case has significant probative value.  I recognize that it spans a period that begins some 40 years before the events in question and ends some 10 years before the events.  Its probative force lies in part in the duration of the aspect of the deceased’s character to which it relates.  Evidence of a disposition or inclination based on an isolated event years ago will likely be of little value.  Evidence of a disposition over the course of a few years many years ago is also likely of little value.  Evidence of a persistent trait over the course of most of the adult life of the deceased may, however, have significant probative value.  Evidence of that trait in the context of intimate relationships, all of which ended in divorce, is the more probative, given the circumstances in the matter at bar. [41]      The greater the tendency of the evidence to evoke sympathy, the less likely it is that any prophylactic instruction given to constrain that risk will be effective.  The tendency of the evidence to give rise to this kind of prejudice in this case is, in my view, reasonably low.  Although the three former spouses may have some lingering attachment to the deceased, it is nothing like the attachment and hence the emotional quality that accompanies a parent giving evidence about his or her deceased child. [42]      Related to this concept is the risk that the jury might “conclude that the respondent was a repugnant individual deserving of punishment and a conviction would, as a matter of rough equivalence, give him his just deserts”: from [ R. v. Handy , 2002 SCC 56, [2002] 2 S.C.R. 908] at paragraph 25.  Although this comment was made in the context of evidence about an accused person as opposed to a complainant or victim, the risk identified may operate not because the jury is improperly prejudiced against the accused, but rather because they are moved to sympathy towards the victim.  It seems to me unlikely that a properly-instructed jury would fall into such an error in this case.  The evidence itself does not give rise to anything approaching a “rough equivalency” or the equivalent of a rough equivalency in this context, and thus the tendency to that end is relatively low. [43]      On balance, I am satisfied that the probative value of this evidence significantly outweighs any potential it has to work prejudice, and in the result I am satisfied it is admissible. [32] The testimony of the former husbands before the jury was consistent with their statements, save for the following: (a)      Mr. Kuraoka described Ms. Kalmring as a “loving, kind, gentle person”; they would argue about “day-to-day things” like grocery money, or relationship issues.  They married in 1974 not 1973. (b)      Mr. Marchant said he and Ms. Kalmring would argue about money once in a while. (c)      Mr. Kalmring stated he and Ms. Kalmring were married from 1993 until 2001. Their testimony with respect to Ms. Kalmring having a peaceful disposition was not challenged in cross-examination. [33] Mr. Wiens accepts that when self-defence is raised in a murder case, the Crown can tender evidence of the victim’s peaceful disposition.  However, he says where an accused is not suggesting the victim had a violent disposition or character, evidence of peaceful disposition can be admitted only if it has “significant” or “exceptional” probative value.  He says that in the present case the trial judge erred in admitting the evidence because its probative value was tenuous at best and outweighed by its prejudicial effect, as it could garner sympathy from the jury.  In advancing his position, Mr. Wiens submits greater care and caution must be exercised before admitting peaceful-disposition evidence in what he describes as a “simple” self-defence case, i.e., one in which the accused is not alleging that the victim had a violent disposition.  I do not agree. [34] It is settled that it is open to the Crown to lead evidence of a deceased victim’s peaceful disposition when that evidence is relevant to the issue of whether the accused acted in self-defence, e.g., whether the deceased was the aggressor.  The Crown’s ability to lead such evidence is not contingent upon the accused attacking the deceased’s character.  However, the probative value of such evidence must outweigh its prejudicial effect: R. v. Dejong (1998), 125 C.C.C. (3d) 302 at paras. 49, 77, 79 (B.C.C.A); R. v. Diu (2000), 144 C.C.C. (3d) 481 at paras. 49-51 (Ont. C.A.); R. v. Krasniqi , 2012 ONCA 561 at paras. 61-63, 291 C.C.C. (3d) 236. [35] I reject Mr. Wiens’s contention that evidence of peaceful disposition must have “significant” or “exceptional” probative value to be admissible; a proposition for which he cites no direct authority.  The decision whether to admit evidence of peaceful disposition requires a trial judge to determine the relevancy of such evidence to the issues raised and, if the evidence is relevant, to assess whether its probative value outweighs its prejudicial effect.  It is not a precondition to the making of that assessment that evidence which is relevant also be “significantly” or “exceptionally” probative.  Rather, the cogency of the evidence is a factor to be weighed in making that assessment. [36] The concept of relevance was discussed in R. v. Chahley (1992), 72 C.C.C. (3d) 193 (B.C.C.A.).  In that case, Mr. Justice Wood said (at 204): Evidence is relevant if it is probative of either a fact in issue or a fact which itself is probative of a fact in issue.  In Morris v. The Queen , [1983] 2 S.C.R. 190, the Supreme Court of Canada rejected Wigmore’s concept of “legal relevancy”, which requires something more than “merely probative” value as a condition of admissibility.  In his dissenting judgment, with which other members of the court concurred on this point, Lamer, J. (as he then was) confirmed Thayer’s analysis which applies principles of logic and common sense to determine relevance, and which, subject to the exclusionary rules, admits all evidence logically probative of some matter required to be proved, reserving for the court only a narrowly defined discretion to exclude. Evidence which tends to make the existence of a fact in issue either more or less probable is logically probative of that fact: Regina v. P.(R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.), Cross on Evidence (7th ed.), p. 51. In R. v. Watson (1996), 108 C.C.C. (3d) 310 at 323 (Ont. C.A.), Mr. Justice Doherty stated: Relevance as explained in these authorities requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A.”  If it does then “Fact A” is relevant to “Fact B”.  As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible. [37] In the case at bar, evidence that in three previous relationships Ms. Kalmring never displayed violent tendencies towards either her partners or third parties was relevant to one of the principal issues the jury had to decide, namely, whether Ms. Kalmring attacked Mr. Wiens with a knife.  Put otherwise, evidence of Ms. Kalmring’s lack of propensity for violence over a 27-year period was probative of whether on the night in question she had been the aggressor.  That the last of those relationships ended about ten years before the events in issue was, in the context of this case, a matter going to the weight to be given to the evidence, not its admissibility.  Although the Crown was not aware of precisely what defence evidence would be called, it was apparent from the outset of the trial that Mr. Wiens would be asserting Ms. Kalmring came at him with a knife and that he shot her in self-defence. [38] Mr. Wiens further submits that while the peaceful disposition evidence was of minimal probative value, its prejudicial effect was significant as it was likely to garner sympathy from the jury.  Once again, I disagree.  For the reasons just stated, I am of the view that the evidence was more than minimally probative. [39] With respect to prejudice arising from sympathy, as the trial judge noted in para. 41 of his ruling, this was far less a concern than it would have been had the witnesses been the parents of the victim or, I would add, a person with a recent and close personal relationship with the victim.  It should be noted that Mr. Kuraoka’s statement during his examination-in-chief that Ms. Kalmring was a “loving, kind, gentle person” was not in his statement and appears to have been an unprompted and unanticipated comment.  It should also be noted that immediately after Ms. Kalmring’s daughter testified and shortly before Mr. Kuraoka and the other former husbands testified, the judge instructed the jurors, as he had prior to any evidence being called, that they should not be influenced by sympathy for or prejudice against anyone involved in the case. [40] The task of determining whether the probative value of evidence outweighs its prejudicial effects is an exercise of judicial discretion entitled to appellate deference: R. v. Oseguera , 2014 BCCA 352 at para. 19, 315 C.C.C. (3d) 542; R. v. McCotter , 2012 BCCA 54 at para. 50, 287 C.C.C. (3d) 423.  In this case, Mr. Wiens has not been shown that in exercising that discretion the trial judge made any error in principle or that his decision to admit the evidence was plainly unreasonable. [41] I would not accede to this ground of appeal. Jury Charge with respect to the Peaceful-Disposition Evidence [42] In his closing submissions to the jury, Mr. Wiens’s counsel accepted Ms. Kalmring had been a person who normally had a peaceful disposition.  He asked the jury to find that on the night in question a confluence of circumstances—what he described as a “perfect storm”— caused her to act completely out of character.  In advancing that position, counsel stated, in part: Through Lynn’s life she had experienced many difficulties with a number of failed relationships.  In fact we’ve heard from a number of these relationships.  This is not to disrespect her in any way, but as is true for all of us, our current makeup is a function of our past experience. We heard evidence of her peaceful disposition.  We don’t dispute this, nor did Keith when you heard him on the witness stand. But the factors that led to the perfect storm that I will talk about, started long before August 16th, 2011, ladies and gentlemen.  It started with her failed relationships.  Past relationships can scar you forever.  I can certainly identify with this, and I’m sure many of you can. In the weeks leading up to August 19th [ sic ], 2011, you heard the evidence about a number of things that were on the mind of the deceased.  Any single one of us -- any single one of which would cause us all hardship.  There were multiple things on her mind.  Her son had been charged with a serious sexual assault in Grande Prairie.  Any mother would be mortified by that.  She talked about her daughter Brandy and the abortion of her twins.  She talked about her growing older and the fact she didn’t like being 55 years of age.  There was her inability to go back to work because of the enrolment at the place that she was instructing at, and the fact that Keith was going to leave her -- perhaps leave her side to journey to Grande Prairie.  Was Keith going to leave her like everyone else had in her life?  We’ll never know. Ladies and gentlemen, all of these factors, her past relationships, everything that was on her mind at the time leading up to August 16th, 2011, led to the perfect storm. Keith described his wife during these confrontations.  He described the intensity of these -- of these confrontations, and he was quite fair when he said, “It wasn't just her, I was getting angry too.  She kept coming into the room, she kept making these allegations.  She kept” -- and as he said, she started to get crazy.  Now, ladies and gentlemen, the only evidence you’ve heard about what happened that night is from Keith.  There is nothing else in the evidence before you that can refute that.  Nothing. [Emphasis added.] [43] Crown counsel, in asking the jury to reject Mr. Wiens’s version of what happened relied on the peaceful-disposition evidence.  In part, counsel stated: The point is, I suggest, how likely is it that a woman never known to be violent, and openly expressive of a dislike of weapons, would arm herself with a knife for an offensive purpose following a fight?  And why would she advance with that knife towards someone who has a gun in their hand?  It simply does not make sense. These men established that for the whole of Lynn Kalmring’s adult life in relationships of some duration she was never violent.  She got over fights quickly, she didn’t stew over things.  She was a person of peaceable disposition whether sober or even after she had been drinking alcohol. Now, it might be suggested that people change, and to some extent that’s true, but I suggest to you, ladies and gentlemen, that people's character, their essential disposition, the core of who they are doesn’t change over time.  So the person described to you by Keith Wiens on the fatal evening bears no relationship to the Lynn Kalmring that was described by others.  The description of her spitting, eyes bulging out, turning purple is just not true. [44] Mr. Wiens’s objection to the jury charge relates to para. 117 of the written version of the charge provided to the jury.  That paragraph appears in the following section of the charge: a) Has the Crown proved beyond a reasonable doubt that Ms. Kalmring did not assault Mr. Wiens? [114]    The question is whether Ms. Kalmring assaulted Mr. Wiens and, if she did, whether Mr. Wiens killed Ms. Kalmring in repelling that assault. [115]    Assault includes the application of force or the threat to apply force.  To put this another way, it is not necessary that a person apply force to another to constitute an assault; a threat to apply force made by a person who has the present ability to carry out the threat is sufficient.  You should consider all the evidence when determining whether Ms. Kalmring applied force to Mr. Wiens or threatened to apply force to Mr. Wiens in circumstances in which she had the present ability to carry out that threat. [116]    The evidence in relation to this issue comes from a number of sources.  There is the evidence from Ms. Kalmring’s former spouses.  You will recall that each of them testified that in their experience with her and whether in the course of their experience with her they saw her resort to violence.  They all said that from time to time they argued with Ms. Kalmring during the course of their relationship with her and they all said that finances was a subject that they argued about, they all said that she was never violent towards them or anyone else either when the [ sic ] argued or otherwise.  They said that alcohol did not seem to have a negative effect on her; both Mr. Kuraoka and Mr. Kalmring said that when she drank she tended to become happy.  Their collective experience with Ms. Kalmring was from about 1974 when she married Mr. Kuraoka to 2001 when she separated from Mr. Kalmring.  Thus their most recent experience with Ms. Kalmring was 10 years before August 2011. [117]    The evidence of Ms. Kalmring’s disposition may be used by you in deciding whether the Crown has proved beyond a reasonable doubt that she did not assault Mr. Wiens.  This evidence and other evidence in this case, may evoke feelings of sympathy for Ms. Kalmring.  As I have instructed you already, your decision is not to be based on sympathy for or prejudice against anyone involved in this case. [Emphasis added.] [45] The trial judge went on to summarize the other evidence in the case, at the conclusion of which he stated: [143]    You should consider Mr. Wiens’s evidence on this issue in the context of all of the evidence.  If, in the context of all the evidence, you believe Mr. Wiens’s evidence on this issue then you will conclude that the Crown has not disproven this element of the defence of self-defence beyond a reasonable doubt.  Even if you do not believe Mr. Wiens's evidence that Ms. Kalmring assaulted him, if his evidence leaves you in a state of reasonable doubt about whether she did, then you will conclude that the Crown has not disproven this aspect of the defence of self-defence beyond a reasonable doubt.  Finally, even if you do not believe Mr. Wiens’s evidence on this point and even if his evidence does not leave you in a state of reasonable doubt about this aspect of the defence of self-defence, you must still ask yourself whether, on all the other evidence, you are satisfied beyond a reasonable doubt that Ms. Kalmring did not assault Mr. Wiens. [144]    If the Crown has proved beyond a reasonable doubt that Ms. Kalmring did not assault Mr. Wiens then the defence of self-defence fails. [46] In the course of summarizing the Crown’s position, the trial judge said: [200]    Finally, the Crown argues that from this evidence you should conclude that Ms. Kalmring was not a violent person, either when drinking or not.  Support for that proposition comes from the evidence of her former spouses.  In addition the Crown says that Ms. Kalmring was not angry on the night she was killed.  She was upset to be sure but, at least according to her sister, she was upset in the sense that her heart was hurting.  Further, the Crown says that from all of this evidence you can and should conclude that Ms. Kalmring disliked weapons of all kinds but guns in particular. [47] In the course of summarizing Mr. Wiens’s position, the judge said: [209]    As I understand the submissions of Mr. McKay on behalf of Mr. Wiens they are these.  First, he argues there is simply no reason why Mr. Wiens would shoot Ms. Kalmring other than to defend himself in precisely the manner he told you.  The evidence supports the conclusion that theirs was a happy relationship.  Mr. McKay asks rhetorically if money issues were a concern why it is that Ms. Pertelson seemed unaware of that?  Even if money was a concern it does not begin to explain why Mr. Wiens would deliberately shoot his spouse.  On the other hand, there are reasons for why Ms. Kalmring behaved in the manner Mr. Wiens described.  The reasons can be found in her background, a background that came to the fore with the prospect of Mr. Wiens travelling to Grand Prairie to work.  Mr. McKay argues that Ms. Kalmring was fearful of losing her relationship with Mr. Wiens.  The prospect of returning to live with one of her children, an alternative which she saw as the only realistic short term outcome, was completely unpalatable to her.  She did not want to start over in another relationship at her age. [210]    These concerns were percolating in her life.   They had a significance informed by her life experiences.  She had been in past relationships some of which ended sadly from her point of view.  On top of that she had other issues.  One related to her work and the fact that the course she hoped to teach was not going to be offered and another related to her son’s legal situation.  This all came to the fore on August 15 when, after the video game, Mr. Wiens wanted to go to bed rather than pay the bet, a payment which involved sexual relations with Ms. Kalmring.  This is what caused Ms. Kalmring to react in the manner that Mr. Wiens said she did. [48] Before charging the jury the trial judge provided counsel with a draft of his proposed instructions for discussion.  As those discussions proceeded, the draft went through a number of revisions.  The initial draft did not contain the paragraph which is now impugned.  That paragraph appeared for the first time in the final draft given to counsel.  The trial judge’s decision to include it was not based on any submissions made to him.  Counsel for Mr. Wiens (who are not counsel on this appeal) had an opportunity to review the final draft before the jury was instructed and did not object to this paragraph.  Further, in the post-charge discussions, Mr. Wiens’s counsel did not object to it. [49] Mr. Wiens now contends the charge was deficient.  He says the trial judge should have instructed the jury to exercise caution in relying on the peaceful-disposition evidence because people do not always act in a manner consistent with their past behaviour; in other words, people sometimes act out of character.  In addition, Mr. Wiens says the jury should have been told to consider the temporal proximity of the evidence of peaceful disposition to the events in issue and any differences between the nature of Ms. Kalmring’s past circumstances and her present situation when assessing the weight to be given the peaceful-disposition evidence.  He submits that in the absence of such an instruction there is a significant risk that the jury reached its verdict without scrutinizing the peaceful-disposition evidence. [50] In discussing the jury instructions and the peaceful-disposition evidence, Mr. Wiens cites R. v. Handy , 2002 SCC 56 at paras. 31, 35, 39, [2002] 2 S.C.R. 908, and R. v. Last , 2009 SCC 45 at para. 40, [2009] 3 S.C.R. 146, cases which discuss the dangers associated with propensity reasoning in the context of evidence with respect to the character of the accused.  He says since it is dangerous to base a finding of guilt on the character of an accused it is equally dangerous to base a finding of guilt on the disposition of a victim. [51] In considering Mr. Wiens’s objection to the jury charge it is important to keep in mind, as discussed in R. v. Jacquard , [1997] 1 S.C.R. 314 at para. 32, that an appellate court must take a “functional approach” in reviewing a jury charge.  Further, as stated in Jacquard at para. 38, “ defence counsel’s failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection.”  See also: R. v. Rodgerson , 2015 SCC 38 at para. 50, [2015] 2 S.C.R. 760; R. v. Daley , 2007 SCC 53 at para. 58, [2007] 3 S.C.R. 523. [52] More recently in R. v. Alexander , 2015 BCCA 484, Madam Justice Stromberg-Stein, succinctly described the approach to be taken in reviewing a jury charge: [110]    An appellate court, when reviewing a jury charge, must consider the alleged error in the context of the charge and the trial as a whole.  A trial judge is allowed flexibility in instructing the jury.  The precise words used in the jury charge are a matter of discretion for the trial judge and will depend on the circumstances of the case. It is the overall effect of the instructions that matters: R. v. Araya , 2015 SCC 11 at para. 39. [111]    An accused is entitled to a properly instructed jury, not a perfectly instructed one.  If perfection were the standard, no jury charge would pass appellate review: R. v. Jacquard , [1997] 1 S.C.R. 314 at paras. 1-2. [112]    It is the trial judge’s obligation to properly instruct the jury; however, it is expected that counsel will assist the trial judge and identify aspects that may be problematic in the charge.  A failure to object to a jury charge is not determinative; however, trial counsel’s position at trial is an important factor to consider when evaluating complaints raised on appeal: Jacquard at paras. 35-38; R. v. Purchase , 2015 BCCA 211 at paras. 3-4. Also apposite is the judgment of Mr. Justice Doherty in R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.): [27]      In Jacquard , Lamer C.J.C. stressed that a functional approach must be taken when assessing the adequacy of jury instructions.  I take this to mean that instructions must be tested against their ability to fulfil the purposes for which they are given and not by reference to whether any particular approach or formula has been used.  By the end of the instructions, whatever approach is used, the jury must understand: •        the factual issues which had to be resolved; •        the law to be applied to those issues and the evidence; •        the positions of the parties; and •        the evidence relevant to the positions taken by the parties on the various issues. [53] In my view, having regard to the submissions of counsel and the charge as a whole, there was no need for the jury to be instructed to exercise special caution in considering the peaceful-disposition evidence.  Mr. Wiens did not take issue with the fact that ordinarily Ms. Kalmring was a non-violent person.  His defence was founded on her having acted completely out of character on the night in question.  Based on his counsel’s closing submissions and the summary of those submissions provided by the trial judge, the jurors would have been aware of Mr. Wiens’s position.  More particularly, they would have been aware that to reject self-defence they had to be satisfied beyond a reasonable doubt, on all the evidence, that Ms. Kalmring had not acted in the manner Mr. Wiens described.  The unchallenged evidence of her peaceful disposition was just one of the pieces of evidence the jurors had to consider in making that determination.  I am, accordingly, unable to find that Mr. Wiens was prejudiced by the trial judge’s failure to instruct the jury to exercise special caution in considering the peaceful-disposition evidence. [54] I would not accede to this ground. Admissibility of Expert Evidence [55] Mr. Wiens sought to call Murray Charlton to give opinion evidence.  Mr. Charlton had been a member of the RCMP from 1964 to 1977.  In the 1970s he served as a firearms instructor at the RCMP depot in Regina, Saskatchewan.  Since leaving the RCMP he has been involved in training peace officers in the use of firearms.  Part of the training he administers involves placing trainees in stressful situations.  Mr. Charlton had not trained RCMP ERT members in the handling of firearms, nor had he visited or participated in training at the RCMP facility in Carleton Place, Ontario.  He did not interview, test, or otherwise assess Mr. Wiens. [56] Mr. Wiens sought to place before the jury Mr. Charlton’s opinion in response to the following questions: 1.       Was Mr. Wiens’s response to the alleged knife attack reasonable and expected considering his background? 2.       How would Mr. Wiens’s past training have affected his reaction? 3.       What is “muscle memory” in this context? 4.       What is significant about the fact of one shot being fired? 5.       In terms of self-defence, was Mr. Wiens’s response proportionate? [57] A voir dire was held to determine the admissibility of Mr. Charlton’s evidence.  Mr. Charlton testified on the voir dire and a written report prepared by him was filed as a voir dire exhibit.  The opinions expressed in that report are based on a summary of the facts that is consistent with Mr. Wiens’s description of the events on the night in question.  The report is silent with respect to Mr. Charlton’s knowledge of the firearms training Mr. Wiens received. [58] The trial judge would not permit Mr. Charlton to express an opinion on any of the five questions.  On appeal, Mr. Wiens contends the judge erred in refusing to permit Mr. Charlton to opine on question 4 and, to the extent it is related, question 2.  He does not challenge the judge’s refusal with respect to questions 1, 3, and 5. [59] As set out in Mr. Charlton’s written report, if permitted to testify before the jury, he would have answered Questions 2 and 4 as follows: Question 2: With his past training, it would be more than reasonable for him to pull the firearm close to his body before discharging it.  This would have been part of his training for what is call [ sic ] “Close Quarter Drills.”  Extending ones [ sic ] firearm out at arm’s length when the threat is within 30 inches is not practical with the possibility of your duty sidearm being pushed aside or grabbed is too real. Question 4: With respect to one shot being fired this is not unusual in that with training, officers at [ sic ] taught to use deadly force to prevent grievous bodily harm and once any threat is removed or neutralized, there is no more need to continue firing. [60] In his ruling, which is indexed as 2013 BCSC 1579, the trial judge considered the four criteria set out in R. v. Mohan , [1994] 2 S.C.R. 9 for determining the admissibility of opinion evidence, namely:  (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. [61] The trial judge held the answers to questions 2 and 4 were inadmissible for four reasons.  The first was that those answers were only marginally relevant.  In reaching this conclusion, the judge began by noting that the events in issue occurred years after Mr. Wiens retired from the RCMP.  He also noted that although Mr. Charlton was a highly qualified firearms instructor, he had no knowledge of the ERT firearms training Mr. Wiens received.  The judge then stated: [ 23]      Mr. Wiens did not testify about whether he was trained to fire a single shot or fire multiple shots when faced with a deadly threat.  He merely testified that he was taught to shoot to kill.  Mr. Charlton testified on the voir dire about what constitutes an acceptable “course of fire”.  He said that has changed or evolved over time.  “Course of fire” involves a number of shots that peace officers are trained to discharge and where they are trained to hit their targets.  Initially, they were trained to empty their weapons into the torso of the threat.  Next, they were taught to fire once at the torso, once at the head, and once again at the torso.  Mr. Wiens did not testify which of these approaches he was taught.  Thus, in a general sense, Mr. Charlton’s opinion about the significance of Mr. Wiens’ decision to fire a single shot at his spouse is of some relevance, but not great relevance. [24] In [ R. v. Mohan , [1994] 2 S.C.R. 9] , Sopinka [J.] pointed out that subsumed within the notion of relevance as a criterion for the admission of expert opinion evidence is the notion of the cost of the admission of such evidence to the trial process.  In that respect, the criteria of relevance involves an assessment of the probative value of the evidence and its potentially prejudicial effect.  While I accept that Mr. Charlton’s evidence has some relevance, its probative value is not high for the reasons indicated.  His evidence has the potential to operate prejudicially.  That is so, in part, because of his impressive credentials.  Those credentials do not necessarily translate to the circumstances of this case.  This is the second overarching objection that the Crown raises.  As Mr. Charlton pointed out, the training he administered and with which he is familiar is training used by police officers in the course of their duties as police officers.  He pointed out that the training is administered to and expected to be utilized by peace officers who are on duty and sober.  Mr. Wiens was neither.  He was 12 years post-retirement and was not sober at the time of the events in question.  He testified that he did not think he could operate a vehicle legally given the amount of alcohol he had consumed.  These features, that is, the consumption of alcohol, the fact that Mr. Wiens was not employed as a police officer at the time in question, the fact that he was some 11 or 12 years into his retirement, and the fact that there is no evidence as to the training he received in terms of “course of fire” all serve to diminish the probative value of the evidence.  The prejudicial effect lies in a combination of the impressive credentials of the witness and the substance of his opinion which must necessarily be advanced from the perspective of an individual employed as a peace officer and sober.  These two things in combination serve to tip the balance in favour of exclusion. [25]      A further consideration in relation to question 4 involves an assessment of what the opinion is relevant to.  It is not clear to me whether the opinion is offered to account for the fact that only one shot was fired, and yet one might expect that faced with a homicidal attack, someone acting in self-defence would fire repeatedly.  If that is the basis upon which the evidence is proffered, it has limited value and would not assist the trier of fact.  I say that because, on the evidence, the wound that Ms. Kalmring sustained rendered her instantly unconscious and killed her almost instantly.  She would have dropped to the floor more or less immediately.  That would have been apparent to anyone, including Mr. Wiens given his proximity to her and where he knew the bullet had struck her.  Whether his training caused him to fire only a single shot is something he did not allude to in his evidence. It seems to me that Mr. Charlton’s opinion on this point would be of limited assistance at best. [28]      The proffered evidence from Mr. Charlton is evidence which, in my view, should attract a strict application of the relevance and necessity criterion.  As to the former, I find the evidence is not particularly probative. I note that relevance in this context means something more than merely helpful.  As to the latter, it seems to me that whether a particular response is proportionate in the context of the fact situation presented by this case is a matter within the knowledge of the average juror.  In fact, it is a matter which jurors are well suited to assess based on their life experiences and the application of their common sense.  Finally, there is some risk that given Mr. Charlton's impressive qualifications, his opinion would be afforded more weight than it warrants in these circumstances. [62] In deciding whether to admit opinion evidence, trial judges exercise a gatekeeper function.  As those judges are in the best position to make such determinations, their decisions are entitled to appellate deference.  Apt in that regard is the following from the judgment of Mr. Justice Mainella in R. v. Pearce , 2014 MBCA 70, 318 C.C.C. (3d) 372, recently cited with approval by this Court in R. v. Orr , 2015 BCCA 88 at para. 65, 18 C.R. (7th) 158: [74]      Appellate deference will be afforded to determinations as to the admissibility of expert opinion evidence.  The balancing of its potential probative value, reliability, significance to the trial, necessity and its potential prejudicial effect to the trial process, if admitted, in the context of the particular case “does not involve the application of bright line rules, but instead requires an exercise of judicial discretion” [( R. v. Abbey , 2009 ONCA 624, 246 C.C.C. (3d) 301] at para. 79).  Therefore, absent an error in law, a misapprehension of evidence, a failure to consider relevant evidence or abdication by the trial judge of his or her gatekeeper function, an appellate court should decline to interfere with a trial judge's admissibility decision ([ R. v. K.(A.) (1999), 45 O.R. (3d) 641 (C.A.)] at para. 93; [ R. v. D.D. , 2000 SCC 43, [2000] 2 S.C.R. 275] at paras. 12-13, 70; [ R. v. J.-L.J. , 2000 SCC 51, [2000] 2 S.C.R. 600] at para. 61; and R. v. Woodard (J.) , 2009 MBCA 42 at para. 14, 240 Man. R. (2d) 24). [63] In the present case, Mr. Wiens submits that the trial judge erred in law because he applied the wrong test in considering whether the probative value of Mr. Charlton’s evidence was outweighed by its prejudicial effects.  He says that because Mr. Charlton was called as a defence witness, the judge was required to consider whether the prejudicial effect of his evidence substantially outweighed its probative value.  In support of this argument, Mr. Wiens cites R. v. Seaboyer , [1991] 2 S.C.R. 577 at 621; R. v. Grant, 2015 SCC 9 at para. 44, [2015] 1 S.C.R. 475; R. v. Bell (1997), 115 C.C.C. (3d) 107 at para. 28 (N.W.T.C.A.); R. v. Doodnaught , 2013 ONSC 4534 at paras. 30-33; and R. v. Al-Rassi , 2013 NSSC 211 at para. 24, 331 N.S.R. (2d) 328.  See also: R. v. M.(B.) (1998), 130 C.C.C. (3d) 353 at paras. 88-89 (Ont. C.A.). [64] In light of the record in this case, it is unnecessary to decide whether the test for the admission of opinion evidence at the behest of an accused is different from the test that applies when such evidence is sought to be tendered by the Crown. [65] The first difficulty with Mr. Wiens’s argument is that the test he says the trial judge should have applied is not the test he advanced at trial.  At trial he relied on Mohan , in which Mr. Justice Sopinka, in discussing the relevance criterion, stated (at 21) that, “Evidence that is otherwise logically relevant may be excluded on [the cost benefit analysis] basis, if its probative value is overborne by its prejudicial effect”.  At no point did Mr. Wiens suggest to the trial judge that a different standard applied when the defence seeks to tender opinion evidence.  Of note, is that Mohan is a case in which the Supreme Court of Canada affirmed a trial judge’s decision to exclude the evidence of a defence expert. [66] The second difficulty with Mr. Wiens’s argument is that it is apparent from the trial judge’s ruling that had he applied the test now being propounded, he would have reached the same conclusion.  The judge found Mr. Charlton’s opinion had some relevance but that it was of limited probative value.  However, the judge found numerous factors caused the prejudicial effect of Mr. Charlton’s opinion evidence to outweigh its probative value including: (a) Mr. Wiens not having testified he fired a single shot because he had been trained to do so; (b) Mr. Charlton’s limited knowledge of the training Mr. Wiens received; and (c) the events in issue did not involve a sober police officer acting in the course of his or her duties.  In addition, the trial judge found Mr. Charlton’s opinion with respect to only one shot being fired would not be of assistance to the jury because it would have been apparent to Mr. Wiens as soon as he fired that single shot, that Ms. Kalmring had been killed. [67] In this case, the trial judge exercised his gatekeeper function having regard to the facts of the case before him.  He was in the best position to determine whether the jury would be able to reach a proper verdict in the absence of Mr. Charlton’s opinion.  While another judge might have exercised his or her discretion differently, I am unable to say that in making what amounted to a judgment call, the trial judge committed a reversible error. [68] I would not accede to this ground. Disposition [69] I would dismiss this appeal. “The Honourable Mr. Justice Frankel” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Jacobs v. Yehia 2016 BCCA 38 Date: 20160127 Docket: CA41892 Between: Paul Jacobs, 657947 B.C. Ltd. and Columbia Cottage Ltd. Respondents (Plaintiffs) And Sam Yehia, The Cambie Malone’s Corporation, Cambie Holdings (Vancouver) Corp., 494989 B.C. Ltd., Cambie Holdings (Nanaimo) Corp., 0828508 B.C. Ltd., Esquimalt Holdings Corp., and 0790012 B.C. Ltd. Appellants (Defendants) Before: The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Frankel The Honourable Mr. Justice Fitch On appeal from:  Orders of the Supreme Court of British Columbia, dated May 12, 2014 ( Jacobs v. Yehia , 2014 BCSC 845); dated February 24, 2015 ( Jacobs v. Yehia , 2015 BCSC 267); and dated February 25, 2015 ( Jacobs v. Yehia , 2015 BCSC 282) (Vancouver Registry 106849). Counsel for the Appellants: T.D. Goepel and M.B. Stainsby Counsel for the Respondents: J.D. Vilvang, Q.C. Place and Date of Hearing: Vancouver, British Columbia October 29, 2015 Place and Date of Judgment: Vancouver, British Columbia January 27, 2016 Written Reasons by: The Honourable Mr. Justice Chiasson Concurred in by: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Fitch Summary: Through a private company, in November 2002 Mr. Jacobs loaned money to Mr. Yehia.  The parties anticipated that the loan would be converted into equity in companies owned by Mr. Yehia, but they were unable to agree on the basis for valuing the equity contribution and other terms of the conversion.  The loans bore interest at 12% which Mr. Yehia paid until September 2003. He paid no interest subsequently.  In February 2005, the parties entered into two agreements.  One addressed Mr. Jacobs’ participation in Mr. Yehia’s companies; the other dealt with the loan and stated that Mr. Yehia was not liable for it.  In October 2009, the parties entered two additional agreements.  The 2002 loan agreement was “renewed”.  Mr. Yehia terminated the relationship between the parties and repaid the loan in July 2010.  The trial judge held that the February 2005 agreements failed insofar as they dealt with Mr. Jacobs’ acquiring an interest in the companies, but that they extinguished the loan obligation.  She concluded that the October 2009 agreements renewed Mr. Yehia’s liability for the loan and interest.  She held that no interest was payable between September 2002 and February 2005 by reason of the February 2005 agreements, but that interest was payable thereafter by reason of the October 2009 agreements.  She found that Mr. Yehia was unjustly enriched by having use of the loan proceeds with no juristic reason for doing so.  Held: appeal allowed.  The February 2005 agreements were unenforceable.  Mr. Yehia’s obligation to pay interest was not extinguished.  There was no unjust enrichment because Mr. Yehia was entitled contractually to use the loan proceeds with a concomitant contractual obligation to pay interest.  Other subsidiary issues also are addressed. Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] This appeal considers the implications of a course of dealings between parties on their contractual rights and an award of damages for unjust enrichment arising out of the course of dealings. Background [2] The corporate appellants are owned and controlled by the personal appellant, Mr. Yehia.  They are known as the “Cambie Malone Group”, through which he operated a number of restaurants and bar facilities.  The corporate respondents are owned and controlled by the personal respondent, Mr. Jacobs. [3] The appellant and the respondent met in October 2002.  The judge described their circumstances at that time: [26]      Throughout October and early November 2002, Mr. Jacobs toured the Cambie Malone Group properties at Mr. Yehia’s invitation.  Amongst others, he met senior staff members and the businesses’ bank managers.  Mr. Yehia told Mr. Jacobs about the businesses and described the existing financing arrangements.  He also told him about four appraisals commissioned in September, 2002 for purposes of obtaining bank financing for planned remodelling, development and expansion of the properties and businesses (the “Appraisals”). [27]      Messrs. Jacobs and Yehia discussed many ideas of possible mutual benefit.  From the outset words like “partnership” and “equity stake” were bandied about.  For example, in an October 19, 2002 email Mr. Jacobs proposed that he loan up to $1 million to Mr. Yehia and his companies with an option to convert the loans to an equity stake, subject to negotiation and due diligence.  He stated the equity participation would be subject to a shareholder agreement, a buy-sell mechanism and annual dividends, and described his prospective role as an “investor partner, with a broad base of general day to day duties”.  He further proposed that these duties be discharged through Columbia Cottages Ltd. and compensated at a rate of $60,000 per annum, plus GST and expenses. [28]      Mr. Yehia responded to Mr. Jacobs’ email with a counter-proposal.  In an October 23, 2002 email he stated his wife was “… encouraging us to try working together before committing to a partnership”.  He then proposed that “in the spirit of getting this potential partnership underway” Mr. Jacobs advance “a $200,000 promissory note” to the Cambie Group by November 7, 2002, which loan would earn 12 per cent interest annually, be paid at a rate of $2,000 monthly, mature in five years and be personally secured by Mr. Yehia. [29]      Mr. Yehia went on to propose that Mr. Jacobs would have the option to convert the loan and invest an additional $800,000 into the Cambie Group in equity or debt by May 7, 2003, subject to negotiating a mutually acceptable shareholder agreement and on mutually acceptable terms.  He also stated the Cambie Group would retain Mr. Jacobs to assist and participate in expansion of the existing properties for a retainer fee of $3,000 per month. [30]      Shortly after this exchange, Mr. Jacobs and Mr. Yehia agreed that Mr. Jacobs would advance funds to Mr. Yehia for investment in the Cambie Malone Group.  They also agreed to a six-month “honeymoon period” in which the possibility of a long-term relationship would be explored and interest would be paid on the loans (the “November 2002 Loan Agreement”). [31]      On November 8, 2002 Mr. Jacobs advanced $200,000 to Mr. Yehia through Columbia Cottage Ltd.  The loan was secured by a promissory note dated November 4, 2002 and signed by both parties. [4] The judge described further developments: [33]      At approximately the same time he made the $200,000 advance Mr. Jacobs began to work as a marketing and business strategy consultant for the Cambie Malone Group.  A written agreement in this regard was not signed, nor even proposed.  At Mr. Yehia’s suggestion Mr. Jacobs incorporated 657947 BC Limited (“657”).  He invoiced Mr. Yehia’s management company for his services and expenses through 657 (the “Oral Management Consultancy Agreement”). [35]      On January 27, 2003 Mr. Jacobs advanced a second loan of $500,000 to Mr. Yehia through Columbia Cottage Ltd.  Like the first loan, the second was secured by a promissory note. [5] Both promissory notes obliged Mr. Yehia to pay the money advanced plus 12% interest to the respondent Columbia Cottage Ltd. [6] Mr. Yehia deposited the funds into his personal account and advanced them to the Cambie Malone Group as shareholders’ loans.  The Cambie Malone Group did not record a loan from Mr. Jacobs or Columbia Cottage Ltd. [7] Mr. Jacobs incorporated the respondent, 657947 B.C. Ltd., which invoiced the Cambie Malone Group for consulting services provided to it by Mr. Jacobs.  The judge found that it was agreed that the consulting services were to be provided for $3,000 per month, plus expenses.  In fact, the Cambie Malone Group was invoiced for and paid more than $3,000 per month. [8] The judge described ongoing discussions between Messrs. Jacobs and Yehia: [48]      As their discussions progressed Messrs. Jacobs and Yehia agreed that Mr. Jacobs’ loans would be converted to equity and they would operate the Cambie Malone Group businesses as partners.  The conversion would be achieved by Mr. Jacobs receiving shares in the companies and both parties signing a shareholder agreement.  The terms of the shareholder agreement would address matters such as dividend rights, corporate governance and dispute resolution.  The percentage of Mr. Jacobs’ equity interest would be based on the “as is” values of the Cambie Malone Group properties in the Appraisals. [49]      Unfortunately, although Messrs. Jacobs and Yehia agreed on the general concept of converting the loans to equity they had quite different ideas about a key element of the arrangement.  In particular, they did not share a common understanding of the “as is” values in the Appraisals and thus the percentage of equity to which Mr. Jacobs would be entitled.  Indeed, as the trial progressed it became apparent that Mr. Jacobs did not fully understand the nature of the “as is” values in the Appraisals, either in his discussions with Mr. Yehia or when he was testifying.  On the contrary, I find that Mr. Jacobs misunderstood the meaning and implications of the Appraisals on this centrally important point. [9] After Mr. Jacobs testified at trial, his counsel made an admission on his behalf that resiled from Mr. Jacobs’ valuation position.  The judge observed: [60]      It was sensible for Mr. Jacobs and his counsel to make this admission.  The admission differed considerably, however, from Mr. Jacobs’ testimony about his understanding of the “as is” values in the Appraisals.  It also differed from his written and oral communications to Mr. Yehia on this issue.  In those communications he rejected the notion that the Residual Values in the Cambie, Malone’s and Nanaimo Appraisals corresponded to their “as is” values for purposes of establishing his equity share. [65]      Regardless of the explanation, however, Mr. Jacobs’ pro‑rating approach to determining “as is” values was misconceived and unjustified.  It was not based on the values in the Appraisals, which included assumptions as to proposed remodelling.  In contrast Mr. Yehia’s approach was realistic and based on the Appraisals.  This was the method the parties identified for establishing Mr. Jacobs’ equity entitlement. [10] The judge noted that the practical effect of the different approaches was significant (at para. 67).  On Mr. Yehia’s calculation, Mr. Jacobs’ equity interest would have been 10‑12%.  Mr. Jacobs’ approach yielded an interest of 34‑35%. [11] The parties agreed that Mr. Yehia paid $70,633 in interest on the loans until he stopped paying “sometime between July and September of 2003” (at para. 72).  The judge concluded that “Mr. Yehia stopped paying interest … specifically because he and Mr. Jacobs agreed the loans would be converted to equity and they would operate as partners” (at para. 76). [12] On January 27, 2004, Mr. Jacobs loaned an additional $267,000 to Mr. Yehia.  No promissory note was executed and there were no express terms as to interest or repayment.  It is not clear whether the loan was made by Mr. Jacobs or by Columbia Cottage Ltd.  No interest was paid on this loan. [13] Throughout 2004, Messrs. Jacobs and Yehia exchanged correspondence dealing with Mr. Jacobs investing in the Cambie Malone Group.  They were not in agreement on a number of points.  Mr. Jacobs did not agree on the valuation approach to his potential equity investment being taken by Mr. Yehia or the approach being taken to value his consultancy services.  He also addressed a number of other outstanding issues. [14] The parties met in January 2005 and on February 1, 2005 they signed two letters “Shareholders Agreement in the Cambie Group of Companies” and “Investing in the Cambie Group of Companies”.  These are described as the “February 2005 Agreement”. [15] The Shareholders Agreement letter confirmed Mr. Jacobs’ “participation as a partner” in the Cambie Malone Group and added: To provide clarity and avoid any confusion in the future, we have agreed that a shareholders agreement outlining the interests and rights for both Paul Jacobs and Sam Yehia…needs to be drawn and executed. It also was suggested that a professional(s) be retained “to assist us in the reconciliation of all of the points which would be included in the shareholders agreement”. [16] The Investing letter recited the history of the loans and promissory notes and stated that in July 2003, Mr. Jacobs had agreed to convert “all of the promissory notes into an equity position” in the Cambie Malone Group.  It continued: By executing below you acknowledge that all of the promissory notes which were advanced to me, which notes suggested a personal obligation owed by me to you, are null and void and that I am not personally liable for the repayment to you of any amounts on account of such notes. [17] Professionals were not retained to assist in resolving outstanding issues and they were not resolved. [18] The judge addressed the February 2005 Agreement stating: [263]    As the February 2005 Agreement indicates, the parties “agreed to agree” on conversion of the loans as part of the intended partnership.  The proposed conversion was, however, on unspecified terms, at an unspecified time, in an unspecified way.  It is trite law that an agreement to agree does not amount to an enforceable contract, whether in original form or by way of later amendment. [266]    I am satisfied, however, that the November 2002 Loan Agreement was terminated by the February 2005 Agreement.  When it was executed, the parties agreed Mr. Yehia was no longer responsible to repay the $967,000 advanced by Mr. Jacobs in 2002, 2003 and 2004.  In these circumstances, an essential element of a loan contract was removed: liability on the borrower’s part for return of the principal with accrued interest (see Lee , paras. 9‑10).  In consequence, by mutual agreement, the November 2002 Loan Agreement came to an end when the February 2005 Agreement was executed. [268]    As events unfolded, Mr. Jacobs’ expectation of partnership did not come to fruition.  In these circumstances, Mr. Yehia remained obliged to pay interest under the November 2002 Loan Agreement unless and until it was terminated.  That did not occur until February, 2005. [19] On October 23, 2009, the parties executed two further agreements: the “Loan Agreement” and the “Management Services Agreement”.  The Loan Agreement was between Messrs. Yehia and Jacobs.  It provided in part: WHEREAS , IN SEPTEMBER OF 2002 AN AGREEMENT WAS ENTERED INTO BY THE PARTIES WHEREIN THE SECOND PARTY DID LEND OR MAKE AVAILABLE THE USE OF NINE HUNDRED SIXTY SEVEN THOUSAND DOLLARS ($967,000) TO OR BY THE FIRST PARTY (HEREINAFTER THE “INVESTMENT”); AND WHEREAS SUCH AGREEMENT, HAVING BEEN RELIED UPON BY THE PARTIES OVER THE COURSE OF THE SUBSEQUENT SEVEN (7) YEARS, REQUIRES A RENEWAL OF THE AGREEMENT IN ORDER TO FACILITATE THE PARTIES GOING FORWARD; THE PARTIES HERETO DO ENTER INTO AN AGREEMENT, INTENDING BY SO DOING, TO SUPPLANT ANY AND ALL PREVIOUS AGREEMENTS BETWEEN THE PARTIES WITH RESPECT TO THE ABOVE MENTIONED LOAN AMOUNT; THE PARTIES AGREE THAT: 1. Paul Jacobs, the Lender has lent to Sam Yehia, the Borrower nine hundred sixty-seven thousand dollars ($967,000) in good Canadian currency; 2. The Borrower will provide the Lender with a personal guarantee for the entire amount owing under this agreement; 6. The term of this agreement shall renew automatically in one (1) year increments at the end of the year or the date on which the loan is paid in full; This agreement supplants and is paramount to any precedent agreement. Where any correspondence, contract or other agreement of any kind whatsoever conflicts with this agreement it is agreed by the parties that this agreement has paramountcy. By signing below each of the parties attests to the fact that they have been informed of their right to independent legal advice and independent accounting advice and that this agreement is executed in full knowledge of the importance of seeking such independent counsel and under no duress or misconception about the party’s rights at law whatsoever. There was no provision for interest.  Mr. Jacobs did not obtain legal advice. [20] The Management Services Agreement, which was between the respondent 657947 B.C. Ltd. and the Cambie Malone’s Corporation dealt with aspects of the consultancy arrangement and included the following: 9.   Upon the termination of this agreement, the Company will: a)   pay out the personal loan, and any associated interest, made by Mr. Paul Jacobs, Principal of the Service Provider, to Mr. Sam Yehia, Principal of the Company.  The original amount of the principal outstanding of such loan was of September 2002 was CDN $967,000. [21] On July 1, 2010, Mr. Jacobs was advised by Mr. Yehia that he had decided to pay out Mr. Jacobs.  Shortly thereafter, notice to terminate the October 2009 Agreements was given.  The judge found that on July 30, 2010, Mr. Yehia paid $967,000 to Mr. Jacobs. [22] The respondents sued.  They asserted that the October 2009 Loan Agreement was unconscionable and sought rescission.  They sought a declaration that they held an equitable interest in the form of a trust in the Cambie Malone Group and a certificate of pending litigation (“CPL”) against land owned by the Group.  Damages for breach of contract also were claimed.  Alternatively, a declaration of partnership was sought.  The respondents asserted that the appellants were unjustly enriched. [23] The appellants contested all of the assertions of the respondents and counterclaimed for a $45,000 overpayment of the $967,000 loan. Trial Judgment [24] The trial was bifurcated.  The present appeal concerns only liability.  The judge observed: [3]        … The question at the heart of the case is whether Mr. Jacobs was right about the nature of the business relationship and, if not, whether Mr. Yehia was unjustly enriched by what Mr. Jacobs did for him. She then set out the issues for determination. 1.         Were Messrs. Jacobs and Yehia partners? 2.         How is the November 2002 Loan Agreement to be construed and did the defendants breach it by failing to pay interest? 3.         If the November 2002 Loan Agreement was breached, is any part of the claim for damages statute barred? 4.         How is the Oral Management Consultancy Agreement to be construed? 5.         How are the October 2009 Agreements to be construed and were they unconscionable? 6.         Did Mr. Yehia repudiate the October 2009 Agreements? 7.         If Messrs. Jacobs and Yehia were not partners, was Mr. Yehia unjustly enriched and, if so, how? 8.         Is any of the relief sought by the plaintiffs precluded by an equitable doctrine? 9.         If the plaintiffs are entitled to a remedy, what remedy is appropriate? 10.       Are the defendants entitled to a remedy and, if so, what remedy is appropriate? [25] Not all of the issues are relevant to this appeal.  I summarize the judge’s conclusions with respect to those that are relevant. [26] The judge concluded that Messrs. Jacobs and Yehia were not partners.  She held that Mr. Yehia was in breach of the 2002 Loan Agreement by failing to pay interest from September 2003 to February 2005.  The October 2009 Agreements were not unconscionable and were not repudiated by Mr. Yehia.  Mr. Yehia was unjustly enriched.  She held that the respondents are entitled to judgment for unpaid interest and a declaration the appellants have been enriched unjustly from February 2005 to October 2009.  Compensation will be calculated based on 11.73% of the increase in the net equity of the Cambie Malone Group from February 2005 to October 2009. [27] The judge also awarded 657947 B.C. Ltd. $50,064 for unpaid GST and held that the appellants were entitled to a $45,000 set‑off.  In a separate order the judge refused to order the cancellation of the certificate of pending litigation. [28] I review these conclusions in a little more detail. [29] The judge’s conclusion, that there was no partnership, was based on her analysis of the course of dealings between them.  She stated that “Messrs. Jacobs and Yehia did not proceed beyond the ‘intended partners’ stage in their business relationship” (at para. 243) and added: [245]    … at a minimum, until the parties’ ownership interests were determined or determinable and basic governance agreed upon the joint enterprise could not and did not commence. [246]    … I am not persuaded there was a meeting of minds on the shared ownership issue, nor on an effective mechanism for its determination.  On the contrary, Messrs. Jacobs and Yehia held distinctly different views on this key element of the intended partnership.  In particular, they disagreed on the “as is” values in the Appraisals and thus on the formula for calculating their respective equity entitlement. [30] The judge held that the entire advance of $967,000 was covered by the 2002 Loan Agreement and that it carried interest at 12%.  She rejected the appellants’ contention that interest was waived and held that it was payable until the February 2005 Agreement, which terminated the 2002 Loan Agreement. [31] The judge also held that the 2005 Agreement acknowledged the debt and the respondents’ claim was not statute barred. [32] The judge rejected the respondents’ contention that the October 2009 Agreements failed for lack of certainty and consideration or were unconscionable.  After examining a number of troublesome provisions, she found “that I am able objectively to discern the meaning of its essential terms”.  The judge rejected the appellants’ submission that: [312]    … the October 2009 Agreements clarified, confirmed or otherwise impacted the parties’ past relationship or obligations.  In particular, I reject the submission that the October 2009 Agreements confirmed “Mr. Jacobs had been solely a lender and a consultant” in so far as it suggests, ex post facto, that he was a lender continuously from 2002 to 2009.  He was not, and the parties did not agree that he was. [33] She continued: [313]    I find the October 2009 Agreements, considered as a whole and in context, expressed a meeting of the minds on the way forward given what had transpired in the past, regardless of how the past was characterised.  The opening recital of the Management Services Agreement referenced the past relationship and a “wish” to “express” how the relationship “had been operative”, but failed to do so.  On the contrary, the terms agreed upon thereafter concern only the future relationship and are unrelated on their face to the past relationship or its characterisation.  The same is true of the Loan Agreement, which referenced the original loan because it was being renewed. [314]    The Loan Agreement did not clarify or alter the past effect of the November 2002 Loan Agreement, nor did it purport to do so.  Rather, it recorded the fact that Mr. Jacobs had previously loaned $967,000 to Mr. Yehia and a renewal was required for the business relationship to go forward.  In so doing, it expressed a shared intention “to supplant any and all previous agreements” with the Loan Agreement.  It did not, however, cancel any prior unmet obligations (such as liability for unpaid interest) or purport retroactively to extend the life of the November 2002 Loan Agreement over the pre‑renewal period. [317]    Taking into account the plain and ordinary meaning of the words in the October 2009 Agreements in the context of the contract as a whole and the surrounding circumstances, I find the October 2009 Agreements renewed the November 2002 Loan Agreement and replaced the existing Oral Management Consultancy Agreement.  When read as a whole, they contain all the essential elements of a loan agreement.  They also contain all the essential elements of a management services agreement. [318]    As the plaintiffs note, the October 2009 Agreements do not define the loan amount outstanding as of the date of their execution.  The Loan Agreement does, however, renew the November 2002 Loan Agreement (recitals, para. 1) and thus resume liability for the amount owed thereunder after an interruption.  Accordingly, I find the October 2009 Agreements established an effective mechanism for determination of the amount of the renewed loan. [319]    Application of the established mechanism is straightforward. The November 2002 Loan Agreement encompassed a total principal sum of $967,000 advanced in three tranches, plus annual interest at a rate of 12 per cent (see also Management Services Agreement, para. 9 (a)).  The outstanding principal was reduced by $45,000 in May 2004 and interest was paid monthly until approximately September 2003.  Thereafter, interest accrued until February 2005, when the November 2002 Loan Agreement was terminated. [34] The judge concluded that the parties intended to renew liability for both the principal of the loan and interest at 12%. [35] After reviewing the relative positions of the parties, the judge concluded that the October 2009 Agreements were not unconscionable.  She also assessed the conduct of Mr. Yehia and concluded that he did not evidence an intention not to be bound by the agreements, that is, he did not repudiate them. [36] The judge addressed unjust enrichment as follows: [355]    I find the defendants were enriched by Mr. Jacobs’ $967,000 investment.  The investment funds were used to operate, renovate and develop the Cambie Malone Group properties and businesses.  I also find Mr. Jacobs was correspondingly deprived. [356]    There is a causal link between the contribution and the enrichment.  The causal link was the defendants’ access to and use of the investment funds. [357]    As previously noted, Mr. Yehia needed substantial cash for planned remodelling, development and expansion of the Cambie Malone Group properties and businesses.  Bank financing was not, however, readily available for these purposes.  In November 2002, Mr. Yehia found an alternate source of financing: Mr. Jacobs.  From that point forward, he had access to the needed funds. [358]    Mr. Jacobs’ funds allowed Mr. Yehia to convert his plans into reality. Combined with the properties and businesses in their “as is” state, they jointly contributed to the increased value of the Cambie Malone Group over time. [37] She rejected unjust enrichment as it pertained to Mr. Jacobs’ consultancy services because there were consultancy contracts in place.  The judge continued: [362]    Between November 2002 and February 2005 the defendants also accessed and used the $967,000 pursuant to a valid and enforceable contract: the November 2002 Loan Agreement.  The same is true of the period after the October 2009 Agreements.  Between February 2005 and October 2009, however, there was no such contract in place because Mr. Yehia persuaded Mr. Jacobs they were “partners completely”.  Although naïve, this belief was held in good faith and was based on the cumulative effect of Mr. Yehia’s conduct and representations. [38] The judge addressed the basis for calculating compensation: [364]    Based on their history and Mr. Yehia’s representations, between February 2005 and October 2009 Mr. Jacobs reasonably expected to share in the profits of the Cambie Malone Group if he left the $967,000 investment, Second Mortgage and SBIL loan guarantee with Mr. Yehia.  He did so.  The profits he expected to share in were the increase in net equity of the Cambie Malone Group, including any increase in land values.  They were to be calculated taking into account any difference between the fair market value of his services and those of Mr. Yehia. [365]    Mr. Jacobs also reasonably expected that his share entitlement would be a relative percentage of the Cambie Malone Group’s “as is” value, as outlined in the Appraisals.  For purposes of this unjust enrichment analysis, I accept as accurate Mr. Yehia’s repeated assertions that it was reasonable for Mr. Jacobs to expect to receive 11.73 per cent of the net equity in the Cambie Malone Group. [366]    The defendants have failed to show a reason it would be just for them to retain the benefits from February 2005 to October 2009.  Mr. Yehia had no such reasonable expectation. [367]    In reaching the foregoing conclusion I have considered the parties’ entire course of dealings.  I find that Mr. Yehia consciously and deliberately strung Mr. Jacobs along regarding his intentions and the nature of their relationship.  In particular, he persuaded Mr. Jacobs they were partners in order to retain access to and use of his $967,000 for the benefit of the Cambie Malone Group.  In so doing, he failed to deal with Mr. Jacobs with commercial good conscience by rebuffing his attempts to resolve the partnership impasse while simultaneously paying no interest on the $967,000, renouncing liability for its repayment and purporting to erode Mr. Jacobs’ equity entitlement. [368]    All things considered, I conclude it would not be just to permit the defendants to retain the benefits so conferred. Discussion Effect of the February 2005 Agreements [39] The judge and the parties proceeded on the basis that the February 2005 Agreement was comprised of both the Shareholders Agreement letter and the Investing letter.  Indeed they both address Mr. Jacobs’ position as an investor and the conversion of his loans into equity in the Cambie Malone Group. [40] The judge held, at para. 263, that “the February 2005 Agreement indicates, the parties ‘agreed to agree’ on conversion of the loans as part of the intended partnership”.  She noted that the terms for doing so were not specified and that “an agreement to agree does not amount to an enforceable contract”.  At para. 266, she held that the November 2002 Loan Agreement was terminated by the February 2005 Agreement.  In my view, that cannot be so. [41] The judge stated that in February 2005 the parties agreed that Mr. Yehia “was no longer responsible to repay the $967,000 advanced by Mr. Jacobs”, but that agreement was premised on conversion of this money into equity in the Cambie Malone Group.  It was not a stand-alone agreement.  The basis for the conversion was not agreed.  Essentially, there was a failure of consideration.  In my view, the February 2005 Agreement was not an enforceable agreement. [42] It follows that Mr. Yehia is liable for payment of interest to Columbia Cottage Ltd. at 12% per annum from the date of advancement of funds to the date of repayment, subject only to consideration of the provisions of the October 2009 Agreements to which I now turn. The October 2009 Agreements [43] I agree with many of the judge’s conclusions regarding the October 2009 Agreements and with her concerns about its shortcomings.  The critical issue is the effect of the October 2009 Agreements on the November 2002 Loan Agreement.  The appellants assert it was supplanted to the extent that no obligations derived from it survived.  In my view, this does not take adequate account of the factual matrix or the language of the October 2009 Agreements. [44] I agree with the judge’s conclusion that: [313]    I find the October 2009 Agreements, considered as a whole and in context, expressed a meeting of the minds on the way forward given what had transpired in the past, regardless of how the past was characterised.  The opening recital of the Management Services Agreement referenced the past relationship and a “wish” to “express” how the relationship “had been operative”, but failed to do so.  On the contrary, the terms agreed upon thereafter concern only the future relationship and are unrelated on their face to the past relationship or its characterisation.  The same is true of the Loan Agreement, which referenced the original loan because it was being renewed. [45] These agreements were entered into to resolve many years of disagreement and uncertainty.  This history included the February 2005 Agreements by which the parties purported to relieve Mr. Yehia from any obligation to repay the $967,000 loan on the basis that the money was “invested in the Cambie Group of Companies for equity participation”. [46] The October 2009 Loan Agreement begins by referring to the 2002 Loan Agreement.  It states, perhaps curiously, that the parties had relied on that agreement for seven years and that the agreement “requires a renewal”.  The renewal was to “supplant” all previous agreements; that is, to “supersede and replace” them ( Concise Oxford English Dictionary , 11th ed. (Oxford: Oxford University Press, 2004)). [47] The October 2009 Management Services Agreement set out the basis on which the loan was to be paid out.  On termination of that agreement The Cambie Malone’s Corporation would repay the loan “and any associated interest”.  Reference was made to the amount of the indebtedness as of 2002. [48] It is apparent immediately that the October 2009 Agreements took off the table any relationship between the loan and an equity investment by Mr. Jacobs.  It also is apparent that the loan addressed in the Agreements was linked to the November 2002 Loan Agreement and to interest payable on that loan. [49] Although it is somewhat troublesome, the legal interest of Columbia Cottage Ltd., which advanced at least the first two tranches of the loan and which was the beneficiary of two promissory notes, appears to have been ignored at the time of the October 2009 Agreements.  I conclude that the parties intended that the loan would be treated as directly between Messrs. Yehia and Jacobs. [50] I see no basis in the factual matrix or the language of the October 2009 Agreements to suggest that Mr. Jacobs was forgiving interest that had accrued or forgoing interest for the future.  There is no suggestion that an equity position would derive from the loan.  The monthly fee payable for Mr. Jacobs’ services is not linked to interest on the loan.  There had been considerable disagreement over the years on the value of those services. [51] As of October 2009, the November 2002 Loan Agreement was extant.  It provided for interest at 12% payable annually.  There also were terms of repayment.  On the evidence, the loan was advanced in the context of the expectation that the parties would agree to terms on which the loan would be converted into equity. [52] The October 2009 Loan Agreement superseded and replaced the November 2002 Loan Agreement.  It no longer governed the relationship between the parties.  The issue becomes the proper construction of the October 2009 Agreements. [53] The October 2009 Agreements dealt with the loan strictly as a loan and provided for its repayment.  Interest was included although a rate was not specified. [54] In my view, the effect of the October 2009 Agreements was to continue the November 2002 loan bearing interest at 12% payable on the termination of the Management Services Agreement.  To interpret the October 2009 Agreements as absolving Mr. Yehia of the obligation to pay interest on a $967,000 loan makes no business sense in the circumstances of this case.  The 2009 Loan Agreement provides that the loan is to Mr. Yehia and that he will guarantee its repayment.  In addition, the Management Services Agreement provides that The Cambie Malone’s Corporation will “pay out the personal loan, and any associated interest”. [55] The loan was repaid on July 30, 2010.  Mr. Yehia is liable for interest at 12% from the date money was advanced to July 30, 2010 as adjusted by interest and principal previously paid.  The Cambie Malone’s Corporation also is liable for this amount. Unjust Enrichment [56] The judge rejected unjust enrichment for the periods November 2002 to February 2005 and after October 2009 because there was a contractual basis on which Mr. Yehia retained the $967,000.  She held there was no such basis between February 2005 and October 2009 because the February 2005 Agreement terminated the 2002 Loan Agreement; there then was no juristic reason for Mr. Yehia’s retention of the benefit he derived from the loan funds. [57] I have concluded that the February 2005 Agreement did not terminate the 2002 Loan Agreement.  It remained extant.  It continued as a juristic reason for Mr. Yehia’s retention of the benefits he derived from the loan funds. [58] Until there was agreement on the basis on which the loans would be converted to equity, they remained loans to Mr. Yehia.  He was enriched to the extent he did not pay interest and Mr. Jacobs was deprived of that interest, but Mr. Jacobs had an enforceable contractual right to recover his loss.  Mr. Yehia’s use of the funds in the business did not give Mr. Jacobs an interest in whatever benefits may have accrued to the Cambie Malone Group.  He did not have an interest in the business because the parties did not agree on the terms for him to do so. $45,000 Overpayment [59] It is common ground that Mr. Yehia overpaid $45,000 on the loan.  He and The Cambie Malone’s Corporation are entitled to a set‑off in that amount. GST [60] The October 2009 Management Services Agreement provided for the payment by The Cambie Malone’s Corporation of GST in addition to the monthly fee.  Previous agreements apparently did not.  The Cambie Malone Group was invoiced for fees only and paid the invoices. [61] I agree with the appellants that 657947 B.C. Ltd. is not entitled to payment of GST for the time prior to the 2009 Management Services Agreement. Certificate of Pending Litigation [62] The judge declined to order the cancellation of the CPL on the basis that there was no hardship on the appellant and because the CPL related to the award of damages for unjust enrichment.  In my view, that award is not sustainable.  The respondent Mr. Jacobs is entitled to an award of interest on the loan.  No interest in land is involved.  The CPL should be cancelled. Conclusion [63] The appellants seek an order setting aside paras. 1‑6 of the judge’s order and varying paras. 7 and 8 of her order to provide for judgment rather than set‑off.  I address these provisions. [64] I would vary para. 1 to provide that Mr. Yehia breached the October 2009 Agreements by failing to pay interest that was due and owing from the date of advancement of funds to July 30, 2010. [65] I would vary para. 2 to provide that Mr. Jacobs is entitled to an accounting for unpaid interest from the date funds were advanced to July 30, 2010 plus court ordered interest as against Mr. Yehia and The Cambie Malone’s Corporation to be determined at the second stage of the trial. [66] I would set aside para. 3 as unnecessary. [67] I would set aside paras. 4, 5 and 6. [68] I would not disturb para. 7. [69] I would modify para. 8 to read: “The Defendant, The Cambie Malone’s Corporation, is entitled to set‑off against the compensation awarded to the Plaintiffs the value of any ineligible expenses paid to the plaintiff, 657947 B.C. Ltd., over the course of the Oral Management Consultancy Agreement or the October 2009 Agreements. The value of any such ineligible expenses shall be determined at the second stage of the trial”. [70] In my view, the results of this appeal are mixed.  The finding of unjust enrichment is set aside, but Mr. Yehia is liable for interest.  I would direct that each side bear its own costs in this Court and in the Supreme Court. “The Honourable Mr. Justice Chiasson” I agree: “The Honourable Mr. Justice Frankel” I agree: “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: M.D. v. R., 2016 BCCA 56 Date: 20160127 Docket: CA42656 Between: M.D. Appellant And R. Respondent Before: The Honourable Madam Justice Newbury The Honourable Madam Justice Neilson The Honourable Mr. Justice Savage On appeal from: an order of the Supreme Court of British Columbia, dated February 23, 2015 ( M.D. v. R., 2015 BCCA 399, Duncan Registry No. S16061) Oral Reasons for Judgment Appellant appearing In Person: Counsel for the Respondent: W. Bernt Place and Date of Hearing: Victoria, British Columbia January 27, 2016 Place and Date of Judgment: Vancouver, British Columbia January 27, 2016 Summary: The applicant applied pursuant to s.9(6) of the Court of Appeal Act to vary an order denying leave to appeal. The application was denied as the applicant failed to show that the chambers judge erred in law, erred in principle or misconceived the facts. [1] SAVAGE J.A. : On September 24, 2015 Justice Garson dismissed M.D.’s application for leave to appeal to this Court from two related orders made by Mr. Justice MacKenzie on February 23, 2015: M.D. v. Regina, 2015 BCCA 399. M.D. applies pursuant to s. 9(6) of the Court of Appeal Act , R.S.B.C. 1996, c. 77, to have this division vary her order. For the reasons that follow I would dismiss the application. [2] Madam Judge Garson detailed the procedural history of this case at paras. 3 to 6 of her reasons for judgment. In summary, M.D.’s child, G., was removed from his custody at birth, on July 22, 2013. In 2013 and 2014 various provincial court orders granted custody of G. to the Director of Child, Family and Community Service (the “Director”). By way of multiple applications M.D. appealed the orders in the Supreme Court pursuant to s. 81 of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 [ CFCSA ]. [3] The Director applied to have M.D.’s appeal struck. On January 8, 2015 Master McCallum held that M.D.’s appeal was scandalous, frivolous and vexatious; however, rather than striking the appeal he granted M.D. an extension of time to file his appeal in the appropriate form and state the grounds for appeal in a succinct way: M.D. v. Regina , 2015 BCSC 18. [4] On February 23, 2015 the matter came back before Mr. Justice MacKenzie who struck M.D.’s appeal for not disclosing a valid or meritorious ground: M.D. v. British Columbia (Child, Family and Community Services) , 2015 BCSC 730. [5] Section 82 of the CFCSA allows an appeal to this Court, with leave, only on a question of law. Pursuant to s. 82 of the CFCSA , M.D. applied for leave to appeal to this Court from Mr. Justice MacKenzie’s order. [6] The matter was first heard in chambers on June 15, 2015 by Mr. Justice Frankel. Mr. Justice Frankel was unable to ascertain the basis of M.D.’s appeal. He ordered that M.D. file a proper motion book and granted an adjournment until September 8, 2015. [7] Madam Justice Garson heard the application on September 8, 2015 and released her reasons for judgment on September 24, 2015. She held that despite being given the opportunity described M.D. did not provide any material to enable her to identify any question of law which might form the basis of his appeal. [8] Madam Justice Garson found that M.D. did not meet any of the well-established criteria necessary for leave to appeal to be granted and dismissed his application saying: [10]      M.D. has been given several opportunities to comply with the rules of court both in this Court and the Supreme Court. I refer to the hearing before Master McCallum in which rather than striking the appeal, he permitted M.D. to amend his Notice of Appeal. On June 15, 2015, this Court adjourned M.D.’s application with directions to file an appropriate motion book. As already noted, those new materials, filed on August 25, 2015, are voluminous. However, they do not enable me to identify any question of law. [11]      The test for granting leave to appeal in this Court is well known. The criteria are set out in Goldman, Sachs & Co. v. Sessions , 2000 BCCA 326 at para. 10, where Saunders J.A. (in Chambers) stated: The criteria for leave to appeal are well known. As stated in Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment Corp. (1988) , 19 C.P.C. (3d) 396 (C.A.) they include: 1) whether the point on appeal is of significance to the practice; 2) whether the point raised is of significance to the action itself; 3) whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and 4) whether the appeal will unduly hinder the progress of the action. [12]      This same test has been held to apply to applications for leave under s. 82 of the Child, Family and Community Service Act: British Columbia (Director, Child, Family and Community Services) v. DMG , 2007 BCCA 415. [13]      M.D. has not demonstrated that his appeal has merit. He has not met any of the criteria necessary to be granted leave to appeal. [14]      His application for leave to appeal the orders made by Justice MacKenzie is dismissed. [9] An application to vary or discharge an order of a chambers judge is not a re-hearing of the initial application. This Court may not interfere with an order of a chambers judge unless it can be demonstrated that the chambers judge erred in law, erred in principle or misconceived the facts: Pacifica Mortgage Investment Corp. v. Laus Holdings Ltd , 2011 BCCA 459 at para. 23. [10] M.D. lists his grounds of appeal as: 1) Gross & Hideous Miscarriage of Justice. 2) Imperial Colonial Judicial Nepotism Between Victoria BC Justice McKenzie & Victoria BC MCFD Lawyer Michael Scherr. 3) There is NO Time Bar in the Canadian Charter of Rights & Constitution of Canada. 4) BC Supreme Court is Crown Blackmailing Me to Sign off on MY fight for G using Trickery & Triple Speak & MCFD Criminal Legislation. 5) RCMP “A” Internal Affairs Division in Ottawa has been Notified & Criminal Investigations are being investigated!! [11] After reviewing M.D.’s written materials and hearing his arguments, Madam Justice Garson was unable to identify any question of law. In his affidavit dated October 1, 2015 filed in support of this review application, M.D. describes the basis of his application thus: *I asked Judge Garson to recuse herself; she refused 1. Appealing Judge Garson’s Judgment 2. Asking for 3 Judge Panel Review 3. No Single Judge has Authority to Judge on Constitutional and Charter challenge 4. Review Justice Garson; Wendy Bernt 5. Conduct for Heckling me [12] M.D. has been given several opportunities in this Court to frame his arguments in a manner which addresses the legal requirements for obtaining leave to appeal but he has failed to do so. In arguing that Madam Justice Garson erred in denying leave M.D. referenced in general terms the Metis Constitution, The Metis National Relationship Accord, the Provincial Courts and the Charter of Rights . At the hearing of this appeal we took an early adjournment to give M.D. further time to distill his argument. [13] Although M.D. says his argument concerns the breach of his Charter Rights , the only provisions of the Charter he referenced were the mobility provisions and unlawful search and seizure. I am unable to appreciate how the apprehension of a child in need can be a breach of either mobility rights or rights against unlawful search and seizure. Provincial legislation providing for the apprehension of children in need in my view cannot be a violation of any such rights, whatever the background of the children might be. [14] I agree with Madam Justice Garson that neither the grounds given nor the submissions received identify a question of law. M.D. has not identified any error in law, error in principle or misconception of the facts in the reasons of the Chamber’s judge. As M.D. has failed to show that Madam Justice Garson erred in law, erred in principle or misconceived the facts, I would dismiss the application to vary the order of Justice Garson. [15] NEWBURY J.A. : I agree. [16] NEILSON J.A. : I agree. [17] NEWBURY J.A. : The application is dismissed. “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Bird, 2016 BCCA 43 Date: 20160127 Docket: CA43166 Between: Regina Respondent And Dion Marlon Bird Appellant Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Groberman The Honourable Madam Justice Dickson On appeal from:  An order of the Provincial Court of British Columbia, dated January 25, 2013 ( R. v. Bird , Surrey Docket No. 195252-1). Counsel for the Appellant: A. Glouberman Counsel for the Respondent: E. Campbell Written Joint Submission filed: November 24, 2015 Place and Date of Judgment: Vancouver, British Columbia January 27, 2016 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice Groberman The Honourable Madam Justice Dickson Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held:  Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The appellant pleaded guilty in Provincial Court to one count of robbery and one of theft of a motor vehicle. He was sentenced on January 25, 2013 to 41 months’ imprisonment, after credit was given for seven months having been served pre-custody; and on the theft he was sentenced to 17 months concurrent, again after having been given credit for seven months served pre-custody. At the time of sentencing, he had been in custody for 206 days, for which credit was calculated on a 1:1 basis. [2] The record indicates that upon learning of the Supreme Court of Canada’s decision in R. v. Summers 2014 SCC 26, he pursued his wish to appeal his sentence. [3] The Crown has advised that it does not oppose the granting of credit at a rate of 1:1.5 and that the appellant is not disqualified from such credit under s. 719(3.1) of the Criminal Code . [4] In these circumstances I would grant an extension of time for the filing of this appeal, grant leave to appeal, and allow the appeal to the extent only that the sentence on count two (the robbery) be reduced to three years plus 56 days, with credit of 309 days having been granted for time spent in custody prior to sentencing. “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Madam Justice Dickson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Doucet, 2016 BCCA 44 Date: 20160127 Docket: CA43063 Between: Regina Respondent And Jeffery Lloyd Doucet Appellant Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Groberman The Honourable Madam Justice Dickson On appeal from:  An order of the Provincial Court of British Columbia, dated March 21, 2014 ( R. v. Doucet , Kelowna Docket Nos. 79783-2-C, 79561-1, 79784-1). Counsel for the Appellant: C. Darnay Counsel for the Respondent: E. Campbell Written Joint Submission filed: October 28, 2015 Place and Date of Judgment: Vancouver, British Columbia January 27, 2016 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice Groberman The Honourable Madam Justice Dickson Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held:  Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The appellant pleaded guilty to three offences in three separate Informations, namely the possession of a loaded firearm, a break and enter, and driving while prohibited. He was sentenced on March 21, 2014 as follows: Possession of loaded firearm – 31 months plus 27 days’ imprisonment after a credit for four months plus three days pre-sentence custody; Break and Enter - a concurrent sentence of six months’ imprisonment Driving while prohibited – a concurrent sentence of 14 days [2] At the time of sentencing, he had been in custody for 124, days for which he received credit on a 1:1 basis. [3] The record indicates that upon learning of the Supreme Court of Canada’s decision in R. v. Summers 2014 SCC 26, he pursued his wish to appeal his sentence. [4] The Crown has advised that it does not oppose the granting of credit at a rate of 1:1.5 and that the appellant is not disqualified from such credit under s. 719(3.1) of the Criminal Code . [5] In these circumstances I would grant an extension of time for the filing of this appeal, grant leave to appeal, and allow the appeal to the extent only that the sentence on possession of a loaded firearm (information 79783-2-C) be reduced to a sentence of two years plus 179 days, with credit of 186 days having been granted for time spent in custody prior to sentencing. “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Madam Justice Dickson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Richardson, 2016 BCCA 46 Date: 20160127 Docket: CA43067 Between: Regina Respondent And James Gordon Michael Richardson Appellant Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Groberman The Honourable Madam Justice Dickson On appeal from:  An order of the Provincial Court of British Columbia, dated March 27, 2014 ( R. v. Richardson , Victoria Docket Nos. 160751-1, 161244-1). Counsel for the Appellant: N. Preshaw Counsel for the Respondent: E. Campbell Written Joint Submission filed: November 4, 2015 Place and Date of Judgment: Vancouver, British Columbia January 27, 2016 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice Groberman The Honourable Madam Justice Dickson Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held:  Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The appellant was convicted of a robbery committed with a firearm and was sentenced on March 27, 2014 to 41 months’ imprisonment after credit was granted on a 1:1 basis for seven months spent in custody prior to sentencing. The appellant had been in custody for 216 days, but served another sentence during that time. On September 26, 2013, he was sentenced to 60 days for breach of a probation order. After serving two-thirds of that sentence, he would have resumed earning credit towards his sentence on the robbery offence. [2] The record indicates that upon learning of the Supreme Court of Canada’s decision in R. v. Summers 2014 SCC 26, he pursued his wish to appeal his sentence. [3] The Crown has advised that it does not oppose the granting of credit at a rate of 1:1.5 and that the appellant is not disqualified from such credit under s. 719(3.1) of the Criminal Code . [4] I will allow the appeal to the extent only that the sentence be reduced to three years plus 101 days, with credit of 264 days having been granted for time spent in custody prior to sentencing. “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Madam Justice Dickson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Langley (Township) v. Canadian Union of Public Employees, Local 403, 2017 BCCA 1 Date: 20170103 Docket: CA42610 Between: Township of Langley Appellant And Canadian Union of Public Employees, Local 403 Respondent Before: The Honourable Madam Justice D. Smith The Honourable Madam Justice Bennett The Honourable Mr. Justice Goepel On appeal from: An award of an arbitrator sitting as an arbitration board under the Labour Relations Code , R.S.B.C. 1996, c. 244 dated February 4, 2015, Langley (Township) v Canadian Union of Public Employees, Local 403 . Counsel for the Appellant: D. Demerse J.S. Russell Counsel for the Respondent: R.L. Edgar T. Ramusovic Place and Date of Hearing: Vancouver, British Columbia September 14 and 15, 2016 Place and Date of Judgment: Vancouver, British Columbia January 3, 2017 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Madam Justice Bennett The Honourable Mr. Justice Goepel Summary: The employer appeals from an arbitrator’s decision upholding a grievance alleging that the terminations of three out of twelve employees were discriminatory, contrary to s.13 of the Human Rights Code. The employees were on long-term disability for an extended period of time and none were able to return to work. The employer terminated the employees for non-culpable absenteeism. The union grieved the terminations. Held: appeal quashed. The law with respect to non-culpable absenteeism was settled in Hydro-Qu é bec. Arbitrators have discretion to consider labour relations principles under s. 82 of the Labour Relations Code. In the application of the settled law, the arbitrator in this case applied labour relations principles and found arbitrariness, randomness and differential impact had undermined the BFOR put forward by the employer that the employment relationship requires that employees work for pay. Although the HRC is a matter of general law, the arbitrator’s reliance on labour relations principles to determine the grievance meant that the real basis of the award was about labour relations principles implied from the Labour Relations Code. Accordingly, this Court is without jurisdiction to hear the appeal. Reasons for Judgment of the Honourable Madam Justice D. Smith: Overview [1] On June 13, 2013, the appellant Township of Langley (the “Employer”) terminated three employees who had been absent from work and on long-term disability for just under 10, 8 and 7 years respectively. Each was totally disabled from any occupation. Years earlier it had been determined that none would be able to return to work. Their positions were posted and filled in June 2005, December 2005 and November 2008, respectively. [2] The terminations were the result of a review by the Employer in the spring of 2013 of those employees who were on long-term disability (“LTD”) and receiving employment benefits. At the time, there were 12 employees in that category. The three employees in this case, along with a fourth employee, were identified as having been absent from work for the longest period of time. The first had been off work since 2003 and had three months of LTD remaining; the second had been absent since 2004 and had 15 months of LTD remaining; and the third had been away since 2007 and had 38 months left on the LTD plan. At the Union’s request, the Employer agreed not to terminate the fourth employee because of her personal circumstances. That employee had 50 months of LTD remaining. [3] The effect of the employees’ terminations was the loss of employment benefits, including Medical Service Plan (“MSP”), extended health, dental and group life insurance (the “Employment Benefits”). The Employment Benefits are co-paid 75% by the Employer and 25% by the employee. The terminations did not, however, affect the employees’ receipt of LTD under a plan that their bargaining agent, the respondent Canadian Union of Public Employees, Local 403 (the “Union”), selects and administers for its members. The LTD plan provides coverage for 60% of a member’s wages for up to 10 years or until age 65, whichever comes first. The employees are members of the Union and will continue to receive LTD after their terminations in accordance with the Union’s plan. [4] The Employer and the Union are parties to a collective agreement (the “Collective Agreement”). The Collective Agreement does not address when an employee’s absence from work for illness or disability will be deemed unreasonable for the purpose of termination. Consequently, the Union filed grievances on behalf of the three members who were terminated contending, inter alia , that their terminations were improper because the denial of the Employment Benefits discriminated against the employees on the basis of disability. The Employer conceded that the terminations were prima facie discriminatory, but submitted they were justified on the basis of non-culpable absenteeism. [5] Non-culpable absenteeism can be a defence under s. 13(4) of the Human Rights Code, R.S.B.C. 1996, c. 210 (the “ HRC ”) to a finding of prima facie discrimination under s. 13(1) of the HRC. Section 13(1) prohibits a person from refusing to continue to employ a person because of a prohibited ground, including physical or mental disability; such conduct is prima facie discriminatory. Section 13(4) provides that s. 13(1) does not apply if the refusal to continue a person’s employment is based on a bona fide occupational requirement (“BFOR”). [6] In order to maintain the employment relationship an employee must work for pay. The dismissal of an employee with an illness or disability, while prima facie discriminatory, will be held to be non-discriminatory if an employer establishes that the employee “remains unable to work for the foreseeable future even though the employer has tried to accommodate him or her”: Hydro-Qu é bec v. Syndicat des employ é-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 ( SCFP-FTQ), 2008 SCC 43 at para. 18 [ Hydro-Qu é bec ]. [7] The grievances filed by the Union on behalf the three employees were heard by Arbitrator McPhillips (“the Arbitrator”). At the hearing, the Employer acknowledged that the cost of continuing the Employment Benefits for these employees was a significant consideration in its decision to terminate them. However, the Employer maintained that the determining factor for its decision was the permanent breakdown of the employment relationship with the employees. [8] On February 4, 2015, the Arbitrator found the terminations were discriminatory, contrary to s. 13(1) of the HRC. He ordered the employees be reinstated and made whole. During the course of his analysis, the Arbitrator applied the well-established test from British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [ Meiorin ]. Having conceded there was prima facie discrimination, the Meiorin test sets out the criteria by which an employer may justify the standard as a BFOR. Those criteria include (at para. 54): (i)         that the employer adopted the standard for a purpose rationally connected to the performance of the job; (ii)        that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and (iii)       that the standard is reasonably necessary to the accomplishment of that legitimate work related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. [9] The Arbitrator concluded that the Employer did not act in good faith in adopting the requirement that these three employees attend work – the alleged BFOR. He found that the manner in which the employees were terminated was (1) arbitrary; (2) randomly applied; and (3) resulted in the disparate or differential treatment of the employees. [10] On March 3, 2015, the Employer filed a notice of appeal to this Court from the Arbitrator’s decision. The Employer submits the Arbitrator erred by: (1) failing to apply the relevant authorities and the correct legal test to the facts before him; and (2) failing to apply the well-established Meiorin test by adding extra criteria to the test. On the same date, the Employer also filed an application to the Labour Relations Board (the “Labour Board”) for a review of the Arbitrator’s decision in order to preserve the jurisdiction of the Labour Board over this matter in the event this Court declined to take jurisdiction. [11] These parallel streams for reviewing the decision of an arbitrator are mutually exclusive, not concurrent jurisdictions. The vexing issue of which is the proper forum for an appeal/review of an arbitrator’s decision is determined by ss. 99 and 100 of the Labour Relations Code, R.S.B.C. 1996, c. 244, Part 8 [ LRC ]. They provide: 99 (1) On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that (a) a party to the arbitration has been or is likely to be denied a fair hearing, or (b) the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this code or another Act dealing with labour relations principles. 100 On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99(1). [12] The legislative scheme, in effect, directs this Court to determine both its jurisdiction and that of the Labour Board. The Labour Board will defer to the Court’s decision on jurisdiction in order to avoid concurrent jurisdictions resolving the dispute: Pinette & Therrien Mills Ltd. v. I.U.E.C., Local 82, B.C.L.R.B. 124/87. On May 7, 2015, the Labour Board granted the Employer’s application that it be permitted to defer the adjudication of its s. 99 application before the Labour Board pending the outcome of this appeal: Corporation of the Township of Langley and the Canadian Union of Public Employees, Local 403, [2015] B.C.L.R.D. No. 84. [13] The three-prong test for determining the question of jurisdiction under ss. 99 and 100 of the LRC was summarized in Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115, 2006 BCCA 58 at para. 17 [“ Kemess Mines ”], based on the judgment in Health Employers Assn. of B.C. v. B.C. Nurses’ Union, 2005 BCCA 343 [“ Health Employers 2005” ]. At paras. 49-50 the Court set out the analytical approach to be adopted on this issue: 1.         Identify the real basis of the award; 2.         Determine whether the basis of the award is a matter of general law; 3.         If the basis of the award is a matter of general law, determine whether it raises a question or questions concerning the principles of labour relations, whether expressed in the Labour Relations Code or another statute. If the answer to the third question is affirmative, then review of the award lies within the jurisdiction of the Labour Relations Board. If it is negative, review lies within the jurisdiction of this Court. [14] For the reasons that follow, I am of the view that the jurisdiction to review the Arbitrator’s decision falls to the Labour Board. The Arbitrator’s decision includes a human rights analysis with respect to the nature and scope of an employer’s duty under the HRC . That issue is clearly a matter of general law. I am persuaded, however, that the real basis of his award concerns the layering of labour relations principles (including the concepts of arbitrariness, randomness, and differential impact) to his application of the well-settled human rights principles from Meiorin and Hydro-Qu é bec for the purpose of addressing the “honest and good faith belief” of the Employer’s work for pay standard. The basis of the award involved an analysis of how, in the circumstances of these employees and the process used by the Employer in this case, the labour relations principles should interact with well-established general law on human rights. In the result, the jurisdiction to review this issue must fall to the expertise of the Labour Board and not the Court. Accordingly I would quash the appeal for want of jurisdiction. The Arbitrator’s Reasons [15] The Arbitrator addressed a number of issues that are not the subject matter of this appeal. He then turned to the issue of whether the Employer’s actions contravened s. 13 of the HRC , noting that the Employer conceded the terminations were prima facie discriminatory under s. 13(1). He correctly articulated the three-step Meiorin test for establishing a BFOR and then considered the Employer’s motivation for terminating the employees in order to determine if the Employer had demonstrated an honest and good faith belief that the BFOR standard in the circumstances of this dispute was necessary. [16] The Arbitrator noted “a number of concerns about the ‘standard’ which was applied” by the Employer, including: (1) the absence of a pre-determined measure or standard policy as to when the employment relationship would be considered as ended; (2) the absence of any finding with respect to the characteristics or circumstances of the individual employees; (3) the motivation to save money from the payment of the Employment Benefits, which he also found did not automatically constitute bad faith or malice in the application of the BFOR; (4) the arbitrariness of the Township’s actions in deciding to terminate all three employees at a random point in time; (5) the absence of a “frustrating” event in the Spring of 2013 that had altered the situation that had existed for years; and (6) the differential or disparate treatment of the employees. Based on these factors, the Arbitrator concluded that the Employer had not established an honest and good faith belief that the BFOR was necessary. Therefore he held that the termination of the three employees in June 2013 for non-culpable absenteeism was discriminatory. [17] These findings related to the first two steps of the Meiorin test, which the Arbitrator reasoned were determinative of the matter. However, he went on to consider the third step of the Meiorin test, namely whether further accommodation would impose an undue burden or undue hardship on the Employer. The Arbitrator relied on the Hydro-Qu é bec discussion with respect to non-culpable absenteeism, to conclude that “the point of undue hardship is reached when an employee can no longer provide any labour, with or without accommodation; at that point the duty to accommodate has been met” (at p. 32). In the circumstances of these employees, he reasoned, “the duty to accommodate would have been fulfilled” (at page 34). That is to say, had he accepted that the Employer’s occupational requirement that these employees, in their circumstances, had to show up for work, was a BFOR, their terminations would have been non-discriminatory under the Meiorin test. [18] Thus, the substantive issue raised by the Employer in this appeal is whether the Arbitrator’s consideration of labour relations principles – including arbitrariness, randomness, differential treatment, the lack of a “frustrating event”, and the Employer’s motivation to save money through these terminations – in conjunction with his application of the Meiorin test, had the effect of changing or modifying that well-established test. Jurisdiction [19] The cumbersome dual system of mutually exclusive appeal/review processes under ss. 99 and 100 of the Code has attracted a variety of colourful descriptions. In Health Employers’ Assn. of British Columbia v. British Columbia Nurses’ Union, 2003 BCCA 608 [“ Health Employers 2003 ”] Madam Justice Southin characterized it as “a brain teaser of the highest order” (at para. 3); in Health Employers 2005, Chief Justice Finch referred to the “awkward wording” of ss. 99 and 100 (at para. 47); in Chilliwack School District No. 33 v. Chilliwack Teachers’ Association, 2005 BCCA 411 [“ Chilliwack ”], Mr. Justice Esson described the elements of ss. 99 and 100 as “obtuse and notoriously brain-teasing”; and in Okanagan College Faculty Assn. v. Okanagan College, 2013 BCCA 561 [“ Okanagan College ’], Madam Justice MacKenzie described the issue of deciding the “real basis” of the award as “similar to deciding which leg of a table is the ‘real leg’” (at para. 85). Indeed, I think it fair to say that magnums of ink have been spent on this subject, arguably with limited success in advancing clarity on the matter. The root tensions would seem to still exist and must be grappled with in each case. [20] While the legislation has not changed, this Court’s understanding and interpretation of its jurisdiction appears to have evolved since the seminal decision of Kinsmen Retirement Centre Association v. Hospital Employees’ Union, Local 180 (1985), 63 B.C.L.R. 292 [“ Kinsmen ”]. Much of that evolution has been animated by the historical concerns about courts adjudicating on issues from specialized areas of the law where they had limited expertise or where they were perceived as antagonistic to labour principles: Chilliwack at para. 13; and Castlegar & District Hospital v. British Columbia Nurses’ Union, 2003 BCCA 608 at para. 110 [ Castlegar ]; see also Castlegar at paras. 19-26 per Southin J.A., dissenting. These concerns continue to drive a constrained view of this Court’s jurisdiction. [21] The issue in Kinsman was whether the employer’s requirement that new employees join a pension plan, when existing employees had the option not to do so, contravened a provision of the parties’ collective agreement. The employees had grieved the issue and an arbitrator held that the collective agreement did not require the new employees to comply with the employer’s direction. The employer appealed, submitting that the arbitrator erred in law in his interpretation of the collective agreement. The Court allowed the appeal and set aside the arbitrator’s decision. Writing for the Court, Mr. Justice Lambert explained the distinction between what are now ss. 99 and 100 of the LRC : [16]      … the jurisdiction of this court depends on the “basis of the decision or award”, and not on bringing every link in the chain of reasoning leading to the decision of award within the description “a matter or issue of the general law”. As was pointed out by Chief Justice Farris and Mr. Justice Taggart in the A.I.M. Steel case, the “basis” must mean the “main constituent” and not every constituent. In a similar way, the jurisdiction of the Labour Relations Board depends on whether the arbitration decision or award is inconsistent with the principles of the Code or a labour relations statute. It is the real substance and determinative constituent of the decision or award on which the Labour Relations Board’s review jurisdiction rests. I think that the wording of ss. 108 and 109 [now ss. 99 and 100 respectively] was carefully chosen by the Legislature in order to avoid having some parts of an award subject to review by the Labour Relations Board and other parts of the award subject to review by this court, with neither body having jurisdiction to consider the entire chain of reasoning and to grant a remedy. [22] Thereafter, the Court appeared to adopt a more nuanced approach to this issue as greater deference was accorded to the expertise of the Labour Board in labour relations matters and as the Court engaged with the legislative intent animating ss. 99 and 100. In Health Employers 2003, the Court declined to take jurisdiction with respect to an appeal of a decision of a labour arbitrator that it found principally involved the application of the general law as part of the larger labour relations dispute between the parties concerning the grievance of an employee’s dismissal under their collective agreement. Writing for the majority, Mr. Justice Mackenzie stated: [154]    In the result, however, I do not think that the award at issue on this appeal is based on an issue of general law outside s. 99(1). One must be careful not to bring “every link in the chain of reasoning leading to the decision or award within the description ‘a matter or issue of the general law’”: Kinsmen, para. 16. The basis of an award does not mean “every constituent”: A.I.M. Steel Ltd. v. United Steelworkers of America Local 3495 (1975), 111 L.A.C. (2d) 116 (B.C.C.A.). Once the arbitrator found that the grievor’s conduct was exclusively non-culpable, I am satisfied that his articulation of the duty to accommodate was consistent with authority and did not raise any issue of general law. The arbitrator then considered whether the employer fulfilled its duty to accommodate, an inquiry that Huddart J.A. in my respectful view correctly characterized as a factual issue in Fording Coal [ Westmin Resources Ltd. v. C.A.W.-Canada, Local 3019, 1999 BCCA 534, sub nom. United Steelworkers of America v. Fording Coal ]. [23] In Health Employers 2005, the Court decided it had jurisdiction to review an arbitrator’s award with respect to the interpretation of s. 21 of the Employment Standard’s Act, R.S.B.C. 1996, c. 113 (the “ ESA ”) in circumstances where the employer wanted to recover the overpayment of wages without filing a grievance under the parties’ collective agreement. Chief Justice Finch, writing for a unanimous five-member court, explained that, while the first two questions posed in Kinsmen – namely the “real basis of the award” and “whether the basis of the award is a matter of general law” – were relatively straightforward to answer, the third question – that is “whether the award is inconsistent with principles expressed or implied in the code or another Act dealing with labour relations” – was more problematic. He reasoned that the Court must (1) give effect to all of the words of the specific provisions (i.e., ss. 99 and 100), which meant “asking whether the award is inconsistent with principles expressed or implied in the LRC or any other Act dealing with labour relations”; and (2) engage in a purposive interpretation of the sections resulting in the analytical approach to jurisdiction set out in Health Employers 2005 (outlined in para. 13 above). He concluded that the true basis of the arbitrator’s award was the interpretation of s. 21 of the ESA, which was a matter of general law as “it affected all employees, whether unionized or not” and that such an interpretation was “not inconsistent with any labour relations principle either expressed in any Act or, in this case the Employment Standards Act” (at para. 52). [24] In Chilliwack, the issue on appeal was whether an arbitrator, who was appointed pursuant to the terms of the parties’ collective agreement, erred in law by ordering the employer to disclose detailed notes of “the reference checks and interviews” it made with respect to the unsuccessful candidate for the position of school psychologist. The employer submitted the arbitrator erred in law in failing to give effect to its obligation under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, to ensure that personal information in its custody or under its control was not disclosed without that individual’s consent. The Court declined to take jurisdiction. Writing for the majority, Mr. Justice Esson underscored the narrow jurisdiction the Legislature had conferred to the Court under ss. 99 and 100, stating: [13]      The legislative history of sections 99 and 100 of the Code – the original provisions which were proclaimed effective on January 14, 1974 … – and the general history of labour relations in this Province in the preceding 75 years support the view that the legislative intent in enacting sections 99 and 100 was to confer a narrowly restricted jurisdiction upon the court. [25] Shortly thereafter, in Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115, 2006 BCCA 58 [“ Kemess Mines ”], Chief Justice Finch, writing for the Court, held that where the “issue of substance” (a slightly different turn of phrase from the statutory language of s. 100 which states “the basis of the decision or award”) goes beyond the application of the general law and concerns its interpretation, the Court’s jurisdiction under s. 100 will be engaged as human rights principles must “apply equally to unionized and non-unionized workplaces” (at para. 24). [26] In Communications, Energy & Paperworkers’ Union of Canada, (CEP) Local 789 v. Domtar Inc. 2009 BCCA 52 [“ Domtar ”], the Court elaborated on this distinction between the interpretation and the application of the human rights principles. There, the Court had to determine whether it had the jurisdiction to hear an appeal from an arbitrator’s decision to dismiss the grievance of eight employees on LTD, who were denied severance pay when the employer Domtar closed its paper mill in a manner that was allegedly discriminatory under the HRC. After referring to the distinction between interpretation and application of a human rights principle from Health Employers 2005, Madam Justice Levine, for the Court observed: [34]      Thus, the recent jurisprudence of this Court on the jurisdiction question has reflected a broad approach where an arbitrator has interpreted human rights principles , including the meaning and legal elements of prima facie discrimination, and the scope and nature of the duty to accommodate. Where, however, the arbitrator’s decision concerned the application of human rights principles to the facts as found by the arbitrator, the Court has found that it does not have jurisdiction to review the arbitrator’s decision. [Emphasis added.] [27] The high-water mark for deference and restraint by this Court in this area is found in United Steelworkers Local 9346 (Elkview Operations) v. Teck Coal Limited , 2013 BCCA 485 [“ Teck Coal ”]. The issue in Teck Coal was whether the Court had jurisdiction to hear an appeal by the union from an arbitrator’s dismissal of its application for an order preventing Teck from implementing random drug-testing of its employees. The parties had agreed that the “real basis of the decision is the application of the test for such an order under s. 92(1)(c) of the Code ” (at para. 22). This triggered the issue of “whether the application of this test is a matter of general law, and if so, whether this raises a question or questions concerning the principles of labour relations” (at para. 23). [28] Madam Justice Bennett, writing for the Court, stated that an issue of “general law” was “‘one that affects the community at large… a law that embraces a class of subjects or places and does not omit any subject or place naturally belonging to that class’, Black’s Law Dictionary, 4 th ed.” (at para. 24). While injunctive relief was held to be “clearly” a question of general law, that finding on its own did not end the analysis. Instead, relying on Nor-Man , Bennett J.A. reasoned that the arbitrator’s ability to adapt and apply common law doctrines flexibly “cannot be overlooked when assessing whether the application of the general law principles … falls within s. 99(1)” (at para. 36). Thus, where the arbitrator is applying the general law in a manner that is adapted to the labour relations context, review will lie with the Labour Board. Bennett J.A. noted that the Court’s jurisdiction was narrow in scope (relying on Chilliwack ), and that the comments of Mr. Justice Fish in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals , 2011 SCC 59 [“ Nor-Man ”] supported this view: [35]      Justice Fish specifically addresses an arbitrator’s ability to adapt and apply common law principles to the labour law context: [45]      … labour arbitrators are authorized by their broad statutory and contractual mandates and well equipped by their expertise to adapt the legal and equitable doctrines they find relevant within the contained sphere of arbitral creativity. To this end, they may properly develop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievances of which they are seized. [46]      This flows from the broad grant of authority vested in labour arbitrators by collective agreements and by statutes such as the [Manitoba] LRA, which governs here. Pursuant to s. 121 of the LRA, for example, arbitrators and arbitration boards must consider not only the collective agreement but also “the real substance of the matter in dispute between the parties”. They are “ not bound by a strict legal interpretation of the matter in dispute”. And their awards “provide a final and conclusive settlement of the matter submitted to arbitration”. [Emphasis in the original reasons of Fish J.] [29] The final decision in this review is Okanagan College Faculty Assn. v. Okanagan College, 2013 BCCA 561 [“ Okanagan College ”]. In Okanagan College the Court declined to take jurisdiction in an appeal by a union from an arbitrator’s award dismissing its grievance with respect to the employer’s refusal to allow employees on maternity or parental leave to accrue teaching load units. The union submitted the arbitrator’s decision was an error in law as it contravened the collective agreement and/or the HRC. [30] Speaking for the Court, Madam Justice MacKenzie discussed the importance of the interpretation/application distinction in the jurisprudence. While characterizing an arbitrator’s decision as an application or interpretation of general law remains part of the analysis, MacKenzie J.A. added two further considerations: (1) an application of the law that required a limited amount of interpretation with respect to “how the general legal principles should be applied in the context of a given case” (at para. 58), would not convert such an application to an interpretation of the law as contemplated in Domtar ; and (2) in any event, the interpretation/application distinction was not determinative but rather was “a useful heuristic”, stating: [57]      It seems to me this application is premised on the notion that where legal interpretation of the “general law” has largely been accomplished in advance of the arbitrator’s award, it will be the arbitrator’s conclusions as to the factual or interpretive context in which the alleged discrimination took place that will really drive the outcome, and therefore serve as “the basis” of the award. [58]      Of course, any application of the general law, to some extent, requires an interpretation of what the law requires in that specific context, and how general principles should be applied in the context of a given case. It might be said that every case, in the absence of clear and binding authority on the very point in issue, involve some [emphasis in original] interpretation of what the law requires, if only in finding the case at hand meets the legal standards established. I do not take the distinction between interpretation and application in Domtar as categorical, but rather a useful heuristic in determining the true nature or basis of an arbitrator’s conclusion. The more the assessment undertaken by an arbitrator relies on settled principles of law, and the more the analysis depended on the particular context of the case in hand, the more it will be considered an application of the general law, as opposed to its interpretation. [Emphasis added.] [31] In Okanagan , MacKenzie J.A. had to identify which of the “multiple ‘real bases’ of an award” was the true real basis. In doing so, she partially rested her conclusion on the application/interpretation distinction: paras. 46, 54. Thus, despite expressing caution about the distinction, MacKenzie J.A. recognized its use as a tool to determine jurisdiction. Role of the Arbitrator [32] Consideration of this Court’s jurisdiction on appeal from a labour arbitrator would not be complete without consideration of the specific goal of arbitration, and the role of the arbitrator. [33] Section 82(1) of the LRC sets out the purpose of arbitration. It provides: 82  (1) It is the purpose of this Part to constitute methods and procedures for determining grievances and resolving disputes under the provisions of a collective agreement without resort to stoppages of work. (2) An arbitration board, to further the purpose expressed in subsection (1), must have regard to the real substance of the matters in dispute and the respective merit of the positions of the parties to it under the terms of the collective agreement, and must apply principles consistent with the industrial relations policy of this Code, and is not bound by a strict legal interpretation of the issue in dispute. [Emphasis added.] [34] A labour arbitrator has “a different mission” from that of a court. This difference in roles was explained by Fish J. in Nor-Man . In Nor-Man, the arbitrator found the employer had misinterpreted the collective agreement for many years but concluded the union was estopped from obtaining remedial relief because of its long-standing acquiescence. On judicial review, the Manitoba Queen’s Bench declined to interfere with the arbitrator’s decision; the Manitoba Court of Appeal allowed the appeal and reviewed the decision on a standard of correctness, concluding that the arbitrator had failed to correctly apply the law of estoppel. The Supreme Court of Canada set aside the Court of Appeal’s decision. Fish J. stated that “[l]abour arbitrators are not legally bound to apply equitable and common law principles ― including estoppel ― in the same manner as courts of law. Theirs is “a different mission”, informed by the particular context of labour relations” (at para. 5). He explained: [6]        To assist them in the pursuit of that mission, arbitrators are given a broad mandate in adapting the legal principles they find relevant to the grievances of which they are seized. They must, of course, exercise that mandate reasonably, in a manner that is consistent with the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievance. [35] The reasons of Fish J. call into consideration the administrative law principle of reasonableness from Dunsmuir v. New Brunswick , 2008 SCC 9. The arbitrator’s different mission from the Court, the requirement that reasonableness be used in reviewing an arbitrator’s decision, and the need for deference to be given to the arbitrator’s expertise, in my respectful view calls for a cautionary approach from this Court where an arbitrator may have layered labour relations principles on top of his or her application of the general law. Summary [36] This Court’s jurisdiction pursuant to s. 100 of the LRC will be satisfied when the appellant establishes that: (1) the real basis of the decision or award to be appealed involves the application or interpretation of a matter or issue of the general law; and (2) that the matter or issue does not include a dispute about whether the decision to be appealed “is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations”. When the interpretation/application tool is factored in, an interpretation of the general law that does not involve a consideration of labour relations principles will fall to be determined by this Court and not the Labour Board. However, an application of the general law that also requires a consideration of labour relations principles applicable to the circumstances of the dispute will be accorded deference by this Court, and will fall to the Labour Board for determination. That is to say, this Court may demonstrate the required deference with respect to an arbitrator’s application of labour relations principles by acceding to the jurisdiction of the Labour Board for the review of an arbitrator’s decision on those matters. Application [37] The Arbitrator’s decision involved an application of well-established legal principles with respect to the interpretation of s. 13 of the HRC to the circumstances of these employees. As a matter of general law, an employer may terminate an employee for non-culpable absenteeism. Work for pay is a BFOR that is an essential feature of the employment relationship. Human rights legislation does not alter this fundamental bargain: Hydro-Québec at para. 15. It is not discriminatory to terminate an employee who is unable to comply with this fundamental bargain, provided the employer has met its obligation to accommodate that employee. Those who cannot meet the BFOR of attendance for work by reason of a protected ground (such as illness or disability) under the HRC , can legitimately be terminated where the duty to accommodate has been discharged . The employer’s obligation in these circumstances continues only to the point that it may do so without experiencing undue hardship and “ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future”: Hydro-Québec at paras. 16 and 19. [38] Nothing in these reasons should be interpreted as questioning the validity of non-culpable absenteeism as it has been recognized by the Supreme Court of Canada in Hydro-Québec . Indeed, the Arbitrator found that in the circumstances of this case, where the employees had been unable to work because of their disabilities for almost 10, 8 and 7 years respectively, the Employer had no further duty to accommodate their disabilities. [39] However, the Arbitrator extended his analysis beyond the simple application of non-culpable absenteeism, as he was entitled to do under s. 82 of the LRC. He examined how the Meiorin test should be applied in the context of this labour relations dispute. In applying the Meiorin test, he focused on the process by which the Employer determined that these three employees should be terminated. Applying labour relations principles, he concluded that the process followed by the Employer was arbitrary, random, and resulted in disparate or differential treatment of the employees, implying that the Employer had acted unreasonably and not in good faith in enforcing the attendance at work as a requirement of their jobs. In these circumstances, because of questions concerning the process by which the employees were terminated, the Arbitrator found that their requirement to attend at work was not a BFOR. Accordingly, he held the terminations were discriminatory as the Employer had not established a BFOR to rebut the prima facie discriminatory terminations. [40] In my opinion, it is not for this Court to wade into the issue of whether the Arbitrator’s determination with respect to his application of the Meiorin test to the circumstances of the employees’ terminations was correct or reasonable, as that determination engages a consideration of labour relations principles. Those principles as they apply to this dispute are properly left to the expertise of the Labour Board for review. This conclusion does not in any way change the “general law” in Hydro-Québec, which remains applicable in both forums. Deference, however, must be accorded to the Labour Board on the application of labour relations principles. [41] I would quash the appeal for want of jurisdiction. “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice Bennett” I AGREE: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Semenoff Estate v. Semenoff, 2017 BCCA 17 Date: 20170109 Docket: CA43539 Between: Robert Semenoff, Executor of the Estate of Bill Semenoff, Deceased Appellant (Plaintiff) And Mike Semenoff and Marion Demosky Respondents (Defendants) Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Frankel The Honourable Madam Justice Dickson On appeal from: An order of the Supreme Court of British Columbia, dated February 19, 2016 ( Semenoff Estate v. Semenoff , 2016 BCSC 267, Nelson Registry No. 18204). Oral Reasons for Judgment Appellant appearing in Person: R. Semenoff Counsel for the Respondents: T. Pearkes Place and Date of Hearing: Vancouver, British Columbia January 9, 2017 Place and Date of Judgment: Vancouver, British Columbia January 9, 2017 Summary: Mr. Semenoff appeals from an order dismissing his claim, awarding special costs to the defendants and declaring him a vexatious litigant following a summary trial. His claim concerned alleged wrongful conduct by one defendant in performing her duties as power of attorney for his late father. The summary trial judge found no evidence to support his claim. On appeal, he advances a broad range of submissions concerning the duties of a power of attorney, procedural fairness in the proceedings below, and a number of other errors of law, mixed fact and law, and fact. Held: appeal dismissed. While the trial judge should have engaged in a more rigorous examination of provisions of the Power of Attorney Act, any error in failing to do so was immaterial to the outcome. The litigation process was not unfair to Mr. Semenoff. The trial judge did not err in exercising his discretion to issue a vexatious litigant order against Mr. Semenoff. [1] BAUMAN C.J.B.C. : Robert Semenoff appeals from the order of Justice A. Saunders, pronounced 19 February 2016 at the conclusion of a summary trial in Nelson, B.C. I refer to the parties, apart from the appellant, by their first name for convenience and not out of disrespect. Mr. Semenoff – in his capacity as executor of the estate of his late father, Bill Semenoff (“Bill”) – alleged a range of wrongful conduct against the defendants in connection with their caretaking of Bill. In particular, he alleged misconduct by the defendants in accessing Bill’s assets to pay for his expenses. On application by the defendants, the trial judge dismissed Mr. Semenoff’s claim, and declared him to be a vexatious litigant in both his personal capacity and in his capacity as executor of Bill’s estate. The trial judge also awarded the defendants special costs. On appeal, Mr. Semenoff seeks to have this Court set aside the trial judge’s order, award judgment in his favour and award him special costs. Facts [2] Bill was the brother of the defendants, Mike Semenoff (“Mike”) and Marion Demosky (“Marion”). Mike and Marion began to care for Bill after he was involved in a motor vehicle accident in 1994. In or about 1995, Bill was diagnosed with dementia and required home support. On the advice of counsel, Bill executed a general power of attorney appointing Marion as his attorney on 18 January 1996. Bill died on 15 September 2006. Mr. Semenoff and his brother, Howard, are executors of Bill’s estate. [3] Mr. Semenoff filed a notice of civil claim on 8 March 2012, which he amended on 24 December 2012. He alleged that the defendants dishonestly took advantage of Bill for their own personal benefit, enriched themselves at the expense of Bill’s estate, and failed to provide an accounting of benefits they received and property they took. He alleged that the defendants committed criminal fraud. Mr. Semenoff sought a declaration that the defendants are constructive trustees, disgorgement of profits, tracing and general and punitive damages. [4] The defendants applied for dismissal of Mr. Semenoff’s action by way of summary trial, summary judgment or by reason of want of prosecution. They also sought an order declaring Mr. Semenoff and the estate vexatious litigants. The trial judge considered these applications by way of a summary trial on 21 July 2015. At the time of the summary trial, the defendants had examined Mr. Semenoff for discovery, but Mr. Semenoff had not examined the defendants nor produced a list of documents. Related Litigation [5] The following actions have been commenced by Mr. Semenoff and are relevant to the vexatious litigant application: (1)        Mr. Semenoff and Howard, as executors of Bill’s estate, sued the defendants and their brother, Steve, in respect of ownership of the family acreage — that action was dismissed with costs on the defendants’ application; (2) Mr. Semenoff brought an action against Bill’s solicitor, Mr. Bridgeman, claiming professional negligence in respect of registering Bill and his three siblings as joint tenants of the family acreage (the “Bridgeman action”) —that action was dismissed after a no-evidence motion following a nine day trial, and Mr. Bridgeman was awarded double costs; and (3) Mr. Semenoff brought a fraudulent conveyance action against Mr. Bridgeman and his wife, which was dismissed and resulted in Justice McEwan making a vexatious litigant order against Mr. Semenoff in respect of further actions arising out of the facts alleged in the professional negligence or fraudulent c onveyance actions. [6] Mr. Semenoff appealed the dismissal in the Bridgeman action. After failing to pursue the appeal in the required time, Mr. Semenoff unsuccessfully sought to have the appeal removed from the inactive list in chambers. The dismissal of his application was confirmed by a division of this Court. Mr. Semenoff’s application for leave to appeal this dismissal to the Supreme Court of Canada was dismissed. Decision under appeal [7] The trial judge began his reasons by citing the onus on Mr. Semenoff to prove his claims in a summary trial from Gichuru v. Pallai , 2013 BCCA 60. He then found that Mr. Semenoff failed to adduce any evidence in support of his “grave allegations” and that he founded his action on nothing more than “suspicion, conjecture and speculation”. The lone argument Mr. Semenoff advanced was that “the truth is out there”. [8] With respect to the vexatious litigant application, the trial judge summarized the various actions Mr. Semenoff had commenced against the defendants and Mr. Bridgeman. He quoted at length from the reasons of Justice Mackinnon in the Bridgeman action concerning Mr. Semenoff’s unhelpful approach to the litigation and his preoccupation with conspiracy theories concerning Marion’s conduct as attorney for Bill. He then agreed with Justice Mackinnon’s characterization of Marion as “genuinely caring” and someone who “stepped up to the plate by sacrificing her own time and money over many years, to ensure that Bill received the best of care”. [9] On the merits of Mr. Semenoff’s claim, the trial judge noted that Bill was entirely dependent on his Canada Pension Plan and Old Age Security benefits, and had no assets other than his joint tenancy in the family acreage. He found that Marion accessed Bill’s accounts only for his personal care expenses, and his residency and associated expenses. He also found that Marion was exceedingly conservative in claiming expenses that she incurred personally when acting under the power of attorney. She made some minor expenditures after Bill’s death after failing to realize that her power of attorney expired upon his death. However, the trial judge found that those expenditures were made in good faith and without the defendants being enriched. The defendants also provided a full accounting of the payments. Based on these findings, the trial judge dismissed the action. [10] On the issue of special costs, the trial judge found that Mr. Semenoff’s conduct in making allegations of dishonest and criminal conduct without any justification was reprehensible and deserved an award of special costs. As it relates to the vexatious litigant application, the trial judge found that Mr. Semenoff instituted and maintained vexatious legal proceedings habitually, persistently and without reasonable grounds. Accordingly, he ordered that Mr. Semenoff, in his personal capacity and in his capacity as executor of Bill’s estate, not commence a legal proceeding in any court without leave. Submissions [11] Mr. Semenoff alleges 30 errors in the judgment in the court below relating to what he phrases as “pleading of affirmative defenses [ sic ], natural justice and the rights and obligations of agents acting under [a] power of attorney”. I have grouped the alleged errors into the categories of errors of law, errors of mixed fact and law and errors of fact. [12] For their part, the defendants submit that appellate intervention is not justified and none of the errors counter the trial judge’s finding that Mr. Semenoff simply failed to discharge his onus to prove his case. Errors of Law [13] Mr. Semenoff alleges a number of errors of law concerning: the onus of proof for facts raised in defence, the onus on the defendants to prove a valid excuse for losing some receipts for expenditures made on behalf of Bill, the failure to consider any of Mr. Semenoff’s evidence, the failure to decide the issue Mr. Semenoff pleaded, deciding issues not pleaded by the defendants, the ability of the defendants to later charge for services they originally rendered gratuitously and the necessity of those services, interpretation of the exculpatory provisions of the Power of Attorney Act , R.S.B.C. 1996, c. 370 and failure to give effect to s. 2(2) of that Act , conflation of the breach of authority with breach of fiduciary duties of candour, the failure to take judicial notice of the equitable duty of candour, the failure to find that an attorney who has exercised a power owes fiduciary obligations, the failure to find that fraud on a power is a justiciable cause of action, an error in deciding that a proprietary claim to estate administration documents is not justiciable, an error in admitting expert or hearsay evidence and other “conclusory” evidence, inappropriately expanding the scope of the vexatious litigant application beyond that sought by the defendants, and the failure to give Mr. Semenoff adequate opportunity to respond to allegations of vexatious conduct. [14] The defendants submit that Mr. Semenoff misconstrues how the trial judge invoked the onus of proof. The onus of proof was on Mr. Semenoff to prove his claims and he failed to discharge that onus. The trial judge did not decide the case based on the defendants’ pleadings or any defence, and nor did he decide issues not pleaded by the defendants. The defendants note that Mr. Semenoff sought no relief for loss of receipts such that there was no need for the judge to make findings to excuse any such loss. Further, there is no foundation for the suggestion that the trial judge failed to decide a cause of action pleaded by Mr. Semenoff. Concerning the alleged charges for gratuitous services, the defendants say the trial judge made a finding of fact that Marion was generous and did not charge Bill’s estate when she was entitled to do so; he did not find that she charged for services that were rendered gratuitously. On Mr. Semenoff’s various submissions concerning the duties of a power of attorney, the defendants rely on s. 3 of the Power of Attorney Act and note that Mr. Semenoff never pleaded or argued reliance on the Law and Equity Act , R.S.B.C. 1996, c. 253, or Trustee Act , R.S.B.C. 1996, c. 464. In any event, it is clear that the judge appreciated that Marion owed fiduciary duties and found any exercise of powers after Bill’s death was minor and did not constitute a breach. Mr. Semenoff has not identified how this conclusion was unreasonable. With respect to the justiciable cause of action arguments, the defendants say the judge made no finding that fraud on a power is not justiciable — he determined that Mr. Semenoff had failed to prove his allegations. The defendants further say that Mr. Semenoff never advanced a proprietary claim for estate documents. On the alleged evidentiary errors, the defendants say they cannot respond because Mr. Semenoff has not particularized the evidence he now objects to. Further, on the receipt of the expert evidence point, the defendants say the accountant’s report was not opinion evidence, but rather factual evidence. They note that he did not object to any of the evidence led in the court below. Finally, with respect to the vexatious litigant application, the defendants say the judge had the jurisdiction to make the order that he did and provided Mr. Semenoff with the full opportunity to be heard. Errors of Mixed Fact and Law [15] Mr. Semenoff alleges a number of errors of mixed law and fact, including that the trial judge: failed to make the findings necessary to excuse the defendants from losing the receipts; failed to construe Justice Mackinnon’s reasons in their entire context; failed to recognize the defendants’ formal admissions including affirmative defences; failed to corroborate the defendants’ evidence; failed to take judicial notice of the requirement for accounting as to the joint tenancy; failed to consider whether Mr. Semenoff had enough time to assemble the case for summary disposition; failed to consider whether the list of documents caused the defendants any prejudice; failed to find the facts necessary for a formal admission; and failed to consider whether the defendants’ list of documents, pleadings and lack of a case planning conference caused unfairness to Mr. Semenoff. [16] The defendants again point out that Mr. Semenoff never sought relief for lost receipts. With respect to the reference to Justice Mackinnon’s reasons, they say the judge merely highlighted passages that were apt in explaining that he had come to similar conclusions. Regarding corroboration, the defendants argue that the summary trial judge was not required to find corroboration in the absence of conflicting evidence from Mr. Semenoff or some reason to make an adverse credibility assessment. On the issue of the accounting as to the joint tenancy, the defendants say this was not framed by the pleadings and Mr. Semenoff never made any such submission in the court below. In light of the factual finding that the defendants accessed Bill’s accounts only to pay his assorted expenses, there was no need for an accounting. With respect to the alleged admissions, the defendants say there is no basis to conclude that the trial judge failed to consider any judicial or factual admissions – Mr. Semenoff’s argument is pure speculation. On Mr. Semenoff’s procedural fairness arguments, the defendants acknowledge that they filed their materials within the 28 days following their notice of intention to proceed, which properly can be taken as a step contrary to the Rules. They note that the hearing date was more than 28 days from the notice to proceed and that Mr. Semenoff advised the court that the defendants had complied with the timelines and that he did not object to their filing the application within the 28 day timeline. Had the trial judge been asked to rule on this non-compliance with the Rules, the defendants submit that there was a sound basis on which to exercise his discretion to abridge the time. With respect to the need for more disclosure or a case planning conference, the defendants note that Mr. Semenoff did not bring applications concerning the quality of document disclosure, the adequacy of pleadings or the lack of a case planning conference having resulted in a case planning order. The parties held a case conference and the judge told Mr. Semenoff to get on with his action. Errors of Fact [17] Mr. Semenoff also broadly submits that the trial judge found facts not reasonably supported by the evidence. [18] The defendants submit that Mr. Semenoff has failed to identify any palpable and overriding error in the factual findings. They say there was direct and circumstantial evidence, which was corroborated by the accounting prepared and submitted to the court, to dismiss Mr. Semenoff’s claim. There was a reasonable basis for the trial judge’s finding despite the potential that some original receipts were missing. [19] Parenthetically, I note that defendants’ counsel referred to the standard of review applicable to findings of fact as both palpable and overriding error and “reasonableness” in other places. While it does not bear on the merits of this case on appeal, counsel should note that these two standards of review should not be conflated. Analysis [20] I would dismiss the appeal. [21] In light of the breadth of Mr. Semenoff’s submissions, I have chosen to deal with only those issues that potentially present a viable argument on appeal. Duties Owed by a Power of Attorney - Expenditures Made After Bill’s Death and Lost Receipts [22] The key issue under this heading is the significance of Marion having made certain expenditures after Bill’s death after failing to realize that his death terminated her power of attorney. The relevant provisions of the Power of Attorney Act , are as follows: 2 (2) For the purposes of this Act, if a person has knowledge of the occurrence of an event that has the effect of terminating the authority of an agent, that person is deemed to have knowledge of the termination of the authority. 3 If an agent purports to act on behalf of a principal at a time when the agent's authority to do so has been terminated and (a) the act is within the scope of the agent's former authority, and (b) the agent has no knowledge of the termination, then, for the purpose of determining the liability of the agent for the act, the agent is deemed to have had the authority to so act. “[T]erminated” “when used with reference to the status of an agent’s authority, means that the authority has been terminated by revocation, or by operation of law or both” (s. 1). [23] In my view, s. 2(2) has the effect of deeming knowledge for purposes of s. 3(b) when the agent has knowledge of the event triggering termination – it does not require that the agent know the effect of the event. This places liability for the minor expenditures with Marion. [24] The trial judge excused this liability on the basis that the expenditures were made in good faith and without knowledge of the effect of the termination (at para. 16). He cited no authority for the ability to excuse liability created under the Power of Attorney Act based on good faith. Nevertheless, any error made by the judge in this regard is immaterial in light of his finding that the defendants fully accounted for the expenditures (at para. 17). Accordingly, I would not give effect to this ground of appeal. [25] Moreover, I agree with the defendants’ submissions concerning the significance of any lost receipts. Any prejudice caused by the failure to provide receipts is addressed by the accounting report by Yule Anderson. Mr. Semenoff has not shown this report to be in error – he has merely suggested, without evidentiary foundation, that the accountants were bribed to prepare it and that it represents a fraudulent report. The defendants provided copies of statements of accounts, receipts, journal vouchers, deposit slips and other back up materials on which the report was based in their list of documents. Procedural Fairness [26] Mr. Semenoff makes a number of submissions concerning the process followed by the court below and says he lacked a sufficient opportunity to respond to the defence. However, he neglects to acknowledge the relevance of his own dilatory conduct in prosecuting the proceedings. Bill passed away in September 2006. Mr. Semenoff filed his original notice of civil claim on 8 March 2012 and his amended claim on 24 December 2012. The defendants proceeded promptly by filing their response to civil claim, producing their list of documents and examining Mr. Semenoff for discovery all by 14 August 2012. They provided the accounting on 13 March 2013. The parties held a case planning conference on 26 May 2014 at which the judge instructed Mr. Semenoff to move forward with his claim. He did not, which led the defendants to issue the notice of intention to proceed on 15 June 2015. This led to the summary trial hearing on 2 July 2015. The defendants rightly concede that this was within the 28 days set out in Rule 22-4(4) of the Supreme Court Civil Rules , B.C. Reg. 168/2009, however, I agree that this would have been an appropriate case for the trial judge to have exercised his discretion to abridge that time had the issue been raised before him. [27] Mr. Semenoff has not particularized the nature of any prejudice he suffered by virtue of the litigation process. He provided no details at the summary trial hearing concerning what documents he required in addition to what the defendants had already listed on their list of documents. He did not examine the defendants for discovery. He has also failed to indicate precisely which orders should have been made in the case planning conference. Finally, Mr. Semenoff does not indicate the nature of his objection with the defendants’ pleadings. Boiled down to its essence, Mr. Semenoff’s claim was fairly simple – he alleged wrongful conduct by the defendants in their fiduciary capacity. The defendants adequately responded to this claim and were entitled to force Mr. Semenoff to move forward with his claim after years of delay. [28] In the absence of any other prejudice to Mr. Semenoff, I would decline to give effect to the procedural grounds of appeal. Vexatious Litigant Order [29] Contrary to Mr. Semenoff’s submission, the trial judge granted the vexatious litigant order on the exact terms asked for by the defendants; he did not unduly expand the scope of the order. [30] The summary trial judge had the power to make the vexatious litigant order pursuant to s. 18 of the Supreme Court Act , R.S.B.C. 1996, c. 443, which provides: If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court. [31] Section 18 confers a broad jurisdiction on the court to control its own process. This Court described the purpose of the provision as follows in S.(M.) v. S.(P.I.) (1998), 60 B.C.L.R. (3d) 232 (B.C.C.A.) at para. 13: Section 18 of the Supreme Court Act has been in the Act for a great many years. The section gives the court the needed ability to control its own process. It enables the court to put in place an order to prevent a citizen or citizens from being subjected to an endless blizzard of litigation. ... It is obviously of the utmost importance that there be unfettered access to the courts by citizens but I should think that a corollary of that is that continuing abuse of this most valuable and deeply enshrined democratic right should be dealt with decisively to preserve the rights of all. There is a right to invoke the jurisdiction of the Supreme Court but it is not a right that is without limit. In my opinion, s. 18 of the Supreme Court Act affords to judges of the Supreme Court the authority to order in proper cases that a persistent litigant must seek leave before being able to launch court proceedings. It is a necessary power to ensure the proper administration of justice. As illustrated by this quote, the right to issue a vexatious litigant order is not without limits. This leads to the question of whether the trial judge properly determined that Mr. Semenoff has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings. [32] In his reasons, the trial judge summarized the two related actions in which Mr. Semenoff involved the defendants and then outlined his reasons for the order as follows: Robert Semenoff has demonstrated a propensity to abuse the civil justice system through making grave allegations without any foundation in reality. He might have drawn the appropriate lesson from the judgment given by Mackinnon J., but he did not do so; instead he persisted in maintaining the claim at bar, without any proof of wrongdoing on the part of the defendants. He has instituted and maintained vexatious legal proceedings, in the words of s.18 of the Supreme Court Act , R.S.B.C. 1996 c. 443, habitually, persistently and without reasonable grounds. I therefore order that Robert Semenoff must not, without leave of the court, either in his own capacity or in his capacity as executor of the estate of Bill Semenoff, institute a legal proceeding in any court. (at para 21) [33] The trial judge made the vexatious litigant order based not only on the number of proceedings Mr. Semenoff had initiated, but also on the litigation strategy he adopted in those proceedings – in particular, “making grave allegations without advancing any proof in support of those allegations”. Importantly, the order was made after the defendants had explicitly sought such an order and Mr. Semenoff was given the opportunity to make submissions on the issue. This distinguishes the present case from that in Semenoff v. Bridgeman , 2016 BCCA 175, where this Court overturned a s. 18 order on the basis that the order was made without application and in the absence of Mr. Semenoff. [34] In his submissions, Mr. Semenoff opposed the vexatious litigant order on the basis that there were insufficient actions to satisfy the requirement of “habitually” bringing vexatious legal proceedings. He said he had only commenced four legal actions in his adult life – two of which he says he obtained leave to commence. However, the “habitual” requirement does not refer only to the number of different actions a party commences, but also to the nature of his or her conduct within a particular action itself. Mr. Semenoff has now commenced a number of proceedings in connection with the administration of his father’s estate that have taken up significant judicial resources. In the present case, he made grave allegations of criminal conduct on the part of the defendants and advanced no evidence other than the vague assertion that “the truth is out there”. In light of his persistence in making these types of allegations against the defendants and other individuals connected to his father (i.e. Mr. Bridgeman and the defendants’ late brother, Steve Semenoff), I can find no basis on which I would interfere with the exercise of the summary trial judge’s discretion under s. 18. [35] Mr. Semenoff also makes application before us for leave to submit fresh or “new” evidence on the appeal. I would decline to do so, although we heard it. The proposed evidence is not fresh or new and could have been led in the exercise of due diligence in the proceedings below. In any event, the so-called evidence consists of Mr. Semenoff’s affidavit and it largely contains arguments on issues of little relevance to the issues before us. Conclusion [36] I would dismiss the appeal. While the trial judge should have engaged in a more rigorous examination of provisions of the Power of Attorney Act , any error in failing to do so was immaterial to the outcome. I would also decline to hold that the litigation process was unfair to Mr. Semenoff or that he was prejudiced in presenting his case. In my view, there is no merit to the numerous other grounds of appeal that he now advances, and I would decline to intervene in the summary trial judge’s exercise of discretion to issue a vexatious litigant order against Mr. Semenoff. [37] FRANKEL J.A. : I agree. [38] DICKSON J.A. : I agree. [39] BAUMAN C.J.B.C. : The appeal is dismissed. The respondents will have costs on Scale 1. “The Honourable Chief Justice Bauman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Benavides v. Insurance Corporation of British Columbia, 2017 BCCA 15 Date: 20170110 Docket: CA43193 Between: Manuel Benavides Respondent (Plaintiff) And Insurance Corporation of British Columbia, South Coast British Columbia Transportation Authority, doing business as Translink, and Coast Mountain Bus Company Ltd. Appellants (Defendants) Before: The Honourable Mr. Justice Frankel The Honourable Madam Justice MacKenzie The Honourable Madam Justice Fenlon On appeal from:  An order of the Supreme Court of British Columbia, dated October 8, 2015 ( Benavides v. Doe , 2015 BCSC 1831, New Westminster Docket M150347). Counsel for the Appellants: G. Ritchey Counsel for the Respondent: R. Pici V. Cheung Place and Date of Hearing: Vancouver, British Columbia September 26, 2016 Place and Date of Judgment: Vancouver, British Columbia January 10, 2017 Written Reasons by: The Honourable Madam Justice Fenlon Concurred in by: The Honourable Mr. Justice Frankel The Honourable Madam Justice MacKenzie Summary: Appeal from a finding that a bus driver’s negligence caused the plaintiff to fall. Held: appeal dismissed. The plaintiff bears the burden of proving on a balance of probabilities that the defendant breached the high standard of care owed to passengers of public carriers. Once the plaintiff has established a prima facie case of negligence, the burden shifts to the defendant to show that he or she was not negligent. Although the trial judge misarticulated the test, he correctly determined the ultimate issue of liability based on his finding that the bus driver braked hard in order to avoid overshooting the bus stop. Reasons for Judgment of the Honourable Madam Justice Fenlon: introduction [1] The defendants in a personal injury action appeal a finding that a bus driver’s negligence caused the plaintiff to fall. The appellants contend the trial judge incorrectly placed the onus on the defendants to prove that the driver was not negligent. background [2] The respondent, Mr. Benavides, was injured in January 2012 while riding on a bus operated by the appellant South Coast British Columbia Transportation Authority, doing business as Translink, and Coast Mountain Bus Company Ltd. (“Translink”). Because the bus driver was not identified, Mr. Benavides named the Insurance Corporation of British Columbia as a nominal defendant under s. 24 of the Insurance (Vehicle) Act , R.S.B.C. 1996, c. 231. [3] The incident occurred when Mr. Benavides was travelling home from a supermarket on Fraser Street, in Vancouver. One stop before he intended to disembark, Mr. Benavides rang the bell to let the driver know he wanted to get off at the next stop. He then got up from his seat and moved to the rear door, holding on to the vertical metal bar with one hand, while holding shopping bags in the other. The bus braked suddenly and without warning when it was at or just past Mr. Benavides’ intended stop. He fell and sustained soft tissue injuries to his hands, knees, back, neck and right shoulder and contusions to his chest and rib cage. The bus was crowded with passengers. Mr. Benavides, who was 76 years old at the time of trial, left the bus without reporting the incident to the driver. About one month later the event was reported to Translink by someone on behalf of Mr. Benavides. [4] At trial a representative of Translink testified that bus drivers are trained to slow down as they pull into regular stops rather than drive at a normal speed and then brake suddenly. He testified further that drivers are trained to do everything possible to avoid sudden stops, except when they are necessary to avoid emergency hazards. [5] The trial judge found that Mr. Benavides fell as a result of the driver braking abruptly at the bus stop and that the fall caused Mr. Benavides’ injuries. He awarded damages of approximately $41,000. Analysis [6] The appellants do not contest the award of damages or the finding that Mr. Benavides was not contributorily negligent. The sole issue on appeal is whether the trial judge erred by assuming that a prima facie case of negligence is made out when a passenger is injured while riding on a public carrier, effectively reversing the onus of proof and requiring the defendant to establish that the injuries occurred without negligence. [7] The appellants submit that the trial judge misdirected himself on the burden of proof. At the beginning of his assessment of liability he said at para. 40: Once a plaintiff passenger establishes that he or she was injured while riding on a public carrier, a prima facie case of negligence is made out. The onus then shifts to the defendant carrier to establish that the passenger’s injuries occurred without negligence on the part of the carrier. The judge repeated this formulation in relation to the particular case before him at para. 43: The plaintiff has established that he was injured while a passenger on a bus operated by Translink, a public carrier. Accordingly, he has made out a prima facie case of negligence, and the burden shifts to the defendants to show that Mr. Benavides’ injuries occurred without negligence on the part of Translink, or that it resulted from a cause for which the defendants are not responsible. [8] The approach adopted by the trial judge has been followed in a number of cases in the Supreme Court of British Columbia. As Dardi J. observed in Prempeh v. Boisvert , 2012 BCSC 304, those cases relied on Day v. Toronto Transportation Commission , [1940] S.C.R. 433. She said: [17] Day v. Toronto Transportation Commission , [1940] S.C.R. 433, is the seminal case dealing with the liability of public carriers. The plaintiff, a passenger in a street car owned by the defendant, while standing and picking up a parcel in preparation to disembark, was thrown to the floor and injured by the sudden application of the emergency brake. The articulation of the standard of care was stated as follows by Hudson J. at 441: Although the carrier of passengers is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree: 4 Hals., p. 60, paras. 92 and 95. In an old case of Jackson v. Tollett (1817) 2 Starkie 37, the rule was stated by Lord Ellenborough, at p. 38, as follows: Every person who contracts for conveyance of others, is bound to use the utmost care and skill, and if, through any erroneous judgment on his part, any mischief is occasioned, he must answer for the consequences. [18] The principles articulated in Day have been interpreted by the courts in this province as endorsing the following analytical approach - once a passenger on a public carrier has been injured in an accident a prima facie case of negligence is raised and it is for the public carrier to establish that the passenger’s injuries were occasioned without negligence on the part of the defendant or that it resulted from a cause for which the carrier was not responsible: Planidin v. Dykes , [1984] B.C.J. No. 907 (Q.L.)(S.C.); Visanji v. Eaton and Coast Mountain Bus Co. Ltd. , 2006 BCSC 656 at para. 26. [Emphasis added.] [9] However, as Dardi, J. further noted in Prempeh, that approach relies on the maxim res ipsa loquitur (i.e., “the thing speaks for itself”), which was done away with by the Supreme Court of Canada in Fontaine v. British Columbia (Official Administrator) , [1998] 1 S.C.R. 424. Dardi J. addressed this change in the law at para. 19 of Prempeh : However it must be noted that in Fontaine v. British Columbia (Official Administrator) , [1998] 1 S.C.R. 424, 46 B.C.L.R. (3d) 1, Major J. in discussing the doctrine of res ipsa loquitur in the context of a single car accident, observed as follows: 27        It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed. [10] It is worth noting that Day itself, on a close reading, does not support an assumption of prima facie negligence when a passenger is injured while riding on a public carrier. In that case the plaintiff was injured when the driver of the streetcar he was riding on applied the emergency brake to avoid a vehicle performing a U-turn in front of it. A collision ensued. The sudden stop caused the passenger to fall. [11] The plaintiff’s original claim was only against the Toronto Transportation Commission (the “TTC”), which operated the streetcar. The TTC, in turn, defended the claim on the basis that the accident was caused entirely by the negligence of the driver of the vehicle. The plaintiff subsequently applied successfully to add the driver of the vehicle as a defendant. There was no issue of contributory negligence; the liability issue was a contest between the TTC and the operator of the vehicle. [12] The matter proceeded to trial before a judge and jury. The questions asked of the jury, and its answers on liability, were set out at page 437 of the judgment as follows: 1. Were the plaintiff’s injuries due to any negligence on the part of the motorman of the Transportation Commission? A. Yes. If your answer is “yes” in what did such negligence consist? A. The motorman was negligent in not looking or observing the road ahead of him; if he (the motorman) had been observing properly he would not have found it necessary to apply the emergency brake at all, thus avoiding the injury to the plaintiff. 2. Has the defendant Clarkson [the motor vehicle driver] satisfied you that the injuries of the plaintiff did not arise through any fault or negligence on his part? A. Yes. It is apparent from these questions that the liability of the TTC was determined based on the usual approach in negligence cases: the plaintiff bore the burden of establishing an act or omission on the part of the defendant that caused the injury. [13] In the Supreme Court of Canada, none of the five judges who provided reasons suggested, either expressly or implicitly, that the jury was improperly instructed or asked to follow an incorrect legal process. More significantly, none of the other judges adopted the oft-cited passage from the judgment of Hudson J. which is said to support a reverse onus approach when a public carrier is named as a defendant. [14] In any event, Fontaine has clearly overtaken Day as the authority on the burden of proof in cases of this kind. The plaintiff in Fontaine was the estate of a passenger who died when the vehicle he was travelling in left the road on Highway 3 between Hope and Princeton. The defendant driver also died in the accident. There were no witnesses and, therefore, no direct evidence as to what caused the accident. The plaintiff’s estate argued it could be inferred that the vehicle left the highway as a result of negligence because vehicles do not normally go off the road; as a result, it was up to the defendant to prove that the accident happened without negligence on his part. Since there was no evidence as to how the accident happened, the plaintiff’s estate argued it was bound to succeed. [15] The Supreme Court rejected the plaintiff’s argument as a matter of policy. At paras. 17-27 Major J. reviewed the types of case in which the maxim res ipsa loquitur had been applied historically, the practical difficulties that had arisen in determining the facts to which it applied and the effect of its application. In addressing the latter point Major J. confirmed at para. 23: As in any negligence case, the plaintiff bears the burden of proving on a balance of probabilities that negligence on the part of the defendant caused the plaintiff’s injuries. The invocation of res ipsa loquitur does not shift the burden of proof to the defendant. Rather, the effect of the application of res ipsa loquitur is as described in The Law of Evidence in Canada (1992), by John Sopinka, Sidney N. Lederman and Alan W. Bryant, at p. 81: Res ipsa loquitur , correctly understood, means that circumstantial evidence constitutes reasonable evidence of negligence. Accordingly, the plaintiff is able to overcome a motion for a non-suit and the trial judge is required to instruct the jury on the issue of negligence. The jury may, but need not, find negligence: a permissible fact inference. If, at the conclusion of the case, it would be equally reasonable to infer negligence or no negligence, the plaintiff will lose since he or she bears the legal burden on this issue. Under this construction, the maxim is superfluous. It can be treated simply as a case of circumstantial evidence. [Emphasis added.] [16] It is apparent from this passage that even in cases in which the maxim res ipsa loquitur had been applied historically, the burden of proof remained with the plaintiff. This led the Court in Fontaine to conclude at para. 27 that “the law would be better served if the maxim was treated as expired” in negligence actions. [17] I draw from this review of the law the following principles: · The mere fact that a passenger is injured while riding on a public carrier does not establish a prima facie case of negligence. · The plaintiff bears the burden of proving on a balance of probabilities that the defendant breached the standard of care owed to the plaintiff. · Once the plaintiff establishes a prima facie case of negligence, in practical terms the burden shifts to the defendant to answer the case against him and to show that he was not negligent. [18] In the present case, the appellants argue that the question of liability should be remitted to the trial judge so that the correct burden of proof can be applied to the evidence. In my view, the case can be resolved without further consideration by the trial court. Although the trial judge misarticulated the test, he made the following finding of fact which is sufficient to support his ultimate conclusion on liability: [47]      I find that the bus driver breached the standard of care expected of a reasonable and prudent bus driver by braking abruptly without warning his passengers and by braking suddenly in order to stop the bus at or beyond its regular stop at Fraser and 22nd Avenue. [19] Circumstantial evidence can support an inference of negligence. In my view, there was evidence to support the judge’s inference that the bus driver braked hard in order to avoid overshooting the bus stop. That inference was not, as in Lalani v. Wilson , [1988] B.C.J. No. 2408 (S.C.), a matter of “mere speculation”. [20] In summary, applying the correct test, the findings made by the trial judge support his ultimate conclusion on liability. In the circumstances, no purpose would be served by remitting the case to the trial court for reconsideration. I would accordingly dismiss the appeal. “The Honourable Madam Justice Fenlon” I AGREE: “The Honourable Mr. Justice Frankel” I AGREE: “The Honourable Madam Justice MacKenzie”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Laursen v. Director of Crime Victim Assistance, 2017 BCCA 8 Date: 20170110 Docket: CA43066 Between: Christian Laursen Appellant (Petitioner) And Director of Crime Victim Assistance Respondent (Respondent) Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Bennett The Honourable Madam Justice Dickson On appeal from:  An order of the Supreme Court of British Columbia, dated August 12, 2015 ( Laursen v. Director of Crime Victim Assistance , 2015 BCSC 1413, Vancouver Docket S150574). Counsel for the Appellant: J.E. Shragge K.A. Rose Counsel for the Respondent: T. Mason C. Drake Place and Date of Hearing: Vancouver, British Columbia October 11, 2016 Place and Date of Judgment: Vancouver, British Columbia January 10, 2017 Written Reasons by: The Honourable Chief Justice Bauman Concurred in by: The Honourable Madam Justice Bennett The Honourable Madam Justice Dickson Summary: Mr. Laursen appeals the chambers judge’s dismissal of his judicial review application after the Director refused to award him lost earning capacity benefits under the Crime Victim Assistance Act. He argues that the Director’s determination that he was unemployable at the time of his injury was unreasonable. He also says his judicial review application is not statute-barred. Held: Appeal allowed. There is a single reasonable interpretation of “employable” that requires the Director to determine whether the applicant has the intent and ability to become employed in the future. The Director failed to test Mr. Laursen’s potential for future employment, rendering his decision unreasonable. Mr. Laursen’s judicial review application is not barred by the passage of time because s. 11 of the Judicial Review Procedure Act provides relief from the statutory limitation period. Reasons for Judgment of the Honourable Chief Justice Bauman: Background I. [1] In the years preceding 2011, Christian Laursen struggled with addiction issues, polysubstance abuse and insulin dependent diabetes. He had been in receipt of a disability pension because of these matters since 2002. He was hospitalized in this regard from 10–16 February 2011. On the latter date he was discharged and referred to detox. [2] On 17 February 2011, Mr. Laursen was viciously beaten during the course of an apparent robbery. He was again hospitalized for a severe head trauma. On admittance to hospital he tested positive for cocaine and/or amphetamines. [3] Mr. Laursen was treated at Vancouver General Hospital until 22 March 2011. He was admitted to GF Strong Rehab Centre that day and discharged on 16 May 2011. [4] Mr. Laursen’s acquired brain injury has resulted in permanent deficits of mobility, mood, speech and cognition. In the opinion of his treating physician his prognosis is poor, as his cognitive deficit is likely to deteriorate. He is now permanently disabled from performing any form of physical work. This includes a position as house monitor at a Vancouver recovery facility that he was scheduled to commence in April 2011. [5] Mr. Laursen applied for and has been in receipt of benefits under the Crime Victim Assistance Act , S.B.C. 2001, c. 38 (the “ Act ”). However, in a series of decisions by adjudicators under that scheme, Mr. Laursen has been denied an award for “lost earning capacity”. [6] Mr. Laursen brought judicial review proceedings in respect of one of the decisions in the chain of the original adjudication, reconsiderations and reassessments of his application; this was the decision of the reconsideration adjudicator dated 18 May 2012. [7] The application for judicial review was brought well beyond the 60-day time limit set by s. 14.1(2) of the Act . [8] Mr. Laursen’s application for judicial review was dismissed by Justice G. C. Weatherill in reasons indexed at 2015 BCSC 1413. [9] He appeals from that order. In the reasons below, I consider the proper interpretation and application of “employability” and “employable” under the Act and the Crime Victim Assistance (Income Support and Vocational Services or Expenses Benefits) Regulation , B.C. Reg. 162/2002 (the “ Regulation ”). I also consider the Director’s assertion that Mr. Laursen’s application for judicial review is statute-barred under the Act and that the relief from the rigors of that limitation apparently offered by s. 11 of the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241 (“ JRPA ”) is not available as that section, the Director submits, has been impliedly repealed. II. [10] It is necessary to describe in some detail the Director’s consideration of Mr. Laursen’s application through the decisions of various adjudicators. [11] It begins with the original adjudication dated 19 April 2011. That decision awarded Mr. Laursen benefits: (i)       under s. 7 of the Act for “medical services or expenses”; (ii)      under s. 11 of the Act for “counselling services or expenses”; and (iii)      under s. 13 of the Crime Victim Assistance (General) Regulation , B.C. Reg. 161/2002 for “repairs or replacement of damaged or destroyed personal property”. [12] That adjudicator left for further reassessment a claim for “disability aids” under the Crime Victim Assistance (General) Regulation . [13] With respect to “income support benefits” (as distinct from an award for lost earning capacity) the original adjudicator said this: Mr. Laursen has also requested benefits for income support. The Crime Victim Assistance Program can consider income support in circumstances where the victim was employed at the time of the offence and the injuries have resulted in a loss of employability. Mr. Laursen was receiving a monthly disability benefit from the Ministry of Housing and Social Development at the time of his injury. Additional information is being collected to determine if Mr. Laursen is entitled to a benefit in this category. [14] On 12 October 2011, Marvin Cavanagh, the Executive Director of the “Reaching Out Supportive Recovery Facility” wrote in support of Mr. Laursen’s claim to this effect: This letter is confirmation that, Mr. Christian LAURSEN was hired on to take on the responsibilities of house monitor at 3608 Knight Street, starting April 2011, receiving five hundred dollars per month. This $500 would have been an honorarium from our society. However, this position did not happen for Mr. Laursen as he was a victim of a severe physical attack, which ended with him being hospitalized with severe head injuries; therefore, we had no choice but to fill this position offered Mr. Laursen. [15] This letter led to the adjudicator’s reassessment decision of 19 December 2011. In the words of that adjudicator, referring to the Cavanagh letter just quoted: Mr. Laursen currently requests a reassessment regarding income support in regard to a bone fide offer of employment. [16] The adjudicator continued: Hospital records obtained indicate that Mr. Laursen was hospitalized prior to the incident between February 10 and 16, 2011 for Diabetic Ketoacidosis and polysubstance use. On discharge he was referred to ‘detox’. On February 17, 2011 Mr. Laursen was readmitted to hospital with a head trauma. The hospital report indicates that cocaine and/or amphetamines were reportedly used on that date. As Mr. Laursen was actively using drugs at the time of the incident, the employer indicates he would not have been suitable for employment at a recovery facility. Under the circumstances the offer of employment would have been withdrawn. Although Mr. Laursen may have expected to be employed commencing April 2011, it is found that the offer of employment was invalidated due to his polysubstance use. As the offer of employment was terminated prior to Mr. Laursen commencing work, he has not experienced an economic loss and therefore a lost earning capacity benefit cannot be considered. [17] In this decision the adjudicator refers to lost earning capacity benefits despite the fact that Mr. Laursen requested a reassessment of his eligibility for income support benefits. It is unclear whether the adjudicator considered the offer of employment with respect to income support or lost earning capacity benefits, or both categories of benefits. [18] I note the suggestion that the offer of employment “was invalidated due to his polysubstance use” and as a result “the offer of employment was terminated prior to Mr. Laursen commencing work…” This is simply not so. As Mr. Cavanagh explained in his letter to the Director dated 17 January 2012: In February I had an employment agreement with Christian Laursen to be a Monitor in one of my Recovery Houses. The offer of employment was accepted and it was confirmed he would begin work in April 2011. Christian Laursen did not begin work in April 2011 as a result of physical and mental injuries sustained in Feb. 2011. I did not withdraw my offer of employment from Christian as a result of his relapse on drugs and would still have extended the employment opportunity to him if he would have been clean an[d] sober on the start date in April 2011. I was contacted by someone at Victim Services and questioned about the employment agreement I had with Christian. I believe this conversation was misunderstood. I was asked if I would have hired Christian if he had relapsed? I thought that meant at [the] time of employment but they were referring to Feb. 2011. I would like to make it clear that Christian’s relapse on drugs in Feb. 2011 would not have prevented me from extending him employment, the only stipulation being he would have to be clean and sober at the start date of employment. Given the fact that Christian relapsed in Feb. 2011, if he was able to be clean and sober by April 2011 I would have employed him as agreed upon as a monitor at one of my Recovery Houses. Christian would have earned $500 per month in the position of House Monitor commencing April 2011 had he not sustained injuries as a result of an assault in Feb. 2011. I would be happy to discuss this matter further and in detail as I do believe this matter was not clearly discussed and understood in the original telephone conversation with Victims Services. [19] This letter was considered in the adjudicator’s reassessment decision of 9 February 2012. In the context of the application for income support benefits the adjudicator there wrote: The Program finds that due to a combination of Mr. Laursen’s history of addiction and the requirements of employment at a rehabilitation facility, the employer could not guarantee Mr. Laursen employment as it could not be foreseen whether Mr. Laursen would be clean and sober on April 1, 2012 [ sic ]. While Mr. Laursen was actively involved in a rehabilitation program, the medical information on file indicates that he was using drugs at the time of the assault and therefore he was not capable of taking the job on any specific date. Although there was an honourable intention of employment from the perspective of both Mr. Laursen and the employer, this intention does not meet the standard of a bona fide offer of employment as it was conditional on Mr. Laursen[’s] sobriety which was unpredictable under the circumstances. [20] However, for the first time the adjudicator went on to expressly consider the possibility of an award to Mr. Laursen for lost earning capacity. [21] The reasons of the adjudicator on this aspect need to be fully set out: The Crime Victim Assistance Program can consider the provision of lost earning capacity benefits in circumstances where the victim was employable but not employed at the time of the injury. The injuries must have resulted in a long term loss of employability for the victim; a period generally longer than two years. Employability is defined as the physical and mental capability of being employed. In determining eligibility for a Lost Earning Capacity benefit it must first be determined whether the claimant was employable at the time of the injury. Information obtained from the Ministry of Social Development indicates that Mr. Laursen applied for disability benefits in 2002 due to drug and alcohol addiction. Mr. Laursen’s Income Tax assessments indicate he received limited income from sources other than income assistance in the years 2006, 2007, [and] 2008 however since 2008 the records available indicate he was solely dependent on the disability benefit based on his addiction. Information from the Ministry of Social Development indicates that Mr. Laursen was eligible for a disability benefit since 2002. His eligibility for a disability benefit was based on drug and alcohol abuse. As the medical information indicates that Mr. Laursen was using drugs at the time of the offence the program cannot consider him employable. Based on the information available from the Ministry of Social Development and Canada Revenue Agency, Mr. Laursen is not found to be employable at the time of his injury and therefore this benefit may not be considered. [22] Once again advocates for Mr. Laursen responded on his behalf. Kailey Toth is a social worker at GF Strong Rehab Centre. On 16 April 2012 she wrote to the Director, in part saying this: The denial of Mr. Laursen’s initial application, dated February 9, 2012, stated that “it could not be foreseen whether Mr. Laursen would be clean and sober on April 1, 2012” (I believe this letter meant to state April 1, 2011). I am writing to support Mr. Laursen’s appeal and to add that Mr. Laursen has been clean and sober for over a year. Mr. Laursen could have been employed during this time were it not for the injuries he sustained on February 17, 2011. Despite the unpredictability of sobriety, that Mr. Laursen has been doing so remarkably well despite what he has been through, speaks to his tremendous resiliency and the possibility for him to have become sober, no matter the circumstances. While Mr. Laursen was not deemed to be employable at the time of his injury, he certainly had the potential for future employment and lost that potential not because of a lack of sobriety on his part, but because of the crime that was committed against him. I would ask that the Crime Victim’s Assistance Program reconsider your decision and take into account that while it is impossible to guarantee that Mr. Laursen would be clean and sober on April 1, 2011 we also cannot rule out that he could have been. [23] This submission led to the reconsideration decision of 18 May 2012, the only decision that is still relevant on judicial review. It confirmed the decision of 9 February 2012. Although Ms. Toth’s letter was not before the adjudicator in the 9 February 2012 reassessment decision, the reconsideration adjudicator nevertheless considered her letter in his decision. Under s. 14(2) of the Act this should have been done by way of a reassessment; however, the Director did not rely on this procedural issue in his submissions. [24] The reconsideration adjudicator, in comprehensive reasons, dealt first with the application for “income support benefits”. The adjudicator agreed with the decision of 9 February 2012: the offer of employment was contingent on a precondition – that Mr. Laursen be sober and drug free in April 2011. The adjudicator could not find that to be satisfied on the balance of probabilities: As a result, I also cannot find that Mr. Laursen held a job or occupation when he was injured in February 2011, which disqualifies him for further income support benefit consideration. [25] No issue is taken with this finding or conclusion. [26] However, on the issue of “lost earning capacity” benefits, the adjudicator said this: I am instructed by section 6 of the Regulation that the first consideration under this heading is Mr. Laursen’s employability at the time of the assault. Specifically, I must be able to make an initial finding on the evidence before me that Mr. Laursen was “employable but not employed at the time of that injury”. In my judgment, the evidence does not support that finding. As noted by the Program adjudicator in the February 9, 2012 reassessment decision, Mr. Laursen first qualified through the provincial Ministry of Social Development for disability benefits for drug and alcohol abuse in 2002. The adjudicator also noted that according to his tax records, Mr. Laursen’s sole source of income since 2008 was his disability benefits that, again, were due to his addiction. In addition, it has already been established that Mr. Laursen was experiencing a drug relapse in February 2011 when he was assaulted. I appreciate Ms. Toth’s submissions regarding Mr. Laursen’s potential for future employability had it not been for the compensable injuries he sustained, but the weight of the evidence before me leads me to the same conclusion as the adjudicator, that Mr. Laursen was not “employable” in February 2011 . I therefore find that the Program’s denial of lost earning capacity benefits was consistent with the best available evidence as well as the law and the Regulation . [Italics in original, underline added.] [27] It will be seen that the adjudicator misstates Ms. Toth’s evidence. She stated, in part, of Mr. Laursen’s situation in February 2011 “… he certainly had the potential for future employment and lost that potential not because of a lack of sobriety on his part, but because of the crime that was committed against him” (emphasis added). The Director’s reference to “employability” instead of “employment” is significant. [28] The adjudicator’s reasons also make it clear that he did not take into account Mr. Laursen’s likely future position had he not been assaulted. The Director’s finding that Mr. Laursen was not “employable” in February 2011, taken alone, is capable of meaning that he implicitly took into account Mr. Laursen’s future employment capacity. However, the preceding discussion of Ms. Toth’s submissions makes it clear that he did not. He discounted her letter precisely because it concerned Mr. Laursen’s future potential. His discounting of Mr. Laursen’s future potential is made further clear by the reconsideration adjudicator’s agreement, in all essential respects, with the reassessment of 9 February 2012. The adjudicator there similarly halted his inquiry on the issue of “employability” at February 2011. That adjudicator said (to repeat the extract above in part): As the medical information indicates that Mr. Laursen was using drugs at the time of the offence the program cannot consider him employable. Based on the information available from the Ministry of Social Development and Canada Revenue Agency, Mr. Laursen is not found to be employable at the time of his injury and therefore this benefit may not be considered. [29] I will discuss the impact of these points with respect to the Director’s implicit definition of “employable” below. Chambers Judgment [30] The chambers judge summarized the crux of the issue on judicial review as whether the Director’s determination that Mr. Laursen was not “employable” at the time of the assault was reasonable. He noted the parties’ agreement that the issue of whether judicial review of the reconsideration decision was statute-barred would be dealt with later if Mr. Laursen was successful in his application on the merits. [31] The chambers judge found the Director’s interpretation of “employable” reasonable, which meant that he was required to defer to it ( McLean v. British Columbia (Securities Commission) , 2013 SCC 67 at paras. 40-41). [32] The chambers judge then looked at the evidence presented by Mr. Laursen and again found the Director’s decision not to award an amount for lost earning capacity reasonable. None of the information or evidence before the Director established that Mr. Laursen was physically and mentally capable of being employed or self-employed on the day he was injured. He concluded that the opinion of Ms. Toth one year later regarding Mr. Laursen’s progress in rehab and his future employment potential were unsubstantiated and that the Director was correct to place little reliance on that opinion. [33] Mr. Laursen appeals the chambers judge’s decision. He seeks to have this Court set aside the 18 May 2012 reconsideration decision and remit the issue of his application for lost earning capacity benefits to the Director in accordance with the proper interpretation of s. 6 of the Regulation . He says the Director’s interpretation of “employable” was unreasonable and/or that he unreasonably found that Mr. Laursen was not employable on the facts. He also seeks to have this Court determine whether his application for judicial review is statute-barred notwithstanding the agreement of the parties to consider this issue at a future hearing if Mr. Laursen was successful on the merits. Submissions [34] Both parties agree that the chambers judge properly identified the standard of review as reasonableness. They also agree that, at issue, is an implicit decision of the Director to interpret “capable of” in the definition of “employable” as meaning “able to”. [35] In a nutshell, Mr. Laursen’s position is that the chambers judge erred in finding that the Director’s interpretation of “employable” was reasonable. He argues that the judge deferred to the Director’s overly restrictive interpretation of “capable of being employed” as meaning “able to be employed”. The Director failed to consider the plain meaning of “capable of” in light of the text, context and purpose of the Act and associated regulations. Had he done so, he would have found that “capable of” should be interpreted as “having the future potential to”. A person will be eligible for lost earning capacity benefits if he or she generally had the physical and mental potential for, or openness to, being employed. [36] The Director responds that the chambers judge correctly found that it was reasonable for the Director to have implicitly interpreted the term “capable of” in the definition of “employable” as meaning “able to” rather than “having the future potential to”. The chambers judge was required to defer to any reasonable interpretation and he was able to consider reasons which could have been offered in support of the Director’s decision. The Director argues that Mr. Laursen adopts a less obvious dictionary definition of “capable” and that “competent, able…or having the ability or fitness necessary for” is the ordinary meaning of the term. This interpretation is consistent with the context of the legislation and, in particular, with all references to “employable” in the Regulation . It is also consistent with the purpose of the Act which is to provide publically funded benefits while balancing accountability with public funds and providing benefits to victims. [37] In oral argument, the parties seemed to agree that their respective interpretations both work within the context of the legislation and that this tool of statutory interpretation is not determinative. [38] Turning to the second ground of appeal and whether the evidence demonstrated that Mr. Laursen was capable of employment, in his factum Mr. Laursen conceded that his success on this ground rests on this Court siding with his interpretation of “employable”. However, in oral argument, he argued that this Court could side with the Director’s interpretation of “employable” and nevertheless find that it was unreasonable to conclude that Mr. Laursen was not capable of employment. He submits that this question should be remitted to the Director for reconsideration. [39] The Director argues that Mr. Laursen’s second ground of appeal is predicated on this Court accepting his argument on the interpretation issue. The chambers judge made no findings with respect to the evidence on the basis of Mr. Laursen’s preferred interpretation such that it is unclear how he erred. [40] In the alternative, the Director submits that if this Court determines the chambers judge erred on the first issue then the proper remedy is to remit the matter to the Director to permit him to identify a different interpretation of “employable”. There may be more than one reasonable interpretation of employable that has yet to be identified. [41] Finally, Mr. Laursen seeks leave to argue a new issue on appeal — namely, whether the application for judicial review is time-barred. He does not dispute that the application for judicial review was brought well outside the 60-day period set out in s. 14.1(2) of the Act . However, he says his application is saved by s. 11 of the JRPA . The text, context and purpose of s. 11 require a conjunctive reading of subsections (a) and (b) such that this Court ought to exercise its discretion to permit the late-filed application. He argues that to hold otherwise would oust this Court’s supervisory jurisdiction and violate the constitutional right to judicial review. [42] The Director submits that s. 11 of the JRPA was impliedly repealed either by s. 14.1(2) of the Act or s. 57 of the Administrative Tribunals Act , S.B.C. 2004, c. 45 (“ ATA ”). With respect to the former argument, the Director says that to hold otherwise would be to find that the 60-day limitation period in the Act is meaningless. Regarding the latter argument, the Director cites Speckling v. British Columbia , 2008 BCCA 155, for the proposition that the limitation period in s. 57 put a statutory temporal restraint on the right to seek judicial review additional to that found in s. 11 of the JRPA . [43] Mr. Laursen says that s. 14.1(2) does not entirely cover the subject matter of s. 11 so as to conclude that it repealed s. 11. It is not open to the Director to rely on the difficulty of proving prejudice or substantial hardship as a means for arguing that s. 11 has been impliedly repealed. Further, section 57 of the ATA does not apply to the Director and, in any event, any discussion of s. 57 impliedly repealing s. 11 ought to be saved for another day before a full evidentiary record. [44] Mr. Laursen seeks costs of this appeal because the Director argued the merits of the issues in both the court below and before this Court. Analysis [45] I turn to my analysis. [46] There is no dispute that the standard of review applicable to the Director’s reconsideration decision is reasonableness. The substantive issue here — the meaning of “employable” — turns on the interpretation of the Act and Regulation , the Director’s home statute. Interpretation of an administrative decision maker’s home statute raises the presumption of reasonableness, and none of the four categories of issues that call for correctness are present here ( Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 at paras. 23–24). [47] Applying the reasonableness standard, if I find that there are multiple reasonable interpretations of “employable” and one of them is consistent with the Director’s interpretation then I must defer to the Director. He holds the interpretive upper hand ( McLean at para. 40). However, if by applying the ordinary tools of statutory interpretation I conclude that there is a single reasonable interpretation that differs from that of the Director then his interpretation is necessarily unreasonable ( McLean at para. 38). For the reasons set out below, I find that there is such a single reasonable interpretation and the Director failed to adopt that interpretation. The Director’s decision must therefore be set aside. [48] The case of course turns on the statutory definitions of “employability” and “employable”. They are set out in s. 1 of the Regulation : "employability" means the physical and mental capability of being employed or self-employed; "employable" means physically and mentally capable of being employed or self-employed; [49] Both definitions centre on the notions of “capability” and “capable”. [50] The parties effectively take opposing “either/or” positions. Mr. Laursen suggests that “capable of being employed” refers to the potential for or openness to being employed. On the contrary, the Director suggests that it means “able to be employed”, in this case, before and in and around February 2011. [51] As I alluded to above, in the reconsideration decision at issue the Director completely discounted submissions made on behalf of Mr. Laursen concerning his potential for future employment. I reproduce the relevant portion of those reasons again for convenience: I appreciate Ms. Toth’s submissions regarding Mr. Laursen’s potential for future employability had it not been for the compensable injuries he sustained, but the weight of the evidence before me leads me to the same conclusion as the adjudicator, that Mr. Laursen was not “employable” in February 2011. [Emphasis in original.] [52] From his reasons, it is clear the reconsideration adjudicator took into account Mr. Laursen’s employment history and past income. However, his discounting of Ms. Toth’s letter because it concerned Mr. Laursen’s “potential for future employability” and his complete disregard of Mr. Cavanagh’s letter make it clear that he stopped his analysis in February 2011. As I have said, he also repeated the same error made by the adjudicator whose 9 February 2012 reassessment decision he was reconsidering. [53] In my view, the Director was correct in suggesting that the capacity of an applicant for employment must be tested at the time of the event giving rise to the claim for lost earning capacity benefits. But Mr. Laursen was correct in suggesting that the applicant’s potential for employment must be relevant as well. Mr. Laursen was wrong to discount the issue of “present ability” and the Director was wrong to discount the applicant’s “future potential” to engage in employment. [54] Of essential importance, the Director’s discounting of future potential for employment is a clear legal error resulting in an unreasonable decision denying Mr. Laursen potential benefits for lost earning capacity. [55] The parties rely on dictionary definitions of “capable”. [56] Definitions 2 and 3 of “capable” in the Shorter Oxford English Dictionary , 6 th ed. (Oxford: Oxford University Press, 2007) define it so: 2.         foll. by “of”: open to, admitting of, susceptible. 3.         Having the ability, power or fitness for some specified purpose or activity; [57] In the Canadian Oxford Dictionary (Toronto: Oxford University Press, 1998), we find: 1.         Competent, able, gifted 2.         (foll. by “of”) a. having the ability or fitness or necessary quality for; b. susceptible or admitting of (explanation or improvement etc.) [58] The Concise Oxford English Dictionary , 11 th ed. (Oxford: Oxford University Press, 2008) reads: 1.         (capable of doing something) having the ability or quality necessary to do something > open to or admitting of something [59] The parties would “pick and choose” between the alternatives here. The one concentrating on present ability, the other on future potential, “openness to”, or “susceptible”. But in truth “capable” as used in the Regulation means all of these things; it covers each of these notions. One must approach the question of lost earning capacity holistically without artificially constraining the inquiry, as the Director has, to a period of time before and in and around February 2011. [60] This is demanded by the context of the Act . In distinguishing between income support benefits (in the case of a loss of actual employment) and lost earning capacity benefits, the Act mirrors the equivalent common law heads of damage in tort law. The legislative drafters did not use the words “lost earning capacity” by accident. In my view, they must be taken to have intended to incorporate the legal meaning of this concept when defining eligibility for lost earning capacity benefits. [61] I reproduce this summary of the lost earning capacity head of loss by Professor Fridman in The Law of Torts in Canada , 3rd ed. (Toronto: Carswell, 2010) at 487–488: Loss of the opportunity to earn, including future earnings, may be recovered. The rationale for this recovery is that, as a result of the defendant’s negligence, the plaintiff is now less valuable to himself or herself as a person capable of earning an income in a competitive market or has suffered loss or impairment of earning capacity viewed as a capital asset. In assessing what the plaintiff has lost the court must focus on the plaintiff’s lost opportunity to earn income as a consequence of the accident. The amount of any award will depend on what the plaintiff was earning at the time of the accident, and on whether he or she can still earn any income after the accident. However, if the plaintiff was not gainfully employed when injured but intended at some future point to be, and was capable of being, gainfully employed , the court must make a reasonable allowance for the probable loss of future income due to the plaintiff’s being deprived of that opportunity. [Emphasis added.] [62] The underlined portion reflects the need for courts to measure lost earning capacity with an appreciation for both the present condition of the plaintiff and his or her likely future capability. [63] Measuring lost earning capacity with an eye to both the present and likely future position of an individual is reflected in this Court’s approach to lost earning capacity awards in personal injury cases. It is well-settled that plaintiffs must establish a real and substantial possibility that their earning capacity has been impaired to recover damages for lost earning capacity ( Perren v. Lalari , 2010 BCCA 140 at para. 32). If the plaintiff discharges that burden of proof then he or she may prove the quantification of that loss on either an earnings or capital asset approach ( Morgan v. Galbraith , 2013 BCCA 305 at para. 53). The latter approach is more useful where a loss is not as easily measurable. Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) sets out the following considerations in applying the capital asset approach: 1. The plaintiff has been rendered less capable overall from earning income from all types of employment; 2. The plaintiff is less marketable or attractive as an employee to potential employers; 3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and 4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market. [64] A review of these factors demonstrates that not working on the day of one’s injury or suffering from a transitory physical inability to work are not absolute bars to recovery. They are relevant factors, but courts may nevertheless award an amount if, notwithstanding a present incapacity, the plaintiff demonstrates that his or her earning potential has been impaired in accordance with the real and substantial possibility threshold. [65] The approach to lost earning capacity awards in personal injury cases provides the context within which s. 6 of the Regulation must be interpreted. After all, the Legislature is presumed to know the law; absent a clear legislative intent to the contrary, a statute should not be interpreted as substantially changing the common law ( R. v. D.L.W. , 2016 SCC 22 at para. 21). Of course, here the legislation in s. 6(2) and s. 1(1) of the Regulation mandates a specific formula for calculating the amount of the “lost earning capacity” benefit and to this extent the legislation departs from the common law I have discussed. [66] The meaning of lost earning capacity according to dictionary definitions and at common law reflects two key components of “capability”, as that term is used in the definition of “employable” in the Regulation : intent and ability. To this I add the requirement that capability be measured “at the time of the injury” ( Regulation, s. 6(1)(a)). [67] Reasoning from the foregoing meaning of “employable…at the time of the injury”, in my view, the analysis demanded by s. 6 of the Regulation is as follows: the Director is required to test the applicant’s potential for future employment at the time of the injury not based simply on the applicant’s physical status at that time, but based on the applicant’s intent and ability to do what is necessary to become employed in the future (s. 6(1)). After reviewing the materials filed in support of the application, if the Director is satisfied that the applicant has both the intent and the ability to become employed in the future then he awards an amount calculated under the formula in s. 6(2) and the s. 1(1) definition of “lost earning capacity benefit” when the applicant is first impacted by that loss (s. 6(3)). It is up to applicants to satisfy the Director of their intent and ability as well as the time at which they will be impacted by the loss. [68] I would expand on this discussion of the operation of the statutory scheme by quoting s. 6 of the Regulation in full: Lost earning capacity 6 (1) The director may award to a victim a benefit in the category of benefits described as lost earning capacity in section 4 (1) (m) of the Act only if the director is satisfied that an eligible injury has resulted in a loss of employability and the victim (a) was a minor or an adult victim who was employable but not employed at the time of that injury, and (b) is, as a result of that injury, (i) unemployable, or (ii) not employable for 40 hours a week. (2) The director may award a lost earning capacity benefit to a victim affected by a loss of employability in an amount that equals the difference between 40 hours a week and the average number of hours the victim is employable after the eligible injury, up to a maximum of 40 hours a week, less the victim's income from other sources. (3) Subject to subsections (4) and (5), a victim is eligible for a benefit under subsection (2) from the date the victim first became affected by the loss of employability, as determined by the director. (4) The director must not award a lost earning capacity benefit to a victim who is a minor at the time of the eligible injury, unless the minor victim was living independently at the time of that injury. (5) A victim who is a minor who is not living independently at the time of the eligible injury is eligible for a lost earning capacity benefit on becoming 19 years old, payable from that date if the victim is still affected by a lost earning capacity. (6) The director may require a victim who is employable, as a condition of the victim receiving a lost capacity benefit, to participate in vocational services that are specified by the director. Under this provision, the following factors must be present before the Director will award any amount of lost earning capacity benefits: (1) the claimant has suffered an eligible injury, (2) the eligible injury has resulted in a loss of employability, (3) the claimant was employable (as I have defined that term above) but not employed at the time of the injury, and (4) the claimant is affected by the loss of employability. The first three criteria come from s. 6(1) and crystallize at the time of the injury. The fourth factor comes from s. 6(3) and, as I will explain more fully below, may change over time depending on the claimant’s conduct rendering him or her unfit for employment. [69] I note first s. 6(3), which accords the Director a broad discretion to determine the “start date” for the payment of lost earning capacity benefits, if awarded. In the case of this claimant, it would be that date in the future when the Director determined on the basis of the evidence before him that Mr. Laursen would have been fit for employment but for his compensable injury. Determining when Mr. Laursen is actually affected by the loss of employability requires a judgment call by the Director, but that is what s. 6(3) contemplates. Indeed, it is little different from the discretionary determination made by trial judges in quantifying damages for loss of earning capacity in personal injury cases. [70] How would the scheme work in this case? It seems to me that the Director would first determine whether the three s. 6(1) criteria are met. Under s. 6(3), he would then determine a future date when Mr. Laursen would likely have been fit for employment. If the evidence permits him to identify such a date then benefits would be paid in accordance with s. 6(2). If the Director awarded him lost earning capacity benefits and Mr. Laursen later relapsed such that he was no longer “ affected by the loss of employability” precipitated by the compensable injury, s. 12(1) of the Act would require him to so notify the Director such that a reassessment of his eligibility for the benefit might be undertaken. Indeed, under s. 12(3) of the Act , the Director may on his own initiative reassess a person’s eligibility for a benefit under the Act . [71] Before I leave s. 6(3) of the Regulation , I would address a point stressed by the Director: if “employability” and “employable” look, as well, to future potential, this subsection, says the Director, becomes nonsensical because a claimant would be “employable” at all times; there would be no interval in any case as s. 6(3) contemplates in some situations. The answer is this: in Mr. Laursen’s case, for example, he would only begin to receive the benefit as of the future date determined by the Director when he would likely have been fit for actual employment. The evidence presently before the Director may or may not satisfy him that Mr. Laursen would have been employable by a particular future date. That is his decision to make. While it is possible that Mr. Laursen remains “employable” at all times (even during his alcohol and drug-induced incapacity) he only becomes “affected by the loss” of the potential for actual employment so as to become entitled to a compensable benefit, when he has made himself otherwise fit for employment (for example, by remaining clean and sober as he has now done for over a year). [72] This interpretation of “employable” is consistent with the context of the Regulation and gives effect to the purpose of the legislation as a whole. [73] Regarding the legislative context, as I indicated above, this interpretation gives effect to the distinction between lost earning capacity and income support benefits, which use “employable” and “employed”, respectively. It is consistent with the reference to “employability” in the eligibility criteria for vocational services, which would serve to advance the applicant’s ability to become employed in the future (s. 2, Regulation ). It also does not offend the plain meaning of “employable” as it is used in determining compensation for short and long term losses of employability since those awards are dependent on the victim holding a job at the time of the injury (ss. 3, 4, Regulation ). [74] Moreover, this interpretation avoids the absurdity of the Director’s interpretation that individuals suffering from transitory conditions preventing them from working at the moment they are injured (e.g., pregnancy, bereavement leave, intoxication) would be forever ineligible for lost earning capacity benefits. In my view, it cannot have been the intent of the Legislature to preclude these individuals from recovering vocational and lost earning capacity benefits. [75] As it relates to the purpose of the legislation, when the Act was introduced in the Legislative Assembly the Honourable Rich Coleman set out the purpose behind the legislation as follows: Changes to make this program more responsive have long been advocated by victims[’] groups and stakeholders. This new legislation will allow the ministry to provide a program that effectively responds to victims of crime while being fiscally accountable to government. Even after these changes, the B.C. program will still be among the most generous in Canada. (British Columbia, Official Report of Debates of the Legislative Assembly (Hansard) , 37 th Parl., 1st Sess., Vol. 2, No. 23 (21 August 2001) at 691.) [76] Requiring that the Director have regard to the applicant’s potential for future employment gives effect to the legislative intent to put victims of crime back in their original position. Requiring applicants to prove that they had the requisite intent and ability at the time of the injury (s. 6(1)(a)) and only paying benefits when the victim is actually affected by the loss of employability (s. 6(3)) ensures that the Crime Victim Assistance Program remains accountable to the public purse. [77] I now turn to applying this interpretation to the facts at hand. Here, the Director considered Mr. Laursen’s income tax returns from 2002 to 2010. The returns indicate that Mr. Laursen earned some income in 2001 ($10,459), 2005 ($1,112), 2006 ($16,804), 2007 ($19,647) and 2008 ($9,860). While these are not substantial sums, they are reflective of some capacity to earn income. Moving to the time of the injury, Mr. Laursen “was not gainfully employed when injured but intended at some future point to be”, indeed in his case, in April 2011. [78] The question is: did he have the intent and ability or “was he capable of being gainfully employed” (Fridman)? In the eyes of one employer – the recovery facility in the person of Mr. Cavanagh – he certainly was. Ms. Toth provided some evidence that Mr. Laursen would have been gainfully employed if not for the compensable injury when she stated (and I repeat her words): Despite the unpredictability of sobriety, that Mr. Laursen has been doing so remarkably well despite what he has been through, speaks to his tremendous resiliency and the possibility for him to have become sober, no matter the circumstances. While Mr. Laursen was not deemed to be employable at the time of his injury, he certainly had the potential for future employment and lost that potential not because of a lack of sobriety on his part, but because of the crime that was committed against him. I would ask that the Crime Victim’s Assistance Program reconsider your decision and take into account that while it is impossible to guarantee that Mr. Laursen would be clean and sober on April 1, 2011 we also cannot rule out that he could have been. [79] As I noted earlier, the adjudicator misstated Ms. Toth’s evidence: he said in the impugned decision that he appreciated her submissions regarding Mr. Laursen’s potential for “ future employability…” Ms. Toth was not speaking of future employability, she was speaking of future employment and it was that potential that was lost. By equating “employment” with “employability” the adjudicator conflated income support benefits with lost earning capacity benefits. [80] The Director properly discounted Mr. Cavanagh’s view in his consideration of income support benefits. But when he again discounted Mr. Cavanagh’s and Ms. Toth’s letters in assessing Mr. Laursen’s eligibility for lost earning capacity benefits, he adopted an improperly constrained interpretation of “capable of being employed”. He disregarded Mr. Laursen’s ability to attract a firm offer of employment as of February 2011. The Director (through the adjudicators) did not engage in a testing of Mr. Laursen’s potential for future employment as he must do when determining eligibility for lost earning capacity benefits. [81] Indeed, the Director himself expressly recognized the need for this in the case of others who might be unable to work at the critical time but who might otherwise find work in the future. At para. 66 of his factum the Director states: The clear purpose of lost earning capacity benefits is to provide a benefit similar to income support for persons who were able to be employed at the time of the crime but were not. This could include students who were physically and mentally able to be employed, but were not because they were attending school. Likewise it could include full-time caregivers who could have been employed at the time of the injury had they not chosen to stay at home to take care of a child or a sick parent or spouse. It also could include persons who recently lost their job and had yet to secure another one. In light of s. 6(3) of the Regulation , these persons would not begin to receive benefits until such time as they were actually affected by their loss of employability, as determined by the Director (i.e. when the Director believes they would have been employed). This properly balances expenditures of tax-payer funds with providing benefits to victims so that they are in a similar position to their position at the time of the crime. [82] The Director is here recognizing that notwithstanding the transitory inability to actually work at the time of the injury, the opportunity to work in the future has been lost and that loss should be compensated. He also recognizes that persons should begin to receive benefits “when the Director believes they would have been employed”. This is consistent with how I have outlined the operation of the statutory scheme in these reasons. It is impossible to reconcile permitting recovery for the individuals referenced by the Director in his factum, yet deny recovery to an individual solely because he was suffering a drug relapse at the time of the injury. The legislation makes no such distinction between the types of incapacity that would preclude recovery. In fact, in some cases, it would be discriminatory to do so. [83] The Director as evidenced by his treatment of students, caregivers and the temporarily unemployed in his written submissions on appeal recognizes the proper interpretation of “capable of being employed”; his failure to apply it in Mr. Laursen’s case and to engage in a consideration of the possibility of Mr. Laursen’s lost opportunity of future employment makes the decision at bar “unreasonable”. [84] I turn now to the argument that s. 11 of the JRPA — which the parties appear to agree would otherwise permit the application to proceed — has been impliedly repealed by later legislative enactments. [85] In my view, Mr. Laursen has met the standard required for this Court to consider a new issue raised for the first time on appeal. The issue is a question of pure law that can be resolved with reference to the parties’ positions, as outlined in the amended petition and response to petition as well as their submissions before this division. Further, the Director has not identified any prejudice he would suffer if this Court were to determine whether the application is statue-barred. (See On Call Internet Services Ltd. v. Telus Communications Company , 2013 BCCA 366 at paras. 65–66.) [86] Turning to the merits, s. 11 of the JRPA reads as follows: An application for judicial review is not barred by passage of time unless (a) an enactment otherwise provides, and (b) the court considers that substantial prejudice or hardship will result to any other person affected by reason of delay. [87] The provision’s application in the present case can be broken down into two sub-issues: 1. Does the JRPA govern the issue of whether a late-filed application under the Act is statute-barred? 2. If it does, do subsections 11(a) and (b) apply? [88] On the first sub-issue, it is most efficient to first consider the Director’s argument that s. 11 of the JRPA was impliedly repealed by s. 57 of the ATA . Section 1.1 of the ATA provides that the provisions of the Act “do not operate, except as made applicable to a tribunal or other body by another enactment”. In Speckling , the Court considered the Workers Compensation Act , R.S.B.C. 1996, c. 492, which expressly makes s. 57 applicable to the tribunal. Nowhere in the Act or associated regulations is there reference to the ATA being applicable to the Director. Nor am I convinced that by enacting the ATA , the Legislature communicated a broader intention to repeal all limitation periods set out in individual statutes regardless of whether the ATA expressly applies to them. [89] I am also unconvinced by the Director’s argument that s. 14.1(2) of the Act impliedly repealed s. 11 of the JRPA . The test for implied repeal in Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42 provides that the new statute must have covered the entire subject-matter of the previous statute such that “according to all other ordinary reasoning” the particular provisions in the prior statute could not have been intended to subsist (at para. 44, citing R. v. Mercure , [1988] 1 S.C.R. 234). [90] Subsection 11(a) of the JRPA explicitly contemplates the existence of other enactments setting out a timeframe for judicial review. This is what s. 14.1(2) of the Act does when it requires judicial review applications to be filed within 60 days. Subsection 11(b) requires the reviewing court to then consider whether substantial prejudice or hardship will result “to any other person” affected by reason of delay. The provisions of the Act and JRPA are not incompatible with one another; rather, the JRPA calls on the Director to point to some substantial prejudice or hardship resulting from the delayed application for judicial review. The difficulty of pointing to such prejudice does not mean that the Legislature can necessarily be taken to have intended to repeal s. 11 as applied to the Crime Victim Assistance Program. [91] With respect to the second sub-issue, the Director does not advance any evidence of prejudice and, in fact, concedes that he is unlikely to be able to show prejudice at any point in considering an application for judicial review. [92] Accordingly, I would conclude that the application for judicial review is not statute-barred. [93] For these reasons I would allow the appeal and remit the issue of Mr. Laursen’s entitlement to lost earning capacity benefits back to the Director for redetermination in accordance with these reasons. [94] Mr. Laursen also seeks costs of this appeal on the basis that the Director argued the merits of the claim on his judicial review application. [95] Subject only to certain exceptions, there is a traditional immunity protecting quasi-judicial tribunals from costs awards ( Lang v. British Columbia (Superintendent of Motor Vehicles) , 2005 BCCA 244 at paras. 45-46). Two exceptions to this immunity are where the tribunal exhibited misconduct in the proceedings before it, or made improper submissions on the merits of the judicial review application and did not limit itself to jurisdiction ( 18320 Holdings Inc. v. Thibeau , 2014 BCCA 494 at paras. 55-69; Lang at para. 2). Mr. Laursen relies on the latter exception. [96] Key to the application of this exception is whether the tribunal improperly argued the merits. [97] The Director does not dispute that he argued the merits. The question is whether he properly did so. In my view, he did. In Thibeau I noted that the exceptions in Lang do not authorise an award of costs against a tribunal which of necessity argues the merits “where there is no one else to argue the other side” (at para. 58). Here, no one other than the Director would have argued the merits such that he is entitled to the traditional immunity protecting him from costs awards. [98] Accordingly, I would not award costs to Mr. Laursen. “The Honourable Chief Justice Bauman” I agree: “The Honourable Madam Justice Bennett” I agree: “The Honourable Madam Justice Dickson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Fike, 2017 BCCA 11 Date: 20170110 Docket: CA44062 Between: Regina Respondent And Eric James Fike Appellant Before: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Goepel The Honourable Mr. Justice Fitch On appeal from:  An order of the Provincial Court of British Columbia, dated March 14, 2012 ( R. v. Fike , Prince George Registry 33053). Counsel for the Appellant: G. Kotz Counsel for the Respondent: R.D. Leong Joint Statement on Sentence Appeal filed: Vancouver, British Columbia December 13, 2016 Place and Date of Judgment: Vancouver, British Columbia January 10, 2017 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Mr. Justice Goepel The Honourable Mr. Justice Fitch Summary: The appellant applies for an adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26. Held: Appeal allowed. The appellant is entitled to a credit on a 1:1.5 basis. Reasons for Judgment of the Honourable Mr. Justice Willcock: [1] The appellant, Eric James Fike, applies for an extension of time to appeal, leave to appeal, and if granted appeals his sentence to reflect credit for pre‑sentence custody at a ratio of 1.5 days for each day spent in pre‑sentence custody, in accordance with R. v. Summers , 2014 SCC 26. [2] Mr. Fike was arrested on September 24, 2010 and remained in custody for approximately 18 months until his conviction, in Prince George, British Columbia. On March 14, 2012, he pleaded guilty to two counts of possession of cocaine for the purpose of trafficking (counts 1 and 5) and three counts of possession of prohibited firearms with ammunition (counts 2, 3 and 4) and was sentenced to three concurrent 9‑month sentences in relation to each drug possession conviction, after having been credited for pre‑sentence custody in relation to those charges of 9 months on a 1:1 basis; and three concurrent 51‑month jail sentences (to be served consecutively to the drug charges) in relation to the firearms offences, after having been credited for pre‑sentence custody of 9 months on a 1:1 basis in relation to those offences. The actual sentence imposed was therefore 60 months’ imprisonment. [3] The Crown advises that it does not oppose the granting of credit for pre‑sentence custody at a ratio of 1:1.5 and acknowledges that Mr. Fike is not disqualified from receiving such credit by reason of s. 719(3.1) of the Criminal Code . However, the parties agree that the sentencing judge apparently gave the appellant credit for the harsh conditions of his pre‑sentence detention, “an amount not specified and impossible to calculate given its attachment to two other considerations, together totaling 6 months”, that reduced his sentence. They jointly submit that the appellant will have received appropriate credit for pre‑sentence incarceration, in accordance with the principles described in Summers if he is now given three months’ additional credit. [4] In these circumstances, I would grant an extension of time for the filing of this appeal, grant leave to appeal, and allow the appeal to the extent only that the sentence on counts 2, 3 and 4 be reduced to 48 months with credit granted of 21 months (12 months of which are attributed to those counts) for pre‑sentence custody. [5] I would accordingly make the following orders: a)       granting an extension of time to appeal; b)       granting leave to appeal; and c)       allowing the appeal to the extent only that the sentence on counts 2,3 and 4 be reduced to 48 months. “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Goepel” I agree: “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Henareh, 2017 BCCA 7 Date: 20170110 Docket: CA43305 Between: Regina Respondent And Esfandiar Henareh Appellant Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Fitch On appeal from:  An order of the Supreme Court of British Columbia, dated January 5, 2015 ( R. v. Henareh , 2014 BCSC 566, Vancouver Docket 26235-5). Counsel for the Appellant: J.P. Desbarats Counsel for the Respondent: W.P. Riley, Q.C. Place and Date of Hearing: Vancouver, British Columbia December 16, 2016 Place and Date of Judgment: Vancouver, British Columbia January 10, 2017 Written Reasons by: The Honourable Mr. Justice Fitch Concurred in by: The Honourable Chief Justice Bauman The Honourable Madam Justice Kirkpatrick Summary: The appellant appeals from conviction for possessing opium for the purposes of trafficking on grounds that evidence obtained in a search of his vehicle incidental to a warrantless arrest should not have been admitted at trial. The central issue is whether the arresting officer’s subjective belief that he had reasonable grounds to arrest the appellant was objectively reasonable. Held: appeal dismissed. The trial judge did not err in law or misapprehend the evidence. Though importation of drugs is not a continuing offence, the appellant’s post-importation conduct afforded cogent evidence of his involvement in the importation. The trial judge was not obliged to rule out every possible innocent inference for the appellant’s suspicious activity. She properly assessed the “totality of the circumstances” known to the arresting officer at the time of the arrest and correctly concluded that the arresting officer’s subjective belief was reasonable. There was ample evidence supporting her conclusion. Reasons for Judgment of the Honourable Mr. Justice Fitch: A.       Introduction [1] On March 11, 2011, the appellant, Esfandiar Henareh, was arrested by Sgt. Fossum for importing opium. The vehicle driven by the appellant at the time was searched by a different officer incidental to the arrest. Concealed in three coolers located in the trunk of the vehicle was 13.78 kilograms of opium with a wholesale value of approximately $275,000. [2] The central issue on this appeal is whether Sgt. Fossum had reasonable grounds to arrest the appellant without a warrant under s. 495 of the Criminal Code , R.S.C. 1985, c. C-46. More specifically, the issue is whether Sgt. Fossum’s subjective belief that he had reasonable and probable grounds to arrest the appellant was objectively reasonable. If the arrest was lawful, the appellant concedes, as he has throughout, that it afforded justification for the search of the vehicle. [3] Following a six-day voir dire , the trial judge held, in reasons indexed as 2014 BCSC 566, that the arrest was lawful because Sgt. Fossum subjectively believed that he had reasonable and probable grounds to arrest the appellant and his belief was objectively reasonable. The trial judge admitted the drug-related evidence, and the appellant was convicted of one count of possession of opium for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. He appeals from conviction. [4] In my view, the trial judge did not err in concluding that Sgt. Fossum had objectively reasonable grounds to arrest the appellant for importing opium. For the reasons that follow, I would dismiss this appeal. B.       Background (a)      Overview of Events Leading to the Arrest [5] On January 27, 2011, Sgt. Fossum received information from an unknown tipster that a man named “Aghasi”, said to be associated with a particular address in Burnaby, and a man named “Henareh” were involved in importing opium into Canada. Sgt. Fossum relayed this information to the Canada Border Service Agency (CBSA). [6] On February 3, 2011, Sgt. Fossum received additional information from the same tipster that “Aghasi” and “Henareh” were importing opium from Iran, that Aghasi had been responsible for importing large amounts of opium into Canada, and that there was a large amount of opium in his Burnaby residence. [7] Within a few hours of receiving this information, Sgt. Fossum attended at the Burnaby address provided by the tipster and spoke with Aghasi Salamat Ravandi. Mr. Salamat Ravandi confirmed that he was from Iran and that while his father was an opium addict, he had never before seen opium. He invited Sgt. Fossum to do a cursory search of the apartment. No opium was discovered. [8] On March 9, 2011, Sgt. Fossum received information from the CBSA that a shipment had arrived from Iran addressed to Mr. Salamat Ravandi at his Burnaby residence. The shipment consisted of four large packages that were said to contain samovars (teapots) and rugs. The packages were referred for secondary inspection. Three of the packages contained samovars. One package contained rolled up rugs. The samovars were deconstructed and found to contain a total of approximately 18 kilograms of opium. [9] On the same day, Mr. Salamat Ravandi attended at the CBSA Air Cargo Centre in Richmond to collect the shipment. He was told that it would take a number of days for the shipment to clear and that he would be contacted to re-attend for pick up. [10] Sgt. Fossum’s team, working in collaboration with the CBSA, began planning a controlled delivery of the packages to Mr. Salamat Ravandi on March 14, 2011. [11] On March 11, 2011, Mr. Salamat Ravandi unexpectedly returned to the CBSA Air Cargo Centre to collect the shipment. Sgt. Fossum was advised of this development and a surveillance team was quickly assembled consisting of RCMP and CBSA officers. [12] Mr. Salamat Ravandi was invited by a CBSA officer to wait in a small coffee shop adjacent to the CBSA Air Cargo Centre for his packages to be readied for delivery. He was observed by surveillance officers sitting at a table in the café. A second Persian man, later identified as the appellant, was seated in the café at the same time. Both men were typing on their handheld devices but did not speak or appear to acknowledge one another. Mr. Salamat Ravandi exited the café. Shortly thereafter, the appellant exited the café and walked in the same direction as Mr. Salamat Ravandi. [13] The appellant was observed getting into a Honda Civic with an identified licence plate number. [14] Mr. Salamat Ravandi returned to the CBSA Air Cargo Centre with a U-Haul van to collect the shipment. The four packages were loaded into the van and Mr. Salamat Ravandi drove away. He was followed by surveillance officers. [15] Sgt. Fossum observed Mr. Salamat Ravandi pull over and park in the 2000 block of S.E. Kent Avenue in Vancouver. He appeared to have his head down, sending text messages on his phone. He did not exit the van. Three minutes later, he did a U-turn and drove back down the street. He parked on SE Kent in front of a building associated with the address of the plate holder for the Honda the appellant was seen driving away from the CBSA Air Cargo Centre. [16] At this point, Sgt. Fossum noticed the appellant standing near the Honda right across the street from where Mr. Salamat Ravandi parked the van. The appellant did not immediately cross the street but continued to look to his left and right, even though it was safe for him to cross the street and join Mr. Salamat Ravandi. [17] The appellant eventually crossed the street to where Mr. Salamat Ravandi parked the U-Haul. From a distance of approximately 150 metres and while using binoculars, Sgt. Fossum watched the two men load one of the packages from the van into the Honda. From his vantage point, Sgt. Fossum could not tell which one of the four packages was transferred to the Honda. Both men then got into the Honda and the appellant drove away. Sgt. Fossum and other surveillance officers followed. [18] For a couple of minutes, the appellant drove behind a slow-moving transport truck without attempting to pass. Sgt. Fossum testified that it made no sense for the appellant to stay behind the truck. [19] The appellant then turned into Central Park. The park is serviced by one road. The appellant backed into a parking space enabling a clear view of anyone else entering the park. Mr. Salamat Ravandi got out of the vehicle and had a cigarette. The two men left the park about seven minutes later. [20] The appellant drove in the direction of Mr. Salamat Ravandi’s residence, but took an indirect route that added distance and travel time. [21] The appellant parked a block or two away from Mr. Salamat Ravandi’s residence in Burnaby. The appellant stayed in the vehicle while Mr. Salamat Ravandi got out and began walking towards his building. This made no sense to Sgt. Fossum because there was ample parking closer to Mr. Salamat Ravandi’s building. [22] The appellant then drove around to the back alley of Mr. Salamat Ravandi’s building. Sgt. Fossum stopped the Honda and arrested the appellant for importing a controlled substance. [23] After the arrest, Sgt. Fossum directed Cpl. Greenway to search the Honda. The package transferred from the U-Haul to the Honda was discovered to be the one that contained rugs. As mentioned earlier, Cpl. Greenway found 13.787 kilograms of opium in three coolers located underneath a blanket in the trunk of the Honda. (b)      Subjective Grounds for the Arrest [24] There is no question that Sgt. Fossum subjectively believed he had reasonable and probable grounds to arrest the appellant for importing opium. He testified on the voir dire that his subjective belief in the existence of reasonable grounds to arrest the appellant for this offence was based on his evaluation of the following information: · the tips received on January 27 and February 3, 2011, had been confirmed in important ways. As the tipster indicated, a large shipment of opium had been shipped to Aghasi Salamat Ravandi at his Burnaby address from Iran; · the tips included the fact that a second man was involved with “Aghasi” in the importation of opium from Iran; · a second Persian man, later identified as the appellant, was seen sitting in the café while Mr. Salamat Ravandi waited for his shipment to clear. Based on surveillance information relayed to him, Sgt. Fossum believed that they were texting with one another but wanted to conceal the fact that they were together. Sgt. Fossum testified that he believed the second Persian mail to be involved “because it makes no sense not to be – not – it would make no sense for him not even to be with his friend…”; · Sgt. Fossum also testified that, based on his experience, the behaviour of the appellant in the café was consistent with the role played by a “watcher” in an importation scheme. He testified that watchers are used about 90% of the time; · both men left the café at the same time without talking to one another; · the behaviour of the appellant on SE Kent – looking to his left and right as Mr. Salamat Ravandi remained seated in the U-Haul van parked across the road – was consistent with the activity of a watcher seeking to flush out surveillance; · the appellant eventually met up with Mr. Salamat Ravandi on SE Kent and the two men carried one of the four packages from the U-Haul to the Honda; and · the appellant subsequently engaged in what Sgt. Fossum described as common counter-surveillance techniques or “heat checks”, including: driving behind a slow-moving vehicle in such a way as to force trailing surveillance officers to pass or be exposed; stopping in Central Park to flush out surveillance; taking a circuitous route from SE Kent to a location near the Burnaby residence of Mr. Salamat Ravandi; and parking several blocks away from Mr. Salamat Ravandi’s residence when there was no reason to do so. [25] In cross-examination, Sgt. Fossum testified that he believed the package transferred from the U-Haul to the Honda was one of the three packages containing opium-stuffed samovars (as opposed to the package containing rugs) as this accounted for what he considered to be “heat checks” engaged in by the appellant after the transfer occurred. [26] Sgt. Fossum explained that “everything together” caused him to believe that both men were directly involved in the importation of opium. C.       Reasons for Judgment on the Voir Dire [27] The trial judge engaged in an extensive review of the governing jurisprudence. The appellant does not suggest that the trial judge misdirected herself on the applicable law. [28] The trial judge also engaged in an exhaustive review of the evidence. She noted that Sgt. Fossum was an experienced drug investigator, knowledgeable in matters pertaining to the importation of drugs, including opium. She found him to be a credible and reliable witness. [29] The trial judge referenced the specific information provided in the tips and found that the tips had been “shown to be quite reliable through independent confirmation”. She noted that the commission of the crime itself confirmed the reliability of much of the information supplied by the tipster. Given the general reliability of the tipster’s information, she concluded that it was objectively reasonable for Sgt. Fossum to proceed on the basis that a second male was working with Mr. Salamat Ravandi in the smuggling of opium as the tipster had indicated. [30] The trial judge characterized the appellant and Mr. Salamat Ravandi’s behaviour in the café as “purposefully avoidant”. Viewing the circumstances in their totality, she concluded that if the appellant was an innocent dupe merely assisting a friend with an errand, he would not have avoided speaking with or sitting near Mr. Salamat Ravandi in the café. She said: [49]      Taken cumulatively, the events raise a much stronger probability that the two persons were acting together in the importation of opium. Once the police had seen Mr. Henareh at the airport and then again on Kent Street, they were entitled to look at the two circumstances together: If Mr. Henareh was an innocent party just helping out Mr. Ravandi, why would he avoid speaking to him or sitting near him in a small airport café when they meet a short time later. This purposeful avoidance is inconsistent with a mere associate helping a friend in what he believed was an innocent activity. [31] She referenced the transfer of one of the packages from the U-Haul to the Honda and the appellant’s role in facilitating that transfer. She noted the “heat checks” engaged in by the appellant after the package had been transferred to the Honda. Based on the appellant’s surveillance-conscious behaviour after the transfer, she found that “it was reasonable in the totality of the circumstances for Sgt. Fossum to believe that the bag which had been moved into the Honda contained opium”. [32] With respect to the central issue that arises on this appeal, the trial judge said: [71] The level of particularity in his [Sgt. Fossum’s] testimony regarding the conduct of Mr. Henareh, in relation to his experience and the information in his possession at the time of arrest as set out above, provides ample evidence for me to find that not only did Sgt. Fossum subjectively believe he had reasonable and probable grounds to arrest Mr. Henareh, but also that a reasonable person in his place would have believed that there were reasonable and probable grounds for the arrest. [72] The Crown has discharged its onus on both the subjective and objective elements of the test. [73] I therefore find that the arrest was lawful under s. 495(1)(a) of the Criminal Code , as the arresting officer had, both subjectively and objectively, reasonable and probable grounds to arrest Mr. Henareh in the totality of the circumstances. D.       The Positions of the Parties [33] The appellant argues that that the trial judge erred in law in finding Sgt. Fossum’s subjective belief to be objectively reasonable. While the appellant’s submissions focussed on the trial judge’s reliance on his behaviour in the café and her assessment of the reliability of the information contained in the tip, he advances a number of additional points. In particular, he argues that: · Sgt. Fossum “blindly accepted” the inference drawn by unknown CBSA surveillance officers from the behaviour of the two men in the café that Mr. Salamat Ravandi and the appellant “didn’t want it to be known that they knew each other”. In the absence of additional supporting facts, it was not reasonable for Sgt. Fossum to proceed on this factual footing; · Likewise, the trial judge’s inference that the appellant and Mr. Salamat Ravandi engaged in “purposefully avoidant” behaviour while together in the café is said to be based on a misapprehension of the evidence. The trial judge’s finding that the appellant avoided sitting near Mr. Salamat Ravandi in the café was not a fact relayed to Sgt. Fossum. Although it was set out in an agreed statement of facts that the two men sat at separate tables in the café, Sgt. Fossum did not testify that he had been so informed. It was, therefore, an error for the trial judge to incorporate this into her “purposeful avoidance” finding. The error is said to be material because it affected the trial judge’s assessment of the objective reasonableness of Sgt. Fossum’s grounds to arrest. Specifically, the trial judge relied on this finding to reject a competing inference put forward by the appellant that he was an innocent party helping out a friend with what he believed to be a legitimate pick up of goods; · Importation of opium is not a continuing offence; it is complete once the drugs have entered the country: R. v. Bell , [1983] 2 S.C.R. 471. Accordingly, any observations about the appellant’s suspicious behaviour subsequent to the importation of the drugs could not, standing alone, give rise to reasonable and probable grounds to arrest him for opium importation; · The trial judge erroneously found that the reliability of the tipster’s information had largely been confirmed by the time of the arrest. In fact, all of the details of the tip that were corroborated related to Mr. Salamat Ravandi and not to the appellant. At the time of the arrest, there was no corroboration that a second person was involved in the importation of opium aside from unreasonable inferences made by CBSA officers regarding the appellant’s behaviour in the café; · The trial judge erroneously found that it was reasonable for Sgt. Fossum to have believed that the package loaded into the Honda contained drugs. There was no evidence before her to justify that conclusion because the size and shape of the package loaded into the Honda was different from the packages that contained drugs; and · The trial judge erred in finding that Sgt. Fossum’s belief was objectively reasonable when it was clear that a number of competing and innocent inferences could be drawn from the appellant’s behaviour. [34] The appellant argues that his detention was arbitrary and the search of his vehicle that led to the discovery of the opium a breach of his s. 8 rights. [35] The Crown submits that the trial judge made no error in fact or in law. The Crown argues there was abundant evidence to support the trial judge’s conclusion that Sgt. Fossum’s subjective belief that he had grounds to arrest the appellant for importing opium was objectively reasonable. F.       Analysis (a)      Governing Legislation [36] Section 495(1)(a) of the Criminal Code , R.S.C. 1985, c. C-46, provides that: 495.  (1)  A peace officer may arrest without warrant (a)     a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence. ( b)      Guiding Principles [37] A number of uncontentious principles frame the core issue that arises for determination on this appeal. [38] In R. v. Storrey , [1990] 1 S.C.R. 241 at 250-251, the Court held that there is a subjective and objective element to the test for a lawful arrest under s. 495(1)(a): In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest. [39] The reasonable grounds standard requires something more than mere suspicion, but something less than the standard applicable in civil matters of proof on the balance of probabilities: Mugesera v. Canada (Minister of Citizenship & Immigration) , 2005 SCC 40 at para. 114. The appropriate standard is one of reasonable probability: R. v. Debot , [1989] 2 S.C.R. 1140 at 1166. Reasonable or credibly-based probability contemplates a practical, non-technical and common sense evaluation of the probability of the existence of facts and asserted inferences: R. v. Sanchez (1994), 93 C.C.C. (3d) 367 at 367 (Ont. Ct. (G.D.)). [40] Determining whether reasonable and probable grounds exist requires an assessment of the “totality of the circumstances”: R. v. Debot at 1168. [41] A trial judge’s ruling on whether objectively reasonable grounds to arrest have been shown is a question of law subject to a correctness standard: R. v. Shepherd , 2009 SCC 31 at para. 20. Factual findings and inferences made in the course of the analysis are, however, entitled to deference and fall within the exclusive domain of the trial judge absent palpable and overriding error: R. v. Mann , 2004 SCC 52 at para. 49; R. v. Cornell , 2010 SCC 31 at para. 25; R. v. Bush , 2010 ONCA 554 at para. 48. [42] Trial judges are obliged to assess the objective reasonableness of an arresting officer’s belief that he or she had reasonable grounds to arrest from the perspective of a reasonable person standing in the arresting officer’s shoes. The analysis takes account of the arresting officer’s knowledge and experience with respect to the matter under investigation: R. v. Luong , 2010 BCCA 158 at para. 24; R. v. Wilson , 2012 BCCA 517 at para. 26. (c)      Surveillance at the Café and the Alleged Misapprehension of the Evidence [43] I will deal together with the first two points made by the appellant. [44] First, there is no evidence that Sgt. Fossum “blindly accepted” the observations communicated to him by the surveillance team that the appellant took steps to make it appear as if he did not know Mr. Salamat Ravandi when both of them were in the café. The trial judge made no such finding and it is clear from the evidence of Sgt. Fossum that he weighed the totality of the information before him before determining to arrest the appellant for importing opium. Further, the appellant’s submission on this and on other points invites an inappropriate piecemeal assessment of the evidence. The trial judge correctly approached the central issue before her – whether Sgt. Fossum’s subjective grounds for arrest were objectively reasonable – on the basis of the totality of the information available to him. [45] I am also unable to accept the submission that the trial judge misapprehended the information that had been communicated to Sgt. Fossum by the surveillance team about the appellant’s behaviour in the café. While Sgt. Fossum did not specifically testify that he had been informed that the two men avoided sitting near one another in the café, it is clear that he was supplied with the essence of this information. On direct examination, Sgt. Fossum testified that Mr. Salamat Ravandi “was observed sitting and there was another male – Persian male – that was sitting and the – they both seemed to be connected…” On cross-examination, Sgt. Fossum testified that he believed the two men were texting each other “because it makes no sense not to be – not – it would make no sense for him not even to be with his friend…” It was open to the trial judge to put these statements together and find that Sgt. Fossum had been informed that the two men were not sitting together. Further, the trial judge’s finding that the appellant and Mr. Salamat Ravandi engaged in purposefully avoidant behaviour while they were in the café was reasonable and supported by the subsequent behaviour of the two men on SE Kent. In my view, there is no basis upon which this Court could properly interfere with what amounts to a factual inference. (d)      The Offence of Importing Opium was Complete when the Appellant Attended at the CBSA Air Cargo Centre [46] The appellant argues that importation of drugs is not a continuing offence and that it was unreasonable for Sgt. Fossum to infer that he was involved in importing opium based on his behaviour after the drugs had entered Canada. I cannot accede to this argument. Although importation is not a continuing offence, I agree with the position of the Crown that subsequent conduct can afford cogent evidence of involvement in the offence of importing drugs. I see nothing wrong with the trial judge’s evaluation of the reasonableness of Sgt. Fossum’s grounds for arrest in light of the appellant’s post-importation conduct. This is particularly true in the instant case where the police had information that two men were involved in importing opium from Iran. (e)      The Trial Judge’s Reliance on the Tipster’s Information [47] I cannot accept the appellant’s submission that the trial judge committed reviewable error by overemphasizing the reliability of the tipster’s information. [48] Although nothing was known of the tipster’s history of reliability, the information supplied by the informer was rich in detail and confirmed in material ways. In these circumstances, it was reasonable for Sgt. Fossum to regard the tip as a whole as reliable, including information that a second man was involved in importing opium from Iran. Indeed, this information could reasonably be regarded as having been confirmed by the appellant’s conduct the day Mr. Salamat Ravandi took delivery of shipment. (f)       The Trial Judge’s Finding that it was Reasonable for Sgt. Fossum to Believe that the Package Transferred to the Honda Contained Opium [49] Similarly, I cannot accept the appellant’s argument that the trial judge erred in finding that it was reasonable for Sgt. Fossum to believe that the package transferred from the van to the Honda contained opium. From his vantage point, Sgt. Fossum could not tell one package from the other. It must be remembered that Sgt. Fossum was conducting covert surveillance from a considerable distance. All four packages were similar in size and the same colour. Three of the four packages were known to contain opium. The trial judge found that it was reasonable, in the totality of the circumstances, for Sgt. Fossum to believe that the package transferred to the Honda contained opium. The totality of the circumstances included the post-transfer counter-surveillance measures employed by the appellant. I see no reviewable error in the conclusion the trial judge reached on this point. [50] I cannot accept the appellant’s further submission that Sgt. Fossum placed no reliance on the “heat check evidence” in formulating what he considered to be reasonable grounds to make the arrest. While Sgt. Fossum testified on the voir dire that he thought he had reasonable grounds to arrest when the package was transferred to the Honda, it is apparent from his evidence as a whole that the appellant’s counter-surveillance measures also factored into the formulation of his subjective belief that the appellant was arrestable for the offence of importing opium. As a consequence, the trial judge made no error in considering this evidence in determining whether those grounds were objectively reasonable. [51] In summary, the trial judge’s finding on this point was entirely reasonable and untainted by palpable or overriding error. Again, there is no basis upon which this Court could properly interfere on this ground. (g)      Failure to Consider Other Innocent Explanations for the Appellant’s Behaviour [52] The appellant argues that the trial judge’s reasoning effectively foreclosed consideration of “other innocent inferences” that might be drawn from his behaviour at the café and “other interpretations” of the counter-surveillance measures. I cannot give effect to this argument. I agree with the Crown that the appellant’s submission on this point overlooks the nature of the reasonable grounds analysis. The trial judge was not obliged to scrutinize the evidence by employing tests applicable to the determination of guilt or innocence. She was not obliged to rule out every possible innocent inference for suspicious activity in determining whether Sgt. Fossum’s grounds for arrest were objectively reasonable. Rather, she was obliged to consider the totality of the circumstances relied upon by Sgt. Fossum and decide whether a reasonable person standing in the arresting officer’s shoes and imbued with that officer’s knowledge and experience would have believed that reasonable grounds existed to make the arrest. (h)      Objective Reasonableness of Sgt. Fossum’s Grounds for Arrest [53] The trial judge considered the totality of the circumstances and concluded that it was objectively reasonable for Sgt. Fossum to have believed that he had reasonable grounds to arrest the appellant for importing opium. In my view, the trial judge correctly resolved this issue. Given the totality of the circumstances known to him at the time of the arrest, it was objectively reasonable for Sgt. Fossum to believe that the man driving the Honda was the second person identified by the tipster as being involved with Mr. Salamat Ravandi in importing opium from Iran to Canada. I see no reviewable error in the trial judge’s finding on this critical issue. Indeed, I agree with her observation that there was ample evidence supporting a conclusion that Sgt. Fossum’s grounds for the arrest were objectively reasonable.As the arrest of the appellant was lawful, the search of the appellant’s vehicle was justified because it was incidental to the arrest. The appellant’s Charter rights were not breached in the events that led up to the discovery of the evidence. In light of the conclusion I have come to on these points, it is unnecessary to consider the application of s. 24(2). [54] I would dismiss the appeal. “The Honourable Mr. Justice Fitch” I AGREE: “The Honourable Chief Justice Bauman” I AGREE: “The Honourable Madam Justice Kirkpatrick”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Wiwchar, 2017 BCCA 9 Date: 20170110 Docket No.: CA43128 Between: Regina Respondent And Dean Michael Wiwchar Appellant Before: The Honourable Chief Justice Bauman The Honourable Madam Justice D. Smith The Honourable Mr. Justice Goepel On appeal from:  An order of the Supreme Court of British Columbia, dated June 4, 2015 ( R. v. Wiwchar , 2015 BCSC 973, Vancouver Docket No. 26487). Counsel for the Appellant: S. Buck Counsel for the Respondent: M. Sheardown A. Adams Place and Date of Hearing: Vancouver, British Columbia October 25, 2016 Place and Date of Judgment: Vancouver, British Columbia January 10, 2017 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Chief Justice Bauman The Honourable Mr. Justice Goepel Summary: Mr. Wiwchar was convicted of a number of firearm-related offences. At trial, the central issue was whether he knew about the firearms, ammunition and prohibited devices, found inside an ottoman in an apartment he and his co-accused had exclusive access to at all material times. On appeal, Mr. Wiwchar submits the judge misapprehended the evidence in finding that, because a bag placed inside the ottoman during the material time contained his fingerprint, he would have known about the contents of the ottoman. He submits that the judge’s misapprehension of that evidence played an essential role in the reasoning process that led to his convictions. He also submits the judge erred in failing to provide adequate reasons to support his verdict. Held: appeal dismissed. The judge’s interpretation of the evidence was a reasonable one that was open to him on the wording of an admission made pursuant to s. 655 of the Criminal Code that was also supported by photos stills. However, even if he did err as alleged, the error was not readily obvious and, in any event, it was inconsequential to his reasoning as the evidence overwhelmingly established that Mr. Wiwchar and the co-accused were acting in concert with respect to the criminal activities. Nor were the judge’s reasons insufficient when they are read as a whole in the context of the evidence and the submissions at trial. There was no miscarriage of justice and the verdict was not unreasonable. Reasons for Judgment of the Honourable Madam Justice D. Smith: Overview [1] Following a 10-day trial, Dean Wiwchar was convicted of nine counts in an indictment that charged him with: (1) possession of restricted, prohibited, loaded or unloaded firearms with readily accessible ammunition, and possession of these firearms without a licence or registration certificate, contrary to s. 95(1) of the Criminal Code (the “ Code ”); (2) possession of firearms and possession of firearms without a licence or registration certificate, contrary to s. 92(1) of the Code ; (3) possession of prohibited devices, contrary to s. 92(2) of the Code ; and (4) possession of firearms, devices and ammunition while prohibited from so doing, contrary to s. 117.01(1) of the Code . All of the firearms found to be in his possession were operational. He appeals his convictions on counts one to five. [2] The offences occurred between March 24, 2012, and April 25, 2012, in two locations: an apartment on Jervis Street in Vancouver (the “Jervis Residence”) and Suite 1209 (the “Suite”) of a condominium tower in Surrey (the “Tower”). The Suite was a “safe-house” that was used to store items related to criminal activity, including weapons. Mr. Wiwchar and the co-accused, Mr. Ley, also used the Suite as a staging location for their reconnaissance activities at a nearby gym and to store clothing and disguises related to those activities. [3] Counts one to five of the indictment were related to the offences at the Suite. During a lawful search, the police seized 14 firearms, various prohibited devices (e.g., oversized cartridge magazines) and ammunition. Counts six to nine of the indictment were related to similar seizures at the Jervis Residence. Mr. Wiwchar pleaded guilty to those counts, but not guilty to counts one to five. [4] The central issue at trial was whether Mr. Wiwchar knew of the firearms, ammunition and prohibited devices that were located inside an ottoman in the Suite. While Mr. Wiwchar admitted that he had control over the Suite, he contended that the Crown had not established beyond a reasonable doubt that he knew the items were being stored there. [5] On appeal, Mr. Wiwchar submits the judge misapprehended the evidence in finding that he had knowledge of the firearms, ammunition and prohibited devices, and that the judge’s misapprehension of that evidence played an essential role in the reasoning process that led to his convictions on counts one to five. He also submits the judge erred in failing to provide adequate reasons. [6] For the reasons below, I am not persuaded the judge misapprehended the evidence or that his reasons were inadequate. I would dismiss the appeal. Background [7] The trial proceeded on a number of admitted facts that were entered as evidence pursuant to s. 655 of the Code (the “Admissions”). Facts admitted pursuant to s. 655 are deemed to be conclusively proven. The judge also made findings of fact. The following facts, including the Admissions, are not in dispute. [8] Between March 23, 2012 and April 24, 2012, Mr. Wiwchar and Mr. Ley had exclusive access to the Suite through the use of a fob issued for the Suite. It also provided access for the elevators to the Suite as well as the unit’s assigned parking stall, 269, in the underground parkade, where a Dodge Caravan was parked and used by Mr. Wiwchar and Mr. Ley. [9] The police had Mr. Wiwchar under surveillance between March 24, 2012 and April 18, 2012. During that period they observed Mr. Wiwchar and Mr. Ley going into, and leaving, the Tower on six occasions: March 28, April 7, 10, 11, 12 and 17. They also noted that Mr. Wiwchar was the predominant user of the fob on those occasions. [10] On March 27, Mr. Wiwchar and his girlfriend purchased a number of clothing and footwear items at the SportChek store at Metrotown, Burnaby. [11] On March 28, at 19:14 hours, Mr. Wiwchar and Mr. Ley purchased three 2.8L bottles of bleach and Lysol wipes at the London Drugs store in Guildford Town Centre, Surrey. Fifteen minutes later they returned to the Tower. The CCTV monitoring system for the Tower captured each man entering the front doors carrying multiple plastic shopping bags. Mr. Wiwchar was wearing a white jacket and Mr. Ley a black jacket. [12] The photo stills showed Mr. Wiwchar carrying three larger bags of the same size and shape and at least one smaller bag. One of the larger bags facing the CCTV clearly displayed the rectangular black SportChek marking. The other bags of a similar size and shape also displayed the rectangular black marking of a SportChek bag, but the SportChek logo was not discernible on them. The CCTV did not capture any discernible markings on the smaller bag. [13] The photo stills also captured Mr. Ley carrying, in one hand, several of the larger bags with the black rectangular markings and several of the smaller plastic bags in the other hand. [14] Paragraph 22(b) of the Admissions stated that on March 28, 2012, at 19:28-19:29, Mr. Wiwchar and Mr. Ley were at the Tower. Mr. Wiwchar was wearing white, Mr. Ley black, and “both were carrying multiple plastic shopping bags from London Drugs and SportChek” to the front doors. The judge interpreted this Admission to mean that each man carried multiple shopping bags from both London Drugs and SportChek. [15] On April 2, Mr. Wiwchar and his girlfriend purchased items at a professional costume and make-up store. [16] On April 7, 10 and 11, Mr. Wiwchar and Mr. Ley were seen to have entered the Tower. When they left they had changed their clothes. They then drove the Dodge Caravan to the nearby World Gym. Over those three days, they spent a total of 7 hours in the vicinity of the World Gym watching men, matching the description of one that the police believed they intended kill. On each of these dates, Mr. Wiwchar was wearing white clothing when he arrived at the Tower and black clothing when he left for the World Gym. When he returned to the Tower, he changed back into the white clothing. [17] On April 18, Mr. Wiwchar and Mr. Ley travelled to Mexico. Mr. Wiwchar left the fob to the Tower with his girlfriend while he was away. Mr. Ley returned from Mexico on April 27. On May 2, he retrieved the fob from Mr. Wiwchar’s girlfriend and used it to access the Dodge Caravan parked in stall 269. There was no evidence that he accessed the Suite at that time. Mr. Wiwchar returned from Mexico on May 18. On May 23, he travelled to Toronto; he returned to Vancouver on May 28. [18] On April 24, 2012 while the men were still in Mexico, the police lawfully searched the Suite. When the search was complete, the police staged a break in of the suite to make it appear as if there had been a forced entry. [19] During the search of the Suite, the police discovered the following items inside a large ottoman in the living room: · a blue Roots backpack containing: ammunition inside two ziplock bags stored in the top zipper compartment of the backpack; a latex glove; and, inside the sleeve of the top zipper compartment, a license plate, a liquor store plastic bag and a London Drugs plastic bag containing some ammunition; · a black Reebok duffle bag containing six firearms; · a red shoe box containing two handguns; and · firearms and magazines on the floor of the ottoman. [20] A forensic analysis of the London Drugs bag from the ottoman detected a fingerprint on the inside of the bag that was matched to Mr. Wiwchar. [21] A fingerprint on the latex glove was identified as belonging to a third party. [22] No fingerprints were found on the firearms, ammunition or devices inside the large ottoman. One of the officers who had searched the items for fingerprints testified that a common way of removing DNA from objects is to use cleaners such as bleach. [23] The police search also located a small ottoman in the living room. It contained hand-cuffs, leg-irons, two flashlights and flyers. Mr. Wiwchar’s DNA was found on a water bottle in the kitchen. Mr. Ley’s DNA was found on a pop bottle in the living room. Two-way radios were in open view on the TV stand. On the floor beside the couch, were two unopened bottles of bleach; one was inside a plastic bag. The third bottle of bleach was not found. Beside the bottles of bleach, was a mask that Mr. Wiwchar and his girlfriend had purchased on April 2, 2012 at the costume store. The police also found some bags in the living room that contained disguises, including wigs, artificial moustaches and beards, makeup applicators, liquid latex, make up and artificial facial hair material. Six articles of clothing purchased from the Sportchek store on March 27 were also found in the Suite. Two additional items purchased at the SportChek store on that date were also found inside the Dodge Caravan parked in stall 269. Reasons for Judgment [24] The judge inferred that Mr. Wiwchar’s fingerprint, found on the London Drugs bag inside the large ottoman at the Suite, was placed on the bag by Mr. Wiwchar when he carried it into the Tower on March 28. The judge also inferred that either Mr. Wiwchar or Mr. Ley placed the bag into the ottoman when they were both in the Suite because they had exclusive access to the Suite during the material time. The judge stated: [59] The evidence here is that Mr. Wiwchar was seen carrying a number of London Drugs bags into Suite 1209 on March 28, 2012. That evidence provides a basis for Mr. Wiwchar’s fingerprint to have been placed on the bag. It is reasonable to infer that the London Drugs bag in the ottoman was one of the bags that he brought into Suite 1209 on March 28. As only Mr. Wiwchar and [Mr. Ley] had access to Suite 1209 between March 23 and April 24, it is also reasonable to infer that the London Drugs bag was placed in the Roots bag and in the ottoman by one of them sometime on or after March 28. [60]      There is no evidence that [Mr. Ley] had exclusive access to Suite 1209 between March 28 and April 24. When he returned from Mexico and went to the Surrey Tower to pick up the Dodge Caravan there is no evidence that he went to Suite 1209. On the days when Suite 1209 was accessed Mr. Wiwchar and [Mr. Ley] were the only persons who accessed that apartment. [61]      In the circumstances it is reasonable to infer that either Mr. Wiwchar himself placed the London Drugs bag in the ottoman or that he was present in Suite 1209 when [Mr. Ley] placed it there. In either scenario, it is reasonable to infer that Mr. Wiwchar would then have become aware of the guns in the ottoman. [62]      While the fingerprints of [the third party] suggest that he may have been aware of the contents of the ottoman, unlike Mr. Wiwchar, he did not access Suite 1209 between March 23 and April 24. Nor, unlike Mr. Wiwchar, does that evidence give rise to any inference as to when his prints were placed on the latex glove. [Emphasis added.] [25] The judge concluded: [63]      Although Mr. Wiwchar’s fingerprint may have been innocently placed on the bag, the presence of that bag is highly probative of his knowledge of the firearms in the ottoman because it is reasonable to infer that it was placed there between March 28 and April 24, when Mr. Wiwchar and [Mr. Ley] were the exclusive occupants. While that alone may not be sufficient to conclude beyond a reasonable doubt that Mr. Wiwchar is guilty of possessing the firearms and ammunition, in my view, considered with all of the other evidence I am satisfied beyond a reasonable doubt that Mr. Wiwchar had the requisite control and knowledge of the firearms and devices in the ottoman to find him guilty of possession as charged in counts 1 to 5 in the indictment. Discussion [26] The judge inferred that: (1) Mr. Wiwchar’s fingerprint on the London Drugs bag found inside the large ottoman was placed there when Mr. Wiwchar carried the bag into the suite on March 28; and (2) that London Drugs bag was then placed by Mr. Wiwchar or Mr. Ley in his presence inside the ottoman on March 28, or thereafter. These were critical findings of fact that permitted him to conclude that Mr. Wiwchar had the requisite knowledge of the firearms, ammunition and prohibited devices inside the ottoman. [27] Mr. Wiwchar submits the judge: (1) misapprehended the evidence in finding that on March 28, he carried the London Drugs bag that contained his fingerprint into the suite; (2) failed to consider other reasonable inferences including the possibility that Mr. Wiwchar had touched the London Drugs bag or another London Drugs bag before March 28 and someone else placed the bag with his fingerprint into the ottoman outside of the March 28 to April 18 timeframe; and (3) gave insufficient reasons for finding that, along with the fingerprint evidence, “all of the other evidence” established that Mr. Wiwchar knew of the contents of the ottoman. Misapprehension of evidence [28] The test for misapprehension of evidence that could affect the outcome of a trial is a stringent one. For the Court, Mr. Justice Binnie, in R. v. Loher, 2004 SCC 80 described it thus: [2] Morrissey [ R. v. Morrisey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.)], it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction.” [29] Relying on R. v. C. (R.) (1993), 81 C.C.C. (3d) 417 (Que. C.A.) at 420, Binnie J. further stated that an appellant will not succeed unless the misapprehension could have affected the outcome of the trial. [30] Similarly, in R. v. Sinclair, 2011 SCC 40, Mr. Justice Lebel, for the majority, summarized the test for granting a new trial based on a misapprehension of evidence as follows: [53]      … for an appellate court to decide to order a new trial on the basis of a miscarriage of justice resulting from a misapprehension of the evidence, more is need than an “apparent” mistake (e.g. an error that the trial judge may have committed) in the reasons. A court of appeal should not, in applying the Loher test, order a new trial unless the trial judge has made a real error; its decision cannot be speculative. The plain language or the thrust of the reasons must disclose an actual mistake. When such errors are in fact committed, appellate courts have no difficulty in explaining why they caused the trial judge’s reasoning process to be fatally flawed and where they may be found in the reasons. In such situations, the errors are readily obvious. [Emphasis in original.] [31] Mr. Wiwchar submits the judge’s misapprehension of the evidence comes from his erroneous interpretation of paragraph 22(b) of the Admissions (reproduced in para. 14 above). The Admission provides that both Mr. Wiwchar and Mr. Ley walked up to the front doors of the Tower carrying multiple plastic shopping bags from London Drugs and SportChek. [32] The judge interpreted the Admission as proving that each of the men was carrying multiple plastic bags from both SportChek and London Drugs. Mr. Wiwchar submits that the proper interpretation of the Admission is that together the men were carrying multiple plastic bags from both SportChek and London Drugs. [33] In my view, the judge did not err in his interpretation of paragraph 22(b) of the Admission. The judge’s interpretation of the Admission was a reasonable one that was open to him on the wording of the Admissions and also supported by the photo stills. However, even if he did err as alleged, the error was not readily obvious and, in any event, it was inconsequential to his reasoning. [34] The bags the men were carrying came from SportChek and London Drugs some fifteen minutes before they arrived at the Tower. Three 2.8L bottles of bleach (the large ones) were purchased at London Drugs. There is no evidence that the men stopped for any other purchases in that 15 minute interval. It is also clear from the photo stills that the size and shape of the bags from each of those merchants were different. The bags that were larger in size and shape, and displayed a discernable black rectangle that included the SportChek logo, were different from the smaller bags that had no discernible markings. The photo stills showed Mr. Wiwchar carrying three of the larger SportChek bags and one of the smaller bags, while Mr. Ley was carrying two of the larger SportChek bags and two of the smaller bags. The only reasonable inference to be drawn from that evidence was that the smaller bags were the London Drugs bags and that each of the three bottles of bleach were in each of the London Drugs bags. [35] However, even if the judge misapprehended the evidence in finding that Mr. Wiwchar carried a London Drugs bag into the suite, which I do not find, the alleged error would be immaterial as the evidence overwhelmingly established that the two men were acting in concert and were in joint possession of the bags at the time. Mr. Wiwchar and Mr. Ley were the only individuals with exclusive access to the Suite between March 23 and April 18. There was only one fob for the Suite. On each occasion they accessed the Suite, they were together, except on May 2 (outside the relevant timeframe) when Mr. Ley retrieved the fob from Mr. Wiwchar’s girlfriend but used it only to access the Dodge Caravan. Together, Mr. Wiwchar and Mr. Ley purchased the items at the SportChek and London Drugs stores on March 28. Together, they came and went from the Suite to the World Gym, in the same vehicle, on six occasions between March 28 and April 17, apparently searching for a particular male in the vicinity of the World Gym. [36] Whether Mr. Wiwchar carried the London Drugs bag into the suite on March 28, or Mr. Ley did, is insignificant, as the two were acting in concert with respect to a joint endeavour involving criminal activities for which the Suite was being used as a “safe-house”. Inferences of fact [37] When assessing circumstantial evidence, inferences of fact consistent with innocence no longer have to be drawn from proven facts. Such inferences may be drawn from “reasonable possibilities” arising from the evidence or lack of evidence that are inconsistent with guilt: R. v. Villaroman, 2016 SCC 33 at paras. 36 and 37. [38] In Villaroman , Mr. Justice Cromwell for the Court explained the test as follows: [35]      … In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 30, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7 th ) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on the accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [36]      I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in [ R. v. Lifchus, [1997] 3 S.C.R. 320] a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence” : para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. [37]      When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d [1938] S.C.R.; R. v. Gaigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or absence of evidence, not on speculation. [38]      Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed objectively and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [Emphasis added in original.] [39] The critical requirement is that the alternate theory or possibility arising from the circumstantial evidence or lack of evidence, when viewed objectively, is a “plausible” or “reasonable” inference, other than the accused is guilty. In my view, the alternate inferences suggested by Mr. Wiwchar, which he says can be drawn from the circumstantial evidence or lack of evidence, are not “plausible” or “reasonable” when the totality of the evidence is considered. [40] Mr. Wiwchar submits the judge erred in failing to consider alternate inferences from the one he drew, that either Mr. Wiwchar placed the London Drugs bag containing his fingerprint into the ottoman himself or was present when Mr. Ley did so after the bags came into the suite on March 28. Mr. Wiwchar says that it was equally reasonable to infer a scenario where the bag was placed in the ottoman by Mr. Wiwchar before March 28, outside of the timeframe for the charges, and that someone other than himself used the bag to package and store the ammunition in the ottoman. [41] This submission fails on several grounds. First, it misconstrues the judge’s findings, which must be read as a whole. The judge found that it was reasonable to infer the London Drugs bag in the ottoman was one of the bags Mr. Wiwchar brought into the apartment on March 28. Since only Mr. Wiwchar and Mr. Ley had access to the suite between March 23 and April 24, it was also reasonable to infer that the London Drugs bag was placed into the ottoman on or after March 28. In short, the judge’s reasoning did not depend on finding that Mr. Wiwchar’s fingerprint was placed on the bag when it was carried into the Tower on March 28. [42] Moreover, Mr. Wiwchar’s hypothetical scenarios, that someone else may have used the London Drugs bag to package the ammunition, was properly rejected by the judge. The evidence established that no one other than Mr. Wiwchar and Mr. Ley had access to the suite during the material time. The lack of evidence in support of these hypothetical scenarios does not provide a basis for finding them to be a “plausible theory” or “reasonable possibility”; rather, they amount to mere speculation. There was, in my view, no basis upon which Mr. Wiwchar’s hypothetical scenarios could reasonably have been inferred. [43] In comparison, the judge’s inference, that Mr. Wiwchar, or Mr. Ley, in the presence of Mr. Wiwchar, placed the London Drugs bag in the ottoman, was reasonably grounded in the evidence. Only Mr. Wiwchar and Mr. Ley had access to the Suite between March 23 and April 18, 2012. The Suite was a “safe-house”. The activities of the two men between March 28 and April 18 clearly established they were acting together on a joint endeavour. On March 28, both attended at London Drugs where they purchased items that they immediately transported back to the Tower and carried into the Suite in London Drugs bags. There was no evidence of Mr. Wiwchar having made purchases from London Drugs and then accessing the Suite at any other time between March 28 and April 18. Mr. Wiwchar’s fingerprint was on a London Drugs bag inside the ottoman. In these circumstances, the judge’s inference that Mr. Wiwchar had knowledge of the contents of the ottoman was the only reasonable inference to be drawn. Insufficiency of reasons [44] The judge stated that if the fingerprint evidence alone was not sufficient to establish Mr. Wiwchar’s knowledge of the contents of the ottoman beyond a reasonable doubt, he was satisfied that based on “all of the other evidence”, his requisite knowledge had been established. I am satisfied the judge’s interpretation of the Admission was correct for the reasons above. However, for the sake of completeness, I would respond to this submission as follows. [45] Mr. Wiwchar submits that the trial judge failed to provide sufficient reasons for this Court to determine how he reached a verdict of guilty beyond a reasonable doubt, based on the fingerprint evidence and “all of the other evidence”. He says it is unclear from paragraph 63 of the judge’s reasons (reproduced in para. 25 above), which additional evidence the judge relied on to tip the scales in favour of a guilty verdict. In short, he submits the reasons do not explain why the trial judge reached his verdict nor do they permit a meaningful appellate review. [46] I am unable to agree. In Villaroman, Cromwell J. underscored that a “trial judge’s reasons for judgment should not be ‘read or analyzed as if they were an instruction to a jury’”. Reasons for judgment “must be ‘read as a whole, in the context of the evidence, the issues and the arguments at trial, together with ‘an appreciation of the purposes or functions for which they are delivered.’’” [47] The judge’s reasons are, in my view, sufficient when they are read as a whole in the context of the evidence and submissions at trial. They explain why Mr. Wiwchar was convicted. The extensive record, created by the 10-day trial, permits this Court to discern what “all the other evidence” refers to with sufficient certainty, as I have touched upon above, to fulfill its appellate function. Common sense based on the undisputed facts and the absence of any conflict in the evidence or the law dictated this verdict. As was noted by Madam Justice Bennett in R. v. Tahirsylaj, 2015 BCCA 7: [41]      … the judge’s finding of possession is a finding of fact, and the role of this Court is not to reweigh and reassess the evidence and come to our own independent conclusion. Rather, our role is to determine whether the conclusion of the trial judge went beyond the “limit of reasonableness” defined by the evidence. [48] In my view, there was no miscarriage of justice and the verdict was reasonable based on the record. The judge did not misapprehend the evidence in his interpretation of the Admission and the inferences he drew flowed logically from the evidence available to him at trial. Lastly, the judge’s reasons in my view adequately explained why he convicted Mr. Wiwchar. [49] For these reasons, I would dismiss the appeal. “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Chief Justice Bauman” I AGREE: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Reimer v. Bischoff, 2017 BCCA 4 Date: 20170110 Docket: CA43236 Between: Donna Reimer Respondent (Plaintiff) And Jesse Paul Bischoff Appellant (Defendant) And Helen Elaine Cheesman Respondent (Defendant) Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Harris The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated October 15, 2015 ( Reimer v. Bischoff , 2015 BCSC 1876, Vernon Registry 50890). Counsel for the Appellant: A. Murray, Q.C. Counsel for the Respondents: K. Burnham Place and Date of Hearing: Vancouver, British Columbia December 12, 2016 Place and Date of Judgment: Vancouver, British Columbia January 10, 2017 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Savage Summary: In a motor vehicle accident trial where the sole issue was damages, the trial judge awarded the respondent damages for jaw pain, future cost of Botox and migraine medication, and loss of past and future income. The appellant argues that those awards are not supported by the evidence. HELD: appeal allowed in part. There is a thin, but sufficient evidentiary basis to support the judge’s finding that the jaw pain was caused by the accident. The Botox award is set aside as no admissible medical evidence supported that award. As to the award for migraine medication, the judge erred in not considering his findings that migraines from both accident and non-accident causes will diminish over time, thus requiring additional adjustments for contingencies. However, in the balance, this Court would not disturb the trial judge’s contingency reduction for this award. The award for past and future income is reduced by 25%, as the judge erred in not accounting for how, as was the respondent’s practice pre-accident, part-time workers would be hired from time to time in any event of the accident based on fluctuations in business volume. Reasons for Judgment of the Honourable Mr. Justice Harris Introduction [1] This is an appeal of three components of a damages award arising out of a motor vehicle accident. First, the appellant appeals an award for the cost of future care items for the treatment of a temporomandibular joint (“TMJ”) injury on the basis that there was no admissible evidence that the injury was caused by the motor vehicle accident. Second, the appellant appeals an award made in respect of the future cost of Botox treatment and migraine medications on the basis that those awards rest on palpable and overriding errors of fact. Third, the appellant appeals the award of past and future income loss, again alleging palpable and overriding errors of fact. [2] The respondent was injured in a motor vehicle accident on June 19, 2011. The respondent was injured in a rear-end accident caused by the appellant. The forces involved in the accident were significant. The respondent’s vehicle was a total loss. Liability was admitted. The trial was restricted to the issue of quantum of damages. [3] At the time of the accident, the respondent was 55 years old. She was self-employed. She ran a copy franchise. [4] There is no dispute that the accident caused the respondent substantial injuries. The trial judge found that she suffered chronic dizziness and balance issues, soft tissue injuries to her neck, shoulder and low back, jaw and ear pain and associated headaches, aggravation of pre‑existing migraines, emotional stress and mood disorder, symptoms of post-traumatic stress disorder, fatigue, and cognitive deficits caused by the cumulative effect of her other injuries, particularly a vestibular injury. The judge rejected a claim that the respondent had suffered a mild traumatic brain injury as a result of the accident. [5] Prior to the accident, the respondent’s only significant health issue was a 20‑year history of migraine headaches associated with her menstrual cycle. The migraines usually lasted two to three days a month during which she experienced photosensitivity, nausea and sensitivity to movement. [6] Insofar as the respondent’s prognosis is concerned, the judge found that her TMJ injuries and remaining soft tissue injuries would resolve with proper treatment; the psychological difficulties including mood disorder, fatigue and migraine headaches would improve over the long run with proper counselling and pharmacological assistance, but the outlook was poor for balance, dizziness and memory problems. [7] The trial judge awarded the following : Non-pecuniary damages: $100,000 Past Loss of Income/Loss of Capacity to Work : $  30,000 Future Loss of Income/Loss of Capital-Earning Capacity: $  60,000 Future Care Costs: $  84,000 Special Damages: $    8,044 Total: $282,044 [8] It seems clear from the reasons for judgment that the primary issues the judge had to grapple with concerned the accuracy and reliability of the respondent’s evidence concerning her injuries and their severity. In particular, the judge had to decide whether the plaintiff had suffered a mild traumatic brain injury. He concluded that she had not, based substantially on his rejection of her evidence about whether she had lost consciousness at the time of the accident. [9] Given the centrality of what were effectively the live issues at trial, it is not perhaps surprising that the reasons for judgment are brief in respect of those components of the damage award in issue on this appeal. I propose to refer to those reasons in connection with each alleged ground of appeal. [10] Each ground of appeal alleges, in one form or another, that the awards rest on palpable and overriding errors of fact, principally because there was no evidence necessary to support the award or, failing that, the judge did not assess the amount awarded in light of applicable contingencies. It is unnecessary to rehearse in detail the standard of review engaged by this appeal. Obviously, we apply a deferential standard to findings of fact which are capable of being supported by the evidence before the trial judge, considered in their totality: Housen v. Nikolaisen, 2002 SCC 33 at paras. 29‑37; Friedl v. Friedl, 2009 BCCA 314, at paras. 28‑29; Ediger v. Johnston, 2013 SCC 18 at para. 29. Did the Judge Err in Awarding Future Care Costs in Respect of the Respondent’s Jaw Injury ? [11] The judge’s finding that the respondent suffered jaw pain is based principally on an opinion provided by Dr. Blasberg. Here is what the judge found: [47]      Dr. Blasberg, an oral medical specialist, assessed the plaintiff on March 27, 2014 and diagnosed her as suffering from a myofascial pain of her masticatory (jaw) muscle with referral contributing to jaw pain, dental pain, ear pain, and temple headaches. [48]      Dr. Blasberg also diagnosed the plaintiff as suffering from arthralgia of the right TMJ which is characterized by pain and tenderness in the joint capsule and/or synovial lining of the TMJ. [49]      Dr. Blasberg was of the view that her failure to immediately complain about specific jaw pain is not unusual when there are injuries to the head. With proper treatment as laid out in his report, he was of the view that “There were no clinical findings identified that would prevent Ms. Reimer from fully recovering from these jaw conditions. While in my opinion it is more likely than not that Ms. Reimer will fully recover, she might not, continuing to experience jaw pain, ear pain and headache requiring self-management and professional advice and treatment.” I accept Dr. Blasberg’s evidence that professional treatment would take between 12 and 24 months. [12] Dr. Blasberg’s opinion that the jaw pain was caused by the accident was based principally on his assumption, confirmed in cross-examination, that the respondent had suffered ear and jaw pain together from almost immediately after the accident in June 2011, until the date he examined her in 2014. Dr. Blasberg relied on the respondent’s report to him that she had suffered those symptoms from immediately after the accident. In his report he stated: I assumed that Ms. Reimer was experiencing ear pain and jaw pain beginning shortly after the motor vehicle accident as a result of injury to the jaw muscles . She stated that jaw pain and ear pain occurred together. I assumed that the ear pain was due to the injuries associated with the jaw muscles. There were no clinical records reviewed that included any examination of the jaw structures shortly after the motor vehicle accident to contradict my assumptions. Ms. Reimer at her examination pointed to the ear, temple and jaw angle on the right as the pain she was experiencing days after the motor vehicle accident. I assumed that the focus of medical attention was directed toward the ear and the headaches rather than the jaw structures. I assumed that a history of migraines, direct trauma to the head at the time of the motor vehicle accident and a traumatic brain injury with issues that took precedence over directing attention to jaw structures. [Emphasis added.] [13] The trial judge commented on the respondent’s evidence at para. 26: The plaintiff gave direct evidence concerning her temporomandibular joint (“TMJ”) or jaw pain. She stated that she told Dr. Blasberg that she suffered from right jaw pain beginning shortly after the accident on a daily/nightly basis and this pain continued up to the present time. There is, however, no note of jaw pain in records of the plaintiff’s family doctor prior to December 2012, no record of any dental visits until September 2012, and no report of complaints to her dentist on eight subsequent visits between September 12 and December 13, 2012. I accept the fact that the plaintiff does not have to provide the same litany of complaints to every medical professional. Some complaints are more important than others and purely because the plaintiff does not mention these complaints on a consistent basis should not automatically adversely affect the weight to be given to her evidence. However, here there is no evidence of complaints for several years after the accident. [14] He went on to comment on her evidence generally: [38]      I accept that the plaintiff has had difficulties with her memory but her memory difficulties do not explain all the inconsistencies in her evidence and the documentary evidence, particularly the conflict between her testimony and the evidence of the various doctors. I am very hesitant to give a great deal of weight to the plaintiff’s evidence save and except where it has been corroborated by other independent witnesses. [15] It is common ground that the respondent did not testify at trial that she suffered right jaw pain beginning shortly after the accident on a “daily/nightly basis”. It is common ground that the judge’s finding in that respect is in error. She did not testify that she suffered any jaw pain prior to the date of her examination by Dr. Blasberg. She testified that she been referred to Dr. Blasberg in March 2014 for a “stabbing ear pain” which she experienced “a short while” after the accident. She said that she had told her doctor about it within the first couple of months after the accident. She did not testify about what she told Dr. Blasberg, but she did say that he felt different parts of the jaw, pressed in behind her ear and when he did so she could feel the same type of pain. [16] Based on the above, the appellant argues that the only evidence that the respondent suffered ear and jaw pain together shortly after the accident is Dr. Blasberg’s statement in his medical opinion, which is an assumption on which the opinion is based. The appellant argues from the proposition that an opinion must be based on proven facts, that the fact of jaw and ear pain onset shortly after the accident has not been proven. Accordingly, no weight can be given to the opinion, particularly since the judge himself concluded that he could not give a great deal of weight to the plaintiff’s evidence unless it had been corroborated. Here, there was no corroboration of any complaints to any practitioners of jaw and ear pain for a considerable time after the accident. Paragraph 26 quoted above suggests that the trial judge had indeed rejected the plaintiff’s evidence that she suffered jaw pain shortly after the accident, but then relied on an opinion which rested on the unproven assumption, or evidence that he had dismissed, in awarding damages in respect of the TMJ injuries. In short, the judge reached a conclusion in making the award that was inconsistent with his earlier finding, but in any event, for which there was no admissible evidence. [17] The appellant also points to a concession made by Dr. Blasberg that the respondent’s jaw problem possibly (but not probably) could be related to root canal surgery done a few months before he examined her. The respondent points out, however, that there is evidence of the respondent suffering tenderness in her jaw before the root canal surgery when she was examined by a Dr. Longridge in September 2013. Also, it appears that there is no other possible explanation of her jaw problem unrelated to the accident. [18] The respondent contends that the judge was entitled to rely on the opinion of Dr. Blasberg, notwithstanding the admitted deficiencies in the evidence and the lack of corroboration in the contemporaneous medical reports of complaints consistent with the assumption on which the opinion rests. She points out that Dr. Blasberg explains in the opinion why a patient may not recognize that the symptoms relate to a jaw problem because the focus is placed elsewhere. [19] In my view, the appellant proffers a strong argument that the trial judge made a palpable and overriding error in accepting Dr. Blasberg’s opinion that the accident caused the respondent’s jaw problem. I agree with the general proposition that facts constituting an assumption for an opinion must be proven, if the opinion is to be given weight. The question here is whether there is any evidence capable of supporting the assumption on which the opinion rests. [20] I begin by observing that the judge’s general comment about the respondent’s credibility is that he was “very hesitant to give a great deal of weight to the plaintiff’s evidence save and except where it has been corroborated by other independent witnesses”. The judge does not say that he gives no weight to her evidence. Moreover, the focus of his comments in para. 26 is on whether the respondent suffered jaw pain shortly after the accident. I take his comments to be a rejection of her evidence on that point. The question is, then, whether that finding can be reconciled with the judge’s acceptance of Dr. Blasberg’s opinion. [21] In my opinion, there is a basis upon which they can be reconciled. Dr. Blasberg assumes that the respondent suffered ear pain shortly after the accident, of which there was evidence, and further, that the ear pain could be explained by a jaw problem. The respondent was not cross-examined on her complaints of ear pain. The medical opinion explains how jaw pain may not be a focus of complaint, given a constellation of other symptoms and perhaps more pressing concerns. It seems to me that the judge accepted the general proposition, put by the doctor, that it may be difficult for patients to distinguish a jaw issue from an ear problem, given the locality of the pain. The unchallenged evidence that the respondent felt the same type of pain (i.e., “stabbing ear pains”) when Dr. Blasberg pressed on the relevant area in assessing jaw issues supports this view. [22] I take it, then, that the trial judge must have been prepared to accept that the respondent suffered from ear pain, and then accepted the opinion that the ear pain was related to a jaw problem. Dr. Blasberg was not cross-examined on whether reporting ear pain alone was a sufficient basis to ground his opinion. It is also pertinent that the respondent did complain of ear pain some two years after the accident to Dr. Stewart and Dr. Longridge, both of whom directed the respondent to see a jaw or oral specialist. Dr. Stewart and Dr. Longridge’s reports were before the root canal surgery, which is the only other explanation for the jaw pain in the evidence. Given the evidence of Dr. Blasberg that a patient may “overlook” jaw pain or “confuse” it for ear pain, combined with the pre‑root canal surgery evidence of the respondent’s ear pain complaints of a similar nature, there is just sufficient evidence for me to say that it was open for the trial judge to accept that the jaw injury was caused by the accident. [23] In my opinion, it would clearly have been open to the trial judge to reject the claim that the respondent’s jaw problem was caused by the motor vehicle accident. The opinion might well have been rejected by the trial judge in light of his general comments about the reliability of the respondent’s evidence. Nonetheless, there was just enough evidence to support an assumption underlying the opinion, which the judge must have considered to be a sufficient basis to accept it. As a result, I would not accede to this ground of appeal. Did the Judge Err in Awarding the Cost of Future Care for Botox and Migraine Medications ? [24] The respondent has a 20‑year pre‑accident history of migraine headaches, associated with her menstrual cycle as I referred to above. The trial judge’s findings on this point are the following: [51]      It is acknowledged that the plaintiff had low grade headaches continuously for three months after the accident. One year post-accident she had hormone therapy which resulted in her having migraine headaches as a result of her menstrual cycle once every four months. She still reports, however, that she has migraine headaches two to three times per month that are not related to her menstrual cycle. [52]      Dr. Dost accepts that the accident has exacerbated the plaintiff’s migraine headaches. Dr. Cameron opined that the plaintiff is suffering from post-traumatic migraine headaches and suggests that “she also is probably suffering with intermixed musculoskeletal headaches following this accident as a result of the head trauma that she sustained at the time of the accident”. [53]      I am satisfied that the plaintiff still suffers migraine headaches that were a direct result of the accident. Although the plaintiff had a history of migraine headaches prior to the accident, the evidence indicates that these migraines increased in severity and frequency after the accident, and her attempts to mitigate these migraines have not completely returned her to her pre-accident condition. [25] After addressing other claims, the judge dealt with future cost of care in one paragraph: [109]    All the remaining future costs of care have been recommended by medical professionals including the occupational therapist and all in my view are reasonable. For future costs of care I award the sum of $84,000. [26] Included in the future cost of care award is $34,768.90 for Botox treatment. That award represents 75% of the cost of for Botox treatments annually for life. The 25% discount reflects the respondent’s submission that there should be an adjustment to account for menstrual migraines, which are not related to the accident. Also included in the award was $24,015 representing 75% of the annual cost of migraine medications, Topiramate and Replax, over the course of the respondent’s life. [27] I observe in passing that the cost of future care report did not include a claim for the cost of Botox. The claim for the cost of Botox arose during submissions at trial. [28] As the trial judge commented, the management of the respondent’s menstrual migraines involved hormone treatment that reduced their frequency, but did not eliminate accident-related migraines. Overall, the management of the respondent’s accident-related migraines involves daily use of Topiramate to prevent the migraine headaches, supplemented by Replax to mitigate the symptoms when they occur. The appellant argues that there was no properly admissible medical evidence that these medications were taken because of the accident, and submits that the respondent would be taking the migraine prevention medication in any event of the accident. [29] The parties do not dispute that determining the cost of future care involves identifying medically justified and recommended treatment responding to injury caused by an accident that sustains or improves the mental or physical health of the plaintiff. [30] It is quite clear on the record that the judge fell into error in concluding that the cost of Botox treatment had been recommended by a medical professional. The respondent had testified that she had in the past used Botox for cosmetic reasons, and found that it provided relief from her migraines. The use of Botox to treat migraine was confirmed to her by a Dr. Donat, and the respondent testified that its use to treat migraines had been recommended to her by Dr. Donat and Dr. Buttars. Neither of those opinions was in evidence in an admissible form for their truth. The only admissible medical evidence concerning Botox was an opinion that if the other preventive treatments should become ineffective, then a trial with Botox might be recommended. There was no evidence about the likelihood of the existing or alternative preventive treatments, Topiramate and Replax, ceasing to be effective. [31] I am satisfied that there was no medical evidence before the court capable of justifying the cost of Botox treatment. Moreover, the possibility that Botox would be recommended in the future was entirely speculative. In any event, the award made for the cost of Botox treatment is a form of double recovery because it duplicates the cost of treatment provided by the preventive and treatment medications for which compensation had already been provided. [32] In my view, there was no evidentiary foundation for the award of the future cost of Botox treatment and no basis on which to assume, even on a discounted basis, that treatment of the migraine headaches by using Botox would ever be medically recommended for the respondent. [33] I would set aside the award for the future cost of Botox treatment. [34] I turn now to consider the award for the future cost of the preventive and treatment migraine medications. There is no doubt that these treatments are medically justified. Here, the appellant’s essential argument is that these treatments would be needed in any event of the accident. The appellant further submits that the award did not adjust the award for the trial judge’s own finding that the migraines caused by the accident would improve over time. [35] On my review of the evidence, it is clear that the respondent suffers from both menstrual and accident-related migraines. The hormone treatment is effective in controlling menstrual migraines for a three-month period, but accident-related migraines occur regularly and frequently. There was no evidence that if the accident had not happened, the hormone treatment would have been sufficient to avoid migraines for three months at a time, with migraine medication needed only every fourth month. The evidence is unclear whether the respondent likely would be on the preventive medication regimen in any event of the accident, but it is clear that she would be on that treatment to avoid or mitigate the accident-related migraines. In these circumstances, I cannot say the judge erred in making an award for migraine medication. [36] The trial judge imposed a 25% reduction to account for the fact that some of the medication would be attributable to the prevention and treatment of menstrual migraines. He does not consider his finding was that the respondent’s accident-related migraines would improve over time. Equally, he did not factor in a contingency to reflect the fact that the respondent’s menstrual migraines would likely diminish and cease over time in light of her age. These contingencies have opposing effects on the award; increasing the relative frequency of accident-related migraine with menopause, but with a diminishing frequency of accident-related migraines as the respondent’s health improved. Although the judge did not factor these contingencies into the award (see, Morlan v. Barrett , 2012 BCCA 66), I would not disturb it since it may be a reasonable assumption that the positive and negative contingencies would cancel each other out. Did the Trial Judge Err in his Award of Past and Future Income Loss ? [37] The trial judge made an award of $30,000 for past income loss and $60,000 for loss of future earning capacity. In reaching that conclusion, he rejected the respondent’s theory of her income loss attributable to the accident. That theory rested on a loss of gross profits for the respondent’s business, as well as incurring additional labour expenses to run it. [38] The judge found as a fact that the plaintiff did not lose any business as a result of the accident. Rather, there had been a general decrease in gross revenue before the accident, beginning in 2008. Secondly, the judge accepted that the respondent had to work longer hours as a result of the accident to run her business, but he provided compensation for that in his award of non‑pecuniary damages. Neither party raised as an issue in this appeal whether it was an error to provide compensation in that way. Thirdly, in explaining his award for future loss of income, the trial judge defined the respondent’s loss to be her need for some part-time help in order for her to continue to operate the business as she did prior to the accident. Clearly, the judge formed the view that, because of the accident, the respondent needed part-time help, beyond working longer hours, to be able to operate her business. [39] The appellant contends that the income loss award can only be explained on the basis that the judge compensated for the replacement costs for the part-time employees taken on since the accident. This seems to be a reasonable conclusion. The cost of those employees to the end of 2014 was $26,873. Making some adjustment for the costs incurred in 2015, of which there was no direct evidence, an award of $30,000 is supportable on the evidence. [40] The problem with this award, according to the appellant, is that apart from the first part-time employee who was hired immediately after the accident for some months, there was no evidence that the other part-time employees were hired because of her injuries or to undertake particular tasks that the respondent was no longer able to do because of the accident. In fact, the respondent ran the business effectively on her own for close to a year after her first part-time employee left. The appellant argues that, on the evidence, the respondent was capable of doing all of those tasks necessary to run the business, although executing those tasks took longer and required the respondent to work longer in the evenings and on the weekends, matters which were compensated for in the non‑pecuniary damages. [41] Moreover, the appellant argues that, except for the immediate few months after the accident, whether a part-time employee was engaged in the business depended on how much work there was for the company, not on the need to have someone undertake tasks the respondent could not do because of the accident. [42] In support of this theory, the appellant points to the pre‑accident history of part-time employment within the business. The appellant says that the record demonstrates that when the work was there, a part-time employee was engaged. When the work was not there, they were let go. A part-time employee was engaged in each year between 2007 and 2010 when gross revenue ranged between approximately $130,000-$140,000. In the second half of 2010, business slowed significantly and at that time the part-time employee was let go because of the shortage of work. The respondent admitted that at that time there was not enough work for both of them. That same situation prevailed in the first part of 2011, the respondent acknowledged, before the accident. After the accident, for some months, she needed part-time help to run the business; a fact acknowledged by the appellant. [43] After letting her part-time employee go in late 2011, the respondent ran the business on her own. She did so for approximately a year until she hired her son in September 2012. The appellant’s theory is that as more work was available in 2012 to 2014, as reflected by gross revenues in the range of $122,000-$125,000, so part-time help was hired. In short, a part-time worker was hired because of increases in the volume of business, not the accident, save for the worker hired for the immediate months after the accident. [44] The respondent did not testify that she hired part-time help to assist her in running the business because of her injuries or because there were particular tasks she could no longer do. Accordingly, the appellant argues that there was no evidence that part-time help after 2011 was hired because of the accident and no evidence to support the award. The appellant submits the evidence is only consistent with part-time help being engaged after the accident, just as it was pre‑accident, when there was sufficient business to demand it. In the result, the judge’s conclusion that the respondent was going to need some part-time help in order to help her continue to operate a business as she had done prior to the accident has no evidentiary foundation. The absence of an evidentiary foundation undermines both the past and the future award, since the future award is calibrated to compensate for the future cost of part-time employees. [45] Again, there is considerable force to the appellant’s argument. With the exception of the part-time employee engaged immediately after the accident for some months, there is no clear evidence that part-time employees were taken on to perform the tasks that the respondent could no longer do as a result of the accident or generally to assist her because of her injuries. Indeed, there was no clear evidence that the respondent could not do those tasks necessary to run the business. Certainly, because of her injuries, her capacity to perform her work had been diminished and she struggled to perform her tasks efficiently. The trial judge recognized as much, but compensated for the longer time it took her to do the job in his award of non‑pecuniary damages. [46] It appears clear that the trial judge’s estimate of the loss of earning capacity, both past and future, is based on all of the costs of engaging part-time assistance. The judge concluded that the respondent needed that part-time assistance to run her business. This conclusion is distinct from his finding that it took the respondent longer to perform her tasks. The question is whether the finding that the respondent needed part-time help, as a result of the accident, was open to the judge on the evidence. [47] The respondent had certainly been injured in ways which compromised her ability to run her business. The evidence certainly established that the respondent could be confused, made mistakes, struggled to do what needed to be done, and took much longer to do it. The respondent compensated, certainly in part, for those challenges by working into the evenings and on weekends. The trial judge accepted this. But recognizing that this is so does not mean that the respondent was able to do all that she had to do, without help, simply by working longer hours. It was, I think, open to the judge to infer from the nature of the respondent’s injuries that the respondent needed some assistance during regular hours to help her run the business effectively when her capacity to discharge her tasks in a timely manner had been compromised because of the accident. In my opinion, this is an inference which is supportable on the evidence given the nature of the respondent’s injuries and her associated loss of capacity (e.g., dizziness, fatigue, slowness), which affect the respondent during both regular and non‑business hours. This inference underlies the finding that the respondent needs some part-time help for her to continue to operate a business as she had done before the accident. [48] I acknowledge that there was little direct evidence to support the judge’s conclusion that part-time assistance was required as a result of the injuries caused by the accident. But in my opinion, what evidence there is is just sufficient to support the inference and the finding that some part-time assistance was required as a consequence of the injuries the respondent suffered and, accordingly, is sufficient to withstand appellate review. It was open to the judge to find that the respondent’s capacity to run her business as she had done before the accident had been compromised by the accident and assistance was required. [49] The question then is whether the judge erred in not applying some contingency to the quantum of the award to reflect the likelihood that part-time help would be required from time to time as the amount of work available to the business changed. The evidence demonstrated that the employment of part-time help fluctuated with the amount of work the business had. There is a compelling basis to infer that, quite apart from the accident, when the work was there, such as when business is booming, part-time help would be needed to run the business in any event of the accident. The judge did not consider whether evidence of this contingency, coupled with other contingencies such as age or general improvement in health (based on his findings about the respondent’s prognosis) should lead to a downward adjustment in the award. In my opinion, this was an error. [50] I would accede to this ground of appeal to the extent that I would reduce both the past and future income loss awards by 25% to reflect the contingencies described above. Conclusion [51] To summarize, I would allow the appeal only to the extent of: a) setting aside the award for the future cost of Botox treatment, in the amount of $34,768.90; and b) reducing the awards for past and future loss of income by 25%, in the amount of $22,500. In total, the amount of the trial award is reduced by $57,268.90. [52] In my view, the outcome of this appeal reflects mixed success for the parties. I would order each party to bear their own costs. “The Honourable Mr. Justice Harris” I agree: “The Honourable Mr. Justice Frankel” I agree: “The Honourable Mr. Justice Savage”